GBB: Dissecting the BOC’s FAQ and DOF Guidelines

Oh good, the Bureau of Customs has released some official documents detailing their stand on the Great Book Blockade issue. Let’s have a look see:

FAQ’s: Clarificatory Guidelines on Duty-Free Importation of Books: (find it here)

The answer to Q1 (A1) states the laws that govern book importation according to the Bureau. No surprises here, those are the self-same laws we’ve been dealing with since the beginning.

A2 acknowledges the existence of the Florence Agreement and the fact that the Philippines is a signatory. Again, no surprises, which is a good thing since that means the assumptions we’ve been making so far have been based on sound facts.

A3 and A4— here is where the fun begins.

Q3: Is the UNESCO Florence Agreement already incorporated in Section 105(s) of the Tariff and Customs Code of the Philippines (TCCP) as amended?

Yes. Section 105(s) of the TCCP, as amended, already incorporated the UNESCO Agreement. Notably, the law that introduced the present Section 105(s) is Presidential Decree (PD) No. 1464 issued on 11 June 1978, or later than the adoption or even the signing by the President of the Philippines of the UNESCO Florence Agreement in 1950 and 1952 respectively.

Q4: What is the legal implication of such incorporation by Section 105(s) of the TCCP, as amended, of the UNESCO Florence Agreement?

This means that the importation of educational, scientific and cultural materials listed in Annexes A to E of the Florence Agreement shall be subject to the same condition imposed by Section 105(s) of the TCCP, as amended, i.e. that the imported article shall not be for sale, barter or hire.

Oh Customs, Customs… If that is your central argument, your bedrock, your pillar of legality then I could almost kiss you (if you were a person, or at least a moe anthropomorphism) because (unless I have completely forgotten International Law) you have made this so much easier.

For those who did not go through a compulsory 2 units of Public International Law, the argument of Customs can be summarized in this way: [Best done in a Jon-Stewart-impersonates-George-W-Bush-voice] Yes there’s a Florence Agreement, but see what we did was we put the Florence Agreement into our own municipal law–then we added some, well, conditions before the Agreement can apply, and that amended the Agreement. So, we’re cool right?

Not really.

First, you can’t amend an international treaty by means of a municipal/national law. Why? Two reasons come to mind: (a) before signing a treaty, a State is allowed to make reservations (“We only agree to this part but not that part…”) but if it signs the treaty, it is presumed to have agreed to be bound to the treaty as it is worded; (b) a treaty is an instrument in the realm of international law, and thus beyond the reach of any national legislature, so Congress could enact a zillion laws and they would have zero effect on the provisions of a treaty.

No. Import. Duties. On. Books.

Second, and corollary to the first, if you can’t amend a treaty by a new law, neither can you do so by inserting its provisions in said new law and adding qualifications therein: that’s akin to saying that if a student took his report card, framed it, then used a marker to scrawl “A’s” all over it, he should be class valedictorian.

No. Import. Duties. On. Books.

Third, it doesn’t matter that the law was enacted later than the date of the treaty. Article 46 of the Vienna Convention on the Law of Treaties states thus:

Article 46: Provisions of internal law regarding competence to conclude treaties

A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

Translation: Your munipal laws don’t have any effect on the binding nature of a treaty, unless you can use them to show that the consent given by your ambassador (or whoever was authorized to give the State’s consent) was completely unauthorized because the treaty contravenes your fundamental laws already existing at the time consent was given. Note that said exception does not apply here because the law Customs is citing came into being after the treaty was signed.

Therefore the duty-free importation of books, regardless of “educational” content, mandated by the Florence Agreement is not affected or amended by the TCCP requirement that the same be not for sale barter or hire.

No. Import. Duties. On. Books.

With that, we can bypass A5-8 as those answers are based on a faulty premise.

A9 is again something we already know. A10 is the same argument we’ve heard before, although to its credit Customs does cite Congressional deliberations here. Of course the BDAP’s Position Paper (which I posted here) cites contrary segments of those deliberations–but more importantly, the fact remains that since no law can affect the mandate in the Florence Agreement, then however RA 8047 is interpreted, importation of books must still be duty-free. Also as for the policy of promotion of “Filipino authors” under RA 9521, I think it’s safe to say that such promotion was not meant to come at the expense of the right to duty-free importation of books. I’d like to think most Filipino authors are book lovers who believe in the free flow of information.

A11 seems to be of doubtful applicability since it seems Customs and the Department of Finance have taken it upon themselves to classify–or second guess the classification of the NBDB–what books qualify for duty-free importation. A12 is the same old argument and A13… well, I find it eloquent for what it doesn’t say. No invitation for dialogue or consultation eh? Classy.

DOF: Clarificatory Guidelines on Duty-Free Importation of Books: (find it here)

The DOF guidelines contain a lot of legal definitions so as to allow Customs to distinguish between books in general, educational books, historical books, cultural books, book publishing etc.

With all due respect: none of that matters.

No. Import. Duties. On. Books.

Once more, with feeling:

  • Under the Florence Agreement, a binding international treaty which the Philippines has already ratified, any book–whether textbook or bodice-ripper-romace–that isn’t an advertisement should be exempt from customs duties, whatever its content;
  • Under Article 46 of the Vienna Convention on the Law of Treaties, except in extreme circumstances a State party to a treaty cannot use its municipal/national laws to justify failure to comply with a treaty;
  • Applying a customs duty on the importation of books contravenes the Florence Agreement;
  • No law or interpretation of the law, whether the TCCP or RA 8047 or what-have-you, can justify duties on the importation of books.

So, again, in the humble opinion of one who knows the basics of international law: these guidelines are legally infirm; and as municipal law cannot overturn treaties, much less can municipal “guidelines” have any effect.

No. Import. Duties. On. Books.

Note as well that item 4.3 of the guidelines is patently wrong: as an analysis of the Florence Agreement will show, books need not be classified as “educational, scientific or cultural” nor is there a requirement that they not be “for sale, barter or hire.” As previously mentioned, the TCCP cannot amend the Florence Agreement.

As always, I’m far from perfect, so if I’ve gotten anything wrong please feel free to correct me. That being said… as far as I can see, the arguments in favor of the customs duties have been weighed, measured, and found wanting. I think I’ve been reasonable in trying to wait for the side of Customs and the DOF, but if this is all they had in their arnesal, it was far from sufficient.

No. Import. Duties. On. Books.

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4 responses to “GBB: Dissecting the BOC’s FAQ and DOF Guidelines

  1. Pingback: The Great Book Blockade of 2009: Timeline and Readings (updated) : Manuel L. Quezon III: The Daily Dose

  2. Pingback: The Great Book Blockade of 2009 « Refine Me

  3. Pingback: GBB: Really!?! Edition « BAHAY TALINHAGA

  4. Pingback: Updates on the book blockade « Random Salt

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