COA: BI lost P869 million in potential revenue due to confusion over Duterte’s orders
By Dane Angelo M. Enerio
The Bureau of Immigration (BI) in 2017 lost around P869 million of potential revenue from express lane fees due to confusion with a previous veto message by President Rodrigo R. Duterte, according to the Commission on Audit (COA).
The express lane service charges foreigners P500 for faster processing of applications, the COA explained in their annual audit report of the BI.
Mr. Duterte for fiscal year 2017 vetoed the practice of depositing the collected fees to the BI’s General Fund and said the funds should all go instead to the National Treasury. COA however, pointed out the BI completely stopped collecting express lane fees following the President’s veto message.
COA noted express lane collections for 2017 amounted to P568,519,310.92, less than half of the previous year’s P1,437,754,431.63.
“The team believes that it is only the use of express lane charges collected that was vetoed by the President and not the collection from express lane charges inasmuch as the veto message also provides that, ‘the collected fees from the express lane charges should now be deposited as income of the General Fund,'” the COA auditors said.
According to the report, “[t]he termination of the said collections resulted in the loss of income on the part of the government that could have been utilized for the improvement of the economy.”
COA recommended in their report for the BI to submit an explanation for stopping the collection and for non-compliance with Mr. Duterte’s veto message.
DoF ‘not surprised’ by rejection of auction for 3rd-player selection
THE DEPARTMENT of Finance (DoF) said it will await the formal report from a public consultation that appeared to reject its preferred method of selecting the new entrant to the telecommunications industry, though the department’s head said the rejection came as “no surprise.”
“Why should anyone reject something offered for free?” Finance Secretary Carlos G. Dominguez III told reporters in a mobile phone message, referring to the selection method preferred by participants at the consultation, which is known as highest committed level of service (HCLoS).
Mr. Dominguez was referring a feature of the HCLoS method of selection, which will permit an applicant to become the so-called “third player” in the telecommunications industry without paying for frequency spectrum. Winning under an HCLoS selection process involves scoring the highest under a defined points system based on service commitments, broadband speed, and investment levels over five years.
Mr. Dominguez prefers an auction of frequency spectrum. An auction, he has argued, would ensure that the government gets a fair return for allowing a private entity to use the frequencies, a government asset which the department values in the billions of pesos.
The DoF sits on the committee that is deciding the third player selection process, and its preference for an auction has put it at odds with the Department of Information and Communications Technology (DICT), which favors HCLoS.
The DICT said last week that it has the sole responsibility to decide which mode of selection to adopt regardless of the DoF’s position.
Telecommunications firms will pay more under an auction, pressuring their returns and making entering the market as a third player less financially attractive. Consumer groups have also noted that the incumbent telcos paid nothing for their frequency, which could be disadvantageous to a third player if it is made to pay.
Asked what the next move might be, Mr. Dominguez said: “The issues that have to be resolved in the telecom industry are: availability of frequency for new players, access to the government-owned dark fiber, interconnection charges, access to telecom towers. Unless these are resolved, how can a third player compete effectively?”
Dark fiber refers to a fiber-optic network that is not used for traditional telecommunications applications. An example of dark fiber is the network operated by the National Grid Corp. of the Philippines (NGCP).
The DoF, DICT, Office of the Executive Secretary, and the National Security Adviser met in May to work out selection issues for the third player, which is being positioned as a competitor to the incumbents PLDT, Inc. and Globe Telecom, Inc.
The DoF-backed draft of the terms of reference requires a minimum bid of P36.58 billion, which would serve as the spectrum usage fee.
The DICT has set a target of September or early October for selecting a third player. — Elijah Joseph C. Tubayan
Indonesia consul calls for shorter, more direct trade routes
DAVAO CITY — Trade between the Philippines and Indonesia has been steadily growing, but most of the cargo traffic still moves between Luzon and Java, which is costlier than more direct routes originating from Mindanao, according to Indonesian Consul General Berlian Napitupulu.
According to the Philippine Statistics Authority, the value of trade between the two countries was nearly $4 billion in 2015, more than $5 billion in 2016, and over P7 billion in 2017.
Indonesia has moved up from the Philippine’s 11th top trading partner in 2015 to 9th last year.
The Davao-based Mr. Napitupulu, however, said, “This is not driven by our neighboring islands, which is Mindanao from the Philippine side and Sulawesi or Kalimantan from the Indonesian side.”
He added that some Indonesian products that reach the Philippines even pass through other countries, driving the cost higher.
If they are directly brought to the Philippines, he added, prices will be significantly lower.
But making a push for the shortest route between the neighbors has been a challenge, with the Davao-General Santos and Bitung roll-on, roll-off (RoRo) link, launched in April last year, currently on hold due to lack of demand.
“The RoRo cuts dramatically the travel time and distance between Davao City and Bitung from two to three weeks to only two days. We should make use of this strategic sea route,” he said during the recent Indonesian Food and Beverage Expo 2018 held in Davao City.
The Indonesian consul said the main goal now is to urge the business sectors of both sides to identify consolidators for their products that could be loaded to the RoRo service.
“We must have a sustainable cooperation,” said Mr. Napitupulu, adding that he is optimistic that this year’s expo will bring about more business partnerships and transactions.
“Personally, I can say that it was one of our successful business matching… they are happy, particularly the coffee industry which met with partners. These companies are very big such as Indocaffe, the third largest coffee maker in Indonesia,” he said.
At least 170 businessmen from Davao City and Indonesia participated in the business matching exercise, which was conducted with support from the regional office of the Department of Trade and Industry, Mindanao Development Authority (MinDA), and Davao City Chamber of Commerce and Industry, Inc. (DCCCII).
Secretary Datu Abul Khayr D. Alonto, the MinDA chair, said in his speech during the expo’s opening that the event is a testament to the growing and potentially stronger ties between the two nations.
“And what better way to demonstrate this deep bond but through sharing food and beverages? We all know that the most profound and engaging conversations always take off with something to eat and drink,” Mr. Alonto said.
He added that the expo also served as a venue for smallholder farmers and entrepreneurs from both countries to learn best practices from each other and explore partnerships.
DCCCII President Arturo M. Milan said the event was “a great way of strengthening bilateral ties… through expanding trade and commerce.” — Maya M. Padillo with a report from Carmelito Q. Francisco
IPOPHL seeks exemption from application deadlines
THE patent office is seeking an exemption from document-processing deadlines prescribed by the Ease of Doing Business (EoDB) Law, noting the complexity of the patent evaluation process.
Intellectual Property Office of the Philippines (IPOPHL) Deputy Director-General Teodoro C. Pascua said a single application represents “a gargantuan accumulation of data” that requires a quasi-judicial process to be examined thoroughly.
“The process is totally different from just a simple transaction, a complex one, or even a highly technical one,” Mr. Pascua said during a briefing last week in Makati City.
Republic Act No. 11032 or the Ease of Doing Business and Efficient Government Service Delivery Act of 2018 requires that all applications or requests should be acted upon by government agencies within three working days, for “simple” transactions and seven working days for “complex” ones.
For “highly technical” transactions or requests “involving activities which pose danger to public health, public safety, public morals [and] public policy,” the prescribed processing time should not exceed 20 working days.
IPOPHL Director-General Josephine R. Santiago said the fastest it has taken the office to approve a patent was two years.
Asked what will happen if IPOPHL does not meet the law’s deadlines, Mr. Pascua said it will have no choice but to make a decision.
“We approve or deny it. After 20 days, deny… we will not do our function anymore,” he added.
Under the law, any application that is not acted upon is deemed automatically approved.
But such scenario is what the IPOPHL is seeking to avoid.
“We don’t want to do that,” Ms. Santiago said.
Officials that fail to meet the deadlines face a six-month suspension on first offense. A second offense carries a penalty of one to six years’ imprisonment with a fine of at least P500,000, termination, perpetual disqualification from public office and forfeiture of retirement benefits.
Ms. Santiago said the agency has made several proposals to resolve the issue, including a proposal that gives IPOPHL “flexibility” in performing its duties and allows it to comply with international treaties, which have their own timeline for the review of patent and trademark applications.
The agency, along with others, is going through consultations with the Department of Trade and Industry.
Trade Secretary Ramon M. Lopez said there is an initial draft of the EoDB law’s implementing rules and regulations, due for release by September.
“Agencies will be enjoined to re-engineer and streamline their processes to meet the requirements of the EoDB,” Mr. Lopez said in a mobile message yesterday. — Janna C. Lim
Miners fear investment opportunities slipping away
THE Chamber of Mines of the Philippines (CoMP) said that the delay in formulating mining policy has caused the Philippines to miss out on potential investment.
CoMP Executive Director Ronald S. Recidoro told reporters on Monday during the launching of Philippine-Extractive Industries Transparency Initiative’s (PH-EITI) fourth road show in Manila that the delay has been “very disconcerting” with investors already leaving the Philippines.
“If we keep delaying… we will be behind the curve, we will miss opportunities,” he added.
“There’s only a limited pool of quality investment dollars out there. If (investors) decide to sink it elsewhere, goodbye to that. The only ones that will remain for us are fly-by-night, high-risk investors who are willing to take shortcuts. That is not the ideal situation.”
Since the signing of the moratorium on exploration activities almost 10 years ago, the mining industry is already lagging behind in terms of exploration work and investments. Gestation period starting from exploration to actual operations usually takes 15 years.
The Philippines is one of the world’s top nickel ore producers. While an oversupply of steel is dampening demand for nickel, Mr. Recidoro said there may be an opportunity from the emergence of the electric car industry.
Mr. Recidoro added that the Philippines should keep tabs on Indonesia, another top source for nickel ore.
After partially lifting a moratorium on the direct export of ore last year, Indonesia is slowly gaining strength and attracting investors back.
The Department of Environment and Natural Resources (DENR) has since lifted two moratoriums on exploration activity and the processing of small-scale mining applications.
“For us to remain competitive, we need to find new sources for these minerals as they get depleted,” Mr. Recidoro said.
“We’re always behind the curve in this instance. We cannot take advantage of the price increases because all our production has already been taken up and their prices are already hedged for sale.”
The DENR has yet to sign an administrative order on limiting the area of land which can be mined at any one time.
Mr. Recidoro added that the industry does not mind delays to the mining audit as long as the process is thorough.
“We’d rather get the audit right than get it sooner. So we are actually thankful to the [Mining Industry Coordinating Council’s] audit teams because they seem to be doing a very thorough job of looking into mining operations,” he added.
“We can wait because how they’re doing it is more professional, more technical.” — Anna Gabriela A. Mogato
ERC fines Samar, Laguna power co-ops
THE Energy Regulatory Commission (ERC) has fined electric cooperatives in Samar and Laguna for failing to remit on time their collected feed-in tariff allowance (FiT-All) to state company National Transmission Corp. (TransCo), the administrator of the funds.
In its decision, the commission fined Samar I Electric Cooperative, Inc. (Samelco I) and First Laguna Electric Cooperative, Inc. (Fleco) P100,000 each for violating Sec. 2.2.7.1. of ERC Resolution No. 24, Series of 2013, which adopted the guidelines on the collection of the FiT-All and the disbursement of the FiT-All fund.
The ERC had issued a show-cause order to the two electric cooperatives that was prompted by a complaint from TransCo on April 20, 2015 after the first implementation of the FiT-All’s remittance to the FiT-All fund.
“The Commission finds the explanation of [Samelco I and Fleco] unmeritorious,” the ERC said in its decision dated May 8, 2018 and docketed earlier this month.
The FiT-All is a uniform charge applied to the kilowatt-hours billed to consumers who are supplied with electricity through the country’s power distribution or transmission network.
The uniform charge is paid to developers of renewable energy power plants. The FiT-All mechanism aims to jumpstart the development of new power sources such as wind, run-of-river hydropower, solar and biomass plants.
TransCo’s letter to the ERC prompted the commission to issue a show-cause order to distribution utilities — including Samelco I and Fleco — for their failure to comply with an order provisionally approving the collection of a FiT-All of P0.0406 per kilowatt-hour starting in the January 2015 billing of all on-grid electricity consumers.
On June 25, 2015, TransCo submitted to the ERC a summary of actual implementation dates of the FiT-All collection agents. The company also prescribed the submission of reports on energy sales and FiT-All receivables, collection and remittance monitoring.
TransCo said it had reached out to the collection agents for them to comply, but despite its efforts, they did not respond.
On Sept. 29, 2015, the ERC issued a show-cause order directing Samelco I and Fleco to submit within 15 days from receipt, their explanation under oath on why no administrative penalty should be imposed on them, and/or criminal action against their directors and officers.
In their explanation, the electric cooperatives said they had started billing their customers, but collections were remitted to the “universal charge-missionary” fund for lack of guidance as to where the remittance should be made.
Although subsequent monthly FiT-All collections had already been segregated, the cooperatives said they had experienced “very low collection efficiency,” particularly from local government units that have sizable unpaid accounts.
Consequently, remittance of FiT-All collections could not be made on time as they were constrained to prioritize payment to power suppliers in order to avoid disconnection of service, and avoid penalties and surcharges.
ERC said the reason given by the cooperatives for not remitting its collections within the required time frame was not acceptable. It said the confusion involved only the earlier months of implementation. It also said the alleged “lack of guidance” as to where the remittance should be made “is not a convincing reason for [them] to remit on time.”
“There are many ways to obtain this information had [the cooperatives] only been more resourceful,” the ERC said. — Victor V. Saulon
DoE issues safety order on LPG handling, transport
THE Department of Energy (DoE) has issued an administrative order jointly with other government agencies directing all liquefied petroleum gas (LPG) industry participants to observe the minimum safety standards in the transportation and distribution of the petroleum product in cylinders.
The administrative order — jointly signed by the DoE, Department of Interior and Local Government (DILG), Department of Transportation (DoT) and the Metropolitan Manila Development Authority (MMDA) — calls for the suspension or revocation of the standards compliance certificate of an LPG participant that is found to be violating the regulations.
The DoE said the handling of the fuel in cylinders “must be given preferential attention considering that LPG is a highly volatile and flammable product which, if not transported and distributed properly, may result in accidents that can cause loss of life, limb and/or property.”
It also sets the duties of the government agencies and the offices under them, such as the Bureau of Fire Protection (BFP), which is to issue a fire safety clearance for each approved delivery vehicle used for the transport or conveyance of LPG in bulk and in cylinder.
The order applies to all persons involved in importing, refining, refilling, storing, transporting, marketing, distributing, hauling, retailing, selling or trading LPG in cylinders.
Under the rules, the DoE is mandated to issue the standards compliance certificate to all LPG industry participants who have complied with the requirement as provided in the DoE’s department circular (DC) 2014-01-0001 or the “The LPG Industry Rules,” including the fire safety clearance, vehicle registration and other requirements mentioned in the joint order.
Aside from its power to suspend or revoke the compliance certificate, the DoE can also conduct inspections of LPG delivery vehicles within the industry participants’ premises.
The DoE is to constitute a joint inspection team composed of its staff, BFP, Land Transportation Office (LTO) and MMDA personnel, and from other government agencies it may request for assistance, to undertake flag down operations and inspection of LPG delivery vehicles.
The task is aimed at verifying whether they are complying with DoE DC 2013-09-0022, which provides for the minimum safety standards in the transportation and distribution of LPG in cylinders.
The DoE can also recommend to the concerned local government units and to the LTO the suspension or revocation of the business license or the vehicle registration of an LPG industry participant. — Victor V. Saulon
AMLA guidelines for lawyers, accountants, and certain service providers
A few years ago, the Philippine financial industry was under the media spotlight when a massive amount of stolen money entered the country and was then spent in large casinos. It cannot be denied that this incident had a negative impact on the Philippine banking system, as well as on the credibility of the implementation of anti-money laundering laws.
These are instances which pushed the Philippines to review and amend the existing Anti Money Laundering Act of 2001 (AMLA) to tighten the watch on money laundering. In 2017, casinos were included in the “covered persons” of AMLA under a new law.
Before casinos were thrown under the spotlight, AMLA focused on bank accounts.
Regulators have since tightened monitoring to include other entities that can be instruments in money laundering (ML) or terrorism financing (TF).
AMLA classifies money laundering as a criminal offense. It can also be committed by any “covered person” who fails to report a covered or suspicious transaction to the Anti-Money Laundering Council (AMLC).
It may sound new to us but, as early as in 2013, service providers, lawyers, and accountants have been included in the “covered persons” of AMLA, specifically under Republic Act (RA) No. 10365, as Designated Non-Financial Businesses and Professions (DNFBPs). These include companies that help manage funds and investments and securities of fund owners, companies that help organize and set up new companies in the Philippines or abroad, and persons who are engaged to assist in managing companies. These service providers can be privy to the fund transactions of their clients and can be instruments of ML or TF.
DNFBP clients are, therefore, forewarned and should be more patient than their accountants, lawyers, and other service providers may be asking more questions about their transactions to comply with AMLA requirements.
AMLC published Regulatory Issuance (B) No. 1 on June 11, 2018, setting the guidelines for DNFBPs. DNFBPs must register with the financial intelligence unit as institutions required to report their transactions.
WHAT ARE THE SALIENT FEATURES OF THE GUIDELINES?
Compliance of DNFBPs. AMLC requires DNFBPs to establish programs and implement policies, processes and controls designed to prevent and detect potential ML or TF activities.
DNFBPs have 90 days from the effectivity of the Guidelines to prepare and have their established programs available for inspection. Entities with existing policies may just need to review their policies to ensure that they fully comply with the guidelines. However, it may be difficult for entities without existing policies. The guidelines require entities to set policies on assessing its risk in relation to its customers, business, products and services, and its training and screening of employees.
Customer Due Diligence (CDD). DNFBPs must adopt a policy that, before a business relationship is established, the DNFBP should take steps to identify its customers and verify their identity, enabling them to assess the extent of risk to which the customer may expose them.
The service provider must understand the nature of the customer’s business, ownership, and control structure — a good corporate practice, even without the AMLA.
A minimum requirement is the verification of the customer’s source of funds. This may be a sensitive question for some customers; thus, inform the customer about the AMLA requirement to ease out possible questions or concerns.
The guidelines may require DNFBPs to have a designated team and additional resources to comply. Thus, it may be best to evaluate whether such processes can be done internally or outsourced to a third party.
Record Keeping Management and Requirements. To allow the AMLC and the courts to establish an audit trail, DNFBPs are required to maintain records for at least five years from the dates of transaction, the dates the accounts were terminated, or from the dates of submission to the AMLC, whichever is applicable. The five-year window is within the ten-year requirement of tax laws, so it is expected that all DNFBPs can comply with this.
Reporting of Covered and Suspicious Transactions. All covered transactions and suspicious transactions must be reported to the AMLC within five working days from the occurrence. The guidelines provide an extensive list of what may be considered suspicious transactions.
Lawyers and accountants, however, are not precluded from reporting to the AMLC in utmost confidentiality any knowledge or information that their client is committing or, otherwise, contemplating to commit ML or TF, or such information outside the coverage of the rules on privileged communication.
DNFBP clients, nevertheless, can take comfort in the provision that DNFBPs are prohibited from disclosing their reports to any person, including the media. Understandably, reports of covered transactions have yet to be verified and mostly do not conclude in violations.
Registration with the AMLC. All DNFBPs must be registered with the AMLC within six months from the effectivity of the guidelines. One of the documents required to be submitted to AMLC is the list of customers which understandably cannot be easily complied with, as some customers have a non-disclosure agreement. It would be best, then, to discuss with customers such requirement and to ensure confirmation to disclose their identities with AMLC.
Compliance checking and investigation. With the issuance of the guidelines, AMLC can now check the compliance of DNFBPs. The Council may also investigate records maintained by the DNFBP on suspicious, ML, and TF activities that may lead to the freezing and forfeiture of customer cash or property.
We hope for full collaboration with the AMLC. Let us not wait for another media frenzy before we recognize the importance of each one in combating money laundering.
Marie Fe Fawagan-Dangiwan is a senior manager of the Tax Advisory and Compliance of P&A Grant Thornton. P&A Grant Thornton is one of the leading audit, tax, advisory, and outsourcing services firms in the Philippines.
The BSP and Inflation: What Mission Creep?
The inflation rate reached 5.2% in June 2018 following 4.6% the month before. The June level is the highest in five years and breached the price target ceiling. Critics are lashing about to find fault. Demonizing TRAIN 1 is everywhere in the media and talks of rejiggering the act is afoot. Sadly, President Duterte revealed that he would leave the fate of his regime’s cornerstone economic program to a Congress that is facing midterm elections! That seems to leave his economic team in a lurch. Meanwhile, the detractors have extended the compass of their blame game to the BSP.
Even Senator Grace Poe, normally better advised and more circumspect, lent her pulpit to the finger pointing.
In May and again in June 2018, BSP raised the policy interest rate by 25 basis points. Banks have lined up to take advantage and have tendered upwards of P125 billion for the P100-billion BSP term deposit auction offers. Critics say that the BSP has sat on its hands and that the BSP should have preempted the subsequent inflationary pressure. Speculation has it that this represented a departure from the BSP’s primary mandate of price stability, and in favor of growth ? a “mission creep,” screamed the PDI editorial (PDI, 2 July 2018) which dignified these brickbats. It insinuated that BSP Governor “Nesting” Espenilla’s personal bias was subverting the mandate of the BSP only to leave a blot on the BSP’s admirable past performance. The critics and PDI are however patently wrong on many counts.
Firstly, when the price spike is due to a cost push (food, coal tax and higher transmission charge, rice and NFA failure, wages and “endo”) which PDI editorial conceded, the BSP’s capacity to combat the root of the spike is very limited. A more aggressive BSP interest rate hike would only raise costs and inflation further. Indeed, the May and June policy rate hike is aimed at dampening the inflation expectation; as well, it serves to mitigate the effect of US rate hike which would surely pull portfolio capital away from the country. Only when the price spike is demand-driven has an interest rate hike considerable leverage at removing root cause — excess liquidity. The latter is hardly the case here.
Secondly, to say that the BSP should have anticipated and preempted all the factors contributing to the current inflationary pressure is a counsel for recklessness. Knowing that an event such as the US interest rate hike is forthcoming is hardly sufficient if how much is the hike and when it comes are up in the air. You need the how much and when to formulate a proper response. The BSP is not God!
Thirdly, the TRAIN version of the DoF, which was public knowledge — and for which the DoF inflation impact simulation was based — did not include the coal tax and the lifting of the VAT-free status of power transmission, which raised electricity bills quickly. This was the folly of Senator Angara and the Senate, which nobody anticipated, but which President Duterte could have and should have vetoed to protect the integrity of the program.
Fourthly, to claim that the BSP and its top brass “have performed admirably for most of its quarter century existence” is a false claim to make the current dispensation look bad. On prices alone, inflation from 1993 (when the new BSP law was enacted) to 2001 averaged 7.4% annually. An annual inflation of 8-9% was something you took in stride in the 1990s. The average annual inflation for the following nine years (2003-2010) was 5.5%. This was above the inflation targets at that time. What record is Gov. Espenilla’s performance a blot on? In those nine years up to 2010 following the adoption of inflation targeting under Gov. Tetangco’s watch, inflation breached 6% four times.
Furthermore, it is a matter of record that the BSP, under Gov. Gabriel Singson, told private business (complaining of BSP’s high interest rate regime to keep the peso from depreciating) to source their borrowing from abroad in dollars. This created the massive currency mismatches which shredded Philippine banks’ balance sheets and the country economy’s vitality during the Asian financial crisis. It was the Jobo bill era surreality reprised: while the Philippine economy was dying of credit starvation, the country’s banks became obese from riskless and high interest placements in the BSP’s Special Deposit Account (SDA). To say that Governor Espenilla’s watch to date is a blot on this record stands evidence on its head.
It is however well known that monetary authorities both here and abroad have, in the past, used — and still do — a high interest rate regime to dampen inflation. High interest rate attracts portfolio capital which, like steroids, artificially bulks up the local currency, cheapening imports, and dampening the inflationary pressure.
Before the era of open capital account, the strong currency-cheap imports nexus was almost canonical to our monetary and fiscal authorities until the 1990s. As chief prop for the “beauty parlor industrialization policy” in the 1950s and 1960s, it saw assembly plants sprout which depended on artificially cheap imported inputs. The result was a “missing middle” problem: the intermediate inputs industry never developed. Why, indeed, produce intermediate inputs when you can import them cheaper! Philippine manufacturing and industrialization remained skin-deep and stunted. Why the Philippines moved from top to bottom in the East Asia economic league table is not a mystery.
In the era of open capital account and interest rate parity theory of the 1990s, the strong peso-cheap import nexus acquired a new ally, mobile capital. Now high interest rate can be enlisted to prop up the peso. The “high interest rate-strong peso-cheap imports” nexus was the rapier that BSP Governor Gabriel Singson wielded in the mid-1990s resulting tragically on the abortion of the hopeful Ramos recovery.
A broadly similar turn of events happened a decade ago when high global grains price spiraled and the global financial crisis came calling in Philippine shores. Let me quote the late former BSP Board member and UP Professor Cayetano “Dondon” Paderanga’s perceptive ruminations (“Slowly but surely,” Introspective, BW, 11 August 2008) on the subject.
“The Bangko Sentral ng Pilipinas (BSP) is under fire these days over its policy moves in fighting inflation. Though its rate hikes are perceived to be in the right direction, some quarters believe that the central bank is acting too slowly, putting its credibility and, consequently, the economy at risk. At the center of the debate are its policy rate changes which were done fairly recently and on a staggered basis.”
At that time of writing in August 2008, core inflation reached 5.8% year-to-date compared to 2.8% in 2007. By yearend, inflation was eight percent! There was a clamor for an “interest rate cure,” a large determined hike in the policy rate. Dr. Paderanga observed that increasing interest rates drastically may dampen an overheating economy if inflation was a demand-pull variety. But the inflationary pressure at this time came from the supply side: fuel prices have risen and global food prices have shot up. Paderanga thought the BSP was right in being cautious. He further observed that the use of the interest rate cure (very high interest rate) to mitigate capital flight in the 1980s under then-Central Bank of the Philippines Governor Jobo Fernandez brandishing the infamous “Jobo bills” led to a massive credit squeeze that reduced supply of just about everything, thus, worsening inflation. It was surreal: while the country’s business starved of credit, the banks that bought Jobo bills grew fat. Dr. Paderanga’s, though a blast from the past, poses the question: What mission creep?
Raul V. Fabella is a retired professor of the UP School of Economics and a member of the National Academy of Science and Technology. He gets his dopamine fix from hitting tennis balls with wife Teena and bicycling.
Deriving value from E-Learning platforms
Business is an ever-changing landscape. It finds ways to create assets, improve what has been already done, and maximize utility at the least possible cost.
What organizations often disregard is the value of knowledge and training — the value of creating an avenue for delivering knowledge to the workforce. Even the “delivery” of such knowledge and training has to find a way to transcend the traditional channels of delivery of knowledge and training (like face-to-face trainings), and to maximize existing technology. This has paved the way for the emergence of Electronic-Learning or E-Learning, an alternative method of learning and training for members of an organization.
E-Learning provides a platform for people to locate and consume learning and development content.
It may also function as a feedback mechanism where users can evaluate which methods or training are effective. It is also a method for an organization to know which strategies and competencies they need to focus on.
The E-Learning platform’s goal is to provide training and development, anytime and anywhere. It also offers more than what a classroom seminar can provide which may be good for theory, but oftentimes fails to pique the interest of the audience. An E-learning platform, on the other hand, is able to adopt to different learning strategies a person/user has (visual, aural, etc.). It also engages the user to learn more because of an interactive approach, and the simulation of problems which may actually happen in real life.
It cannot be overemphasized that the growth of an organization is dependent on the competence of its human resources or workforce. Human capital is the most fundamental source of intangible assets that, when properly utilized and translated, can create property for the advantage of the organization.
If looked at closely, the establishment of an E-Learning platform is a strategy for the company to take full advantage of one of its biggest assets — human capital.
The interplay of the relationships between creating and managing an E-Learning platform may create legal implications for an organization.
If left unheeded, an organization may suffer the loss of important intangible assets they which they failed to protect, or otherwise exploit. These intangible assets can be developed into Intellectual Property which include copyright and related rights, trademarks, services marks and patents, among others. Organizations merely see the protection of intangible assets as cost, but what they often fail to see is the opportunity of deriving value once assets turn into intellectual properties. Thus, an Intellectual Property Strategy is necessary.
An important part of creating an Intellectual Property Strategy is identifying the possible intellectual property assets involved in order to recognize what should be protected, utilized, or abandoned. Most assets in an E-Learning platform can be subject to copyright which is defined as “works” or “original intellectual creations in the literary and artistic domain protected from the moment of their creation,” as cited in the Intellectual Property Code of the Philippines.

These materials, however, are not only limited to those in the artistic domain but also include “computer programs” and “other literary, scholarly, scientific and artistic works.”
Thus, the training modules or materials (also called E-Learning modules) and the translation of these modules into codes to produce different interactive platforms (mobile apps, games) may be considered as the subject of copyright. It must be noted though that an idea, concept, and the operation itself cannot be subject of copyright based on Section 175 of Republic Act No. 8293 or the Intellectual Property Code.
The next step after asset identification is identifying the owner of such asset. Generally, a copyright is owned by the author of the work, unless otherwise stipulated. If there are joint authors then the co-authors, in the absence of an agreement, shall be governed by the rules on co-ownership found in the Civil Code of the Philippines.
If the work is created in the course of employment, the employer owns the asset if its creation is one in the regularly-assigned duties of the employee, unless there is an express or implied agreement to the contrary.
In case of work-commissioned or those who, other than an employer, pays for the work to be done by another person pursuant to the commission, copyright belongs to the creator and the one who commissioned the work only owns the work, meaning the copy of that work, unless there is a written stipulation to the contrary.
It is important to note, though, that all of these parties are bound by contract. Our legal system does not prohibit freedom to contract, as long as it is not contrary to law, public policy, public order, good customs or morals.
Thus, parties can freely stipulate to whom the intellectual property belongs to; and this is without prejudice to other contracts that parties may enter into for the creation and the management of the work.
For the organization to protect itself, a contract must clearly state that for whatever is created for the organization, the underlying copyright belongs to the organization. If this is not possible, then other stipulations can be agreed upon with similar effect. The bottom line is that, in dealing with creators, everything should be clearly stipulated. If it has been established that the company owns an asset, the underlying copyright may be registered to prove such ownership.
The third step in the strategy is leveraging the asset. As stated, training modules and the codes for how they translate such modules into user-friendly and interesting E-Learning platforms can be a potentially valuable IP asset.
Once properly developed, these assets may be licensed out to other organizations which may want to use E-learning platforms as well. This is, however, without prejudice to classified information which the company cannot divulge because it gives the company a competitive advantage.
E-Learning is an emerging concept in the Philippines; but because of its cost-efficiency and effectiveness, it is an industry worth pursuing in the future as a stand-alone business. The bigger challenge now is finding a market that wishes to avail of the same. Hopefully, upon proving the worth of E-Learning, more organizations will choose to adopt the same.
This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.
Joan Janneth M. Estremadura is an Associate of the Intellectual Property Department (IPD) of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
jmestremadura@accralaw.com
(02) 830-8000.
Fate of the peace process hangs in the balance
Two years into the Duterte administration, trepidations on the fate of the peace process continue. The proposed Bangsamoro Basic Law (BBL), the political translation of the Comprehensive Agreement on the Bangsamoro (CAB) signed in 2014, hangs in the balance. This week, the Bicameral Committee starts deliberation on the Senate and House version of the BBL.
Among the contentious issues are (a) the fiscal autonomy of the autonomous government, in particular the conditions on the proposed Block Grant; (b) the powers of the autonomous government vis a vis the national government; (c) security matters like policing and decommissioning of armed MILF; (d) control of inland waters; and (e) areas that will be included in the plebiscite.
The BBL has been in a seesaw ride ever since it was crafted. The first time it was submitted to Congress, it was seriously derailed by the Mamasapano incident in January 2015. It failed to pass as a law. This 17th Congress, proponents are again pushing for its passage, but the federalism agenda by the administration looms in the background, threatening its derailment once again.
Yet, the President made a commitment — BBL will be passed first before federalism, easing the anxiety of BBL proponents.
But a week before the Bicameral Committee is set to discuss the Senate and House versions of the BBL, the Constitutional Commission passed the proposed Federal Constitution, creating once again worry that the BBL will be overshadowed by it.
Juxtaposed with the slow-climb of the BBL is the increasing threat of terrorism in the ARMM area, with the confrontation in Marawi as its most serious attempt. The Daulah Islamiya Wilayatul Mashriq (DIWM) alliance by the Abu Sayyaf Group (ASG)-Basilan, Maute Group, and the Bangsamoro Islamic Freedom Fighters (BIFF) must be regarded as a serious concern since it has facilitated the geographically and ethnically separate groups to work as one. The fact that the ISIS-inspired Daulah alliance roused these groups to transcend their primary layer of identity (Tausug, Maranaw, and Maguindanao) and work together to capture Marawi as their wilayat or controlled territory is a serious matter.
While the leadership of the Daulah alliance has been crippled with the death of Hapilon and the Maute brothers in October 2017, recent reports declared that a new leader has emerged.
Note that terrorist organizations’ areas of operation dangerously intersect with the areas populated by MILF and MNLF members, creating a fertile condition of cross-pollination of ideologies and grievance. The longer that the proposed Bangsamoro Basic Law (BBL) is derailed, the more it can fuel frustration, allowing terror groups to use it to radicalize dissent.
It is hence crucial for a CAB compliant BBL to be passed into law as proof that political settlement actually produces positive results, if only to mitigate the possibility of disgruntlement in the ranks of MILF and MNLF, and feed on the manipulation by and eventual recruitment of terrorist organizations.
PEACE TALKS WITH COMMUNIST REBELS
How about the peace process with the Communist Party of the Philippines/New People’s Army/ National Democratic Front?
The negotiations with the CPP/ NPA/NDF have been an on-and-off arrangement. The government has been negotiating with the group for 31 years now. Most, if not all, of the five-member panel of the NDF negotiating team are in their late 70s to mid-80s and have been away from the country for decades. They no longer have control of the organization they represent. Indicators abound that the NPA local commands, especially the Northeast Mindanao area are operating on their own. The CPP/NPA/ NDF is no longer a cohesive, unified communist armed movement — the great splits by the Cordillera Peoples Liberation Army (CPLA) in 1987, and the Rebolusyonaryong Partido ng Manggagawa–Pilipinas/Revolutionary Proletarian Army/Alex Boncayao Brigade (RPM-P/RPA-ABB) in 2000 has left the movement severely weakened; the Philippine military in fact asserts that the NPA has only about four thousand armed members to date.
Clearly it is no longer a force to reckon with; yet it must be noted that it still has ability to derail development and victimize communities through their “revolutionary tax” collections and subsequent punishment (e.g. destroying equipment) against those who are uncooperative.
In the 31 years of negotiation, peace agreement is nowhere near completion with the CPP/ NPA/ NDF. It is therefore valid to ask if negotiating with the Utrecht-based negotiators is the right approach. The local leadership of the NPA has been sending clear signals that it is them, not the NDF panel in Utrecht, who call the shots.
Instead of waiting for the local command(s) to formally declare a split from the party, it is necessary that they be recognized for what and who they really are. If the immediate objective of the government is to end armed violence that victimizes communities, local negotiations/ local peace dialogues should be seriously considered. Otherwise, the group might eventually splinter into smaller local armed groups that are dispersed in a number of villages, engaging in tactical alliances with criminal gangs and syndicates.
President Duterte has committed that his government will do everything in its power to pursue peace and political settlement.
While the peace agreement is not a “magic pill” that will deliver ‘peace,’ it remains to be one of the critical elements of the process. This writer is in full support of the Bangsamoro peace process and the passage of a CAB-compliant BBL; and is fully supportive of local peace negotiations vis a vis the CPP/NPA/NDF peace table, especially one that involves local communities affected by armed conflict in the forefront of negotiations.
Jennifer Santiago Oreta is Asst Professor of the Dept. of Political Science and Director of the Ateneo Initiative for Southeast Asian Studies.
