Balintang Channel Incident report
This is the Executive Summary and full report on the incident that occurred in the Balintang Channel on May 9, 2013, which involved an encounter between members of the Philippine Coast Guard and fishermen from Taiwan. This report was submitted by the Department of Justice.
Source: Official Gazette
On May 9, 2013, a shooting incident took place involving patrolling personnel of the Philippine Coast Guard (PCG) and the Bureau of Fisheries and Aquatic Resources (BFAR) on board BFAR MCS-3001 and a Taiwanese fishing vessel at Balintang Channel near the Batanes group of islands. The incident resulted in the death of a Taiwanese fisherman.
Philippine government vessel BFAR MCS-3001, with a complement of 17 PCG personnel and 3 BFAR staff, departed Port Irene, Sta. Ana, Cagayan to conduct a sea-borne monitoring, control and surveillance operation at the vicinity of Balintang Channel en route to Batanes. While on patrol, the PCG-BFAR sighted two (2) typical Taiwanese fishing vessels, one nautical mile apart from each other, bearing no flag of nationality. The PCG-BFAR announced its presence to the smaller of the two Taiwanese fishing vessels and signaled the same to stop for the conduct of proper boarding procedures. The Taiwanese vessel did not comply and instead performed evasive maneuvers.
The PCG-BFAR pursued the Taiwanese vessel, firing warning shots to further alert it to stop. The Taiwanese vessel still did not comply, but instead attempted to ram the PCG patrol craft on several occasions. The PCG then fired at the engine section of said vessel in order to stop its engines and immobilize the vessel. The Taiwanese fishing vessel still did not stop.
The PCG-BFAR then spotted a gray colored vessel approximately eight to ten NM from the north approaching the vicinity of the incident. The PCG-BFAR “radio challenged” the gray vessel but no reply was received. The PCG decided not to verify further the identity of the gray ship for security reasons. With the Taiwanese vessel still resisting pursuit and with an unidentified gray vessel approaching, the PCG-BFAR decided to disengage and abort the mission, returning to Port Irene, Sta. Ana, Cagayan.
Taiwanese Fishermen Account
Taiwanese fishing vessel Guang Da Xing No. 28 (CT2-6519) departed from the port of Liu Qui with four occupants to catch tuna. On May 9, 2013, at 12:00 A.M., they started pulling in and collecting their fishing line. At around 9:30 A.M., as they were about to return to Taiwan while traveling at low speed heading toward the east and within Taiwan territorial waters, the boat captain noticed a Philippine vessel fast approaching to his right side. The said vessel did not make any whistle or warning broadcast.
The fishing vessel was travelling slowly when the Philippine vessel overtook and approached the fishing vessel’s left rear side. The Taiwanese crew then heard gunshots so the boat captain increased speed, put his vessel on autopilot, and placed the throttle at full speed to escape. The crew went down to hide in the engine room located directly underneath the driver’s seat in the middle of the vessel. They just heard intermittent sound of gunshots as the Philippine vessel chased them.
After about 30 minutes of being chased, one of the fishermen stood up, stepped on a piece of wood, and stuck his head out to see the Philippine vessel chasing them. A bullet hit his neck causing his immediate death.
After the attack, the Taiwanese crew noticed that their vessel’s steering rudder hydraulic oil was depleted after it was damaged by a gunshot. The Taiwanese crew radioed for help and a ship came and towed their vessel back to Taiwan.
Philippine Jurisdiction over the Incident
The incident happened approximately 40 nautical miles from the country’s baselines and within its 200 nautical miles EEZ. The incident thus transpired within waters over which the Philippines exercises jurisdiction and sovereign rights.
Philippine domestic penal law is applicable to the incident that had taken place within its EEZ.
Article 2 of the Revised Penal Code also provides for the application of its provisions not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who should commit an offense while on a Philippine ship or airship or, while being public officers or employees, should commit an offense in the exercise of their functions.
The firearms used in the incident are the following:
Type of Firearm
|Browning .30 cal. Machine Gun||489066|
|Colt M-16 Assault Rifle||9063992|
|Elisco M-16 Assault Rifle||RP15637, RP015498, RP204217RP194339, RP217716, RP018778RP128640|
|Springfield M-14 rifle||5006|
|Winchester M-14 rifle||1037894|
|US M-14||608863, 1362663, 137231613995549|
The NBI investigating team went to the Firearms Section of the Criminal Investigation Bureau of Taiwan to conduct “cross-matching examination” of the evidence bullets in the custody of the Taiwanese authorities and the “test bullets” fired from various evidence firearms turned over by the PCG to the NBI.
Taiwanese authorities had in their possession eleven (11) fragments, one (1) ogive and four (4) bullets which were all placed in nine (9) sealed brown envelopes. Examinations on the bullet specimens with markings “2-2” and “52”, the same bullet that killed Taiwanese fisherman HONG SHI-CHENG, gave positive results to one (1) Springfield cal. 7.62 mm, M-14 Rifle with Serial No. 5006. This conclusion was based on the Taiwanese forensic results of the DNA examination conducted on the bullet recovered in the engine room. The DNA from the tissue samples recovered from the said bullet matched that of HONG SHI-CHENG.
The Springfield M-14 rifle, Caliber 7.62 mm with SN-5006 was used by SN1 Edrando Quiapo Aguila of BFAR MCS-3001. SN1 Aguila identified and admitted that he carried and used the long firearm described as M14 Rifle with Butt No. 21, Serial No. 5006 during the shooting incident. He further alleged that he fired the said firearm three (3) times, once at the sea and twice at the hull of the Taiwanese fishing vessel, where the engine room is located.
Forensic Chemistry Report
Microscopic and chemical examinations made on the swabbing obtained from the barrel of six (6) M14 rifles (including SN 5006) four (4) M16 rifles, and one (1) Browning machine gun, gave positive results for the presence of nitrites, nitrates, black particles and soot. Comparative examinations made on the swabbing of the barrels of all the aforesaid firearms after their test firing showed that they could have been fired within one (1) week prior to the date of examinations conducted on May 15, 2013.
Ocular inspection of Taiwanese fishing vessel Guang Da Xing No. 28 showed a total of 45 perforations, with most (21) found on the outside portion of the port side. Examinations made on the swabbing on the areas immediately surrounding the perforations gave negative results for the presence of gunpowder nitrates. Based on these findings, the approximate distance of firing could be beyond 36 inches.
Based on the forensic chemistry examination conducted on Taiwanese fishing vessel Guang Da Xing No. 28, there were no signs of ramming.
The NBI Medico-Legal Officer substantially concurs with the findings made by the Forensic Pathologist of Taiwan on the following:  cause of death;  size and location of the entry and exit wounds sustained by the deceased;  the possible firearm that inflicted the injury, considering the size of entry/exit wounds and extent of damage on the body; and  the trajectory of the bullet that caused the injury considering the location of entry and exit wounds.
Analysis and Findings
There is inconclusive proof of an imminent or grave threat to the PCG posed by the Taiwanese vessel. This inconclusiveness in the evidence establishes the presumptive culpability of the concerned PCG personnel in the killing of the Taiwanese fisherman.
The PCG Rules of Engagement (ROE) provides that deadly force should only be used when there is imminent or grave threat to life. The use of deadly force is only for self-defense and to disable the target vessel or the offending crew members and not to cause serious bodily harm or death.
The PCG validly considered the Taiwanese fishing vessel a hostile watercraft, as defined in the PCG Rules of Engagement, when it refused to stop, but instead increased speed, and attempted to escape. However, considering a vessel as hostile does not automatically authorize the use of deadly force. There must be imminent or grave threat to life posed by the hostile vessel.
The imminent and grave threat to life allegedly came from several attempts of the Taiwanese vessel to ram the patrol craft. However, this cannot be conclusively established from the evidence gathered, including the video footages. Therefore, justification for the use of deadly force cannot also be conclusively inferred from the evidence.
The statements of the Taiwanese captain do not foreclose the plausibility of the PCG account that he attempted to ram the PCG vessel, given certain factual inconsistencies which indicate his intention to lure the PCG vessel into a cat and mouse chase.
Hong Yu Zhi was not entirely candid in his sworn statements made before the Taiwan Prosecutor’s Office earlier in the investigation, when he knowingly concealed the incident where he stopped his fishing boat and pretended to submit to boarding by the PCG.
Hong Yu Zhi claims that after stopping, he decided to full throttle forward and escape again after getting scared of the gunfire. However, it is clear from the video footage that when the fishing boat decided to stop apparently to allow itself to be boarded, no more shots were being fired by the PCG.
This raises the possibility that Hon Yu Zhi feigned surrender in an effort to trick the patrol craft to get closer to it. For what purpose it is not readily apparent. It could have been for purposes of eventually ramming the patrol craft, as alleged by the PCG.
The finding on the attempted ramming is inconclusive, because the actuations of the Taiwanese captain do not foreclose an intention on his part to ram the patrol craft, given the evasive trick he used of pretending to stop and be boarded, only to suddenly speed off, putting said patrol craft in a compromising, if not dangerous position.
Despite these statements and actuations of the Taiwanese captain which tend to highlight his deceptive maneuvers designed to lure the PCG into a compromising position and therefore raise doubts on his credibility, the same are not still sufficient to establish a clear showing of imminent and grave threat to the PCG which the latter has the burden of proving.
The defenses available to the PCG under the Revised Penal Code are self-defense, obedience to a lawful order, fulfillment of official duty, and mistake of fact. In the absence of categorical and incontrovertible evidence establishing these justifying circumstances during the investigation, the burden of proof is on the PCG to establish the same during the preliminary investigation or trial proper.
There is inconclusive proof of facts establishing the necessity for self-defense. This inconclusiveness therefore cannot exonerate the PCG crew from criminal liability at this early phase of the criminal prosecution process.
The claim of obedience to a lawful order could not be given indisputable credence in the absence of any conclusive proof on the attempted ramming, so as to establish obedience to a lawful order subsequent to a justified act of using deadly force in self-defense.
The justifying circumstance of lawful fulfillment of duty remains disputable because of the absence of clear and categorical evidence that the order to use deadly force was made in accordance with the ROE, and therefore, lawful.
Where doubt exists as to the viability and indisputability of the justifying circumstances, law enforcers and investigators are mandated to file the necessary complaint, as it is not within their authority to either determine probable cause or exonerate the offenders altogether. Both acts are within the authority of either the public prosecutor or the trial court to perform, not of the investigator.
The offense committed by the PCG crew who fired their weapons at the Taiwanese fishing vessel is homicide.
All the elements of homicide are present, to wit: a) a person is killed; b) the person responsible did the killing without any justification; c) the person had the intention to kill, which is presumed; and, d) the killing was not attended by any qualifying circumstances of murder or by that of parricide or infanticide.
The finding of homicide is supported by jurisprudence in Salvador E. Yapyuco, et al. vs. Honorable Sandiganbayan and People of the Philippines (G.R. Nos. 120744-46, 122677 and 122776, June 25, 2012), where PNP personnel in pursuit of an escaping vehicle fired at the tires to disable the vehicle, instead killing an occupant of the vehicle. The Supreme Court, in the Yapyuco case, said that “[i]f the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.” While the case of Yapyuco may not appear to be identical in all material aspects with the present case, it is still instructive on the nature of the liability of law enforcers who inflict bodily harm or death on suspected offenders without sufficient evidence of aggression coming from the latter so as to justify the use of deadly force.
Yapyuco states that in “crimes of personal violence, the law looks particularly at the material results following the unlawful act, and therefore holds the aggressor liable for the consequences thereof”, though they may be graver and different from the ones actually intended by the offenders.
The eight (8) PCG personnel who fired their guns are liable for homicide because a) the victim died from a gunshot wound inflicted by the PCG; b) the claim of self-defense raised is unsubstantiated; and c) the absence of self-defense makes the act of firing unlawful.
The following PCG personnel appear to be culpable for the crime of homicide when they fired their weapons at the Taiwanese fishing vessel causing the death of a Taiwanese fisherman:
1. Commanding Officer ARNOLD DELA CRUZ,
2. SN1 EDRANDO QUIAPO AGUILA,
3. SN1 MHELVIN A. BENDO,
4. SN2 NICKY REYNOLD AURELLO,
5. SN1 ANDY GIBB RONARIO GOLFO,
6. SN1 SUNNY GALANG MASANGCAY,
7. SN1 HENRY BACO SOLOMON, and
8. PO2 RICHARD FERNANDEZ CORPUZ.
There was conspiracy among the 8 PCG personnel to execute a common design which resulted in homicide. Their collective act of ignoring the ROE makes them equally liable for the death of the Taiwanese fisherman, even if the consequences of their acts are graver than that intended.
The PCG fired more than one hundred rounds of ammunition at the fleeing Taiwanese fishing vessel, inexplicably a high volume of firepower used on an unarmed fishing vessel.
The use of deadly force regressed into indiscriminate firing during the latter part of the chase, when the fishing boat stopped evasive maneuvers in order to escape at full speed.
At the point of the indiscriminate firing, the PCG crew was no longer acting in lawful observation of the ROE. Any sensible and reasonable person is capable of discerning at that point that indiscriminate fire on a small fishing vessel will, in all likelihood, inevitably result not only in the disabling of the watercraft, but also in bodily harm or death of its occupants.
There was an attempt to cover-up the crime when the PCG men submitted a falsified Monthly Gunnery Report and spliced the video footage taken of the incident.
The crime committed is not murder because of the absence of any qualifying circumstance for murder.
In the established facts of the case, only three qualifying circumstances for murder are material: taking advantage of superior strength, evident premeditation, and treachery. All circumstances are not present.
The incident happened within the context of a legitimate maritime law enforcement operation conducted by BFAR MCS-3001, where deadly force just so happened to have been wrongfully applied.
Abuse of superior strength is not present because the PCG crew did not purposely use excessive force out of proportion to the means of defense available to the Taiwanese fishermen. The firing was made intermittently and not fully taken advantage of by the PCG personnel. The force employed was mainly aimed to disable the engine and not to maim or kill the fishermen.
The shooting incident was unplanned and unpremeditated. The enforcement action made by the PCG was part of their mandate to protect Philippine territorial waters. The provisions for firearms and firepower as a necessary tool in maritime law enforcement is unavoidable, given the “harsh” environment that is supposed to be monitored, controlled and subjected to surveillance.
There was no treachery because the attack was not sudden or unexpected. The video footage taken during the incident belied the allegations of the crew of the Taiwanese fishing vessel that they were just fired upon instantaneously and without warning. A reasonable number of continuous announcements made in the PA system and the blowing of horn by the PCG constituted sufficient warning to the Taiwanese fishermen of the eventual attack.
Certain PCG officers and men are also liable for obstruction of justice when they tampered with material evidence in the investigation.
The PCG executive officer of BFAR MCS-3001 ordered the splicing of the video footage taken of the incident. This constitutes destruction and suppression of record or document with intent to impair its verity, authenticity and availability as evidence in the investigation of a criminal case.
The PCG Commander ordered the submission of a falsified monthly gunnery report to the NBI. The PCG submitted conflicting information in the two Monthly Gunnery Reports (both bearing the same date) on the number of ammunition spent by the PCG BFAR MCS-3001 unit. The first report stated that only 36 rounds of ammunition were fired during the incident, when the actual number of rounds used was 108. This constitutes the act of making and presenting a record, document or paper with the knowledge of its falsity, and with intent to affect the course of the investigation.
The NBI as investigating agency on the Balintang Channel incident recommends the filing of criminal complaints for homicide against the afore-named 8 PCG personnel, and obstruction of justice against 4 PCG personnel.
The criminal complaints will be filed with the appropriate public prosecutor for preliminary investigation to determine the existence of probable cause, i.e., whether or not there is sufficient evidence to engender a well-founded belief that a crime has been committed, and that any or all of the PCG personnel are probably guilty thereof.
After determining probable cause, the necessary criminal information will in turn be filed by the prosecutor with the proper court which will conduct the trial and render judgment on the guilt or innocence of the accused.
The NBI also recommends the initiation of the appropriate administrative and disciplinary proceedings against the PCG personnel.
EXECUTIVE REPORT 
1. I. BACKGROUND:
On 09 May 2013, a shooting incident occurred involving patrolling personnel of the Philippine Coast Guard (PCG) and the Bureau of Fisheries and Aquatic Resources (BFAR) on-board BFAR MCS-3001 and a Taiwanese fishing vessel at Balintang Channel in Batanes, which incident resulted in the death of one (1) Taiwanese fisherman, Mr. HONG SHI-CHENG. Said incident brought a state of strained relations between the Philippines and Taiwan.
II. NAMES OF SUBJECTS/RESPONDENTS:
A. PCG PERSONNEL
1. Commanding Officer ARNOLD DELA CRUZ;
2. Lieutenant Junior Grade (LTJG) MARTIN BERNABE;
3. Seaman 1st Class (SN1) SONNY MASANGCAY;
4. Seaman 1st Class (SN1) EDRANDO AGUILA;
5. Engineering Officer & Supply Officer (ENS) NOEL B. RAMOS;
6. Seaman 1st Class (SN1) DANNIEL FUNG;
7. Seaman 1st Class (SN1) CLAR WILFRED REVIL;
8. Seaman 1st Class (SN1) ARNOLD REYES, JR.;
9. Seaman 1st Class (SN1) HENRY SOLOMON;
10. Seaman 1st Class (SN1) ALVIN MAYO;
11. Seaman 1st Class (SN1) MARVIN RAMIREZ;
12. Seaman 1st Class (SN1) MHELVIN BENDO II;
13. Seaman 1st Class (SN1) ANDY GIBB GOLFO;
14. Seaman 1st Class (SN1) BENJIE AJERA;
15. Seaman 1st Class (SN1) ROY HAVERIA INFANTE;
16. Seaman 2nd Class (SN2) NICKY RENOLD D. AURELLO;
17. Petty Officer 2 RICHARD F. CORPUZ.
Bureau of Fisheries and Aquatic Resources (BFAR):
1. ARSENIO S. BANARES;
2. JIMMY VELUYA;
3. RONLEY ADDUN.
A. HONG SHI-CHENG, married, 64 years old (at the time of his death), a Taiwanese national and a resident of No. 51-5 Jen Ai Road, Dafu Village, Liouqiu, Pintung County, Taiwan, is the deceased fisherman who died as a result of the shooting incident.
B. HONG TZU CHIEN, daughter of the deceased who filed a murder complaint in Taiwan, is the probable private complainant in the case/s to be filed in the Philippines, as herein recommended.
IV. PROBE FINDINGS:
A. SCOPE OF THE PROBE
1. To secure necessary details/object/testimonial/documentary pieces of evidence, in order to shed light on the Balintang channel incident;
2. To determine probable criminal and administrative liabilities of the PCG-BFAR personnel on board BFAR MCS-3001 involved in the incident; and
3. To investigate other matters relative to the case.
B. PHILIPPINE JURISDICTION OVER THE INCIDENT
Historical Perspective of the National Territory Of the Philippines
Article I of the 1987 Constitution states that:
“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty and jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimension, form part of the internal waters of the Philippines.”
Since the 1935 Constitution, the country has had a definition of its national territory. The 1935 Constitution included the definition to make the U.S. acknowledge the extent of Philippine territory and respect its integrity, and to prevent its dismemberment.
The following treaties provide documentation on the extent of Philippine territory:
1. Article III of the Treaty of Paris (December 10, 1898) defined the metes and bounds of the archipelago by longitude and latitude. Technical descriptions were made of the scope of the archipelago as this may be found on the surface of the earth;
2. The US-Spain Treaty (November 7, 1900) ceded Cagayan, Sibutu and Sulu to the United States; and
3. The US-Great Britain Treaty (January 2, 1930) ceded the Turtle and Mangsee Islands to the United States.
Determining the National Territory:
Before the ratification of the United Nations Convention on the Law of the Sea (UNCLOS), the Philippines already had statutes which governed the determination of its territorial sea as well as the extent of its exclusive economic zone:
1. Republic Act No. 3046 (An Act to Define the Baselines of the Territorial Sea of the Philippines)
This law recognized the straight baseline method in determining Philippine territory. The appropriate points of the outermost islands of the archipelago are connected with straight lines until all islands are surrounded or enclosed by the imaginary straight line. All land masses within the baselines are part of the national territory.
2. Presidential Decree No. 1599 (Establishing an Exclusive Economic Zone and for Other Purposes)
This decree recognized the Two Hundred (200) Miles Exclusive Economic Zone within which states have sovereign rights for exploration of natural resources, utilization of artificial islands, offshore terminals, preservation of marine environment, pollution control and scientific research. It allows other states’ navigation and over flight, as well as the laying of cables and pipelines. Other states are prohibited from using the zone to explore or exploit any resources, carry out search, excavation or drilling operations, conduct any research, construct any artificial islands, off-shore terminal, installation or other structure, and perform any activity contrary to or in derogation of the sovereign rights and jurisdiction as provided. In case of overlapping, common boundaries are to be determined by agreement.
3. Presidential Decree No. 1596 (Declaring Certain Area Part of the Philippine Territory and Providing for their Government and Administration)
This decree formalized the claim of the Philippines over the Kalayaan Group of Islands on the basis of “historic right, indispensable need, effective occupation and control in accordance with international law,” and making it a distinct and separate municipality of the province of Palawan.
4. The United Nations Convention of the Law of the Sea (April 30, 1982, Effective on November 16, 1994)
The UNCLOS was signed on April 30, 1982 and became effective on November 16, 1994, one year after ratification by the sixtieth (60th) state. Many of the Philippines’s proposals related to the adoption of the archipelagic doctrine were incorporated in the final draft.
Some of the significant provisions of the UNCLOS are, as follows:
“Internal Waters” covers all water and waterways on the landward side of the baseline. The coastalstate is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.
“Territorial Waters” is the 12 nautical miles (22 kilometers; 14 miles) from the baseline, wherein the coastal state is free to set laws, regulate use, and use any resource. Vessels are given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters.
“Innocent passage” is defined as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state.Fishing, polluting, weapons practice, and spying are not “innocent”, and submarines and other underwater vehicles are required to navigate on the surface and to show their flag.
“Archipelagic Waters” are waters inside the baseline. A baseline is drawn between the outermost points of the outermost islands, which points being sufficiently close to one another. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters).
“Contiguous Zone” is the 12 nautical mile zone (22 km) after the 12 nautical miles (22 km) limit from the territorial sea baseline limit, in which a state can continue to enforce laws in four (4) specific areas, namely, customs, taxation, immigration and pollution, if the infringement started within the state’s territory or territorial waters, or if this infringement is about to occur within the state’s territory or territorial waters. This makes the contiguous zone a hot pursuit area.
“Exclusive Economic Zones” (EEZs) extend from the edge of the territorial sea out to 200 nautical miles (370 kilometers; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. Foreign nations have the freedom of navigation and over flight, subject to the regulation of the coastal states.
“Continental Shelf” is the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometers; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometers; 120 miles) beyond the 2,500 meter isobaths (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources “attached” to the continental shelf, but not to creatures living in the water column beyond the EEZ.
Based on the map below, the above disquisition is further illustrated:
The second map below would show that the incident transpired within the Philippine’s Two Hundred (200) Nautical Miles Exclusive Economic Zone (EEZ).
5. Republic Act No. 9522 (An Act to Amend Certain Provisions of Republic Act No. 3046, As Amended By Republic Act No. 5446, To Define The Archipelagic Baseline Of The Philippines And For Other Purposes)
Sections 1 and 2 provide for the baselines of the Philippine archipelago and the extent of its territory. The exercise of sovereignty and jurisdiction over the “Regime of Islands” under the Republic of the Philippines is consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
- The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and
- Bajo de Masinloc, also known as Scarborough Shoal.
Note: This recent legislation defining the baselines of the Philippine archipelago is in accordance with the provisions of UNCLOS, which among others had set EEZs of coastal states within 200 nautical miles from its baselines. The above coordinates are in accordance with the world geodetic system (WGS) of 1984.
The main question now, which begs attention, is whether or not Philippine domestic laws can apply on the EEZ?
The Department of Foreign Affairs (DFA), through Atty. HENRY S. BENSURTO, Senior Special Assistant, Office of the Undersecretary for Policy, rendered upon request an opinion dated 24 May 2013, stating that the incident occurred during the law enforcement activity of BFAR MCS-3001within the 200 nautical miles EEZ of the Philippines. Under UNCLOS, the Philippines has the exclusive sovereign rights to explore, exploit, conserve and manage marine resources within the EEZ. The incident happened approximately 40 nautical miles from the country’s baselines.Without a doubt, the incident transpired within the waters over which the Philippines exercises jurisdiction and sovereign rights.
The national or domestic law applicable in terms of enforcement activity is the Philippine Fisheries Code of 1998 (Republic Act No. 8550), specifically Section 87 thereof.
The foregoing law is an operationalization of the Philippine policy embodied in the Philippine Constitution and reiterated in the Philippine Fisheries Code, to wit: “The State shall protect the nation’s marine wealth in its exclusive archipelagic waters, territorial sea, and EEZ, and reserve its use and enjoyment exclusively to Filipino citizens.”
The jurisdiction of the PCG in fisheries enforcement is likewise provided for under the Fisheries Code, specifically Section 124 thereof.
Atty. Bensurto further cited several relevant laws regarding law enforcement as an “expression of the sovereignty of the State within its territory and of its sovereign rights and jurisdiction within its contiguous zone, exclusive economic zone and continental shelf.” “Enforcement” also refers to the process of compelling compliance with rules set out in an international agreement. It aims to compel States to comply with the agreements that the said States entered into.
Moreover, he cited the rights and duties of the coastal state in the EEZ as provided for in Article 56 of the UNCLOS. In sum, the UNCLOS accords a coastal State the sovereign rights to explore and exploit the resources in its EEZ. Jurisdiction in the EEZ applies to: (1) the establishment and use of artificial islands, installations and structures; (2) marine scientific research; and (3) the protection and preservation of the marine environment.The UNCLOS and the corresponding domestic laws provide the basis for the enforcement power of a coastal State with respect to fisheries. However, due regard should also be accorded to the rights and duties of other coastal States.
Article 73 of the UNCLOS identifies “coastal enforcement power”, which consists of boarding, inspection, arrest and judicial proceedings.It also requires States to promptly release vessels and crews upon posting of reasonable bond. It states that imprisonment or any form of corporal punishment should not be considered as sanctions for fisheries violations.
Lastly, it requires arresting States to promptly notify the flag States of the vessels that are apprehended.
In the same vein, PROFESSOR HARRY L. ROQUE, JR., Director for the Institute of International Legal Studies of the University of the Philippines College of Law (UP Law-IILS), opined that THE EEZ IS NOT SUSCEPTIBLE TO ENFORCEMENT BY A COASTAL STATE OF FULL CRIMINAL JURISDICTION UNDER INTERNATIONAL LAW.
According to him, however, a variety of jurisdictions – all involving less than full sovereignty – apply in the contiguous zone and in the EEZ under Art. 56 of the UNCLOS, including sovereign rights over living and non-living marine resources but none of these involve the jurisdiction of a coastal state to prosecute an ordinary crime of murder or homicide occurring in the EEZ and allegedly committed by a properly marked government vessel of which the coastal state is not the Flag State itself.
He further opined that the BFAR vessel and crew are covered by State Immunity. With certain exceptions, Art. 32 of the UNCLOS recognize immunities of warships and other government ships operated for non-commercial purposes. BFAR MCS-3001, while certainly not a warship, has been recognized by Taiwan itself to be a Philippine government ship operated for non-commercial purposes. As such, it is protected by the principle of state immunity. Being a government vessel, and its crew being agents of the Philippine state, its acts are considered acta jure imperii, or sovereign acts of state, and in pursuance of the Philippine state’s sovereignty. This principle of state immunity, as applied to the Philippine maritime patrol vessel, is a matter of customary international law binding upon all nations.
It is submitted that the enforcement action commenced by the PCG and BFAR is, therefore, in harmony with their mandate to protect the sovereign rights of the country regarding the utilization of the resources within its EEZ.
The BFAR, under the Department of Agriculture (DAR), is mandated under Sec. 14 of R.A. 8550 (Philippine Fisheries Code of 1998) to coordinate with agencies – such as the Philippine Navy, the PCG, Philippine National Police (PNP), PNP-Maritime Command, law enforcement officers of the LGUs and other government enforcement agencies – to ensure that the fisheries and aquatic resources in the Philippine waters are judiciously and wisely utilized and managed on sustainable basis.
To achieve its goal, a nationwide monitoring, control and surveillance is carried out; thus, a partnership (through Memoranda of Agreement [MOAs]) was forged with the PCG, an armed and uniformed service, primarily tasked to enforce laws within Philippine waters, conducting maritime security operations, safeguarding life and property at sea, and protecting the marine environment and resources, similar to coast guards around the world having such basic functions as maritime law enforcement and border control.
In the conduct of nationwide monitoring, control and surveillance, the BFAR-PCG are enforcing the provisions of Sections 87, 88 and 89 of R.A. 8550, which proscribe poaching in Philippine waters, fishing through explosives, noxious or poisonous substance and/or electricity and use of fine mesh net.
Given the above-cited legal bases, we reach the conclusion that the maritime law enforcement operation conducted against the Taiwanese fishing vessel was validly carried out by the BFAR-PCG MCS-3001 personnel.
On the question of whether domestic laws may be applied against PCG-BFAR as regards to probable criminal, as well as administrative actions that may be initiated, it is an admitted fact that the vessel in question, BFAR MCS-3001, is a patrol vessel owned by the Philippine BFAR, but manned by PCG personnel. Its crew, who are all agents of the Philippine state, are covered by state immunity and may only be proceeded against in a criminal proceeding by a Philippine court,unless the Philippines has expressly waived such immunity. The Philippine government has not waived its immunity from suit in the case of the BFAR MCS-3001.
Moreover, it is posited that Philippine domestic penal laws should be made applicable to theincident that had taken place in the EEZ.
Under the UNCLOS, in cases of collision or incident on the high seas involving loss of life or serious injury or serious damage, other states may cause an inquiry to be held, although penal or disciplinary procedures remain basically under the jurisdiction of the flag state, as does also the right to arrest or detain vessels in such cases (e.g., for penal or investigative purposes). The flag state and the other state are to co-operate in the conduct of any inquiry. It should be emphasized that the regulations of the Convention do not affect private law and civil claims and rights, e.g., application in court for arrest of a ship arising from a claim for compensation for damages caused by the ship.
Worth mentioning is that Article 2 of the Revised Penal Code, as amended, specifically provides for the application of its provisions not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who should commit an offense while on a Philippine ship or airship or, while being public officers or employees, should commit an offense in the exercise of their functions.
On 21 May 2013, a letter-request was made to the National Mapping and Resource Information Authority (NAMRIA) for that office to PLOT on a chart map the following Global Positioning System (GPS) coordinates (i.e. the coordinates given by the PCG on the location of the incident). A digital plotting on the official nautical chart of NAMRIA of the plotted coordinates was made, using the Computer Aided Resource Information System (CARIS) Software, which is compliant with International Hydrographic Organization (IHO) Standard and commonly used in nautical charting.
Witnesses Commander HERBERT L. CATAPANG, Chief of Nautical Charting Division, Hydrography Department, with a rank of Commander, and Petty Officer 3 RAQUEL F. HIPONIA, Section Chief, Chart Compilation Section of the Hydrography Department, Nautical Charting Division, NAMRIA, categorically stated that “xxx as far as their knowledge of the law specifically the United Nations Convention on the Law of the Sea (UNCLOS) concerning our territorial jurisdiction is concerned, these areas mentioned in the coordinates as plotted in the official nautical chart of NAMRIA are within the Exclusive Economic Zone of the Philippines xxx.”
The copy of the official nautical chart of NAMRIA was furnished to the probers.
In a Sworn Affidavit dated 4 June 2013, MS. TITA CRUZ, current Chief of Chart Planning Section, NAMRIA, opined that, as far as her knowledge of the law, specifically the United Nations Conventions on the Law of the Sea (UNCLOS), concerning our maritime jurisdiction is concerned, “the areas mentioned in the coordinates as plotted in the official nautical chart of NAMRIA are within the Exclusive Economic Zone of the Philippines.”
Considering the foregoing discussions and considering, further, that the location of where the shooting incident happened (Balintang Channel) was not disputed by the Taiwanese fishermen,there is no doubt that the same is within the territory of the Republic of the Philippines.
I. THE CASE:
On the morning of May 9, 2013 while voyaging in the vicinity of Balintang Channel, the MCS-3001 crew, combined officers and personnel of the Philippine Coast Guard, hereafter referred to as “PCG”, and Bureau of Fisheries and Aquatic Resources, hereafter referred to as “BFAR”, sighted radio beacon, orange buoy markers, and two (2) suspected Taiwanese fishing vessels (small & larger vessel), without a flag hoisted therein for country identification.
The MCS-3001 crew alleged that MCS-3001 steered towards the larger vessel but the smaller vessel came near their path as if it intended to block their approach to the larger vessel. When near the smaller vessel, MCS-3001 crew presumed it to be a Taiwanese fishing vessel from the visible characters imprinted on its body and fishing paraphernalia onboard. As standard operation procedures, repeated announcements on the Public Announcement (P.A.) system, to wit: “This is the Philippine Coast Guard, Stop your vessel”, and sounding of the ship’s horn were ordered by COMMANDING OFFICER ARNOLD DELA CRUZ. However, the smaller vessel ignored the same.
Furthermore, MCS-3001 COMMANDING OFFICER ARNOLD DELA CRUZ alleged that he assumed that the smaller suspected Taiwanese fishing vessel is a hostile vessel when it maneuvered in a position to ram their vessel MCS-3001. However, MCS-3001 was able to evade this alleged hostile maneuver of the small Taiwanese fishing vessel. Warning shots were made but the smaller vessel put up a chase. COMMANDING OFFICER DELA CRUZ ordered his PCG personnel to aim and shoot their firearms at the back of the smaller vessel to immobilize the engine. If successful, boarding procedures will be conducted by the boarding team (assigned BFAR and PCG personnel). At one point in this incident, the vessel MCS-3001 came close to the suspected Taiwanese fishing vessel (side by side) wherein the MCS-3001 crew was able to ascertain that it was indeed a fishing vessel. However, said suspected Taiwanese fishing vessel maneuvered backward to break away from MCS-3001. Several gunshots were fired at the suspected Taiwanese fishing vessel but the same did not stop and the pursuit ensued which lasted for more than 1 ½ hours. When MCS-3001 crew sighted a non-Philippine vessel colored gray which did not reply to their radio message, MCS-3001 disengaged from their pursuit. The MCS-3001 crew decided to head back to the location of the previously sighted radio beacon and orange buoy markers in order for them to retrieve the same as evidence of illegal fishing activities being conducted by the small suspected Taiwanese fishing vessel. However, those items can no longer be found at their known location.
Hereunder are the names of the PCG and BFAR officers/personnel onboard MCS-3001 on the day of the alleged shooting incident:
Philippine Coast Guard (PCG):
- Commanding Officer ARNOLD DELA CRUZ;
- Lieutenant Junior Grade (LTJG) MARTIN BERNABE;
- Seaman 1st Class (SN1) SONNY MASANGCAY;
- Seaman 1st Class (SN1) EDRANDO AGUILA;
- Engineering Officer & Supply Officer (ENS) NOEL B. RAMOS;
- Seaman 1st Class (SN1) DANNIEL FUNG;
- Seaman 1st Class (SN1) CLAR WILFRED REVIL;
- Seaman 1st Class (SN1) ARNOLD REYES, JR.;
- Seaman 1st Class (SN1) HENRY SOLOMON;
- Seaman 1st Class (SN1) ALVIN MAYO;
- Seaman 1st Class (SN1) MARVIN RAMIREZ;
- Seaman 1st Class (SN1) MHELVIN BENDO II;
- Seaman 1st Class (SN1) ANDY GIBB GOLFO;
- Seaman 1st Class (SN1) BENJIE AJERA;
- Seaman 1st Class (SN1) ROY HAVERIA INFANTE;
- Seaman 2nd Class (SN2) NICKY RENOLD D. AURELLO;
- Petty Officer 2 RICHARD F. CORPUZ.
Bureau of Fisheries and Aquatic Resources (BFAR):
- ARSENIO S. BANARES;
- JIMMY VELUYA;
- RONLEY ADDUN.
Sailing Order No. MCS-65-2103 dated April 29, 2013 and Travel Order No. 1741 dated April 29, 2013, prepared by ALMA C. DICKSON, DFT, Head, MFDC, and approved by Atty. ASIS G.PEREZ, Director, Bureau of Fisheries and Aquatic Resources, specified that the mission of the MCS-3001 crew was to conduct monitoring, control, and surveillance against all forms of illegal fishing activities at Batanes and Cagayan Islands including Babuyan Channel, Balintang Channel, Bashi Channel, and the Philippine Eastern Seaboard from May 1-31, 2013.
The Monitoring, Control, and Surveillance vessel MCS-3001 is a vessel owned by the Bureau of Fisheries and Aquatic Resources and the same belongs to the fourteen (14) vessels acquired by BFAR. By virtue of the Memorandum of Agreement executed between the aforesaid two government agencies dated September 7, 2004, these vessels are jointly manned by officers/personnel from PCG and BFAR for the purpose of joint operations in the enforcement of laws pertaining to management, protection, and conservation of the country’s marine fisheries and aquatic resources. Mentioned therein among others, these vessels shall display the logo of the Bureau of Fisheries and Aquatic Resources (BFAR) and Philippine Coast Guard (PCG) for identification purposes.
Ocular inspection was conducted on the vessel MCS-3001 and it showed no marking/logo of the Philippine Coast Guard (PCG). Said vessel only bore the marking/logo of the Bureau of Fisheries and Aquatic Resources (BFAR), and Department of Agriculture (DA) on both sides of the top of the pilot house. Likewise, there was a damaged portion of the vessel’s hull located at the “starboard stern”. This Bureau’s Forensic Chemist assigned at the Forensic Chemistry Division (FCD) was able to come near the aforesaid damaged part of the vessel MCS-3001 with the use of a rubber boat for the appropriate forensic examination in order to determine as to whether or not said damage was caused by the ramming of another vessel.
(DA BFAR MCS-3001 “No visible logo/marking of the Philippine Coast Guard)
Hereunder are the details of the specifications of MV DA BFAR MCS-3001:
Rodman Polyships S.A.
Register Dimensions and Tonnages
Gross Tons/Net Tons
Particulars of Propulsion System
No. of Engine
1200 I 2
No. of Cylinder
(Damaged portion of DA BFAR MCS-3001)
NBI-Firearms Investigation Division received from PCG on May 15, 2013 the long firearms, which were turned over to Ms. HIYASMIN G. ABARRIENTOS, Ballistician II of this Bureau’s Firearms Investigation Division (FID) through LT. ROMMEL S. MENDOZA, the current Officer-in-Charge of MCS-3001, of the Philippine Coast Guard for the necessary Ballistics examination. The details of the said firearms are hereunder enumerated:
- Colt Rifle Caliber 5.56mm with Serial No. 9063992;
- Seven (7) Elisco Rifle Caliber 5.56mm with Serial Nos. RP015637, RP204217, RP015498, RP194339, 217716, RP018778, and RP128640;
- Four (4) US M14 Rifle Caliber 7.62mm with Serial Nos. 608863, 1362663, 1372316, and 1395549;
- Springfield M14 Rifle Caliber 7.62mm with Serial No. 5006;
- Winchester M14 Rifle Caliber 7.62mm with Serial No. 1037894;
- Browning Machine Gun Cal. 30 with Serial No. 489066.
- Philippine Coast Guard’s turn-over of the aforementioned firearms to the NBI-Firearms Investigation Division (FID)
The following are the Philippine Coast Guard (PCG) personnel who fired their respective firearms on 09 May 2013 at the Taiwanese fishing vessel and their respective positions when “General Quarters”(GQ) was announced by the COMMANDING OFFICER ARNOLD DELA CRUZ, to wit:
- SN1 ANDY GIBB R. GOLFO – when GQ was announced by their commanding officer, he went to his respective position at the fantail (back of the vessel) and he was part of PCG personnel to board the rubber boat just in case it was launched. He alleged that he fired six (6) shots using an M-16 rifle every time their commanding officer ordered to fire. He failed to identify the firearm he used during the shooting incident on 09 May 2013.
- SN1 MHELVIN A. BENDO – when GQ was announced, he went to his respective position in forward port (front of the vessel). He allegedly fired twice (2) using an M14 rifle. He identified M14 rifle with No. 12 on butt of the rifle and with Serial No. 1037894 as the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI Forensic Chemistry Division (FCD).
- SN1 HENRY B. SOLOMON – when GQ was announced his position was on star board (right side of the vessel). He alleged firing twice (2x) using an M14 rifle. He identified the M14 with No. 05 on butt of the rifle with a loose sling and with Serial No. 1395549 as the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI-Forensic Chemistry Division (FCD).
- SN1 SUNNY G. MASANGCAY – when GQ was announced, his position was at the front of the vessel near the caliber .30 stand. He alleged firing two warning shots using an M14 rifle and he failed to identify the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI Forensic Chemistry Division (FCD).
- SN1 EDRANDO Q. AGUILA – when GQ was announced, his position was at the port fantail. He identified the M14 with No. 21 on butt of the rifle and with Serial No. 5006 as the firearm he used in the shooting incident on 09 May 2013 when it was presented at NBI Forensic Chemistry Division (FCD).
- PO2 RICHARD CORPUZ – when GQ was announced, his position was at the front of the vessel manning the caliber .30 machine gun. He alleged firing more or less 7 shots using the .30 caliber (in his supplemental Sworn Statement, he alleged that he and AURELIO fired more or less 19 shots using the caliber .30). Position- forward manning caliber .30. He identified caliber .30 as the firearm he used in the shooting incident on 09 May 2013.
- SN2 NICKY REYNOLD AURELLIO – when GQ was announced, his position was at the front of the vessel manning the caliber .30 machine gun. He alleged firing more or less 9 shots using the caliber .30 and identified it as the same firearm they (he and CORPUZ) used in the shooting incident on 09 May 2013.
- COMMANDING OFFICER ARNOLD DELA CRUZ– fired three (3) shots using an M14 rifle used by SN1 MHELVIN A. BENDO II. During presentation of all firearms at NBI Forensic Chemistry Division (FCD), he alleged that the firearm used by SN1 MHELVIN BENDO was the same firearm he used in firing three shots.
On 14 May 2013, the video footages and photographs were secured from Capt. JERRY NIBRE, Coast Guard for Staff Operation (CG-3), Philippine Coast Guard composed of 3 part videos and several photographs of the aforementioned sighted radio beacon, orange buoy markers, two (2) Taiwanese fishing vessels, and GPS/Video Plotter of MCS-3001. These video footages and photographs were transferred by Capt. NIBRE to a USB of Agt. EDUARDO RAMOS, JR. When viewed, it showed broken footages of the procedures and measures undertaken by the MCS-3001 crew in order to signal the small Taiwanese fishing vessel to stop.
On 24 May 2013, probers secured from Commodore DANILO M. UBALDO, Coast Guard Internal Affairs Services (CGIAS), Philippine Coast Guard, two (2) compact discs (CDs), which contained other vital video footages of the aforementioned incident.
Investigation disclosed that SN1 MARVIN RAMIREZ was the crew of MCS-3001 who took the videos and photographs of the aforementioned incident using his personal “NIKON” camera. It was however discovered that several videos were deleted from the memory card (SD Card) of said camera. When interviewed and confronted in the presence of his legal counsel, SN1 MARVIN RAMIREZ alleged that he was ordered by LTJG. MARTIN BERNABE to delete the other video footages. Likewise, LTJG. MARTIN BERNABE alleged that he was commanded by COMMANDING OFFICER ARNOLD DELA CRUZ to delete the same. SN1 RAMIREZ and LTJG. BERNABE executed their respective sworn statements to this effect.
Likewise, it is noteworthy to mention that the video footages presented and secured by this Bureau from the Office of the Coast Guard Internal Affairs Service were the deleted portions of the video taken by SN1 MARVIN RAMIREZ and contained longer footages of the discriminate gunshots fired at the small Taiwanese fishing vessel during the pursuit.
II. Taking of Sworn Statements of BFAR and PCG Personnel
1. Sworn Statements of PCG and BFAR Personnel:
In PCG COMMANDING OFFICER ARNOLD DELA CRUZ’s sworn statement dated 18 May 2013, (assisted by counsel Atty. MAYETTE M. MENDOZA), Dela Cruz averred the following: He is the former Officer-in-Charge of the Department of Agriculture (DA), BFAR Monitoring Control Surveillance vessel 3001 (BFAR MCS-3001). As OIC, he was in charge of the operation of the said sea vessel and administrative supervision of its personnel and these include coastguard functions to provide rescue and assistance and enforcement of BFAR fisheries law.
COMMANDING OFFICER DELA CRUZ further stated that in the morning of 09 May 2013, he conducted regular patrol operations on board PCG vessel MCS-3001 together with the following personnel:
- Lieutenant Junior Grade (LTJG) MARTIN BERNABE;
- Seaman 1st Class (SN1) SONNY MASANGCAY;
- Seaman 1st Class (SN1) EDRANDO AGUILA;
- Engineering Officer & Supply Officer (ENS) NOEL B. RAMOS;
- Seaman 1st Class (SN1) DANNIEL FUNG;
- Seaman 1st Class (SN1) CLAR WILFRED REVIL;
- Seaman 1st Class (SN1) ARNOLD REYES, JR.;
- Seaman 1st Class (SN1) HENRY SOLOMON;
- Seaman 1st Class (SN1) ALVIN MAYO;
- Seaman 1st Class (SN1) MARVIN RAMIREZ;
- Seaman 1st Class (SN1) MHELVIN BENDO II;
- Seaman 1st Class (SN1) ANDY GIBB GOLFO;
- Seaman 1st Class (SN1) BENJIE AJERA;
- Seaman 1st Class (SN1) ROY HAVERIA INFANTE;
- Seaman 2nd Class (SN2) NICKY RENOLD D. AURELLO;
- Petty Officer 2 RICHARD F. CORPUZ;
- ARSENIO S. BANARES;
- JIMMY VELUYA; and
- RONLEY ADDUN.
They also had on board and in their possession eight (8) M16 rifles, six (6) M14 rifles and one (1) .30 caliber Light Machine Gun (LMG).
Their vessel was on patrol pursuant to BFAR Sailing Order MCS-65-2013, directing them to proceed to Batanes and Cagayan, including Babuyan Channel, Balintang Channel, Bashi Channel and the Philippine Eastern Seaboard.
At around 9:45 A.M., while at the vicinity of Balintang Channel (19 degrees 54.48 minutes North Latitude 122 degrees 50.08 East at vicinity 39 nautical miles East of Balintang Island), an area which is a part of the Philippines EEZ, they sighted a fishing radio beacon (a cylindrical transmitter designed to be attached as floating device to drifting fishnets in order to allow fishing boats to locate their casted fishing nets by means of radio signal detection). Later, they also sighted two (2) floating orange buoy (or balloon) markers, thus, indicating that fishing activities were being conducted in said area.
They continued patrolling around the said vicinity when they saw two (2) white fishing vessels about six to seven nautical miles from them. The first vessel (“Vessel 1” for brevity) is twice the size of their vessel. After calling and informing BFAR QRT ARSENIO BAÑARES of what they saw, the latter instructed them to conduct boarding procedure on Vessel 1.
Subsequently, while they were approaching vessel 1, a second vessel (“Vessel 2” for brevity) sped towards their vessel and made a stop fifty (50) meters ahead of them, thus, preventing them from approaching Vessel 1. Consequently, COMMANDING OFFICER DELA CRUZ declared “General Quarter” status (imminent danger condition requiring all personnel to man their emergency assigned post) and to prepare for boarding. He then announced twice to Vessel 2 (which he noticed to have no flag and had Chinese markings on its hull) through very high frequency (VHF) radio channel the following words, “White Fishing Vessel in front of me, this is the Philippine Coast Guard. What is your intention?”
He further noticed from the said foreign vessel that nobody was manning the bridge, thus, nobody answered his announcements. He presumed that the said vessel is a foreign pirate vessel inside the Philippine EEZ jurisdictional waters as it had no flag and had Chinese characters on it. Hence, he instructed SNI ROY INFANTE, Quarter Master who was manning the throttle, and Lt. JG MARTIN L. BERNABE, the steersman, to chase Vessel 2.
While chasing Vessel 2 in Philippine jurisdictional waters, he instructed his personnel on the bridge to blow the ship’s horns while he announced through loud speaker: “This is the PCG on patrol; we intend to board your vessel for routine inspection. Please stop, please stop, please stop.” The blowing of ship horns and his announcement were alternately done three times. Instead of complying, Vessel 2 continued to sail away; hence, they gave chase for several minutes, until Vessel 2 slowed down her speed and stopped.
As they approached Vessel 2, COMMANDING OFFICER DELA CRUZ announced, “We are the PCG, you are in Philippine waters. We are going to conduct routine boarding inspection to your vessel. Please stop.”
As their vessel was in a gliding forward motion a little bit ahead on the left side of Vessel 2’s bow, he observed that no one was manning the bridge. He then monitored on a marine band radio a conversation that sounded like it was being conducted in the Chinese language with one party giving instructions. Then, he heard a sudden revolution sound of Vessel 2’s engine. This prompted him to shout to his men “Babanggain yata tayo”. Immediately, their vessel moved backward to avoid the forward thrust of Vessel 2. After attempting to ram the starboard bow of their vessel, Vessel 2 sped away.
In response, they gave chase while sounding their horns and announcing in a loud speaker, “This is the PCG on patrol, please stop, please stop, please stop”.
As Vessel 2 continued to speed away, COMMANDING OFFICER DELA CRUZ directed his men stationed at the bow to fire warning shots. Then, he saw one of his men at the bow, SUNNY MASANGKAY, fire a warning shot. As they continued chasing Vessel 2 in Philippine waters, they noticed that the latter maneuvered in circling loop motions trying to find an angle for ramming their vessel.
Consequently, they also maneuvered to evade and stay out of the bow of Vessel 2. This situation continued for several minutes.
Thereafter, COMMANDING OFFICER DELA CRUZ observed that Vessel 2 stopped and a man without an upper garment appeared from the backdoor of the superstructure (or room above the hull). While at the back portion (stern) of Vessel 2, the said man signaled to approach their Vessel 2. As they approached Vessel 2 and the said man was about to receive the rope line, they again monitored at the marine band radio a Chinese-sounding language, as if someone was giving instructions to another.
Suddenly, the man ran inside the boat, and Vessel 2 started its engine and moved backward then its engine toned down. Then, Vessel 2’s engine again sounded with more black smoke coming out from her pipe as it prepared to move forward to ram their vessel. Immediately, their vessel moved forward to evade Vessel 2. After doing so, Vessel 2 again sped away. COMMANDING OFFICER DELA CRUZ ordered a hot pursuit on Vessel 2. In the course thereof, Vessel 2 continued to make a circling loop motion to find a better angle for ramming their vessel. To evade the same, their vessel tried to stay at the rear portion of Vessel 2.
After confirming that Vessel 2 is engaged in illegal fishing activities and had intentions to ram their vessel in order to prevent the conduct of on-board inspection, COMMANDING OFFICER DELA CRUZ instructed his personnel manning the bow to fire at the hull where the engine is located to disable the engine of Vessel 2. PCG-SOG, PO2 RICHARD F. CORPUZ and SN2 NICKY RENOLD D. AURELLO manned the caliber 30 light machine gun. COMMANDING OFFICER DELA CRUZ also instructed Lt. JG BERNABE to maneuver close enough as possible to ensure that the gunners could aim well at the target.
He alleged that when they were approximately ten (10) meters away from Vessel 2, it was then that they fired the first shot. He admitted firing three single aimed shots from an M14 at the port quarter stern of Vessel 2. After noticing that the same had no effect on Vessel 2, he ordered the use of the caliber 30 light machine gun (LMG). His men also used M16 rifles.
While the said hot pursuit was happening in Philippine waters, COMMANDING OFFICER DELA CRUZ saw a third color gray vessel about ten (10) nautical miles from them. Also in the said direction was Vessel 1. He then ordered to change course towards Vessel 1. However, Vessel 2 proceeded to their path and again the latter tried to ram them. They again tried to evade Vessel 2 and, every time they got closer, he ordered to fire two shots at the hull of Vessel 2, which shots he noticed were ineffective.
The said chase, run, ram and evade maneuver might have lasted for twenty five (25) minutes, during which, at one instance, Vessel 2 almost succeeded in ramming their starboard bow. On said occasion, he also ordered to fire at the rudder machineries located at the stern of Vessel 2. However, the same also proved futile.
He then diverted their vessel to a safe distance and tried to contact the color gray vessel through marine band radio, but they received no response.
They asked for guidance from BFAR QRT ARSENIO BAÑARES, who replied, “Kung mahirapan man tayo magboard, huwag na lang”.
He then noticed that the colored gray vessel is not a Philippine vessel and was then approaching them. He also noticed that Vessel 2 is again approaching them. He could not establish any communication with his higher authorities for guidance and assistance. After assessing the situation, COMMANDING OFFICER DELA CRUZ decided to discontinue the hot pursuit and proceeded to the area to recover the radio beacon, but the same can no longer be found.
In the process thereof, they spotted another white fishing vessel. They wanted to go after the said vessel but the visibility at the time was no longer favorable.
Eventually, they sailed towards Port Irene, Sta. Ana, Cagayan and he reported in writing the incident to their higher authorities.
COMMANDING OFFICER DELA CRUZ asserted that Vessel 2 demonstrated actions of a hostile vessel as shown in the following incidents:
- Vessel 2 prevented them from pursuing Vessel 1;
- Vessel 2 attempted to ram them on different occasions; and
- Vessel 2 attempted to ram their vessel during the hot pursuit, during which Vessel 2 continued a run, ram and evade maneuver.
These actions are clear indications of Vessel 2’s intention of preventing them from performing their mandated functions to board and search Vessel 1 and causing serious damage to their vessel. Consequently, pursuant to the PCG Rules of Engagement, the use of force is allowed.
Later, his men informed him that parts of the stern and the bow of their vessel were damaged. He also learned from the news that a Taiwanese national was killed in an incident similar to their encounter, which transpired in a different location.
In a supplemental affidavit dated 21 May 2013, COMMANDING OFFICER DELA CRUZ (assisted by counsel Atty. MAYETTE M. MENDOZA) narrated further that he personally fired three shots from a PCG-issued M14 rifle, aiming at the hull of Vessel 2 where its engine was located from a distance of approximately five (5) to ten (10) meters from the bridge starboard’s door of their vessel. After borrowing the said firearm and firing three shots at the target, he returned the same to MHELVIN BENDO II. Furthermore, he allegedly aimed the shots at the said target to re-emphasize to his men to shoot at the said target area/point.
LT JG MARTIN BERNABE, PCG, in his counseled statement, declared that he is the Deck Officer 2 and Assistant OIC and Acting Operations Officer of DA BFAR MCS-3001. On May 9, 2013 at 8:52 A.M., while conducting patrol East of Balintang Island, they spotted a radio beacon and an orange buoy, and they plotted it on their electronic video plotter.
While continuing their patrol, an alert was made for possible presence of fishing vessel in the vicinity. After a while, their CO saw a white vessel. Upon verification, it turned out that there were two (2) vessels (one big vessel and one small fishing vessel) located forty-four (44) nautical miles east ofBalintang Island.
When their commanding officer ordered them to approach the big vessel, they noticed that the small vessel was approaching them, so their commanding officer ordered a “General Quarter”. He went to his post as navigator and Talker at the bridge. When the small vessel was near them, their commanding officer announced, “This is the PCG, stop your vessel,” but the small vessel continued in its approach.
They sounded their horn, but still the small vessel continued. So, to avoid collision, they had to slow down and let the small vessel pass. Their CO then ordered them to follow the small vessel and continued to sound their horn, but the small vessel did not stop.
Later, he heard his commanding officer order “FIRE!” When he looked at the small vessel, it was still continuing its route. Then he heard again another shot, but still the vessel did not stop. Their commanding officer announced again, “This is the PCG, Taiwanese vessel stop!” Then, the vessel slowed down.
A person went out from its fantail and made a hand signal to approach them on their starboard, but they did not heed the signal because they might hit the floating buoy marker with its long lines and they might get their propeller entangled. Instead, they proceeded to approach the vessel on its portside. Once they were ready to board, the small vessel suddenly moved backward, so he caused their vessel to move forward as the small vessel was moving fast forward from their portside.
The commanding officer ordered a chase and, when they were near (around 15 meters), the commanding officer ordered “Fire for effects at the engine”. He then heard gunshots, but did not know who fired the same because, from the bridge, he could only see the .30 Caliber manned by PO2 CORPUZ and SN2 AURELLO. During the chase, there were instances that the small vessel would turn left to aim at their bow, but he slowed down, stopped or moved backward to evade a collision.
When their commanding officer ordered to move forward and go near the vessel, he ordered his steersman to go left and approached the portside of the small vessel. Upon nearing the vessel, their commanding officer ordered “Fire at the Astern”, after which, he heard gunshots.
When asked if the ship was in danger when their commanding officer ordered “Fire at the Astern”, BERNABE said that “The small vessel was positioning itself to ram our bow and when this happens it could damage the ship which is only made of fiber glass.”
During the chase, they also noticed the small vessel creating waves to prevent them from getting near; they also kept their distance to avoid colliding with the small vessel. The small vessel just kept on going round and round until they spotted a gray ship. When they radio challenged the vessel, it did not respond, so their commanding officer ordered them to contact BFAR and HPCG, but they could not get through.
At this point, their commanding officer ordered them to disengage and go back to Port Irene. They then tried to retrieve the radio beacon but it was already gone.
ENS NOEL RAMOS y BANEZ, Engineering Officer and Mess and Supply Officer of MCS-3001, disclosed in his counseled sworn statement that, on May 9, 2013, at around 10:00 a.m., he heard their commanding officer order “General Quarters”, so he proceeded to his crew mess designated area.
Then, he heard their commanding officer order “prepare to launch rubber boat for boarding party, second section provide.” So he proceeded to the fantail area, where the rubber boat is located. He then went down to check the engine and, upon going up, he noticed the vessel near their ship.
When it began to move backwards, he thought it was going to ram them, so he went down again to check their engine room for any damage. Later, they gave chase to the vessel, but it just went around. While he was at the fantail area, he saw SNI SOLOMON fire his M14 rifle at the vessel at a distance of 20 meters. They also went back to the place where they saw the radio beacon and the long lines to confiscate them but the same were nowhere to be found and they assumed that they might have been taken while they were distracted by the small vessel.
SN2 NICKY REYNOLD D. AURELLO stated that he served as an escort/security in BFAR – Monitoring, Controlling, Surveillance, 3001 (MCS-3001). He sometimes performs duties, as ordered, as rescue diver for underwater inspection. His Mission Order provides that he is a member of the Special Operations Group of the PCG.
On 09 May 2013, they patrolled the Balintang Channel on board BFAR MCS-3001 with fifteen (15) Coast Guard personnel as permanent crew, two (2) PCG-Special Operations Group and three (3) BFAR personnel.
He was instructed by his Commanding Officer, during that May 09, 2013 incident, to shoot at the target vessel’s engine (Taiwanese vessel). He was at that time using a caliber .30 machine gun and allegedly pulled the trigger five (5) times upon orders of his Commanding Officer.
In his supplemental sworn statement, SN2 AURELLO averred that he was duly issued a Mission Order by COMMANDING OFFICER INOCENCIO C. ROSARIO, PCG, Commander of the Coast Guard Special Operations Group. He stated that he manned the caliber .30 light machine gun since he has knowledge of how to handle the said firearm.
He disclosed that 6 to 7 bullets coming from the .30 LMG might have found its target. All the shots were made in accordance with the order to fire given by Commanding Officer ARNOLD DELA CRUZ. However, the vessel failed to stop and, in some instances, maneuvered towards their vessel. This situation continued, and there was one instance where they almost collided with the Taiwanese vessel when they were in front of the said vessel.
He could not recall exactly how many shots were fired from the machine gun. He asserted that the firing was made in intervals of two (2) to three (3) minutes and occasioned at the time when the vessel was near their vessel.
SN1 SUNNY MASANGCAY y GALANG in his counseled statement declared that, on May 9, 2013, at around 9:00 and 10:00 A.M., while patrolling Balintang Channel, their commanding officer ordered a “General Quarters” and when he went out of their ship, he saw four (4) Taiwanese Vessels about four (4) to five (5) nautical miles from them, one small and three large vessels.
When they tried to approach the biggest vessel, they were confronted by the small vessel, so they announced that they were the PCG and ordered the small vessel to stop, but it refused to halt. Instead, it challenged to give chase.
When the small vessel did not stop, their commanding officer ordered him to fire a warning shot, using his M14; then, a second warning shot after forty-five (45) seconds, both aimed at the sky.
After the warning shot, the small vessel slowed down. They went near and prepared to board, but the small vessel suddenly moved backward and sped off. They then gave chase which lasted for more than 1 hour.
When they were near the small vessel, the commanding officer ordered “Fire for effect”. The coast guard started to fire at the vessel. However, he did not fire anymore because his M14 jammed.
He knew that warning shots are prohibited but it was the order of his commanding officer.
He believed that the small vessel had a steel bulbous bow considering that when fired upon, he could hear the pinging sound of steel. He did not see any incriminating equipment on the vessel except fishing paraphernalia.
SN1 ALVIN INTING MAYO, who worked as an engine man or engine maintenance crew, stated that, while at Balintang Channel, they saw a radio buoy and suspected the presence of fishermen around the area. However, he stated that he did not see anyone who fired at the target vessel, but only heard the shots. He further stated that he only saw HENRY SOLOMON and EDUARDO AGUILA with an M14 rifle and SN2 NICKY REYNOLD manning the caliber .30 machine gun. He stated that he saw the attempt of the target vessel to ram BFAR MCS-3001.
SN1 MHELVIN A. BENDO II is a look-out and performs other duties in BFAR MCS-3001 as “Gunner mate,” and “Administrative operator” and “cook steward” as secondary duties.
He averred that, upon hearing from the PA system the announcement of General Quarters (GQ), he immediately got hold of the key to the armory, took the firearms and ammunitions one by one, and gave the firearms to his companions.
He stated that during the incident, he manned his battle station at the left side (forward port) of the vessel with an M14 rifle. He fired twice at the target vessel (white vessel with Chinese characters) when his commanding officer ordered, “Fire for Effect to the Engine”.
He further stated that the M-14 he used was the same firearm taken from him by Commanding Officer ARNOLD DELA CRUZ, who fired it three times at the engine area of the target vessel, prior to his turn in firing at the target vessel’s engine.
In his Supplemental Affidavit, he reiterated his previous statements (as contained in his Affidavit dated 17 May 2013) and personally identified the M14 (Butt No. 12 with Serial No. 1037894) which he used at the time of the incident. He allegedly fired twice at the target vessel when it was twenty-five (25) to thirty (30) meters away from BFAR-MCS-3001 and he was positioned at the middle right side of their vessel.
SN1 BENJIE VILLANUEVA AJERA, an electrician and Petty officer-in-charge at the mess hall of the vessel, stated that he was told by SN1 RAMIREZ of the radio beacon and floating buoy sighting at “Balintang Channel”.
When they saw the target vessel nearby, their commanding officer ordered “General Quarters” and all crew manned their battle station. He witnessed SN1 MASANGCAY fire a warning shot while they were chasing the target vessel. He further stated that their Commanding Officer ARNOLD DELA CRUZ used the PA system to identify themselves and ordered the target vessel to stop while on hot pursuit.
When the target vessel stopped, it attempted to collide with BFAR-MCS-3001; hence, upon evasive maneuvers their commanding officer ordered “fire for effect”. He saw PO2 CORPUZ and SN1 MASANGCAY fire their rifles.
They chased the target vessel for about thirty (30) minutes, but eventually decided to return to Port Irene before they reached the end of the Philippines Exclusive Economic Zone. Finally, he stated that he heard around twenty-five (25) gunshots during the chase.
SN1 ANDY GIBB RONARIO GOLFO, PCG, in his testimony (assisted by counsel), declared that on May 9, 2013, at around 9:00 A.M., he was alerted by the announcement of their commanding officer for “General Quarters” so he got his gun and went to his assigned position, which was at the back of the ship (fantail).
Their commanding officer then ordered them to prepare the rubber boat for launch. It was then that he noticed the white vessel in front of their ship. He then heard his commanding officer order “Give warning shot”. Then, he heard a single shot.
After this, he went starboard forward (right front of ship). While thereat, he saw a man come out of the white vessel signaling not to go to the right side of their boat because of the buoy, and then the white vessel stopped. They went near to board, but the white vessel moved backward and sped away on the left side of their ship. Their commanding officer then ordered to “give warning shot”. Again he then heard a single shot. The white vessel again sped away and they gave chase. The white vessel then slowed down and crossed the front of their ship, forcing them to stop to avoid the attempted ramming of their ship. The white vessel again sped away and they gave chase. This time, their commanding officer ordered “Fire for Effect” to disable the white vessel and for the security of the ship.
While chasing the white vessel, their commanding officer ordered “Fire for Effect” and each time the order was given, he would fire two (2) single shots. According to him, he fired a total of six (6) shots.
He also declared that there were two (2) SOG of the PCG, namely, PO2 RICHARD CORPUZ andSN2 NICKY REYNOLD AURELLO, who fired shots, but that SN1 SUNNY MASANGCAY’s gun jammed.
In his supplemental affidavit, SN1 GOLFO was asked, in the presence of his counsel, to identify the rifle he used when his commanding officer ordered “fire for effect”, but he failed to identify it. He reasoned that he cannot remember as he just woke up and not fully attentive when “General Quarters” was ordered.
He further reiterated his previous statement that, when they went near to board the target vessel, it moved backward and sped away on the left side of their ship. Their commanding officer then ordered to “give warning shot” and he then heard a single shot. The white vessel again sped away and they gave chase for more than one hour.
When asked what they intended to do, he said tha