1

The Board finds the comment and/or motion to dismiss meritorious. It was not disputed that NHC is a government corporation without an original charter but organized/created under the Corporate Code. [G.R. No. 98107. August 18, 1997] Article IX, Section 2 (1) of the 1987 Constitution provides: The civil service embraces all branches, subdivisions, instrumentalities and agencies of the government, including government owned and controlled corporations with original charters. (underscoring supplied) From the aforequoted constitutional provision, it is clear that respondent NHC is not within the scope of the civil service and is therefore beyond the jurisdiction of this board. Moreover, it is pertinent to state that the 1987 Constitution was ratified and became effective on February 2, 1987. WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed.[6] On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal [7] dismissal with preliminary mandatory injunction against respondent NHC. On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday ruled that petitioner was illegally dismissed from his employment by respondent as there was evidence in the record that the criminal case against him was purely fabricated, prompting the trial court to dismiss the charges against him. Hence, he concluded that the dismissal was illegal as it was devoid of basis, legal or factual. He further ruled that the complaint is not barred by prescription considering that the period from which to reckon the reglementary period of four years should be from the date of the receipt of the decision of the Civil Service Commission promulgated on April 11, 1989. He also ratiocinated that: It appears x x x complainant filed the complaint for illegal dismissal with the Civil Service Commission on January 6, 1989 and the same was dismissed on April 11, 1989 after which on April 28, 1989, this case was filed by the complainant. Prior to that, this case was ruled upon by the Supreme Court on January 17, 1985 which enjoined the complainant to go to the Civil Service Commission which in fact, complainant did. Under the circumstances, there is merit on the contention that the running of the reglementary period of four (4) years was suspended with the filing of the complaint with the said Commission. Verily, it was not the fault of the respondent for failing to file the complaint as alleged by the respondent but due to, in the words of the complainant, a legal knot that has to be untangled.[8] Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of which reads: "Premises considered, judgment is hereby rendered declaring the dismissal of the complainant as illegal and ordering the respondent to immediately reinstate him to his former position

BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and NATIONAL HOUSING CORPORATION, respondents. DECISION HERMOSISIMA, JR., J.: This is a petition for certiorari to set aside the Decision of the National Labor Relations Commission (NLRC) dated March 14, 1991, which reversed the Decision dated May 21, 1990 of Labor Arbiter Manuel R. Caday, on the ground of lack of jurisdiction. Petitioner Benjamin C. Juco was hired as a project engineer of respondent National Housing Corporation (NHC) from November 16, 1970 to May 14, 1975. On May 14, 1975, he was separated from the service for having been implicated in a crime of theft and/or malversation of public funds. On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC with the Department of Labor. On September 17, 1977, the Labor Arbiter rendered a decision dismissing the [1] complaint on the ground that the NLRC had no jurisdiction over the case. Petitioner then elevated the case to the NLRC which rendered a decision on [2] December 28, 1982, reversing the decision of the Labor Arbiter. Dissatisfied with the decision of the NLRC, respondent NHC appealed before this Court and on January 17, 1985, we rendered a decision, the dispositive portion thereof reads as follows: WHEREFORE, the petition is hereby GRANTED. The questioned decision of the respondent National Labor Relations Commission is SET ASIDE. The decision of the Labor Arbiter dismissing the case before it for lack of jurisdiction is REINSTATED.[3] On January 6, 1989, petitioner filed with the Civil Service Commission a [4] complaint for illegal dismissal, with preliminary mandatory injunction. On February 6, 1989, respondent NHC moved for the dismissal of the complaint [5] on the ground that the Civil Service Commission has no jurisdiction over the case. On April 11, 1989, the Civil Service Commission issued an order dismissing the complaint for lack of jurisdiction. It ratiocinated that:

2
without loss of seniority rights with full back wages inclusive of allowance and to his other benefits or equivalent computed from the time it is withheld from him when he was dismissed on March 27, 1977, until actually reinstated.[9] On June 1, 1990, respondent NHC filed its appeal before the NLRC and on March 14, 1991, the NLRC promulgated a decision which reversed the decision of [10] Labor Arbiter Manuel R. Caday on the ground of lack of jurisdiction. The primordial issue that confronts us is whether or not public respondent committed grave abuse of discretion in holding that petitioner is not governed by the Labor Code. Under the laws then in force, employees of government-owned and /or controlled corporations were governed by the Civil Service Law and not by the Labor Code. Hence, Article 277 of the Labor Code (PD 442) then provided: "The terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations shall be governed by the Civil Service Law, rules and regulations x x x. The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided: The Civil Service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations. Although we had earlier ruled in National Housing Corporation v. Juco, that employees of government-owned and/or controlled corporations, whether created by special law or formed as subsidiaries under the general Corporation Law, are governed by the Civil Service Law and not by the Labor Code, this ruling has been supplanted by the 1987 Constitution. Thus, the said Constitution now provides: The civil service embraces all branches, subdivision, instrumentalities, and agencies of the Government, including government owned or controlled corporations with original charter. (Article IX-B, Section 2[1]) In National Service Corporation (NASECO) v. National Labor Relations [12] Commission, we had the occasion to apply the present Constitution in deciding whether or not the employees of NASECO are covered by the Civil Service Law or the Labor Code notwithstanding that the case arose at the time when the 1973 Constitution was still in effect. We ruled that the NLRC has jurisdiction over the employees of NASECO on the ground that it is the 1987 Constitution that governs because it is the Constitution in place at the time of the decision. Furthermore, we ruled that the new phrase with original charter means that government -owned and controlled corporations refer to corporations chartered by special law as distinguished from corporations organized under the Corporation Code. Thus, NASECO which had
[11]

been organized under the general incorporation stature and a subsidiary of the National Investment Development Corporation, which in turn was a subsidiary of the Philippine National Bank, is excluded from the purview of the Civil Service Commission. We see no cogent reason to depart from the ruling in the aforesaid case. In the case at bench, the National Housing Corporation is a government owned corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporation, dated January 1, 1959. Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 1459, the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the Peoples [13] Homesite and Housing Corporation. Considering the fact that the NHA had been incorporated under act 1459, the former corporation law, it is but correct to say that it is a government-owned or controlled corporation whose employees are subject to the provisions of the Labor Code. This observation is reiterated in recent case of Trade Union of the Philippines and Allied Services (TUPAS) v. National Housing [14] Corporation, where we held that the NHA is now within the jurisdiction of the Department of Labor and Employment, it being a government-owned and/or controlled corporation without an original charter. Furthermore, we also held that the workers or employees of the NHC (now NHA) undoubtedly have the right to form unions or employees organization and that there is no impediment to the holding of a certification election among them as they are covered by the Labor Code. Thus, the NLRC erred in dismissing petitioners complaint for lack of jurisdiction because the rule now is that the Civil Service now covers only government-owned or [15] controlled corporations with original charters. Having been incorporated under the Corporation Law, its relations with its personnel are governed by the Labor Code and come under the jurisdiction of the National Labor Relations Commission. One final point. Petitioners have been tossed from one forum to another for a simple illegal dismissal case. It is but apt that we put an end to his dilemma in the interest of justice. WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089 dated March 14, 1991 is hereby REVERSED and the Decision of the Labor Arbiter dated May 21, 1990 is REINSTATED. SO ORDERED. G.R. No. 100947 May 31, 1993 PNOC ENERGY DEVELOPMENT TONGCO, petitioners, vs. NATIONAL LABOR RELATIONS PINEDA, respondents. CORPORATION and MARCELINO

COMMISSION

and

MANUEL

S.

3
Alikpala, Gomez & Associates Law Office for petitioners. Filomeno A. Zieta for private respondent. elect of the Municipality of Kananga, Leyte. And despite so qualifying as councilor, and assuming his duties as such, he continued working for PNOC-EDC as the latter's Geothermal Construction Secretary, Engineering and Construction Department, at Tongonan Geothermal Project, Ormoc City. On June 7, 1988, Marcelino M. Tongco, Department Manager of the Engineering and Construction Department, PNOC-EDC, addressed an inquiry to the latter's Legal Department regarding the status of Manuel S. Pineda as employee in view of his 5 candidacy for the office of municipal councilor. In response, the Legal Department rendered an opinion to the effect that Manuel S. Pineda should be considered ipso facto resigned upon the filing of his Certificate of Candidacy in November, 1987, in 6 accordance with Section 66 of the Omnibus Election Code. Pineda appealed the PNOC-EDC Legal Department's ruling to N.C. Vasquez, the 7 Vice-President of PNOC-EDC, on July 14, 1988. In his letter of appeal, he invoked a "court ruling in the case of Caagusan and Donato vs. PNOC-Exploration Corp. . . . (to the effect that) while the government-owned or controlled corporations are covered by the Civil Service Law (as is taken to mean in Sec. 66 of the Omnibus Election Code of 1985) (sic), the subsidiaries or corporate offsprings are not." In the same letter he declared his wish to continue resign from his position as councilor/member of the Sangguniang Bayan. He also wrote a letter dated October 1, 1988 to the Department of Local Government inquiring about the status of his employment with PNOC-EDC in relation to his election as member of the Sangguniang Bayan. He was advised by DLG Undersecretary Jacinto T. Rubillo, Jr., by letter dated March 31, 1989, that there was no legal impediment to his continuing in his employment with PNOC-EDC while holding at the same time the elective position of municipal councilor. Cited as basis by Undersecretary Rubillo was Section 2(1) Article IX-B of the 1987 Constitution and this Court's ruling in NASECO vs. NLRC, 168 SCRA 122. Undersecretary Rubillo went on to say that Pineda could receive his per diems as municipal councilor as well as the corresponding representation and transportation allowance [RATA] "provided the 8 PNOC-EDC charter does not provide otherwise and public shall not be prejudiced." The PNOC-EDC did not, however, share the Undersecretary's views. On January 26, 1989, the PNOC-EDC, through Marcelino Tongco (Manager, Engineering and Construction Department), notified Manuel S. Pineda in writing (1) that after having given him "ample time" to make some major adjustments before . . . separation from the company," his employment was being terminated pursuant to Section 66 of the Omnibus Election Code, effective upon receipt of notice, and (2) that he was entitled to "proper compensation" for the services rendered by him from the time he filed his 9 certificate of candidacy until his actual separation from the service. On October 16, 1989, Pineda lodged a complaint for illegal dismissal in the Regional Arbitration Branch No. VIII, NLRC, Tacloban City. Impleaded as respondents were the PNOC-EDC and the Manager of its Engineering and Construction Department, 10 Marcelino M. Tongco.
4

NARVASA, C.J.: The applicability to private respondent Manuel S. Pineda of Section 66 of the Election Code is what is chiefly involved in the case at bar. Said section reads as follows: Sec. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Manuel S. Pineda was employed with the Philippine National Oil Co.-Energy Development Corp. (PNOC-EDC), as subsidiary of the Philippine National Oil Co., from September 17, 1981, when he was hired as clerk, to January 26, 1989, when his employment was terminated. The events leading to his dismissal from his job are not disputed. In November, 1987, while holding the position of Geothermal Construction Secretary, Engineering and Construction Department, at Tongonan Geothermal Project, Ormoc City, Pineda decided to run for councilor of the Municipality of Kananga, Leyte, in the local elections scheduled in January, 1988, and filed the corresponding certificate of candidacy for the position. Objection to Pineda's being a candidate while retaining his job in the PNOC-EDC was shortly thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte. The mayor communicated with the PNOC-EDC thru Engr. Ernesto Patanao, Resident Manager, Tongonan Geothermal Project to express the view that Pineda could not actively participate in politics unless he officially resigned from 1 PNOC-EDC. Nothing seems to have resulted from this protest. The local elections in Leyte, scheduled for January, 1988, were reset to and held on February 1, 1988. Pineda was among the official candidates voted for, and eventually proclaimed elected to, the office of councilor. Some vacillation appears to have been evinced by Pineda at about this time. On February 8, 1988, he wrote to the COMELEC Chairman, expressing his desire to withdraw from the political contest on account of 2 what he considered to be election irregularities; and on March 19, 1988, he wrote to the Secretary of Justice seeking legal opinion on the question, among others, of whether or not he was "considered automatically resigned upon . . . filing of . . . (his) certificate of candidacy," and whether or not, in case he was elected, he could "remain appointed to any corporate offspring of a government-owned or controlled 3 corporation." Nevertheless, Pineda took his oath of office in June, 1988 as councilor-

4
After due proceedings, Labor Arbiter Araceli H. Maraya, to whom the case was 11 assigned, rendered a decision on December 28, 1990, declaring Manuel S. Pineda's dismissal from the service illegal, and ordering his reinstatement to his former position without loss of seniority rights and payment of full back wages corresponding to the period from his illegal dismissal up to the time of actual reinstatement. The Arbiter pointed out that the ruling relied upon by PNOC-EDC to justify Pineda's dismissal from 12 the service, i.e., NHA v. Juco, had already been abandoned; and that "as early as November 29, 1988," the governing principle laid down by case law in light of 13 Section 2 (1), Article IX-B of the 1987 Constitution has been that governmentowned or controlled corporations incorporated under the Corporation Code, the general law as distinguished from those created by special charter are not deemed to be within the coverage of the Civil Service Law, and consequently their employees, like those of the PNOC-EDC, are subject to the provisions of the Labor 14 Code rather than the Civil Service Law. The PNOC-EDC filed an appeal with the National Labor Relations Commission. The latter dismissed the appeal for lack of merit in a decision dated April 24, 15 16 1991. PNOC-EDC sought reconsideration; its motion was denied by the 17 Commission in a Resolution dated June 21, 1991. It is this decision of April 24, 1991 and the Resolution of June 21, 1991 that the PNOC-EDC seeks to be annulled and set aside in the special civil action for certiorari at bar. It contends that the respondent Commission gravely abused its discretion: 1) when it ruled that Manuel S. Pineda was not covered by the Civil Service Rules when he filed his candidacy for the 1988 local government elections in November 1987; 2) when it ruled that Pineda was not covered by the Omnibus Election Code at the time he filed his certificate of candidacy for the 1988 local elections; 3) when it ruled that Pineda was illegally dismissed despite the fact that he was considered automatically resigned pursuant to Section 66 of the Omnibus Election Code; and 4) when it ruled that Pineda could occupy a local government position and be simultaneously employed in a government-owned or controlled corporation, a situation patently violative of the constitutional prohibition on additional compensation. Acting on the petition, this Court issued a temporary restraining order enjoining the respondent NLRC from implementing or enforcing its decision and resolution dated April 24, 1991 and June 21, 1991, respectively. In the comment required of him by the Court, the Solicitor General expressed agreement with the respondent Commission's holding that Manuel Pineda had indeed been illegally separated from his employment in the PNOC-EDC; in other words, that his running for public office and his election thereto had no effect on his employment with the PNOC-EDC, a corporation not embraced within the Civil Service. Petitioner PNOC-EDC argues that at the time that Pineda filed his certificate of candidacy for municipal councilor in November, 1987, the case law "applicable as far as coverage of government-owned or controlled corporations are concerned . . . ( was 18 to the following effect): As correctly pointed out by the Solicitor General, the issue of jurisdiction had been resolved in a string of cases starting with the National Housing Authority vs. Juco (134 SCRA 172) followed byMetropolitan Waterworks and Sewerage System vs. Hernandez (143 SCRA 602) and the comparatively recent case of Quimpo vs. Sandiganbayan (G.R. No. 72553, Dec. 2, 1986) in which this Court squarely ruled that PNOC subsidiaries, whether or not originally created as government-owned or controlled corporations are governed by the Civil Service Law. This doctrine, petitioner further argues, was not "automatically reversed" by the 1987 Constitution because not "amended or repealed by the Supreme Court or the 19 Congress;" and this Court's decision in November, 1988, in National Service 20 Corporation vs. NLRC, supra abandoning the Juco ruling "cannot be given retroactive effect . . . (in view of ) the time-honored principle . . . that laws (judicial decisions included) shall have no retroactive effect, unless the contrary is provided (Articles 4 and 8 of the New Civil Code of the Philippines)." Section 2 (1), Article IX of the 1987 Constitution provides as follows: The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. Implicit in the provision is that government-owned or controlled corporations without original charters i.e., organized under the general law, the Corporation Code are not comprehended within the Civil Service Law. So has this Court construed the 21 provision. In National Service Corporation (NASECO), et al. v. NLRC, et al., etc., decided on November 29, 1988, it was ruled that the 1987 Constitution "starkly varies" from the 1973 charter upon which the Juco doctrine rested in that unlike the latter, the present constitution qualifies the term, "government-owned or controlled corporations," by the phrase, "with original charter;" hence, the clear implication is that the Civil Service no longer includes government-owned or controlled corporations without
22

5
original charters, i.e., those organized under the general corporation law. NASECO further ruled that the Juco ruling should not apply retroactively, considering that prior to its promulgation on January 17, 1985, this Court had expressly recognized the 24 applicability of the Labor Code to government-owned or controlled corporations. Lumanta, et al. v. NLRC, et al., decided on February 8, 1989, made the same pronouncement: that Juco had been superseded by the 1987 Constitution for implicit in the language of Section 2 (1), Article IX thereof, is the proposition that governmentowned or controlled corporations without original charter do not fall under the Civil Service Law but under the Labor Code. And in PNOC-EDC v. Leogardo, etc., et al., promulgated on July 5, 1989, this Court ruled that conformably with the apparent intendment of the NASECO case, supra, since the PNOC-EDC, a government-owned or controlled company had been incorporated under the general Corporation Law, its employees are subject to the provisions of the Labor Code. It is thus clear that the Juco doctrine prevailing at the time of the effectivity of the fundamental charter in 1987 i.e., that government-owned or controlled corporations were part of the Civil Service and its employees subject to Civil Service laws and 27 regulations, regardless of the manner of the mode of their organization or incorporation is no longer good law, being at "stark variance," to paraphrase NASECO, with the 1987 Constitution. In other words, and contrary to the petitioner's view, as of the effectivity of the 1987 Constitution, government-owned or controlled corporations without original charters, or, as Mr. Justice Cruz insists in his 28 concurring opinion inNASECO v. NLRC, a legislative charter (i.e., those organized under the Corporation Code), ceased to pertain to the Civil Service and its employees could no longer be considered as subject to Civil Service Laws, rules or regulations. The basic question is whether an employee in a government-owned or controlled corporations without an original charter (and therefore not covered by Civil Service Law) nevertheless falls within the scope of Section 66 of the Omnibus Election Code, viz.: Sec. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. When the Congress of the Philippines reviewed the Omnibus Election Code of 1985, in connection with its deliberations on and subsequent enactment of related and repealing legislation i.e., Republic Acts Numbered 7166: "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991), 6646: "An Act Introducing Additional Reforms in the Electoral System and for Other
26 25 23

Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc., (effective November 6, 1987), it was no doubt aware that in light of Section 2 (1), Article IX of the 1987 Constitution: (a) government-owned or controlled corporations were of two (2) categories those with original charters, and those organized under the general law and (b) employees of these corporations were of two (2) kinds those covered by the Civil Service Law, rules and regulations because employed in corporations having original charters, and those not subject to Civil Service Law but to the Labor Code because employed in said corporations organized under the general law, or the Corporation Code. Yet Congress made no effort to distinguish between these two classes of government-owned or controlled corporations or their employees in the Omnibus Election Code or subsequent related statutes, particularly as regards the rule that any employee " in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon 29 the filing of his certificate of candidacy." Be this as it may, it seems obvious to the Court that a government-owned or controlled corporation does not lose its character as such because not possessed of an original charter but organized under the general law. If a corporation's capital stock is owned by the Government, or it is operated and managed by officers charged with the mission of fulfilling the public objectives for which it has been organized, it is a government-owned or controlled corporation even if organized under the Corporation Code and not under a special statute; and employees thereof, even if not covered by the Civil Service but by the Labor Code, are nonetheless " employees in governmentowned or controlled corporations," and come within the letter of Section 66 of the Omnibus Election Code, declaring them "ipso facto resigned from . . . office upon the filing of . . . (their) certificate of candidacy." What all this imports is that Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just cause for termination of employment in addition to those set forth in the Labor Code, as amended. The conclusions here reached make unnecessary discussion and resolution of the other issues raised in this case. WHEREFORE, the petition is GRANTED; the decision of public respondent National Labor Relations Commission dated April 24, 1991 and its Resolution dated June 21, 1991 are NULLIFIED AND SET ASIDE; and the complaint of Manuel S. Pineda is DISMISSED. No costs. SO ORDERED.

6
G.R. No. 87676 December 20, 1989 REPUBLIC OF THE PHILIPPINES, represented by the NATIONAL PARKS DEVELOPMENT COMMITTEE,petitioner, vs. THE HON. COURT OF APPEALS and THE NATIONAL PARKS DEVELOPMENT SUPERVISORY ASSOCIATION & THEIR MEMBERS, respondents. Bienvenido D. Comia for respondents. On June 15, 1987, two collective bargaining agreements were entered into between NPDC and NPDCEA (TUPAS local Chapter No. 967) and NPDC and NPDCSA (TUPAS Chapter No. 1206), for a period of two years or until June 30, 1989. GRIO-AQUINO, J.: The Regional Trial Court of Manila, Branch III, dismissed for lack of jurisdiction, the petitioner's complaint in Civil Case No. 88- 44048 praying for a declaration of illegality of the strike of the private respondents and to restrain the same. The Court of Appeals denied the petitioner's petition for certiorari, hence, this petition for review. The key issue in this case is whether the petitioner, National Parks Development Committee (NPDC), is a government agency, or a private corporation, for on this issue depends the right of its employees to strike. This issue came about because although the NPDC was originally created in 1963 under Executive Order No. 30, as the Executive Committee for the development of the Quezon Memorial, Luneta and other national parks, and later renamed as the National Parks Development Committee under Executive Order No. 68, on September 21, 1967, it was registered in the Securities and Exchange Commission (SEC) as a nonstock and non-profit corporation, known as "The National Parks Development Committee, Inc." However, in August, 1987, the NPDC was ordered by the SEC to show cause why its Certificate of Registration should not be suspended for: (a) failure to submit the General Information Sheet from 1981 to 1987; (b) failure to submit its Financial Statements from 1981 to 1986; (c) failure to register its Corporate Books; and (d) failure to operate for a continuous period of at least five (5) years since September 27, 1967. On August 18, 1987, the NPDC Chairman, Amado Lansang, Jr., informed SEC that his Office had no objection to the suspension, cancellation, or revocation of the Certificate of Registration of NPDC. By virtue of Executive Order No. 120 dated January 30, 1989, the NPDC was attached to the Ministry (later Department) of Tourism and provided with a separate budget subject to audit by the Commission on Audit. On March 20, 1988, these unions staged a stake at the Rizal Park, Fort Santiago, Paco Park, and Pook ni Mariang Makiling at Los Banos, Laguna, alleging unfair labor practices by NPDC. On March 21, 1988, NPDC filed in the Regional Trial Court in Manila, Branch III, a complaint against the union to declare the strike illegal and to restrain it on the ground that the strikers, being government employees, have no right to strike although they may form a union. On March 24, 1988, the lower court dismissed the complaint and lifted the restraining order for lack of jurisdiction. It held that the case "properly falls under the jurisdiction of the Department of Labor," because "there exists an employer-employee relationship" between NPDC and the strikers, and "that the acts complained of in the complaint, and which plaintiff seeks to enjoin in this action, fall under paragraph 5 of Article 217 of the Labor Code, ..., in relation to Art. 265 of the same Code, hence, jurisdiction over said acts does not belong to this Court but to the Labor Arbiters of the Department of Labor." (p. 142, Rollo.). Petitioner went to the Court of Appeals on certiorari (CA-G.R. SP No. 14204). On March 31, 1989, the Court of appeals affirmed the order of the trial court, hence, this petition for review. The petitioner alleges that the Court of Appeals erred: 1) in not holding that the NPDC employees are covered by the Civil Service Law; and 2) in ruling that petitioner's labor dispute with its employees is cognizable by the Department of Labor. We have considered the petition filed by the Solicitor General on behalf of NPDC and the comments thereto and are persuaded that it is meritorious. On September 10, 1987, the Civil Service Commission notified NPDC that pursuant to Executive Order No. 120, all appointments and other personnel actions shall be submitted through the Commission. Meanwhile, the Rizal Park Supervisory Employees Association, consisting of employees holding supervisory positions in the different areas of the parks, was organized and it affiliated with the Trade Union of the Philippines and Allied Services (TUPAS) under Certificate No. 1206.

7
In Jesus P. Perlas, Jr. vs. People of the Philippines, G.R. Nos. 84637-39, August 2, 1989, we ruled that the NPDC is an agency of the government, not a governmentowned or controlled corporation, hence, the Sandiganbayan had jurisdiction over its acting director who committed estafa. We held thus: The National Parks Development Committee was created originally as an Executive Committee on January 14,1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and ViceChairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981). Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A Perlas, Item No. 2, 3). (Italics ours.) Since NPDC is a government agency, its employees are covered by civil service rules and regulations (Sec. 2, Article IX, 1987 Constitution). Its employees are civil service employees (Sec. 14, Executive Order No. 180). While NPDC employees are allowed under the 1987 Constitution to organize and join unions of their choice, there is as yet no law permitting them to strike. In case of a labor dispute between the employees and the government, Section 15 of Executive Order No. 180 dated June 1, 1987 provides that the Public Sector LaborManagement Council, not the Department of Labor and Employment, shall hear the dispute. Clearly, the Court of Appeals and the lower court erred in holding that the labor dispute between the NPDC and the members of the NPDSA is cognizable by the Department of Labor and Employment. WHEREFORE, the petition for review is granted. The decision of the Court of Appeals in CA-G.R. SP No. 14204 is hereby set aside. The private respondents' complaint should be filed in the Public Sector Labor-Management Council as provided in Section 15 of Executive Order No. 180. Costs against the private respondents. SO ORDERED. G.R. Nos. 109095-109107 February 23, 1995 ELDEPIO LASCO, RODOLFO ELISAN, URBANO BERADOR, FLORENTINO ESTOBIO, MARCELINO MATURAN, FRAEN BALIBAG, CARMELITO GAJOL, DEMOSTHENES MANTO, SATURNINO BACOL, SATURNINO LASCO, RAMON LOYOLA, JOSENIANO B. ESPINA, all represented by MARIANO R. ESPINA, petitioner, vs. UNITED NATIONS REVOLVING FUND FOR NATURAL RESOURCES EXPLORATION (UNRFNRE) represented by its operations manager, DR. KYRIACOS LOUCA, OSCAR N. ABELLA, LEON G. GONZAGA, JR., MUSIB M. BUAT, Commissioners of National Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro City and IRVING PETILLA, Labor Arbiter of Butuan City, respondents.

QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Resolution dated January 25, 1993 of the National Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro City. We dismiss the petition. I Petitioners were dismissed from their employment with private respondent, the United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE), which is a special fund and subsidiary organ of the United Nations. The UNRFNRE is involved in a joint project of the Philippine Government and the United Nations for exploration work in Dinagat Island. Petitioners are the complainants in NLRC Cases Nos. SRAB 10-03-00067-91 to 1003-00078-91 and SRAB 10-07-00159-91 for illegal dismissal and damages. In its Motion to Dismiss, private respondent alleged that respondent Labor Arbiter had no jurisdiction over its personality since it enjoyed diplomatic immunity pursuant to the 1946 Convention on the Privileges and Immunities of the United Nations. In support thereof, private respondent attached a letter from the Department of Foreign Affairs dated August 26, 1991, which acknowledged its immunity from suit. The letter confirmed that private respondent, being a special fund administered by the United Nations, was covered by the 1946 Convention on the Privileges and Immunities of the United Nations of which the Philippine Government was an original signatory (Rollo, p. 21).

8
On November 25, 1991, respondent Labor Arbiter issued an order dismissing the complaints on the ground that private respondent was protected by diplomatic immunity. The dismissal was based on the letter of the Foreign Office dated September 10, 1991. Petitioners' motion for reconsideration was denied. Thus, an appeal was filed with the NLRC, which affirmed the dismissal of the complaints in its Resolution dated January 25, 1993. Petitioners filed the instant petition for certiorari without first seeking a reconsideration of the NLRC resolution. II Article 223 of the Labor Code of the Philippines, as amended, provides that decisions of the NLRC are final and executory. Thus, they may only be questioned through certiorari as a special civil action under Rule 65 of the Revised Rules of Court. Ordinarily, certiorari as a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors (Liberty Insurance Corporation v. Court of Appeals, 222 SCRA 37 [1993]). In the case at bench, petitioners' failure to file a motion for reconsideration is fatal to the instant petition. Moreover, the petition lacks any explanation for such omission, which may merit its being considered as falling under the recognized exceptions to the necessity of filing such motion. Notwithstanding, we deem it wise to give due course to the petition because of the implications of the issue in our international relations. Petitioners argued that the acts of mining exploration and exploitation are outside the official functions of an international agency protected by diplomatic immunity. Even assuming that private respondent was entitled to diplomatic immunity, petitioners insisted that private respondent waived it when it engaged in exploration work and entered into a contract of employment with petitioners. Petitioners, likewise, invoked the constitutional mandate that the State shall afford full protection to labor and promote full employment and equality of employment opportunities for all (1987 Constitution, Art. XIII, Sec. 3). The Office of the Solicitor General is of the view that private respondent is covered by the mantle of diplomatic immunity. Private respondent is a specialized agency of the United Nations. Under Article 105 of the Charter of the United Nations: 1. The Organization shall enjoy in the territory of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization. Corollary to the cited article is the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, to which the Philippines was a signatory (Vol. 1, Philippine Treaty Series, p. 621). We quote Sections 4 and 5 of Article III thereof: Sec. 4. The specialized agencies, their property and assets, wherever located and by whomsoever held shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution (Emphasis supplied). Sec. 5. The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action (Emphasis supplied). As a matter of state policy as expressed in the Constitution, the Philippine Government adopts the generally accepted principles of international law (1987 Constitution, Art. II, Sec. 2). Being a member of the United Nations and a party to the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force and effect of law. In World Health Organization v. Aquino, 48 SCRA 242, (1972), we had occasion to rule that: It is a recognized principle of international law and under our system of separation of powers thatdiplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon

9
appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that " in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction (Emphasis supplied). We recognize the growth of international organizations dedicated to specific universal endeavors, such as health, agriculture, science and technology and environment. It is not surprising that their existence has evolved into the concept of international immunities. The reason behind the grant of privileges and immunities to international organizations, its officials and functionaries is to secure them legal and practical independence in fulfilling their duties (Jenks, International Immunities 17 [1961]). Immunity is necessary to assure unimpeded performance of their functions. The purpose is "to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions" (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). In the International Catholic Migration Commission case, we held that there is no conflict between the constitutional duty of the State to protect the rights of workers and to promote their welfare, and the grant of immunity to international organizations. Clauses on jurisdictional immunity are now standard in the charters of the international organizations to guarantee the smooth discharge of their functions. The diplomatic immunity of private respondent was sufficiently established by the letter of the Department of Foreign Affairs, recognizing and confirming the immunity of UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities of the United Nations where the Philippine Government was a party. The issue whether an international organization is entitled to diplomatic immunity is a "political question" and such determination by the executive branch is conclusive on the courts and quasijudicial agencies (The Holy See v. Hon. Eriberto U. Rosario, Jr., G.R. No. 101949, Dec. 1, 1994; International Catholic Migration Commission v. Calleja, supra). Our courts can only assume jurisdiction over private respondent if it expressly waived its immunity, which is not so in the case at bench (Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, Art. III, Sec. 4). Private respondent is not engaged in a commercial venture in the Philippines. Its presence here is by virtue of a joint project entered into by the Philippine Government and the United Nations for mineral exploration in Dinagat Island. Its mission is not to exploit our natural resources and gain pecuniarily thereby but to help improve the quality of life of the people, including that of petitioners. This is not to say that petitioner have no recourse. Section 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations states that "each specialized agency shall make a provision for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party." WHEREFORE, the petition is DISMISSED. SO ORDERED. EN BANC [G.R. No. L-9245. October 11, 1956.] THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DOMINADOR PANIS, Defendant, ALLIANCE INSURANCE & SURETY CO., INC., Petitioner-Appellant.

DECISION BAUTISTA ANGELO, J.: Dominador Panis was accused of illegal possession of firearm in the Municipal Court of the City of Legaspi. He was given provisional liberty on a bond filed by the Visayan Surety and Insurance Corporation. Because of his failure to appear when required by the court, an order was issued for the confiscation of his bond. Subsequently, another bail bond was filed by the World Wide Insurance & Surety Co., Inc. also for his provisional release. On September 17, 1952 the Municipal Court forwarded the case to the Court of First Instance of Albay for trial on the merits, it appearing that this case had been pending trial since July 17, 1950, and every time that this case was set for hearing for 8 times now, the trial had been postponed all at the request of the accused. On September 19, 1952, the city attorney filed an information against the accused for same offense, and, thereafter, upon petition of the city attorney, the court ordered on September 3, 1953, the confiscation of the bonds filed for the accused on account of his failure to appear on the date of the hearing, giving the bondsmen 30 days within which to produce their principal and to show the cause why judgment should not be rendered against them for the amount of their bonds. On December 23, 1953, the Visayan Surety & Insurance Corporation and the World Wide Insurance & Surety Co., Inc., filed motions (1) to surrender the accused, (2) to lift the order of confiscation, and, (3) to have their bonds cancelled. On the same date, the accused filed a motion to file a new bond promising that he will always appear in the future hearing to be scheduled by this Honorable Court and will never jump up his bail. This motion having been favorably acted upon, the herein, Appellant, Alliance Insurance & Surety Co., Inc., filed a bond in the amount of P2,000 for the provisional release of the accused.

10
On January 29, 1954, Appellant was duly notified that the case would be heard on February 10, 1954. On account of the failure of the accused to appear on said date, the court ordered the confiscation of the bond and gave Appellant 30 days within which to produce the person of the accused and to explain its reasons if any, why judgment should not be rendered against it for the amount of the bond. Copy of this order was received by Appellant on February 16, 1954. On February 23, 1954, the city attorney filed a motion to dismiss the case alleging that, upon reinvestigation, it was belatedly shown that on July 13, 1950, the date when the accuse was found in possession of a firearm, the Philippine Constabulary had issued in his favor a temporary permit to possess a firearm for a period of 30 days from June 30, 1950. Upon petition of the provincial fiscal filed on July 6, 1954, the court issued an order of execution of the order of forfeiture entered on February 10, 1954 not only of the bonds filed by the original bondsmen, but also of the bond of P2,000 filed by Appellant and, on July 29, 1954, acting upon the motion to dismiss filed by the government the court dismissed the case against the accused. On September 24, 1954, Appellant filed a motion to set aside the order of execution in so far as its bond is concerned, praying at the same time that the same be cancelled, which motion was denied for lack of merit on September 25, 1954. Its motion for reconsideration having been denied, Appellant interposed the present appeal. It appears that Appellant, Alliance Insurance & Surety Co., Inc., is the third bonding company that was secured by the accused when he was surrendered to the court by his previous bondsmen because of his several failures to appear when his presence was required by the court, and Appellant only came in on December 22, 1953. It also appears that on January 29, 1954, the accused was notified that the case would be heard on February 10, 1954, and when he again failed to appear, the court ordered the confiscation of the bond and gave Appellant30 days within which to produce the person of the accused and to explain its reasons, if any, why judgment should not be rendered against it for the amount of the bond. Copy of the order was received by the Appellant on February 16, 1954. On February 23, 1954, the government filed a motion to dismiss because it was found that the accused had a temporary permit to possess the firearm involved, but before acting on said motion to dismiss, the court, on petition of the provincial fiscal, issued on July 7, 1954, an order of execution of the order of forfeiture of the bonds entered on February 10, 1954. It was only on July 29, 1954 that the court dismissed the case against the accused. It therefore, appears that the motion to dismiss the case was filed by the city attorney only 13 days after the order of confiscation of the bond and within the period of 30 days given toAppellant within which to show cause why judgment should not be rendered against it for the amount of the bond. But the court instead of acting on the motion to dismiss immediately, it first ordered the execution of the order of confiscation even if the same was done upon the petition of the city attorney. Considering that the motion to dismiss the case was filed before the expiration of the 30-day period granted to Appellant to explain its reasons why judgment should not be rendered against it for the amount of the bond, we are of the opinion that the court has acted somewhat harshly against Appellant even if the explanation of the latter for its failure to produce the accused came months after. Said motion to dismiss having been filed before the expiration of the 30 day period, Appellant had reason to expect that the same would be acted upon before considering the motion for execution, which circumstance has apparently induced it to believe that the production of the accused was unnecessary. And when the order of execution came, Appellant lost no time in filing a motion for reconsideration wherein it explained the steps it had taken leading to the arrest of the accused. Thus, in the affidavit submitted by the arresting officer employed by Appellant to produce the accused, the officer stated that the reason why he was not able to arrest and bring the accused before the court was that the accused told him that he could only be brought a dead body, and when confronted with this attitude, he sought the assistance of the local police force of Guimba, Nueva Ecija, but the assistance was denied him unless he could present a warrant of arrest issued by the court. Pertinent portions of the affidavit are quoted hereunder:chanroblesvirtuallawlibrary 5. Upon my arrival at Guimba, Nueva Ecija, I informed the accused of my mission to arrest him because of his failure to appear at the trial of his case in court and because of the order of confiscation issued by this Honorable Court. 6. I was informed by him that he is duly authorized to possess the firearm, by virtue of a permit issued by the Executive Officer, Capt. Fermin Peralta, of the Philippine Constabulary, Firearm and Explosive Section. He also intimated to me that if inspite of the fact that he has supporting documents showing that he is legally authorized to handle firearms, and should I insist he will have no alternative but to resist, and can only bring him to court a dead body. (Annex B pp. 1 & 2, paragraphs 5 and 6; chan roblesvirtualawlibraryEmphasis supplied.) While it has been held that That fact that a criminal prosecution is finally dismissed on the motion of the fiscal does not relieve the bondsmen of the accused from the effects of a previous forfeiture of the bond consequent upon non-appearance of the accused at the time originally set for hearing (People vs. Uy Eng Hui, 49 Phil., 954), however, it has also been held that the question whether a bondsman may be relieved of the effects of an order of confiscation and of his liability under the bond is a matter that is addressed to the sound discretion of the court and it may be given favorable consideration if there are good reasons that justify it. (People vs. Alamada, 89 Phil., 1; chan roblesvirtualawlibraryPeople vs. Calabon, 53 Phil., 945.) The explanation given by Appellant of the efforts it has made in securing the arrest of the accused, plus the fact that a motion to dismiss was filed within the period of 30 days granted said Appellant to give such explanation, constitute in our opinion sufficient justification for the relief of said Appellant. Wherefore, the order appealed from dated July 27, 1954 ordering the execution of the order of confiscation of the bond of Appellant is hereby set aside as regards Appellant, wi

G.R. No. 113547 February 9, 1995 PEOPLE OF THE vs. ANITA BAUTISTA y LATOJA, accused-appellant. PHILIPPINES, plaintiff-appellee,

11
PUNO, J.: Four (4) separate Informations were filed before the Regional Trial Court of Manila (Branch XLI) against accused ANITA BAUTISTA y LATOJA, charging her with the 2 3 crimes of Illegal Recruitment In Large Scale and Estafa. Upon arraignment on January 29, 1992, accused pleaded NOT GUILTY. The four (4) cases were tried jointly. After trial, the court a quo found accused guilty as charged. In the illegal recruitment case, she was meted the penalty of life imprisonment and ordered to pay P 100,000.00 as fine. In the estafa cases, she was sentenced from two (2) years, eight (8) months and twenty one (21) days of prision correccional as minimum, to six (6) years, five (5) months and eleven (11) days of prision mayor as maximum for each count of estafa, and pay each complainant the amount of P40,000.00 as civil indemnity. Accused, thru counsel, filed her Notice of Appeal, dated March 6, 1992, indicating her 6 desire to elevate her case to this Court. The records of the case were, however, 7 transmitted by the trial court to the Court of Appeals. In its Decision dated November 26, 1993, the appellate court affirmed appellant's conviction. However, it modified the penalty for the three (3) estafa cases. The dispositive portion of the decision of the appellate court states: WHEREFORE, in Criminal Case No. 92-102377, the Court finds accused Anita Bautista GUILTY BEYOND REASONABLE DOUBT of the crime of illegal recruitment, described and penalized under Article 13 (b), Article 38 (a) and (b) and Article 39 (a) of the Labor Code, and imposes upon her the penalty of life imprisonment and fine of P100,000.00. . . . Insofar as Criminal Case No. 92-102378, Criminal Case No. 92102379 and Criminal Case No. 92-102380, the Court renders judgment, finding accused Anita Bautista GUILTY BEYOND REASONABLE DOUBT of the crime of estafa, described and penalized under Article 315 par. 2 (a) of the Revised Penal Code, and sentencing her in each criminal case to the indeterminate penalty of (sic) from FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as minimum, to NINE (9) YEARS of prision mayor, as maximum, and to pay each complainants Remigio Fortes, Anastacio Amor and Dominador Costales, the amount of P40,000.00, without subsidiary imprisonment in case of insolvency, with costs. Accordingly, the penalty imposed upon accused by the lower court isMODIFIED. IT IS SO ORDERED.
5 4 1

Pursuant to Section 13 of Rule 124, the appellate court elevated to us the records of the case for review. Notice was given to appellant for her to file additional Brief if she so desires. None was filed in her behalf. The facts are as found by the appellate court: Sometime in August 1991, accused Anita Bautista approached Romeo Paguio at the latter's restaurant at 565 Padre Faura St., Manila, and offered job openings abroad. At that time, Paguio had relatives who were interested to work abroad. Accused, who also operated a restaurant nearby at Padre Faura, informed Paguio that she knew somebody who could facilitate immediate employment in Taiwan for Paguio's relatives. Accused Anita Bautista introduced Rosa Abrero to Paguio. Abrero informed him that the applicants could leave for Taiwan within a period of one-month from the payment of placement fees. They informed Paguio that the placement fee was P40,000.00 for each person. Paguio contacted his relatives, complainants Remigio Fortes and Dominador Costales who were his brothers-in-law, and Anastacio Amor, a cousin, who lost no time raising the needed money and gave the same to Paguio. The three were to work as factory workers and were to be paid $850.00 monthly salary each. Paguio gave Rosa Abrero P20,000.00, which would be used in following up the papers of the complainants; later he gave accused P40,000.00 and P60,000.00 in separate amounts, totalling P100,000.00, as the remaining balance. Abrero and accused Bautista promised Paguio and complainants that the latter could leave for Taiwan before September 25, 1991. As September 25, 1991 approached, accused Bautista informed Paguio and complainants that there was a delay in the latter's departure because their tickets and visas had not yet been released. Accused re-scheduled the complainants' departure to October 10, 1991. Came October 10, 1991, and complainants were still not able to leave. Paguio then required accused Bautista to sign the "Acknowledgment Receipt," dated October 11, 1991, in which accused admitted having received the sum of P100,000.00 from Paguio, representing payment of plane tickets, visas and other travel documents (Exhibit A). Paguio asked accused to return complainants' money; accused, however, promised that complainants could leave for Taiwan before Christmas. From POEA, Paguio secured a certification, dated January 9, 1992 attesting that Annie Bautista and Rosa Abrero are not licensed or authorized to recruit workers for overseas employment (Exhibit B). Complainants Fortes, Amor and Costales, as well as Paguio, gave their written statements at the Office of the Assistant Chief Directorial Staff for Intelligence of the WPDC, complaining about their being victims of illegal recruitment by Rosa Abrero and Annie Bautista (Exhibits C, D, E and F).

12
The issue boils down to whether or not reasonable doubt exists to warrant the acquittal of appellant Anita Bautista. We find none. ACKNOWLEDGMENT RECEIPT The Labor Code defines recruitment and placement as referring to "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be 8 deemed engaged in recruitment and placement." It is settled that the essential elements of the crime of illegal recruitment in large scale are: (1) the accused engages in the recruitment and placement of workers, as defined under Article 13 (b) or in any prohibited activities under Article 34 of the Labor Code; (2) accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) accused 9 commits the same against three (3) or more persons, individually or a group. For her exculpation, appellant denied she recruited complainants for employment abroad. She claimed Romeo Paguio was the one who approached her and asked for someone who could help his relatives work abroad. She thus introduced Rosa Abrero, a regular customer at her restaurant, to Paguio. In turn, Paguio introduced Abrero to complainants in their subsequent meeting. Further, appellant testified she was present during the recruitment of complainants since their meeting with Abrero was held at her restaurant. Appellant likewise stressed she did not receive the amount of P100,000.00, as stated in the Acknowledgment Receipt, dated October 11, 1991, but merely acknowledged that said sum was received by Rosa Abrero from Romeo Paguio. Appellant's defense does not persuade us. Appellant's active participation in the recruitment process of complainants belies her claim of innocence. Complainants' recruitment was initiated by appellant during her initial meeting with Romeo Paguio. She gave the impression to Romeo Paguio and the complainants that her cohort, Rosa Abrero, could send workers for employment abroad. She introduced Rosa Abrero to Romeo Paguio. Both women assured the departure of complainants to Taiwan within one month from payment of the placement fee of P40,000.00 per person. They even claimed that complainants would work as factory workers for a monthly salary of $850.00 per person. Moreover, it was appellant who informed Romeo Paguio that complainants' scheduled trip to Taiwan would be on October 10, 1991, instead of the original departure date of September 25, 1991, due to some problems on their visas and travel documents. P100,000.00 October 11, 1991 RECEIVED FROM: ROMEO PAGUIO, the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS, Philippine Currency, representing the payment (of) plane ticket, visa and other travel documents. CONFORME: By: (Sgd.) ROMEO PAGUIO (Sgd.) MRS. ANNIE BAUTISTA c/o Rosa Abrero SIGNED IN THE PRESENCE OF: (Sgd.) Anastacio Amor Remigio Fortes Dominador Costales Said receipt shows that appellant collected the P100,000.00 for and in behalf of Rosa Abrero, and bolsters Romeo Paguio's allegation that he gave P20,000.00 to Rosa Abrero, while the rest was received by appellant. Notably, in its Decision, dated February 14, 1992, the trial court observed: The denial(s) made by the accused of any participation in the recruitment of the complainants do not persuade. The evidence at hand shows that she acknowledged in writing the receipt of P100,000.00 from witness Romeo Paguio who was all along representing the complainants in securing employment for them in Taiwan. Her denial of having actually received the money in the sum of P100,000.00, the receipt of which she voluntarily signed is not convincing. By her own admission, she is a restaurant operator. In other words, she is a business woman. As such, she ought to know the consequences in signing any receipt. That she signed Exh. "A" only goes to show that fact, as claimed by Romeo Paguio, that she actually received the same. Her close association with Rosa Abrero is further strengthened by the Acknowledgment Receipt, dated October 11, 1991, which was prepared by Romeo Paguio for the protection of complainants. The receipt reads:

13
It is uncontroverted that appellant and Rosa Abrero are not authorized or licensed to 10 engage in recruitment activities. Despite the absence of such license or authority, appellant participated in the recruitment of complainants. Since there are at least three (3) victims in this case, appellant is correctly held criminally liable for illegal 11 recruitment in large scale. We shall now discuss appellant's culpability under the Revised Penal Code, specifically Article 315 thereof, inasmuch as her conviction for offenses under the 12 Labor Code does not avert punishment for offenses punishable by other laws. The elements of estafa are as follows: (1) that the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary estimation is caused by the offended party or third party. In the case at bench, it is crystal clear that complainants were deceived by appellant and Rosa Abrero into believing that there were, indeed, jobs waiting for them in Taiwan. The assurances given by these two (2) women made complainants part with whatever resources they have, in exchange for what they thought was a promising job abroad. Thus, they sold their carabaos, mortgaged or sold their parcels of land and even contracted loans to raise the much needed money, the P40,000.00 placement fee, required of them by accused and Rosa Abrero. The penalty for estafa depends on the amount defrauded. Article 315 of the Revised Penal Code provides: "the penalty of prision correccional in its maximum period to prision mayor in its minimum period (or imprisonment ranging from 4 years, 2 months and 1 day to 8 years), if the amount of the fraud is over P12,000.00 but does notexceed P22,000.00 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period (6 years, 8 months and 21 days to 8 years), adding one year for each additional P10,000.00 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. The amount defrauded in such estafa case (Criminal Case Nos. 92-102378, 92102379, 92-102380) is P 40,000.00. As prescribed in Article 315, supra, the penalty should be imposed in the maximum period (6 years, 8 months and 21 days to 8 years) plus one (1) year, there being only one (1) P10,000.00 in excess of P22,000.00. Applying the Indeterminate Sentence Law, the maximum penalty should be taken from the aforesaid period, while the minimum term of the indeterminate penalty shall be within the range of the penalty next lower in degree, that is prision correccional in its minimum and medium periods which has a duration of 6 months, 1 day to 4 year and 2 months. Considering the foregoing, the appellant court correctly imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to nine (9) years of prision mayor, as maximum. [G.R. No. 133563. March 4, 1999] WHEREFORE, premises considered, the decision of the Court of Appeals, finding appellant ANITA BAUTISTA guilty beyond reasonable doubt of the crimes of Illegal Recruitment in Large Scale (Criminal Case Nos. 92-102377) and Estafa (Criminal Case Nos. 92-102378, 92-102379, 92-102380) is AFFIRMED. No Costs. SO ORDERED. Narvasa, C.J., Bidin, Regalado and Mendoza, JJ., concur.

BRIDGET BONENG Y BAGAWILI, petitioner, PHILIPPINES, respondent. DECISION PURISIMA, J.:

vs. PEOPLE

OF

THE

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking to set aside the Decision[1] of the Court of Appeals[2] dated March 31, 1998 in CA G.R. CR No. 17133, affirming in its entirety the judgment of conviction handed down by the Regional Trial Court, Branch 6, Baguio City, finding the petitioner herein guilty beyond reasonable of Illegal Recruitment and sentencing her to a prison term of four (4) years, as minimum, to eight (8) years, as maximum, and to pay the costs. Petitioner Bridget Boneng y Bagawili was indicated for a violation of Article 38 (a), in relation to Articles 13 (b), 16, 34 and 39 (b) of Presidential Decree No. 442, as amended by Presidential Decree No. 1920, in Criminal Case No. 12104 before the Regional Trial Court, Branch 6, Baguio City, under an Information, alleging: That on or about the 24th day of September 1993, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then private person, did then and there willfully, unlawfully and feloniously engage in the following illegal recruitment activities to wit: by promising, for profit to complainant MA. TERESA GARCIA employment abroad under false pretenses and fraudulent acts, without any license or authority from the Philippine Overseas Employment Administration, Department of Labor and Employment, Manila, in violation of the aforecited provision of law. On December 9, 1993, with the assistance of counsel, she was arraigned thereunder and pleaded NOT GUILTY to the crime charged. Trial ensued, and after presenting the

14
witnesses, SPO3 Jesus Nevado, SPO3 Romeo Dulay and Maria Teresa Garcia, and documentary evidence consisting of Exhibits A to G, the prosecution made a formal offer of evidence and rested its case. On April 7, 1994, after the prosecution had rested, the accused (now petitioner) presented a demurrer to evidence and manifested that she was waiving the right to adduce evidence for the defense, and was submitting the case for decision on the basis of the evidence on record. On May 5, 1994, the trial court came out with its Decision, finding petitioner guilty of the offense charged and sentencing her thus: Wherefore, the Court Finds (sic), accused Bridget Boneng guilty beyond reasonable doubt for the offense of Violation of Article 38(a) in relation to Article 13(b), 16, 34 and 39(c) of PD 442 as amended by PD 1920 (Illegal Recruitment) and sentences her, applying the indeterminate sentence law, to an imprisonment ranging from FOUR (4) YEARS as Minimum to EIGHT (8) YEARS as Maximum and to pay the costs. Not satisfied with the verdict below, petitioner appealed to the Court of Appeals, contending that the testimony of the complainant, Ma. Teresa Garcia, is perjured, hearsay, uncorroborated and tainted with material inconsistencies and she (petitioner) should have been acquitted because the documentary evidence taken from her office was seized in violation of her constitutional right against illegal search and seizure. On March 31, 1998, the Court of Appeals decided as follows: In sum appellant was correctly found to be liable for violation of Art. 38(a) in relation to Articles 13(b), 16, 34 and 39 (c) of P.D. 442, as amended. WHEREFORE, finding the conviction of appellant in conformity with the law and evidence, the same is hereby AFFIRMED in toto. SO ORDERED. In affirming the findings arrived at by the court a quo, the Court of Appeals ratiocinated: Without resorting first to a motion for reconsideration, the petitioner came to this Court via the present petition, placing reliance practically on the same grounds she invoked and relied upon before the Court of Appeals. Did the Court of Appeals err in affirming the judgment convicting petitioner for illegal recruitment? This is the crucial issue at bar. Petitioner theorizes that the Court of Appeals erred in not considering the non-existence and non-admissibility of the documents upon which the trial court based her conviction. According to her, the prosecution should have established that other than Ma. Teresa Garcia, there were other applicants for overseas employment in the office of petitioner where she was allegedly conducting her recruitment business and activities. In the absence of sworn statements from the other applicants, petitioner maintains that the motive of the prosecution witnesses, whose testimonies she branded as inconsistent with their affidavits, in carrying out the entrapment, was to fleece money from her. The prosecutions evidence shows that appellant is a non -licensee or non-holder of authority as required by law. Proof of this is a certification (Exh. C) dated 18 August 1993 issued by the POEA-REU, Baguio City, which reads: CERTIFICATION This is to certify that the name BRIDGETTE BUNEG (sic) per existing and available records from this Office is not licensed nor authorized to recruit workers for overseas employment in the City of Baguio or any part of the region. When the trial prosecutor was about to present the signatory of the above document, the defense readily admitted its authenticity (TSN, 03 March 1994, p. 17). Appellant expressly Petitioner, in effect, is asking this Court to review the factual findings by the trial court and the Court of Appeals, to examine subject documents, and evaluate and assign the probative value of the evidence, the same evidence looked into below, and determine once again the credibility of the witnesses. To begin with, this Court is not a trier of facts. It is not its function to examine and determine the weight of the evidence supporting the assailed decision. In Philippine Airlines, Inc. vs. Court of Appeals,[3] the Court held that factual findings of the Court of Appeals which are supported by substantial evidence are binding, final and conclusive upon the Supreme Court. So also, well-established is the rule that factual findings of the Court of Appeals are conclusive on the parties and carry even more weight when the said court affirms the factual findings of the trial court.[4] Moreover, well entrenched is the prevailing jurisprudence that only errors of law and not of facts are reviewable by this Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Court, which applies with greater force to the Petition under consideration because the factual findings by the Court of Appeals are in full agreement with what the trial court found. It bears stressing that by opting not to present any controverting evidence during the trial, petitioner waived her right to come forward with evidence for the defense and foreclosed her right to interpose any objection to the prosecutions evidence upon appeal x x x.[5] Similarly untenable is petitioners stance that she is not an illegal recruiter, arguing that the documents introduced to substantiate her recruitment activities were neither identified nor marked by the prosecution. In People vs. Benemerito, 264 SCRA 677, 691, the Court enumerated the elements of illegal recruitment to be as follows: (1) the person charged with the crime must have undertaken recruitment activities (or any of the activities enumerated in Article 34 of the Labor Code, as amended); and (2) the said person does not have a license or authority to do so.

15
waived her right to rebut this allegation and in effect judicially admitted she was not a licensee or holder of authority. Consequently, such evidence can be validly taken against her. In this context, a non-licensee or non-holder of authority has been defined in People vs. Diaz, (supra)[6] as: x x x any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor or whose license or authority has been suspended, revoked or cancelled by the POEA or the Secretary x x x . Anent the second element, Article 13 (b) of the Labor Code, as amended, states: Art. 13 (b) of the Labor Code defines recruitment and placement as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contact services, promising or advertising abroad, whether for profit or not; provided that any person or entity which, in any manner, offers or promises for fee employment to two or more persons shall be deemed engaged in recruitment and placement. The evidence shows that appellant promised Garcia employment abroad for fee. Garcia testified: Q: A: Q: A: x After the secretary has introduced Mrs. Boneng to you to be her boss, what did you do? I asked from Bridget Boneng the rules and what country can I apply, sir. Did Mrs. Boneng answer you? Yes, sir, she told me in Hongkong. x x xxx In this connection appellant has referred to inconsistencies as to the narration of events that transpired on 24 September 1994. But these are trivial and minor points. In People vs. Trilles, 254 SCRA 633, the Supreme Court held: Trivial inconsequential inconsistencies in the testimony of witnesses do not merit consideration and cannot destroy the credibility of said witnesses in the face of the positive and categorical identification of the accused as the perpetrator(s) of the crime."[9] Petitioner also questions the legality and validity of her arrest sans a warrant. On this score, the Court of Appeals erred not in affirming the ruling by the trial court of origin that the present case falls under Section 5 (b), Rule 113 of the Revised Rules of Court, to wit: Sec. 5 Arrest Without Warrant; when lawful - A peace officer or a private person may, without a warrant, arrest a person: x x x x Q: A: Q: A: x x

Was there a receipt given by Bridget Boneng to you when you delivered the P2,000.00? He (sic) does not issue a receipt, she told me that. To whom did you personally deliver the P2,000.00? To Mrs. Boneng

(TSN., 24 February 1994, pp. 18-21). From the aforecited testimony, it is decisively clear that aside from the promise to deploy complainant Ma. Teresa Garcia in Hongkong, the petitioner accepted a part of the P30,000.00 fee she was collecting for her recruitment work. Neither do we discern any tenability in petitioners contention that the prosecution should have secured sworn statements from the other applicants to prove her (petitioners) recruitment activities. In People vs. Pabalan, 262 SCRA 574, it was succinctly ruled that the testimony of a single prosecution witness, where credible and positive, is sufficient to prove beyond reasonable doubt the guilt of the accused. There is no law which requires that the testimony of a single witness has to be corroborated, except where expressly mandated in determining the value and credibility of evidence. Witnesses are to be weighed, not numbered. In People vs. Panis, 142 SCRA 665, the Court also held that any of the acts mentioned in the basic rule in Article 13 (b) will constitute recruitment and placement even if only one prospective worker is involved.[7] Petitioner complains that the Court of Appeals ignored an avalanche of material inconsistencies[8] tainting the testimony of complainant Ma. Teresa Garcia. Records disclose, however, that the said court did pass upon such aspect of the case but adjudged the same trivial and minor inconsistencies. Ratiocinated the Court of Appeals:

Q: ... what things did you talk about with Mrs. Boneng? A: I asked Mrs. Bridget Boneng how much will I spend in applying for Hongkong and she told me that it was around P30,000.00 and she told me also to submit my birth certificate and for the passport, she will (sic) take charge of it but I will (sic) add a little amount for the processing of my papers. x Q: A: Q: A: x x

What did Mrs. Boneng tell you when you told her that you have (sic) P2,000.00 and if possible, she would work first for your passport and your medical examination? Bridget Boneng told me to at least solicit the amount of P10,000.00 as down payment because there is an on going interview in Manila the following Sunday. What happen after that? She accepted the amount of P2,000.00 and I told her that I will (sic) add more.

16
(b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; The Court of Appeals rationalized: "And in the case at bar, it can be said that when Garcia filled up the application forms for work aboard and paid P2,000.00 to Boneng as partial payment or advance payment of the placement fees required and was promised she could work in Hongkong by Boneng, the latter was actually engaged in illegal recruitment as she had no license to recruit admittedly. Hence, at that precise time Boneng was already committing an offense of illegal recruitment in the presence of Garcia. Garcia could have very well arrested her on the spot but she did not as she explained civilian agents are cautioned not to effect arrest by the CIS authorities. And when Garcia left and went downstairs to tell her CIS team that she already gave the P2,000.00 marked money to Boneng after posing as an applicant for work abroad and describing Boneng as a short fat lady wearing pants and white T-shirt and forthwith Nevado and Dulay[10] went up to the second floor to apprehend Boneng and recover the marked money of P2,000.00 and the documents pertaining to the recruitment activity of Boneng, then it can be said Boneng has just committed an offense and the effects thereof are still visible in her office, the marked money and documents of recruitment being there, when Nevado and Dulay of the CIS, both peace officers, went up to effect her arrest. x x x For the crime of illegal recruitment, the RTC sentenced the appellant to suffer the penalty of life imprisonment and ordered her to pay a P500,000.00 fine, with the accessory penalties of civil interdiction and perpetual absolute disqualification from the right of suffrage. For the two (2) counts of estafa, it sentenced the appellant to suffer an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, for each count, and to indemnify Cueto and Alviar the amounts of P20,000.00 and P15,000.00, respectively. The CA Ruling On intermediate appellate review, the CA affirmed the RTC's decision, giving full respect to the RTC's calibration of the testimonies of the witnesses, but deleted the accessory penalties of civil interdiction and perpetual absolute disqualification from the right of suffrage. It also modified the appellants indeterminate penalty for the two (2) counts of estafa to two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to five (5) years, five (5) months and eleven (11) days of 6 prision correccional, as maximum, for each count. PHILIPPINES, Appellee, We now rule on the final review of the case. We resolve the appeal, filed by accused Mariavic Espenilla y Mercado (appellant), from the April 20, 2010 decision of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 1 03692. The RTC Ruling In its July 22, 2008 decision, the Regional Trial Court (RTC) of Paraaque City, 3 Branch 274, convicted the appellant of large scale illegal recruitment and two (2) 4 counts of estafa. The trial court believed the testimonies of complainants Loreto Cueto y Perez, Mariel Alviar y Nerpio and Mario Pagcaliwagan, pointing to the appellant as the person who recruited them and promised them employment in Ireland, in exchange for sums of money. The court also rejected the subsequent recantations of Alviar and Pagcaliwagan. It found that the appellant was not licensed to recruit workers for overseas employment, per the May 23, 2006 Certification of the 5 Philippine Overseas Employment Administration. It noted that the appellant defrauded Cueto and Alviar in the amounts of P20,000.00 and P15,000.00, respectively, thereby disregarding the appellants uncorroborated denial. It acquitted the appellant of the crime of estafa committed against Pagcaliwagan since the latter admitted that he recovered his money from the appellant.
2

RESOLUTION BRION, J.:

The arrest therefore was legal as an exception under warrantless arrest under Section 5(b) of Rule 113 of the Rules of Court ... All things studiedly considered and the probative weight of the evidence on record taken into account, the irresistible conclusion is that petitioner Bridget Boneng is guilty beyond reasonable doubt of the crime charged. WHEREFORE, for lack of merit, the Petition is hereby DENIED, and the Decision of the Court of Appeals in CA G.R. CR No. 17133 AFFIRMED in toto. No pronouncement as to costs. SO ORDERED.

G.R. No. 193667

February 29, 2012

PEOPLE OF THE vs. MARIAVIC ESPENILLA y MERCADO, Appellant.

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Our Ruling We dismiss the appeal. We find no reason to reverse the findings of the RTC, as affirmed by the CA. The appellant is guilty of large scale illegal recruitment. The essential elements of large scale illegal recruitment, to wit: a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; b) the offender undertakes any of the activities within the meaning of "recruitment and placement" under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the said Code (now Section 6 of Republic Act No. 8042); and c) the offender committed the same against three (3) or 7 more persons, individually or as a group, are present in this case. The prosecution adduced proof beyond reasonable doubt that the appellant enlisted the three (3) complainants for overseas employment without any license to do so. The RTC and the CA correctly rejected the subsequent recantations of Alviar and 8 Pagcaliwagan since these were made a year after their testimonies in court. Also, 9 Alviar failed to offer any explanation for her change of mind, while Pagcaliwagan 10 admitted that he recanted because the appellant returned the money he paid. We have often stressed that recantations are frowned upon since a recantation is exceedingly unreliable; it is easily secured from a poor and ignorant witness, usually 11 through intimidation or for monetary consideration. The penalty for large scale illegal recruitment is life imprisonment and a fine of not less 12 than P500,000.00 nor more than P1,000,000.00. Thus, the RTC and the CA correctly imposed upon the appellant the penalty of life imprisonment and a P500,000.00 fine. The CA correctly deleted the accessory penalties of civil interdiction and perpetual absolute disqualification from the right of suffrage imposed by the RTC since such additional penalty is not part of the prescribed penalty for the 13 offense. The appellant is also guilty of two (2) counts of estafa. The essential elements of estafa, to wit: (a) that the accused defrauded another by abuse of confidence or by means of deceit, and (b) that damage or prejudice capable of pecuniary estimation is 14 caused to the offended party or third person, are present in this case. The prosecution adduced proof beyond reasonable doubt that the complainants shelled out processing fees to the appellant due to her false representations of overseas jobs, which did not materialize. The appellant defrauded Cueto and Alviar in the amounts of P20,000.00 and P15,000.00, respectively. When the amount defrauded is over P12,000.00 but does not exceed P22,000.00, the imposable penalty is prision correccional maximum 15 to prision mayor minimum. Applying the Indeterminate Sentence Law (ISL), we take the minimum term from the penalty next lower than the minimum prescribed by law, or anywhere within prision correccional minimum and medium (i.e., from six [6] months and one [1] day to four [4] years and two [2] months). Thus, the RTC and the CA correctly fixed the minimum term for the two (2) counts of estafa at two (2) years, four (4) months and one (1) day of prision correccional, since this is within the range of prision correccional minimum and medium. The maximum term under the ISL shall be that which, in view of attending circumstances, could be properly imposed under the rules of the Revised Penal Code. To compute the minimum, medium and maximum periods of the prescribed penalty for estafa when the amount of fraud exceeds P12,000.00, the time included in prision correccional maximum to prision mayor minimum shall be divided into three equal portions, with each portion forming a period. Following this computation, the minimum period for prision correccional maximum to prision mayor minimum is from four (4) years, two (2) months, and one (1) day to five (5) years, five (5) months, and ten (10) days; the medium period is from five (5) years, five (5) months, and eleven (11) days to six (6) years, eight (8) months, and twenty (20) days; and the maximum period is 16 from six (6) years, eight (8) months, and twenty-one (21) days to eight (8) years. Since the amounts defrauded were more than P12,000.00 but not exceeding P22,000.00, and in the absence of any mitigating or aggravating circumstance, the maximum term shall be taken from the medium period of the penalty prescribed (i.e., five [5] years, five [5] months, and eleven [11] days to six [6] years, eight [8] months, and twenty [20] days). Thus, the maximum term of five (5) years, five (5) months and eleven (11) days of prision correccional, actually imposed by the CA for each count of estafa, is proper. WHEREFORE, the April 20, 2010 decision of the Court of Appeals in CA-G.R. CR.H.C. No. 03692 is hereby AFFIRMED. SO ORDERED. ARTURO Associate Justice D. BRION

[G.R. No. 127195. August 25, 1999]

MARSAMAN MANNING AGENCY, INC. and DIAMANTIDES MARITIME, INC., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and WILFREDO T. CAJERAS, respondents. DECISION BELLOSILLO, J.:

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MARSAMAN MANNING AGENCY, INC. (MARSAMAN) and its foreign principal DIAMANTIDES MARITIME, INC. (DIAMANTIDES) assail the Decision of public respondent National Labor Relations Commission dated 16 September 1996 as well as its Resolution dated 12 November 1996 affirming the Labor Arbiter's decision finding them guilty of illegal dismissal and ordering them to pay respondent Wilfredo T. Cajeras salaries corresponding to the unexpired portion of his employment contract, plus attorney's fees. Private respondent Wilfredo T. Cajeras was hired by petitioner MARSAMAN, the local manning agent of petitioner DIAMANTIDES, as Chief Cook Steward on the MV Prigipos, owned and operated by DIAMANTIDES, for a contract period of ten (10) months with a monthly salary of US$600.00, evidenced by a contract between the parties dated 15 June 1995. Cajeras started work on 8 August 1995 but less than two (2) months later, or on 28 September 1995, he was repatriated to the Philippines allegedly by mutual consent. On 17 November 1995 private respondent Cajeras filed a complaint for illegal dismissal against petitioners with the NLRC National Capital Region Arbitration Branch alleging that he was dismissed illegally, denying that his repatriation was by mutual consent, and asking for his unpaid wages, overtime pay, damages, and attorneys fees.[1] Cajeras alleged that he was assigned not only as Chief Cook Steward but also as assistant cook and messman in addition to performing various inventory and requisition jobs. Because of his additional assignments he began to feel sick just a little over a month on the job constraining him to request for medical attention. He was refused at first by Capt. Kouvakas Alekos, master of the MV Prigipos, who just ordered him to continue working. However a day after the ships arrival at the port of Rotterdam, Holland, on 26 September 1995 Capt. Alekos relented and had him examined at the Medical Center for Seamen. However, the examining physician, Dr. Wden Hoed, neither apprised private respondent about the diagnosis nor issued the requested medical certificate allegedly because he himself would forward the results to private respondents superiors. Upon returning to the vessel, private respondent was unceremoniously ordered to prepare for immediate repatriation the following day as he was said to be suffering from a disease of unknown origin. On 28 September 1995 he was handed his Seaman's Service Record Book with the following entry: "Cause of discharge - Mutual Consent."[2] Private respondent promptly objected to the entry but was not able to do anything more as he was immediately ushered to a waiting taxi which transported him to the Amsterdam Airport for the return flight to Manila. After his arrival in Manila on 29 September 1995 Cajeras complained to MARSAMAN but to no avail.[3] MARSAMAN and DIAMANTIDES, on the other hand, denied the imputation of illegal dismissal. They alleged that Cajeras approached Capt. Alekos on 26 September 1995 and informed the latter that he could not sleep at night because he felt something crawling over his body. Furthermore, Cajeras reportedly declared that he could no longer perform his duties and requested for repatriation. The following paragraph in the vessel's Deck Log was allegedly entered by Capt. Alekos, to wit: Cajeras approached me and he told me that he cannot sleep at night and that he feels something crawling on his body and he declared that he can no longer perform his duties and he must be repatriated.[4] Private respondent was then sent to the Medical Center for Seamen at Rotterdam where he was examined by Dr. Wden Hoed whose diagnosis appeared in a Medical Report as paranoia and other mental problems.[5]Consequently, upon Dr. Hoeds recommendation, Cajeras was repatriated to the Philippines on 28 September 1995. On 29 January 1996 Labor Arbiter Ernesto S. Dinopol resolved the dispute in favor of private respondent Cajeras ruling that the latter's discharge from the MV Prigipos allegedly by mutual consent was not proved by convincing evidence. The entry made by Capt. Alekos in the Deck Log was dismissed as of little probative value because it was a mere unilateral act unsupported by any document showing mutual consent of Capt. Alekos, as master of the MV Prigipos, and Cajeras to the premature termination of the overseas employment contract as required by Sec. H of the Standard Employment Contract Governing the Employment of all Filipino Seamen on Board Ocean-Going Vessels. Dr. Hoeds diagnosis that private respondent was suffering from paranoia and other mental problems was likewise dismissed as being of little evidentiary value because it was not supported by evidence on how the paranoia was contracted, in what stage it was, and how it affected respondent's functions as Chief Cook Steward which, on the contrary, was even rated Very Good in respondent's Service Record Book. Thus, the Labor Arbiter disposed of the case as follows: WHEREFORE, judgment is hereby rendered declaring the repatriation and dismissal of complaint Wilfredo T. Cajeras as illegal and ordering respondents Marsaman Manning Agency, Inc. and Diamantides Maritime, Inc. to jointly and severally pay complainant the sum of USD 5,100.00 or its peso equivalent at the time of payment plus USD 510.00 as 10% attorneys fees it appearing that complainant had to engage the service of counsel to protect his interest in the prosecution of this case. The claims for nonpayment of wages and overtime pay are dismissed for having been withdrawn (Minutes, December 18, 1995). The claims for damages are likewise dismissed for lack of merit, since no evidence was presented to show that bad faith characterized the dismissal.[6] Petitioners appealed to the NLRC.[7] On 16 September 1996 the NLRC affirmed the appealed findings and conclusions of the Labor Arbiter.[8] The NLRC subscribed to the view that Cajeras repatriation by alleged mutual consent was not proved by petitioners, especially after noting that private respondent did not actually sign his Seamans Service Record Book to signify his assent to the repatriation as alleged by petitioners. The entry made by Capt. Alekos in the Deck Log was not considered reliable proof that private respondent agreed to his repatriation because no opportunity was given the latter to contest the entry which was against his interest. Similarly, the Medical Report issued by Dr. Hoed of Holland was dismissed as being of dubious value since it contained only a sweeping statement of the supposed ailment of Cajeras without any elaboration on the factual basis thereof. Petitioners' motion for reconsideration was denied by the NLRC in its Resolution dated 12 November 1996.[9] Hence, this petition contending that the NLRC committed grave abuse of discretion: (a) in not according full faith and credit to the official entry by Capt. Alekos in the vessels Deck Log conformably with the rulings in Haverton Shipping Ltd. v. NLRC[10] and Wallem Maritime Services, Inc. v. NLRC;[11] (b) in not appreciating the Medical Report issued by Dr. Wden Hoed as conclusive evidence that respondent Cajeras was suffering

19
from paranoia and other mental problems; (c) in affirming the award of attorneys fees despite the fact that Cajeras' claim for exemplary damages was denied for lack of merit; and, (d) in ordering a monetary award beyond the maximum of three (3) months salary for every year of service set by RA 8042. We deny the petition. In the Contract of Employment[12] entered into with private respondent, petitioners convenanted strict and faithful compliance with the terms and conditions of the Standard Employment Contract approved by the POEA/DOLE [13] which provides: 1. The employment of the seaman shall cease upon expiration of the contract period indicated in the Crew Contract unless the Master and the Seaman, by mutual consent, in writing, agree to an early termination x x x x (underscoring ours). Clearly, under the foregoing, the employment of a Filipino seaman may be terminated prior to the expiration of the stipulated period provided that the master and the seaman (a) mutually consent thereto and (b) reduce their consent in writing. In the instant case, petitioners do not deny the fact that they have fallen short of the requirement. No document exists whereby Capt. Alekos and private respondent reduced to writing their alleged mutual consent to the termination of their employment contract. Instead, petitioners presented the vessel's Deck Log wherein an entry unilaterally made by Capt. Alekos purported to show that private respondent himself asked for his repatriation. However, the NLRC correctly dismissed its evidentiary value. For one thing, it is a unilateral act which is vehemently denied by private respondent. Secondly, the entry in no way satisfies the requirement of a bilateral documentation to prove early termination of an overseas employment contract by mutual consent required by the Standard Employment Contract. Hence, since the latter sets the minimum terms and conditions of employment for the protection of Filipino seamen subject only to the adoption of better terms and conditions over and above the minimum standards,[14] the NLRC could not be accused of grave abuse of discretion in not accepting anything less. However petitioners contend that the entry should be considered prima facie evidence that respondent himself requested his repatriation conformably with the rulings in Haverton Shipping Ltd. v. NLRC[15] andAbacast Shipping and Management Agency, Inc. v. NLRC.[16] Indeed, Haverton says that a vessels log book is prima facie evidence of the facts stated therein as they are official entries made by a person in the performance of a duty required by law. However, this jurisprudential principle does not apply to win the case for petitioners. In Wallem Maritime Services, Inc. v. NLRC[17] the Haverton ruling was not given unqualified application because the log book presented therein was a mere typewritten collation of excerpts from what could be the log book.[18] The Court reasoned that since the log book was the only piece of evidence presented to prove just cause for the termination of respondent therein, the log book had to be duly identified and authenticated lest an injustice would result from a blind adoption of its contents which were but prima facie evidence of the incidents stated therein. In the instant case, the disputed entry in the Deck Log was neither authenticated nor supported by credible evidence. Although petitioners claim that Cajeras signed his Seamans Service Record Book to signify his conformity to the repatriation, the NLRC found the allegation to be actually untrue since no signature of private respondent appeared in the Record Book. Neither could the Medical Report prepared by Dr. Hoed be considered corroborative and conclusive evidence that private respondent was suffering from paranoia and other mental problems, supposedly just causes for his repatriation. Firstly, absolutely no evidence, not even an allegation, was offered to enlighten the NLRC or this Court as to Dr. Hoed's qualifications to diagnose mental illnesses. It is a matter of judicial notice that there are various specializations in medical science and that a general practitioner is not competent to diagnose any and all kinds of illnesses and diseases. Hence, the findings of doctors who are not proven experts are not binding on this Court.[19] Secondly, the Medical Report prepared by Dr. Hoed contained only a general statement that private respondent was suffering from paranoia and other mental problems without providing the details on how the diagnosis was arrived at or in what stage the illness was. If Dr. Hoed indeed competently examined private respondent then he would have been able to discuss at length the circumstances and precedents of his diagnosis. Petitioners cannot rely on the presumption of regularity in the performance of official duties to make the Medical Report acceptable because the presumption applies only to public officers from the highest to the lowest in the service of the Government, departments, bureaus, offices, and/or its political subdivisions,[20] which Dr. Wden Hoed was not shown to be. Furthermore, neither did petitioners prove that private respondent was incompetent or continuously incapacitated for the duties for which he was employed by reason of his alleged mental state. On the contrary his ability as Chief Cook Steward, up to the very moment of his repatriation, was rated Very Good in his Seamans Service Record Book as correctly observed by public respondent. Considering all the foregoing we cannot ascribe grave abuse of discretion on the part of the NLRC in ruling that petitioners failed to prove just cause for the termination of private respondent's overseas employment. Grave abuse of discretion is committed only when the judgment is rendered in a capricious, whimsical, arbitrary or despotic manner, which is not true in the present case.[21] With respect to attorneys fees, suffice it to say that in actions for recovery of wages or where an employee was forced to litigate and thus incurred expenses to protect his rights and interests, a maximum award of ten percent (10%) of the monetary award by way of attorneys fees is legally and morally justifiable under Art. 111 of the Labor Code, [22] Sec. 8, Rule VIII, Book III of its Implementing Rules,[23] and par. 7, Art. 2208[24] of the Civil Code.[25] The case of Albenson Enterprises Corporation v. Court of Appeals[26] cited by petitioners in arguing against the award of attorneys fees is clearly not applicable, being a civil action for damages which deals with only one of the eleven (11) instances when attorneys fees could be recovered under Art. 2208 of the Civil Code. Lastly, on the amount of salaries due private respondent, the rule has always been that an illegally dismissed worker whose employment is for a fixed period is entitled to payment of his salaries corresponding to the unexpired portion of his employment. [27] However on 15 July 1995, RA 8042 otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995 took effect, Sec. 10 of which provides: Sec. 10. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salaries for the

20
unexpired portion of the employment contract or for three (3) months for every year of the unexpired term whichever is less (underscoring ours). The Labor Arbiter, rationalizing that the aforesaid law did not apply since it became effective only one (1) month after respondent's overseas employment contract was entered into on 15 June 1995, simply awarded private respondent his salaries corresponding to the unexpired portion of his employment contract, i.e., for 8.6 months. The NLRC affirmed the award and the Office of the Solicitor General (OSG) fully agreed. But petitioners now insist that Sec. 10, RA 8042 is applicable because although private respondents contract of employment was entered into before the law became effective his alleged cause of action, i.e., his repatriation on 28 September 1995 without just, valid or authorized cause, occurred when the law was already in effect. Petitioners' purpose in so arguing is to invoke the law in justifying a lesser monetary award to private respondent, i.e., salaries for three (3) months only pursuant to the last portion of Sec. 10 as opposed to the salaries for 8.6 months awarded by the Labor Arbiter and affirmed by the NLRC. We agree with petitioners that Sec. 10, RA 8042, applies in the case of private respondent and to all overseas contract workers dismissed on or after its effectivity on 15 July 1995 in the same way that Sec. 34,[28] RA 6715,[29] is made applicable to locally employed workers dismissed on or after 21 March 1989.[30] However, we cannot subscribe to the view that private respondent is entitled to three (3) months salary only. A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months salary for every year of the unexpired term, whichever is l ess, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words for every year of the unexpired term which follows the words salaries x x x for three months. To follow petitioners thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect [31] since the lawmaking body is presumed to know the meaning of the words employed in the statue and to have used them advisedly.[32] Ut res magis valeat quam pereat.[33] WHEREFORE, the questioned Decision and Resolution dated 16 September 1996 and 12 November 1996, respectively, of public respondent National Labor Relations Commission are AFFIRMED. Petitioners MARSAMAN MANNING AGENCY, INC., and DIAMANTIDES MARITIME, INC., are ordered, jointly and severally, to pay private respondent WILFREDO T. CAJERAS his salaries for the unexpired portion of his employment contract or USD$5,100.00, reimburse the latter's placement fee with twelve percent (12%) interest per annum conformably with Sec. 10 of RA 8042, as well as attorney's fees of ten percent (10%) of the total monetary award. Costs against petitioners. SO ORDERED. G.R. No. 167614 ANTONIO vs. March 24, 2009 M. SERRANO, Petitioner, Gallant MARITIME INC., Respondents. DECISION AUSTRIA-MARTINEZ, J.: For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They have woven together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link between cultures, societies and economies. Yet, only recently have we begun to understand not only how much international migration impacts development, but how smart public policies can magnify this effect. United Nations Global Forum 1 Brussels, July 10, 2007 Secretary-General Migration Ban and Ki-Moon Development SERVICES, INC. and MARLOW NAVIGATION CO.,

on

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th 2 paragraph of Section 10, Republic Act (R.A.) No. 8042, to wit: Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. x x x x (Emphasis and underscoring supplied) does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract "or for three months for every year of the unexpired term, whichever is less" (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process. By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails 3 4 the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals (CA), which applied the subject clause, entreating this Court to declare the subject clause unconstitutional.

21
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas Employment Administration (POEA)approved Contract of Employment with the following terms and conditions: Duration of contract Position Basic monthly salary Hours of work Overtime 12 months Chief Officer US$1,400.00 48.0 hours per week US$700.00 per month
5

01/31, 1998 August 01/31, 1998 Sept. 01/30, 1998 Oct. 01/31, 1998 Nov. 01/30, 1998 Dec. 01/31, 1998 Jan. 01/31, 1999 Feb. 01/28, 1999 2,590.00

2,590.00

2,590.00

Vacation leave with pay 7.00 days per month

2,590.00

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he 6 would be made Chief Officer by the end of April 1998. Respondents did not deliver on their promise to make petitioner Chief Officer. Hence, petitioner refused to stay on as Second Officer and was repatriated to the Philippines 8 on May 26, 1998. Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days. Petitioner filed with the Labor Arbiter (LA) a Complaint against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down as follows: May US$ 413.90 27/31, 1998 (5 days) incl. Leave pay June 01/30, 1998 July 2,590.00
9 7

2,590.00

2,590.00

2,590.00

Mar. 1/19, 1,640.00 1999 (19 days) incl. leave pay -------------------------------------------------------------------------------25,382.23 Amount adjusted to chief mate's salary (March 1,060.50 19/31, 1998 to April 1/30, 1998) +
10

2,590.00

22
---------------------------------------------------------------------------------------------TOTAL CLAIM US$ 26,442.73
11

Respondents appealed to the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was illegally dismissed. Petitioner also appealed to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court in Triple Integrated Services, Inc. v. 17 National Labor Relations Commission that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their 18 contracts. In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit: WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment the following: 1. Three (3) months salary $1,400 x 3 2. Salary differential US$4,245.00 3. 10% Attorneys fees TOTAL The other findings are affirmed. SO ORDERED.
19 16

15

as well as moral and exemplary damages and attorney's fees. The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him monetary benefits, to wit: WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant (petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainants salary for three (3) months of the unexpired portion of the aforesaid contract of employment.1avvphi1 The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S. 12 DOLLARS (US$ 45.00), representing the complainants claim for a salar y differential. In addition, the respondents are hereby ordered to pay the complainant, jointly and severally, in Philippine Currency, at the exchange rate prevailing at the time of payment, the complainants (petitioner's) claim for attorneys fees equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee under this Decision. The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit. All other claims are hereby DISMISSED. SO ORDERED.
13

US$4,200.00 45.00

424.50 US$4,669.50

(Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of three months only -- rather than the entire unexpired portion of nine months and 23 days of petitioner's employment contract - applying the subject clause. However, the LA applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per 14 month."

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide for the award of overtime pay, which should 20 be proven to have been actually performed, and for vacation leave pay." Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the 21 22 constitutionality of the subject clause. The NLRC denied the motion. Petitioner filed a Petition for Certiorari with the CA, reiterating the constitutional 24 challenge against the subject clause. After initially dismissing the petition on a technicality, the CA eventually gave due course to it, as directed by this Court in its
23

23
Resolution dated August 7, 2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner. In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted the constitutional issue 25 raised by petitioner. His Motion for Reconsideration having been denied by the CA, cause to this Court on the following grounds: I The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the unexpired portion of his contract of employment instead of limiting it to three (3) months II In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to discharge its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme Court, particularly, the constitutional issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and arbitrarily limits payment of the award for back wages of overseas workers to three (3) months. III Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding from petitioners award the overtime pay and vacation pay provided in his contract since under the contract 28 they form part of his salary. On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he intends to make use of the monetary award for his 29 medical treatment and medication. Required to comment, counsel for petitioner filed a motion, urging the court to allow partial execution of the undisputed monetary award 30 and, at the same time, praying that the constitutional question be resolved. Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the petition mindful of the extreme importance of the constitutional question raised therein. On the first and second issues
26 27

The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal. Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of US$4,200.00. Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment contract, computed at the 31 monthly rate of US$2,590.00. The Arguments of Petitioner Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed salary 32 package. It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is not reasonable as there is no substantial 33 34 distinction between the two groups; and that it defeats Section 18, Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino 35 workers, whether deployed locally or overseas. Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are conflicting rulings on this, petitioner urges the 36 Court to sort them out for the guidance of affected OFWs. Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose but to benefit local placement agencies. He marks the statement made by the Solicitor General in his Memorandum, viz.: Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money 37 claims was reduced under Section 10 of R.A. No. 8042. (Emphasis supplied)

petitioner brings his

24
Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better off than local employers because in cases involving the illegal dismissal of employees, foreign employers are liable for salaries covering a maximum of only three months of the unexpired employment contract while local employers are liable for the full lump-sum salaries of their employees. As petitioner puts it: In terms of practical application, the local employers are not limited to the amount of backwages they have to give their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers the maximum of three (3) months unpaid salaries notwithstanding the unexpired term 38 of the contract that can be more than three (3) months. Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments he is entitled to under his fixed39 period employment contract. The Arguments of Respondents In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity, which was when he filed an 40 appeal before the NLRC. The Arguments of the Solicitor General The Solicitor General (OSG) points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on the 42 matter of money claims, as this was not stipulated upon by the parties. Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment, such that their rights to monetary benefits must necessarily be treated differently. The OSG enumerates the essential elements that distinguish OFWs from local workers: first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v. National Labor Relations 43 44 Commission and Millares v. National Labor Relations Commission, OFWs are contractual employees who can never acquire regular employment status, unlike local workers who are or can become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the differentiated
41

treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision does not violate the equal protection clause nor 45 Section 18, Article II of the Constitution. Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate the solidary liability of placement agencies for this "redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under 46 decent and humane conditions." The Court's Ruling The Court sustains petitioner on the first and second issues. When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case or controversy involving a conflict of rights susceptible of 47 judicial determination; (2) that the constitutional question is raised by a proper 48 49 party and at the earliest opportunity; and (3) that the constitutional question is the 50 very lis mota of the case, otherwise the Court will dismiss the case or decide the 51 same on some other ground. Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally aggrieved that the labor tribunals and the CA computed his monetary award based on the salary period of three months only as provided under the subject clause. The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the pleadings before a competent court, such that, if the issue is not raised in the pleadings before that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be considered on 52 appeal. Records disclose that the issue on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial 53 Reconsideration with said labor tribunal, and reiterated in his Petition 54 forCertiorari before the CA. Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial function its function in the present case is limited to determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such 55 questions in accordance with the standards laid down by the law itself; thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other hand, is vested with the power of judicial review or the power to declare unconstitutional a law or a provision thereof, 56 such as the subject clause. Petitioner's interposition of the constitutional issue before

25
the CA was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its decision. The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his 12-month employment contract, and not just for a period of three months, strikes at the very core of the subject clause. Thus, the stage is all set for the determination of the constitutionality of the subject clause. Does the Article III of contracts? subject of the clause violate Constitution on Section 10, non-impairment wherever they may be employed. Police power legislations adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all private contracts must yield to the superior and legitimate 62 measures taken by the State to promote public welfare. Does the subject Article III of the Article II and Section as a protected sector? The answer is in the affirmative. Section 1, Article III of the Constitution guarantees: No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the law. Section 18, Article II and Section 3, Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare. To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws which is 65 enjoyed by, or spared the burden imposed on, others in like circumstances. Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not limited 66 to existing conditions only; and 4) it applies equally to all members of the class. There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a 67 legitimate state interest; b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that 68 69 interest; and c) strict judicial scrutiny in which a legislative classification which 70 impermissibly interferes with the exercise of a fundamental right or operates to the 71 peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such 72 interest.
63 64 61

clause violate Section Constitution, and Section 3, Article XIII on

1, 18, labor

The answer is in the negative. Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will 57 receive is not tenable. Section 10, Article III of the Constitution provides: No law impairing the obligation of contracts shall be passed. The prohibition is aligned with the general principle that laws newly enacted have only 58 a prospective operation, and cannot affect acts or contracts already 59 perfected; however, as to laws already in existence, their provisions are read into 60 contracts and deemed a part thereof. Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto. As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042. But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs

26
Under American jurisprudence, strict judicial scrutiny is triggered by suspect 73 74 75 classifications based on race or gender but not when the classification is drawn 76 along income categories. It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng 77 Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, the constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for maintaining its rank-andfile employees under the Salary Standardization Law (SSL), even when the rank-andfile employees of other GFIs had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a suspect classification based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial philosophy, to wit: Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice. Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions. We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others. xxxx Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of effective judicial intervention. Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in "all phases of national development," further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality. x x x [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality. Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for 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. xxxx Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given deferential treatment. But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Courts solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor. xxxx In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-andfile employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial need for the adjustment . This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a

27
decent standard of living, and improve the quality of life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. (Emphasis supplied) Imbued with the same sense of "obligation to afford protection to labor," the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs. Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels: First, OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts ofone year or more; Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis--vis local workers with fixed-period employment; OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts of one year or more As pointed out by petitioner, it was in Marsaman Manning Agency, Inc. v. National 79 Labor Relations Commission (Second Division, 1999) that the Court laid down the following rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit: A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries x x x for three months." To follow petitioners thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the law-making body is presumed to know the meaning of the words employed in the statue and to have used them 80 advisedly. Ut res magis valeat quam pereat. (Emphasis supplied)
78

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded his salaries for the remaining 8 months and 6 days of his contract. Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10(5). One was Asian Center for Career and Employment System and Services v. National Labor Relations Commission (Second 81 Division, October 1998), which involved an OFW who was awarded a two-year employment contract,but was dismissed after working for one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months salary, this being the lesser value, to wit: Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. In the case at bar, the unexpired portion of private respondents employment contract is eight (8) months. Private respondent should therefore be paid his basic salary 82 corresponding to three (3) months or a total of SR3,600. Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations 83 Commission (Third Division, December 1998), which involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed for another 12 months. After serving for one year and sevenand-a-half months, respondent Osdana was illegally dismissed, and the Court awarded her salaries for the entire unexpired portion of four and one-half months of her contract. The Marsaman interpretation of Section 10(5) has since been adopted in the following cases: Case Title Contract Period v. 6 months Period Service 2 months 8 months 4 months of Unexpired Period

Period the Co the Mo

Skippers 84 Maguad

4 months 4 months 5 months

4 mont

Bahia Shipping v. 9 months 85 Reynaldo Chua Centennial Transmarine 9 months v.

4 mont

5 mont

28
dela Cruz l Talidano 87 Falcon Univan v. CA
88 89 86

longer period of 3 months out of their 12-month contracts before being illegally dismissed were awarded their salaries for only 3 months. v. 12 months 12 months 12 months 12 months v.
92

3 months 3 months more than months more than months 21 days 16 days

9 months 9 months 2 10 months 2 more or months less 9

Oriental v. CA PCL v. NLRC Olarte 91 Nayona JSS v.Ferrer Pentagon 93 Adelantar

90

12 months 12 months

11 months and 9 days 11 months and 24 days

3 months To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment contract of 10 months at a monthly salary rate of US$1,000.00 3 months and a hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate of US$1,000.00. Both commenced work on the same day and 3 months under the same employer, and were illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-B will be entitled to 3 months only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser amount. 3 months The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, 3 months 97 1995, illegally dismissed OFWs, no matter how long the period of their employment contracts, were entitled to their salaries for the entire unexpired portions of their 2 months and 23 days contracts. The matrix below speaks for itself: Unexpired portion Case Title 6 months or 3 months for each year of v. CA, et ATCI 98 contract al. Contract Period 2 years Period Service 2 months 7 days 9 months 2 months 5 months 4 months of Unexpired Period 22 months

v.

12 months 12 months 2 years

9 months and 7 2 months and 23 days days 10 months 26 days 2 months 23 months and 4 days 1 year, 9 months and 28 days

Phil. Employ v. 94 Paramio, et al. Flourish Maritime 95 v. Almanzor Athenna Manpower 96 Villanos

Period Ap Computati Monetary A 22 months

v.

1 year, 10 1 month months and 28 days

6 months or 3 months Phil. Integrated v. 2 years for each year of 99 NLRC contract 100 JGB v. NLC 2 years Agoy v. NLRC
101

23 months and 23 months 23 days 15 months 22 months 19 months 8 months 15 months 22 months 19 months 8 months

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category includes OFWs with fixed-period employment contracts of less than one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of their contract. The second category consists of OFWs with fixed-period employment contracts of one year or more; in case of illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired portion of their contracts. The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent OFW worked for only 2 months out of his 6-month contract, but was awarded his salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who had worked for a

2 years 2 years

EDI v. NLRC, et 102 al.

Barros v. NLRC, 12 months 103 et al. Philippine Transmarine 104 Carilla 12 months v.

6 months and 5 months and 5 months a 22 days 18 days

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform

29
rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts. The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired contracts fall short of one year. Among OFWs With Employment Contracts of More Than One Year Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the accuracy of the Marsaman interpretation. The Court notes that the subject clause "or for three (3) months for every year of the unexpired term, whichever is less" contains the qualifying phrases "every year" and "unexpired term." By its ordinary meaning, the word "term" means a limited or definite 105 extent of time. Corollarily, that "every year" is but part of an "unexpired term" is significant in many ways: first, the unexpired term must be at least one year, for if it were any shorter, there would be no occasion for such unexpired term to be measured by every year; and second, the original term must be more than one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the determination of when the subject clause "for three (3) months forevery year of the unexpired term, whichever is less" 106 shall apply is not the length of the original contract period as held in Marsaman, but the length of the unexpired portion of the contract period -- the subject clause applies in cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that the original contract period be more than one year. Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only. To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each have a 24month contract at a salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12 months unexpired The earliest rule prescribing a uniform system of computation was actually Article 299 108 of the Code of Commerce (1888), to wit: Article 299. If the contracts between the merchants and their shop clerks and employees should have been made of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from the fulfillment of said contract until the termination of the period agreed upon. Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the provisions contained in the following articles. In Reyes v. The Compaia Maritima, the Court applied the foregoing provision to determine the liability of a shipping company for the illegal discharge of its managers prior to the expiration of their fixed-term employment. The Court therein held the shipping company liable for the salaries of its managers for the remainder of their fixed-term employment. There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which provides: Article 605. If the contracts of the captain and members of the crew with the agent should be for a definite period or voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by malice or manifest or proven negligence. Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,
110 109

portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion. OFWs vis--vis Local With Fixed-Period Employment Workers

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally dismissed OFWs was in place. This uniform system was 107 applicable even to local workers with fixed-term employment.

in

which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees for the entire unexpired portion of their employment contracts.

30
While Article 605 has remained good law up to the present, Article 299 of the Code of Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit: Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract. (Emphasis supplied.) Citing Manresa, the Court in Lemoine v. Alkan read the disjunctive "or" in Article 1586 as a conjunctive "and" so as to apply the provision to local workers who are employed for a time certain although for no particular skill. This interpretation of Article 113 1586 was reiterated in Garcia Palomar v. Hotel de France Company. And in both Lemoine and Palomar, the Court adopted the general principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to them by the terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v. 114 Gay held: The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other employment of the same kind in the same community, for the purpose of reducing the damages resulting from such wrongful discharge. However, while this is the general rule, the burden of showing that he failed to make an effort to secure other employment of a like nature, and that other employment of a like nature was obtainable, is upon the defendant. When an employee is wrongfully discharged under a contract of employment his prima facie damage is the amount which he would be entitled to had he continued in such employment until the termination of the period . (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 115 Mich., 43.) (Emphasis supplied) On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book 116 IV. Much like Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. 117 v. Rich, the Court carried over the principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal discharge of a local worker whose fixed-period employment contract was 118 entered into in 1952, when the new Civil Code was already in effect. More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixed-term employment contracts were illegally terminated, 119 such as in First Asian Trans & Shipping Agency, Inc. v. Ople, involving seafarers who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National 120 Labor Relations Commission, an OFW who was illegally dismissed prior to the expiration of her fixed-period employment contract as a baby sitter, was awarded
112 111

salaries corresponding to the unexpired portion of her contract. The Court arrived at 121 the same ruling in Anderson v. National Labor Relations Commission, which involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on the job -- the Court awarded him salaries corresponding to 15 months, the unexpired portion of his contract. In Asia 122 World Recruitment, Inc. v. National Labor Relations Commission, a Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month contract after he was wrongfully discharged. Finally, in Vinta 123 Maritime Co., Inc. v. National Labor Relations Commission, an OFW whose 12month contract was illegally cut short in the second month was declared entitled to his salaries for the remaining 10 months of his contract. In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment. The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means. What constitutes compelling state interest is measured by the scale of rights and 124 powers arrayed in the Constitution and calibrated by history. It is akin to the 125 paramount interest of the state for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical 126 127 standards, or in maintaining access to information on matters of public concern. In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly serve. The OSG defends the subject clause as a police power measure "designed to protect the employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic], Filipino seafarers have better chance of getting hired by foreign

31
employers." The limitation also protects the interest of local placement agencies, 128 which otherwise may be made to shoulder millions of pesos in "termination pay." The OSG explained further: Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money are reduced under Section 10 of RA 8042. This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are 129 employed under decent and humane conditions. (Emphasis supplied) However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state interest sought to be served by the subject clause. The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from which the law 130 originated; but the speech makes no reference to the underlying reason for the adoption of the subject clause. That is only natural for none of the 29 provisions in HB 14314 resembles the subject clause. On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit: Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of the complaint, the claim arising out of an employeremployee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be joint and several. Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment payments, if applicable, to satisfy Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the responsible officials to any or all of the following penalties: (1) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (2) Suspension for not more than ninety (90) days; or (3) Dismissal from the service with disqualification to hold any appointive public office for five (5) years. Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph. But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims. A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the transcripts of the "Bicameral Conference Committee (Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However, the Court finds no discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of the subject clause. In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause. Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious. any such compromise or voluntary settlement shall not be more than two (2) months. Any compromise/voluntary agreement in violation of this paragraph shall be null and void.

32
Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs. The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring foreign employers. Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the solidary liability of their foreign principals. Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection.1avvphi1 Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the subject clause from the lone perspective that the clause 131 directly violates state policy on labor under Section 3, Article XIII of the Constitution. While all the provisions of the 1987 Constitution are presumed self-executing, there are some which this Court has declared not judicially enforceable, Article XIII being 133 one, particularly Section 3 thereof, the nature of which, this Court, in Agabon v. 134 National Labor Relations Commission, has described to be not self-actuating: Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in the sense that these are automatically acknowledged and observed without need for any enabling legislation. However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to labor" and "security of tenure", when examined in isolation, are facially unqualified, and the broadest interpretation possible suggests a blanket shield in favor of labor against any form of removal regardless of circumstance. This interpretation implies an unimpeachable right to continued employment-a utopian notion, doubtless-but still hardly within the contemplation of the framers. Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure the protection and promotion, not only the rights of the labor sector, but of the employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution.
132

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable rightto stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative 135 enactments for their enforceability. (Emphasis added) Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every conceivable violation of so broad a concept as social justice for labor. It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action and judicial recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working class. And it was in fact consistent with that constitutional agenda that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection -- such as the working class or a section thereof -- the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny. The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause. Article XIII, by itself, without the application of the equal protection clause, has no life or force of its own as elucidated in Agabon. Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to substantive due process, for it deprives him of property, 136 consisting of monetary benefits, without any existing valid governmental purpose. The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a better chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings of respondent that would indicate that there is an existing governmental purpose for the subject clause, or even just a pretext of one. The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason that the clause violates not just petitioner's right to equal

33
protection, but also her right to substantive due process under Section 1, of the Constitution.
137

Article III

are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00 per month. No costs. SO ORDERED.

The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042. On the Third Issue

G.R. No. 93666 April 22, 1991 Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his monetary award, because these are fixed benefits that have been stipulated into his contract. Petitioner is mistaken. The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work "performed" in excess of the regular eight hours, and holiday pay is compensation for any work "performed" on designated rest days and holidays. By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he performed work during those periods. As the Court held 138 in Centennial Transmarine, Inc. v. Dela Cruz, However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v. National Labor Relations Commission, to wit: The rendition of overtime work and the submission of sufficient proof that said was actually performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the basis of 30% of the basic monthly salary. In short, the contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established. In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since the same is given during the actual service of the seamen. WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals GENERAL MILLING CORPORATION and EARL TIMOTHY CONE, petitioners, vs. HON. RUBEN D. TORRES, in his capacity as Secretary of Labor and Employment, HON. BIENVENIDO E. LAGUESMA, in his capacity as Acting Secretary of Labor and Employment, and BASKETBALL COACHES ASSOCIATION OF THE PHILIPPINES, respondents. Sobrevinas, Diaz, Hayudini & Bodegon Law Office for petitioners. Rodrigo, Cuevas & De Borja for respondent BCAP. RESOLUTION

FELICIANO, J.: On 1 May 1989, the National Capital Region of the Department of Labor and Employment issued Alien Employment Permit No. M-0689-3-535 in favor of petitioner Earl Timothy Cone, a United States citizen, as sports consultant and assistant coach for petitioner General Milling Corporation ("GMC"). On 27 December 1989, petitioners GMC and Cone entered into a contract of employment whereby the latter undertook to coach GMC's basketball team. On 15 January 1990, the Board of Special Inquiry of the Commission on Immigration and Deportation approved petitioner Cone's application for a change of admission status from temporary visitor to pre-arranged employee. On 9 February 1990, petitioner GMC requested renewal of petitioner Cone's alien employment permit. GMC also requested that it be allowed to employ Cone as fullfledged coach. The DOLE Regional Director, Luna Piezas, granted the request on 15 February 1990.

34
On 18 February 1990, Alien Employment Permit No. M-02903-881, valid until 25 December 1990, was issued. Private respondent Basketball Coaches Association of the Philippines ("BCAP") appealed the issuance of said alien employment permit to the respondent Secretary of Labor who, on 23 April 1990, issued a decision ordering cancellation of petitioner Cone's employment permit on the ground that there was no showing that there is no person in the Philippines who is competent, able and willing to perform the services required nor that the hiring of petitioner Cone would redound to the national interest. Petitioner GMC filed a Motion for Reconsideration and two (2) Supplemental Motions for Reconsideration but said Motions were denied by Acting Secretary of Labor Bienvenido E. Laguesma in an Order dated 8 June 1990. Petitioners are now before the Court on a Petition for Certiorari, dated 14 June 1990, alleging that: 1. respondent Secretary of Labor gravely abused his discretion when he revoked petitioner Cone's alien employment permit; and 2. Section 6 (c), Rule XIV, Book I of the Omnibus Rules Implementing the Labor Code is null and void as it is in violation of the enabling law as the Labor Code does not empower respondent Secretary to determine if the employment of an alien would redound to national interest. Deliberating on the present Petition for Certiorari, the Court considers that petitioners have failed to show any grave abuse of discretion or any act without or in excess of jurisdiction on the part of respondent Secretary of Labor in rendering his decision, dated 23 April 1990, revoking petitioner Cone's Alien Employment Permit. The alleged failure to notify petitioners of the appeal filed by private respondent BCAP was cured when petitioners were allowed to file their Motion for Reconsideration 1 before respondent Secretary of Labor. Petitioner GMC's claim that hiring of a foreign coach is an employer's prerogative has no legal basis at all. Under Article 40 of the Labor Code, an employer seeking employment of an alien must first obtain an employment permit from the Department of Labor. Petitioner GMC's right to choose whom to employ is, of course, limited by the statutory requirement of an alien employment permit. Petitioners will not find solace in the equal protection clause of the Constitution. As pointed out by the Solicitor-General, no comparison can be made between petitioner Cone and Mr. Norman Black as the latter is "a long time resident of the country," and thus, not subject to the provisions of Article 40 of the Labor Code which apply only to "non-resident aliens." In any case, the term "non-resident alien" and its obverse "resident alien," here must be given their technical connotation under our law on immigration. Neither can petitioners validly claim that implementation of respondent Secretary's decision would amount to an impairment of the obligations of contracts. The provisions of the Labor Code and its Implementing Rules and Regulations requiring alien employment permits were in existence long before petitioners entered into their contract of employment. It is firmly settled that provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into 2 contracts. Private parties cannot constitutionally contract away the otherwise applicable provisions of law. Petitioners' contention that respondent Secretary of Labor should have deferred to the findings of Commission on Immigration and Deportation as to the necessity of employing petitioner Cone, is, again, bereft of legal basis. The Labor Code itself specifically empowers respondent Secretary to make a determination as to the availability of the services of a "person in the Philippines who is competent, able and willing at the time of application to perform the services for which an alien is 3 desired." In short, the Department of Labor is the agency vested with jurisdiction to determine the question of availability of local workers. The constitutional validity of legal provisions granting such jurisdiction and authority and requiring proof of nonavailability of local nationals able to carry out the duties of the position involved, cannot be seriously questioned. Petitioners apparently also question the validity of the Implementing Rules and Regulations, specifically Section 6 (c), Rule XIV, Book I of the Implementing Rules, as imposing a condition not found in the Labor Code itself. Section 6 (c), Rule XIV, Book I of the Implementing Rules, provides as follows: Section 6. Issuance of Employment Permit the Secretary of Labor may issue an employment permit to the applicant based on: a) Compliance by the applicant and his employer with the requirements of Section 2 hereof; b) Report of the Bureau Director as to the availability or nonavailability of any person in the Philippines who is competent and willing to do the job for which the services of the applicant are desired. (c) His assessment as to whether or not the employment of the applicant will redound to the national interest; (d) Admissibility of the alien as certified by the Commission on Immigration and Deportation;

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(e) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with the imperative of economic development; xxx xxx xxx (Emphasis supplied) Article 40 of the Labor Code reads as follows: Art. 40. Employment per unit of non-resident aliens. Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. (Emphasis supplied) Petitioners apparently suggest that the Secretary of Labor is not authorized to take into account the question of whether or not employment of an alien applicant would "redound to the national interest" because Article 40 does not explicitly refer to such assessment. This argument (which seems impliedly to concede that the relationship of basketball coaching and the national interest is tenuous and unreal) is not persuasive. In the first place, the second paragraph of Article 40 says: "[t]he employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired." The permissive language employed in the Labor Code indicates that the authority granted involves the exercise of discretion on the part of the issuing authority. In the second place, Article 12 of the Labor Code sets forth a statement of objectives that the Secretary of Labor should, and indeed must, take into account in exercising his authority and jurisdiction granted by the Labor Code, Art. 12. Statement of Objectives. It is the policy of the State: d) To facilitate and regulate the movement of workers in conformity with the national interest; e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system; xxx xxx xxx Thus, we find petitioners' arguments on the above points of constitutional law too insubstantial to require further consideration. Petitioners have very recently manifested to this Court that public respondent Secretary of Labor has reversed his earlier decision and has issued an Employment Permit to petitioner Cone. Petitioners seek to withdraw their Petition for Certiorari on the ground that it has become moot and academic. While ordinarily this Court would dismiss a petition that clearly appears to have become moot and academic, the circumstances of this case and the nature of the questions raised by petitioners are such that we do not feel justified in leaving those 4 questions unanswered. Moreover, assuming that an alien employment permit has in fact been issued to petitioner Cone, the basis of the reversal by the Secretary of Labor of his earlier decision does not appear in the record. If such reversal is based on some view of constitutional law or labor law different from those here set out, then such employment permit, if one has been issued, would appear open to serious legal objections. ACCORDINGLY, the Court Resolved to DISMISS the Petition for certiorari for lack of merit. Costs against petitioners. a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization; xxx xxx xxx c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest;