A Manila Regional Trial Court (RTC) judge has declared that Executive Order (EO) No. 624 creating the Presidential Anti-Smuggling Group (PASG) is illegal and unconstitutional.

In a nine-page decision issued last Monday, Judge Silvino Pampilo Jr. of the Manila RTC Branch 26 granted the petition of British national Siu Ting Alpha Kwok, also known as Alpha Kwok, seeking declaratory relief and to declare EO 624 as unconstitutional.

"Wherefore, premises considered, the Petition for Declaratory relief is hereby granted. Executive Order No. 624 is hereby declared illegal, invalid, unconstitutional and in violation of the doctrine of separation of powers, checks, and balances," said Judge Pampilo.

Kwok, a British national who was arrested and detained for allegedly smuggling jewelry and precious gems worth millions, asked the court last October 30, 2009 to declare EO 624 creating the Presidential Anti-Smuggling Group (PASG) as invalid and unconstitutional.

Through her lawyer Bonifacio Alentajan, Kwok filed in the Manila regional trial court a petition for declaratory relief with application for preliminary injunction and temporary restraining order against then Executive Secretary Eduardo Ermita and PASG chief Antonio Villar Jr.

In her petition, Kwok claimed EO 624 had become a source of excessive abuses and official lawlessness and that the creation of PASG grossly violates the constitutional doctrine of separation of powers.

She added that the power and functions of the PASG duplicate those of the Bureau of Customs, particularly, those addressing the problem of smuggling.

“As such, it emasculates the powers and functions of the Bureau of Customs which is provided for by the law,” she said, adding that the operations of the PASG causes confusion to the public and weakens investor confidence due to the usurpation and duplication of the functions of the Bureau of Customs.

Pampilo, in resolving the constitutionality of Executive Order 624, agreed that the ordinance power of the President to issue executive orders is limited to the implementation or execution or statutory power and that the creation of PASG is not a product of simply reshaping or reorganizing the bureaucracy.

“The executive order created another instrumentality which is not allowed because it is tantamount to usurpation of legislative power and violation of the doctrine of separation of powers between the executive branch and legislative branch of the government,” Pampilo said.

“It cannot be said that the provisions of E.O No. 624 merely invested the PASG agents with additional duties because perusal of the records will reveal that the actions of PASG do not bear the conformity of the Bureau of Customs. They act independently,” he said.

The Manila RTC Branch 26 judge likewise noted that the creation of PASG did not achieve simplicity, economy and efficiency since the agency's function is already being performed by other agencies.

Instead of being achieving simplicity of performance, Pampilo said, the creation of PASG only resulted in duplicity of functions.

Pampilo stressed there is no economy in the creation of PASG since the department, which does the same functions with other agency, receives a huge allocation of budget, where in fact it could have likewise been saved by the government.

“The PASG has an initial allocation of P50 million which is a huge amount considering that the Bureau of Customs, Philippine National Police, National Food Authority, Marina and other agencies have their respective budgets to conduct surveillance, intelligence activities for the purpose of preventing smuggling and other related illegal activities. Thus there is no economy,” he said.

As for its efficiency, the judge pointed out that it created more problems than solutions to the anti-smuggling campaign as he cited a manifesto submitted by the Alliance of Customs Brokers, Truckers, Importers, and Organizations Nationwide (ACTION) demanding the abolition of the PASG.

“There being sufficient evidence to support the petitioner's contention, the Petition for Declaratory Relief is hereby Granted,” he said.

On August 18, 2009, PASG agents raided Kwok’s residence on the 17th floor of Pacific Place in Ortigas, Pasig City, and arrested Kwok for allegedly selling precious gems illegally.

But the PASG officers never filed any criminal or administrative case against Kwok before any court, tribunal, or quasi-judicial body in the Philippines, her lawyer, Alentajan, said.

“The PASG illegally arrested Kwok without the benefit of any warrant to support the arrest, and on a mere suspicion of violating the Tariff and Customs Code. Clearly, she was not committing any offense at the time of her illegal arrest,” the lawyer said.

He claimed there was “no pending case or any deportation charge” against Kwok ordered by the immigration bureau.

Moreover, Kwok was not allowed to post bail for her provisional liberty despite having filed a petition to post bail.

Kwok earlier filed graft, arbitrary detention, violation of domicile, maliciously obtaining search warrants, perjury and unlawful arrest charges against Villar and seven other PASG officers.