Ah, my old foe… we meet again. Or do we?
So a commenter over at the Philippine Genre Stories blog has raised the specter (pun not intended) of a necromantic revival of the Great Book Blockade (credit for that particular metaphor goes to the New Worlds Alliance twitter). You can get a summary of these new developments at the aforementioned PGS post, or over at the Philippine Online Chronicles.
While it is clear that once again there are forces once again attempting to keep the precious pulpy goodness from our grubby hands, and this is something we should not stand for, it would be best to know whom it is we’re actually fighting.
The Problem: People are being asked to either pay customs duties on imported books, or get an exemption from the DOF.
We can divide the problem in to two aspects then: (a) The duties; (b) The exemption requirement. In each case what we need to ask is a question every reciting law student dreads to hear: “What is your legal basis?”
[Legal analysis. Oh, what fun!]
If the customs officials are using DOF DO 17-09 (the legal basis for the Great Book Blockade) as a basis for imposing duties, then they are about as covered as the fairy tale emperor and his invisible duds: i.e. not at all. DOF DO 17-09 was quite explicitly suspended by DOF DO 27-09. For our purposes, and let me emphasize this, it does not matter that the DOF was “merely” suspended and not repealed, or amended–a suspended DO cannot be the basis for any government action, including the imposition of duties.DOF DO 27-09 returned us to, in its words, “the existing procedures and processes on tax and duty free importation of books prior to the effectivity of DO 17-09…”
Now, is there anything in the law/regulation prior to DO 17-09 that could be the basis of the imposition of customs duties on books? Er… no. I’m no tax lawyer so I could be wrong, but the entire reason that DO 17-09 became an issue was because it imposed duties where none had been imposed before. If we’d had a legal basis for duties on books prior to DO 17-09, then we’d never have noticed DO 17-09, and in fact DO 17-09 wouldn’t have been necessary. So I highly doubt that any issuance prior to DO 17-09 can be used as a legal basis to impose duties on books.
So. It seems to me that at the present there is no basis for the imposition of duties on books.
The Exemption Process:
Again, DO 17-09 cannot be used as a basis for requiring a DOF exemption prior to availing of tax-free importation, because DO 17-09 is in the legal equivalent of a coma: alive sure, but not able to do anything (or in this case, unavailable for use as a legal basis for any action).
Is there, however, something in the “existing procedures and processes on tax and duty free importation of books prior to the effectivity of DO 17-09″ that would require the acquisition of such exemption? Again, not that I know of… and there’s a simple reason for that. OK, remember we’ve established above that there is no legal basis prior to DO 17-09 for the imposition of duties on books? Good.
If there are no duties, there is nothing you need to “exempt” yourself from.
Before we speak of exemptions, we need to first ascertain whether or not a rule even applies. Let’s say an office security guard is hired to enforce one rule: that no one who wishes to enter the premises can do so without having a company I.D.. The exception is that if the person is Neil Gaiman, and he can prove he’s Neil Gaiman, then he should be allowed entry with or without I.D.. Should the prospective entrant not have a company I.D., nor be able to prove he is Neil Gaiman, then the guard is allowed to beat the entrant with a night stick.
Given that situation, the guard would be completely within his rights if he required the presentation of the company I.D. from any prospective entrant; and should the same not be given, the guard would be in his rights to require that the visitor prove he is, in fact, award-winning author Neil Gaiman.
However, if the guard saw an old lady passing in front of him on her way to the supermarket next door, and the guard then proceeded to beat her up because she neither had a company I.D. nor could prove she was Neil Gaiman, then I think we can all agree that the guard needs to be locked away somewhere far from civilized society. Poor grandma should not and cannot be required to produce, say, Neil Gaiman’s passport just to escape a beating, because the rule does not apply to her. She wasn’t trying to enter the damn office building! Likewise, as books are not covered by customs duties, one should not need to prove they are exempted from customs duties.
It is entirely possible (and not at all out of character) for there to exist some law or regulation requiring a poor book buyer to do just that. Until then though, there is a standing legal principle that while it is the burden of the tax-payer to prove he is exempted from a tax, this only comes after it has been established that a tax applies to him–and if I recall correctly it is the government that has the burden to prove that a tax, in general, applies.
Of course it’s one thing to say this is how a thing should be under the law, and another to say how it actually is in practice. Which brings us to the next topic:
What Is Going On?
Unless there’s been a new DO reviving or replicating DO 17-09, then I don’t think this is the Great Book Blockade back from the dead coma. What this is instead is evidence that certain government officials are trying to impose invalid customs duties on books, or trying to apply an invalid exemption requirement where none exists. Whether this is being done out of ignorance or corruption is probably something only the officials themselves know, but as Charles Tan mentioned before, this kind of “procedure” pre-dated the Book Blockade, and was not due to DO 17-09. If one recalls, this also happened to Chingbee Cruz and Dean Leonen of UP (I’m unclear as to whether those incidents were DO 17-09 related or not).
What Can Be Done?
I think we need to be clear that, as far as I know at least, there is no legal basis either for the duties or the exemption requirement. Even if you end up going through the bogus exemption process out of expedience, know that legally it should not, as far as I know, be required of you. The alleged “new EO” isn’t a solution either although it certainly couldn’t hurt.
The problem is not in the law, but in the practices of certain officials. As such, while I’ve mentioned this before, I’d like to reiterate that RockEd Philippines has been trying to gather proof of similar cases of illegal taxation–receipts, or even simple narrations of the events–so that Atty. Leonen or another able lawyer might be able to file the appropriate legal suit.
So in short if you find yourself being assessed for book duties, how you can help is by getting the names of those making the assessment, as well as their legal basis for the same, and giving the details of the incident to Rock Ed at info[at]rockedphilippines.org or contact them via these numbers:
Tel. No.: (632) 709-0792
Mobile: (63916) 409-2378
Telefax: (632) 376-2184