DOJ Opinion No. 075, s. 2001

DOJ OPINION NO. 075 , s. 2001 December 20, 2001 Commissioner Andrea D. Domingo Bureau of Immigration Magallanes Drive, Intramuros Manila M a d a m : The opinion of this Department is requested on whether or not the Bureau of Immigration (BI) may conclude an agreement with the Philippine International Sister-Cities Foundation, Inc. (PISCFI), a non-profit corporation that is duly registered with the Securities and Exchange Commission (SEC). CIETDc Under the proposed agreement, the PISCFI offers "to arrange and facilitate affiliation of BI to different organizations or agencies in other countries through which the Bureau of Immigration can derive knowledge, and learn legal trends, and techniques in improving its services by sending employees to attend seminars or trainings abroad." It shall also "facilitate or arrange donations of equipment from other countries which can be used in the technical improvement of the BI facilities." On the other hand, BI shall "extend VIP treatment at the port of entry to visiting Sister-Cities officials of foreign governments coming into country to foster goodwill or on official business; assist the Chairman and the Vice-Chairman of PISCFI in securing Identification Cards (IDs) at the Ninoy Aquino International Airport (NAIA); and to issue BI IDs to them". While you believe that the proposed agreement addresses the urgent needs of the BI in improving existing facilities, you, nonetheless, express concern that it may also raise "serious questions of legality" in the future. Hence, this request. As can be gleaned from your letter-request, we believe that there are two (2) issues which should be considered in determining whether or not BI can enter into said agreement. These are: 1. Whether or not BI can accept donations arising from the implementation of the contract; and 2. Whether or not BI can extend VIP treatment to visiting Sister-Cities' officials. The Administrative Code of 1987 (E.O. No. 292) categorically provides: "SEC. 47. Contracts and Conveyances . Contracts or conveyances may be executed for and in behalf of the Government or any of its branches, subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations, whether demanded by the exigency or exigencies of the service and as long as the same are not prohibited by law." ( Chap. 12, Book I, E.O. 292 ) A cursory reading of the afore-quoted provision shows that any government agency, like the Bureau of Immigration, can enter into a contract or conveyance provided that it is demanded by the exigency or exigencies of the service and as long as the same are not prohibited by law. As you pointed out, the proposed agreement would help you address the urgent needs of the Bureau on improving its facilities and upgrading the competency of its personnel towards improving efficiency in the delivery of service. Therefore, the requirement of "exigencies of service" may have been satisfactorily complied with. Moreover, section 12 of the General Provisions of the General Appropriations Act for the fiscal year 2000 (Republic Act No. 8760), which expressly allows a government agency to accept donations, in cash or in kind, from various sources, under certain conditions, provides: "Sec. 12. Donations . Departments, bureaus, offices or agencies may accept donations , contributions, grants, bequests or gifts, in cash or in kind, from various sources, domestic or foreign, for purposes relevant to their functions: PROVIDED, That in cases of donations from foreign governments, acceptance thereof shall be subject to the prior clearance and approval of the President of the Philippines upon recommendation of the Secretary of Foreign Affairs : . . . Receipts from donations shall be counted for in the books of the government in accordance with pertinent accounting and auditing rules and regulations. Such donations, whether in cash or in kind, shall be deemed automatically appropriated for purposes specified by the donor . . . . The agency concerned shall submit to the Department of Budget and Management, the Senate Committee on Finance, the House Committee on Appropriations, and to the Commission on Audit a quarterly report of all donations whether in cash or in kind, as well as expenditures or disbursement of the amount released. . . . ." (Emphasis supplied) Pursuant to the above-quoted provisions, the BI, a government agency, can accept donations in cash or in kind, from various sources, whether domestic or foreign, provided, however, that in cases of donations from foreign governments, acceptance thereof shall be subject to the prior clearance and approval of the Secretary of Foreign Affairs. Relative thereto, this Department has had occasions to pass upon similar issues in relation to the pertinent provisions of the Anti-Graft Law (R.A. No. 3019), as amended, and R.A. No. 6713 (Code of Public Ethics). in Opinion No. 47, s. 2000, the Secretary of Justice, citing Section 12 of R.A. 8790, affirmed the view that BOI can accept donations from private entities despite the absence of an express grant of such power in its Charter. In another opinion (Secretary of Justice Opinion No. 66, s. 1992), this Department held that the donation of computer equipment to the Professional Regulation Commission can be accepted by the Commission without violating the said laws. In part, the opinion reads: "The test which has been invariably applied to determine whether or not a violation of the Anti-Graft Law has been committed by a public officer is the existence of a conflict between his private interest and his public duty (Secretary of Justice Opinion No. 49, 1989). The reason behind the Anti-Graft Act, i.e. that a public office should not be used by public officers for their personal gain or advantage, does not exist if the government or any of its agencies is the direct recipient and beneficiary of a gift, present, share percentage or benefit ( Opinion No. 115, s. 1984; and Opinion dated November 18, 1966 ). xxx xxx xxx The same view holds with respect to the provision of Section 7(d) of R.A. 6713, supra . The prohibited act, i.e. solicitation or acceptance of gifts declared to be unlawful in said provision, refers to an act committed by a public officer in his personal or private capacity although arising from or connected with the performance of his official duty." ( see also, Op. No. 128, s. 1992 ) On the matter of whether or not the BI can extend VIP treatment to visiting Sister-Cities officials of foreign governments, this Department cannot formulate a responsive answer as your query does not clearly identify what kind of "VIP" treatment will be extended and from which we can draw our legal premises and conclusions. Nonetheless, we invite attention to the pertinent provisions of the Philippine Immigration Act of 1940, as amended, which provided that: "SEC. 48. Nothing in this Act shall be construed to apply to an official of a recognized foreign government who is coming on the business of his government, nor to his family, attendants, servants and employees, except that they shall be in possession of passports or other credentials showing their official status, duly visaed by Philippine diplomatic officials abroad, unless the President orders otherwise, and that their names shall appear on the passenger lists of transporting vessels required by Section 32 of this Act, and further, that any lien admitted in the status of attendant, servant, or employee of a foreign government official who fails to maintain such status, shall be deported under the procedure prescribed by section 37 of this Act. (as amended by Sec. 18, Rep. Act No. 503.)" On the issue of whether BI can assist in securing of Identification Cards at the NAIA and issue BI IDs to the Chairman and Vice-Chairman of the PISCFI, this Department believes that said matters should be addressed to the discretion of the head of agency concerned taking into consideration existing regulations on the matter and its concomitant security implications. CaHAcT Please be guided accordingly. Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary