THE Bureau of Fisheries and Aquatic Resources (BFAR) has declared that the compliance of its controversial regulation, the Fisheries Administrative Order No. 266, which requires the installation of vessel monitoring system (VMS) and electronic reporting system (EPS) for commercial Philippine-flagged fishing vessels, will be voluntary, not mandatory.
During the virtual consultative meeting with the industry’s stakeholders on Tuesday, Atty. Michael Andayog, Officer-In-Charge of BFAR’s Fisheries Regulatory and Licensing Division (FRLD), announced that the installation of the VMS 100 transceiver as mandated by FAO No. 266 is no longer mandatory.
“We are aiming for voluntary compliance by the commercial vessel (because) we are tentatively, we have a possible schedule for installation of VMS,” Andayog told the owners and operators of commercial Philippine-flagged fishing vessels who attended the consultation and orientation meeting called by BFAR.
“So more or less voluntary. We are not saying mandatory or imposing this requirement as of now,” he said, even as he noted that there are companies that “have signified intention or interest to the compliance.”
Andayog made the statement apparently to avoid legal complications after a group of commercial fishing companies earlier urged the Malabon City Regional Trial Court to cite BFAR and the National Telecommunications Commission for indirect contempt for allegedly defying a court order enjoining them from implementing FAO No. 266.
The government had explained that FAO 266 was enacted to strengthen the monitoring, control and surveillance system of the country’s fishery resources for sustainable management and conservation of these resources.
FAO 266 is a regulatory measure that implements the Vessel Monitoring System and Electronic Reporting System, which was enacted to comply with the implementation of various conservation and management measures under the Regional Fisheries Management Organizations and other International Fisheries Commissions, of which the Philippines is a signatory.
Nonetheless, Andayog encouraged the stakeholders to voice their concerns on the issue, saying “we are also exploring other possible ways to improve the system in relation to the detection and monitoring through the vessel monitoring system.”
The NTC, for its part, clarified that their presence during the meeting was merely intended to explain about the process on how NTC issues Maritime Mobile Service Identity (MMSI) number to fishing vessels and the licensing process.
“Our participation here was a courtesy to the invitation extended by BFAR. We just presented the general procedure of how to secure MMSI numbers, not specific to this project, but it’s general guideline based on our citizen’s charter. So, we presented it in a manner (intended) to just enlighten everyone of how NTC issues MMSI and the corresponding licenses for it,” said Engr. Alvin Bernard Blanco, OIC-Director, NTC’s Special Licensing Branch.
Paul Santos of Bonanza Fishing and Market Resources, Inc. confirmed the statement made by Andayog that the installation of VMS is not mandatory, but merely voluntary on the part of the owners and operators of the commercial fishing vessels.
Prior to the presentation by the NTC, Santos manifested that the presence of the owners and operators of the commercial fishing vessels during the consultative and orientation meeting “is subject and without prejudice to the decision dated June 1, 2021” by the Malabon City Regional Trial Court that voided FAO No. 266.
It can be recalled that the Malabon City RTC, in its June 1, 2021 decision, had declared FAO No. 266 null and void for being unconstitutional and contrary to the provision of Republic Act 8550 of the Fisheries Code. It also made permanent its writ of preliminary injunction dated January 22, 2021 prohibiting BFAR and NTC from implementing FAO 266.
Santos sought for the inclusion in the minutes of the orientation meeting that “we all abide by and comply with the decision of the Malabon RTC.”
“Our attendance is also without prejudice to all and all causes of actions that may arise from violations of the decision (rendered by the Malabon City court),” Santos stressed.
Last month, a petition for indirect contempt has been filed before the Malabon City RTC seeking to cite BFAR through its national director Eduardo Gongona, NTC and other concerned agencies, for indirect contempt for ignoring the permanent injunction enjoining the government agencies from implementing their controversial Fisheries Administrative Order No. 266-2020.
“After due notice and hearing, the court enters judgment declaring respondent National Director of the [BFAR], Eduardo B. Gongona, guilty of indirect contempt and penalized accordingly,” petitioner NFH Corporation, represented by its President Frederick L. Uy, and Ruth B. Dimaiwat, pleaded in their 12-page petition for indirect contempt and injunction with praying for a temporary restraining order and/or writ of a preliminary injunction.
The petitioners were referring to the permanent injunction issued by the Malabon City RTC against the enforcement of Fisheries Administrative Order (FAO) 266-2020, which amended FAO 260-2018, that requires the installation of VMS-100 transceivers in all commercial fishing vessels operating in domestic waters, in the high seas and other distant waters.
FAO 266 is supposedly being implemented to further intensify the campaign against illegal, unreported, and unregulated fishing.
But on June 1, 2021, Presiding Judge Zaldy Docena of Malabon City RTC, Branch 170 declared FAO 266 as null and void for being unconstitutional.
Judge Docena granted the petition of Royale Fishing Corporation, Bonanza Fishing and Market Resources, and RBL Fishing Corporation seeking to stop the Department of Agriculture, BFAR and NTC from implementing Section 14 and 119 of Republic Act No. 8550, as amended, as implemented by FAO 266 for being illegal and unconstitutional.
The petitioners, who are domestic corporations engaged in commercial deep-sea fishing in the Philippine waters, argued that Section 119 of RA 8550, which created the Vessel Monitoring Measures or VMM, and Section 14, which mandates monitoring, control and surveillance of fishing in all Philippine waters and Philippine-flagged distant water fishing vessels, violate their constitutional rights to privacy and against unlawful searches; that FAO 266 violates the equal protection clause and the law it seeks to implement.
The petitioners also said the issuance of FAO 266 violated petitioners’ constitutional rights to due process and to participate in the decision-making process and that the implementation of FAO 266 is premature.
The petitioners asserted that information to be recorded and reported via Electronic Reporting System, like position of the vessel where the fish was caught, date and time and vessel activity, are sensitive information and part of their trade secrets and proprietary information.
“The recording and reporting of petitioners’ trade secrets not only violate their privacy, but also expose them to suffer tremendous losses,” the petitioners stressed.
The petitioners also lamented that by requiring the commercial fishing vessels to be equipped with VMS or vessel monitoring system violates their constitutional right against unlawful searches.
“The instant petition is granted. Fisheries Administrative Order No. 266 Series of 2020 (FAO 266) is declared null and void for being unconstitutional and thus ultra vires, illegal, void and contrary to the provision of RA 8550, as amended. Consequently, all memoranda, orders and other issuances to public respondents’ regional offices and other government agencies issued pursuant to or in implementing FAO 266 are declared null and void,” Presiding Judge Docena said, in his 31-page decision.
While the public respondents issued the assailed FAO 266 with the goal of strengthening the monitoring, control and surveillance of the country’s fishery resources, “the same should not be done at the expense of the constitution,” the court said, adding that there are other methods on how to implement Section 119 of the Fisheries Code without violating the protected constitutional rights of any person or entity.
In its petition for contempt, the NFH Corporation lamented that Gongona refused to honor the permanent injunction pronounced by the Malabon City RTC “as he is poised and insistent in his desire to implement the court declared unconstitutional FAO 266 despite lack of a stay order coming from the latter or from the Supreme Court.”
“This special civil action seeks to hold respondent . . . Gongona liable for indirect contempt for defying and/or disobeying a lawfully rendered judgment of the Malabon City RTC. More particularly, the . . . declared as unconstitutional Fishery Administrative Order (FAO) 266, an issuance of the Department of Agriculture implementing Section 14 and 119 of Republic Act 8550, the Fishery Code of 1998,” the petition stated.
“As a necessary consequence of his liability for indirect contempt, petitioners also pray that honorable court order respondent to accord respect and obedience to judgments decreed by a duly constituted authority like the Malabon City RTC. Eduardo B. Gongona and/or his office, the BFAR must be, therefore, be enjoined from insisting on implementation of the unconstitutional FAO 266 . . .“ the petitioner said.