DOJ Opinion No. 065, s. 1996

DOJ OPINION NO. 065 , s. 1996 June 25, 1996 Undersecretary Cesar B. Bautista Department of Trade and Industry Trade and Industry Building 361 Sen. Gil J. Puyat Avenue Makati City Sir : This refers to your request for opinion on "whether the Senate ratification of the WTO (World Trade Organization) Agreement 'automatically' amends RA 7843 (The Anti-Dumping Act of 1994) and its Implementing Rules and Regulations (IRR) or if there is a need to introduce an amendment to R.A. 7843 to align the domestic law with the treaty obligation separately through an Act of Congress". It appears that although the Marakkech Agreement Establishing the World Trade Organization (later referred to as the WTO Agreement) was ratified by the Philippine Senate on December 14, 1994 and R.A. No. 7843 enacted seven (7) days later, or on December 21, 1994, the latter took effect on December 31, 1994 while the ratification became effective on January 1, 1995. We surmise that the query was precipitated by the legal inquiries initiated by the country's major trading partners in the WTO on the status, the manner of implementation and the consistency of the Anti-Dumping Act with the Agreement Implementing Article VI of the General Agreement on Tariffs and Trade (GATT) of 1994 a covered agreement of the WTO Agreement. You state that because of the "inconsistencies" present in R.A. No. 7843 vis-a-vis the provisions of the WTO Agreement, you expect that any WTO member shall be free to file legal action in the WTO against the Philippines once the Anti-Dumping Act is enforced. You based this conclusion on GATT jurisprudence which, you claim, dictates that where a member implements a measure inconsistent with WTO provisions, there is a presumption that the action of the offending member has resulted in adverse effects to the other WTO members. You also say that in the event of a "formal dispute settlement case" filed with the WTO, the burden will be on our part to disprove the presumption. Since you do not want the above scenario to take place, and considering your intention to take a pro-active stance in resolving the matter without undergoing a formal WTO dispute settlement case, you now raise the within query. It bears stress, at the outset, that a treaty may supersede a prior act of Congress in the same way that an act of Congress may supersede a prior treaty (Secretary of Justice Op. No. 24, s. 1994 citing Thomas vs. Gray, 169 US 264; 42 Law. Ed. 740). The principle was further explained as follows: ". . . When the stipulations (of the Treaty) are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the Treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment . . . By the Constitution, a Treaty is placed on the same footing, and made of like obligation, with an Act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the Treaty on the subject is self-executing. . ." (Whitney v. Robertson, 124 US 190, 31 Law. Ed. 386, 388) (stress Supplied). On the issue of which of the law or the treaty, is the later or subsequent law, the Supreme Court held that: "When two Acts are inconsistent, that which has been approved in a later date should prevail, although it has been made effective in an earlier date (Goodwin v. Buckley, 54 Cal. 295; San Luis Obispo County v. Felts, 104 Cal. 66, 37 Pac. 780; Mariposa County v. Madera County, 142 Cal. 55, 75 Pac. 572; Re K. Sohncke, 82 Pac. 956, 2 L. R. A. [NS] 813). Statutes speak from the time they take effect, and from that time they have posteriority. If passed to take effect at a future day, they are to be construed, as a general rule, as if passed on that day and ordered to take immediate effect. But as between two acts, it has been held that one passed later and going into effect earlier will prevail over one passed earlier and going into effect later. Thus an act passed April 16th and in force April 21st was held to prevail over an act passed April 9th and in effect July 4th of the same year. And an act going into effect immediately has been to prevail over an act passed before but going into effect later. (I Sutherland, Statutory Construction, pp. 541-542). The question is one purely of legislative intent. The Supreme Court, upon approving the Rules of Court in December, 1939 [the Rules of Court were approved in December, 1939 and made effective on July 1, 1940], could not have possibly intended to amend the procedural provisions contained in Commonwealth Act No. 559, which was not yet then in existence, for it was approved six months later, that is, on June 7, 1940. On the other hand, the National Assembly in approving Commonwealth Act No. 559 containing provisions which are repugnant to the Rules of Court, may be presumed to have intended a repeal to the extent of the repugnance. Leges posteriores priores contrarias abrogant ." (Manila Trading & Supply Co. vs. Philippine Labor Union, 72 Phil. 7 [1941]). Likewise, in the case of Abbas vs. Commission on Elections, 179 SCRA 287, our Supreme Court, commenting on the effect of R.A. No. 6734 on the Tripoli Agreement, said: ". . . Assuming, for the sake of argument, that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law, it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW, 320 (4th ed, 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Neilson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory to the Tripoli Agreement, being a subsequent law . . ." (at p. 294) (emphasis ours). Also, in the case of Marubeni Corporation vs. Commissioner of Internal Revenue (177 SCRA 500), the Supreme Court ruled that the reduced 25% income tax rate in the RP-Japan Tax Treaty prevails over the 35% tax rate in the Tax Code. Thus, the WTO Agreement is the latter law, having taken effect after the effectivity of R.A. No. 7843. With respect to the question of whether or not the WTO agreement automatically repealed by implication the irreconcilable provisions of R.A. No. 7843, it is necessary to determine whether the specific stipulation in the WTO agreement is self-executing or not. If it is self-executing and there is irreconcilable conflict between the provision of the earlier law and the stipulation of the WTO agreement, the latter shall prevail. On the other hand, if the stipulation in the WTO agreement is not self-executing, legislation is necessary to harmonize them. llcd Please be guided accordingly. Very truly yours, (SGD.) TEOFISTO T. GUINGONA, JR. Secretary