BFAR appeals Supreme Court ruling on fishing vessel monitoring

By Joseph Bernard A. Marzan

QUEZON CITY — The Bureau of Fisheries and Aquatic Resources (BFAR) said on Tuesday, Aug. 11, that it would challenge the Supreme Court ruling that struck down its 2020 order requiring real-time tracking devices aboard commercial fishing vessels.

BFAR spokesperson Nazzer Briguera, who also serves as officer in charge of the bureau’s regional office for the Cordillera Administrative Region, said during a press conference that the Office of the Solicitor General (OSG) would assist in the challenge.

The press conference was organized by Oceana, an international nonprofit organization whose Philippine branch joined BFAR in seeking to reverse the 2021 ruling of the Malabon City Regional Trial Court (RTC).

“The [BFAR] is availing itself of the appropriate legal remedies to seek further consideration of the legal and policy issues raised in the decision. The [BFAR] is coordinating with the [OSG] in providing the necessary technical, factual, and policy inputs to support the government’s position,” Briguera said, reading from the bureau’s official statement.

The statement also expressed respect for the Supreme Court’s judicial authority.

“[Illegal, unreported, and unregulated] fishing continues to threaten fisheries sustainability, marine biodiversity, food security, and the livelihoods of millions of Filipino fisherfolk,” he added.

BFAR first signaled its intent to seek reconsideration on Aug. 3, when Agriculture Secretary Francisco Tiu Laurel Jr. said the order remained the most effective instrument against illegal fishing.

The Supreme Court, voting 13-2, upheld the 2021 decision of Malabon City RTC Branch 170 declaring Fisheries Administrative Order (FAO) 266 unconstitutional.

The decision was promulgated on Jan. 21 and released to the public on July 30. It was written by Associate Justice Maria Filomena Singh.

The high court dismissed the petition brought by the Republic of the Philippines, represented by the Department of Agriculture (DA) and BFAR, together with the National Telecommunications Commission and Oceana Philippines, against three large commercial fishing operators.

The court held that FAO 266 failed the rational basis test, finding that the government did not demonstrate that the monitoring and reporting systems were effective in detecting violations.

It also directed the DA, through BFAR, to take immediate steps to correct deficiencies in the order and to report to the court on the action taken.

FAO 266 was issued in October 2020 to address illegal, unreported, and unregulated (IUU) fishing through Vessel Monitoring Measures and an Electronic Reporting System for commercial fishing vessels.

The order amended FAO 260, issued in 2018, by expanding those requirements from vessels targeting straddling and highly migratory fish stocks to all Philippine-flagged commercial fishing vessels.

Both orders implement Republic Act No. 8550, the Philippine Fisheries Code of 1998, as amended in 2015 by Republic Act No. 10654, which directed the DA to establish monitoring systems for the country’s fisheries.

The measures were among the Philippine government’s responses to the yellow card issued by the European Union in 2014, a formal warning to countries that are not doing enough to stop IUU fishing. The European Union lifted the warning in April 2015.

The lower court’s ruling stemmed from a petition for declaratory relief filed by three large commercial fishing operators — Royale Fishing Corporation, Bonanza Fishing and Market Resources Inc., and RBL Fishing Corporation.

The operators argued that the continuous monitoring requirements violated their constitutional rights to privacy, due process, and equal protection, compelled the disclosure of trade secrets, and were issued without the scientific study and stakeholder consultation they said the law required.