DOJ Opinion No. 125, s. 1990

DOJ OPINION NO. 125 , s. 1990 July 18, 1990 Hon. Raul S. Manglapus Department of Foreign Affairs PICC, Manila Sir : This has reference to your request for our Department's "approval and clearance" of certain privileges and immunities sought by the Governments of Denmark and the Netherlands for incorporation in their Exchange of Notes with the Philippine Government regarding specific official development assistance projects. It will be recalled that in Opinion No. 107, s. 1990, we commented on a similar matter relative to the draft Exchange of Notes between the Republic of the Philippines and Denmark covering the "Six Provincial Water Supply, Sewerage and Sanitation Plans". Thus, our comments/observations herein shall deal only on the proposal of the Dutch Government. We take it that the privileges and immunities desired by the Government of Netherlands for experts sent in the connection with the development assistance project consist of the following: (a) exemption from payment of income tax on salaries and emoluments paid by the Netherlands; (b) exemption from payment of customs duties and taxes on personal and household effects, equipment and motor vehicles supplied by the Netherlands; (c) provision for entry visa and work permit, free of charge; (d) provision for most favorable exchange facilities for all remunerations received from the Netherlands; (e) the right of free movement whether within, to or from the Philippines; and (f) indemnification against any liability arising from any act or omission made in the course of the performance of the duties of the experts resulting in the death or physical injury, or damage to the property, of a third party, unless such liability is derived form willful misconduct or from gross negligence on the part of the experts. We find items (c), (d), and (e) legally permissible. It is expected that the Philippine Government should facilitate the entry of, and the grant of work permits to, foreign nationals coming to the Philippines to engage in economic development activities initiated or supported by the said Government. Moreover, it is the policy of the Government to afford foreign nationals in the country enjoyment of the freedom to travel which is constitutionally assured for Filipinos. As for items (a) and (b), however, we feel that the more competent agency to comment thereon is the Department of Finance, which by law is mandated to formulate, institutionalize and administer fiscal and tax policies. (Sec. 3 [21], Administrative Code of 1987). With respect to item (f), we suggest that the provision be rephrased in the following manner: "The Government of the Republic of the Philippines shall deal with any claim which may be brought by third parties against Netherlands experts and shall hold harmless said Netherlands experts from civil liability for acts or omissions committed in the course of the performance of their duties in the execution of the Project, except for acts arising from gross negligence or willful misconduct." The foregoing formulation is patterned after a similar clause in the Memorandum of Understanding on Technical and Vocational Education Project between the Philippines and Australia. Please be guided accordingly. Very truly yours, (SGD.) FRANKLIN M. DRILON Secretary