DEAN STA. MARIA IN DRAWING THE WRONG CONNECTIONS MAKES HIMSELF LOOK LIKE A FOOL #LABANLENI

Dean Mel. Sta. Maria, in his InterAksyon Op Ed piece seemingly draws the connection between the firing of Vice President Leni Robredo to “future” decision of the Supreme Court acting as the Presidential Electoral Tribunal (PET).  This is so wrong on so many levels.  Let us dissect his reasoning.

In his article, Sta. Maria says:

In resigning from President Duterte’s cabinet, Vice President Leni Robredo said that she “had been warned of a plot to steal the Vice Presidency.” She stated that she had “chosen to ignore this and focus on the job at hand. But the events of recent days indicate that this plot is now being set into motion.”

This is a powerful statement. It warns of the gravest danger that may face the nation -- the thwarting of the people’s will. And since the position involved is the second highest public office in the land, it sends a message that the “plot” could not have been hatched by ordinary people, but by scheming, powerful and conspiring individuals with the means and influence to execute it.

The problem with his reasoning is that he depends on the say-so of the Vice President—a statement which was clearly made for political ends.  It seems that she made that statement in order to paint a favorable picture of herself in the eyes of the media.  She seemingly made this to portray herself as a victim and then to draw attention to a circumstance that seemingly has no relation to the fact of her firing.  Mr. Sta. Maria, Attorney Mel, when using statements such as these, it is important to take them with a grain of salt, since this is basically propaganda.

Embarrassingly, Leni Robredo, in an interview cannot even give a straight answer to the question, “how do you know of this plot?”




Factually, the statement itself isn’t logical, it is a non sequitur.  Getting fired from her HUDCC post has nothing to do with her ouster from the Vice Presidency.  The Vice President holds no real power and has no real function until such time as the President dies, or is incapacitated or is unable to discharge his functions.  There is no Constitutional requirement for the VP to be given a cabinet post.  The HUDCC post itself is a cabinet position, therefore, to be a member of the cabinet, one is expected to be a team player and only serves at the pleasure of the appointing authority.  It was therefore within the President's right to dismiss Leni the moment she stopped enjoying the President's trust and confidence.

Painting himself further into a corner, Mr. Sta. Maria speculates that something is about to go down in the Supreme Court following Leni's firing.  He casts a cloud on the Supreme Court's ability to judge a case by enumerating a number of decisions he deems “unjust”, these are:

This is the Supreme Court whose majority members are perceived -- rightly or wrongly -- to be always siding with the “elite,” the rich, the privileged, and/or people highly placed in the political ladder. And this perception has basis. It acquitted former President Gloria Macapagal Arroyo and former First Lady Imelda Marcos, granted bail to Senator Juan Ponce Enrile, adjudged absolute pardon for former President Joseph Estrada, excused Mayor Junjun Binay from sanction despite abandonment of the “Condonation doctrine,” and decided that Congressman Ronald Singson cannot be ousted as a representative because his drug-related-conviction did not concern a crime involving moral turpitude. 

This is also the Supreme Court whose majority ruled against the coconut farmers and in favor of Danding Cojuangco in the coco-levy case because, among others, there was no showing that the latter was one of the “close associates of President Marcos” -- prompting former Associate Justice Conchita Carpio-Morales, now the Ombudsman, to say that “the argument that Cojuangco was not the subordinate or close associate of the Marcoses is the biggest joke to hit the country.”

And more recently, it is the Supreme Court which decided that the dictator Ferdinand E. Marcos, whose regime looted our national treasury and ushered in a period of summary execution, forced disappearance,  torture and gross violation of human rights against the Filipino people,  be buried in the Libingan ng mga Bayani. 

The problem with such an enumeration is that all it does is simply to list down a number of cases he disagrees with, without explaining why the court decided in such a manner, what the merits of the winning party were, et cetera.  In other words, Sta. Maria is being unfair to the Supreme Court in casting a cloud upon their decision and future decisions without actually explaining the merits or his side.  Further, in making a list of decisions he does not agree with, Sta. Maria is delving into the field of statistics and probabilities, and such arguments cannot hold water if you took the whole "sample size" into account:  How many more decisions do you think the Supreme Court made that upheld the rights of the poor, or otherwise, decisions that Sta. Maria would agree with?  In other words, Sta. Maria committed another non sequitur.

In doing this, Atty. Sta. Maria, in spite of his “lofty” motives must always remember his Legal Ethics.  Specifically, Canon 11, Rule 11.04 of the Code of Professional Responsibility which states:

CANON 11  A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

x x x

Rule 11.04  A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case.

Sta. Maria, in writing his column, violated this rule.  He very publicly imputed an ill motive to the Supreme Court and drew conclusions based on immaterial circumstances, i.e. very public speculation by the Vice President.  

Furthermore, Sta. Maria also violated Canon 13, Rule 13.02 of the same code which states:

CANON 13  A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the Court.

x x x

Rule 13.04  A lawyer shall not make public statements in media regarding a pending case tending to arouse public opinion for or against a party.

Admittedly, this case is sub-judice (something he calls out in his article and yet he himself violates.  What a hypocrite!), So Sta. Maria is clearly trying to preempt the Supreme Court in its decision and to poison the well in case of an unfavorable decision.


In fairness to Mr. Sta. Maria, he isn't one of the counsels or a party involved in these cases, so he may escape censure from the Supreme Court itself.  Nevertheless, for an experienced lawyer, drawing the wrong conclusions out of pure speculation and then skirting the very limits of legal ethics to air out these conclusions must be embarrassing.

No wonder his books on civil law are gathering dust on Rex Bookstore shelves. 

In defense of a contrary decision

As to the possibility of an ouster, I believe the only way this would happen is if the Supreme Court, acting as the PET would order a recount.  Mr. Sta. Maria believes that the facts and circumstances do not warrant a recount.  I believe otherwise and that Mr. Sta. Maria is simply affected by his bias.  

If you asked me, I would say that the true test of impartiality or lack of bias of a court decision is if it passes the “role reversal” test.  The role reversal test is fairly straightforward, in fiction, John Grisham used this in his book, A Time to Kill, where an African American in the deep south was facing trial for the murder of white rednecks who raped his daughter.  [spoiler alert] The protagonist used the insanity defense claiming that he was driven to insanity by the rape of his daughter leading to the redneck’s murder in a fit of insanity. In that book, the swing vote in the jury came from a woman who pleaded to the all white jury to close their eyes and imagine that the rapists were black and the victim was white.  [end spoiler] 

In this electoral protest, let us reverse the roles:  Leni is accusing Marcos of cheating, she alleged that he bought out smartmatic and tampered with the machines; dubious algorithmic progression in the increase of Marcos’ votes; and mysterious “zero” votes in some precincts as well as missing voters in a hotly contested and divisive election; with all of the machinery and infrastructure in the hands of the opposing party.  In your opinion, would a recount be called for?  Logically, you would be in favor of a recount.  Moreover, a lot of people in both camps are quite anxious to know the truth about what transpired during the elections.

THE ISSUANCE OF HOLD DEPARTURE ORDERS SHOULD NOT PREJUDICE THE RIGHTS OF SEAMEN AND OFWS TO SEEK WORK ABROAD

 

Introduction

Overseas Filipino workers (OFWs) and Seamen, through their remittances and by the sheer number of them as seen in Tables 1 and 2 below, their class makes a substantial contribution to the Philippine economy.[1] By the very nature of their work, they have to leave the country. The Philippines is also considered a “sending country”[2] meaning that it sends out more laborers than it accepts laborers which puts the Filipino at a disadvantaged situation when it comes to bargaining for better working conditions and puts many prospective OFWs in competition for a single job.

Table 1. Number of Deployed OFWs 2009-2013

Year	Total No. of Deployed OFWs
2009	349,715
2010	341,966
2011	437,720
2012	458,575
2013	464,888

Source: POEA[3]

Table 2. No. of Deployed Seafarers 2009-2013

Year	Total No. of Deployed Seafarers
2009	330,424
2010	347,150
2011	369,104
2012	366,865
2013	367,166

Source: POEA[4]

Indeed, the OFW and Seaman phenomenon is said to stem from national poverty and the inability of the country to provide sufficient work for all those who want to work and a deficit in the balance of trade.[5] Thus it is difficult not to emphasize just how crucial the OFW sector is in “propping up” our country’s economy.

Therefore, it is in the Philippine’s best interest to make sure that the OFW puts his best foot forward in relation to his employer. However, there will be times because of a domestic or debt related dispute, a Hold Departure Order or HDO may be issued against an OFW or Seaman, thereby delaying his deployment and thus prejudicing his employment and his future.

This paper will argue that the current procedures and substantive laws on hold departure orders are not conducive to the sending out of OFWs, violates the principle of Social Justice enshrined in the Philippine Constitution.

This paper will argue that travel for OFWs and Seamen should be allowed, notwithstanding the issuance of an HDO, under these circumstances on public policy grounds and for humanitarian reasons.

Social Justice

In enacting labor legislation, it is said that the working man’s welfare should be the primordial consideration. This is seen in the liberal manner with which labor laws[6] and labor contracts[7] are supposed to be interpreted in favour of labor. The reason for this is because there is a disparity in the bargaining position between the Capitalist and the Worker stemming from the much larger supply of workers versus the demand. The worker is further disadvantaged by the “extreme necessity” of his position.[8] However, the Constitution makes it a policy to promote social justice.[9] By social justice:

The promotion of social justice, however, is to be achieved not through a mistaken sympathy towards any given group. Social justice is “neither communism, nor despotism, nor atomism, nor anarchy,” but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus popili est suprema lex.[10]

Thus, it is essential in upholding the policy of social justice is that we should treat labor and capital equally. Both sides are essential in the country’s development. In this case, one can look at the OFW Phenomenon as an international version of the Marxist reserve army of labor.[11] it is granted that the Capital involved in OFW and Seaman labor are foreign Capitalists, nevertheless that is no reason not to respect their right to the fulfilment of the contract between the Philippine Labor and the Foreign Capitalist.

Indeed, given the importance of the OFW sector outlined in the previous section, it is imperative that the government exert every effort to allow the OFW or Seafarer to complete his contract abroad.

Hold Departure Orders

SC Circular No. 39-97

In 1997, the Supreme Court issued Supreme Court (SC) Circular No. 39-97. This circular is the latest in a string of SC Circular that the High Court issued to govern applications for the issuance of HDOs. Its intent was to confine the issuance of the orders “in criminal cases within the exclusive jurisdiction of the Regional Trial Courts.” It must also be noted the issuance of an HDO must be pursuant to a pending criminal case in the Court. This is implied from the requirement to include “[t]he complete title and the docket number of the case in which the Hold-Departure Order was issued”, and in case of dismissal of the criminal case or acquittal of the accused:

...the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The Court concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within twenty-four [24] hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal.

In a number of cases, the Supreme Court has also declared that “[t]he very essence of Circular No. 39-97 is to avoid the indiscriminate issuance of hold-departure orders resulting in inconvenience to the parties affected which is tantamount to an infringement on their right and liberty to travel.”[12]

DOJ Circular No. 41 s. 2010

Department of Justice (DOJ) Circular No. 41 s. 2010 on the other hand covers situations and cases not falling under the jurisdiction of the RTC as stated in SC Circular No. 39-97. The DOJ circular specifically allows the Secretary of Justice to issue HDOs in the following cases:

(a) Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs).

If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information and (b) a Certification from the Clerk of Court concerned that criminal case is still pending.

(b) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government.

The application under oath of an interested party must be supported by (a) a certified true copy of the subpoena or summons issued against the alien and (b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.

(c) The Secretary of Justice may likewise issue an HDO against any person, either motu proprio, or upon the request by the Head of a Department of the Government; the head of a constitutional body or commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.

It must be mentioned however that DOJ Circular No. 41 contains, in Section 7 thereof, a remedy for those whom an HDO has been issued. There may be an administrative application for Allow Departure Order or ADO where an applicant may apply with the DOJ to be able to leave the country for “exceptional reasons” and subject to the following requisites:

a. ... [A]n undertaking to immediately report to the DOJ upon return; and

b. Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case.

Anti-Violence Against Women and Children Act of 2004

Lastly, a special penal law, with some labor provisions, R.A. No. 9262 or the Anti-Violence Against Women and Children Act of 2004 or the Anti-VAWC law contains a provision, in Section 37 thereof on the issuance of HDO. The section mandates that “[t]he court shall expedite the process of issuance of a hold departure order in cases prosecuted under this Act.” Section 36, Rule V of the Implementing Rules and Regulations of RA 9262 also provides that upon the filing of a petition for a protection order, the judge can also issue an HDO to prevent the respondent from leaving the country while the petition is being heard.[13] This is disconcerting if the one against whom an HDO is issued in a VAWC case is an OFW.

Papers have already been written on the constitutionality of Hold Departure Orders. These usually focus on the Constitutional Right to Travel of the one against whom the HDO was issued. This paper however seeks to discuss Hold Departure orders from the standpoint of an OFW or Seaman whose job requires him to leave the country, and the employer whose enterprise may be prejudiced by the non-appearance of the OFW because of the hold-departure order. It will also be argued from a contract perspective that the prevention of OFWs from leaving the country pursuant to a Hold Departure order will contradict Philippine foreign labor policy.

A Survey of Cases Assailing HDOs

Most cases in the Supreme Court that assail Hold Departure Orders involve Metropolitan or Municipal Trial Courts that have issued such orders against the mandate of SC Circular 39-97 allowing HDOs to be issued only in criminal cases falling under the jurisdiction of the RTC.

Table 3. Survey of Cases where the issuance of an HDO was assailed

Case	Crime
Mondejar vs. Judge Buban[14]	BP 22
Hold-Departure Order dated 22 December 1998 issued by Acting Judge Madronio, Jr[15]	forcible abduction with rape and homicide
Hold-Departure Order dated 20 November 1998 issued by Judge Abalos[16]	BP 22
Hold-Departure Order dated 10 February 1999 issued by Judge Barot[17]	Estafa
Hold-Departure Order dated 13 April 1998 issued by Judge Nartatez[18]	BP 22
Cruz vs. Iturralde[19]	HDO was issued not for a criminal case but a civil case under Art 72 of the Family Code
Grieve vs. Jaca[20]	Less Serious Physical Injuries
Yap vs. Court of Appeals and People of the Philippines[21]	Estafa
Formaran vs.Trabajo-Daray[22]	Estafa and Falsification of Public Document
Okabe vs. Gutierrez[23]	Estafa
Mupas vs. Español[24]	Syndicated Estafa

Given the preponderance of cases involving bouncing checks, estafa in cases that assail the issuance of HDOs, and the glaring absence of cases involving murder and other heinous crimes, the author posits that HDOs are mainly issued in cases where bail is ordinarily granted or that the accused is not normally detained. Meaning that it is essentially a substitute for detention is cases where the accused would normally be able to secure bail. This will result in an inequitable situation where a locally employed person charged with estafa or BP 22 will otherwise be able to go about his business while on bail—possibly to earn enough money to pay his debt; while an OFW, unable to go abroad to work will but still out on bail, will be forced to wait until the case is concluded in abject poverty. The employer on the other hand is left without a worker and will be forced to hire someone else to take his place.

This is very clear in the case of Okabe vs. Gutierrez,[25] wherein the accused was charged with estafa, and without even being arrested, but after the information had been filed, submitted herself to the jurisdiction of the RTC and posted bond. A hold departure order was later issued when it was seen that the accused frequently travelled to Japan to attend to her work and to care for her sons there. The accused sought to have the HDO lifted on the ground that she had her work in Japan was her only livelihood. The court however decided on different grounds, want of probable cause for her arrest.

Thus, the scenario that the author seeks to avoid with the current procedure for the issuance of HDOs is the scenario where an OFW returns to the Philippines on vacation, finds himself charged with a case for estafa, BP 22 or possibly Bigamy or Concubinage and finds himself unable to leave the country to continue with his work.

Law and Policy on OFWs and Seamen

The Labor Code recognizes that the country has an unemployment problem, thus it is an explicit policy to “facilitate a free choice of available employment by persons seeking work in conformity with the national interest”[26] and at the same time to “protect every citizen desiring to work locally or overseas by securing for him the best possible terms and condition for employment.”[27] Also revealing is the provision for the “careful selection of Filipino workers for overseas employment in order to protect the good name of Filipinos abroad.”[28] These provisions point out the priorities of Philippine policy on overseas employment—that there is an unemployment problem; overseas employment is one measure that can alleviate the problem; and that one way to continue to be able to send Filipinos to employment abroad is the protection of the Filipino worker and the “good name” of the Philippines.

To this end, the Labor Code provided for a body that regulates and protects OFWs. Originally, the task of undertaking a “systematic program for overseas employment of Filipino workers … and to protect their rights to fair and equitable employment practices,” belonged to the Overseas Employment and Development Board (OEDB).[29] For seafarers, this was the National Seamen Board (NSB). These two bodies were merged into by the Philippine Overseas Employment Administration or POEA.[30] R.A. No. 8042 further created the Overseas Workers Welfare Administration or OWWA which, relevantly, is tasked to “undertake the repatriation of workers in cases of war, epidemic, disaster or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency. However, in cases where the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by the OWWA.”[31]

There is also the “country-team approach” wherein all officials and personnel of the Philippine government, who are posted in a particular country act a one “team” regardless of the government agency they represent, be it the DOLE, DFA, Consulate, OWWA etc. under the “team leadership” of the Ambassador.[32] All this points to the fact that the OFW or Seafarer, provided he is well-documented and enjoys secure employment, will always be within the reach of the “long arm of the Philippine law.” There is thus no need to force the OFW to give up his employment, and to condemn him to wait while the overcrowded courts decide his case.

Recommendations

This paper recommends that the Supreme Court amend the SC Circular No. 39-97 include the requirement that if an HDO is issued, a copy thereof must be forwarded to the POEA (in addition to the DFA and the BI) who should have the power to recommend the sending out of an OFW regardless of its issuance depending on the circumstances of the worker (such as the length of contract, distance of the country, the kind of country he will be going to, or if he is a seaman) and the likelihood that he will not return to the Philippines. If necessary, additional surety bonds may be required before the worker is allowed to leave the country. What is important is that the worker be allowed to leave the country. If the case falls under DOJ Circular No. 41 s. 2010, the fact that the one under a HDO is an OFW should be a ground for the issuance of an ADO.

Courts and the DOJ, when they issue an HDO, should likewise inform the POEA of its issuance, if the one against whom it is issued is an OFW. This will allow the POEA to make arrangements with the court and other government agencies to allow the OFW-under-HDO to travel when the time comes under his contract. Cooperation and communication are the key here. Indeed, the author envisions that the POEA can take the role of a bail bondsman in cases of OFWs-under-HDO.

Indeed inter-agency cooperation is starting to make strides: “The labor and employment chief explained that the development of the shared information system shall cover the databases of a) documented OFWs; b) foreign employers included in the POEA watchlist; c) OFWs included in the POEA watchlist; and d) departing and arriving OFWs.”[33] This will only make the author’s plan for inter-agency coordination and cooperation more feasible. To quell any doubt that the Philippines may have limited capability in monitoring and taking care of its OFWs, Ryszard Cholewinski argues that the Philippines is a model for other countries with regard to foreign labor:

The focus of the Philippines’ government’s policy is concerned with enforcing combatting contractual obligations between migrant workers and employers and the practice of ‘contract substitution’ whereby contracts signed by workers in the country of origin and approved by national authorities are substituted by less protective contracts before departure or on arrival in the country of employment. The Philippines has adopted three devices … to counter difficulties existing in this area. First employers cannot recruit workers directly in the Philippines and must undertake recruitment through agencies registered and licensed by the POEA. Employers then have to agree to be jointly responsible with the agency in the Philippines under its law for any claims and liabilities arising in connection with the implementation of the employment contract. … [A]though foreign employers retain control over the selection of workers in sending countries and can impose a “performance bond” not exceeding the cost of a one-way airfare to ensure repatriation to the country of origin in the event of non-performance of the worker’s contractual obligations. A second … device involves the conclusion of informal understandings with embassies and consular officials in receiving to issue visas only to Filipino workers approved by the POEA or on the employment conditions under which such workers migrate to those countries. A third device is the compulsory Pre-Departure Orientation Seminar …[34]

Conclusion

OFWs and Seafarers, through their remittances make a substantial contribution to the Philippine economy. By the very nature of their work, they have to leave the country. HDOs prevent their travel and thus, their employment. This has numerous implications such as the nonfulfillment of contractual obligations, loss of work opportunities among others. One must also consider that the travel of OFWs and Seamen are sufficiently regulated by the POEA, DFA and by their Employers, and that the crimes which they are normally charged with are the “routine” BP 22, estafa and Violence against women and children (VAWC) cases. Because of this, a framework and procedure to allow travel for OFWs and Seafares with outstanding HDOs should be put in place on public policy grounds of social justice and for humanitarian reasons.

---

[1] Jose Ramon G. Albert, Counting and Monitoring the Contribution of OFWs (The Nation’s New Heroes), available at http://www.hdprc.gov.ph/counting-and-monitoring-the-contribution-of-ofws-the-nations-new-heroes/ (last accessed October 8, 2014)

[2] Ryszard Cholewinski, International Labour law and the Protection of Migrant Workers: Revitalizing the Agenda in the Era of Globalization, in Globalization and the Future of Labour Law 409 (John D.R. Craig and S. Michael Lynk eds., 2006)

[3] Philippine Overseas Employment Agency, Statistics 2013, available at http://www.poea.gov.ph/stats/2013_stats.pdf (last accessed October 8, 2014)

[4] Ibid.

[5] 1 Cesario Azucena, Comments and Cases on the Labor Code 57 (2010 ed.)

[6] Labor Code, Art. 4.

[7] New Civil Code, Art. 1703

[8] Supra. Note 5. 26

[9] Phil. Const. §10, Article. II and §1, Article XIII

[10]Calalang vs. Williams 70 Phil. 726, 734-735 (1940). See also Ang Tibay vs. Court of Industrial Relations, 69 Phil. 635 (1940)

[11] John Bellamy Foster, Robert W. McChesney and R. Jamil Jonna, The Global Reserve Army of Labor and the New Imperialism, available at, http://monthlyreview.org/2011/11/01/the-global-reserve-army-of-labor-and-the-new-imperialism/ (last accessed October 8, 2014)

[12] Hold Departure Order issued by Judge Salvador M. Occiano, 381 SCRA 655 (2002)

[13] Overseas Filipino Workers (OFW) Empowerment, R.A. 9262 “Hold Departure Order”, available at, http://ofwempowerment.com/2012/09/02/r-a-9262-hold-departure-order/ (last accessed October 8, 2014). It is argued in this web page that the Judge may issue the HDO at the same day as a TPO or a PPO.

[14] 361 SCRA 119 (2001)

[15] 323 SCRA 345 (2000)

[16] 19 SCRA 131 (1999)

[17] 313 SCRA 44 (1999)

[18] 298 SCRA 710 (1998)

[19] 402 SCRA 65 (2003)

[20] 421 SCRA 117 (2004)

[21] 358 SCRA 564 (2001)

[22] 442 SCRA 423 (2004)

[23] 429 SCRA 685 (2004)

[24] 434 SCRA 303 (2004)

[25] Supra. Note 22.

[26] Labor Code, Art 12 (c)

[27] Ibid, Art 12 (b)

[28] Ibid, Art 12 (g)

[29] Labor Code, Art 17

[30] Reorganizing the Philippine Overseas Employment Administration, Executive Order No. 247, §3(c), (1987)

[31] Migrant Workers and Overseas Filipinos Act of 1995, R.A. No. 8042 §15. One must note however, that the burden or cost of repatriation is borne by the Principal or Agency. However, in the case of repatriations pursuant to HDOs, the author proposes to use a bond filed by the OFW, because if one were to make the employer bear the cost of the repatriation, it would counter the very purpose of granting an exception to OFWs with HDOs in the first place.

[32] 1 Josephus B. Jimenez, Labor Standards: The Philippine Labor Laws and Jurisprudence 129 (2005 ed.) citing Executive Order no. 74 S. 1993

[33] Department of Labor and Employment, POEA streamlines OFW documentation; signs accord for shared database with Immigration, available at, http://www.dole.gov.ph/news/view/2154 (last accessed October 8, 2014)

[34] Supra Note 2. 431-432

THE BOOGEYMAN IS FINALLY BURIED

 

I woke up this morning and I felt strangely refreshed.  It felt as though a huge weight had been lifted off of my shoulders.  As you know, the family of Former President Ferdinand E. Marcos buried him yesterday morning in a discreet and intimate burial in the Libingan ng mga Bayani (LNMB).  For the past 30 or so years after his death, Marcos had been kept in a refrigerated casket for all the world to see, his corpse was gawked at or venerated and defiled.  His mortal remains were used as a symbol by loyalists and pro-Aquino alike, sowing division.  It is because of this that President Duterte once and for all decided to put the issue and his mortal remains to rest.  Make no mistake about it, this was a political decision calculated to end division between the loyalists and the pro-Aquino—this does not change the past, but sets a course for our future unburdened by Boogeymen and infighting.

 

I am glad he is buried now and out of sight.  Like Mark Anthony speaking at Caesar’s funeral in Shakespeare’s play, I would simply like to say that “I have come to bury Marcos, not to praise him.  The evil that men do lives after them; the good is oft interred with their bones…”  And so it is with Marcos.  I hope you do not think that simply because he has been buried, his sins are buried with him.

 

“The evil that men do lives after them; the good is oft interred with their bones”

Now that he has been buried, I believe that this country can now really and truly move forward.  While his corpse was above ground, he was the Boogeyman—a legendary monster, a story to spook children from misbehaving.  During the second Aquino administration, it seemed like a running joke to talk about the ills of Martial Law all the while abuses and mismanagement continued.  Our history should never be used to cover up or justify present abuse.  Neither does it justify partisanship when all camps are guilty of mismanagement and abuse.  I sincerely hope that supporters of both sides open their eyes and see things who what it is, both the loyalist camp and the pro-Aquino camp used your hatreds for political ends and took you all for a ride. 

 

For the victims, nothing can replace what you have lost and what you have endured.  The government has recognized this as a turbulent time in our history.  Evil heathen forces carrying Mao Zedong’s ideas and Lenin’s hammer and sickle banner were at our gates.  Marcos chose to fight fire with fire.  The jury is still out on this.  History far removed from partisanship will judge him, as God surely has already.  Today Marcos is buried and worms tear at his flesh, yet the very architects of the Martial Law regime, Juan Ponce Enrile and Former President Fidel Ramos live and enjoy a pride of place in our government.  Victims, you will get more answers and closure from the living than with the dead.

 

Nor do I feel like we have “violated” our history in having him buried there.  As  I said, the jury is still out on this one.  Some groups insist that we as a people are suffering collective amnesia for allowing this, but I say that we are  suffering collective amnesia about those days when Martial Law was declared.  Why was Martial Law declared?  Was it the sensible thing to do at the time?  Was it really the ultimate evil that some groups would have us  believe?  Did we benefit from Martial Law?  The jury is still out on all of these questions.  Hopefully, history will decide with impartiality. 

 

Let us be clear here.  This was not a “hero’s burial.”  This was a plain and simple burial.  Some groups insist that what was done was a hero’s burial.  Well, if they insist.  As earlier mentioned, when a man is buried, the evil he has done lives after him, and the good is often interred with his bones, but this is not strictly correct, Marcos’s legacy spans the full spectrum of very good to the very bad.  We knew he was after the common good, and legislation in the 1970s-80s demonstrated very forward and enlightened thinking.  Contemporary Congresses are hard pressed to match his legal corpus with laws on Muslim family relations, laws on child and youth welfare, laws on labor, laws on overseas workers, laws on land reform, laws on criminal law spanning crimes, penology and procedure, commercial laws on corporations, insurance, still in active use today! Government agencies and corporations were also created to match his vision for the country.  His legacy is not only in the realm of ideas, but also infrastructure, especially in far flung areas, and the modern demography of Mindanao owes it to Marcos’ decision to promote Mindanao as an area for lowland Filipinos to settle in.  Though, I have to admit, this has had grave consequences for the Muslims and indigenous peoples living there, leading to continuous war and strife in the region.  He has made decisions good and bad, he has made contributions both good and bad—these are a given because of his office and title, as even the most enlightened of statesmen would be forced to make difficult decisions.  Marcos was a President of this country, the hard decisions were his to make and only history can judge him now.  

President, Pure Evil or “Boogeyman,” history removed from partisanship

will decide in its own good time

 

If there is anything I want justice for, it would be for the ill-gotten wealth.  With this burial, I hope the Presidential Commission on Good Governance (PCGG) will find renewed drive and vigor to recover the ill-gotten wealth.  Please take heart, all is not lost, as Imee Marcos has admitted, the cases for this ill-gotten wealth remain pending with the courts, so please see these cases through. 

 

In the meantime, the country must move on, and move on we will, less one Boogeyman and less one corpse defiled and used by supporters and detractors alike.

RANT: LIBERALS ALL OVER THE WORLD HAVE TO REASSES THE SITUATION AND REEVALUATE THEMSELVES AND THEIR PRIORITIES

I am really tempted to gloat.  I dislike liberals of the American and even the Filipino variety, and it seems that 2016 is the year that their world fell apart for them.  Indeed, my Facebook feed is filled with their whining and gnashing of teeth.  But gloating is cruel and doing so tends to reduce the righteousness of one’s cause.  It is better to look and examine what happened?  Why did the Duterte and Trump victories catch them off guard, why did their efforts to discredit both of these people and their supporters fail?  It is too simplistic to call the supporters of these populist, firebrand politicians as bobo, retard or idiotic sheep.  Neither is it wrong to say that the liberal “cause” is wrong or unpopular—No, I think the problem is in the liberals themselves, and they should take the time to reflect, reassess and reevaluate themselves and their position.

The state of social media right now. 

How would I characterize a “liberal?”  I use this term loosely because “liberal” can mean many different things depending on context.  Generally speaking, I refer to this as a “political philosophy based on belief in progress, the essential goodness of the human race, and the autonomy of the individual and standing for the protection of political and civil liberties”  (Merriam-Webster Dictionary).  In the United States, these are usually adherents of the Democrat party.  In the Philippines, they are closely linked with the Liberal party.  In fairness to the Liberal Party, it is the closest the Philippines has to an actual political party in the cohesive, traditional and American sense of the word.  Sadly, it seems that their cohesion is due to a figurehead—the son of two so-called “heroes” who gained prominence during the Marcos regime.  The father of this figurehead was supposedly “assassinated” by then President Marcos while his mother became President of the Philippines in a bloodless coup.  This group professes to prioritize human rights, freedom of speech, are against discrimination of any sort, decent behavior and they generally have a favorable view of America and share a lot of these same beliefs with American liberals.  To be fair, a lot of these people are genuinely decent people, its just that they are misguided by their own self-righteousness.

Liberals are self-righteous and sanctimonious
Liberals are so convinced of the righteousness of their position, they welcome no opposing views and look down if not outright humiliate a person espousing a contrary view.  Right now, I dread opening my social media.  All I can see in it, as far as the eyes can see is the incessant whining and tears of Liberal Filipinos.  Its always about the same things:  the libingan ng mga bayani, Trump, Duterte, Delima, and, heck, even the Leni Robredo “tuhod” comment.  And a lot of those concerns are irrational and ad hominem, anyone who cares to point that out gets bashed and groups of liberals would band together and support one another in a circlejerk.  They are prone to superlative, such as comparing former President Ferdinand Marcos to people like Adolf Hitler, Pol Pot and Idi Amin, you know, people who have actually committed genocide as a policy of their state.  Dare to point out that you are cheapening the experience of Holocaust survivors by comparing Hitler to Marcos and you will get a faceful of hate for interrupting the circlejerk.  American liberals are hardly any different, point out the scandals that hound Hillary Clinton and you will be accused of being a misogynist.  

They have a poor grasp of the issues and arguments
To be fair, non-liberals haven’t been the best at “marketing” their position either.  Their position is one of drastic measures—great changes in policy.  They aren’t really accustomed to voicing out their discomfort and their concerns, so they won’t be masters at convincing right away.  Liberals on the other hand, are like professional “whiners” and are accustomed to having a “feel good” stance on issues.  In a way, Liberals have never tried to get our of their comfort zone.  Ask any Liberal what they think of “rape jokes” and they will tell you that “rape jokes are bad [period].”  Ask them to explain why that is the case and 9 times out of 10, you will get crickets.   

They block out contrary opinions
Another thing liberals should learn to do is to listen to contrary opinions.  Try to see where the “other guy” is coming from.  American liberals (AKA Democrats) are seemingly more prone to shutting out contrary opinion than their conservative counterparts.  Reuters reports:

Fourteen percent of respondents in the Reuters/Ipsos poll said they had blocked a family member or close friend from social media because of the election. For Democrats, this rises to 23 percent compared to 8 percent for Republicans.

This goes to show that liberal people are more likely to shut out contrary opinions and ideas from their own.  When thinking in a movement only exists in a circlejerk, critical thinking is lost and that is when the movement loses its relevance.  What better example of this behavior than the Philippine’s own Rappler, a news website with [obvious] liberal leanings, wrote a series of articles about a “propaganda war” predominantly blaming an ordinary blogger Mocha Uson for spreading propaganda thanks to her army of bots (!) hoping to put a stop to her blog.

It is also very easy to see how the liberal coastal cities of America and their wealthy residents can seem so out of touch with the rest of their countrymen.  To them, their main concern is advancing the feminist cause, gay marriage, Hollywood, legalization of Marijuana while non-liberals/Trump supporters had very different concerns:  jobs, immigration, perceived weaknesses in America’s foreign policy.  So therefore, shutting out contrary opinion and a cocooned existence don’t do wonders for liberal PR.  It just makes one seem “elitist.”

Victim Mentality
Liberals can’t seem to comprehend the idea of blaming oneself for one’s failures—they always try to portray themselves as the victim.  In Clinton’s case, she wasn’t seen as fit for the job by many democrats resulting in very low voter turnout.  I wonder if the democrats really expected an easy victory just because she was a woman running against a misogynist?  Worse was that after Trump gave his thank you speech which he tried to fill with as much hope for the future, the most memorable (and retweeted) part of Clinton’s concession speech was something about breaking the “glass ceiling.”  Are they seriously blaming their loss on the fact that she is a woman?

Its a pity that liberals played the gender card thinking that Americans will vote for a person simply on account of her gender.  I’m glad to see that meritocracy still exists in some form over there.  The same victim mentality is rampant among the liberals of the Philippines.  Best example is Senator Leila Delima who keeps bringing up her gender in her numerous press conferences with the liberal media of the Philippines.

What’s Next?
For Filipino liberals, the events of the past year should serve as a wake-up call.  Since you abhor Trump so much, perhaps it is time that you stop placing America on a pedestal and learn to think for yourselves. 

I understand and sympathize with your convictions.  In fact they are very honorable, so please don’t give up.  Learn from your shortcomings.  I will leave you with what I saw on my Facebook feed from a person that I respect has written:

I kind of just want to remind people who are blaming democracy these days that:
A) both Trump and Duterte did not grab power. Don't you just feel grateful that elections remain to be undisrupted in both countries?
B) democracy isn't suddenly wrong because things didn't go your way
C) it's democracy that will let you get up again tomorrow and start your 4 or 6 year campaign.
...
Good night!

Please be guided accordingly!

------
Note:  Please forgive the rant.  This was hastily written so I can get this out while this historic moment remains fresh.  I talk about America and the Philippines.  The near simultaneous elections we had seems to have caused a great deal of grief for many people regardless of whom you support and whatever your values are.  Also, I am no expert in American culture and politics, hence comments, suggestions and corrections are very much welcome.

WHY THE CANCELLED PHILIPPINE–AMERICAN ARMS DEAL ISN’T A BIG DEAL

 

The local and international media once again sensationalized a minor issue.  This time, the Philippine Star a story about a cancelled arms deal with the United State in its front page.  Worse, the Philippine Daily Inquirer tried to turn the image below into a meme.

“Bato saddened by scuttled arms deal of PNP with US”

Source:  inquirer.net

 

Now, whenever the media talks about guns, knowledgeable persons try not to take them seriously as their ignorance is aptly exemplified by the meme below.

 

 source: www.mojosteve.blogspot.com

Since I think that the media sensationalized a simple issue once again, let us try to make sense of it ourselves.

 

Why the deal cancellation makes no sense

The deal was ostensibly cancelled out of concern for “human rights,” the Philippine Star in the abovementioned report states that:

 

The US State Department halted the planned sale of some 26,000 assault rifles to the Philippines’ national police after Sen. Ben Cardin said he would oppose it, Senate aides told Reuters on Monday.

Aides said Cardin, the top Democrat on the Senate Foreign Relations Committee, was reluctant for the United States to provide the weapons given concerns about human rights violations in the Philippines.

The relationship between the United States and the Philippines, a long-time ally, has been complicated lately by President Duterte’s angry reaction to criticism from Washington of his violent battle to rid the country of illegal drugs.

 

We know that this reasoning makes no sense because the United States has previously supplied weapons to regimes which have had questionable human rights track records previously whenever it suits them or whenever it is expedient.  Thus, proceeding from the assumption that Human Rights has absolutely nothing with this, it is safe to say therefore that our relationship was “complicated” not by human rights, but as a result of the country’s realignment or pivot to China as well as “punishment” for continued anti-US rhetoric which has confounded Obama’s own “Pivot to Asia” which many commentators have now declared a failure often citing the Philippines as an example of America’s inability to keep its allies.  This is further implied in a recent article from the Washington Post:

Reuters reported Tuesday that the State Department will stop the weapons sale because of opposition from Sen. Benjamin L. Cardin (Md.), the top Democrat on the U.S. Senate Foreign Relations Committee and a vocal critic of Duterte's "drug war."

Although the State Department did not comment to confirm or deny Reuters's reporting, the head of the Philippine National Police said in a statement that he was “saddened” by the news. Duterte, meanwhile, tried to shrug it off, dismissing the report as a U.S. “scare tactic” and saying the necessary weapons can be purchased somewhere else — like Russia.

Duterte is partly right. Stopping the sale of 26,000 guns is a small gesture, compared with the $9 million in aid that the State Department will give to counternarcotics and law enforcement programs in the Philippines in 2017 and with the $32 million that Secretary of State John F. Kerry pledged this summer for Duterte's law enforcement programs.

But it's a move that is intended to show that some U.S. funding for the Philippines can and will be cut if the president's human rights abuses and anti-U.S. rhetoric continue.

 

So, as the Americans understand it, this isn’t really about human rights, its about anti-US rhetoric.  Keep in mind that the US will have their elections coming up, the current Democrat-dominated government’s inability to keep their alliance with the Philippines has become ammunition by their Republican rivals.  This is retribution, plain and simple.

 

Duterte is not concerned though, he mentioned that if America will not sell us weapons, it is their loss, we will buy from other countries and possibly use locally produced weapons. 

 

M4 Carbines are of an outdated design and is a waste of money

This cancelled deal involves the sale of some 26,000 M4 Carbines.  The M4 Carbine is an updated and shortened version of the original M16 Assault Rifle designed by Eugene Stoner in the 1960s.  Philippine media may have made a big deal out of this because they cling to a belief in the superiority of American firearms, but this is simply not the case.  If you look at the credible militaries all over the world, you will see that very few of them are actually using M-16s or M4 carbines despite their availability.  In the ASEAN region, our neighbors are equipped with

Country	Standard Issue Assault Rifle	Comment
Indonesia	Pindad SS1; Pindad SS2; SAR 21 (special forces)	The SS1 is currently being phased out and will be replaced by the SS2.  Both are locally manufactured.  The SAR 21 is of a bullpup design and is imported from Singapore.  All are chambered for 5.56 x 45 mm NATO
Malaysia	M4 Carbine	Produced under license.  Chambered for 5.56 x 45 mm NATO
Singapore	SAR 21	Bullpup configuration, locally designed and produced.  Chambered for 5.56 x 45 mm NATO
Vietnam	Hodgepodge of Weapons, many Soviet and American leftovers from the war are still in use.  Modern weapons include IWI Tavor TAR-21; Galil ACE	TAR-21 is a bullpup design.  Both the TAR and the Galil are of Israeli origin, the Galil is license built in Vietnam using the old 7.62 x 39 mm round.
Cambodia	Variety of AK-47 and Chinese clones.  QBZ-95 (special forces)	The AK variants are chambered for 7.62 x 39 mm round.  The QBZ-95 is a bullpup design and the variant in use by the Cambodians are chambered for 5.56 x 45 mm NATO.
Thailand	M16A1 (phase out); IWI Tavor TAR-21; SAR 21 (special forces)	The bullpup designed TAR-21 is set to replace the aging M16s in front line service.  These rifles are all chambered for 5.56 x 45 mm NATO.
Brunei	M16A1/A2/A4; SAR 21; Pindad SS2	All are chambered for 5.56 x 45 mm NATO.
Other reference countries
Japan	Howa Type 89	Chambered for 5.56 x 45 mm NATO
India	1B1 INSAS	Locally designed and produced, chambered for 5.56 x 45 mm NATO, standard configuration

 

As the table shows, American assault rifles are, in general, being phased out, and countries tend to be gravitating towards the “bullpup” configuration as exemplified by the TAR-21 and SAR 21.  The M4 carbine is simply a bit old fashioned, it seems bulky and front heavy compared to the SAR, TAR or even Cambodia’s QBZ imports from China.  Worse is that American built M4s are simply not as robust as other models and requires too much maintenance, this was a glaring deficiency discovered as far back as the Vietnam war.  No wonder none of our neighbors are modernizing to these guns.  Are these really the sorts of weapons we want to be equipping our police officers?  They will be fighting house to house, in cramped urban environments, in jungles, they might want a modern bullpup design.  It seems to me that the M4 was only chosen because of our familiarity with the design and because it seems that the US is treating the Philippines is a “captive market” for US arms, we never having had a real opportunity to field test the assault rifles of other nations or to develop our own.  Basically, we should just buy the best weapons for the best price, if that means buying Israeli, Indonesian or Chinese weapons, then so be it!

 

Ammunition compatibility

We may also make a big deal out of a supposed compatibility of existing ammunition with rifles not made by the United States.  This is important because it simplifies logistics and acquisition of weapons and ammunition.  But the mere fact that America refuses to sell us its rifles isn’t as big of a deal as it once was.  During the Cold War, both the West and the Soviet bloc standardized ammunition and magazines to the “NATO Standard,” likewise, the Soviet Bloc adhered to the Warsaw Pact standard.  This means that if two countries belonging to either the NATO or Warsaw standard  Ammunition is fairly standard among

 

Thus assuming we were to find other sources of arms from the Western Bloc, there would be absolutely no compatibility issues using their arms with our existing stockpiles of ammunition and magazines.  This is how we are able to supply Steyr AUG assault rifles to our elite troops with no compatibility issues because the Steyr chambers the same 5.56 x 45 mm NATO round that the M4 does in the same STANAG magazines.

 

Obviously, sourcing weapons from former Soviet Bloc and Chinese countries will cause some issues, but again, the issues are not as difficult to overcome as they may seem.  It is a well known fact that both Russia and the former Soviet republics and China are producing arms for export, that variants of their arms exists that are chambered for the NATO standard.  The government, in dealing with the Chinese or former Soviet bloc countries just has to make sure that they are getting weapons of compatible calibers.

 

A blessing in disguise to the local arms industry?

Duterte has mentioned that the Philippines has its own firearms industry.  This is true, and the fact is, given the situation, we should seriously be looking into the possibility of tapping into our local manufacturers for locally designed and produced weaponry as our Singaporean and Indonesian neighbors are currently doing.

 

Among the pro gun groups in the Philippines, many were quite worried that, in spite of the vibrant gun culture in the Philippines, local arms manufacture would soon cease.  This was because during the time of PNP Chief Alan Purisima, he implemented extremely onerous registration requirements for gun owners.  A firearms owners group, PROGUN has successfully obtained a temporary restraining order against the IRR and has taken the fight to the Senate, but nevertheless, the damage has been done.  Around 2014 – 2015, the ammunition and firearms industry chafed under this regulatory regime and thousands were laid off.  ARMSCOR, a reputable manufacturer based in Marikina City had to lay off 450 workers during this time.

Former PNP Chief Alan Purisima almost destroyed our arms manufacturing industry, for what?  Kickbacks on firearms registration from honest gun owners.

 

Will the current administration help to undo the damage that was done to our industry?  Perhaps it should.  Duterte, a self-avowed Socialist, will readily see that a government infusion of funds into industries wherein we have a competitive advantage, will reap huge dividends.  Government can advance money to possible manufacturers for the for the production of prototypes for the approval of the government.  Once a design is approved and an order is made, Government should advance some money for the construction of factories, hiring of workers and the building of a production line.  The rest of the money can be paid after the delivery of the arms.  All this can be done in 2 to 3 years through proper motivation.  None of this is wishful thinking either.  The Philippines already exports firearms to countries such as the United States and Thailand.  Most of these are sporting rifles and home-defense revolvers, but the innate capacity is already there.

 

In spite of all of his recent bluster, I believe that developing a local armaments industry is something that Former President Fidel Ramos will approve of.  After all, it was during his administration that we embarked on a [stalled] modernization of the AFP and under whom prototypes of helicopters were even produced in the hope they they would enter active service.

 

Note that the cancelled deal was actually a sale that was supposed to take place, this means that funds are actually going to be freed up to fund investments or purchases of arms from other countries, so this isn’t a big loss, and merely represents a delay in the acquisition of new assault rifles.

 

Conclusion

The cancellation of the arms deal is nothing to cry over.  This is probably just America’s way of protesting Duterte’s pivot to China.  Not that this is a big loss, better and cheaper arms can be found elsewhere.  If the United States does not want our money, there are other countries that would love to sell to us.  In the meantime, we should try and take this as an opportunity to depend too much on America, nor should we be beholden to their products, and to develop indigenous capability to produce our own weapons. 

 

 

 

Related:

 Mahindra Trucks:  The PNP Appears Satisfied

On the arms disparity between the Philippines and China

Turning the Bangsamoro region into a politico-military complex