The Office of the Solicitor General has strongly advised the Bureau of Fisheries and Aquatic Resources and the National Telecommunications Commission to comply with the ruling of the Malabon City regional trial court that declared its controversial Fisheries Administrative Order No. 266, which requires fishing boats to install Vessel Monitoring and Electronic Reporting Systems (VMS), as void and unconstitutional.

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 RTC, Branch 170, declaring FAO No. 266 series of 2020 as issued by the Department of Agriculture through the BFAR as null and void for being unconstitutional and contrary to the provisions of the Fisheries Code.

The court also made permanent its writ of injunction against the implementation of the BFAR’s FAO 266 that requires all commercial fishing operators to have vessel monitoring and electronic reporting systems installed 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.

On 25 June 2021, the DA-BFAR and NTC appealed the RTC decision to the Supreme Court. Six months passed, no temporary restraining order was issued by the high court.

Acting on the query of the NTC seeking guidance on the writ of permanent injunction with respect to its function of issuing Marine Mobile Service Identity (MMSI) for the transceivers in BFAR’s Integrated Marine Environment Monitoring System (IMEMS) vis-à-vis the RTC’s ruling that FAO 266 is unconstitutional and contrary to Fisheries Code, the OSG replied “in the affirmative” when asked by two agencies on “whether the implementation of FAO is restrained by the writ of injunction issued by the RTC pending appeal to the Supreme Court.”

While the OSG maintained that the assailed 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, in its reply letter to BFAR and NTC.

The new OSG legal opinion departs from its earlier position that despite the permanent injunction and the absence of the TRO from the Supreme Court, BFAR and NTC can still implement FAO 266 and directed commercial fishing operators to install the vessel monitoring devices (VMS).

“This departs from the earlier Opinion, which was rendered proximately after the filing of the petition before the Supreme Court, that FAO 266 may still be implemented. Owing to the facts that the RTC already ruled on the unconstitutionality of FAO 266, and that the Supreme Court has not issued a restraining order or injunction to stay the writ of permanent injunction, as of date or six months after the Petition for Review was filed, the OSG reconsiders its earlier opinion and accordingly posits that the writ of injunction is immediately executory and may not be stayed simply by appeal,” Calida declared.

Applying the rules and jurisprudence, the Solicitor General said “execution of FAO 266 is enjoined, without prejudice to any action or order of, or until final adjudication of the Supreme Court.”

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.”

Meanwhile, Jaydrick Johnson Yan, president of Southern Philippines Deep Sea Fishing Association (Sophil), said that fishing companies in Zamboanga City will defy an order of the BFAR and will go out to sea without the tracking devices when the fishing season opens in March.

Yap said its 22 member fishing companies will send out their fleets with copies of the court ruling and the injunction against implementation of the VMS requirement.

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.

“We will go out because for the food supply to maintain the price, we need to help our fellow Filipinos because if we will not deploy our fishing boats our own fishermen will lose job since December, January, February we have no work because of the close fishing season,” Yap stated.

Of Sophil’s member companies, 10 catch sardines while 12 concentrate on archipelagic fishing. Their fleets catch between 650 to 800 metric tons of fish per day.

Yap warned that if the BFAR will insist on implementing the VMS tracking devices, they will be compelled to go on strike and not go out to sea.

“If BFAR will still insist from executing the VMS and order the law enforcement to apprehend us them probably we will have the status quo, we will not go out,” Yap said, explaining that it will be useless for fishing operators to continue fishing because of the penalties and court cases they may face.

Yap stressed that work stoppage by fishing firm will also affect allied industries, particularly the canning factories, traders from outside Zamboanga City, ice plant factories and trucking services.

According to him, around 34,000 workers in the fishing and canning industries of Zamboanga City would be affected.

Quirino Esguerra, legal representative of Sophil said they have also filed a petition to cite BFAR Director Eduardo Gongona for contempt before the Malabon court.

“As of now, it is clear that the government, the solicitor general accepted that this ruling of the Malabon RTC Branch 170 that FAO 266 is unconstitutional and cannot be implemented. Only a temporary restraining order can stop the court from implementing this very order,” Esguerra said.

The fishing firms asserted that BFAR’s FAO 266 is void and unconstitutional, saying they will resist should the Bureau of Fisheries and Aquatic Resources (BFAR) insist on implementing Fishery Administrative Order (FAO) 266 that requires the installation of a Vessel Monitoring System (VMS) in all fishing boats in the country.

Esguerra pointed out that the FAO is void for being unconstitutional based on the decision handed down on June 1, 2021, by the Malabon Regional Trial Court (RTC) Branch 170.

The Malabon RTC handed down the decision after a Manila-based fishing group filed a petition against the imposition of the FAO 266