Explanation required, Mr. President

My position regarding what has become Republic Act No. 10175, the Cybercrime Prevention Act of 2012, has not changed since I first went over the Senate version (Senate Bill No. 2796) several months ago: I maintain that it is a deeply flawed law that will not be able to properly address the problems it was ostensibly designed for, including, but not limited to, libel, cyber-bullying, and cyber-prostitution. Of course, back in February, I was content merely to air my anxiety, because I was fairly optimistic that the ill-conceived bill would not prosper, such optimism—or maybe I should say, with the benefit of hindsight, naïveté—being largely rooted in my reluctance to entertain the notion that the denizens of officialdom would act, to use a time-honored phrase, like a bunch of drooling incompetents.

It seems opportune to raise yet again the important question of whether our leaders understand what goes on in cyberspace, even as they attempt to engage the wired middle and upper classes—certainly not the general public, in view of extant data on the level of Internet penetration, not to mention access to electricity, in the country—by establishing and using all sorts of online properties, such as web sites, blogs, and social media accounts.

The massive outcry against the anti-cybercrime law, which, as of this writing, includes four separate petitions filed with the Supreme Court by various groups, has found the apparatchiks of this administration scrambling to defend the decision of President Benigno S. Aquino III to sign it into law. For instance, at a press briefing yesterday, September 27, Presidential Spokesman Edwin Lacierda, urging critics to wait for the pertinent Implementing Rules and Regulations (IRR), said that “freedom of expression is not absolute”, and that the law “[attaches] responsibilities in cyberspace”—pronouncements that are not without merit and would be difficult to disagree with, but tend to come across as incongruous at the very least, considering that Lacierda, along with other Palace functionaries, has been known to happily heckle political opponents—transport strike organizers and participants, say, or former Chief Justice Renato Corona—using his Twitter account, and could more convincingly serve as an exemplar of irresponsible online behavior than the opposite, especially because, by virtue of his position, he is supposed to speak with the voice of the Chief Executive.

Similarly irresponsible, as well as disingenuous, are the arguments advanced by Presidential Communications Development and Strategic Planning Office (PCDSPO) Undersecretary Manuel L. Quezon III, who, in response to blogger Jon Limjap’s tweet that the law, presumably on account of its provisions on libel, could be used “to silence political critics online“, replied that Limjap’s “sweeping” statement “ignores the [C]onstitution and its guarantees“, adding that the Act contained nothing that “any columnist hasn’t had to live with since time immemorial“. I would have thought that the following patently obvious things need not be said: first, the Constitution will not prevent—and in fact allows—the litigious from threatening to file or actually filing lawsuits, as Quezon himself knows from experience, whatever the courts eventually decide; second, the majority of people online are not columnists and have had no journalistic training, though pretenders do proliferate; and third, just because a particular state of affairs has persisted “since time immemorial” is not a reason to maintain said state.

None of the foregoing is to advocate that a kind of exceptionalism be observed with reference to cyberspace and the various activities that go on it it, as The Philippine Star columnist Federico J. Pascual seems to believe, rather strangely, of those against the anti-cybercrime law. I do think that there is much that deserves to be regulated online, although that requires a separate discussion. The process of law-making, however, ought to be undertaken with intelligence, sensitivity, and no small amount of caution. Given the disturbing implications of the Act in its current form, a severe shortage of precisely the aforementioned qualities may well be afflicting Congress and Malacañang, and now time, energy, and taxpayer money must be spent, if not squandered, in the fight against a law that, as Cocoy Dayao has pointed out, could have been crafted “far, far better“, and would therefore have been a more efficient use of national resources.

It is interesting to note that, according to a recent report, Aquino did not exercise his veto power over the Act because the office of Executive Secretary Paquito Ochoa, Jr. prepared a legal memorandum recommending the law for signing. Perhaps Ochoa or Aquino might be prevailed upon to release the contents of this memorandum to the public,  in order that the rationale behind the approval of the Act by a President who has repeatedly asserted his commitment to freedom and transparency might be understood by the people it will affect—the so-called bosses in whose interests he claims to work, and to whom he now owes a clear explanation.

An anti-labor proclamation? (Updated)

Proclamation No. 1874-B [PDF], which declares September 7, 2009, the day of interment of Iglesia ni Cristo (INC) Executive Minister Ka Eraño “Erdy” G. Manalo, as a “special (non-working) day” seems little more than another demonstration of presidential caprice—no mean thing, of course, but something that the public has had to become inured to after years of “holiday economics”—until one arrives at the antepenultimate paragraph:

However, considering our national economic interests, the Business Process Outsourcing (BPO) and Electronics sectors are exempt from the purview of this Proclamation.

This means that employees in these sectors are not entitled to the additional pay that they would normally receive for working during a special non-working day, as provided for by the Labor Code of the Philippines. (Nor will they receive any additional pay on September 21, Eid’l Fitr, per Press Secretary Cerge Remonde, though the relevant proclamation is not yet available as of this writing. Update as of 9 September: Philippine Daily Inquirer quotes Executive Secretary Eduardo Ermita as saying, “So far there are no exemptions [for Eid’l Fitr]“.)

With regard to compensation for work rendered on rest days, Sundays, and special holidays, Article 93 of the Code states that:

Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage.

As for work rendered on regular holidays, Article 94 of the Code states that:

The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate

These same articles are further clarified by Department of Labor and Employment (DOLE) Memorandum Circular No. 1, which was signed on 8 March 2004. Below is a copy of the circular that I have uploaded to Scribd:

Among other things, terms like “Special Non-Working Day”, “Special Public Holiday”, “Special National Holiday”, “Nationwide Special Days” (see Executive Order No. 297)—and,  presumably, “Nationwide Special Holidays” (see Republic Act Nos. 9177 and 9492)—have been subsumed under the general category of “special days”, work rendered during which entitles the employee to additional compensation in accordance with particular rules. (The JLP Law Blog has an interesting post on the applicability of these rules to employees who are paid daily versus employees who are paid monthly.) “Special days” are different from “special working holidays”. Work rendered during a special working holiday does not entitle the employee to compensation above his/her basic rate.

None of the aforementioned documents specifically allow the President to declare certain sectors exempt from paying additional compensation to employees who work during holidays, regular or special, “national economic interests” notwithstanding. In fact, the only entities explicitly exempted from paying additional compensation for work rendered on regular–not special–holidays are retail and service establishments that employ fewer than ten workers.

It seems appropriate, then, to raise the following questions:

  1. Will the BPO and electronics sectors henceforth continue to be exempt from the purview of proclamations declaring special holidays? Does this exemption set a precedent?
  2. The Department of Trade and Industry (DTI) reportedly cited the “24/7” nature of the BPO and electronics sectors in requesting an exemption. Does this same argument apply to hospitals? To convenience stores and fast food restaurants that are open 24 hours?
  3. What makes a sector so vital to “national economic interests” that it must be exempted from clearly established labor laws?
  4. How is this exemption not an unfair labor practice, discriminating as it does against workers in the BPO and electronics sectors?
  5. Was the exemption of the BPO and electronics sectors lawful in the first place? Or, in signing Proclamation 1874-B, did the President authorize an illegal, anti-labor act?