DOJ Opinion No. 231, s. 1989

DOJ OPINION NO. 231 , s. 1989 December 6, 1989 Hon. Manuel T. Yan Undersecretary and Chairman of Task Force on International Refugee Assistance and Administration Department of Foreign Affairs Manila Sir : This has reference to your request for comment and opinion regarding the controversy over the disposition of the two boats used by 221 asylum seekers who were rescued in Philippine territory on June 7, 1989. You state that this referral is being made in view of the conflicting claims over the custody of the boats by the fisherman who rescued refugees and Mayor of Moron, Bataan. Further you state that our opinion on the subject would be most useful not only in the resolution of the above particular case but also on the formulation of a definite policy with respect to the custody of refugee boats which land in the Philippine shores. Assuming that the asylum-seekers referred to are refugees falling within the contemplation of the 1951 Convention relating to the status of Refugees and the 1967 Protocol on the same matter, of which the Philippines is a signatory, the provision of the aforesaid 1951 Convention quoted hereunder is pertinent: "Article 13 Movable and immovable property The Contracting States shall accord to a refugee treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property." In this connection, it must be emphasized that the Bill of Rights provisions, particularly, that "no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws" (Sec. 1, Art. III, 1987 Constitution), are universal in their application to all persons within the Philippine territorial jurisdiction, without regard to any differences of race, color, or nationality. For this reason, the word "person" used in the quoted constitutional provision includes aliens (Smith Bill and Co. vs. Natividad, 40 Phil. 136 citing Yick Wo vs. Hapkins (1886), 118 vs. 356 and Truax v. Raich (1915), 239 vs. 33). It is therefore mandatory that due process and equal protection of the laws be given to these asylum seekers, apart from our international commitments. Under Executive Order (E.O.) No. 332 (August 12, 1988), the Philippine Refugee Processing Center (PRPC) attends to the following major areas of concern: (1) The administrative processing of refugees prior to resettlement; (2) The provision of basic facilities and services refugees; and (3) The implementation of a comprehensive, refugees training and rehabilitation program, to assist each refugee to prepare and equip himself for a productive life in his country of resettlement." (Executive Brief on the Operations of PRPC [January 1980-30 November 1988], prepared by the PRPC). In furtherance of the foregoing, the administrator of the PRPC, among others, manages the day to day operation of such refugee camps/centers which may be placed under his administration by the Task Force on International Refugee Assistance Administration. The latter formulates the guidelines for a more efficient refugee assistance. (Sec. 4, in relation to Sec. 2, E.O. No. 332, supra) The functions vested upon the PRPC necessarily put it in custody of the person and property of the refugees within the processing centers/camps under its authority. To faithfully discharge its duties, the PRPC should assist the refugees in the exercise of their property rights, consistently with existing laws and regulations, and to see to it that there is no undue discrimination against them. At the outset, it should be emphasized that, outright confiscation of refugee property would be contrary to our international commitments. prcd Hereunder are the pertinent laws/rules that the PRPC should consider in the use or disposition of the boats placed under its custody. The special character of the admission and stay of refugees in the country inevitably subjects them to certain restrictions not normally accorded to other aliens like the limitation of their freedom of movement within the territory. By the nature of the subject refugee property, the right of the owner to the use thereof, would have to be subject to the control of the PRPC. With regards to the use of the boats for commercial purposes, it is relevant to mention that P.D. No. 704 the Fisheries Decree of 1975 regulates fishing rights and charter contracts, and lease-or-lease purchase agreement over fishing boats, through the citizenship requirement. Its pertinent provisions read: "SEC. 20. Persons eligible for commercial fishing boat license . No commercial fishing boat license shall be issued except to citizens of the Philippines or to associations or corporations duly registered in the Philippines, at least sixty per cent (60%) or the capital stock of which is owned by Filipino citizens. No person to whom a license has been issued shall sell, transfer, or assign, directly or indirectly, his stock or interest therein to any person not qualified to hold a license, and any such transfer, sale or assignment shall be null and void and shall not be registered in the books of the association or corporation. For purposes of commercial fishing, fishing boats owned by citizens of the Philippines and corporations or associations qualified under this section, may be issued certificates of Philippine registry and such other documents as are necessary for fishing operations, any provision of law to the contrary notwithstanding. Provided, That the certificate of Philippine registry shall be valid only as long as the fishing boat is engaged in, or used for, fishing operations. For the purpose of this section, fishing operation include the transportation of the fish caught. "SEC. 21. Charter contracts, lease or lease-purchase agreements and contracts for assistance . Citizens of the Philippines and qualified corporation of Philippines and qualified corporations or associations engaged in commercial fishing may, subject to the approval of the Secretary, enter into charter contracts, lease or lease-purchase agreements of fishing boats, or contracts for financial, technical or other forms of assistance with any foreign person, corporation or entity for the production, storage, marketing and processing of fish and fishery/aquatic products: Provided, That the foreign crew members of the foreign fishing boat who shall not exceed seventy-five per cent (75%) of the complement of the boat, may be issued fisherman's license subject to security clearance by the Philippine Coast Guard and to the rules, regulations and guidelines to be promulgated by the Council: Provided, further, That it shall be a condition in all charter contracts, lease or lease-purchase agreements that Filipino seamen and fishermen shall be given instruction and training by the foreign crew members in the operation of the fishing boat and the use of fishing gears and after two years shall replace all foreign crew members. Charter contracts, lease or lease-purchase agreements and contracts for financial, technical or other forms of assistance with any foreign person, corporation or entity, shall be subject to the guideline promulgated by the Council and the approval of the Secretary: Provided, That payments under such contracts or agreements shall be made in kind, i.e., in exports items of fish and/or fishery/aquatic products." Any further questions/clarification on the implementation of the foregoing provision of law may be directed to the Department of Agriculture which is the government agency regulating the utilization of our fishery resources (E.O. No. 116, January 30, 1987). prcd For your information, also quoted hereunder is the provision of Section 801, formerly of the Tariff and Customs Code but now incorporated in R.A. No. 5173, as amended, for enforcement by the Philippine Coast Guard (Sec. 3702, Transitory Provisions, Tariff and Customs Code, as amended): Sec. 802. Vessels Required to be Registered. Every vessel used in the Philippine waters, not being a transient of foreign registry shall be registered in the Bureau of Customs. To this end, it shall be the duty of the master, owner or agent of every vessel to make application to the proper Collector for the registration thereof within fifteen days after the vessel becomes subject to such registration. A vessel of three tons gross or less shall not be registered, unless the owner shall so desire, nor shall documents or licenses of any kind be required for such vessel, but the proper fee shall be charged for admeasurement, when admeasurement is necessary, except when the same is engaged in towing or carrying of articles and passengers for hire. You may seek the advice of the Philippine Coast Guard regarding the implementation of the aforequoted provision, and whether they require, prior to registration, payment of taxes and duties. The importation of ships, boats and floating structures into the country is subject to the payment of duties (Chapter 89, Section XVII, Section 104, Tariff and Customs Code). Under Section 1204 of the same Code, such duties, taxes, fees and other charges attaching on importation constitute a lien on the imported articles. Parenthetically, it should be noted that forfeiture of vessels in favor of the government as a penal sanction may be decreed, at the discretion of the court in a criminal proceeding under Section 46 of the Philippine Immigration Act of 1940 (C.A. No. 613, as amended), where an alien who is a pilot master, owner, agent, consignee or any person in charge of the vessel commits a violation of the aforesaid Section of the Immigration Act. If such violation is administrative in charter as provided in Section 44 of the same Act, the Commissioner of Immigration is authorized to collect administrative fines, the payment of which may be enforced by the Collector of Customs against the vessel in the same manner as fines are collected and enforced against vessels under the customs laws. In view of the foregoing, no person has a right to appropriate for himself the boats owned by refugees, or any illegal entrant for that matter, and the disposition of the boats by the refugees to other parties must be properly done through an appropriate contract executed between them in accordance with Philippine laws and regulations. It is the duty of the PRPC who has custody over the person and property of refugees to assist the latter in the exercise of their property rights consistently with Philippine laws and regulations and our international commitments. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice