The Supreme Court (SC) will resume on Nov. 21 its oral arguments on the petitions filed by the government and an advocacy group against the 2021 ruling of a trial court that declared unconstitutional the Fisheries Administrative Order (FAO) No. 266 issued in 2020.
FAO 266 issued by the Bureau of Fisheries and Aquatic Resources (BFAR) required commercial fishing vessels weighing 3.1 gross tons to install tracking devices and for their operators to report their catch through the vessel monitoring system (VMS) and electronic reporting system (ERS).
In June 2021, the Malabon City regional trial court (RTC) declared FAO 266 null and void for being unconstitutional. It granted the petition filed by Royal Fishing Corporation, Bonanza Fishing and Market Resources, Inc. and RBL Fishing Corporation, the country’s biggest fishing companies.
The government, through the Department of Agriculture, BFAR, the National Telecommunications Commission (NTC) and Oceana Philippines International, an advocacy group, filed separate petitions against the RTC ruling. The petitions were consolidated by the SC which ordered the conduct of oral arguments.
Last Oct. 10, the SC conducted the first oral arguments on the consolidated petitions. Both the petitioners (the government) and the respondents (the big fishing companies) presented their opening statements.
Representing the government, Solicitor General Menardo I. Guevarra told the SC that FAO 266 that mandates installation of VMS and ERS in big fishing vessels is aimed at curbing illegal, unregulated and unreported fishing (IUUF).
Guevarra said the Malabon City RTC committed “jurisdictional trespass” when it declared FAO 266 unconstitutional. “The regional trial court arrogated upon itself a power reserve exclusively to this Honorable court….”
He pointed out that the VMS and ERS serve as management tools for conservation of marine resources which are globally recognized.
He noted that the tools help government agencies and enable them to monitor all duly registered commercial fishing vessels to ensure that they are operating within authorized fishing grounds and guide them in the prosecution of violators of fisheries law.
“Irresponsible use of marine resources endangers their very existence. Enjoining FAO 266 removes one of the most effective tools of the government against IUUF,” Guevarra stressed.
Represented by Atty. Arnold D. Naval, the three fishing companies told the SC that the RTC was correct “in holding that information on the fishing grounds of fishing companies constitute trade secrets and FAO 266’s mandatory installation VMS violated the fishing companies’ right to privacy and unlawful searches.”
Naval told the SC that “FAO 266 violated the equal protection clause of the Constitution by regulating only commercial fishing vessels and leaving the regulation of municipal fishing vessels to the discretion of local government units.”
Also, he said, “FAO 266 was issued without public consultation and delineation of municipal waters which also violated the constitutional right of fishing companies to due process.”
At the same time, Naval pointed out that FAO 266 “violates a spectrum of their constitutional rights, including privacy, protection against unlawful searches, the equal protection clause, due process, and participation in decision-making processes”.
“Once BFAR installs the VMS, it will have unrestricted power to access sensitive information to monitor the location and activities of the fishing vessels. This violates the commercial fishing operators’ constitutional rights to privacy and unlawful searches, among others,” he said.
Also, Naval said that FAO 266 “violates the constitutional right against unlawful searches, because the constant real-time monitoring facilitated by VMS amounts to an unwarranted and unconstitutional intrusion, conducted without probable cause or judicial authorization.”
“The monitoring mandated by FAO 266 unfairly presupposes commercial fishing operators as violators that must be surveyed all the time. This already is a search, which under Section 2, Article III of the Constitution, only a judge upon probable cause can authorize. Petitioner Republic’s unreasonable and unlawful search via the VMS not only encroaches judicial power, but also directly violates constitutional limitations,” he said.
He also said that FAO 266 “violates the equal protection clause by limiting its coverage to commercial catcher fishing vessels only, excluding the huge number of municipal fishing boats.”
He reminded that the implementation of FAO 266 has been suspended by the Office of the President until such time that the SC decides on the petitions against the RTC’s ruling on unconstitutionality.