Recall of DOJ Opinion dated April 2, 2009 Re: Exclusive Jurisdiction of PPA over Cargo Surveying Companies in Ports

DOJ OPINION NO. 040 , s. 2009 September 1, 2009 Commissioner Napoleon L. Morales Bureau of Customs Manila 1099 Sir : This refers to your letter requesting this Office to revisit its Opinion dated April 2, 2009, wherein it was held that the Philippine Ports Authority (PPA) has exclusive jurisdiction over cargo surveying companies in the ports. In seeking a recall of the aforesaid opinion, you claim that the Bulk and Break Bulk Cargo Clearance Enhancement Program under Customs Administrative Order (CAO) No. 6-2008 is designed to provide the Bureau of Customs (BOC) access to important shipping documents emanating from ports outside the jurisdiction of the Philippines; that the said Program is a risk management tool that will be used by BOC in requiring accredited Marine Cargo Surveyors to conduct the inspections and issue the corresponding report; and that the said Program falls squarely within the ambit of Section 608 of the Tariff and Customs Code of the Philippines, to wit: Section 608. Commissioner to Make Rules and Regulations. The Commissioner shall, subject to the approval of the department head, make all rules and regulations necessary to enforce the provisions of this Code. At the outset, it must be stressed that the opinions of the Secretary of Justice are not generally reconsidered, unless there are exceptional circumstances that warrant such step. 1 Moreover, by established precedents, this Department does not entertain requests for reconsideration of its Opinion unless requested by the government official or functionary whose request the questioned opinion was originally rendered. 2 In the instant case, the Opinion dated April 2, 2009 was rendered for and upon the request of PPA. Besides, the opinions of the Secretary of Justice are purely advisory in nature. 3 As such, they need not bind the requesting agencies/officers, if that be their pleasure. 4 Therefore, if the position of PPA is contrary to the views expressed by this Office, it is not obliged to follow the same, instead, it may apply its own interpretation of the facts and law. cIACaT However, it has come to our knowledge that the Office of the President has issued Administrative Order (AO) No. 243 dated October 13, 2008, entitled "Creating a System for the Bulk and Break Bulk Cargo Clearance Enhancement Program of the Bureau of Customs", the contents of which appear to sustain your position on the BOC's mandate to ensure the collection of correct duties and taxes on the importation of bulk/break bulk shipments. In view of the subsequent information, this Department is constrained to take a position opposed to that contained in the opinion sought to be reconsidered which, it must be stressed, was rendered based on the facts stated in the PPA's letter-request. In PPA's request, this Office was not informed about the issuance of AO No. 243 by the Office of the President, which, as above-mentioned could have altered the conclusion reached in the said Opinion. EAcTDH Accordingly, our Opinion dated April 2, 2009 is hereby withdrawn. Considering, however, the established precedents that forbid this Office from passing upon questions which involve the interpretation or clarification of the official issuances of the President for the reason that unless he believes otherwise, it is his Office which is competent to undertake such clarification, 5 we suggest that any clarification relating to the presidential issuance should be addressed to the OP. Very truly yours, (SGD.) AGNES VST DEVANADERA Acting Secretary Footnotes 1. Secretary of Justice Opinion No. 28, s. 2006; citing Op. No. 37, s. 1939. 2. Ibid. , citing Op. Nos. 6 and 100, s. 1996. 3. Secretary of Justice Opinion No. 19, s. 2007; citing Op. No. 2, s. 1984. 4. Ibid. , citing Op. No. 87, s. 1992. 5. Op. No. 7, s. 2008; citing Nos. 3, 88 and 95, s. 1998 and No. 1, s. 1999, or Op. No. 18, s. 2008.