Court rejects mandatory fishing vessel monitoring system

MANILA, Philippines — A proposal to equip fishing boats with a vessel monitoring and electronic reporting system (VMS) has been deemed unconstitutional and contrary to the provisions of the Fisheries Code.

Fisheries Administrative Order (FAO) 266 issued by the Department of Agriculture through the Bureau of Fisheries and Aquatic Resources (BFAR) requires all commercial fishing operators to install VMS in their catchers as part of BFAR’s Integrated Marine Environment Monitoring System (IMEMS).

The vessel monitoring devices also require the covered vessels to apply for Maritime Mobile Service Identity numbers with the National Telecommunications Commission.

Under FAO 266, the BFAR wants fishing vessels to install the tracking devices to help it monitor fishing activity, prevent illegal fishing, and locate vessels in case of accidents and disasters.

In a legal opinion sent to BFAR director Eduardo Gongona, Solicitor General Jose Calida told the BFAR and NTC to comply with the June 1, 2021 decision of Malabon City Regional Trial Court, Branch 170, declaring the FAO 226 as null and void for being unconstitutional.

The court also made permanent its writ of injunction against the implementation of FAO 266.

While the Office of the Solicitor General maintained that the decision of the Malabon court has yet to attain finality, Calida stressed that “given that the RTC made permanent the preliminary injunction issued by it, and unless the Supreme Court issues any injunctive writ to enjoin the enforcement of the same, the OSG is of the opinion that BFAR and NTC should desist from implementing FAO 266.”

“By virtue of the rendition of the assailed decision, the RTC made the preliminary injunction permanent. As a consequence, the writ shall be immediately enforced, unless stayed or restrained by the Supreme Court,” the OSG said.

The OSG also took the position that since the writ of permanent injunction is directed against the implementation of FAO 266 by BFAR and NTC “must be applied not only to the parties of the case but must be uniformly applied to all similarly situated entities affected by FAO 266.”

“This is a necessary consequence of the RTC’s ruling on the unconstitutionality of FAO 266, which is not only limited to parties but to all individuals or entities affected by (the regulatory measure),” the chief state lawyer said, even as the OSG emphasized that “the injunction on the implementation of the FAO 266, without distinction, is directed against BFAR and NTC.