DOJ Opinion No. 111, s. 1989

DOJ OPINION NO. 111 , s. 1989 June 6, 1989 The Acting Secretary Department of Tourism Manila M a d a m : This has reference to the requests of then Secretary of Tourism Jose Antonio Gonzales and Mr. Jose Esteban III, General Manager of Duty-Free Philippines ("DFP"), for opinion on (1) whether or not Executive Order No. 46 dated September 4, 1986 allows DFP to establish display and reservation centers (the "order centers") in places away from international airports; and (2) whether or not the order of the Commissioner of Customs directing the closure of DFP order center at the Manila Garden Hotel is legal and proper. It appears that under E.O. No. 46, which authorizes DFP to operate duty-free shops, the Tourism Secretary is empowered to promulgate rules and regulations to implement said issuance; that pending the release of these implementing rules, the Department of Tourism ("DOT"), after having been granted a provisional six-month permit by the Bureau of Customs, opened an order center at the Manila Garden Hotel; that when said permit expired, DOT applied for a permanent license for the operation of said center; that the Fiscal Incentives Review Board ("FIRB") denied the same because under its Resolution No. 10-87 dated April 22, 1987, one of the conditions for the restoration of DFP's tax and duty exemption privileges was that the operation of duty-free shops shall be restricted only to the Manila and Cebu International Airports; and that consequently, the Customs Commissioner ordered the closure of the order center at Manila Garden. DOT and DFP contend that E.O. 46 allows the operation of order centers outside of international airports since these establishments are not engaged in sales operation, but merely take orders for duty-free goods which are paid at the airports; that the issuance of a permanent permit for order centers is mandatory for the Bureau of Customs; and that DFP is not subject to the rules and regulations of the FIRB issued pursuant to E.O. No. 93, which withdrew all tax and duty incentives. With regret, this Office is constrained to refrain from rendering the requested opinion. The queries raised, in effect, call into question the official actuations of the FIRB over which the Secretary of Justice has no revisory authority. Any opinion of the Secretary of Justice on the issue, being advisory in nature, cannot prevail over the ruling of the FIRB since it is the agency primarily charged with the enforcement of the law involved (Opns., Secretary of Justice, No. 145, s. 1973; and Nos. 89 and 11, s. 1980). Besides, since the Chairman of the FIRB is the Secretary of Finance it could be assumed that decisions of the FIRB reflect the position of the Department of Finance on the matter. The Secretary of Justice possesses no revisory authority over the official actuations of a co-equal and coordinate department of government (Opns. Id., No. 66, s. 1972; and Nos. 7 and 11, s. 1987). prcd Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice