(First of two parts)

MANILA, Philippines — The Supreme Court has upheld a 2021 ruling that struck down a government regulation requiring commercial fishing vessels to be monitored electronically, saying the measure went beyond what was reasonably necessary to fight illegal fishing and violated constitutional protections.

The ruling involved Fisheries Administrative Order (FAO) No. 266, issued by the Department of Agriculture (DA) through the Bureau of Fisheries and Aquatic Resources (BFAR) in 2020. The order required Philippine-flagged commercial fishing vessels to install a Vessel Monitoring System (VMS) and use an Electronic Reporting System (ERS).

In an 82-page decision promulgated Jan. 21, 2026, the high court, voting 13-2, affirmed the June 1, 2021, decision of the Malabon City Regional Trial Court declaring FAO No. 266 unconstitutional.

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The Supreme Court also directed the DA, through BFAR, to take “immediate steps to rectify deficiencies in Fisheries Administrative Order No. 266” and report the action taken to the court.

The decision was made public July 30.

READ: SC affirms tracking of commercial fishing ‘unconstitutional’

But what exactly did the court find wrong with vessel monitoring? What does FAO No. 266 require? What does the Fisheries Code actually say about monitoring fishing vessels? And does the ruling mean commercial fishing vessels can now enter municipal waters without consequence?

Here’s what you need to know.

What is vessel monitoring?

Vessel Monitoring Measures (VMM) refer to systems used by fisheries authorities to monitor fishing vessels.

The Supreme Court decision describes the VMS as a system that “tracks, monitors, and manages fishing vessels,” while the ERS is used to record, report, process, store and transmit fisheries data.

Under FAO No. 266, commercial Philippine-flagged fishing vessels were required to use these systems.

The ERS was designed to electronically record information, including the species and volume of fish caught, the vessel’s position, and the date and time of fishing activity. The order also provided for the continuous transmission of vessel information while fishing.

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The regulation had several stated purposes, including improving the monitoring of fishing operations, strengthening law enforcement, supporting fisheries research and data collection, ensuring seafood traceability and catch documentation, assisting in the investigation of fisheries violations, and helping locate vessels during accidents and disasters.

In other words, VMM was not simply a GPS tracker. It was intended to give fisheries authorities electronic information about where vessels were, when they were fishing and what they were catching.

Why was FAO No. 266 issued?

The roots of the regulation go back to the Philippine Fisheries Code of 1998, or Republic Act No. 8550.

The law was amended in 2015 by Republic Act No. 10654, which specifically sought to strengthen the prevention, deterrence and elimination of illegal, unreported and unregulated fishing, or IUUF. The amended law also strengthened the state’s mandate to manage Philippine fisheries sustainably.

The amended Fisheries Code says the state is to ensure the “rational and sustainable development, management and conservation” of fishery and aquatic resources while maintaining ecological balance and protecting the environment.

It also expressly requires a government monitoring, control and surveillance system.

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Section 14 of the amended Fisheries Code states:

“A monitoring, control and surveillance system shall be established by the Department in coordination with LGUs, FARMCs, the private sector and other agencies concerned to ensure that the fisheries and aquatic resources in Philippine waters are judiciously and wisely utilized and managed on a sustainable basis and conserved for the benefit and enjoyment exclusively of Filipino citizens.”

The same provision says:

“The [Monitoring, Control and Surveillance] system shall encompass all Philippine flagged fishing vessels regardless of fishing area and final destination of catch.”

There is another provision that is particularly relevant to the case.

Section 119 of the amended Fisheries Code says:

“No municipal, commercial or distant water fishing vessel shall engage in fishing activity without complying with the vessel monitoring measures promulgated by the Department in coordination with the LGUs.”

It also makes it unlawful to “intentionally tamper with, switch off or disable the vessel monitoring system.”

This wording is important because the Supreme Court did not strike down Sections 14 and 119 themselves. The case was about whether the DA and BFAR had validly implemented those provisions through FAO No. 266.

What changed under FAO No. 266?

Before FAO No. 266, the DA had issued FAO No. 260 in 2018.

FAO No. 260 applied VMM and ERS rules to commercial Philippine-flagged fishing vessels targeting “straddling and highly migratory fish stocks.”

FAO No. 266, issued Oct. 12, 2020, amended that order by removing that limitation.

“Thus, the rules and regulations henceforth were to apply to all commercial Philippine-flagged fishing vessels,” the Supreme Court ruling stated.

The expansion became the subject of a constitutional challenge by Royale Fishing Corporation, Bonanza Fishing and Market Resources Inc. and RBL Fishing Corporation.

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The companies argued that information gathered through VMS — including vessel locations and information about fishing grounds — could reveal commercially valuable information. They argued that compulsory monitoring also amounted to an unreasonable search and violated their rights to due process and equal protection.

They also argued that the regulation had been issued without the scientific study and stakeholder consultations required under the rules governing the implementation of the Fisheries Code.

The government disagreed.

Among other arguments, the Republic said abundant fishing grounds could already be located through modern technology and that the real-time location of fishing vessels could be tracked even without VMS using publicly available technologies, including satellite-based systems.

It also pointed out that fishing vessels were already required to report their “fish catch and spoilage, landing points, and quantity and value of fish caught, and off-loaded for transshipment, sale, and/or other disposal.”

What did the Supreme Court decide?

The Supreme Court did not say that fighting IUUF was an illegitimate government objective.

Instead, it examined whether the particular means used in FAO No. 266 were reasonably connected to that objective and whether the regulation stayed within the authority granted by law.

The court applied the rational basis test, which examines whether a government measure is reasonably related to a legitimate state interest.

The court also recognized the government’s interest in conserving marine resources and preventing illegal fishing. However, it found the 24/7 monitoring requirement unnecessarily restrictive.

One reason the court cited was that FAO No. 260 itself already provided another method for reporting a vessel’s position when the monitoring equipment was not working.

Section 22 of FAO No. 260 provided:

“In the event of a technical failure or non-functioning of the VMM on board the fishing vessel, the Master or Operator shall communicate this immediately to the FMC.”

It further required manual reporting every four hours through other communication channels, such as radio, phone or email, until the vessel returned to port.

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The Supreme Court found that these alternatives were less intrusive and concluded that the continuous monitoring requirement in FAO No. 266 was unduly restrictive.

“Indubitably, 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. VMS cannot even detect overfishing or unreported fishing,” the court stated.

The court consequently held that FAO No. 266 failed the rational basis test because the government had not shown that the chosen means were reasonable in relation to the interest being protected.

The decision also said:

“Equally established is that the expected output from VMS ‘is no different from the present manual reporting’ already being done by the fishing vessels.”

The court further said VMS could not effectively track unregistered or illegal fishers and that the Republic had failed to provide evidence showing that VMS was more effective — or even as effective as manual reporting — in preventing certain fishing violations.

What about fishing grounds being a trade secret?

This was another important part of the case.

The commercial fishing companies argued that information about where and when they fish can have commercial value.

The Supreme Court noted that they considered information such as the location of fishing vessels and the species thriving in a fishing ground at a certain point in time to be trade secrets, saying fishing companies spend heavily to identify fishing grounds and keep such information private.

The Supreme Court agreed that fishing activities could constitute trade secrets, ruling that “the fishing activities of the fisherfolk and the owners and operators of fishing vessels constitute trade secrets.” It clarified, however, that these are proprietary rights and not rights protected by the constitutional right to privacy.

The government, on the other hand, argued that modern technologies could already identify fishing grounds and track vessel locations.

It further argued that even if the information were considered trade secrets, it was “adequately protected” under Republic Act No. 8550, as amended, which categorizes the data as sensitive technical information and penalizes unauthorized disclosure.

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The court then examined whether FAO No. 266 could require the continuous collection and recording of such information. It found that the Fisheries Code does not require fishing operators to reveal all their fishing locations 24/7 and that the law’s definition of “monitoring” does not extend to the continuous tracking of vessel locations or destinations.

The distinction is important: The ruling recognized fishing-related information as proprietary, but the court’s decision turned on whether FAO No. 266 went beyond what the Fisheries Code authorized in requiring continuous monitoring and reporting.

For ocean conservation group Oceana, the privacy argument raised in the case overlooks the fact that commercial fishing takes place in waters owned and managed by the state.

“However, commercial fishers do not own the waters they work in. A fishing license is a privilege the State grants with conditions, and monitoring is one of them. Operators accept those terms when they receive the license,” Oceana said.

“They already hand over this same information through manual reporting, and information volunteered is no longer private,” it added.

Oceana argued that monitoring activity in a public resource should not be equated with searching the private affairs of an individual. In its view, commercial operators cannot treat portions of public waters as private spaces while exercising a state-granted privilege to fish there.

“You cannot claim privacy over waters you do not own,” Oceana stressed.

Why did the court consider the monitoring an unreasonable search?

The Supreme Court also examined the constitutional protection against unreasonable searches and seizures.

The court noted that one of FAO No. 266’s stated objectives was “to establish a system that will facilitate law enforcement and aid in case building and prosecution of fisheries law violations.”

Because VMS data could be used for law enforcement and prosecution, the court treated the compulsory collection of the information as raising search-and-seizure concerns.

The court said FAO No. 266 went beyond the parameters provided by the Fisheries Code.

It added that the amended law already requires commercial fishing vessels to maintain daily records of their catches and spoilage, landing points, and the quantity and value of fish caught and off-loaded for transshipment, sale or other disposal.

Section 38 provides:

“Each commercial fishing vessel shall keep a daily record of fish catch and spoilage, landing points, and quantity and value of fish caught, and off-loaded for transhipment, sale and/ or other disposal.”

It further requires the information to be certified by the vessel captain and transmitted to BFAR within the period prescribed by the implementing rules.

The Supreme Court found that the law did not expressly require commercial fishing operators to continuously disclose their fishing locations. For the court, FAO No. 266 therefore compelled the disclosure and recording of proprietary information beyond the statutory requirements.

“The monitoring, control, and surveillance system implemented by FAO No. 266 goes beyond what Republic Act No. 8550, as amended, authorizes,” the court stated.

Was there also a problem with consultations?

The government maintained that BFAR had conducted consultations with fishing vessel operators, local governments, the academe, experts, nongovernment organizations and fisherfolk before FAO No. 266 was issued.

It also presented evidence that the National Fisheries and Aquatic Resources Management Council had deliberated on the regulation.

But the Supreme Court examined the more specific requirements under the Fisheries Code’s implementing rules.

Those rules state that regulations must be based on scientific studies and that, in conducting such studies, affected stakeholders should be informed about the study, its duration and the experts conducting it. Stakeholders may also nominate scientists or comment on the experts involved.

The rules likewise require consultations in affected regions and at least 15 days’ prior notice of consultations, including publication of the notice in a newspaper of general circulation where feasible.

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The Supreme Court found that the government had not shown compliance with all of those requirements.

The decision noted, among other things, that the scientific material relied upon by the government was a 2006 international expert consultation on VMS and that there had been no Philippines-specific scientific study conducted with stakeholder participation for FAO No. 266.

“Contrary to the argument of the Republic, the Republic’s discretion in choosing a scientific study upon which a regulation shall be based is subject to the following qualifications or limitations: first, the stakeholders in the affected region shall be informed of the conduct of the study, its duration and the expert/s who will conduct the same; second, the stakeholders must be given opportunity to nominate their own scientist/s to participate in the study, third, the stakeholders must be afforded the chance to provide comments on the scientist who will conduct the study,” the court said.

“None of these qualifications have been complied with by the Republic, considering that the sole scientific study relied upon by the Republic was released in 2006, or almost 15 years prior to the issuance of FAO No. 266,” it continued.

“Worse, the Republic did not even present the supposed scientific study to the stakeholders during the series of consultations that it conducted,” the court added.

The court therefore found a procedural due process problem in the regulation’s issuance.

Why did the court strike down FAO No. 266 instead of just changing it?

The Supreme Court found that the regulation failed the rational basis test and amounted to an unreasonable search and seizure. It also found violations involving the commercial fishing operators’ constitutional rights to due process and equal protection.

The court acknowledged that the government had legitimate reasons for issuing the order.

In the decision’s concluding discussion, it said:

“There is no doubt that the issuance of FAO No. 266 by the DA and the BFAR was driven by noble intentions.”

But the court continued:

“Nonetheless, the chosen manner of implementation has been shown to transgress fundamental rights enshrined in the Constitution.”

It said the state’s interest could still be preserved through “lawful and less restrictive means.”

The Supreme Court consequently affirmed the Malabon RTC’s 2021 decision declaring FAO No. 266 null and void for being unconstitutional.

But the ruling does not end the government’s authority to regulate fishing — or erase the Fisheries Code’s vessel-monitoring requirements. The bigger question is what the decision means for the waters where commercial and municipal fishers operate, how authorities can enforce fishing restrictions without FAO No. 266, and why small-scale fishers and fisheries groups are now asking the Supreme Court to reconsider.

The second part of this explainer will examine what changes — and what does not — after the ruling, and why its implications extend from municipal waters and fisherfolk livelihoods to fisheries enforcement, seafood exports and the country’s continuing fisheries crisis. /dm