Mindanao Martial Law Declaration May be Fatally Defective

Elpidio V. Peria
25 May 2017

Government troops  moving into position in Marawi City (from :http://interaksyon.com)

Proclamation No. 216 declaring martial law in Mindanao has recently been circulated in the web and looking at its WHEREAS clauses which serves as justification for the martial law declaration, it appears that such declaration is fatally defective for the following reasons :

1) the Maute stand-off in Marawi City is characterized as a rebellion when apparently it is terrorism

The 3rd and 4th Whereas clause describes the Maute Group as a “terrorist” group and as such the crimes to which they should be charged with is terrorism, which is actually penalized by Republic Act 9372, but the Constitution is explicit in allowing the invocation of the President’s martial law powers only in cases of lawless violence, invasion or rebellion. The wisecracks may point to terrorism as lawless violence, but given that there is a law defining terrorism, terrorism cannot now be easily equated with lawless violence easily, this will most likely not withstand legal scrutiny.

If we go by the cases cited by the great Revised Penal Code commentator Luis B. Reyes (18th edition, 2012), he described the nature of the crime of rebellion as a crime of the masses, of a multitude and a vast movement of men and a complex net of intrigues and plots. A handful of Maute group warriors spread widely over certain portions of Marawi City and those doing the acts described in the 5th whereas clause is clearly not such multitude and vast group of men.

2) the declaration referred to other reasons under the previous Proclamation of national emergency from the Davao City bombing in Feb 2016 which are not completely spelled out in this martial law Proclamation.

The 4th whereas clause reads : “part of the reasons for the issuance of Proclamation No. 55” means there are another set of reasons that are not spelled out in this Proclamation, what are they? Are they the acts enumerated in the 5th whereas clause? If we look for the connective word between the 4th and 5th whereas clause, it is the reference to the Maute group as the “same” Maute terrorist group and if we take on the implications of this reference, meaning the first effort under the first Proclamation actually failed since here is the same group again, doing the same thing that they are doing, but this time the Government response is different. Sen. Saguisag appears to be right in saying over ANC cable news channel  that this martial law declaration is an admission of failure on the part of the government in stopping the Maute group the first time. The  other reasons, including reasons for the failure of the original Proclamation, should have been clearly spelled out here now, justifying the martial law declaration.


WHY THIS MATTERS : Any citizen who may wish to question the sufficiency of the factual basis for the declaration of martial law will only have to look at the four corners of the Proclamation and point these out to the Supreme Court so that this Proclamation may be knocked down legally for lack of sufficient factual basis.

Just to be sure, however, let’s watch out for the President’s report to Congress as he may put forward other information, including perhaps classified intelligence information there justifying the martial law declaration before or within 48 hours from the issuance of the Proclamation and if we look at the date when he issued the Proclamation, straight from Russia, on 23 May 2017, his 48 hours should be up within today.


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Martial Law in Mindanao : What Happens Now?

Elpidio V. Peria
24 May 2017

from : http://update.ph

The President has just declared Martial Law, the ANC cable news has been reporting apparently repeatedly which I only paid attention to only now, at around 10am, and though a quick search of the government’s Official Gazette website has not yet yielded any official proclamation issued for this declaration.

First things first, people should not panic. From the 1987 Constitution, readers of this blog should be mindful of para. 4, section 18, ArticleVII which explicitly spells out that a state of martial law :

a) Does not suspend the operation of the Constitution, and the important thing to note here is that Filipino’s Bill of Rights there are NOT set aside, so there should be no warrantless arrests and unreasonable searches and seizures made as a result of this proclamation as the right of the people to be secure in their persons, houses, papers and effects are still in effect;

b) nor supplant the functioning of the civil courts or legislative assemblies, this means those who have cases in court should continue to go to the courts as scheduled as they continue to exist and the Congress and all the other legislative bodies in the local government units are still functioning and should continue in their regular conduct of business;

c) nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, this means that civilians like all of us in Mindanao would continue to go about our own affairs today and till the day this declaration is lifted as no military court or government agency will have the right to make decisions on what civilians can and cannot do;

d) nor automatically suspend the privilege of the writ, which refers to the writ of habeas corpus, which is the remedy for those who may be illegally picked up when military checkpoints may be set-up, so those who may be picked up as a result of this martial law declaration can still avail of this legal remedy but as per recent experience on this, those picked up should NEVER sign any waiver that may be put in front of them in case they may be arrested without warrant. Those picked up should NEVER sign and ask for their own lawyer and if a PAO lawyer may be provided to them, this lawyer should explain to them the consequences if they sign such waiver.

Under the same provision of the Constitution, what happens now are the following :

a) within 48 hours from his proclamation, though there may be debate when this countdown will start as it is not sure when the official proclamation was made, the President shall submit a report in person or in writing to Congress;

b) the Congress, voting jointly or by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation, which revocation shall not be set aside by the President.

c) Upon the President’s initiative, the Congress may, in the same manner, extend such proclamation for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it.

Any citizen may question the sufficiency of the factual basis of the proclamation of martial law direct to the Supreme Court and the Supreme Court must promulgate its decision within 30 days from filing.

For those who have experienced Martial Law, President Duterte’s assurance in the ANC news clip that it will be just like the Martial Law during the 70s is precisely the kind of statement that only fuels greater anxieties among the people.

People should also watch out for OA (over-acting, thus excessive or unnecessary) actions of the police and military in setting up checkpoints in key thoroughfares in Mindanao and perhaps they may be emboldened in being more intrusive and arrogant during these usual check-ups, so these should be resisted and they can only ask that the side-mirror be opened but they cannot actively search into the glove compartment nor ask for bags to be opened up. For me, my worry is my younger brother who has to return my vehicle from Cotabato City to General Santos City, hopefully he may be able to get here tomorrow and included here is a wish for him to travel safely tomorrow.


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Elpidio V. Peria
9 April 2017

S. Africa’s climate activists taking action related to their climate suit  against their government and a coal-fired power plant company

from : http://thegreentimes.co.za

A news article heralded one of the first climate change litigation efforts in South Africa whereas in India, a 9-year old girl sued the Government so it may speed up its climate change efforts, while in South Korea, a woman who is suffering from asthma along with her children, sued her government and China, so that the two countries will undertake common efforts to reduce the fine particulate dust resulting from the two country’s numerous cars and industries that exacerbate mainly air pollution in the two countries.

On 8 March 2017, the North Gauteng High Court handed down a landmark ruling in Earthlife Africa Johannesburg’s (ELA) case against the Minister of Environmental Affairs, the Department of Environmental Affairs (DEA), and Thabametsi Power Company (Pty) Limited.

The court said that Earthlife Africa (ELA) was correct in claiming that the Minister should have considered the new power station’s climate change impacts before deciding whether to authorise it.

The report also noted that no appeal has been lodged by any of the parties against the judgment, and the deadline for the lodging of an appeal has now expired, which makes such ruling, barring any other development, for all purposes, final.

In South Korea, Choi Yul, president of the Korean Green Foundation along with his attorney Ahn Kyung-jae, motivated five other individuals to lodge a joint lawsuit against Seoul and Beijing on Wednesday for physical and mental damages caused by the “fine dust” particles filling the air.

Each of the plaintiffs are demanding 3 million South Korean won ($2647) in compensation, but they say the money is only symbolic — what they really want to accomplish is to induce the two governments to reduce toxic smog, a result of too much dependency on carbon fuels and millions of cars.

In India, a 9-year old child, Ridhima Pandey, filed a petition with the National Green Tribunal (NGT), a special court for environment-related cases, asking the tribunal to direct the government “to take effective, science-based action to reduce and minimize the adverse impacts of climate change.”

These actions should encourage like-minded citizens all over the world to also take their own similar initiatives to spur their governments into action in addressing climate change.


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Designs Found in Cheerleader Uniforms are Copyrightable, says US Supreme Court

Elpidio V. Peria
2 April 2017

from ://fortune.com




The US Supreme Court recently held last 22 March 2017 that designs incorporated in cheerleading uniforms are copyrightable, making it now difficult for small entrepreneurs to just mimic these same designs and pass these designs off as their own, if they were not able to apply for copyright on them first.

Of all things that may be subjected to litigation, this case involved the lines, chevrons (a line or a shape in the form of a V or an inverted V, especially one on the sleeve of a uniform indicating rank or length of service- from http://www.google.com ) and colorful shapes on a uniform worn by cheerleaders, which was copied by a smaller company, in this case Star Athletica LLC, from that of a bigger company, Varsity Brands, Inc.

Writing for the majority, Justice Clarence Thomas, applied the text of the US Copyright law here, saying :

A feature incorporated in the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated. This test is satisfied here.

The US Supreme Court found the designs, lines and shapes have a distinct existence or is separable, even if they are placed in another two-dimensional medium, like a wall, for example, thus making them copyrightable.

While this seems straightforward, intellectual property law experts consulted by the fashion magazine Vogue said that while copyright law protects certain types of artistic and creative expressions, patent law protects innovations based on their usefulness and novelty. This case dealt with a tricky middle ground : copyright law can protect aesthetic features of a design for a useful article, but only if they are distinct enough from the article’s useful or functional aspect. The question then becomes how do we define what is useful and what is not? The expert said that this will only be clarified only later when this ruling is eventually applied in the cases that will follow it.

In a further analysis done while the case was pending in the US Supreme Court, Cornell University presented two contending views :

One, with public advocacy group Public Knowledge which said that copyrighting a useful article’s design features without a stringent inquiry into separability will stifle individual creativity, as individual consumers depend upon their ability to take existing products and adapt them. Strong copyright protection will dampen this creative energy and will negatively affect the economy. The group also pointed out that the fashion industry has been fine thus far without extended garment design feature protection and in fact demonstrates a “pirates paradox” where rampant copying facilitated creativity. Even other industries, like cuisine and comedy flourished without broad copyright protection. Law school professors cited by Public Knowledge also argue that allowing Varsity to copyright these designs will enable Varsity to have a monopoly since with copyright protection of its designs, only Varsity will be able to create cheerleader uniforms with such designs.

The other view is by the Council of Fashion Designers in America, Inc. (CFDA), which argues that broader copyright protection is necessary for the fashion industry to grow. They point out that advancing technology has allowed people to copy fashion designs at a higher rate with reduced costs, as a result, copyists can cut all of the costs that emerging designers often need to put into their business. CFDA maintains that these factors may contribute to a decrease in fashion innovation.

Now that the US Supreme Court has decided, Filipino lawyers would very easily invoke this in our local Philippine setting and our concern here should be on those tailoring shops that mimic the uniforms of famous NBA or PBA teams, even the numbers of famous players, like Michael Jordan’s number “23” which is found in many shirts of wannabe basketball players pounding the hardcourt, will these players and tailoring shops be stopped from doing what they are usually doing now? Most likely, it will be companies abroad, like in the US, who may have copyrighted these designs, who will stop these tailoring shops and players, Or these may spur entrepreneurial companies to start a copyright application frenzy to capitalize on Pinoy’s taste for foreign designs.

What about those unique features of festival attire in our year-long fiesta celebrations? Will they be copyrighted too? Perhaps the Department of Tourism should pre-emptively copyright them so that it belongs to all Filipinos and not to greedy entrepreneurial types who will only profit not from the creativity of others but may have the foresight to make money on these existing designs.

Or perhaps the Copyright Bureau of the Intellectual Property Office should just not follow this ruling and come up with a uniquely Filipino solution to this soon-to-be copyright conundrum in our side of the globalized intellectual property world.


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This US Supreme Court case may make illegal the buying and selling of computer printer toner refill

Elpidio V. Peria
26 March 2017

from : http://store.atlanticinkjet.com

A US Supreme Court case, Impression Products, Inc. v. Lexmark International, Inc,  may soon either extinguish or sustain the practice of using computer printer toner cartridge refill and considering the popularity of these types of refills here in the Philippines, this will surely have an impact on businesses that rely on the secondary market on refilled toner cartridges.

Last 21 March 2017, Impression Products, Inc., a US company engaged in the remanufacture of toner cartridges by acquiring used Lexmark toner cartridges, refurbishes them and sells these cartridges again in competition with new and refurbished cartridges sold by Lexmark, filed a petition for certiorari before the US Supreme Court as the federal appeals court ruled against Impression for its acts of reselling Lexmark toner cartridges.

The original cartridge manufacturing company, Lexmark International, Inc, would prefer that its customers return their empty cartridges to it for refurbishment and resale, rather than sell the cartridges to a remanufacturer. It offers its customers the option to purchase a “Return Program Cartridge” at a discount of roughly 20%, subject to a single use/no-resale restriction. These cartridges contain a restriction that “the buyer may not reuse the cartridge after the toner runs out and may not transfer it to anyone but Lexmark once it is used.”

The key question in this case is : is the patent over the toner cartridges exhausted once the cartridges are sold with a condition that constitutes a post-sale restriction, or to put it in other words, when does the rights of a patent holder over the patented product stop, at the point when it is sold, or can the patent holder still claim monopoly rights over the patented product provided the patent holder communicated to the buyer that such monopoly rights still remain because the patent holder said so?

` A key principle of patent law is the “first sale” doctrine or the doctrine of “exhaustion”, where the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. This is because the initial authorized sale of a patented item terminates all patent rights to that item. The unresolved item here is whether the principle of exhaustion will apply when the patent holder expressly communicated to the buyer that it is trying to restrict the further sale of the patented article.

This is a big issue since many Filipinos, or even in the US, depend on these refillers so that they may be able to keep up with the very high prices of these computer printer toner. If the patent owner wins this case, then the monopoly of the toner cartridge manufacturer becomes absolute it will often lead to abuse by way of lousy after-service or even atrociously high prices of toner cartridges.

How will the US Supreme Court decide? We will soon find out and will report on this here in this blog.


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4 Questions on General Santos City’s Draft Environment Code Chapter on EIA

Elpidio V. Peria
22 March 2017

Hon. Beth Bagonoc, Envt Cttee Chair, SP Gen.Santos City

from : http://spgensantos.ph


The Environment Committee of the Sangguniang Panlungsod of General Santos City, led by Hon. Beth Bagonoc, led the 23rd hearing of the Committee on the agenda item concerning the Environmental Impact Assessment or EIA Chapter of the draft Environment Code of General Santos City and the good Kagawad invited the Passionist Center-Justice, Peace and Integrity of Creation, Inc., a non-stock, non-profit organization among its invitees to the public hearing for the draft ordinance.

We have attached below in an Annex to this post, the draft Chapter, so that interested readers may be guided on the issues that we have raised during the public hearing, which may also serve as a documentation of the exchange and perhaps may also be useful for future reference if what we have suggested will be carried out, which is up to the Honorable legislators of the city, if they see there is a wisdom in doing so. The issues, packaged as questions, we raised today were :

1) What is the policy objective of the Sanggunian in coming up with this chapter on the EIA?

The question was asked so that it will be clear what is the purpose of the provisions laid out in the Chapter which reads suspiciously like a rehashed re-wording of what are already in existing laws on EIA, which the Chapter copiously cites.

In this seemingly repetitive re-reading of what’s already in our existing rules and regulations, what then will this chapter of EIA accomplish, just to say that existing rules on EIA apply or to carry out the policy objective of the City on matters relating to EIA in General Santos City’s history.

In our explanation, to see how the City may benefit whether there needs to be a further specification of the rules on EIA in the City, it may be useful to gather the experience of the City in previous environmental battles the City has had, like the policy fight in late 90s on whether to approve genetically-modified corn in the City, and this we failed to mention this morning, but is also relevant in the discussion, how did the City learn from its attempt to clarify whether the EIA for the coal-fired power plant that is now already operating in Kamanga, Maasim, has been approved and the way the proponents of the coal-fired power plants tried to, what some legislators then dubbed as a mis-direction (if it can be recalled, the Sanggunian then was told that the EIA was approved but this was approved in the DENR Central Office, but no copy can be given to those legislators who were asking for that document during a Sanggunian hearing) is some lesson that the City legislators may want inputted in the draft Chapter on EIA.

The point of this recall of the City’s history with EIA is to see what is the space for the city to come in and ask for a specific EIA for a project to which the city has some environmental concerns, does the city have to do it separately or the city only comes in when the other national agencies decide this is not needed but the city wishes to have it done separately. Answering this question will lead us to the next question, actually.

2) Will the EIA requirement of the City be an additional EIA requirement on top of what the DENR is already requiring under existing regulations ?

Depending on the policy objective of the draft Envi Code or the Chapter on EIA, it may be that the EIA requirement in this Chapter of the draft Envi Code may be in addition to the EIA that is already required by existing DENR rules. Or it may only come in during specific circumstances like when the national agencies EIA is not necessary and the city decides to do EIA in spite of that, for its own policy reasons. If it’s the latter, this has to be spelled out in the Chapter, which for now does not clearly appear in the current wording of the Chapter in our Annex below.

At this juncture during the hearing, we brought forward an opportunity where the city may innovate and lead the way forward in matters relating to environmental assessment, and this is to do instead a distinct and separate process called Strategic Environmental Assessment, which is similar in content but not in approach to an EIA and its focus is on reviewing existing policies of the city, like its investment ordinances, or even its implementing of its own ordinance on solid waste management, which, based on the updates of PC-JPIC on its partners in Calumpang this City, is not being implemented well, if all the smelly dumping sites of companies operating in Calumpang would be an indicator.

3) How will social acceptability be determined ?

During the hearing, there were some discussion on whether social acceptability should be a part of the Chapter on EIA, and while it was not denied by the resource person that it is a difficult thing to do, what we said is that there are various approaches on how a social acceptability of a project is done and in the Philippines, at least during my time working with NGOs, there are myriad ways to determine that like community juries, community consultations, including technology assessments, just to broaden the various approaches this is done, though ultimately the goal should be to determine accurate what is the sentiment of the affected communities about an activity to be subjected to EIA

4) What about the precautionary principle?

Finally, we pointed out that EIA is a tool to determine when action should be taken on an activity that may harm the environment and one of the principles that may help to make the EIA a useful process is to include the precautionary principle such that whenever there’s a potential harm to the environment in General Santos City, this is one way the Sanggunian can respond to the challenge.

The precautionary principle tells the City when an activity should be stopped if it appears that an activity is about to harm the environment, there are ways this can be done but this is a key principle that will make the EIA a useful chapter in the draft Environment Code of the City.




SECTION. 1. This Article shall be known as the “ENVIRONMENTAL IMPACT ASSESSMENT”.
SEC. 2.SCOPE OF EIA SYSTEM. The implementation of environmental impact assessment by local government units refer to the powers, duties and functions of the Municipal Mayor, City Mayor and Provincial Governor to adopt adequate measures to safeguard and conserve land, mineral, marine, forest and other resources, as provided under Sections 389(b)(9), 444(b)(3)(v), and 465(b)(3)(v) of RA 7160, Section 12, of the NIPAS Act or RA 7586; Section 17(b)(3)(iii) and Section 17(b)(4) to the provincial and city government, respectively; and RA 10654 or the Fisheries Code of the Philippines.
Subdivided into our (4) categories:
Category A: For Environmentally Critical projects (ECP’s) which will require an ECC.
Category B: For Environmentally Critical Areas (ECA’s) which will require and ECC.
Category C: Projects not falling under Category A or B intended to directly enhance the quality environmental problems. It only require a Project Description Report of which the EMB Office will issue a letter stating theat the project is within category C.
Category D: Artificial Reef restoration/deployment, Pollution Control Devices or facilities required on ECC condition, Pollution control devices or similar facilities intended to prevent emission or discharged beyond allowable limits, preventive of proactive measures against potential natural hazard (e.g. shore protection, embarkment, private dredging, seawall, etc.)
SEC. 3.GOVERNING LAWS. The pertinent laws governing environmental impact assessment are:
a.) Presidential Decree 1152, entitled “Consolidating the Philippine Environment Code”;
b.) RA 7160, otherwise known as the Local Government Code of 1991;
c.) Presidential Decree No. 1586 (Environmentally Critical Areas-ECAS: Areas frequently visited by natural calamities, Prime Agricultural Lands, Water bodies, Mangrove Areas and Coral Reefs, Areas declared Certificate of Ancestral Land Titles/Certificate of Ancestral Domain Certificate; Areas with Critical Slopes; Recharged Areas for Aquifers; Watershed Reserves and all protected areas)
d.) Environmental Critical Projects (ECPs): Heavy industries – metal industries, iron and steel mills, petroleum and petro-chemical industries including oil and gas and smelting plants; Resource Extractive Industries – Major mining and quarrying industries, forestry projects, fishery products.
e.) RA 7586 or “The National Integrated Protected Areas System Act), Sec. 12
f.) RA 6969 or “The Toxic and Hazardous Waste Law”

SEC. 4. OPERATIVE PRINCIPLES. The City government recognizes the need for an effective instrument for ensuring environmental soundness of agro-industrial and ecotourism projects thereby maintaining a rational and orderly balance between economic growth and community development in the city and, as such, hereby adopts the Environment Impact Statement (EIS) system provided under Presidential Decree No. 1586.
Specifically, the following basic process for ensuring environmental soundness of all development projects as identified under PD 1586 are hereby adopted:
a.) EIS Preparation and Approval. The stage in the EIS system wherein an environmental impact assessment (EIA) is undertaken and data are gathered using accepted scientific methods to clarify key issues and concerns, characterize the environmental setting of the project, predict the impact of the project on the setting, and measure the social acceptability of the project. The resulting EIA document will be reviewed by DENR EIA. The ECC may be granted under certain conditions and includes the implementation of an environment management plan.
The City mayor shall fully exercise his powers to ensure that a public hearing shall be conducted for all projects defined under PD 1586, as a condition precedent to ECC issuance.
b.) Scoping refers to the stage in the EIS system where information and assessment requirements are established to provide the proponent with a scope of work for the EIS.
c.) EIA Monitoring. There is hereby created a seven-member multipartite EIA Monitoring Team which shall be organized and headed by the Governor or his duly authorized representative and whose permanent members include one representative from DENR EMB 12, project operator/developer and two (2) on-call members from the private sectors determined by the City Mayor on a project-specific basis.

1) The team shall monitor compliance of project based on the Environmental Management Plans, conditions set forth in the ECC and permits issued by DENR-EMB 12;
2) Gather relevant information to determine cause of damage and respond to public complaints about the project; prepare, integrate and disseminate monitoring status reports; and undertake community information and education dissemination. Further, the team shall:
a.) Participate in scoping activities;
b.) Validate scoping sessions;
c.) Participate in public consultation and hearing;
d.) Conduct regular inventory of establishments, and
e.) Submit written monthly status report to the City Mayor
3) Serve as secretariat and assist EIA preparers

SEC. 6.CONDUCT OF SCOPING SESSIONS. The concerned agencies shall assist the EIA preparers in identifying the stakeholders that shall be involved in the scoping sessions.
SEC. 7. CONDUCT OF PUBLIC CONSULTATION AT THE BARANGAY LOCAL GOVERNMENT UNIT (BLGU). The Stakeholders and concerned agencies shall be invited for public consultation on the proposed project to be concurred by the Sangguniang Panlungsod.
SEC. 8.LAW ENFORCEMENT AND MONITORING. The MMT and the DENR shall work together to ensure the compliance of Environmental Compliance Certificate (ECC) and Environmental Management Plan (EMP) including annual inventory of existing establishments and projects within the City to ascertain whether these have complied with the EIA and ECC requirements.
SEC. 9. IEE COMPLIANCE FOR PROJECTS NOT COVERED BY THE EIA SYSTEM. All projects defined under PD 1586 which are proposed to be undertaken in the city , including those not required by national law to secure ECC and therefore not covered by the EIA System pursuant to PD 1586, shall be subject to an Initial Environment Examination (IEE), in addition to submission of additional environmental safeguards pursuant to DENR Administrative Order 37-96; PROVIDED, that the City Mayor shall issue a circular identifying those projects not covered by the EIA System which shall be the subject to IEE in accordance with this provision; PROVIDED FURTHER, that the City Mayor shall also submit his proposed measure for legislative enactment to the Sangguniang Panlungsod, including recommendations for sanctions, penalties, and /or charges for violation of this provision, within nine (9) months upon the effectivity of this Code.
SEC. 10.TRAINING. The members of the MMT shall be required to undergo training on the different aspects of monitoring work as prescribed by law.
SEC.11. ENVIRONMENT GUARANTEE FUND AND ENVIRONMENTAL MONITORING FUND. The MMT shall participate in the negotiation and review of the Memorandum of Agreement (MOA) between the project developed and concerned parties as prescribed by law for the establishment of an Environmental Guarantee Fund (EGF) and Environmental Monitoring Fund (EMF) for projects creating significant public risk.


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Digong Should Take the Hint on Labor Sector’s Rejection of His ENDO Policy

Elpidio V. Peria
19 March 2017

from : http//www.bulatlat.com

When all labor groups in the country from the conservative ones (TUCP, which calls it “loss-loss”) to the radical (KMU rejects it outright) raise their collective howl and the employers’ groups only issue tepid statements warning of job losses and the most telling here is the statement of an SM official, SM being one of the country’s largest mall operator and is seen as an active practitioner of “endo”, who said the new policy has no impact to their group, then something is seriously wrong with the recently-issued Department Order No. 174 of the Department of Labor and Employment which is supposed to stop the practice of “endo”, a term which describes the nature of short-term employment in the country which usually lasts for five months maximum and avoids all the mandatory benefits usually given to a regular employee.

We have compared the contents of Department Order No. 174 with its predecessor, Department Order No. 18-A issued in 2011, and we can confirm the labor groups are correct in saying the two government issuances are largely the same since the evil they have long wanted to stamp out, the contractualization of labor, has remained, no wonder there is not much serious objection on DO 174 from the employers’ groups, as they said they can largely live with it, which means in real terms, they can continue with what they were doing even after DO 174 goes into effect.

Take for example, their guiding principles, while DO 18-A talks about contracting and subcontracting arrangements as expressly allowed by law and are subject to regulations and explicitly stating that “labor-only” contracting shall be prohibited, DO 174 talks about non-permissible forms of contracting and subcontracting arrangements undermine the Constitutional and statutory right to security of tenure of workers. This statement about non-permissibility is legal gobbledygook or nonsense since what it means is that its opposite, the permissible forms of contracting and subcontracting arrangements will remain, and they are basically what DO 18-A talks about.

Going to the essence of the rules, both DO 18-A (in its sec. 6) and DO 174 (sec. 5) prohibit “labor-only” contracting, though as if to add intensity or magnification of the rules which are totally uncalled-for as they will have the same effect, thus they are all a charade which will only convince fools, DO 174 adds adjectives like “absolute” in the title of the section thus making it “absolute” prohibition while putting in the operative provision the word “totally”, thus making the enumeration of various labor-only contracting forms “totally” prohibited. What does the DOLE think about labor groups, “uto-uto”? There is a better Tagalog word for this : “ginagago” or to make pun of the President’s nickname on this, how about : “ginagagong”?

Anyway, enough of that wordplay, what this boils down to are the exceptions to the prohibitions and if we compare what DO 18-A and DO 174 are allowing employers to do, let’s list them down for our perusal. DO 18-A allows these kinds of contracting, when the following circumstances occur:

a) The contractor must be registered in accordance with these Rules and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

b) The contractor has substantial capital and/or investment; and

c) The Service Agreement ensures compliance with all the rights and benefits under Labor Laws.

What DO 174 allows as forms of labor contracting are the following :

a) The contractor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job or work on its own responsibility, according to its own manner and method;

b) The contractor has substantial capital to carry out the job farmed out by the principal on his account, manner and method, investment in the form of tools, equipment, machinery and supervision;

c) In performing the work farmed out, the contractor or subcontractor is free from the control and/or direction of the principal in all matters connected with the performance of the work except as to the result thereto; and

d) The Service Agreement ensures compliance with all the rights and benefits for all the employees of the contractor under the labor laws

Our observation is that DO 18-A and DO 174 practically allows the same contracting practices, the item (a) in DO 18-A is now item (a) and (c) in DO 174 and some parts of it are in item (b) of DO 174 and the item (b) in DO 18-A is the same item (b) in DO 174 and the former item (c) in DO 18-A is the same item (d) in DO 174, and in fact, in writing them, we merely did a copy-paste of what’s stated in the Service Agreement and there were just some minor innocuous additions in DO 174 which actually means the same thing.

What is the next step here ? It should not be difficult for President Duterte to throw this draft in the waste-basket and start all over again and our suggestion is to do away with any of the allowable contracting practices both permitted by DO 18-A and DO 174 that we have compared and found to be largely intact, which is what we discussed above.

Summing up, what this exercise has shown us is that it merely zeroed in on the nefarious practices on the contractualization practices of employers, and perhaps the labor groups were clear about it, they don’t want contractualization of labor, but our DOLE officials were just acting by force of habit and they brought to the fore the prohibition on labor-only contracting, which has long been prohibited by the Secretary of Labor back in 1997.


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