Big fishers win as Supreme Court declares tracking at sea unconstitutional

PORT. A photo of Navotas Fish Port Complex taken November 2022. Wikimedia Commons The Supreme Court directs the Department of Agriculture and the Bureau of Fisheries and Aquatic Resources to immediately 'rectify deficiencies' in Fisheries Administrative Order No. 266 MANILA, Philippines – The Supreme Court (SC) struck down as unconstitutional the government policy that mandated a vessel monitoring system in commercial vessels, citing violations of commercial fishing operators’ constitutional rights against unreasonable searches and seizures, due process, and equal protection of law. The decision, promulgated on January 21 and which Rappler obtained a copy of on Thursday, July 30, affirmed the 2021 decision of Malabon Regional Trial Court Branch 170 that declared Fisheries Administrative Order (FAO) No. 266 unconstitutional. FAO 266, issued by the Department of Agriculture in 2020, set the guidelines for vessel monitoring measures and an electronic reporting system for commercial Philippine-flagged fishing vessels. The policy was part of the government’s efforts to curb illegal, unreported, and unregulated (IUU) fishing. These measures record data such as vessel position, volume of fish catch, and port of origin and arrival. The High Court, voting 13-2, said the government failed to show that the vessel monitoring system is effective in detecting IUU fishing violations. Detecting IUU fishing through the vessel monitoring system is one of the main arguments the government used to justify the need to track fishing vessels at sea through the vessel monitoring system. “The availability of other means, which are less intrusive and even more effective in preventing and detecting IUUF, makes the 24/7 monitoring required by FAO No. 266 unduly restrictive,” read the decision penned by Supreme Court Justice Maria Filomena Singh. “VMS cannot even detect overfishing or unreported fishing.” Moreover, the court said the policy exceeded parameters in monitoring and surveillance of commercial fishing vessels and “permits unreasonable searches and seizures.” Commercial fishing operators were singled out in FAO 266, said the court, when vessel monitoring also includes municipal and distant water fishers, thus violating the equal protection clause of the Constitution. There was “palpable violation,” as well, of the commercial operators’ right to due process, as the government already acquired VMS transceivers before the conduct of public consultations. Royale Fishing and others “had no real opportunity to be heard and to give their comments on the proposed regulations.” Additionally, the court said no proof was presented to show that Philippine relations with the European Union and other countries suffered because of the injunction against the vessel monitoring system. In 2014, the EU issued a yellow card (a threat of a fish export ban) against the Philippines if it would not carry out reforms to combat illegal fishing. The following year, the ban was lifted when the Philippines amended its Fisheries Code. A case from 2021 This case involves government agencies the Department of Agriculture (DA), the Bureau of Fisheries and Aquatic Resources (BFAR), and the National Telecommunications Commission. Big fishers involved in the case are Royale Fishing Corporation, Bonanza Fishing and Market Resources Inc, and RBL Fishing Corporation. The case started when these fishing operators sought declaratory relief from the Malabon regional trial court. The Supreme Court has directed the DA, through the (BFAR), to immediately “rectify deficiencies” in FAO 266 and report action taken. Environmental groups following the resolution of the case have been concerned about the implementation of the amended Fisheries Code, the fight against illegal fishing, and commercial operators’ encroachment within municipal waters. The resolution in a related case that revolves around Malabon Regional Trial Court Branch 170’s decision to allow a commercial operator to fish within municipal waters is still pending. In the final note of the decision, the court said there was “no doubt” that the government policy was “driven with noble intentions.” But its implementation has violated fundamental rights. “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,” Singh wrote. – Rappler.com How does this make you feel? Loading