DOJ Opinion No. 120, s. 1982

DOJ OPINION NO. 120 , s. 1982 June 30, 1982 The Director Bureau of Employment Services Ministry of Labor and Employment Intramuros, Manila Sir : This has reference to your request for opinion on certain queries concerning the employment of aliens in a newspaper "catering exclusively to the Chinese community". Particularly, your queries are: "1. Can a non-Filipino citizen be allowed to work in any position in a nationalized industry, (mass media-newspaper) catering exclusively to the Chinese community? "2. Will the above alien's proposed employment be not against the Nationalization Laws in conjunction with the Anti-Dummy Law? "3. Will an alien's definite length of stay in the Philippines be a justification for the granting of the privilege of employment in the aforementioned industry?" I Queries 1 and 2 are interrelated with each other and are thus hereunder taken up together. Our answer to these queries is that an alien may be employed in such a newspaper only as technical personnel with the permission of the Minister of Justice, as required by the Anti-Dummy law. LexLib Our discussion hereon follows. By constitutional mandate, the ownership and management of mass media is reserved to "citizens of the Philippines or to corporations or associations wholly owned and managed by such citizens ." (Sec. 7(1), Art. XV, 1973 Constitution) In fine, mass media is a completely nationalized business or activity. Section 2-A of Commonwealth Act No. 108 as amended by P.D. No. 715, otherwise known as the Anti-Dummy Law, reads insofar as is pertinent: "Section 2-A. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercised or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens , permits or allows the use, exploitation or enjoyment thereof by a person, corporation or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution, or the provisions of the existing laws; or in any manner permits or allows any person, not possessing the qualifications required by the Constitution, or existing laws to acquire, use exploit or enjoy a right, franchise, privilege, property or business, the exercise and enjoyment of which are expressly reserved by the Constitution or existing laws to citizens of the Philippines or of any other specific country, to intervene in the management, operation, administration or control thereof, whether as an officer, employee or laborer therein with or without remuneration except technical personnel whose employment may be specifically authorized by the Secretary of Justice . . .; and Provided, finally, That the election of aliens as members of the board of directors or governing body of corporations or associations engaging in partially nationalized activities shall be allowed in proportion to their allowable participation or share in the capital of such entities ." (Emphasis supplied.) Accordingly, taking the foregoing provisions of the Anti-Dummy Law in conjunction with the aforecited constitutional provision, a newspaper, which is a form or means of mass media, the ownership and management of which is consequently limited to citizens or to corporations fully owned or managed by such citizens, may not employ any alien, who shall intervene in the management, operation, administration, or control thereof whether as officer, employee or laborer; the only exception to this prohibition is where the Minister of Justice specifically authorizes the employment of "technical personnel" in said mass media undertaking, provided that the employment does not intervene in the "management" of the employing mass media entity. The final proviso of Section 2-A, supra , which allows aliens to be elected as members of the board of directors of the governing body of corporations and associations to their allowable participation in the capital of such entities applies only to partially nationalized businesses or activities, i.e., those business activities or undertakings the enjoyment or exercise of which is limited by the constitution or any law to corporations or associations at least 60% of the capital of which is owned by Filipino citizens, and not to completely nationalized businesses or activities such as mass media undertakings. Finally, the fact that the newspaper caters "exclusively to the Chinese community" would not serve to place the undertaking outside of the purview of the subject prohibitions/limitations applicable to mass media. Such fact would not change the essential nature of the undertaking, that is, one which engaged in the dissemination of information and ideas to the public, be this a portion only thereof, which is the distinctive feature of any mass media undertaking. LexLib II Anent query No. 3, the "alien's definite length of stay in the Philippines" can not serve as justification for granting to him the privilege of employment in a mass media activity. The criteria used by this Ministry in granting specific authorization to employ alien "technical personnel" in a nationalized business or activity are: whether the position sought to be filled is technical in nature, taking into consideration the duties involved therein, and whether the applicant possesses the required qualifications. In this connection, it may be stressed that this Ministry, in construing the term "technical personnel" to determine whether it applies to a given situation usually refers the application for employment of technical personnel in partly nationalized undertakings to the government office that exercises supervision over the employing corporation for its comment and recommendation,. We rely heavily upon the recommendation of said office in deciding whether to approve or disapprove the application. In the case of employment of technical personnel in mass media, we refer the application to the Office of Public Information. Finally, it may be relevant to state that under Ministry Circular No. 210 dated December 1, 1980 of this Ministry, (copy enclosed), prescribing the procedure for processing applications for authority to employ foreign technicians in a wholly or partially nationalized trade, business, industry or undertaking, among the required documents to be submitted is the alien employee's permit or certification from the Ministry of Labor and Employment that there are not local technicians, available for the position to be filled . Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice