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
No comments:
Post a Comment