G.R. No. 181704 – BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), represented by its National President (BOCEA National Executive Council) Mr. Romulo A. Pagulayan versus HON. MARGARITO B. TEVES, in his capacity as Secretary of the Department of Finance, HON. NAPOLEON L. MORALES, in his capacity as Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her capacity as Commissioner of the Bureau of Internal Revenue.
Promulgated:
December 6, 2011
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CONCURRING OPINION
SERENO, J.:
While I concur with the rest of the Court in dismissing this Rule 65 Petition, I wish to highlight a very important species of argument that petitioner, could have, but was unable, to develop as a viable ground for granting this Petition. I refer to the contradiction that government has created — by fostering low-tariff regimes which in turn has created a low customs revenue base, while at the same time increasing customs revenue collection targets that has been rendered unattainable because of the low revenue base. I highlight this contradiction only because it shows how terribly askew certain government actions might have gone, and how the state of ship can possibly start to set aright.
A fundamental requirement for the constitutionality of a statute is for it to pass the test of reasonableness. Applied to this Petition, the question being asked in effect by petitioner is this: Is Republic Act No. 9335 (R.A. 9335) constitutionally reasonable, considering that the Government has been embarking on low-tariff regimes embodied in various regional and bilateral trade agreements, as well as in unilateral tariff-reduction programs?
The argument of reasonableness is not, strictly speaking of the means-versus-ends kind. Rather, it is akin to the requirement of reasonableness imposed by Article 1186 of the Civil Code, which reads: “The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfilment.” This article accomplishes two things in civil cases: (1) it punishes the obligee by deeming the condition fulfilled despite non-compliance by the obligor because the obligee voluntarily prevented compliance with the condition; and (2) it lifts the burden from the shoulders of the obligor by not requiring the latter to fulfill a condition which, even though not inherently impossible, cam no longer be fulfilled because of a voluntary act of the obligee. If we transpose these effects to this Petition, in the case of customs revenue collections, the State who is the obligee, is denied by law the right to exact compliance with the revenue targets from the customs employees who are the obligors, because the State prevented the increase in customs revenue collections, by lowering the revenue base which consists of the customs duties from which such collection increases could have been sourced.
There is one inherent difficulty in this argument, however. While attacks on constitutionality can be more easily launched against statutes that contain material internal inconsistencies, the inconsistency in this instance is between, on the one hand, certain sections of R.A. 9335[1] and the corresponding implementing rules and regulations[2] and, on the other, a series of executive orders lowering the tariffs on an array of imported goods. As it is, it would be quite difficult to satisfy the level of proof required to demonstrate how presidential actions have resulted in the lowering of customs duties as to materially affect the ability of petitioner to comply with collection targets and as to endanger its members’ security of tenure.
Regardless of the difficulty of demonstrating the lowering of tariffs and its impact on customs revenue collections, it must ultimately be performed by the government for several important reasons.
First, although Petitioner was not able to adduce sufficient proof for the magnitude of the impact of lowered tariff rates on customs collections, it can be readily seen, nonetheless, how it would be intuitively wrong and unfair to petitioner for the Government to embark on a policy of lowering tariff duties while increasing customs collection targets, and then to penalize failure to meet those targets without first estimating the negative revenue impact of the lowered tariff duties.
Second, it must be done simply because the revenue and expenditures estimates of Government must, to the extent possible, be fact-based and scientifically done. Otherwise, the important constitutional goals of the economy under Article XII, Section 1, cannot be satisfied. These economic goals largely depend on a supportive, not a destructive, revenue-raising program — part of which includes customs duties.
A final observation. Article VI, Section 28(2) of the Constitution provides:
The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.
For the longest time, Congress has not made its voice heard on this matter and has simply allowed the President to determine tariff rates by one executive order after another. From the above language, it would seem that delegated presidential tariff rate setting powers has been designed to be exercised only as an exception, and not as the norm. Congress must revisit this constitutional provision and weigh the question of whether it has wrongly and excessively defaulted on the exercise of this constitutional duty to set tariffs in favor of the President.[3]
I vote to deny the Petition. I would also suggest that the Clerk of Court furnish a copy of the Decision to the Senate President and the Speaker of the House of Representatives. Let a copy of this Concurring Opinion also be served to the said officials.
MARIA LOURDES P. A. SERENO
Associate Justice
[1] SECTION 7. Powers and Functions of the Board. – The Board in the agency shall have the following powers and functions:
x x x
(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliances with substantive and procedural due process. Provided, That the following exemptions shall apply:
x x x
2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to non-performance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities, force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executor: Provided, further, That the application of the criteria for the separation of an official or employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act; x x x (R.A. 9335)
[2] SECTION 25. Powers and Functions. – The Board in the agency shall have the following powers and functions:
x x x
(b) To set the criteria and procedures for removing from the service Officials and Employees whose revenue collection falls short of the target in accordance with Section 7 of the Act;
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph;
x x x
(e) To perform such other functions as are necessary or incidental to its mandated functions, including the issuance of rules and regulations, circulars, memoranda, interpretations and rulings and coordinate with each other and provide support, whenever necessary, for the proper conducts of its functions; x x x (Implementing Rules and Regulations)
[3] A profound discourse on the subject matter can be seen in the article of Former Senior Associate Justice Florentino P. Feliciano, “Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines: The Strange Persistence of a Martial Law Syndrome,” 84 Phil. L.J. 311 (2009).
Source: http://sc.judiciary.gov.ph/jurisprudence/2011/december2011/181704_sereno.htm
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