DOJ Opinion No. 024, s. 2002

DOJ OPINION NO. 024 , s. 2002 April 9, 2002 The Commissioner Bureau of Customs Manila 1099 Sir : This refers to your letter requesting for opinion on the queries stated therein relating to a 1996 Consignment Agreement entered into by and between the Presidential Commission on Good Government (PCGG) and Sotheby's Hongkong and Sotheby's Inc. concerning the auction sale of three sets of jewelry, one of which, the Roumeliotes Collection, was seized by the Bureau of Customs in 1986 for violation of Customs laws, and forfeited by final judgment in favor of the government. HcACST Considering the continued interest and enthusiasm of Sotheby's to sell the jewelry and its desire to proceed with the auction at the soonest time possible, you inquire: "1. Whether or not the Roumeliotes Collection may be legally sold outside the country; and 2. Whether or not it would be legal for the Bureau of Customs to engage the services of Sotheby's for the sale of Roumeliotes Collection without further bidding on the basis of the previous biddings and the PCGG-Sotheby's Consignment Agreement." You state that the PCGG is of the impression that the subject jewelry is part of the Marcos ill-gotten wealth and thus, wants to act as the lead agency in the disposal thereof while Sotheby's is of the impression that PCGG not only has the power and authority to negotiate and enter into the Agreement and cause the sale of all the jewelry but also the full authority to represent the Bureau of Customs in the sale of the Roumeliotes Collection. You also state that your Bureau is, however, of the position that the Roumeliotes Collection should be auctioned separately from the PCGG-sequestered Marcos jewelry in order to isolate the same from whatever encumbrance that might attach to the Marcos wealth especially because "there is no evidence showing that (the item) belongs or is linked to the Marcoses." Further, while you admit that your Bureau granted the PCGG the authority to negotiate with Sotheby's for the auction sale of the Roumeliotes Collection, you qualify that said grant was with the reservation that the terms and conditions of any Agreement that may be reached shall be subject to your Bureau's approval. You add that the terms and conditions of the Agreement has yet to be approved by the Bureau of Customs. Finally, quoting Sections 2602 and 3514 of the Tariff and Customs Code, you have doubt on whether said item could be sold outside the Philippines. After considering the facts and circumstances set forth above, this Office is constrained, much to its regret, to refrain from rendering opinion on your queries for the following reasons: First. The issues raised undeniably involves the substantive rights of a private party, i.e., Sotheby's, and since the opinion of the Secretary of Justice is merely advisory in nature, such opinion would have no binding effect upon said private party who, in all probability, may take issue therewith and contest it before the courts. This is in consonance with the long established precedents to the effect that the Secretary of Justice does not render opinion on questions which are judicial in nature or which may subsequently be litigated judicially (Sec. of Justice Opn. Nos. 97, 35 and 33, s. 2000, citing opinions; Nos. 139 and 212, s. 1988, citing opinions). Second. The resolution of the issues raised would inevitably require a review of the said 1996 Consignment Agreement. Unfortunately, however, by settled policy, the Secretary of Justice does not pass upon issues which would require an interpretation or review of contracts/agreements since review of contracts calls for the legal examination of the contract on a general basis, not for the resolution of specific legal questions (id., No. 100, s. 2000, citing opinions). Third. The final resolution of the issues herein raised would also need a determination of certain factual issues such as whether or not the subject jewelry item is part of the ill-gotten wealth and the extent of the authority of the PCGG vis--vis the sale of the Roumeliotes Collection. This Department, however, is not in a position to resolve these questions not only because it possesses no sufficient evidence to support a conclusion, but also because of the well-established practice of the Secretary of Justice to refrain from rendering opinion on cases involving the determination of questions of fact (id., No. 70, s. 2000, citing opinions). Fourth. To rule on the issues raised would also require an application and interpretation of the provisions of the Tariff and Customs Code. While under Section 608 of the Tariff and Customs Code, the Commissioner is empowered to issue such rules and regulations as may be necessary to implement the said Code, the same codal provision also expressly provides that said rules and regulations are subject to the approval by the Secretary of Finance. For the same reason, we have to decline the request considering that any opinion that we render involving the interpretation/application of the provisions of the subject Code could be construed as an invasion or intrusion upon the jurisdictional authority of a co-equal and coordinate office whose actions are thus beyond the revisory authority of this Department. By settled policy and precedents, the Secretary of Justice does not rule on issues which fall within the jurisdiction of another office or agency over which the Department exercises no revisory authority (id., No. 87, s. 2000). ACcEHI Please be guided accordingly. Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary