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SNOB THE SMUGGLER A Little About Smuggling I.

INTRODUCTION The Philippines, being an archipelagic country, certainly can accommodate numerous merchants and traders on its port. Filipinos are not oblivious to the fact that since time immemorial, the Philippines has been engaged in the galleon trade through the direction and control of its Spanish colonizers. The objects of the galleon trade varied from native products, cloths, spices and even human slaves. Smuggling has a long and controversial history, probably dating back to the first time at which duties were imposed in any form, or any attempt was made to prohibit a form of traffic. 1 The word smuggling, to the general public, may connote an illegal transaction on a large scale basis, committed by an individual, a group of individual, organization or syndicate. On the contrary, smuggling to be smuggling per se, its commission does not have to be on a large scale basis. This is because smuggling is committed simply by the act of knowingly and intentionally bringing in good, regardless of quantity, through an unauthorized mode of transportation or passage. This research paper, admittedly, is not comprehensive. The proponent is not an expert on the subject matter. Instead, mere curiosity gave rise to this article. Neither does this article provide tried- and- tested solutions on the eradication of problem. What this research paper aim achieve is just simple: awareness on the mind of the public of the problem of smuggling. A. Smuggling Defined Smuggling is an act committed by any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article, contrary to law, or shall receive, conceal, buy, sell or in any manner facilitate the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law. 2 Thus, in prosecuting a smuggling case, it is essential that the following elements of the crime should be shown and proved to have been present in the transaction: 1.) the merchandise must have been fraudulently or knowingly imported contrary to law; 2.) The defendant, if he is not the

Lim, Virginia. Taxation Law Review. (publisher), 2011 Edition.

importer himself, must have received, concealed, bought, sold or in any manner facilitated the transportation, concealment or sale of the merchandise; 3.) the defendant must be shown to have knowledge that the merchandise had been illegally imported. If the defendant however is shown to have had possession of the illegally imported merchandise, without satisfactory explanation, such possession shall be sufficient to authorize conviction; and 4.) the person must know that the goods have been imported contrary to law. 3 The absence of any of the aforementioned elements of the crime of smuggling will necessarily render the prosecution futile. B. How Smuggling is Committed Smuggling, being a transnational crime or a crime committed from one border to another, has raised serious concerns in the international market. In the Philippines alone, despite the joint effort of various agencies, smugglers still succeed in bringing into the country smuggled articles or contrabands. Under Section 3514 of the Tariff and Customs Code of the Philippines, contrabands are articles of prohibited importations and exportations. However, this definition of contrabands is not exclusive since an article imported or exported in violation of the Tariff and Customs Code of our country is also considered as contraband, which is subject to seizure. Smugglers, if I may say, possess a certain ingenuity which enables them to pass customs authorities without the least suspicion at times. They have also employed means which to some minds are inconceivable for being dangerous like the employment of a human body in the smuggling of drugs. The Filipino community has in fact been outraged by the employment of Filipina domestic helpers and Filipino overseas contract workers as drug couriers of international drug syndicates. At the Ninoy Aquino International Airport (NAIA) passengers and their luggage are subjected to x-ray inspections. However, this inspection is not infallible since smugglers still successfully manage to hide smuggled articles in between their clothes, on the soles of their shoes or slippers, on stuffed toys, on animals purported to be brought into the country for laboratory purposes, among others. Moreover, our Customs authorities in a number of cases have discovered that the cargo manifest of some containers does not contain the goods it


purported to contain. Hence, smuggling may also be committed even if the goods have passed the customs authorities if the declared goods are different from the actual goods transported. Smuggling may, in addition, be committed by admitting the goods into the Philippine territory without passing through a designated port of entry. This happens when goods are brought into the country through a backdoor. This method of smuggling is said to be rampant in the southern part of the country where goods may be transported through bancas only. It should be reiterated that for the succesful prosecution of a smuggling case, the following elements should concur:1.) the merchandise must have been fraudulently or knowingly imported contrary to law; 2.) The defendant, if he is not the importer himself, must have received, concealed, bought, sold or in any manner facilitated the transportation, concealment or sale of the merchandise; 3.) the defendant must be shown to have knowledge that the merchandise had been illegally imported. If the defendant however is shown to have had possession of the illegally imported merchandise, without satisfactory explanation, such possession shall be sufficient to authorize conviction; and 4.) the person must know that the goods have been imported contrary to law. 4 C. Economics of Smuggling Research on smuggling as economic phenomenon is scant. Jagdish Bhagwati and Bent Hansen first forwarded a theory of smuggling in which they saw smuggling essentially as an import-substituting economic activity. Their main consideration, however, was the welfare implications of smuggling. Against common belief that the private sector is more efficient than the public sector, they showed that, smuggling might not enhance social welfare though it may divert resources from government to private sector.[21] In contrast, Faizul Latif Chowdhury, in 1999, suggested a productionsubstituting model of smuggling in which price disparity due to cost of supply is critically important as an incentive for smuggling.[22] This price disparity is caused by domestic consumption taxes as well as import duties. Drawing attention to the case of cigarettes, Chowdhury suggested that, in Bangladesh, smuggling of cigarettes reduced the level of domestic production. Domestic production of cigarettes is subject to value added tax (VAT) and other consumption tax. Reduction of domestic taxes enables the local producer to supply at a lower cost and bring down the price disparity that encourages smuggling.


However, Chowdhury suggested that there is a limit beyond which reducing domestic taxes on production cannot confer a competitive advantage versus smuggled cigarettes. Therefore, government needs to upscale its anti-smuggling drive so that seizures (the taking possession of person or property by legal process) can add to the cost of smuggling and thus render smuggling uncompetitive. Notably, Chowdhury modelled the relationship of the smuggler to the local producer as one of antagonistic duopoly. 5 Smuggling may range from and exist in a wide variety of activities. An individuals or a group of persons participation in illegal trade, such as in the drug trade, in illegal immigration or illegal emigration may be considered as smuggling. Smugglers do smuggle for various reasons also. Such reasons may include tax evasion or evasion of customs duties. D. Smuggling Differentiated from Trafficking Element Smuggling Trafficking

Type crime

Crime against State no victim by the crime of smuggling as such (violation Crime against person victim; violation of the of immigration rights of the victim of trafficking by definition laws/public of (violation of persons human rights; victim of order; the coercion and exploitation that give rise to duties by crime of the State to treat the individual as a victim of a smuggling by crime and human rights violation) definition does not require violations of the rights of the smuggled migrants)

To protect To protect a person against human rights violations; Why do we sovereignty of obligation of the State to provide adequate fight it? the state protection to its citizens Nature

of Commercial;

Exploitative; relationship between trafficker and





relationship between crime and smuggler and duration of migrant ends victim continues in order to maximise economic customer after illegal and/or other gains from exploitation relationship border crossing achieved and fee paid Rationale Organised movement of Organised recruitment/movement and (continuous) persons for exploitation of the victim for profit profit Illegal border crossing is a Purpose of exploitation is the defining element, defining border crossing is not an element of the crime element Migrants Either no consent, or initial consent made irrelevant consent to because of use of force, coercion, at any stage of the illegal border process crossing

Border crossing




Various agencies of the Government have its respective culture and tradition. Some may even have what we call as trend. For instance, in various ports in the Philippines, which is necessarily under the jurisdiction of the Bureau of Customs, importers deliberately and intentionally resort to undervaluing their goods or articles. This act of blatantly declaring a lower valuation of ones goods or articles is commonly known as technical smuggling. One does not have to wonder much why this happens. It cannot be argued that the Bureau of Customs does not have enough manpower to be able to allow such agency to perform its official duties effectively and efficiently. Neither does it lack appropriation. Primarily, the problem lies with the human resources and not the lack thereof. Given the functions of the Bureau of Customs, its people must have access to world market prices of specific products. Moreover, there systems and procedures might not be that


systematic at all. There is no first come, first served basis in the agency. What is material, it seems, is what you can give in return. In effect, the importer has to barter with the officials of the Bureau of Customs. Hence, the importer resorts to bribery in exchange of the release of his goods and the said exchange is done with the intervention of a middleman-a bagger. III. ISSUES

Smuggling is a dangerous social evil that is quite widespread now. It simply means bringing things or different kind from other countries illegally, secretly and against the rules of the customs. It also means taking things out of the countries illegally without paying taxes on them. 7 Almost every main street in the country sells smuggled articles, which range from precious metals like gold and silver, television sets and other home appliances, bags- whether authentic, or imitation, shoes, watches and other articles for daily use. The prices of these goods are what make them more appealable to prospective buyers. The target market of smuggled goods does not care enough or consider the adverse effects of buying smuggled goods.



Smuggling is often done to surpass any taxes or legal conditions placed on the import or export of various items.8 It is not oblivious to merchants and traders that their goods have to pass the customs territory first and that the same shall be only released after payment of the tax due. Hence, depending on the kind of article, there are instances where the importer has to pay a considerable amount of customs duties. Even other Asian countries, like Malaysia and Singapore, have reluctantly decided to reduce the rate of their import duties in order to lessen the rate of smuggling in their country. Assessment and collection of import duties may be a complicated endeavor. However, if we look at it closely, smuggling has a direct relation with the rate of import duties and other taxes. Trade histories even in the early centuries depict the idea that smuggling occurs in order to evade taxes or circumvent legal impositions. A. On Excise Tax and Cigarettes



Recently, our Bureau of Internal Revenue Commissioner Kim Henares has declared that the passage of the bill proposing to increase excise tax on cigarettes will generate additional revenue for the Government. Commissioner Henares, of course, was not talking about meager amounts only. The expected revenue if the bill will be enacted into law will rise to several millions. However, this expected revenue should not be the moving factor why our Congress should pass the said bill into law. Additional million of revenue may seem tempting but a thorough study might make a law-maker change his mind. Experience, they say, is the best teacher. Hence, we should consider what other countries have experienced and encountered. Malaysia increased its excise tax on cigarettes annually since 2003 9. The United Kingdom is the first country in Europe to impose high excise taxes on its cigarettes. 10 Unfortunately, both countries discovered that a substantial percentage of their market when it comes to cigarette consumption have been reduced due to smuggled cigarettes. When a government imposes high excise taxes on its cigarettes, consequently, the prices of cigarettes will also skyrocket. It seldom happens that people will quit smoking. Instead, they will find cheaper cigarettes. These cheaper cigarettes are what the smugglers have to offer, among other articles. Notably, Singapore has also considered increasing its excise tax but such plan did not push through due also to the fact that a considerable portion of its market has been inclined to buying smuggled cigarettes, which are cheaper. The effect of increasing excise tax has also been recognized by the World Bank as an opportunity for the business of smugglers to proliferate. Hence, the World Bank warned member countries that the potential for smuggling can limit increases in tobacco tax rates.11 It also added that, (W) hen setting tax rates, consider the risk of smuggling, the purchasing power of local consumers, tax rates in neighboring markets and the ability and effectiveness of tax authorities to enforce compliance. 12

B. On agriculture The Department of Agricultures budget has increased by 53 percent from P34.8 billion in 2011 to P52.9 billion in 2012. Yet agricultural growth has recorded a 1 percent and 0.7 percent growth, respectively, for the first two quarters this year.



Id. Id. Id.



Smuggling is one of the key reasons for this slow growth. 13 Hence, smuggling is not only detrimental to a governments revenue-raising measures. It is also a detriment to the growth of its domestic industry. Take the example of our own country. The Philippines is known to be an agricultural country yet agricultural products are also smuggled into our country. Recently, it was alleged that a P450-million worth of Indian rice was smuggled through the Subic Bay Freeport Zone 14 using permits issued by the National Food Authority (NHA). The Indian rice, supplied by New Delhibased rice exporter Amira Foods, was meant for Indonesia but was rejected by Indonesian port authorities. The shipment found its way to the Subic Bay Freeport where it was seized by the Bureau of Customs from a warehouse operated by a port locator.15 Our very own farmers cannot sell their produce because the market is swamped with cheap imports and manufacturers are forced to downsize or close down operations because of the entry of dirt-cheap smuggled products. Almost every industry in the country has been affected: illegal imports range from onions to shoes, from chicken legs to pork belly, to floor tiles, tires, garments, resins (used to make plastics) and even charcoal. These wares flood both wet markets and upscale malls, easing out local goods. 16

C. On Technical Smuggling Technical smuggling involves the misdeclaration undervaluation, misclassification of goods, and other kinds of importation fraud. It shows figures from industry organizations and government studies to show that technical smuggling is now being done on a massive and unparalleled scale. 17 Technical smuggling, in fact, is the main










way in which goods are brought into the country. Outright smuggling, where goods are slipped in without going through Customs, is minor in comparison. And yet, the Bureau of Customs does not acknowledge the magnitude of technical smuggling in the country, much less take measures to contain it.18 All bulk and break bulk commodities ought to be inspected by an accredited inspection company at loading in their country of origin, and the load port document would serve as one of the bases for Customs to check against what the importer declares in his Import Declaration This is virtually a PSI (Pre-Shipment Inspection) scheme without valuation. 19 In other Asian countries wherein the Philippines have an existing free trade agreement, the converse is true. The goods exported from the Philippines to other countries, despite the existence of a free trade agreement, pass through stringent customs procedures. Whereas, goods imported from abroad into the Philippines, does not experience or undergo stringent inspections at our ports of entry. The PCIJs article on smuggling written by Tess B. Bacalla, entitled, Smuggled Goods Flood Markets and Malls,20 have this to say: Almost every industry in the country has been affected as illegally imported products now range from onions to shoes, to floor tiles, tires, garments, resins (used to make plastics) and even charcoal, with these wares flooding both wet markets and upscale malls and easing out locally produced goods. Because this has meant cheaper goods at a time when the peso's buying power is at its weakest, consumers are not complaining. But what many don't see is the hundreds of billions of pesos bilked out of the government in the form of lost tax revenues each year, as well as the massive layoffs and bankruptcies that are now taking place in sectors that cannot compete with smuggled goods. Meanwhile, the anti-smuggling efforts of the government and the private sector are being defeated by unscrupulous traders and corrupt and incompetent state officials and personnel, especially those at the Bureau of Customs. Even incentives meant to encourage exports have been abused by technical smugglers. The amounts of money involved are staggering. Last year, for example, a report by the United Nations Conference on Trade and Development or Unctad showed that,






based on the records of the country's trading partners, imports to the Philippines totaled $45.4 billion. Philippine government records, however, reported imports of only $34.5 billion. The discrepancy of $10 billion could most likely be accounted for by smuggled goods. This translates into a P86-billion tax revenue loss for the government, given an average duty rate of 6.19 percent in 2003 according to the Tariff Commission, 10 percent value-added tax, and an exchange rate of P54.20 to the dollar for that year. That P89.4 billion, however, would cover only the unpaid duties and taxes on the $10-billion worth of "missing" goods. As much as 60 percent of all imports may be assumed to be non-dutiable, with some of them supposedly meant for re-export. But re-exporting often doesn't happen, as the imported goods end up being sold locally. Even if one assumes that only one-fourth of all non-dutiable imports involved some form of fraud, the total revenue loss for the government could reach as much as P200 billion. The Fair Trade Alliance (FTA) and the Federation of Philippine Industries (FPI) estimate that tax leakage from the collection of import duties and taxes is P174.2 billion annually, or P52 billion more than what the finance department claims could be generated from the president's proposed new tax measures. Former Sen. Wigberto Taada also pointed out that the amount of leakages could pay for one million new low-cost houses every year or 11,611 school buildings with 30 classrooms each. It could also be used to finance 11,613 barangay health centers, each measuring 30 square meters and with minimum equipment worth P1.5 million, or perhaps 19,352 kilometers of concrete roads. Taada, who is the FTA's lead convenor, added that the amount of uncollected import duties translates to an annual subsidy of P58,056 for three million Filipino farmers. Industry organizations and Customs insiders say importers can easily undervalue their shipments because of how the Bureau of Customs applies the concept of the transaction value, which is the basis for computing tariffs. Transaction value, according to Republic Act 8181, is "the price actually paid or payable for the goods when sold for export to the Philippines." In many cases, say bureau insiders and businessmen alike, the customs bureau does not question whatever transaction value is presented, although it can and does at times impose more reasonable values.21 The enactment of RA 8181, transaction value effectively replaced the home consumption value the value or price declared in the consular, commercial, trade, or sales invoice as the basis for computing the dutiable value of an imported commodity. 22 However, this change, even though effective, is far from the ideally




correct valuation. What it can only offer is being in local parlance second best. Accordingly, it is said that the value of the goods declared in the consular, commercial, trade, or sales invoice, is closer to the true value of the goods imported. V. CONCLUSION

Smuggling deprives the Government billions of revenues. The estimate of the revenues lost to smuggling range from P89 billion to P200 billion a year, enough to wipe out a big chunk of the budget deficit and to finance the building of thousands of schools and one million low-cost houses. 23The Bureau f Internal Revenue as well as the Bureau of Customs, both tasked with the enforcement and implementation of the collection of taxes and tariffs respectively, definitely has to overcome a gigantic barrier to eradicate smuggling activities. Pessimistic as it may seem, the eradication of smuggling activities is a far-fetched idea. An impossible dream. One only has to ask a simple question. Even a child on the street can give us the answer. Smuggling exists because of the rampant corruption in our Government. The customs bureau is probably doing its math wrong if it feels entitled to puffing its chest. In 2003, for example, 67 percent of imported yarns were entered in the customs ledgers under warehousing, which means these were supposed to be re-exported as part of finished products. Yet only five of the top 20 yarn importers were included in the Garments and Textile Export Board's (GTEB) list of Top 100 garment exporters for that year. The same was true for fabrics: 80 percent of the total imports for 2003 were declared under warehousing. Of the top 20 fabric importers, only 11 were listed among GTEB's Top 100 garment exporters. Garment industry insiders surmise that much of the "warehoused" fabric and yarns were sold to the domestic market without the importers paying any taxes. As incentive to exporters, warehousing entries which are called such because they have to be stored in a customs-bonded warehouse are tax- and duty-free. 24 Smuggling is harmful to any country. Firstly the country loses a lot of money by way of unpaid taxes and duties when good are smuggled in or out .Secondly the industries of country are very affected when foreign goods are sold at cheaper prices. Thirdly those goods can be smuggled that are harmful to the country. Fourthly banned goods are smuggled out to other countries against their laws. 25 VI.




Id. http://www.mb.com.ph/articles/376222/customs-ready-for-christmas-imports


The obvious solution to eliminate undervaluation and all technical smuggling issues is to have a full PSI program conducted by reputable international inspection companies on all imported cargoes (sea and air freight) including all containerized cargo, and have importers pay for this and not the government. 26 If technical smuggling is to be stopped, the PSI scheme should be enhanced. To do this, the PSI scheme could be loaded with additional services such as risk management, GPS technology and other state-of-the-art applications, the end result of which would be trade facilitation for compliant importers. These enhancements will also substantially cut down technical smuggling and consequently earn the Bureau of Customs billions of pesos that are presently lost to smuggling.27 Some say that catching technical smugglers is easy. Basing from the official records at hand, one can see if these importers are registered importers or not. Routine checks are also suggested in order to determine the veracity of the information given and documents submitted by these alleged importers. What makes the task difficult only is the collusion between officials of the bureau and the smugglers themselves. Moreover, customs bonds are intended to guarantee payment of taxes and duties as well as other charges in case a company that has warehousing entries does not reexport these as intended. Articles entered for warehousing may remain in bonded warehouses, owned and operated by the importers, for a maximum of one year, from the time these arrived at the port of entry. Surety companies that issue the bonds are supposed to collect those that are forfeited, but this rarely happens. Under the present system, Customs does not go after the importer that does not re-export warehoused items, but is supposed to hunt down the surety companies that issued the bonds. More often than not, however, these companies fold up as fast as they are formed. 28 The way transaction goes inside the Bureau of Customs should not be left to officials and the employees there alone. The legislature should enact laws that would clearly delineate systems and procedures in the bureau. Moreover, educating the public can definitely prove to be useful. Each one of us should be vigilant. The Anti- Smuggling Summit is also an effective forum to ventilate to the public the ill effects of smuggling, from the farmers and working class to businesses, and how it shrinks government funds for social services, how it causes the downsizing and closure of companies thereby dislocating labor, and how it discourages foreign investors. 29 Smuggling should not be tolerated. To some, it may








seem that those affected are only businessmen or entrepreneurs. Little did they realize that smuggling affects each one of us- directly or indirectly.

RUN AFTER THE SMUGGLERS30 In 2005, the Bureau of Customs (BOC) launched an aggressive battle against smugglers who pose serious and direct threat to the national economy by depriving the government of its much-needed revenues. To boost its collection, the BOC introduced the Run-After-The-Smugglers or RATS program which aimed to file customs cases against high profile smugglers at the rate of one case or seizure of cargo every two weeks. The program covers the monitoring/profiling, case-building and prosecution of smugglers in all of the fifteen (15) collection districts, including thirty (30) sub-ports all under the jurisdiction of the BOC. This would showcase the governments seriousness in curbing the nefarious activities of smugglers and other violators of the Tariff and Customs Code of the Philippines (TCCP) and related laws. The program completed the three-pronged crusade of the government against economic saboteurs, which include the Run-After-Tax-Evaders (RATE) which aims to file cases against high profile personalities of one case per week, and Revenue Integrity Protection Service (RIPS) which is designed to conduct lifestyle checks on officers and employees of its collection agencies. The RATS program is designed not only to collect taxes but also to ensure that importers comply with existing laws and regulations on tariff and customs which complements the post-audit power of the BOC under Republic Act No. 9135 which took effect on June 2, 2001. With the creation of the Post-Entry-Audit Group, the BOC is committed in exercising its audit power under RA 9135. The post entry audit provides a mechanism for the verification of the correctness and accuracy of import entry declarations after the goods have been released from customs custody. The law empowers the BOC to conduct an audit within three years from the date of the filing of the import duties. The post entry audit aims to verify, among others, the importers compliance with the following: 1. Use of appropriate valuation method of imported goods. 2. Correctness and completeness of determining dutiable amount



3. Correctness of tariff classifications used and proper description of the goods 4. Correctness of declared quantity of goods 5. Compliance with reportorial, registration and other administrative requirements imposed by BOC. Underpayment of taxes and duties would expose the importer to stiff administrative fines and/or criminal sanctions. If audit uncovers underpayment/deficiencies in duties and taxes, the penalty imposable ranges from one-half (1/2) to eight (8) times of the revenue loss depending on the degree of culpability. To ensure the implementation of the audit, the law requires importers to keep and maintain all records of importation at its principal place of business within three years from the date of the filing of the import entry. Failure to keep the records required or to give customs access to said records could result in administrative and/or criminal liability. The penalties include: (a) administrative fine of twenty percent (20%) ad valorem on the articles subject of the importation for which no records were kept and maintained; (b) hold delivery or release of subsequent importations; and (c) criminal prosecution punishable with a fine of P100,000 to P200,000 and/or imprisonment. With all of these measures and programs of the government to curb smuggling, there is still a continuing concern over the widespread violation of customs laws in the country. The implementation of the Post Entry Audit system and the prosecution of those who violate customs laws have been the top priority of BOC given the potential threat of these illicit activities to the national economy. The BOC has reportedly issued audit notices (AN) to at least 100 companies selected based on computer-aided risk management system. To show its sincerity in its commitment to trample this problem, BOC has intensified its effort to prosecute smugglers. So far, the BOC has already charged 49 respondents involving 13 cases of violation of customs laws, 2 of which have already been filed in court. In addition, the importers accreditation function of the BOC was transferred from Customs Intelligence and Investigation Service (CIIS-IEG) to the Legal Service for better legal compliance in the submission of documentary requirements. To send a strong message to those violators of the Tariff and Custom Code of the Philippines that the BOC is serious in its anti-smuggling campaign, the government should not stop in prosecuting these cases and should aggressively pursue criminal cases against those behind these nefarious activities. The solutions to stop and eradicate smuggling may be simple enough. What we need is to take necessary steps to check and stop smuggling. First of all we should ask the people not to buy smuggled goods. Secondly we should

develop industry and trade inside the country so that most of the goods of daily use are produced inside country. Thirdly we should take care of quality of products produced inside the country. Fourthly we should punish smugglers heavily so that smuggling of drugs and other goods can be stopped.31