“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle,” goes the oft-repeated advice from Sun Tzu’s classic, The Art of War.
UNFORTUNATELY, IT IS the traders —legit or otherwise— more than the probers, who take this caveat to heart. They know the terrain of their trade like the back of their palms.
The enforcers? Yes, they do; ditto with the country’s regulators at the borders. Yet they are helpless against the menace of smuggling; and it’s not because this illicit trade is plied by legitimate importers, rather because these smugglers are keenly aware of the inadequacies of the laws, the rules, and terrain of their trade.
That is why we cannot abate smuggling. Compounding the situation is the lack of skilled investigators probing smuggling—be it in the Executive or Legislative branch of the bureaucracy. Not even the House of Representatives’ PentaCom seems to hit the nail right on the head!
SUPPRESSION OF SMUGGLING
Let me bring you back to a scene in Congress: “Walk us through the importation process, beginning with this Import Commodity Clearance,” a congressional prober asked a former Customs Commissioner during a legislative inquiry with convicted smugglers in attendance.
The lady solon – a former Justice Department investigator and court litigator – was laying the predicate for the more lethal questions she must have prepared for her prey. Essentially, she was trying to check whether the resource person knew one of the main tasks the agency the latter once headed was mandated to do: suppression of smuggling. After all, the committee was investigating illegal drug smuggling. Of course, the solon was not insinuating that an import commodity clearance (ICC) is required in importing illegal drugs. Rather, she was trying to draw everyone, resource persons and probers alike, to a common frame of reference. She wanted everyone to “be on the same page” with her.
Sadly, though, most investigations on smuggling have not been thorough. Some were noted to have failed to tie loose ends and, perforce, accommodated some viruses of reversible errors; in short, the probes weren’t airtight in their investigation for various reasons. Among them, the investigators—including some congressional probers, did not have a common understanding of what constitutes smuggling, who should be investigated, how the act was done, when the act constitutive of smuggling took place, what documents should be reviewed or examined, what to look for in those documents, who should answer their questions, and who should be required to identify signatures and/or authorship of documents, among others.
At times, the probers would pressure—to the extent of shaming—the resource persons, why they are not conversant with what’s happening on the ground. Seemingly, these probers are unmindful of the realities of large bureaucracies where heads of agencies cannot be expected to know every activity that unfolds in the lower level of the organization, say, at the ground zero of smuggling.
Put differently, what happens in the port, the District Collector and her/his officers should be quizzed —not the Commissioner.
NOT THE COMMISSIONER
Put differently, what happens in the port, the District Collector and her/his officers should be quizzed —not the Commissioner. The affairs at the port level are matters under the jurisdiction of the District Collector; ergo, a more responsive answer or information can be better provided by the District Collector, rather than the Commissioner. As lawyers are wont to interject during court proceedings: “Objection, Your Honor, the witness is incompetent!”
Unfortunately, our congressional probes are not bound by the rules of evidence obtaining in the courts of law. So, they quiz everyone in a manner they like, as if every resource person invited to the inquiry —especially heads of agencies— are expected to know everything that happens in their spheres of influence and should thus provide the answer, data, or information the probe body wants to hear.
Unreal, impractical and illogical! This assumption is unreasonable, especially in the case of the Bureau of Customs where the District Collectors have exclusive jurisdictions in their geographical areas of operation, that not even their administrative superior—the Customs Commissioner, can unilaterally or summarily disregard. The principle of command responsibility can sometimes be a shaky and undependable assumption. This is the situation at the ground level; this is the situation at the port zones.
To ignore this reality and insist on the flawed assumption that the Customs Commissioner being the head of the agency should know everything that happens in the Bureau is like tasking the President to know everything that happens in every section, division, or unit of the bureaucracy simply because he is the Chief Executive; or, akin to putting to task the Supreme Pontiff for everything that happens in every diocese or parish. Unfair!
ASSUMING IT EXISTS
But, yes, the message is clear: There is a need to have common ground on which the investigation of smuggling cases should start. For instance, what are considered acts of smuggling? What are the types of smuggling? What are the acts complained of and are being probed? Who are the actors in this illegal enterprise? What are the red flags of smuggling? What interventions did the state regulators do—or fail to do, and many more?
Unless we can agree on a common term of reference, not even the newly-minted Anti-Agricultural Economic Sabotage Act (RA 12022) will address the menace.
For one, even the chief weapon that the Anti-Agricultural Economic Sabotage Enforcement Group will have to use, might —assuming it has now come into existence— have to contend with the strictures laid down by the Supreme Court in the case of BI BOC vs. Yuan Wenle, promulgated 28 February 2023. In this case, the High Court imposed eight guidelines for all administrative warrants — like a Letter of Authority (LOA), to observe. It said:
“[F]or all administrative warrants to be valid and justified, all of the following conditions must be present and shall be strictly complied with, to wit:
“xxxxx.
“6. The warrant issued must not pertain to a criminal offense or pursued as a precursor for the filing of criminal charges and any object seized pursuant to such writ shall not be admissible in evidence in any criminal proceeding.” [Emphasis in the original text.]
EVIDENCE OBTAINED THROUGH
As the LOA seeks to investigate agricultural smuggling, and smuggling being a criminal offense, the LOA therefore cannot be validly used for the purpose for which it was issued.
And any evidence obtained through the use of that LOA will be inadmissible in evidence for whatever purpose, if the Wenle ruling is to be gauged.
That said, how then can an LOA help in the fight against agricultural smuggling— or all forms of smuggling for that matter, when all the evidence obtained through it can be regarded as fruits of the poisonous tree?
It bears watching! Meanwhile, let’s get grounded: Not all smugglers are traders, and not all traders are smugglers.