Implementation of the Assistance Agreement Between the NEDA and USAID

DOJ OPINION NO. 097, s. 2012 November 6, 2012 Mr. Rolando G. Tungpalan Officer-in-Charge National Economic and Development Authority NEDA sa Pasig, Blessed Josemaria Escriva Drive Ortigas Center, Pasig City 1605 Dear Mr. Tungpalan: This refers to your request for opinion on the queries stated therein relating to the implementation of the Assistance Agreement for Environment, Water, and Climate Change Programs (Assistance Agreement) entered into by and between the Government of the Philippines (GOP), acting through the NEDA, and the United States of America (USA), acting through the United States Agency for International Development (USAID), on 28 September 2012. Specifically, you want this Department to issue "a legal opinion that (i) the Agreement has been duly authorized or ratified by, and executed on behalf of the GOP, (ii) the Agreement constitutes a valid and legally binding obligation of the GOP, in accordance with all its terms, and (iii) all internal actions and approvals necessary to give effect to the Agreement have been obtained by or on behalf of the GOP." The request, it appears, is a condition precedent to the first disbursement under Section 5.1, Article 5 of the subject Grant Agreement which, you claim, is aimed "to sustain economic growth of the Philippines over the long term by improving natural resources and environmental services, while reducing climate change risks." You state that the initial USAID grant contribution for 2012 amounts to US$18.44 million, while the counterpart contribution (both cash and in-kind) from the GOP and other non-government implementing partners is estimated to be not less than one-third of the USAID contribution; and that the Assistance Agreement shall be implemented from 2012 to 2017. ACcTDS We have made a careful and thorough review of the Assistance Agreement and shall, accordingly, render the requested opinion guided by the following assumptions we have reached: (a) that all documents submitted to this Department as copy or specimen documents conform to the originals thereof; (b) that all documents have been validly authorized, executed and delivered by all the parties thereto; (c) that the signatures on the originals of all documents submitted are genuine; and (d) that the factual representations made in the documents are true, correct and accurate. Subject to the foregoing statements, and considering likewise the other documents submitted to this Department which we find relevant, not to mention the applicable laws, rules and regulations on the subject matter, this Department is of the opinion that the National Economic and Development Authority (NEDA), as the Grantee, has been duly authorized by the Government to enter into the Assistance Agreement for Environment, Water, and Climate Change Programs. This is clearly evident from the Special Authority signed by President Benigno S. Aquino III, dated 30 August 2012, authorizing the NEDA, through its Secretary of Socioeconomic Planning and Director General, to conclude and sign in accordance with law, for and on behalf of the Republic of the Philippines, the said Assistance Agreement with the United States of America. Anent the issue of whether the Assistance Agreement is a valid and legally binding obligation of the Government, suffice it to say that "international agreements may be deemed valid and binding upon the Government upon signing thereof by the President or the proper official duly authorized by him to sign the same." The documents tend to show that the requirements for the validity and binding effects of said Assistance Agreement are present. Hence, we find no legal and/or constitutional objection to the validity thereof. However, relative to the provisions of Section B.4, Article B of the Standard Provisions, which provides tax exemptions to "effects", e.g., "personally-owned automobiles", among others, of "non-nationals individuals or their family members", we suggest that the Department of Finance and/or the Bureau of Internal Revenue be accorded the opportunity to comment thereon. Please be guided accordingly. AcTHCE Very truly yours, (SGD.) LEILA M. DE LIMA Secretary