DOJ Opinion No. 140, s. 1988

DOJ OPINION NO. 140 , s. 1988 July 12, 1988 Sec. Vicente R. Jayme Department of Finance Manila Sir : This refers to your request for opinion on the proposal of the late Secretary Jayme V. Ongpin for the "review and revision of NEDA Board Resolution No. 25, in the light of the Constitutional mandate to provide tax exemption to education, health and other related matters" It appears that NEDA Board Resolution No. 25 grants duty-free importation privileges to "essential machinery and equipment, including spare parts and accessories thereof, and other goods, acquired through donations by non-profit religious, charitable and cultural institutions and all government hospitals, including primary and secondary (non-teaching/training) private hospitals , not available locally and there are no local substitutes thereof as certified by the BOI, under certain conditions" (Emphasis ours); that Secretary Ongpin believed that limiting said privileges to "private hospitals which are non-teaching/training in nature" (a) "is outrightly impractical and unrealistic", (b) "may tend to de-emphasize the teaching/training aspects of hospital operations", and (c) would run counter to "the Constitutional mandate to promote education, health, and other related areas, on the equal basis", and that on November 18, 1987, NEDA Director-General Solita Monsod informed you (1) that private hospitals are classified into primary, secondary and tertiary, (2) that under pertinent NEDA rules and regulations, while private primary and secondary hospitals are qualified for exemptions from the payment of customs duties for their importations, tertiary hospitals are ineligible since they are income-generating, and (3) that the Inter-Agency Committee on Duty and Tax-Exemption, which included the Department of Finance, has studied the proposal and has agreed to deny the same. You now state that since Director-General Monsod, in disfavoring; the proposed revision of the resolution, failed to touch on the constitutional issues involved therein, you are now raising said issue with us for opinion. We deeply regret having to inform you that we are declining opinion on the instant matter. It is noted that Director-General Monsod has already taken & stand on the suggested revision/amendment of NEDA Board Resolution No. 25 and, pursuant to well-settled precedents, the Secretary of Justice does not render opinion on questions which have already been the subject of a ruling by the head of a co-equal and coordinate department of the government over whose actuations, he has no revisory authority (Opns., Secretary of Justice, Nos. 165 & 239, s. 1956; No. 39 and 205, s. 1957; No. 66, s. 1972; No. 40, s. 1975 and Nos. 6 and 11, s. 1987). Moreover, the NEDA is the recommendatory agency to the President in the determination of which commodities or entities are entitled to duty-free importation prerogative under Section 105 of the Tariff and Customs Code and in conformity with the time-honored rule that the opinions of the Secretary of Justice cannot prevail over the rulings of the agency on legal questions involving a statute which it is primarily tasked with enforcement (Opns., Id., No. 145, s. 1973; No. 245, s. 1976 and Nos. 89 and 115, s. 1980), this Department should decline opinion on the instant case in deference, among others, to NEDAs familiarity with the policy implications thereon. Finally, the subject proposal would involve a review of a resolution adopted by the President, in her capacity as chairman of the NEDA Board, and, therefore, in line with the established practice of this Department to refrain from passing upon the official actuations of the President, this Department should avoid reviewing the resolution in question. prcd For your information, however, we have perused the new Constitution, but we are unable to find any provision therein granting tax-exemption privileges to "health and other related matters." Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice