The Anti-Dummy Law prohibits the employment of aliens in entities that own or control a right, franchise, privilege, property or business whose exercise or enjoyment is reserved by law only to Filipinos or to corporations whose capital should at least be 60-percent Filipino-owned.
Under the Philippine Constitution, mass media enterprises (which includes cable television entities) can be owned or managed only by Filipinos or by corporations wholly owned or managed by them.
One of these nationalized businesses is the telecommunications industry. So why are foreigners being hired in both the cable industry and the telecom sector as "consultants" when it is no secret that they perform functions other than consulting and in many cases perform functions that are indispensable to the business?
One cable TV company, for instance, has hired a foreigner as chief consultant when he practically manages the business. A major telco has a British national as head financial adviser and everybody in that company knows that anything relating to financial matters has to get his office’s approval. Another telco also has an alien as chief adviser and in many of the press releases of this company, this alien often acts as spokesperson. One of the largest mobile phone service entities also has a foreigner as chief financial adviser and his hiring is being questioned by many officials of this firm.
The Secretary of Justice has rendered an opinion that aliens may be employed in entities engaged in nationalized businesses where the DOJ Secretary authorizes the employment of technical personnel or where these aliens are elected members of the board of directors or governing body of corporations in proportion to their allowable participation in the capital of such entities.
The Labor Code likewise states that these non-resident aliens may be issued an employment permit only after a determination has been made as to the non-availability of a person in the Philippines who is competent, able, and willing to perform the services for which the alien is desired. To hire these aliens is an insult to the capabilities of Filipinos.
According to Santiago, the maximum P25,000 a day penalty under CA 146 or the Public Services Act is already outmoded and many telcos would rather pay the penalty and ignore the NTC rather than to comply.
NTC’s common carriers accreditation department chief Edgar Cabarrios, during yesterday’s public hearing in Congress, has expressed support for the measure. According to him, while the commission can impose a fine or suspend or revoke the authority of these telcos, they hesitate to impose the latter since it would penalize not only the telcos but also the subscriber.
Telcos however are expected to make sure that this bill does not see the light of day. Smart Communications legal counsel Roger Quevedo, in a telephone conservation, said this bill is unconstitutional since it is an undue delegation of legislative powers.
He said that an administrative office exercising quasi-judicial functions like the NTC cannot just be authorized to impose such an excessive penalty. The Constitution itself provides that excessive fines shall not be imposed and Quevedo says it is very clear that P10 million a day is excessive.
The Department of Justice has already rendered a decision that Nextel Communications Inc. has not violated the constitutional limit on foreign equity (up to 40 percent) required of telecommunication companies.
But the committee would rather disregard the DOJ opinion and instead insist that Nextel (now Next Mobile) has violated this limitation, based on the sole complaint of Antonio Urera, former Nextel CEO, who has engaged in forum shopping because his demand for millions of dollars in additional retirement or separation benefits has been denied and whose intentions therefore are far from being noble. No less than the courts have adjudged him as engaging in forum shopping on the matter.
As a taxpayer, we can’t help but be dismayed by the way some of our legislators are abusing their privilege to conduct congressional inquiries on the pretext that these are being made in aid of legislation. How many inquiries have been made and have been concluded without a bill being filed? Aren’t there more important things to deal with than to harp on an issue that is clearly moot and academic?
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