The Supreme Court (SC) has affirmed the 2021 trial court ruling that declared unconstitutional Fisheries Administrative Order (FAO) No. 266 that mandated operators of big fishing vessels to report their catches through a vessel monitoring system (VMS) and an electronic reporting system (ERS) to curb illegal, unregulated and unreported fishing (IUUF).

With the ruling, the SC directed the Department of Agriculture (DA) – through the Bureau of Fisheries and Aquatic Resources (BFAR) – to take immediate steps to rectify deficiencies in FAO 266 and to report the action taken.

The full court decision, written by Associate Justice Maria Filomena D. Singh, denied the petition filed by the government, through the Office of the Solicitor General (OSG).

FAO 266 required commercial fishing vessels weighing 3.1 gross tons to install tracking devices and for their operators to report their location and catch through VMS and ERS.

The consolidated petitions before the SC against FAO 266 were filed by the DA, the BFAR, the National Telecommunications Commission (NTC) and Oceana Philippines International, an advocacy group.

Aside from the Malabon City regional trial court (RTC), also named respondents in the petitions were fishing operators such as the Royale Fishing Corporation, Bonanza Fishing and Market Resources, Inc., and RBL Fishing Corporation, the country’s biggest fishing companies.

On June 1, 2021, the Malabon City regional trial court (RTC) declared FAO 266 null and void for being unconstitutional.

The RTC ruled that the reporting required from big fishing operators like the date and time of their fishing activities were sensitive information and formed part of their trade secrets.

Thus, the trial court said that the installation of VMS and ERS in their fishing vessels would reveal their locations and eventually their trade secrets.

The RTC declared that FAO 266 was violative of the constitutional right to privacy, right against unreasonable searches, right to due process, the right to participate in decision-making processes, and the right to equal protection.

The issue was elevated to the SC.

During the oral arguments on the petitions, the OSG told the SC that the VMS and ERS serve as management tools for conservation of marine resources which are globally recognized.

It said 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,” the OSG pointed out.

In its decision made public last July 30, the SC ruled that FAO 266 was violative of the constitutional rights against unreasonable searches and seizures, to due process, and to the equal protection of law of the commercial fishing operators.

The SC said: “There is no doubt that the issuance of FAO No. 266 by the DA and the BFAR was driven by noble intentions. After all, it merely tried to implement Republic Act No. 8550 (Philippine Fisheries Code), as amended by Republic Act No. 10654, the goals of which include achieving food security for the entire population and ensuring ‘the rational and sustainable development, management, and conservation of the fishery and aquatic resources in Philippine waters ... consistent with the primordial objective of maintaining a sound ecological balance, protecting and enhancing the quality of the environment.’”

“Nonetheless, the chosen manner of implementation has been shown to transgress fundamental rights enshrined in the Constitution. In every instance when the Court is confronted with the need to weigh a State interest against the sacrosanct rights of its people, the scales must always tip in favor of the protection of the latter if the State interest can be preserved through lawful and less restrictive means,” it said.

It also said: “It is in cases such as this one that the Court fulfills its role as the ‘court of last resort,’ ‘the last bastion of right and justice’ for citizens who face the overwhelming might and well-nigh unbridled authority of the State.”

The dispositive portion of the SC decision: “Accordingly, the Petition for Certiorari, docketed as G.R. No. 256282, filed by the Republic of the Philippines, is dismissed for being moot and academic. The Petition for Review on Certiorari, docketed as G.R. No. 256559, also filed by the Republic, is denied. The Decision, dated June 1, 2021, of Branch 170, Regional Trial Court, Malabon City, which declared Fisheries Administrative Order No. 266 null and void for being unconstitutional is affirmed.”