POSITION PAPER
[Re: Senate Bill No. 1909 ]




Presented to the

SENATE COMMITTEE ON ECONOMIC AFFAIRS



By:

UNION OF LEGITIMATE SERVICE CONTRACTING COOPERATIVES (ULSCC)






9 October 2018




The growing concern over the inability of the domestic players in the construction industry to fulfill and satisfy the present demands thereof has led the Senate to consider the liberalization of the entry of the foreign contractors into the industry ; thus, the introduction of the Senate Bill No. 1909.

The Union of Legitimate Service Contracting Cooperatives (ULSCC)  represents herein its nineteen (19) active and bona fide member-cooperatives, which are engaged in the legitimate job contracting business, many of whom are in the field of construction, with an aggregate membership of not less than 200,000 nationwide.  At present, ULSCC’s member-cooperatives are adversely affected by what it considers to be an unfair treatment under the existing law and regulations governing the construction industry and they likewise stand to be directly affected by the proposed legislative measure. In view thereof, the ULSCC, on behalf of its member-cooperatives, hereby presents its position on the proposed legislative act, expressed as follows:  


I. The proposed legislative measure should contain a provision expressly granting exemption from the requirement of PCAB  license to those DOLE registered cooperatives which provide legitimate job contracting services to principals already issued with PCAB license.
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The existing legitimate job contracting cooperatives providing services to their respective clients in the field of construction are already subject to the stringent regulations of both the Cooperative Development Authority (CDA) and the Department of Labor and Employment (DOLE).  As legitimate job contractors, they are registered either under the DOLE’s Department Order No. 18-A, Series of 2011 , or under the new Department Order No. 174, Series of 2017 , and are likewise governed by Department Order No. 19-93 .  Whether these cooperatives perform core or peripheral activities , the requirement of a PCAB License becomes superfluous because their principals, which are usually big construction companies, are already licensed by the PCAB.

The performance and outputs of the job-contracting cooperatives are subject to the close monitoring and inspection by their principals who have to make sure that these are compliant with the industry standards and best practices; otherwise, both their license and reputation shall be put in jeopardy.  Also, these job contracting cooperatives are also subject to the regular assessment by the DOLE, not only on Labor Standards and Work Arrangement, but also on Occupational Safety and Health Standards.  All these, taken together, ensure the safety of the public, which is the primary purpose of licensing, and at the same time, contribute to the orderly growth and development of the construction industry, through the abundant supply of skilled manpower organized and trained through the medium of the workers’ cooperatives engaged in legitimate job contracting, thereby upgrading the capability of the licensed contractors being served by them.   The ULSCC therefore posits that the legitimate job contracting cooperatives with DOLE Certificate of Registration, be exempt from the requirement of PCAB License, subject however to their compliance with the guidelines set by the pertinent provisions of the Labor Code of the Philippines, D.O. No. 174, D.O. No. 19-93 and other applicable laws, rules and regulations.


II. The proposed legislative measure should also contain a provision expressly allowing the cooperatives to engage in the construction business and authorizing the issuance to them of PCAB License without requiring them to convert into a corporation, as opposed to the present policy of the PCAB, which only allows the issuance of a special license (with very limited scope) to cooperatives.
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Many of the legitimate job contracting cooperatives now have the capacity to engage in the construction business as full-fledged contractors.  The problem is that the PCAB has effectively restricted their entry into the industry through the issuance of its Board Resolution No. 636, Series of 2012, which requires the cooperative to incorporate first before it may apply for PCAB license. It is respectfully submitted that the said Board Resolution constitutes an invalid exercise of legislative power in the guise of regulation.  The same is also oppressive, prohibitory and in restraint of trade. However, while judicial remedies are available to challenge the validity of such Board Resolution, it is well-within the power of the legislative branch of the government to once and for all set the rule with clarity by expressly and unequivocally affording the cooperatives the equal opportunity to engage in the business of construction as full-fledged contractors.

No less than the 1987 Constitution provides that:

“Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the under-privileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.”

“Section 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.”

Also, Republic Act No. 9520  provides that:

"ART. 2. Declaration of Policy.- It is the declared policy of the State to foster the creation and growth of cooperatives as a practical vehicle for promoting self-reliance and harnessing people power towards the attainment of economic development and social justice. The State shall encourage the private sector to undertake the actual formation and organization of cooperatives and shall create an atmosphere that is conducive to the growth and development of these cooperatives.

"Toward this end, the Government and all its branches, subdivisions, instrumentalities and agencies shall ensure the provision of technical guidance, financial assistance and other services to enable said cooperatives to develop into viable and responsive economic enterprises and thereby bring about a strong cooperative movement that is free from any conditions that might infringe upon the autonomy or organizational integrity of cooperatives.

"Further, the State recognizes the principle of subsidiarity under which the cooperative sector will initiate and regulate within its own ranks the promotion and organization, training and research, audit and support services relative to cooperatives with government assistance where necessary.”

There is absolutely nothing in the law which prohibits the cooperatives from engaging in the business of construction.  On the contrary, R.A. No. 9520 expressly allows the creation of service cooperatives, workers cooperatives and such other cooperatives as may be determined by the CDA.  It provides:


"ART. 23. Type and Categories of Cooperatives. – (1) Types of Cooperatives – Cooperatives may fall under any of the following types:

xxxxx xxxxx xxxxx

"(e) Service Cooperative is one which engages in medical and dental care, hospitalization, transportation, insurance, housing, labor, electric light and power, communication, professional and other services;

"(f) Multipurpose Cooperative is one which combines two (2) or more of the business activities of these different types of cooperatives;
xxxxx xxxxx xxxxx

"(t) Workers Cooperative is one organized by workers, including the self-employed, who are at same time the members and owners of the enterprise. Its principal purpose is to provide employment and business opportunities to its members and manage it in accordance with cooperative principles; and

"(u) Other types of cooperative as may be determined by the Authority.”

The State, consistent with the declared policy under the 1987 Constitution which is reiterated under R.A. No. 9520, must assist in the promotion, growth and development of the cooperatives and provide them with a favorable business climate through the passage of laws that are not contradictory to such avowed policy.

As a matter of adherence to legislative consistency and harmony, the proposed amendment to R.A. No. 4566 must likewise be in accord with Republic Act No. 10667 , which provides in its declaration of policy that:

“Section 2. Declaration of Policy. – The efficiency of market competition as a mechanism for allocating goods and services is a generally accepted precept. The State recognizes that past measures undertaken to liberalize key sectors in the economy need to be reinforced by measures that safeguard competitive conditions. The State also recognizes that the provision of equal opportunities to all promotes entrepreneurial spirit, encourages private investments, facilitates technology development and transfer and enhances resource productivity. Unencumbered market competition also serves the interest of consumers by allowing them to exercise their right of choice over goods and services offered in the market.

Pursuant to the constitutional goals for the national economy to attain a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged and the constitutional mandate that the State shall regulate or prohibit monopolies when the public interest so requires and that no combinations in restraint of trade or unfair competition shall be allowed, the State shall:

(a) Enhance economic efficiency and promote free and fair competition in trade, industry and all commercial economic activities, as well as establish a National Competition Policy to be implemented by the Government of the Republic of the Philippines and all of its political agencies as a whole;

(b) Prevent economic concentration which will control the production, distribution, trade, or industry that will unduly stifle competition, lessen, manipulate or constrict the discipline of free markets; and

(c) Penalize all forms of anti-competitive agreements, abuse of dominant position and anti-competitive mergers and acquisitions, with the objective of protecting consumer welfare and advancing domestic and international trade and economic development.”

A law that allows other juridical persons to engage in the construction business, but prohibits the cooperatives therefrom for no plausible reason and without a valid classification, is repugnant to the Constitutional right of the cooperatives to the equal protection of the law.  The Supreme Court has intoned:

“Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. The equal protection of the laws is a pledge of the protection of equal laws. It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.”  

It will not only be inconsistent with the nationalistic ideals enshrined in our fundamental law, but it will also be unwise and ridiculously ironic for the State to tap the foreign contractors to fill-in the gap in the construction industry, when the cooperative sector which has manifested readiness and capability to engage in such industry is being prevented from doing so.  If the intention is to promote competition in the industry, the cooperatives must be afforded such equal opportunity and privilege.





Respectfully submitted:




UNION OF LEGITIMATE SERVICE CONTRACTING COOPERATIVES (ULSCC)

ON DEFENDING AN ACCUSED [Are lawyers liars?]

I have been asked for several times, “Aren’t lawyers liars? They defend an accused in court even when they know that the accused committed the crime.” Well, defending an accused is not tantamount to lying. It is a right safeguarded no less than by the fundamental law of the land.  The accuser, the State or the People, has all the resources at its disposal to establish the guilt of the accused. The accused has only his/her lawyer to defend him/her.

I do not say that all the clients whom I represent are innocent. What I say is that his/her innocence is presumed.  No matter what the accused has done, he/she is not legally guilty until a prosecutor offers enough evidence to persuade a judge to render a judgment of conviction. By our legal standard, proof of guilt beyond reasonable doubt is required in criminal cases. It means moral certitude.

Not only that. Yes, the accused might have committed the act/s as charged, but it does not end there. We need to make sure that a judgment is in accord with all the attending circumstances and that the appropriate penalty is imposed. What if there is a justifying circumstance, such as self-defense? How about exempting or mitigating circumstances or other circumstances that would affect the criminal liability? Even an incomplete self-defense can lower the penalty by a degree and that matters a lot. It can downgrade a crime from murder to homicide and lower its penalty as what has happened in the recently decided case that I handled. Because of that, my client is now free. A successful defense does not always mean acquittal.

Lawyers are duty-bound to defend their client, regardless of their opinion on their guilt or innocence. Section 20 (i), Rule 138 of the Revised Rules of Court states that “(i)n defense of a person accused of a crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.” A similar mandate is found under the Code of Professional Responsibility.

On Extrajudicial Confession

The news item says: "With this, La Viña said there is no need to prove Duterte’s remark to the International Criminal Court because there is an admission."  The esteemed Dean made the same remark in the context of impeachment.

But the Supreme Court did say this:

"And according to Section 3, Rule 133 of the Rules of Court:

Extrajudicial confession, not sufficient ground for conviction.—An extrajudicial confession made by an The news item says: "With this, La Viña said there is no need to prove Duterte’s remark to the International Criminal Court because there is an admission."

CLEMENTE MAGTOTO, petitioner, vs. HON. MIGUEL M. MANGUERA, Judge of the Court of First Instance (Branch II) of Occidental Mindoro, The PEOPLE OF THE PHILIPPINES, IGNACIO CALARA, JR., and LOURDES CALARA, respondents. [G.R. Nos. L-37201-02 March 3, 1975]

With all due respect, Dean La Viña might have been referring to a judicial admission under Section 4, Rule 129 of the Rules of Court, which states:

“SECTION 4. Judicial Admissions.An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.”

But Rule 116 is even explicit in that the prosecution is still required to present evidence, thus:

“Section 3. Plea of guilty to capital offense; reception of evidence. — When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf. (3a)”, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti."

PROCLAMATION NO. 572 DID NOT REVOKE PROCLAMATION NO. 75

On the Amnesty and Revocation
[Stripped of Partisan Considerations]

The factual backdrop:

1) Proclamation No. 572 declared that “[t]he grant of amnesty to former LTSG Antonio Trillanes under Proclamation No. 75 is declared void ab initio because he did not comply with the minimum requirements to qualify under the Amnesty Proclamation.”

2) Proclamation No. 572 further directed the DOJ and AFP Court  Martial to pursue all criminal and administrative cases filed against Sen. Trillanes in relation to the Oakwood Mutiny and the Manila Peninsula Incident.

3) Proclamation No. 572 ordered the AFP and the PNP to employ all lawful means to apprehend Sen. Trillanes so that he can be recommitted to the detention facility where he had been incarcerated for him to stand trial for the crimes he is charged with.

It has been argued that:

1.) Amnesty already granted cannot be revoked because it has already obliterated not only the criminal liability but the crime itself.
2.) The revocation of amnesty, affecting only an individual, violates the Bill of Rights, particularly, the right to the equal protection of the law.
3.) The revocation of the amnesty violates the Doctrine of Separation of Powers, as the President has overstepped into the domain of the courts, and has ignored the required concurrence of the Congress, similar to that when it was granted.
4.) The revocation of the amnesty violates the axiomatic rule on finality of judgments, considering that both the rebellion and coup d’etat cases were already dismissed long time ago.

I offer some points to ponder on:

 That an amnesty obliterates the previous crime or offense committed by the grantee, as if no such crime or offense has been committed.

 That an amnesty issued via a Presidential Proclamation, duly concurred in by Congress, cannot and should not be revoked as it will defeat the purpose of the grant.

 That the act of receiving and processing administratively the applications for amnesty can be delegated by the Chief Executive.

 The contentious issue that the approval of such application is ultimately and exclusively lodged with the President, and the President alone, being an act of State.

 That while a person may have been qualified for such an amnesty, he/she may however refuse to be covered thereby.  Meaning, the issuance of Proclamation No. 75 did not automatically grant amnesty to Sen. Trillanes.

 That Proclamation No. 75 (which granted the amnesty) was issued to cover not an individual but a group of persons; needless to state, it was not issued to grant amnesty to Sen. Trillanes alone.

 The contention that the concurrence of Congress pertained only to the proclamation itself, not to the individual application and approval thereof pursuant to the amnesty proclamation.

 The contention that Proclamation No. 572 was issued not to revoke Proclamation No. 75; as a matter of fact, Proclamation No. 572 was issued on the basis of Proclamation No. 75, even citing the requirements and procedure set therein.

 That trial courts consider not only the issue of the constitutionality of Proclamation No. 572, but also the factual issues of (a) whether or not Sen. Trillanes actually filed his application and (b) whether or not he admitted his guilt.  The court trying his rebellion case already issued an arrest warrant (although he immediately posted bail), while the other court trying his coup d’etat case has set the DOJ’s motion for the reception of evidence on both issues.