DOJ Opinion No. 032, s. 2001

DOJ OPINION NO. 032 , s. 2001 July 6, 2001 Director Virgilio A. Sevandal Department of Trade and Industry Trade and Industry Building 361 Sen. Gil J. Puyat Avenue Makati City Sir : This refers to the request for an opinion on whether or not the Secretary of the Department of Trade and Industry (DTI) is the government official designated by law" referred to in Rule 14, Section 12 of the Rules of Court, in regard to service of summons on a private entity not licensed to do business in the Philippines and without a resident agent, in light of the repeal of Section 72 of Act 2459 by Section 128 of the Corporation Code (B.P. 68). The query arose from Civil Case No. 1437 entitled Kimberly-Clark Philippines, Inc. vs. Everbeauty Corporation and/or Everbeauty Houseware Co., Ltd., et al., far Infringement of Patent and Damages with Application for TRO and Writ of Preliminary Injunction now pending with Branch 56, Regional Trial Court (RTC) of Makati City, wherein you manifested that service of summons, processes, and all legal notices against respondent foreign corporation doing business in the Philippines, without a license and without any resident agent, should be coursed thru the Securities and Exchange Commission per Section 128 of BP Blg. 68. It is your view that said section of BP Blg. 68 no longer makes mention of the Secretary of Commerce & Industry, hence, the DTI Secretary is constrained to relinquish his authority as the "government official designated by law to that effect", as provided in the aforementioned section of the "Rules of Court. However, in an Order dated March 15, 2001, Hon. Judge Felix upheld petitioner's contention that the DTI Secretary is the government official designated by law (Act No. 1459) to receive service of summons upon foreign private corporations doing business in the Philippines, even without a license or a resident agent. With regret, this Department is constrained to decline rendition of the opinion requested. cCSEaA Pursuant to settled policy, this Department does not render opinion on issues raised by subordinate officials on matters confronting them in the exercise of their official duties. As a matter of official courtesy and sound administrative practice, such subordinate officials should consult their chiefs or heads of office, who may competently resolve the issue without seeking assistance from another office (DOJ Op. No. 30, s. 2000, Op. No. 6, s. 1988). Further, as noted above, the issue you have raised relates to a pending civil case before the RTC of Makati City. By settled policy and practice, the Secretary of Justice does not render opinion or give legal advice on matters which are sub-judice or pending litigation in court (Secretary of Justice Opns. No. 115, s. 1981; No. 152, s. 1983; No. 173, s. 1991; and No. 34, s. 1992). To rule on your query would be an unwarranted intrusion into the exercise of the judicial powers and functions pertaining to the said court, a separate branch of the government and could subject this Office to criticism for violation of the independence of the judiciary (Op. No. 14, s. 1989). Moreover, the subject matter of the query involves the substantive rights of private parties and since the opinion of the Secretary of Justice is merely advisory in nature, such opinion would not be binding upon said private parties who, if adversely affected by such opinion, may take issue therewith and contest it before the courts. As a matter of policy, therefore, the Secretary of Justice has consistently refrained from rendering opinion on questions which are justiciable in nature or those which may be the subject of litigation before the courts (Op. No. 31, s. 2000 citing Op. No. 12, s. 2000; No. 91, s. 1987; Nos. 19 and 92, s. 1971; No. 108, s. 1978 and No. 46, s. 1981). Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary