G.R. Nos.

L-58674-77 July 11, 1990

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. DOMINGO PANIS, Presiding Judge of the Court of First Instance of
Zambales & Olongapo City, Branch III and SERAPIO ABUG, respondents.

The basic issue in this case is the correct interpretation of Article 13(b) of P.D. 442,
otherwise known as the Labor Code, reading as follows:

(b) Recruitment and placement' refers to any act of canvassing, enlisting,

contracting, transporting, 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 deemed
engaged in recruitment and placement.

Four informations were filed on January 9, 1981, in the Court of First Instance of
Zambales and Olongapo City alleging that Serapio Abug, private respondent herein,
"without first securing a license from the Ministry of Labor as a holder of authority
to operate a fee-charging employment agency, did then and there wilfully,
unlawfully and criminally operate a private fee charging employment agency by
charging fees and expenses (from) and promising employment in Saudi Arabia" to
four separate individuals named therein, in violation of Article 16 in relation to
Article 39 of the Labor Code. 1

Abug filed a motion to quash on the ground that the informations did not charge an
offense because he was accused of illegally recruiting only one person in each of the
four informations. Under the proviso in Article 13(b), he claimed, there would be
illegal recruitment only "whenever two or more persons are in any manner
promised or offered any employment for a fee. " 2

Denied at first, the motion was reconsidered and finally granted in the Orders of the
trial court dated June 24 and September 17, 1981. The prosecution is now before us
on certiorari. 3

The posture of the petitioner is that the private respondent is being prosecuted
under Article 39 in relation to Article 16 of the Labor Code; hence, Article 13(b) is
not applicable. However, as the first two cited articles penalize acts of recruitment
and placement without proper authority, which is the charge embodied in the
informations, application of the definition of recruitment and placement in Article
13(b) is unavoidable.

The view of the private respondents is that to constitute recruitment and placement,
all the acts mentioned in this article should involve dealings with two or mre
persons as an indispensable requirement. On the other hand, the petitioner argues
that the requirement of two or more persons is imposed only where the recruitment
and placement consists of an offer or promise of employment to such persons and
always in consideration of a fee. The other acts mentioned in the body of the article
may involve even only one person and are not necessarily for profit.

Neither interpretation is acceptable. We fail to see why the proviso should speak
only of an offer or promise of employment if the purpose was to apply the
requirement of two or more persons to all the acts mentioned in the basic rule. For
its part, the petitioner does not explain why dealings with two or more persons are
needed where the recruitment and placement consists of an offer or promise of
employment but not when it is done through "canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring (of) workers.

As we see it, the proviso was intended neither to impose a condition on the basic
rule nor to provide an exception thereto but merely to create a presumption. The
presumption is that the individual or entity is engaged in recruitment and
placement whenever he or it is dealing with two or more persons to whom, in
consideration of a fee, an offer or promise of employment is made in the course of
the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring
(of) workers. "

The number of persons dealt with is not an essential ingredient of the act of
recruitment and placement of workers. Any of the acts mentioned in the basic rule
in Article 13(b) win constitute recruitment and placement even if only one
prospective worker is involved. The proviso merely lays down a rule of evidence
that where a fee is collected in consideration of a promise or offer of employment to
two or more prospective workers, the individual or entity dealing with them shall be
deemed to be engaged in the act of recruitment and placement. The words "shall be
deemed" create that presumption.

This is not unlike the presumption in article 217 of the Revised Penal Code, for
example, regarding the failure of a public officer to produce upon lawful demand
funds or property entrusted to his custody. Such failure shall be prima facie
evidence that he has put them to personal use; in other words, he shall be deemed to
have malversed such funds or property. In the instant case, the word "shall be
deemed" should by the same token be given the force of a disputable presumption
or of prima facie evidence of engaging in recruitment and placement. (Klepp vs. Odin
Tp., McHenry County 40 ND N.W. 313, 314.)

It is unfortunate that we can only speculate on the meaning of the questioned

provision for lack of records of debates and deliberations that would otherwise have
been available if the Labor Code had been enacted as a statute rather than a
presidential decree. The trouble with presidential decrees is that they could be, and
sometimes were, issued without previous public discussion or consultation, the
promulgator heeding only his own counsel or those of his close advisers in their
lofty pinnacle of power. The not infrequent results are rejection, intentional or not,
of the interest of the greater number and, as in the instant case, certain esoteric
provisions that one cannot read against the background facts usually reported in the
legislative journals.

At any rate, the interpretation here adopted should give more force to the campaign
against illegal recruitment and placement, which has victimized many Filipino
workers seeking a better life in a foreign land, and investing hard- earned savings or
even borrowed funds in pursuit of their dream, only to be awakened to the reality of
a cynical deception at the hands of theirown countrymen.

WHEREFORE, the Orders of June 24, 1981, and September 17, 1981, are set aside
and the four informations against the private respondent reinstated. No costs.

SO ORDERED.

G.R. No. 167614 March 24, 2009

ANTONIO M. SERRANO, Petitioner,

vs.
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC.,
Respondents.

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 Secretary-General Ban Ki-Moon

Global Forum on Migration and Development
Brussels, July 10, 20071

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th
paragraph of Section 10, Republic Act (R.A.) No. 8042,2 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
the December 8, 2004 Decision3 and April 1, 2005 Resolution4 of the Court of
Appeals (CA), which applied the subject clause, entreating this Court to declare the
subject clause unconstitutional.

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 12 months

Position Chief Officer
Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week
Overtime US$700.00 per month
Vacation leave with pay 7.00 days per month5
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 would be made Chief Officer by the end of April 1998.6

Respondents did not deliver on their promise to make petitioner Chief Officer.7
Hence, petitioner refused to stay on as Second Officer and was repatriated to the
Philippines on May 26, 1998.8

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 Complaint9 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 27/31, 1998 (5 days) incl. Leave pay US$ 413.90

June 01/30, 1998 2,590.00
July 01/31, 1998 2,590.00
August 01/31, 1998 2,590.00
Sept. 01/30, 1998 2,590.00
Oct. 01/31, 1998 2,590.00
Nov. 01/30, 1998 2,590.00
Dec. 01/31, 1998 2,590.00
Jan. 01/31, 1999 2,590.00
Feb. 01/28, 1999 2,590.00
Mar. 1/19, 1999 (19 days) incl. leave pay 1,640.00
--------------------------------------------------------------------------------
25,382.23
Amount adjusted to chief mate's salary
(March 19/31, 1998 to April 1/30, 1998) + 1,060.5010
----------------------------------------------------------------------------------------------
TOTAL CLAIM US$ 26,442.7311
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. DOLLARS (US$ 45.00),12
representing the complainants claim for a salary 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 (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 month."14

Respondents appealed15 to the National Labor Relations Commission (NLRC) to

question the finding of the LA that petitioner was illegally dismissed.

Petitioner also appealed16 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. National Labor
Relations Commission17 that in case of illegal dismissal, OFWs are entitled to their
salaries for the unexpired portion of their contracts.18

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 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorneys fees 424.50
TOTALUS$4,669.50
The other findings are affirmed.

SO ORDERED.19

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 be proven to have been actually performed, and for vacation leave pay."20

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the subject clause.21 The NLRC denied the motion.22

Petitioner filed a Petition for Certiorari23 with the CA, reiterating the constitutional
challenge against the subject clause.24 After initially dismissing the petition on a
technicality, the CA eventually gave due course to it, as directed by this Court in its
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 raised by petitioner.25

His Motion for Reconsideration26 having been denied by the CA,27 petitioner
brings his cause to this Court on the following grounds:

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 they form part of his salary.28

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
medical treatment and medication.29 Required to comment, counsel for petitioner
filed a motion, urging the court to allow partial execution of the undisputed
monetary award and, at the same time, praying that the constitutional question be
resolved.30

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

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
monthly rate of US$2,590.00.31

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
package.32 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 distinction between the two groups;33 and that it defeats Section
18,34 Article II of the Constitution which guarantees the protection of the rights and
welfare of all Filipino workers, whether deployed locally or overseas.35

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
Court to sort them out for the guidance of affected OFWs.36

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 claims was reduced under Section 10 of R.A. No. 8042. 37
(Emphasis supplied)
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 of the contract that can be more than three (3) months.38

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 fixed-
period employment contract.39

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 appeal before the NLRC.40

The Arguments of the Solicitor General

The Solicitor General (OSG)41 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 matter of money claims, as this was not stipulated upon by the
parties.42

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 Commission43 and Millares v. National Labor Relations
Commission,44 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 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 Section 18, Article II of the Constitution.45

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
decent and humane conditions."46

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
judicial determination;47 (2) that the constitutional question is raised by a proper
party48 and at the earliest opportunity;49 and (3) that the constitutional question is
the very lis mota of the case,50 otherwise the Court will dismiss the case or decide
the same on some other ground.51

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
appeal.52 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 Reconsideration with said labor tribunal,53 and reiterated in his Petition
for Certiorari before the CA.54 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 questions in accordance with the standards laid down by the law
itself;55 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, such as the subject clause.56 Petitioner's interposition of the
constitutional issue before 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 subject clause violate Section 10,

Article III of the Constitution on non-impairment
of contracts?

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
receive57 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 a prospective operation,58 and cannot affect acts or contracts already
perfected;59 however, as to laws already in existence, their provisions are read into
contracts and deemed a part thereof.60 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 wherever they may be employed.61 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 measures taken by the State to promote public welfare.62

Does the subject clause violate Section 1,

Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
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 18,63 Article II and Section 3,64 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 enjoyed by, or spared the burden imposed on, others in like
circumstances.65

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 to existing conditions only; and 4) it applies equally to all members of the
class.66

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 legitimate state interest;67 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 interest;68 and c) strict judicial scrutiny69 in which a legislative
classification which impermissibly interferes with the exercise of a fundamental
right70 or operates to the peculiar disadvantage of a suspect class71 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 interest.72

Under American jurisprudence, strict judicial scrutiny is triggered by suspect

classifications73 based on race74 or gender75 but not when the classification is
drawn along income categories.76

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng

Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,77 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-and-file employees under the Salary Standardization Law (SSL), even when the
rank-and-file 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-and-file 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 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 of one 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,78 it was in Marsaman Manning Agency, Inc. v. National

Labor Relations Commission79 (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 advisedly. Ut
res magis valeat quam pereat.80 (Emphasis supplied)

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
Division, October 1998),81 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 corresponding to three (3) months or a total of SR3,600.82

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations

Commission (Third Division, December 1998),83 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 seven-
and-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.

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

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, 1995,97
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
contracts.

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 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 extent of time.105 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 for every year of the unexpired term,
whichever is less" shall apply is not the length of the original contract period as held
in Marsaman,106 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 24-
month 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 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 Workers

With Fixed-Period Employment

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
applicable even to local workers with fixed-term employment.107
The earliest rule prescribing a uniform system of computation was actually Article
299 of the Code of Commerce (1888),108 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,109 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 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.

While Article 605 has remained good law up to the present,111 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. Alkan112 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 1586 was reiterated in Garcia Palomar v. Hotel de France Company.113 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. Gay114 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 Mich., 43.)115 (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 IV.116 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. v. Rich,117 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 entered into in 1952, when the new Civil Code was
already in effect.118

More significantly, the same principles were applied to cases involving overseas
Filipino workers whose fixed-term employment contracts were illegally terminated,
such as in First Asian Trans & Shipping Agency, Inc. v. Ople,119 involving seafarers
who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National
Labor Relations Commission,120 an OFW who was illegally dismissed prior to the
expiration of her fixed-period employment contract as a baby sitter, was awarded
salaries corresponding to the unexpired portion of her contract. The Court arrived
at the same ruling in Anderson v. National Labor Relations Commission,121 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 World Recruitment, Inc. v. National Labor Relations Commission,122 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 Maritime Co., Inc. v. National Labor Relations Commission,123 an
OFW whose 12-month 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
powers arrayed in the Constitution and calibrated by history.124 It is akin to the
paramount interest of the state125 for which some individual liberties must give
way, such as the public interest in safeguarding health or maintaining medical
standards,126 or in maintaining access to information on matters of public
concern.127

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
employers." The limitation also protects the interest of local placement agencies,
which otherwise may be made to shoulder millions of pesos in "termination
pay."128

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
employed under decent and humane conditions.129 (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
originated;130 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
employer-employee 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
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.

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.

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 directly violates state policy on labor under Section 3,131 Article XIII of the
Constitution.

While all the provisions of the 1987 Constitution are presumed self-executing,132
there are some which this Court has declared not judicially enforceable, Article XIII
being one,133 particularly Section 3 thereof, the nature of which, this Court, in
Agabon v. National Labor Relations Commission,134 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.

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a

positive enforceable right to 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
enactments for their enforceability.135 (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,
consisting of monetary benefits, without any existing valid governmental
purpose.136

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

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 in
Centennial Transmarine, Inc. v. Dela Cruz,138

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 DECLARED
UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005
Resolution of the Court of Appeals 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.

G.R. No. 110524 July 29, 2002

DOUGLAS MILLARES and ROGELIO LAGDA, petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION, TRANS-GLOBAL MARITIME
AGENCY, INC. and ESSO INTERNATIONAL SHIPPING CO., LTD. respondents.

On March 14, 2000, the Court promulgated its decision in the above-entitled case,
ruling in favor of the petitioners. The dispositive portion reads, as follows:

WHEREFORE, premises considered, the assailed Decision, dated June 1, 1993, of the
National Labor Relations Commission is hereby REVERSED and SET ASIDE and a
new judgment is hereby rendered ordering the private respondents to:

(1) Reinstate petitioners Millares and Lagda to their former positions without loss
of seniority rights, and to pay full backwages computed from the time of illegal
dismissal to the time of actual reinstatement;

(2) Alternatively, if reinstatement is not possible, pay petitioners Millares and Lagda
separation pay equivalent to one month's salary for every year of service; and,

(3) Jointly and severally pay petitioners One Hundred Percent (100%) of their total
credited contributions as provided under the Consecutive Enlistment Incentive Plan.

SO ORDERED.1

A motion for reconsideration was consequently filed2 by the private respondents to

which petitioners filed an Opposition thereto.3

In a Minute Resolution dated June 28, 2000, the Court resolved to deny the motion
for reconsideration with finality.4

Subsequently, the Filipino Association for Mariners Employment, Inc. (FAME) filed a
Motion for Leave to Intervene and to Admit a Motion for Reconsideration in
Intervention.

Private respondents, meanwhile, also filed a Motion for Leave to File a Second
Motion for Reconsideration of our decision.
In both motions, the private respondents and FAME respectively pray in the main
that the Court reconsider its ruling that "Filipino seafarers are considered regular
employees within the context of Article 280 of the Labor Code." They claim that the
decision may establish a precedent that will adversely affect the maritime industry.

The Court resolved to set the case for oral arguments to enable the parties to
present their sides.

To recall, the facts of the case are, as follows:

Petitioner Douglas Millares was employed by private respondent ESSO International

Shipping Company LTD. (Esso International, for brevity) through its local manning
agency, private respondent Trans-Global Maritime Agency, Inc. (Trans-Global, for
brevity) on November 16, 1968 as a machinist. In 1975, he was promoted as Chief
Engineer which position he occupied until he opted to retire in 1989. He was then
receiving a monthly salary of US $1,939.00.

On June 13, 1989, petitioner Millares applied for a leave of absence for the period
July 9 to August 7, 1989. In a letter dated June 14, 1989, Michael J. Estaniel,
President of private respondent Trans-Global, approved the request for leave of
absence. On June 21, 1989, petitioner Millares wrote G.S. Hanly, Operations Manager
of Exxon International Co., (now Esso International) through Michael J. Estaniel,
informing him of his intention to avail of the optional retirement plan under the
Consecutive Enlistment Incentive Plan (CEIP) considering that he had already
rendered more than twenty (20) years of continuous service. On July 13, 1989
respondent Esso International, through W.J. Vrints, Employee Relations Manager,
denied petitioner Millares' request for optional retirement on the following grounds,
to wit: (1) he was employed on a contractual basis; (2) his contract of enlistment
(COE) did not provide for retirement before the age of sixty (60) years; and (3) he
did not comply with the requirement for claiming benefits under the CEIP, i.e., to
submit a written advice to the company of his intention to terminate his
employment within thirty (30) days from his last disembarkation date.

On August 9, 1989, petitioner Millares requested for an extension of his leave of

absence from August 9 to 24, 1989. On August 19, 1989, Roy C. Palomar, Crewing
Manager, Ship Group A, Trans-global, wrote petitioner Millares advising him that
respondent Esso International "has corrected the deficiency in its manpower
requirement specifically in the Chief Engineer rank by promoting a First Assistant
Engineer to this position as a result of (his) previous leave of absence which expired
last August 8, 1989. The adjustment in said rank was required in order to meet
manpower schedules as a result of (his) inability."

On September 26, 1989, respondent Esso International, through H. Regenboog,

Personnel Administrator, advised petitioner Millares that in view of his absence
without leave, which is equivalent to abandonment of his position, he had been
dropped from the roster of crew members effective September 1, 1989.
On the other hand, petitioner Lagda was employed by private respondent Esso
International as wiper/oiler in June 1969. He was promoted as Chief Engineer in
1980, a position he continued to occupy until his last COE expired on April 10, 1989.
He was then receiving a monthly salary of US$1,939.00.

On May 16, 1989, petitioner Lagda applied for a leave of absence from June 19, 1989
up to the whole month of August 1989. On June 14, 1989, respondent Trans-Global's
President, Michael J. Estaniel, approved petitioner Lagda's leave of absence from
June 22, 1989 to July 20, 1989 and advised him to report for re-assignment on July
21, 1989.

On June 26, 1989, petitioner Lagda wrote a letter to G.S. Stanley, Operations
Manager of respondent Esso International, through respondent Trans-Global's
President Michael J. Estaniel, informing him of his intention to avail of the optional
early retirement plan in view of his twenty (20) years continuous service in the
complaint.

On July 13, 1989, respondent Trans-global denied petitioner Lagda's request for
availment of the optional early retirement scheme on the same grounds upon which
petitioner Millares request was denied.

On August 3, 1989, he requested for an extension of his leave of absence up to

August 26, 1989 and the same was approved. However, on September 27, 1989,
respondent Esso International, through H. Regenboog, Personnel Administrator,
advised petitioner Lagda that in view of his "unavailability for contractual sea
service," he had been dropped from the roster of crew members effective September
1, 1989.

On October 5, 1989, petitioners Millares and Lagda filed a complaint-affidavit,

docketed as POEA (M) 89-10-9671, for illegal dismissal and non-payment of
employee benefits against private respondents Esso International and Trans-Global,
before the POEA.5

On July 17, 1991, the POEA rendered a decision dismissing the complaint for lack of
merit.

On appeal to the NLRC, the decision of the POEA was affirmed on June 1, 1993 with
the following disquisition:

The first issue must be decided in the negative. Complainants-appellants, as seamen

and overseas contract workers are not covered by the term "regular employment"
as defined under Article 280 of the Labor Code. The POEA, which is tasked with
protecting the rights of the Filipino workers for overseas employment to fair and
equitable recruitment and employment practices and to ensure their welfare,
prescribes a standard employment contract for seamen on board ocean-going
vessels for a fixed period but in no case to exceed twelve (12) months (Part 1, Sec.
C). This POEA policy appears to be in consonance with the international maritime
practice. Moreover, the Supreme Court in Brent School, Inc. vs. Zamora, 181 SCRA
702, had held that a fixed term is essential and natural appurtenance of overseas
employment contracts to which the concept of regular employment with all that it
implies is not applicable, Article 280 of the Labor Code notwithstanding. There is,
therefore, no reason to disturb the POEA Administrator's finding that complainants-
appellants were hired on a contractual basis and for a definite period. Their
employment is thus governed by the contracts they sign each time they are re-hired
and is terminated at the expiration of the contract period.6

Undaunted, the petitioners elevated their case to this Court7 and successfully
obtained the favorable action, which is now vehemently being assailed.

At the hearing on November 15, 2000, the Court defined the issues for resolution in
this case, namely:

I. ARE PETITIONERS REGULAR OR CONTRACTUAL EMPLOYEES WHOSE

EMPLOYMENTS ARE TERMINATED EVERYTIME THEIR CONTRACTS OF
EMPLOYMENT EXPIRE?

II. ASSUMING THAT PETITIONERS ARE REGULAR EMPLOYEES, WERE THEY

DISMISSED WITHOUT JUST CAUSE SO AS TO BE ENTITLED TO REINSTATEMENT
AND BACKWAGES, INCLUDING PAYMENT OF 100% OF THEIR TOTAL CREDITED
CONTRIBUTIONS TO THE CONSECUTIVE ENLISTMENT INCENTIVE PLAN (CEIP)?

III. DOES THE PROVISION OF THE POEA STANDARD CONTRACT FOR SEAFARERS
ON BOARD FOREIGN VESSELS (SEC. C., DURATION OF CONTRACT) PRECLUDE THE
ATTAINMENT BY SEAMEN OF THE STATUS OF REGULAR EMPLOYEES?

IV. DOES THE DECISION OF THE COURT IN G.R. NO. 110524 CONTRAVENE
INTERNATIONAL MARITIME LAW, ALLEGEDLY PART OF THE LAW OF THE LAND
UNDER SECTION 2, ARTICLE II OF THE CONSTITUTION?

V. DOES THE SAME DECISION OF THE COURT CONSTITUTE A DEPARTURE FROM

ITS RULING IN COYOCA VS. NLRC (G.R. NO. 113658, March 31, 1995)?8

In answer to the private respondents' Second Motion for Reconsideration and to

FAME's Motion for Reconsideration in Intervention, petitioners maintain that they
are regular employees as found by the Court in the March 14, 2000 Decision.
Considering that petitioners performed activities which are usually necessary or
desirable in the usual business or trade of private respondents, they should be
considered as regular employees pursuant to Article 280, Par. 1 of the Labor Code.9
Other justifications for this ruling include the fact that petitioners have rendered
over twenty (20) years of service, as admitted by the private respondents;10 that
they were recipients of Merit Pay which is an express acknowledgment by the
private respondents that petitioners are regular and not just contractual
employees;11 that petitioners were registered under the Social Security System
(SSS).

The petitioners further state that the case of Coyoca v. NLRC12 which the private
respondents invoke is not applicable to the case at bar as the factual milieu in that
case is not the same. Furthermore, private respondents' fear that our judicial
pronouncement will spell the death of the manning industry is far from real. Instead,
with the valuable contribution of the manning industry to our economy, these
seafarers are supposed to be considered as "Heroes of the Republic" whose rights
must be protected.13 Finally, the first motion for reconsideration has already been
denied with finality by this Court and it is about time that the Court should write
finis to this case.

The private respondents, on the other hand, contend that: (a) the ruling holding
petitioners as regular employees was not in accord with the decision in Coyoca v.
NLRC, 243 SCRA 190; (b) Art. 280 is not applicable as what applies is the POEA
Rules and Regulations Governing Overseas Employment; (c) seafarers are not
regular employees based on international maritime practice; (d) grave
consequences would result on the future of seafarers and manning agencies if the
ruling is not reconsidered; (e) there was no dismissal committed; (f) a dismissed
seafarer is not entitled to back wages and reinstatement, that being not allowed
under the POEA rules and the Migrant Workers Act; and, (g) petitioners are not
entitled to claim the total amount credited to their account under the CEIP.14

Meanwhile, Intervenor Filipino Association of Mariners Employment (FAME) avers

that our decision, if not reconsidered, will have negative consequences in the
employment of Filipino Seafarers overseas which, in turn, might lead to the demise
of the manning industry in the Philippines. As intervenor FAME puts it:

xxx

7.1 Foreign principals will start looking for alternative sources for seafarers to man
their ships. AS reported by the BIMCO/ISF study, "there is an expectancy that there
will be an increasing demand for (and supply of) Chinese seafarers, with some
commentators suggesting that this may be a long-term alternative to the
Philippines." Moreover, "the political changes within the former Eastern Bloc have
made new sources of supply available to the international market." Intervenor's
recent survey among its members shows that 50 Philippine manning companies had
already lost some 6,300 slots to other Asian, East Europe and Chinese competition
for the last two years;

7.2 The Philippine stands to lose an annual foreign income estimated at U.S.
DOLLARS TWO HUNDRED SEVENTY FOUR MILLION FIVE HUNDRED FORTY NINE
THOUSAND (US$ 274,549,000.00) from the manning industry and another US
DOLLARS FOUR BILLION SIX HUNDRED FIFTY MILLION SEVEN HUNDRED SIX
THOUSAND (US$ 4,650,760,000.00) from the land-based sector if seafarers and
equally situated land-based contract workers will be declared regular employees;

7.3 Some 195,917 (as of 1998) deployed overseas Filipino seafarers will be
rendered jobless should we lose the market;

7.4 Some 360 manning agencies (as of 30 June 2000) whose principals may no
longer be doing business with them will close their shops;

7.5 The contribution to the Overseas Worker's Welfare Administration by the sector,
which is USD 25.00 per contract and translates to US DOLLARS FOUR MILLION (US$
4,000,000.00)annually, will be drastically reduced. This is not to mention the
processing fees paid to POEA, Philippine Regulatory Commission (PRC), Department
of Foreign Affairs (DFA) and Maritime Industry Authority (MARINA) for the
documentation of these seafarers;

7.6 Worst, some 195,917 (as of 1998) families will suffer socially and economically,
as their breadwinners will be rendered jobless; and

7.7 It will considerably slow down the government's program of employment

generation, considering that, as expected foreign employers will now avoid hiring
Filipino overseas contract workers as they will become regular employees with all
its concomitant effects.15

Significantly, the Office of the Solicitor General, in a departure from its original
position in this case, has now taken the opposite view. It has expressed its
apprehension in sustaining our decision and has called for a re-examination of our
ruling.16

Considering all the arguments presented by the private respondents, the Intervenor
FAME and the OSG, we agree that there is a need to reconsider our position with
respect to the status of seafarers which we considered as regular employees under
Article 280 of the Labor Code. We, therefore, partially grant the second motion for
reconsideration.

In Brent School Inc. v. Zamora,17 the Supreme Court stated that Article 280 of the
Labor Code does not apply to overseas employment.

In the light of the foregoing description of the development of the provisions of the
Labor Code bearing on term or fixed-period employment that the question posed in
the opening paragraph of this opinion should now be addressed. Is it then the
legislative intention to outlaw stipulations in employment contracts laying down a
definite period therefor? Are such stipulations in essence contrary to public policy
and should not on this account be accorded legitimacy?
On the other hand, there is the gradual and progressive elimination of references to
term or fixed-period employment in the Labor Code, and the specific statement of
the rule that:

Regular and Casual Employment The provisions of written agreement to the

contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or
trade of the employer except where the employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined
at the time of the engagement of the employee or where the work or service to be
employee is seasonal in nature and the employment is for the duration of the
season.

An employment shall be deemed to be casual if it is not covered by the preceding

paragraph; provided that, any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be considered a regular
employee with respect to the activity in which he is employed and his employment
shall continue while such actually exists.

There is, on the other hand, the Civil Code, which has always recognized, and
continues to recognize, the validity and propriety of contracts and obligations with a
fixed or definite period, and imposes no restraints on the freedom of the parties to
fix the duration of a contract, whatever its object, be it specific, goods or services,
except the general admonition against stipulations contrary to law, morals, good
customs, public order or public policy. Under the Civil code, therefore, and as a
general proposition, fixed-term employment contracts are not limited, as they are
under the present Labor Code, to those by natural seasonal or for specific projects
with predetermined dates of completion; they also include those to which the
parties by free choice have assigned a specific date of termination.

Some familiar examples may be cited of employment contract which may be neither
for seasonal work nor for specific projects, but to which a fixed term is an essential
and natural appurtenance: overseas employment contracts, for one, to which,
whatever the nature of the engagement, the concept of regular employment with all
that it implies does not appear ever to have been applied. Article 280 of the Labor
Code notwithstanding also appointments to the positions of dean, assistant dean,
college secretary, principal, and other administrative offices in educational
institutions, which are by practice or tradition rotated among the faculty members,
and where fixed terms are a necessity without which no reasonable rotation would
be possible. Similarly, despite the provisions of Article 280, Policy Instructions. No. 8
of the Minister of Labor implicitly recognize that certain company officials may be
elected for what would amount to fix periods, at the expiration of which they would
have to stand down, in providing that these officials, xxx may lose their jobs as
president, executive vice-president or vice-president, etc. because the stockholders
or the board of directors for one reason or another did not reelect them.
There can of course be no quarrel with the proposition that where from the
circumstances it is apparent that periods have been imposed to preclude acquisition
of tenurial security by the employee, they should be struck down or disregard as
contrary to public policy, morals, etc. But where no such intent to circumvent the
law is shown, or stated otherwise, where the reason for the law does not exists, e.g.,
where it is indeed the employee himself who insists upon a period or where the
nature of the engagement is such that, without being seasonal or for a specific
project, a definite date of termination is a sine qua non, would an agreement fixing a
period be essentially evil or illicit, therefore anathema? Would such an agreement
come within the scope of Article 280 which admittedly was enacted "to prevent the
circumvention of the right of the employee to be secured in xxx his employment

As it is evident from even only the three examples already given that Article 280 of
the Labor Code, under a narrow and literal interpretation, not only fails to exhaust
the gamut of employment contracts to which the lack of a fixed period would be an
anomaly, but would also appear to restrict, without reasonable distinctions, the
right of an employee to freely stipulate within his employer the duration of his
engagement, it logically follows that such a literal interpretation should be
eschewed or avoided. The law must be given a reasonable interpretation, to
preclude absurdity in its application. Outlawing the whole concept of term
employment and subverting to boot the principle of freedom of contract to remedy
the evil of employer's using it as a means to prevent their employees from obtaining
security of tenure is like cutting off the nose to spite the face or, more relevantly,
curing a headache by lopping of the head.

It is a salutary principle in statutory construction that there exists a valid

presumption that undesirable consequences were never intended by a legislative
measure, and that a construction of which the statute is fairly susceptible is favored,
which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and
injurious consequences."

Nothing is better settled than that courts are not to give words a meaning which
would lead to absurd or unreasonable consequences. That is a principle that goes
back to In re Allen decided on October 27, 1902, where it was held that a literal
interpretation is to be rejected if it would be unjust or lead to absurd results. That is
a strong argument against its adoption. The words of Justice Laurel are particularly
apt. Thus: "the appellants would lead to an absurdity is another argument for
rejecting it."

xxx We have, here, then a case where the true intent of the law is clear that calls for
the application of the cardinal rule of statutory construction that such intent of
spirit must prevail over the letter thereof, for whatever is within the spirit of a
statute is within the statute, since adherence to the letter would result in absurdity,
injustice and contradictions and would defeat the plain and vital purpose of the
statute.
Accordingly, and since the entire purpose behind the development of legislation
culminating in the present Article 280 of the Labor code clearly appears to have
been, as already observed, to prevent circumvention of the employee's right to be
secure in his tenure, the clause in said article indiscriminately and completely ruling
out all written or oral agreements conflicting with the concept of regular
employment as defined therein should be construed to refer to the substantive evil
that the Code itself has singled out; agreements entered into precisely to circumvent
security of tenure. It should have no application to instances where a fixed period of
employment was agreed upon knowingly and voluntarily by the parties, without any
force, duress or improper pressure being brought to bear upon the employee and
absent any other circumstances vitiating his consent, or where it satisfactorily
appears that the employer and employee dealt with each other on more or less
equal terms with no moral dominance whatever being exercised by the former over
the latter. Unless thus limited in its purview, the law would be made to apply to
purposes other than those explicitly stated by its framers; it thus becomes pointless
and arbitrary, unjust in its effects and apt to lead to absurd and unintended
consequences.

Again, in Pablo Coyoca v. NLRC,18 the Court also held that a seafarer is not a regular
employee and is not entitled to separation pay. His employment is governed by the
POEA Standard Employment Contract for Filipino Seamen.

x x x. In this connection, it is important to note that neither does the POEA standard
employment contract for Filipino seamen provide for such benefits.

As a Filipino seaman, petitioner is governed by the Rules and Regulations Governing

Overseas Employment and the said Rules do not provide for separation or
termination pay. What is embodied in petitioner's contract is the payment of
compensation arising from permanent partial disability during the period of
employment. We find that private respondent complied with the terms of contract
when it paid petitioner P42,315.00 which, in our opinion, is a reasonable amount, as
compensation for his illness.

Lastly, petitioner claims that he eventually became a regular employee of private

respondent and thus falls within the purview of Articles 284 and 95 of the Labor
Code. In support of this contention, petitioner cites the case of Worth Shipping
Service, Inc., et al. v. NLRC, et al., wherein we held that the crew members of the
shipping company had attained regular status and thus, were entitled to separation
pay. However, the facts of said case differ from the present. In Worth, we held that
the principal and agent had "operational control and management" over the MV
Orient Carrier and thus, were the actual employers of their crew members.

From the foregoing cases, it is clear that seafarers are considered contractual
employees. They can not be considered as regular employees under Article 280 of
the Labor Code. Their employment is governed by the contracts they sign everytime
they are rehired and their employment is terminated when the contract expires.
Their employment is contractually fixed for a certain period of time. They fall under
the exception of Article 280 whose employment has been fixed for a specific project
or undertaking the completion or termination of which has been determined at the
time of engagement of the employee or where the work or services to be performed
is seasonal in nature and the employment is for the duration of the season.19 We
need not depart from the rulings of the Court in the two aforementioned cases
which indeed constitute stare decisis with respect to the employment status of
seafarers.

Petitioners insist that they should be considered regular employees, since they have
rendered services which are usually necessary and desirable to the business of their
employer, and that they have rendered more than twenty(20) years of service.
While this may be true, the Brent case has, however, held that there are certain
forms of employment which also require the performance of usual and desirable
functions and which exceed one year but do not necessarily attain regular
employment status under Article 280.20 Overseas workers including seafarers fall
under this type of employment which are governed by the mutual agreements of the
parties.

In this jurisdiction and as clearly stated in the Coyoca case, Filipino seamen are
governed by the Rules and Regulations of the POEA. The Standard Employment
Contract governing the employment of All Filipino seamen on Board Ocean-Going
Vessels of the POEA, particularly in Part I, Sec. C specifically provides that the
contract of seamen shall be for a fixed period. And in no case should the contract of
seamen be longer than 12 months. It reads:

Section C. Duration of Contract

The period of employment shall be for a fixed period but in no case to exceed 12
months and shall be stated in the Crew Contract. Any extension of the Contract
period shall be subject to the mutual consent of the parties.

Moreover, it is an accepted maritime industry practice that employment of seafarers

are for a fixed period only. Constrained by the nature of their employment which is
quite peculiar and unique in itself, it is for the mutual interest of both the seafarer
and the employer why the employment status must be contractual only or for a
certain period of time. Seafarers spend most of their time at sea and
understandably, they can not stay for a long and an indefinite period of time at
sea.21 Limited access to shore society during the employment will have an adverse
impact on the seafarer. The national, cultural and lingual diversity among the crew
during the COE is a reality that necessitates the limitation of its period.22

Petitioners make much of the fact that they have been continually re-hired or their
contracts renewed before the contracts expired (which has admittedly been going
on for twenty (20) years). By such circumstance they claim to have acquired regular
status with all the rights and benefits appurtenant to it.

Such contention is untenable. Undeniably, this circumstance of continuous re-hiring

was dictated by practical considerations that experienced crew members are more
preferred. Petitioners were only given priority or preference because of their
experience and qualifications but this does not detract the fact that herein
petitioners are contractual employees. They can not be considered regular
employees. We quote with favor the explanation of the NLRC in this wise:

xxx The reference to "permanent" and "probationary" masters and employees in

these papers is a misnomer and does not alter the fact that the contracts for
enlistment between complainants-appellants and respondent-appellee Esso
International were for a definite periods of time, ranging from 8 to 12 months.
Although the use of the terms "permanent" and "probationary" is unfortunate, what
is really meant is "eligible for-re-hire". This is the only logical conclusion possible
because the parties cannot and should not violate POEA's requirement that a
contract of enlistment shall be for a limited period only; not exceeding twelve
(12)months.23

From all the foregoing, we hereby state that petitioners are not considered regular
or permanent employees under Article 280 of the Labor Code. Petitioners'
employment have automatically ceased upon the expiration of their contracts of
enlistment (COE). Since there was no dismissal to speak of, it follows that
petitioners are not entitled to reinstatement or payment of separation pay or
backwages, as provided by law.

With respect to the benefits under the Consecutive Enlistment Incentive Plan (CEIP),
we hold that the petitioners are still entitled to receive 100% of the total amount
credited to him under the CEIP. Considering that we have declared that petitioners
are contractual employees, their compensation and benefits are covered by the
contracts they signed and the CEIP is part and parcel of the contract.

The CEIP was formulated to entice seamen to stay long in the company. As the name
implies, the program serves as an incentive for the employees to renew their
contracts with the same company for as long as their services were needed. For
those who remained loyal to them, they were duly rewarded with this additional
remuneration under the CEIP, if eligible. While this is an act of benevolence on the
part of the employer, it can not, however, be denied that this is part of the benefits
accorded to the employees for services rendered. Such right to the benefits is vested
upon them upon their eligibility to the program.

The CEIP provides that an employee becomes covered under the Plan when he
completes thirty-six (36) months or an equivalent of three (3) years of credited
service with respect to employment after June 30, 1973.24 Upon eligibility, an
amount shall be credited to his account as it provides, among others:
III. Distribution of Benefits

A. Retirement, Death and Disability

When the employment of an employee terminates because of his retirement, death

or permanent and total disability, a percentage of the total amount credited to his
account will be distributed to him (or his eligible survivor(s) in accordance with the
following:

Reason for Termination

Percentage

a) Attainment of mandatory retirement age of 60.

100%

b) Permanent and total disability, while under contract, that is not due to accident
or misconduct.

100%

c) Permanent and total disability, while under contract, that is due to accident, and
not due to misconduct.

100%

xxx

B. Voluntary Termination

When an employee voluntary terminates his employment with at least 36 months of

credited service without any misconduct on his part, 18 percent of the total amount
credited to his account, plus an additional of one percent for each month (up to a
maximum of 164 months of credited service in excess of 36, will be distributed to
him provided (1) the employee has completed his last Contract of Enlistment and
(2) employee advises the company in writing, within 30 days, from his last
disembarkation date, of his intention to terminate his employment. (To advise the
Company in writing means that the original letter must be sent to the Company's
agent in the Philippines, a copy sent to the Company in New York).

xxx

C. Other Terminations
When the employment of an employee is terminated by the Company for a reason
other than one in A and B above, without any misconduct on his part, a percentage
of the total amount credited to his account will be distributed to him in accordance
with the following.

Credited Service

Percentage

36 months

50%

48 "

75%

60 "

100%

When the employment of an employee is terminated due to his poor-performance,

misconduct, unavailability, etc., or if employee is not offered re-engagement for
similar reasons, no distribution of any portion of employee's account will ever be
made to him (or his eligible survivor[s]).

It must be recalled that on June 21, 1989, Millares wrote a letter to his employer
informing his intention to avail of the optional retirement plan under the CEIP
considering that he has rendered more than twenty (20) years of continuous
service. Lagda, likewise, manifested the same intention in a letter dated June 26,
1989. Private respondent, however, denied their requests for benefits under the
CEIP since: (1) the contract of enlistment (COE) did not provide for retirement
before 60 years of age; and that (2) petitioners failed to submit a written notice of
their intention to terminate their employment within thirty (30) days from the last
disembarkation date pursuant to the provision on Voluntary Termination of the
CEIP. Petitioners were eventually dropped from the roster of crew members and on
grounds of "abandonment" and "unavailability for contractual sea service",
respectively, they were disqualified from receiving any benefits under the CEIP.25

In our March 14, 2000 Decision, we, however, found that petitioners Millares and
Lagda were not guilty of "abandonment" or "unavailability for contractual sea
service," as we have stated:

The absence of petitioners was justified by the fact that they secured the approval of
private respondents to take a leave of absence after the termination of their last
contracts of enlistment. Subsequently, petitioners sought for extensions of their
respective leaves of absence. Granting arguendo that their subsequent requests for
extensions were not approved, it cannot be said that petitioners were unavailable or
had abandoned their work when they failed to report back for assignment as they
were still questioning the denial of private respondents of their desire to avail of the
optional early retirement policy, which they believed in good faith to exist.26

Neither can we consider petitioners guilty of poor performance or misconduct since

they were recipients of Merit Pay Awards for their exemplary performances in the
company.

Anent the letters dated June 21, 1989 (for Millares) and June 26, 1989 (for Lagda)
which private respondent considered as belated written notices of termination, we
find such assertion specious. Notwithstanding, we could conveniently consider the
petitioners eligible under Section III-B of the CEIP (Voluntary Termination), but this
would, however, award them only a measly amount of benefits which to our mind,
the petitioners do not rightfully deserve under the facts and circumstances of the
case. As the CEIP provides:

III. Distribution of Benefits

xxx

E. Distribution of Accounts

When an employee terminates under conditions that would qualify for a

distribution of more than one specified in A, B or C above, the largest single amount,
only, will be distributed.

Since petitioners' termination of employment under the CEIP do not fall under
Section III-A (Retirement, Death and Disability) or Section III-B (Voluntary
Termination), nor could they be they be considered under the second paragraph of
Section III-C, as earlier discussed; it follows that their termination falls under the
first paragraph of Section III-C for which they are entitled to 100% of the total
amount credited to their accounts. The private respondents can not now renege on
their commitment under the CEIP to reward deserving and loyal employees as the
petitioners in this case.

In taking cognizance of private respondent's Second Motion for Reconsideration, the

Court hereby suspends the rules to make them comformable to law and justice and
to subserve an overriding public interest.

IN VIEW OF THE FOREGOING, the Court Resolved to Partially GRANT Private

Respondent's Second Motion for Reconsideration and Intervenor FAMES' Motion for
Reconsideration in Intervention. The Decision of the National Labor Relations
Commission dated June 1, 1993 is hereby REINSTATED with MODIFICATION. The
Private Respondents, Trans-Global Maritime Agency, Inc. and Esso International
Shipping Co., Ltd. are hereby jointly and severally ORDERED to pay petitioners One
Hundred Percent (100%) of their total credited contributions as provided under the
Consecutive Enlistment Incentive Plan(CEIP).

SO ORDERED.

G.R. No. L-58011 & L-58012 November 18, 1983

VIR-JEN SHIPPING AND MARINE SERVICES, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION, ROGELIO BISULA RUBEN ARROZA
JUAN GACUTNO LEONILO ATOK, NILO CRUZ, ALVARO ANDRADA, NEMESIO
ADUG SIMPLICIO BAUTISTA, ROMEO ACOSTA, and JOSE ENCABO respondents.

Before the Court en banc is a motion to reconsider the decision promulgated on July
20, 1982 which set aside the decision of respondent National Labor Relations
Commission and reinstated the decision of the National Seamen Board.

To better understand the issues raised in the motion for reconsideration, we

reiterate the background facts of the case, Taken from the decision of the National
Labor Relations Commission: t.hqw

It appears that on different dates in December, 1978 and January, 1979, the Seamen
entered into separate contracts of employment with the Company, engaging them to
work on board M/T' Jannu for a period of twelve (12) months. After verification and
approval of their contracts by the NSB, the Seamen boarded their vessel in Japan.

On 10 January 1919, the master of the vessel complainant Rogelio H. Bisula,

received a cable from the Company advising him of the possibility that the vessel
might be directed to call at ITF-controlled ports said at the same time informing him
of the procedure to be followed in the computation of the special or additional
compensation of crew members while in said ports. ITF is the acronym for the
International Transport Workers Federation, a militant international labor
organization with affiliates in different ports of the world, which reputedly can tie
down a vessel in a port by preventing its loading or unloading, This is a sanction
resorted to by ITF to enforce the payment of its wages rates for seafarers the so-
called ITF rates, if the wages of the crew members of a vessel who have affiliated
with it are below its prescribed rates.) In the same cable of the Company, the
expressed its regrets for hot clarifying earlier the procedure in computing the
special compensation as it thought that the vessel would 'trade in Caribbean ports
only.
On 22 March 1979, the Company sent another cable to complainant Bisula, this time
informing him of the respective amounts each of the officers and crew members
would receive as special compensation when the vessel called at the port of
Kwinana Australia, an ITF-controlled port. This was followed by another cable on 23
March 1979, informing him that the officers and crew members had been enrolled
as members of the ITF in Sidney, Australia, and that the membership fee for the 28
personnel complement of the vessel had already been paid.

In answer to the Company's cable last mentioned, complainant Bisula, in

representation of the other officers and crew members, sent on 24 March 1979 a
cable informing the Company that the officers and crew members were not
agreeable to its 'suggestion'; that they were not contented with their present
salaries 'based on the volume of works, type of ship with hazardous cargo and
registered in a world wide trade': that the 'officers and crew (were) not interested
in ITF membership if not actually paid with ITF rate that their 'demand is only 50%
increase based on present basic salary and that the proposed wage increase is the
'best and only solution to solve ITF problem' since the Company's salary rates
'especially in tankers (are) very far in comparison with other shipping agencies in
Manila ...

In reply, the Company proposed a 25% increase in the basic pay of the complainant
crew members, although it claimed, that it would "suffer and absorb considerable
amount of losses." The proposal was accepted by the Seamen with certain
conditions which were accepted by the Company. Conformably with the agreement
of the parties which was effected through the cables abovementioned, the Seamen
were paid their new salary rates.

Subsequently, the Company sought authority from the NSB to cancel the contracts of
employment of the Seamen, claiming that its principals had terminated their
manning agreement because of the actuations of the Seamen. The request was
granted by the NSB Executive Director in a letter dated 10 April 1979. Soon
thereafter, the Company cabled the Seamen informing them that their contracts
would be terminated upon the vessel's arrival in Japan. On 19 April 1979 they Arere
asked to disembark from the vessel, their contracts were terminated, and they were
repatriated to Manila. There is no showing that the Seamen were given the
opportunity to at least comment on the Company's request for the cancellation of
their contracts, although they had served only three (3) out of the twelve (12)
months' duration of their contracts.

The private respondents filed a complaint for illegal dismissal and non-payment of
earned wages with the National Seamen Board. The Vir-jen Shipping and Marine
Services Inc. in turn filed a complaint for breach of contract and recovery of excess
salaries and overtime pay against the private respondents. On July 2, 1980, the NSB
rendered a decision declaring that the seamen breached their employment contracts
when they demanded and received from Vir-jen Shipping wages over and above
their contracted rates. The dismissal of the seamen was declared legal and the
seamen were ordered suspended.

The seamen appealed the decision to the NLRC which reversed the decision of the
NSB and required the petitioner to pay the wages and other monetary benefits
corresponding to the unexpired portion of the manning contract on the ground that
the termination of the contract by the petitioner was without valid cause. Vir-jen
Shipping filed the present petition.

The private respondents submit the following issues in their motion for
reconsideration: t.hqw

A. THIS HONORABLE COURT DID VIOLENCE TO LAW AND JURISPRUDENCE

WHEN IT HELD THAT THE FINDING OF FACT OF THE NATIONAL SEAMEN BOARD
THAT THE SEAMEN VIOLATED THEIR CONTRACTS IS MORE CREDIBLE THAN THE
FINDING OF FACT OF THE NATIONAL LABOR RELATIONS COMMISSION THAT THE
SEAMEN DID NOT VIOLATE THEIR CONTRACT.

B. THIS HONORABLE COURT ERRED IN FINDING THAT VIR-JEN'S HAVING

AGREED TO A 25% INCREASE OF THE SEAMEN'S BASIC WAGE WAS NOT
VOLUNTARY BUT WAS DUE TO THREATS.

C. THIS HONORABLE COURT ERRED WHEN IT TOOK COGNIZANCE OF THE

ADDENDUM AGREEMENT; ASSUMING THAT THE ADDENDUM AGREEMENT COULD
BE TAKEN COGNIZANCE OF, THIS HONORABLE COURT ERRED WHEN' IT FOUND
THAT PRIVATE RESPONDENTS HAD VIOLATED THE SAME.

D, THIS HONORABLE COURT ERRED WHEN IT DID NOT FIND PETITIONER

VIRJEN LIABLE FOR HAVING TERMINATED BEFORE EXPIRY DATE THE
EMPLOYMENT CONTRACTS OF PRIVATE RESPONDENTS, THERE BEING NO LEGAL
AND JUSTIFIABLE GROUND FOR SUCH TERMINATION.

E. THIS HONORABLE COURT ERRED IN FINDING THAT THE PREPARATION BY

PETITIONER OF THE TWO PAYROLLS AND THE EXECUTION OF THE SIDE
CONTRACT WERE NOT MADE IN BAD FAITH.

F. THIS HONORABLE COURT INADVERTENTLY DISCRIMINATED AGAINST

PRIVATE RESPONDENTS.

At the outset, we are faced with the question whether or not the Court en banc
should give due course to the motion for reconsideration inspite of its having been
denied twice by the Court's Second Division. The case was referred to and accepted
by the Court en banc because of the movants' contention that the decision in this
case by the Second Division deviated from Wallem Phil. Shipping Inc. v. Minister of
Labor (L-50734-37, February 20, 1981), a First Division case with the same facts
and issues. We are constrained to answer the initial question in the affirmative.
A fundamental postulate of Philippine Constitutional Law is the fact, that there is
only one Supreme Court from whose decisions all other courts are required to take
their bearings. (Albert v. Court of First Instance, 23 SCRA 948; Barrera v. Barrera, 34
SCRA 98; Tugade v. Court of Appeals, 85 SCRA 226). The majority of the Court's
work is now performed by its two Divisions, but the Court remains one court, single,
unitary, complete, and supreme. Flowing from this nature of the Supreme Court is
the fact that, while ' individual Justices may dissent or partially concur with one
another, when the Court states what the law is, it speaks with only one voice. And
that voice being authoritative should be a clear as possible.

Any doctrine or principle of law laid down by the Court, whether en banc or in
Division, may be modified or reversed only by the Court en banc. (Section 2(3),
Article X, Constitution.) In the rare instances when one Division disagrees in its
views with the other Division, or the necessary votes on an issue cannot be had in a
Division, the case is brought to the Court en banc to reconcile any seeming conflict,
to reverse or modify an earlier decision, and to declare the Court's doctrine. This is
what has happened in this case.

The decision sought to be reconsidered appears to be a deviation from the Court's

decision, speaking through the First Division, in Wallem Shipping, Inc. v. Hon.
Minister of Labor (102 SCRA 835). Faced with two seemingly conflicting resolutions
of basically the same issue by its two Divisions, the Court. therefore, resolved to
transfer the case to the Court en banc. Parenthetically, the petitioner's comment on
the third motion for reconsideration states that the resolution of the motion might
be the needed vehicle to make the ruling in the Wallem case clearer and more in
time with the underlying principles of the Labor Code. We agree with the petitioner.

After an exhaustive, painstaking, and perspicacious consideration of the motions for

reconsideration and the comments, replies, and other pleadings related thereto, the
Court en banc is constrained to grant the motions. To grant the motion is to keep
faith with the constitutional mandate to afford protection to labor and to assure the
rights of workers to self-organization and to just and humane conditions of work.
We sustain the decision of the respondent National labor Relations Commission.

There are various arguments raised by the petitioners but the common thread
running through all of them is the contention, if not the dismal prophecy, that if the
respondent seamen are sustained by this Court, we would in effect "kill the en that
lays the golden egg." In other words, Filipino seamen, admittedly among the best in
the world, should remain satisfied with relatively lower if not the lowest,
international rates of compensation, should not agitate for higher wages while their
contracts of employment are subsisting, should accept as sacred, iron clad, and
immutable the side contracts which require them to falsely pretend to be members
of international labor federations, pretend to receive higher salaries at certain
foreign ports only to return the increased pay once the ship leaves that port, should
stifle not only their right to ask for improved terms of employment but their
freedom of speech and expression, and should suffer instant termination of
employment at the slightest sign of dissatisfaction with no protection from their
Government and their courts. Otherwise, the petitioners contend that Filipinos
would no longer be accepted as seamen, those employed would lose their jobs, and
the still unemployed would be left hopeless.

This is not the first time and it will not be the last where the threat of
unemployment and loss of jobs would be used to argue against the interests of
labor; where efforts by workingmen to better their terms of employment would be
characterized as prejudicing the interests of labor as a whole.

In 1867 or one hundred sixteen years ago. Chief Justice Beasley of the Supreme
Court of New Jersey was ponente of the court's opinion declaring as a conspiracy the
threat of workingmen to strike in connection with their efforts to promote
unionism, t.hqw

It is difficult to believe that a right exists in law which we can scarcely conceive can
produce, in any posture of affairs, other than injuriois results. It is simply the right of
workmen, by concert of action, and by taking advantage of their position, to control
the business of another, I am unwilling to hold that a right which cannot, in any,
event, be advantageous to the employee, and which must always be hurtful to the
employer, exists in law. In my opinion this indictment sufficiently shows that the
force of the confederates was brought to bear upon their employer for the purpose
of oppression and mischief and that this amounts to a conspiracy, (State v.
Donaldson, 32 NJL 151, 1867. Cited in Chamberlain, Sourcebook on Labor, p. 13.
Emphasis supplied)

The same arguments have greeted every major advance in the rights of the
workingman. And they have invariably been proved unfounded and false.

Unionism, employers' liability acts, minimum wages, workmen's compensation,

social security and collective bargaining to name a few were all initially opposed by
employers and even well meaning leaders of government and society as "killing the
hen or goose which lays the golden eggs." The claims of workingmen were described
as outrageously injurious not only to the employer but more so to the employees
themselves before these claims or demands were established by law and
jurisprudence as "rights" and before these were proved beneficial to management,
labor, and the nation as a whole beyond reasonable doubt.

The case before us does not represent any major advance in the rights of labor and
the workingmen. The private respondents merely sought rights already established.
No matter how much the petitioner-employer tries to present itself as speaking for
the entire industry, there is no evidence that it is typical of employers hiring Filipino
seamen or that it can speak for them.
The contention that manning industries in the Philippines would not survive if the
instant case is not decided in favor of the petitioner is not supported by evidence.
The Wallem case was decided on February 20, 1981. There have been no severe
repercussions, no drying up of employment opportunities for seamen, and none of
the dire consequences repeatedly emphasized by the petitioner. Why should Vir-jen
be all exception?

The wages of seamen engaged in international shipping are shouldered by the

foreign principal. The local manning office is an agent whose primary function is
recruitment and who .usually gets a lump sum from the shipowner to defray the
salaries of the crew. The hiring of seamen and the determination of their
compensation is subject to the interplay of various market factors and one key
factor is how much in terms of profits the local manning office and the foreign
shipowner may realize after the costs of the voyage are met. And costs include
salaries of officers and crew members.

Filipino seamen are admittedly as competent and reliable as seamen from any other
country in the world. Otherwise, there would not be so many of them in the vessels
sailing in every ocean and sea on this globe. It is competence and reliability, not
cheap labor that makes our seamen so greatly in demand. Filipino seamen have
never demanded the same high salaries as seamen from the United States, the
United Kingdom, Japan and other developed nations. But certainly they are entitled
to government protection when they ask for fair and decent treatment by their
employer.-, and when they exercise the right to petition for improved terms of
employment, especially when they feel that these are sub-standard or are capable of
improvement according to internationally accepted rules. In the domestic scene,
there are marginal employers who prepare two sets of payrolls for their employees
one in keeping with minimum wages and the other recording the sub-standard
wages that the employees really receive, The reliable employers, however, not only
meet the minimums required by fair labor standards legislation but even go way
above the minimums while earning reasonable profits and prospering. The same is
true of international employment. There is no reason why this Court and the
Ministry of Labor and. Employment or its agencies and commissions should come
out with pronouncements based on the standards and practices of unscrupulous or
inefficient shipowners, who claim they cannot survive without resorting to tricky
and deceptive schemes, instead of Government maintaining labor law and
jurisprudence according to the practices of honorable, competent, and law-abiding
employers, domestic or foreign.

If any minor advantages given to Filipino seamen may somehow cut into the profits
of local manning agencies and foreign shipowners, that is not sufficient reason why
the NSB or the ILRC should not stand by the former instead of listening to
unsubstantiated fears that they would be killing the hen which lays the golden eggs.

Prescinding from the above, we now hold that neither the National Seamen Board
nor the National Labor Relations Commission should, as a matter of official policy,
legitimize and enforce cubious arrangements where shipowners and seamen enter
into fictitious contracts similar to the addendum agreements or side contracts in
this case whose purpose is to deceive. The Republic of the Philippines and its
ministries and agencies should present a more honorable and proper posture in
official acts to the whole world, notwithstanding our desire to have as many job
openings both here and abroad for our workers. At the very least, such as sensitive
matter involving no less than our dignity as a people and the welfare of our
workingmen must proceed from the Batasang Pambansa in the form of policy
legislation, not from administrative rule making or adjudication

Another issue raised by the movants is whether or not the seamen violated their
contracts of employment.

The form contracts approved by the National Seamen Board are designed to protect
Filipino seamen not foreign shipowners who can take care of themselves. The
standard forms embody' the basic minimums which must be incorporated as parts
of the employment contract. (Section 15, Rule V, Rules and Regulations
Implementing the Labor Code.) They are not collective bargaining agreements or
immutable contracts which the parties cannot improve upon or modify in the course
of the agreed period of time. To state, therefore, that the affected seamen cannot
petition their employer for higher salaries during the 12 months duration of the
contract runs counter to established principles of labor legislation. The National
Labor Relations Commission, as the appellate tribunal from decisions of the
National Seamen Board, correctly ruled that the seamen did not violate their
contracts to warrant their dismissal.

The respondent Commission ruled: t.hqw

In the light of all the foregoing facts, we find that the cable of the seamen proposing
an increase in their wage rates was not and could not have been intended as a threat
to comp el the Company to accede to their proposals. But even assuming, if only for
the sake of argument, that the demand or proposal for a wage increase was
accompanied by a threat that they would report to ITF if the Company did not
accede to the contract revision - although there really was no such threat as pointed
out earlier the Seamen should not be held at fault for asking such a demand. In
the same case cited above, the Supreme Court held: t.hqw

Petitioner claims that the dismissal of private respondents was justified because the
latter threatened the ship authorities in acceding to their demands, and this
constitutes serious misconduct as contemplated by the Labor Code. This contention
is not well-taken. But even if there had been such a threat, respondents' behavior
should not be censured because it is but natural for them to employ some means of
pressing their demands for petitioner, the refusal to abide with the terms of the
Special Agreement, to honor and respect the same, They were only acting in the
exercise of their rights, and to deprive them of their freedom of expression is
contrary to law and public policy. There is no serious misconduct to speak of in the
case at bar which would justify respondents' dismissal just because of their firmness
in their demand for the fulfillment by petitioner of its obligation it entered into
without any coercion, specially on the part of private respondents. (Emphasis
supplied).

The above citation is from Wallem.

The facts show that when the respondents boarded the M/T Jannu there was no
intention to send their ship to Australia. On January 10, 1979, the petitioner sent a
cable to respondent shipmaster Bisula informing him of the procedure to be
followed in the computation of special compensation of crewmembers while in ITF
controlled ports and expressed regrets for not having earlier clarified the procedure
as it thought that the vessel would trade in Carribean ports only.

On March 22, 1979, the petitioner sent another cable informing Bisula of the special
compensation when the ship would call at Kwinana Australia.

The following day, shipmaster Bisula cabled Vir-jen stating that the officers and
crews were not interested in ITF membership if not paid ITF rates and that their
only demand was a 50 percent increase based on their then salaries. Bisula also
pointed out that Vir-jen rates were "very far in comparison with other shipping
agencies in Manila."

In reply, Vir-jen counter proposed a 25 percent increase. Only after Kyoei Tanker
Co., Ltd., declined to increase the lumps sum amount given monthly to Vir-jen was
the decision to terminate the respondents' employment formulated.

The facts show that Virjen Initiated the discussions which led to the demand for
increased . The seamen made a proposal and the petitioner organized with a
counter-proposal. The ship had not vet gone to Australia or any ITF controlled port.
There was absolutely no mention of any strike. much less a threat to strike. The
seamen had done in act which under Philippine law or any other civilized law would
be termed illegal, oppressive, or malicious. Whatever pressure existed, it was mild
compared to accepted valid modes of labor activity.

We reiterate our ruling in Wallem. t.hqw

Petitioner claims that the dismissal of private respondents was justified because the
latter threatened the ship authorities in acceding to their demands, and this
constitutes serious misconduct as contemplated by the Labor Code. This contention
is not well-taken. The records fail to establish clearly the commission of any threat,
But even if there had been such a threat, respondents' behavior should not be
censured because it is but natural for them to employ some means of pressing their
demands for petitioner, who refused to abide with the terms of the Special
Agreement, to honor and respect the same, They were only acting in the exercise of
their rights, and to deprive them of their form of expression is contrary to law and
public policy. ...

Our dismissing the petition is premised on the assumption that the Ministry of
Labor and Employment and all its agencies exist primarily for the workinginan's
interests and, of course, the nation as a whole. The points raised by the Solicitor-
General in his comments refer to the issue of allowing what the petitioner
importunes under the argument of "killing the hen which lays the golden eggs." This
is one of policy which should perhaps be directed to the Batasang Pambansa and to
our country's other policy makers for more specific legislation on the matter,
subject to the constitutional provisions protecting labor, promoting social justice,
and guaranteeing non-abridgement of the freedom of speech, press, peaceable
assembly and petition. We agree with the movants that there is no showing of any
cause, which under the Labor Code or any current applicable law, would warrant
the termination of the respondents' services before the expiration of their contracts.
The Constitution guarantees State assurance of the rights of workers to security of
tenure. (Sec. 9, Article II, Constitution). Presumptions and provisions of law, the
evidence on record, and fundamental State policy all dictate that the motions for
reconsideration should be granted.

WHEREFORE, the motions for reconsideration are hereby GRANTED. The petition is
DISMISSED for lack of merit. The decision of the National Labor Relations
Commission is AFFIRMED. No costs.

SO ORDERED.

G.R. No. 152214 September 19, 2006

EQUI-ASIA PLACEMENT, INC., petitioner,

vs.
DEPARTMENT OF FOREIGN AFFAIRS (DFA) represented by the HON. DOMINGO
L. SIAZON, JR., SECRETARY, DEPARTMENT OF LABOR AND EMPLOYMENT
(DOLE), represented by HON. BIENVENIDO LAGUESMA, respondents.

This is a Petition for Review on Certiorari of the Decision dated 4 October 20011
and Resolution dated 18 February 2002 of the Court of Appeals in CA-G.R. SP No.
61904. The Decision denied petitioner's petition for certiorari while the Resolution
denied its Motion for Reconsideration.

The Court of Appeals summarized the facts of this case in this wise:

On September 16, 2000, Manny dela Rosa Razon, a native of Lemery, Batangas and
an overseas Filipino worker, died of acute cardiac arrest while asleep at the
dormitory of the Samsong Textile Processing Factory in South Korea. Informed
thereof, the Philippine Overseas Labor Office (POLO) at South Korea immediately
relayed the incident to the Philippine Embassy in South Korea. Forthwith, the
[Labor] Attach of the Philippine Embassy dispatched a letter to Eleuterio N.
Gardiner, administrator of the Overseas Workers Welfare Administration (OWWA).
The letter reads:

"VERY URGENT, POLO has recently received a report that OFW Manny dela Rosa
RAZON, an undocumented worker, died last Saturday, 16 September, from an
apparent pancreatic attack or 'bangungot.'

According to the verbal reports of Moises and Ronald Recarde, Manny's co-workers,
he was found already lifeless inside their quarters at around 11:00 in the morning of
the above date. They rushed him to Uri Hospital where the Doctor declared him
dead on arrival.

Per information gathered, the deceased is single, 29 years old, from Bukal, Lemery,
Batangas. His next-of-kins are Mrs. Rowena Razon (Auntie) and Mr. Razon (Uncle)
with telephone number (043)411-2308.

POLO is awaiting signed statements from the aforementioned workers who

promised to send it by fax this afternoon.

We are also coordinating with the deceased's employer for documentation

requirements and financial assistance for the repatriation of the remains.

We will highly appreciate if Home Office could advise the next-of-kins of the urgent
need to issue a Special Power of Attorney (SPA) to facilitate the repatriation
requirements of the subject.

In anticipation of the next-of-kins' likely move to seek financial assistance from

OWWA for the repatriation of their loved [one], please be advised in advance that
we will need about US$4,000.00 to repatriate the cadaver (to include hospital and
morgue costs) to Manila. xxx"

In turn, the OWWA, through Atty. Cesar L. Chavez, indorsed the matter, for
appropriate action, to Director R. Casco of the Welfare Employment Office of the
Philippine Overseas Employment Administration (WEO-POEA).

Upon verification by the WEO-POEA on its data base, it was discovered that Manny
Razon was recruited and deployed by petitioner Equi-Asia Placement, Inc., and was
sent to South Korea on April 3, 2000 to work-train at Yeongjin Machinery, Inc.
Thereupon, POEA addressed the herein first assailed telegram-directive dated
September 22, 2000 to the President/General Manager of the petitioner. We quote
the telegram:
"PLEASE PROVIDE PTA [Prepaid Ticket Advice] FOR THE REPATRIATION OF
REMAINS AND BELONGINGS OF OFW MANNY DELA ROSA RAZON AS PER REQUEST
OF PHILIPPINE EMBASSY, KOREA, YOU CAN COORDINATE WITH YOUR FOREIGN
EMPLOYER AND TO WAD/OWWA (MLA) AS REGARDS TO THIS MATTER. YOU ARE
GIVEN TWO (2) DAYS FROM RECEIPT HEREOF WITHIN WHICH TO PROVIDE SAID
TICKET AND ASSISTANCE, KINDLY SUBMIT YOUR REPORT TO ASSISTANCE AND
WELFARE DIVISION (AWD), 2/F POEA, FAILURE TO DO SO WILL CONSTRAIN US TO
IMPOSE APPROPRIATE SANCTION UNDER OUR RULES"

Responding thereto, petitioner, thru its President Daniel Morga, Jr., faxed on
September 26, 2000 the following message to the Assistance and Welfare Division of
the POEA:

"In connection with your telegram, dated 09/22/2000, requiring us to report the
circumstances surrounding the death of OFW MANNY DELA ROSA RAZON in Korea
and requesting us to issue a PTA, etc., for the repatriation of the remains of said
OFW, this is to report to your good office the following:

1. The deceased was deployed by our agency on April 3, 2000 to Yeongjin Machine
Company in South Korea;

2. He violated his employment/training/dispatching contracts on June 25, 2000 by

unlawfully escaping/running away (TNT) from his company assignment without
prior KFSMB authorization and working/staying in unknown company/place;

3. He allegedly died of 'bangungot' thereafter;

In view thereof, we cannot heed your requests as embodied in your telegram.

However, his relatives can avail of the benefits provided for by OWWA in cases
involving undocumented/illegal Filipino workers abroad.

Trusting for your kind understanding"

On the same date September 26, 2000 Director Ricardo R. Casco of the WEO-
POEA sent to the petitioner the herein second assailed letter-directive, which
pertinently reads:

"We have received a copy of your fax message dated 26 September 2000 as regards
to your response to our request for PTA for aforesaid deceased OFW. Nevertheless,
may we remind you that pursuant to Sections 52, 53, 54 and 55 of the Implementing
Rules Governing RA 8042, otherwise known as the Migrant Workers and Overseas
Filipino Act of 1995, the repatriation of OFW, his/her remains and transport of his
personal effects is the primary responsibility of the principal or agency and to
immediately advance the cost of plane fare without prior determination of the cause
of worker's repatriation. The Rules further provide for the procedure to be followed
in cases when the foreign employer/agency fails to provide for the cost of the
repatriation, compliance of which is punishable by suspension of the license of the
agency or such sanction as the Administration shall deem proper. Hence, you are
required to provide the PTA for the deceased OFW in compliance with the
requirement in accordance with R.A. 8042. You are given forty-eight (48) hours
upon receipt hereof within which to provide said ticket. Failure in this regard will
constrain us to impose the appropriate sanction under our rules."

On September 27, 2000, petitioner wrote back Director Ricardo R. Casco, thus:

"In connection with your fax letter dated September 26, 2000, re: the repatriation of
the remains of the deceased, ex-trainee (OFW) MANNY DELA ROSA RAZON, please
be informed that the provisions of Section 53 as well as, and in relation to, Section
55 of the Omnibus Rules and Regulations Implementing the Migrant Workers and
Overseas Filipinos Act of 1995 on the matters covering the following:

1. The responsibility of the agency to advance the cost of plane fare without prior
determination of the cause of the deceased worker's termination.

2. The recovery of the same costs from the estate of the dead worker before the
NLRC.

3. The action to be imposed by POEA for non-compliance therewith within 48 hours

are violative of due process and/or the principle on due delegation of power.

This is so because Sec. 15 of R.A. 8042 clearly contemplates prior notice and hearing
before responsibility thereunder could be established against the agency that sets
up the defense of sole fault in avoidance of said responsibility -. Besides, the
sections in question unduly grant the powers to require advance payment of the
plane fare, to impose the corresponding penalty of suspension in case of non-
compliance therewith, within 48 hours and to recover said advance payment from
the dead worker's estate upon the return of his remains to the country before the
NLRC, when the law itself does not expressly provide for the grant of such powers.

x x x x x x x x x.

Please provide us immediately with the death certificate/post mortem report/police

report pertinent to above as proof of death and cause thereof."

Nonetheless, and apprehensive of the adverse repercussions which may ensue on

account of its non-compliance with the directive, petitioner, on September 29, 2000,
advanced under protest the costs for the repatriation of the remains of the late
Manny dela Rosa Razon.

Thereafter, petitioner went to this Court via the instant petition for certiorari,
posing, for Our consideration, the sole issue of
"WHETHER OR NOT SECTIONS 52, 53, 54 AND 55 OF THE OMNIBUS RULES AND
REGULATIONS IMPLEMENTING THE MIGRANT WORKERS AND OVERSEAS
FILIPINOS ACT OF 1995 (R.A. 8042), ISSUED BY DFA AND POEA, WHICH POEA
SUMMARILY ORDERED THE HEREIN PETITIONER TO COMPLY VIZ-A-VIZ THE
PAYMENT IN ADVANCE OF THE EXPENSES FOR THE REPATRIATION OF THE
REMAINS OF A DECEASED WORKER-TRAINEE WHO, AT THE TIME OF HIS DEATH,
HAS NO EXISTING EMPLOYMENT (DISPATCHING) CONTRACT WITH EITHER SAID
PETITIONER OR HIS FOREIGN PRINCIPAL AND NO VALID VISA OR IS NOT
WORKING WITH THE FOREIGN PRINCIPAL TO WHICH PETITIONER DEPLOYED
HIM, IS ILLEGAL AND/OR VIOLATIVE OF DUE PROCESS SUCH THAT POEA ACTED
WITHOUT [OR IN] EXCESS OF ITS JURISDICTION AND/OR IN GRAVE ABUSE OF
DISCRETION IN ISSUING SAID ORDER TO PAY SAID EXPENSES."2

On 4 October 2001, the Court of Appeals rendered the Decision which is now the
subject of the present petition. The dispositive portion of the Court of Appeals'
Decision states:

WHEREFORE, for lack of merit, the instant petition is DENIED and is accordingly
DISMISSED.3

In dismissing the petition for certiorari, the Court of Appeals stated that petitioner
was mainly accusing the Philippine Overseas Employment Administration (POEA) of
grave abuse of discretion when it ordered petitioner to pay, in advance, the costs for
the repatriation of the remains of the deceased Manny dela Rosa Razon.

The Court of Appeals ruled that the POEA did not commit any grave abuse of
discretion as its directives to petitioner were issued pursuant to existing laws and
regulations.4 It likewise held that a petition for certiorari, which was the remedy
availed of by petitioner, is not the proper remedy as the same is only available when
"there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law."5 Section 62 of the Omnibus Rules and Regulations Implementing the
Migrant Workers and Overseas Filipinos Act of 1995 or Republic Act 8042
("Omnibus Rules") states that "the Labor Arbiters of NLRC shall have the original
and exclusive jurisdiction to hear and decide all claims arising out of employer-
employee relationship or by virtue of any law or contract involving Filipino workers
for overseas deployment including claims for actual, moral, exemplary and other
forms of damages, subject to the rules and procedures of the NLRC." There is,
therefore, an adequate remedy available to petitioner.

Lastly, the Court of Appeals declared that it could not strike down as
unconstitutional Sections 52, 53, 54, and 55 of the Omnibus Rules as the
unconstitutionality of a statute or rules may not be passed upon unless the issue is
directly raised in an appropriate proceeding.6

In the present recourse, petitioner submits the following issues for our
consideration:
1. The Court of Appeals erred in the appreciation of the issue as it mistakenly
considered, in dismissing the petition before it, that petitioner is contesting the
compliance and conformity of the POEA directives with Sections 52, 53, 54, and 55
of the Omnibus Rules and Regulations implementing in particular Section 15 of RA
8042;

2. The Court of Appeals, in dismissing the petition, again erred in ruling that
constitutional questions cannot be passed upon and adjudged in a special civil
action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure;

3. The Court of Appeals erred in not holding that, under the facts of the case that
gave rise to the petition before it, the same sections of the said rules and regulations
are illegal, invalid and/or violative of the right of petitioner to due process of law
and, therefore, the POEA directives issued pursuant thereto constitute acts
committed without, or in excess of, jurisdiction and/or in grave abuse of
discretion.7

In Our Resolution of 20 November 2002, we gave due course to the present petition
and directed the parties to submit their respective memoranda.8 On 28 August
2006, we resolved to dispense with the memorandum of the estate/heirs of
deceased Manny dela Rosa Razon.

At the center of this petition are the following provisions of the omnibus rules:

Section 52. Primary Responsibility for Repatriation. The repatriation of the

worker, or his/her remains, and the transport of his/her personal effects shall be
the primary responsibility of the principal or agency which recruited or deployed
him/her abroad. All costs attendant thereto shall be borne by the principal or the
agency concerned.

Section 53. Repatriation of Workers. The primary responsibility to repatriate

entails the obligation on the part of principal or agency to advance the cost of plane
fare and to immediately repatriate the worker should the need for it arise, without a
prior determination of the cause of the termination of the worker's employment.
However, after the worker has returned to the country, the principal or agency may
recover the cost of repatriation from the worker if the termination of employment
was due solely to his/her fault.

Every contract for overseas employment shall provide for the primary
responsibility of agency to advance the cost of plane fare, and the obligation of the
worker to refund the cost thereof in case his/her fault is determined by the Labor
Arbiter.

Section 54. Repatriation Procedure. When a need for repatriation arises and the
foreign employer fails to provide for it cost, the responsible personnel at site shall
simultaneously notify OWWA and the POEA of such need. The POEA shall notify the
agency concerned of the need for repatriation. The agency shall provide the plane
ticket or the prepaid ticket advice (PTA) to the Filipinos Resource Center or to the
appropriate Philippine Embassy; and notify POEA of such compliance. The POEA
shall inform OWWA of the action of the agency.

Section 55. Action on Non-Compliance. If the employment agency fails to provide

the ticket or PTA within 48 hours from receipt of the notice, the POEA shall suspend
the license of the agency or impose such sanctions as it may deem necessary. Upon
notice from the POEA, OWWA shall advance the costs of repatriation with recourse
to the agency or principal. The administrative sanction shall not be lifted until the
agency reimburses the OWWA of the cost of repatriation with legal interest.

Said provisions, on the other hand, are supposed to implement Section 15 of

Republic Act No. 80429 which provides:

SEC. 15. Repatriation of Workers; Emergency Repatriation Fund. The repatriation

of the worker and the transport of his personal belongings shall be the primary
responsibility of the agency which, recruited or deployed the worker overseas. All
costs attendant to repatriation shall be borne by or charged to the agency concerned
and/or its principal. Likewise, the repatriation of remains and transport of the
personal belongings of a deceased worker and all costs attendant thereto shall be
borne by the principal and/or the local agency. However, in cases where the
termination of employment is due solely to the fault of the worker, the
principal/employer or agency shall not in any manner be responsible for the
repatriation of the former and/or his belongings.

Petitioner contends that the Court of Appeals misappreciated the issue it presented
in its petition for certiorari when, instead of resolving whether Sections 52, 53, 54,
and 55 of the Omnibus Rules are illegal and violative of due process, it merely
confined itself to the question of whether or not the POEA committed grave abuse of
discretion in issuing its directives of 22 September 2000 and 27 September 2000.

Petitioner also contends that, contrary to the finding of the Court of Appeals, a
special civil action for certiorari is the appropriate remedy to raise constitutional
issues.

Also, petitioner insists that the subject portions of the omnibus rules are invalid on
the ground that Section 15 of Republic Act No. 8042 does not impose on a
recruitment agency the primary responsibility for the repatriation of a deceased
Overseas Filipino Worker (OFW), while Section 52 of the Omnibus Rules unduly
imposes such burden on a placement agency.

Moreover, petitioner argues that the word "likewise" at the start of the third
sentence of Section 15 of Republic Act No. 8042 is used merely as a connective word
indicating the similarity between a recruitment agency's financial obligation in the
repatriation of living and a deceased OFW. It does not, however, necessarily make a
placement agency primarily responsible for the repatriation of a deceased OFW
unlike in the case of an OFW who is alive.

As for Section 53 of the Omnibus Rules, petitioner submits that the same is invalid
as Section 15 of Republic Act No. 8042 clearly states that a placement agency shall
not in any manner be responsible for the repatriation of the deceased OFW and his
or her belongings should the termination of the OFW's employment be due to his or
her fault. However, as Section 53 of the Omnibus Rules stipulates that a placement
agency or principal shall bear the primary responsibility of repatriating an OFW and
of advancing the payment for his or her plane fare, the omibus rules, as far as this
section is concerned, is an invalid exercise of legislative power by an administrative
agency.

In addition, petitioner claims Section 53 of the Omnibus Rules violates the due
process clause of the constitution as it deprives the deploying agency of the right to
prior notice and hearing through which it can prove that it should not bear the
burden of repatriating an OFW.

Finally, petitioner points out that it should be the Overseas Workers Welfare
Administration which should advance the costs of repatriation of the deceased
Razon with the resources coming out of the emergency repatriation fund of said
agency.

The Solicitor General for its part counters that Sections 52, 53, 54, and 55 of the
Omnibus Rules are valid quasi-legislative acts of respondents Department of
Foreign Affairs and Department of Labor and Employment.10 Because of this, the
requirements of prior notice and hearing are not essential. Besides, there are cases
where even in the exercise of quasi-judicial power, administrative agencies are
allowed, sans prior notice and hearing, to effectuate measures affecting private
property, such as:

1) [F]or the summary abatement of nuisance per se which affects the immediate
safety of persons and property, or 2) in summary proceedings of distraint and levy
upon the property of delinquent taxpayers in the collection of internal revenue
taxes, fees or charges or any increment thereto, or 3) in the preventive suspension
of a public officer pending investigation. x x x.11

The Solicitor General also adds that since petitioner is engaged in the recruitment of
Filipino workers for work abroad, the nature of its business calls for the exercise of
the state's police power in order to safeguard the rights and welfare of the Filipino
laborers. One such measure is the primary responsibility imposed upon placement
agencies with regard to the repatriation of an OFW or of his remains.
The Solicitor General also argues that the wording of Section 15 of Republic Act No.
8042 leaves no doubt that a recruitment agency shall bear the primary
responsibility for the repatriation of an OFW whether the latter is dead or alive.

Lastly, the Solicitor General insists that actions assailing the validity of
implementing rules and regulations are within the original jurisdiction of the
regional trial courts.

We shall first address the procedural question involved in the present petition.

There is no denying that regular courts have jurisdiction over cases involving the
validity or constitutionality of a rule or regulation issued by administrative agencies.
Such jurisdiction, however, is not limited to the Court of Appeals or to this Court
alone for even the regional trial courts can take cognizance of actions assailing a
specific rule or set of rules promulgated by administrative bodies. Indeed, the
Constitution vests the power of judicial review or the power to declare a law, treaty,
international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the regional trial courts.12

Section 1, Rule 65 of the 1997 Rules of Civil Procedure states:

SECTION 1. Petition for Certiorari. When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of Section 3, Rule 46.

From this, it is clear that in order for a petition for certiorari to prosper, the
following requisites must be present: (1) the writ is directed against a tribunal, a
board or an officer exercising judicial or quasi-judicial functions; (2) such tribunal,
board or officer has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or
any plain, speedy and adequate remedy in the ordinary course of law.

It bears emphasizing that administrative bodies are vested with two basic powers,
the quasi-legislative and the quasi-judicial.13 In Abella, Jr. v. Civil Service
Commission,14 we discussed the nature of these powers to be
In exercising its quasi-judicial function, an administrative body adjudicates the
rights of persons before it, in accordance with the standards laid down by the law.
The determination of facts and the applicable law, as basis for official action and the
exercise of judicial discretion, are essential for the performance of this function. On
these considerations, it is elementary that due process requirements, as enumerated
in Ang Tibay, must be observed. These requirements include prior notice and
hearing.

On the other hand, quasi-legislative power is exercised by administrative agencies

through the promulgation of rules and regulations within the confines of the
granting statute and the doctrine of non-delegation of certain powers flowing from
the separation of the great branches of the government. Prior notice to and hearing
of every affected party, as elements of due process, are not required since there is no
determination of past events or facts that have to be established or ascertained. As a
general rule, prior notice and hearing are not essential to the validity of rules or
regulations promulgated to govern future conduct.

In this case, petitioner assails certain provisions of the Omnibus Rules. However,
these rules were clearly promulgated by respondents Department of Foreign Affairs
and Department of Labor and Employment in the exercise of their quasi-legislative
powers or the authority to promulgate rules and regulations. Because of this,
petitioner was, thus, mistaken in availing himself of the remedy of an original action
for certiorari as obviously, only judicial or quasi-judicial acts are proper subjects
thereof. If only for these, the petition deserves outright dismissal. Be that as it may,
we shall proceed to resolve the substantive issues raised in this petition for review
in order to finally remove the doubt over the validity of Sections 52, 53, 54, and 55
of the Omnibus Rules.

It is now well-settled that delegation of legislative power to various specialized

administrative agencies is allowed in the face of increasing complexity of modern
life. Given the volume and variety of interactions involving the members of today's
society, it is doubtful if the legislature can promulgate laws dealing with the
minutiae aspects of everyday life. Hence, the need to delegate to administrative
bodies, as the principal agencies tasked to execute laws with respect to their
specialized fields, the authority to promulgate rules and regulations to implement a
given statute and effectuate its policies.15 All that is required for the valid exercise
of this power of subordinate legislation is that the regulation must be germane to
the objects and purposes of the law; and that the regulation be not in contradiction
to, but in conformity with, the standards prescribed by the law.16 Under the first
test or the so-called completeness test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the
only thing he will have to do is to enforce it.17 The second test or the sufficient
standard test, mandates that there should be adequate guidelines or limitations in
the law to determine the boundaries of the delegate's authority and prevent the
delegation from running riot.18
We resolve that the questioned provisions of the Omnibus Rules meet these
requirements.

Basically, petitioner is impugning the subject provisions of the Omnibus Rules for
allegedly expanding the scope of Section 15 of Republic Act No. 8042 by: first,
imposing upon it the primary obligation to repatriate the remains of the deceased
Razon including the duty to advance the cost of the plane fare for the transport of
Razon's remains; and second, by ordering it to do so without prior determination of
the existence of employer-employee relationship between itself and Razon.

Petitioner's argument that Section 15 does not provide that it shall be primarily
responsible for the repatriation of a deceased OFW is specious and plain nitpicking.
While Republic Act No. 8042 does not expressly state that petitioner shall be
primarily obligated to transport back here to the Philippines the remains of the
deceased Razon, nevertheless, such duty is imposed upon him as the statute clearly
dictates that "the repatriation of remains and transport of the personal belongings
of a deceased worker and all costs attendant thereto shall be borne by the principal
and/or the local agency." The mandatory nature of said obligation is characterized
by the legislature's use of the word "shall." That the concerned government agencies
opted to demand the performance of said responsibility solely upon petitioner does
not make said directives invalid as the law plainly obliges a local placement agency
such as herein petitioner to bear the burden of repatriating the remains of a
deceased OFW with or without recourse to the principal abroad. In this regard, we
see no reason to invalidate Section 52 of the omnibus rules as Republic Act No. 8042
itself permits the situation wherein a local recruitment agency can be held
exclusively responsible for the repatriation of a deceased OFW.

Nor do we see any reason to stamp Section 53 of the Omnibus Rules as invalid for
allegedly contravening Section 15 of the law which states that a placement agency
shall not be responsible for a worker's repatriation should the termination of the
employer-employee relationship be due to the fault of the OFW. To our mind, the
statute merely states the general principle that in case the severance of the
employment was because of the OFW's own undoing, it is only fair that he or she
should shoulder the costs of his or her homecoming. Section 15 of Republic Act No.
8042, however, certainly does not preclude a placement agency from establishing
the circumstances surrounding an OFW's dismissal from service in an appropriate
proceeding. As such determination would most likely take some time, it is only
proper that an OFW be brought back here in our country at the soonest possible
time lest he remains stranded in a foreign land during the whole time that
recruitment agency contests its liability for repatriation. As aptly pointed out by the
Solicitor General

Such a situation is unacceptable.

24. This is the same reason why repatriation is made by law an obligation of the
agency and/or its principal without the need of first determining the cause of the
termination of the worker's employment. Repatriation is in effect an unconditional
responsibility of the agency and/or its principal that cannot be delayed by an
investigation of why the worker was terminated from employment. To be left
stranded in a foreign land without the financial means to return home and being at
the mercy of unscrupulous individuals is a violation of the OFW's dignity and his
human rights. These are the same rights R.A. No. 8042 seeks to protect.19

As for the sufficiency of standard test, this Court had, in the past, accepted as
sufficient standards the following: "public interest," "justice and equity," "public
convenience and welfare," and "simplicity, economy and welfare."20

In this case, we hold that the legislature's pronouncements that Republic Act No.
8042 was enacted with the thought of upholding the dignity of the Filipinos may
they be here or abroad and that the State shall at all times afford full protection to
labor, both here and abroad, meet the requirement and provide enough guidance for
the formulation of the omnibus rules.

WHEREFORE, the Petition for Review is DENIED. The Court of Appeals' Decision
dated 4 October 2001 and Resolution dated 18 February 2002 are hereby
AFFIRMED. With costs.

SO ORDERED.

G.R. No. 90273-75 November 15, 1989

FINMAN GENERAL ASSURANCE CORP., petitioner,

vs.
WILLIAM INOCENCIO, ET AL. AND EDWIN CARDONES, THE ADMINISTRATOR,
PHILIPPINE OVERSEAS AND EMPLOYMENT ADMINISTRATION, THE
SECRETARY OF LABOR AND EMPLOYMENT, respondents.

Pan Pacific Overseas Recruiting Services, Inc. ("Pan Pacific") is a private, fee-
charging, recruitment and employment agency. T in accordance with the
requirements of Section 4, Rule II, Book II of the Rules and Regulations of the
Philippine Overseas Employment Administration (POEA), Pan Pacific posted a
surety bond issued by petitioner Finman General Assurance Corporation ("Finman")
and was granted a license to operate by the POEA.

Private respondents William Inocencio, Perfecto Palero, Jr., Edwin Cardones and one
Edwin Hernandez filed with the POEA separate complaints against Pan Pacific for
violation of Articles 32 and 34 (a) of the Labor Code, as amended and for refund of
placement fees paid to Pan Pacific. The complainants alleged that Pan Pacific
charged and collected such fees from them but did not secure employment for them.
Acting on the complaints, the POEA Administrator motu proprio impleaded
petitioner Finman as party respondent in its capacity as surety for Pan Pacific.
Separate summonses were served upon Finman and Pan Pacific. The return of the
summons served on Pan Pacific at its official address registered in the POEA
records, showed that Pan Pacific had moved out therefrom; no prior notice of
transfer or change of address was furnished by Pan Pacific to the POEA as required
under POEA rules. The POEA considered that constructive service of the complaints
had been effected upon Pan Pacific and proceeded accordingly.

For its part, petitioner Finman filed an answer denying liability and pleading, by
way of special and affirmative defenses, that: (1) the POEA had no "jurisdiction over
surety bonds," that jurisdiction being vested in the Insurance Commission or the
regular courts; (2) it (Finman) had not violated Articles 32 and 34 (a) of the Labor
Code and complainants' claims had accrued during the suspension of the principal
obligor, Pan Pacific; (3) complainants had no cause of action against Finman, since it
was not privy to the transactions between them and Pan Pacific and had not
received any moneys from them; and (4) the amounts claimed by complainants had
been paid by them as deposits and not as placement fees.

A hearing was held by the POEA on 14 April 1988, at which time complainants
presented their evidence. Petitioner Finman, though notified of this hearing, did not
appear.

On 30 May 1989, the POEA Administrator issued an Order which, in its dispositive
portion, said:

WHEREFORE, premises considered, respondents are hereby ordered to pay jointly

and severally complainants' claims as follows:

1. William Inocencio P6,000 .00

2. Perfecto Palero, Sr. P5,500 .00

3. Edwin Cardones P2,000 .00

Respondent agency is ordered to release Cardones' passport, the expenses or

obtaining the same of which (sic) shall be deducted from the amount of P2,000.00 as
it appears that it was respondent agency who applied for the processing thereof.
The claim of Edwin Hernandez is dismissed without prejudice.

For the established violations respondent agency is hereby imposed a penalty fine in
the amount of P60,000.00. Further, the ban earlier imposed upon it is herein
reiterated.

SO ORDERED.
Petitioner Finman went on appeal to the Secretary of Labor insisting that: (1) the
POEA had no authority to implead petitioner as party respondent in the proceedings
before the POEA; and that (2) the POEA had no authority to enforce directly the
surety bond against petitioner. In an Order dated 3 August 1989, the Secretary of
Labor upheld the POEA Order appealed from and denied the appeal for lack of merit.

Petitioner Finman now comes before this Court on a Petition for certiorari with
prayer for preliminary injunction or temporary restraining order, raising much the
same issues it had already ventilated before the POEA and the Secretary of Labor. It
is contended once again by petitioner Finman that the POEA had no authority to
implead petitioner in the proceedings commenced by private respondents: and that
the POEA was not authorized to require, in those same proceedings, petitioner to
pay private respondents' claims for refund against Pan Pacific on the basis of the
surety bond issued by petitioner.

Petitioner's contentions are interrelated and will be dealt with together. They are,
however, quite bereft of merit and must be rejected.

Petitioner cannot seriously dispute the direct and solidary nature of its obligations
under its own surety bond. Under Section 176 of the Insurance Code, as amended,
the liability of a surety in a surety bond is joint and several with the principal
obligor. Petitioner's bond was posted by Pan Pacific in compliance with the
requirements of Article 31 of the Labor Code, which states that

Art. 31. Bonds. All applicants for license or authority shall post such cash
and surety bonds as determined by the Secretary of Labor to guarantee compliance
with prescribed recruitment procedures, rules and regulations, and terms and,
conditions of employment as appropriate.

The Secretary of Labor shall have the exclusive power to determine, decide, order or
direct payment from, or application of, the cash and surety bond for any claim or
injury covered and guaranteed by the bonds. (Emphasis supplied).

The tenor and scope of petitioner Finman's obligations under the bond it issued are
set out in broad ranging terms by Section 4, Rule II, Book I of the POEA Rules and
Regulations:

Section 4. Payment of Fees and Posting of Bonds. Upon approval of the

application by the Minister, the applicant shall pay an annual license fee of
P6,000.00. It shall also post a cash bond of P100,000.00 and a surety bond of
P150,000.00 from a bonding company acceptable to the Administration duly
accredited by the Office of the Insurance Commission. The bonds shall answer for all
valid and legal claims arising from violations of the conditions for the grant and use
of the license or authority and contracts of employment. The bonds shall likewise
guarantee compliance with the provisions of the Labor Code and its implementing
rules and regulations relating to recruitment and placement, the rules of the
Administration and relevant issuances of the Ministry and all liabilities which the
Administration may impose. The surety bonds shall include the condition that notice
of garnishment to the principal is notice to the surety. 1 (Emphasis supplied).

While petitioner Finman has refrained from attaching a copy of the bond it had
issued to its Petition for Certiorari, there can be no question that the conditions of
the Finman surety bond Pan Pacific had posted with the POEA include the italicized
portions of Section 4, Rule 11, Book I quoted above. It is settled doctrine that the
conditions of a bond specified and required in the provisions of the statute or
regulation providing for the submission of the bond, are incorporated or built into
all bonds tendered under that statute or regulation, even though not there set out in
printer's ink. 2

In the case at bar, the POEA held, and the Secretary of Labor affirmed, that Pan
Pacific had violated Article 32 of the Labor Code, as amended

Article 32. Fees to be paid by workers. Any person applying with a private fee
charging employment agency for employment assistance shall not be charged any
fee until he has obtained employment through its efforts or has actually commenced
employment. Such fee shall be always covered with the approved receipt clearly
showing the amount paid. The Secretary of Labor shall promulgate a schedule of
allowable fees. (Emphasis supplied).

as well as Article 34 (a) of the same Code:

Article 34. Prohibited practices. It shall be unlawful for any individual, entity,
licensee, or holder of authority:

(a) To charge or accept, directly or indirectly, any amount than that specified in
the schedule of allowable fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than actually received by him as a loan or advance.
(Emphasis supplied)

There is, hence, no question that, both under the Labor Code 3 and the POEA Rules
and Regulations, 4 Pan Pacific had violated at least one of the conditions for the
grant and continued use of the recruitment license granted to it. There can,
similarly, be no question that the POEA Administrator and the Secretary of Labor
are authorized to require Pan Pacific to refund the placement fees it had charged
private respondents without securing employment for them and to impose the fine
of P60,000.00 upon Pan Pacific. Article 36 of the Labor Code authorizes the
Secretary of Labor "to restrict and regulate" the recruitment and placement
activities of agencies like Pan Pacific and "to issue orders and promulgate rules and
regulations to carry out the objectives and implement the provisions of [Title I on
"Recruitment and Placement of Workers]," including of course, Article 32 on "Fees
to be paid by workers," quoted earlier. Upon the other hand, Section 13 of Rule VI,
Book I of the POEA Rules and Regulations expressly authorize the POEA
Administrator or the Secretary of Labor to impose fines "in addition to or in lieu of
the penalties of suspension or cancellation" of the violator recruitment agency's
license.

If Pan Pacific is liable to private respondents for the refunds claimed by them and to
the POEA for the fine of P60,000.00, and if petitioner Finman is solidarily liable with
Pan Pacific under the operative terms of the bond, it must follow that Finman is
liable both to the private respondents and to the POEA. Petitioner Finman asserts,
however, that the POEA had no authority to implead it in the proceedings against
Pan Pacific.

We are not persuaded by this assertion. Clearly, petitioner Finman is a party-in-

interest in, certainly a proper party to, the proceedings private respondents had
initiated against Pan Pacific the principal obligor. Since Pan Pacific had thoughtfully
refrained from notifying the POEA of its new address and from responding to the
complaints, petitioner Finman may well I be regarded as an indispensable party to
the proceedings before the POEA. Whether Finman was an indepensable or merely a
proper party to the proceedings, we believe and so hold that the POEA could
properly implead it as party respondent either upon the request of the private
respondents or, as it happened, motu propio. Such is the situation under the Revised
Rules of Court 5 and the application thereof, directly or by analogy, by the POEA can
certainly not be regarded as arbitrary, oppressive or capricious.

The fundamental argument of Finman is that its liability under its own bond must be
determined and enforced, not by the POEA or the Secretary of Labor, but rather by
the Insurance Commission or by the regular courts. Once more, we are not moved
by petitioner's argument.

There appears nothing so special or unique about the determination of a surety's

liability under its bond as to restrict that determination to the Office of the
Insurance Commissioner and to the regular courts of justice exclusively. The exact
opposite is strongly stressed by the second paragraph of Article 31 of the Labor
Code:

Art. 31. Bonds. ... ...

The secretary of Labor shall have the exclusive power to determine, decide, order or
direct payment from, or application of, the cash or surety bond for any claim or
injury covered and guaranteed by the bonds. (Emphasis supplied)

We believe and so hold that to compel the POEA and private respondents the
beneficiaries of Finman's bond-to go to the Insurance Commissioner or to a regular
court of law to enforce that bond, would be to collide with the public policy which
requires prompt resolution of claims against private recruitment and placement
agencies. The Court will take judicial notice of the appealing frequency with which
some, perhaps many, of such agencies have cheated workers avid for overseas
employment by, e.g., collecting placement fees without securing employment for
them at all, extracting exorbitant fees or "kickbacks" from those for whom
employment is actually obtained, abandoning hapless and unlettered workers to
exploitative foreign principals, and so on. Cash and surety bonds are required by the
POEA and its predecessor agencies from recruitment and employment companies
precisely as a means of ensuring prompt and effective recourse against such
companies when held liable for applicants or workers' claims. Clearly that public
policy will be effectively negated if POEA and the Department of Labor and
Employment were held powerless to compel a surety company to make good on its
solidary undertaking in the same quasi-judicial proceeding where the liability of the
principal obligor, the recruitment or employment agency, is determined and fixed
and where the surety is given reasonable opportunity to present any defenses it or
the principal obligor may be entitled to set up. Petitioner surety whose liability to
private respondents and the POEA is neither more nor less than that of Pan Pacific,
is not entitled to another or different procedure for determination or fixing of that
liability than that which Pan Pacific is entitled and subject to.

WHEREFORE, the Petition for certiorari with prayer for preliminary injunction or
temporary restraining order is hereby DISMISSED for lack of merit. Costs against
petitioner. This Resolution is immediately executory.

G.R. No. L-79436-50 January 17, 1990

EASTERN ASSURANCE & SURETY CORPORATION, petitioner,

vs.
SECRETARY OF LABOR, PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION, ELVIRA VENTURA, ESTER TRANGUILLAN, et al.,
respondents.

In connection with the application with the Philippine Overseas Employment

Administration (POEA) of J & B Manpower Specialist, Inc. for a license to engage in
business as a recruitment agency, a surety bond was filed on January 2, 1985 by the
applicant and the Eastern Assurance and Surety Corporation, herein petitioner, in
virtue of which they both held themselves

. . . firmly bound unto (said) Philippine Overseas Employment Administration,

Ministry of Labor in the penal sum of PESOS ONE HUNDRED FIFTY THOUSAND
ONLY . . . (Pl50,000.00) for the payment of which will and truly to be made, . . . (they
bound themselves, their) heirs, executors, administrators, successors and assigns,
jointly and severally . .

The bond stipulated that:

a) it was "conditioned upon the true and faithful performance and observance
of the . . . principal (J & B Manpower Specialist, Inc.) of its duties and obligations in
accordance with all the rules and regulations promulgated by the Ministry of Labor
Philippine Overseas Employment Administration and with the terms and conditions
stipulated in the License;

b) the liability of the . . . Surety (petitioner) shall in no case exceed the sum of
PESOS ONE HUNDRED FIFTY THOUSAND (P150,000.00) ONLY, PHILIPPINE
CURRENCY; 1

c) notice to the Principal is also a notice to the Surety; and

d) LIABILITY of the surety . . . shall expire on JANUARY 02, 1986 and this bond
shall be automatically cancelled ten (10) days after its expiration and the surety
shall not be liable for any claim not discovered and presented to it in writing within
said period of . . . from expiration and the obligee hereby expressly waives the rights
to file any court action against the Surety after termination of said period of . . . .
above cited. 2

As narrated by respondent Secretary of Labor, the facts are as follows: 3

From June 1983 to December 1985 . . . thirty three (33) . . . (persons) applied for
overseas employment with . . . (J & B). In consideration of promised deployment,
complainants paid respondent various amounts for various fees. Most of' the
receipts issued were sighed by Mrs. Baby Bundalian, Executive Vice-President of . . .
(J & B).

Because of non-deployment . . . (the applicants) filed separate complaints with the

Licensing and Regulation Office of POEA against . . . (J & B) for violation of Articles
32 and 34 (a) of the Labor Code between the months of April to October 1985.

Despite summons/notices of hearing,, . . . (J & B) failed to file Answer nor appear in

the hearings conducted.

In its separate Answer, . . . EASCO essentially disclaimed liability on the ground that
the claims were not expressly covered by the bond, that POEA had no jurisdiction to
order forfeiture of the bond, that some of the claims were paid beyond or prior to
the period of effectivity of the bond.

On September 8, 1986, the POEA Administrator issued the Order in favor of

complainants ruling thus:

After careful evaluation, we find that the receipts and testimonies of complainants,
in the absence of controverting evidence substantially establish that respondent
charged and collected fees from them in amounts exceeding what is prescribed by
this Administration. Complainants' non-deployment strongly indicates that there
was no employment obtained for them. Hence, violation of Articles 32 and 34 (a) of
the Labor Code, as amended, is established against respondent. The claims of
complainants having arose (arisen) out of acts of the principal covered under the
surety (bond), the respondent surety is equally liable therefor.

Except for complainants Ramos, Samson, de Leon and Rizada, whose claims were
transacted prior to the effectivity of the bond, . . . EASCO was declared jointly and
severally liable with . . . (J & B) to twenty-nine (29) complainants.

(The dispositive portion of the POEA Administrator's Order also contained the
following statement and direction, viz.:

Respondent was suspended on May 23, 1985, June 26, 1985 and January 17, 1986
all for illegal exaction. Considering its track record of illegal exaction activities and
considering further the gross violation of recruitment rules and regulations
established against it in the instant cases, and the expiration of its license on
February 15, 1985, it is hereby forever banned from participation in the overseas
employment program. It is ordered to cease and desist from further engaging in
recruitment activities otherwise it shall be prosecuted for illegal recruitment.')

(J & B filed a motion for reconsideration). On December 19, 1986, the then deputy
Minister of Labor and Employment denied the . . . Motion for Reconsideration for
lack of merit and affirmed the findings in the Order of the POEA Administrator
finding no reversible error therein.

On appeal by EASCO J & B having as aforestated taken no part in the proceeding

despite due service of summons the judgment was modified by the Secretary of
Labor, by Order dated July 1, 1987, disposing as follows: 4

WHEREFORE, in view of the foregoing, the Resolution of the then Deputy Minister of
Labor dated December 19, 1986 affirming the Order of the POEA Administrator
dated September 8, 1986 is hereby MODIFIED. Respondent J & B Manpower
Specialist is directed to refund all thirty-three (33) complainants as listed in the
Order of September 8, 1986 in the amounts listed thereto with the modification that
complainants Lucena Cabasal and Felix Rivero are both entitled only to P15,980 and
not P15,980 each. Respondent Eastern Assurance and Surety Corporation is hereby
found jointly and severally liable with respondent J & B Manpower Specialist to
refund nineteen (19) complainants in the modified amounts . . . (particularly
specified).

The other findings in the Order of the POEA Administrator dated September 8, 1986
affirmed in the Resolution of the then Deputy Minister . . . are also hereby
AFFIRMED. This Order is FINAL. No further Motion for Reconsideration hereof shall
be entertained.
It is noteworthy that EASCO's liability for the refund, jointly and severally with its
principal, was limited to 19 named complainants (in contrast to verdicts of the
POEA and the Deputy Minister which both ordered payment to no less than 33
complainants) and was correspondingly reduced from P308,751.75 and US $ 400.00
5 to the aggregate amount of P 140,817.75. 6

The special civil action of certiorari at bar was thereafter instituted by EASCO 7
praying for the nullification of the POEA Administrator's Order of September 8,
1986, the Resolution of the Deputy Minister of Labor of' December 19, 1986, and the
Order of the Secretary of Labor of July 1, 1987, It theorizes that:

1) the POEA had no jurisdiction over the claims for refund filed by non-
employees;

2) neither did the Secretary of Labor have jurisdiction of the claims;

3) assuming they had jurisdiction, both the POEA and Secretary of Labor also
committed legal errors and acted with grave abuse of discretion when they ruled
that petitioner is liable on the claims.

EASCO contends that the POEA had no "adjudicatory jurisdiction" over the
monetary claims in question because the same "did not arise from employer-
employee relations." Invoked in support of the argument is Section 4 (a) of EO 797
providing in part 8 that the POEA has

. . . original and exclusive jurisdiction over all cases, including money claims,
involving employer-employee relations arising out of or by virtue of any law or
contract involving Filipino workers for overseas employment including seamen . . .

The complaints are however for violation of Articles 32 and 34 a) of the Labor Code.
Article 32 and paragraph (a) of Article 34 read as follows:

Art. 32. Fees to be paid by workers.Any person applying with a private fee-
charging employment agency for employment assistance shall not be charged any
fee until he has obtained employment through its efforts or has actually commenced
employment. Such fee shall be always covered with the approved receipt clearly
showing the amount paid. The Secretary of Labor shall promulgate a schedule of
allowable fees.

Art. 34. Prohibited practices.It shall be unlawful for any individual, entity,
licensee, or holder of authority:

a) To charge or accept, directly or indirectly, any amount greater than that

specified in the schedule of allowable fees prescribed by the Secretary of Labor, or
to make a worker pay any amount greater than actually received by him as a loan or
advance; . . .
The penalties of suspension and cancellation of license or authority are prescribed
for violations of the above quoted provisions, among others. And the Secretary of
Labor has the power under Section 35 of the law to apply these sanctions, as well as
the authority, conferred by Section 36, not only, to "restrict and regulate the
recruitment and placement activities of all agencies," but also to "promulgate rules
and regulations to carry out the objectives and implement the provisions" governing
said activities. Pursuant to this rule-making power thus granted, the Secretary of
Labor gave the POEA 9 "on its own initiative or upon filing of a complaint or report
or upon request for investigation by any aggrieved person, . . . (authority to) conduct
the necessary proceedings for the suspension or cancellation of the license or
authority of any agency or entity" for certain enumerated offenses including

1) the imposition or acceptance, directly or indirectly, of any amount of money,

goods or services, or any fee or bond in excess of what is prescribed by the
Administration, and

2) any other violation of pertinent provisions of the Labor Code and other
relevant laws, rules and regulations. 10

The Administrator was also given the power to "order the dismissal of the case or
the suspension of the license or authority of the respondent agency or contractor or
recommend to the Minister the cancellation thereof." 11

Implicit in these powers is the award of appropriate relief to the victims of the
offenses committed by the respondent agency or contractor, specially the refund or
reimbursement of such fees as may have been fraudulently or otherwise illegally
collected, or such money, goods or services imposed and accepted in excess of what
is licitly prescribed. It would be illogical and absurd to limit the sanction on an
offending recruitment agency or contractor to suspension or cancellation of its
license, without the concomitant obligation to repair the injury caused to its victims.
It would result either in rewarding unlawful acts, as it would leave the victims
without recourse, or in compelling the latter to litigate in another forum, giving rise
to that multiplicity of actions or proceedings which the law abhors.

Even more untenable is EASCO's next argument that the recruiter and its victims are
in pari delicto the former for having required payment, and the latter for having
voluntarily paid, "prohibited recruitment fees" and therefore, said victims are
barred from obtaining relief. The sophistical, if not callous, character of the
argument is evident upon the most cursory reading thereof; it merits no
consideration whatever.

The Court is intrigued by EASCO's reiteration of its argument that it should not be
held liable for claims which accrued prior to or after the effectivity of its bond,
considering that the respondent Secretary had conceded the validity of part of said
argument, at least. The Secretary ruled that EASCO's "contention that it should not
be held liable for claims/payments made to respondent agency before the effectivity
of the surety bond on January 2, 1985 is well taken." According to the Secretary: 12

. . . A close examination of the records reveal(s) that respondent EASCO is not jointly
and severally liable with respondent agency to refund complainants Lucena Cabasal,
Felix Rivero, Romulo del Rosario, Rogelio Banzuela, Josefina Ogatis, Francisco
Sorato, Sonny Quiazon, Josefina Dictado, Mario del Guzman and Rogelio Mercado
(10 in all). These complainants paid respondent agency in 1984, or before the
effectivity of the bond on January 2, 1985 as evidence by the reciept and their
testimonies.

The related argument, that it is also not liable for claims filed after the expiry (on
January 2, 1986) of the period stipulated in the surety bond for the filing of claims
against the bond, must however be rejected, as the Secretary did. The Court discerns
no grave abuse of discretion in the Secretary's statement of his reasons for doing so,
to wit:

. . . While it may be true that respondent EASCO received notice of their claims after
the ten (10) day expiration period from cancellation or after January 12, 1986 as
provided in the surety bond, records show that . . . EASCO's principal, respondent
agency, was notified/ summoned prior to the expiration period or before January
12, 1986. Respondent agency received summons on July 24, 1985 with respect to
claims of complainants Penarroyo, dela Cruz and Canti. It also received summons on
November 26, 1985 with respect to Giovanni Garbillons' claim. Respondent agency
was likewise considered constructively notified of the claims of complainants
Calayag, Danuco Domingo and Campena on October 6, 1985. In this connection, it
may be stressed that the surety bond provides that notice to the principal is notice
to the surety. Besides, it has been held that the contract of a compensated surety like
respondent EASCO is to be interpreted liberally in the interest of the promises and
beneficiaries rather than strictly in favor of the surety (Acoustics Inc. v. American
Surety, 74 Nev-6, 320 P2d. 626, 74 Am. Jur. 2d).

So, too, EASCO's claim that it had not been properly served with summons as
regards a few of the complaints must be rejected, the issue being factual, and the
Court having been cited to no grave error invalidating the respondent Secretary's
conclusion that summons had indeed been duly served.

Finally, EASCO's half-hearted argument that its liability should be limited to the
maximum amount set in its surety bond, i.e., P150,000.00, is palpably without merit,
since the aggregate liability imposed on it, P140,817.75, supra, does not in fact
exceed that limit.

WHEREFORE, the petition is DISMISSED for lack of merit, and this decision is
declared to be immediately executory. Costs against petitioner.

SO ORDERED.
G.R. No. 77279 April 15, 1988

MANUELA S. CATAN/M.S. CATAN PLACEMENT AGENCY, petitioners,

vs.
THE NATIONAL LABOR RELATIONS COMMISSION, PHILIPPINE OVERSEAS
EMPLOYMENT ADMINISTRATION and FRANCISCO D. REYES, respondents.

Petitioner, in this special civil action for certiorari, alleges grave abuse of discretion
on the part of the National Labor Relations Commission in an effort to nullify the
latters resolution and thus free petitioner from liability for the disability suffered by
a Filipino worker it recruited to work in Saudi Arabia. This Court, however, is not
persuaded that such an abuse of discretion was committed. This petition must fail.

The facts of the case are quite simple.

Petitioner, a duly licensed recruitment agency, as agent of Ali and Fahd Shabokshi
Group, a Saudi Arabian firm, recruited private respondent to work in Saudi Arabia
as a steelman.

The term of the contract was for one year, from May 15,1981 to May 14, 1982.
However, the contract provided for its automatic renewal:

FIFTH: The validity of this Contract is for ONE YEAR commencing from the date the
SECOND PARTY assumes hill port. This Contract is renewable automatically if
neither of the PARTIES notifies the other PARTY of his wishes to terminate the
Contract by at least ONE MONTH prior to the expiration of the contractual period.
[Petition, pp. 6-7; Rollo, pp. 7-8].

The contract was automatically renewed when private respondent was not
repatriated by his Saudi employer but instead was assigned to work as a crusher
plant operator. On March 30, 1983, while he was working as a crusher plant
operator, private respondent's right ankle was crushed under the machine he was
operating.

On May 15, 1983, after the expiration of the renewed term, private respondent
returned to the Philippines. His ankle was operated on at the Sta. Mesa Heights
Medical Center for which he incurred expenses.

On September 9, 1983, he returned to Saudi Arabia to resume his work. On May

15,1984, he was repatriated.

Upon his return, he had his ankle treated for which he incurred further expenses.

On the basis of the provision in the employment contract that the employer shall
compensate the employee if he is injured or permanently disabled in the course of
employment, private respondent filed a claim, docketed as POEA Case No. 84-09847,
against petitioner with respondent Philippine Overseas Employment
Administration. On April 10, 1986, the POEA rendered judgment in favor of private
respondent, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the complainant and against

the respondent, ordering the latter to pay to the complainant:

1. SEVEN THOUSAND NINE HUNDRED EIGHTY-FIVE PESOS and 60/100

(P7,985.60), Philippine currency, representing disability benefits;

2. TWENTY-FIVE THOUSAND NINETY-SIX Philippine pesos and 20/100

(29,096.20) representing reimbursement for medical expenses;

3. Ten percent (10%) of the abovementioned amounts as and for attorney's

fees. [NLRC Resolution, p. 1; Rollo, p. 16].

On appeal, respondent NLRC affirmed the decision of the POEA in a resolution dated
December 12, 1986.

Not satisfied with the resolution of the POEA, petitioner instituted the instant
special civil action for certiorari, alleging grave abuse of discretion on the part of the
NLRC.

1. Petitioner claims that the NLRC gravely abused its discretion when it ruled
that petitioner was liable to private respondent for disability benefits since at the
time he was injured his original employment contract, which petitioner facilitated,
had already expired. Further, petitioner disclaims liability on the ground that its
agency agreement with the Saudi principal had already expired when the injury was
sustained.

There is no merit in petitioner's contention.

Private respondents contract of employment can not be said to have expired on May
14, 1982 as it was automatically renewed since no notice of its termination was
given by either or both of the parties at least a month before its expiration, as so
provided in the contract itself. Therefore, private respondent's injury was sustained
during the lifetime of the contract.

A private employment agency may be sued jointly and solidarily with its foreign
principal for violations of the recruitment agreement and the contracts of
employment:

Sec. 10. Requirement before recruitment. Before recruiting any worker, the
private employment agency shall submit to the Bureau the following documents:
(a) A formal appointment or agency contract executed by a foreign-based
employer in favor of the license holder to recruit and hire personnel for the former
...

xxx xxx xxx

2. Power of the agency to sue and be sued jointly and solidarily with the
principal or foreign-based employer for any of the violations of the recruitment
agreement and the contracts of employment. [Section 10(a) (2) Rule V, Book I, Rules
to Implement the Labor Code].

Thus, in the recent case of Ambraque International Placement & Services v. NLRC
[G.R. No. 77970, January 28,1988], the Court ruled that a recruitment agency was
solidarily liable for the unpaid salaries of a worker it recruited for employment in
Saudi Arabia.

Even if indeed petitioner and the Saudi principal had already severed their agency
agreement at the time private respondent was injured, petitioner may still be sued
for a violation of the employment contract because no notice of the agency
agreement's termination was given to the private respondent:

Art 1921. If the agency has been entrusted for the purpose of contra with specified
persons, its revocation shall not prejudice the latter if they were not given notice
thereof. [Civil Code].

In this connection the NLRC elaborated:

Suffice it to state that albeit local respondent M. S. Catan Agency was at the time of
complainant's accident resulting in his permanent partial disability was (sic) no
longer the accredited agent of its foreign principal, foreign respondent herein, yet its
responsibility over the proper implementation of complainant's
employment/service contract and the welfare of complainant himself in the foreign
job site, still existed, the contract of employment in question not having expired yet.
This must be so, because the obligations covenanted in the recruitment agreement
entered into by and between the local agent and its foreign principal are not
coterminus with the term of such agreement so that if either or both of the parties
decide to end the agreement, the responsibilities of such parties towards the
contracted employees under the agreement do not at all end, but the same extends
up to and until the expiration of the employment contracts of the employees
recruited and employed pursuant to the said recruitment agreement. Otherwise,
this will render nugatory the very purpose for which the law governing the
employment of workers for foreign jobs abroad was enacted. [NLRC Resolution, p. 4;
Rollo, p. 18]. (Emphasis supplied).

2. Petitioner contends that even if it is liable for disability benefits, the NLRC
gravely abused its discretion when it affirmed the award of medical expenses when
the said expenses were the consequence of private respondent's negligence in
returning to work in Saudi Arabia when he knew that he was not yet medically fit to
do so.

Again, there is no merit in this contention.

No evidence was introduced to prove that private respondent was not medically fit
to work when he returned to Saudi Arabia. Exhibit "B", a certificate issued by Dr.
Shafquat Niazi, the camp doctor, on November 1, 1983, merely stated that private
respondent was "unable to walk properly, moreover he is still complaining [of] pain
during walking and different lower limbs movement" [Annex "B", Reply; Rollo, p.
51]. Nowhere does it say that he was not medically fit to work.

Further, since petitioner even assisted private respondent in returning to work in

Saudi Arabia by purchasing his ticket for him [Exhibit "E"; Annex "A", Reply to
Respondents' Comments], it is as if petitioner had certified his fitness to work. Thus,
the NLRC found:

Furthermore, it has remained unrefuted by respondent that complainant's

subsequent departure or return to Saudi Arabia on September 9, 1983 was with the
full knowledge, consent and assistance of the former. As shown in Exhibit "E" of the
record, it was respondent who facilitated the travel papers of complainant. [NLRC
Resolution, p. 5; Rollo, p. 19].

WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit,
with costs against petitioner.

SO ORDERED.

People v ONG

G.R. No. 129577-80 February 15, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BULU CHOWDURY, accused-appellant.

In November 1995, Bulu Chowduly and Josephine Ong were charged before the
Regional Trial Court of Manila with the crime of illegal recruitment in large scale
committed as follows:
That sometime between the period from August 1994 to October 1994 in the City of
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, representing themselves to have the capacity to contract, enlist and
transport workers for employment abroad, conspiring, confederating and mutually
helping one another, did then and there willfully, unlawfully and feloniously recruit
the herein complainants: Estrella B. Calleja, Melvin C. Miranda and Aser S. Sasis,
individually or as a group for employment in Korea without first obtaining the
required license and/or authority from the Philippine Overseas Employment
Administration.1

They were likewise charged with three counts of estafa committed against private
complainants.2 The State Prosecutor, however, later dismissed the estafa charges
against Chowdury3 and filed an amended information indicting only Ong for the
offense.4

Chowdury was arraigned on April 16, 1996 while Ong remained at large. He pleaded
"not guilty" to the charge of illegal recruitment in large scale.5

Trial ensued.

The prosecution presented four witnesses: private complainants Aser Sasis, Estrella
Calleja and Melvin Miranda, and Labor Employment Officer Abbelyn Caguitla.

Sasis testified that he first met Chowdury in August 1994 when he applied with
Craftrade Overseas Developers (Craftrade) for employment as factory worker in
South Korea. Chowdury, a consultant of Craftrade, conducted the interview. During
the interview, Chowdury informed him about the requirements for employment. He
told him to submit his passport, NBI clearance, passport size picture and medical
certificate. He also required him to undergo a seminar. He advised him that
placement would be on a first-come-first-serve basis and urged him to complete the
requirements immediately. Sasis was also charged a processing fee of P25,000.00.
Sasis completed all the requirements in September 1994. He also paid a total
amount of P16,000.00 to Craftrade as processing fee. All payments were received by
Ong for which she issued three receipts.6 Chowdury then processed his papers and
convinced him to complete his payment.7

Sasis further said that he went to the office of Craftrade three times to follow up his
application but he was always told to return some other day. In one of his visits to
Craftrade's office, he was informed that he would no longer be deployed for
employment abroad. This prompted him to withdraw his payment but he could no
longer find Chowdury. After two unsuccessful attempts to contact him, he decided to
file with the Philippine Overseas Employment Administration (POEA) a case for
illegal recruitment against Chowdury. Upon verification with the POEA, he learned
that Craftrade's license had already expired and has not been renewed and that
Chowdury, in his personal capacity, was not a licensed recruiter.8
Calleja testified that in June 1994, she applied with Craftrade for employment as
factory worker in South Korea. She was interviewed by Chowdury. During the
interview, he asked questions regarding her marital status, her age and her
province. Toward the end of the interview, Chowdury told her that she would be
working in a factory in Korea. He required her to submit her passport, NBI
clearance, ID pictures, medical certificate and birth certificate. He also obliged her to
attend a seminar on overseas employment. After she submitted all the documentary
requirements, Chowdury required her to pay P20,000.00 as placement fee. Calleja
made the payment on August 11, 1994 to Ong for which she was issued a receipt.9
Chowdury assured her that she would be able to leave on the first week of
September but it proved to be an empty promise. Calleja was not able to leave
despite several follow-ups. Thus, she went to the POEA where she discovered that
Craftrade's license had already expired. She tried to withdraw her money from
Craftrade to no avail. Calleja filed a complaint for illegal recruitment against
Chowdury upon advice of POEA's legal counsel.10

Miranda testified that in September 1994, his cousin accompanied him to the office
of Craftrade in Ermita, Manila and introduced him to Chowdury who presented
himself as consultant and interviewer. Chowdury required him to fill out a bio-data
sheet before conducting the interview. Chowdury told Miranda during the interview
that he would send him to Korea for employment as factory worker. Then he asked
him to submit the following documents: passport, passport size picture, NBI
clearance and medical certificate. After he complied with the requirements, he was
advised to wait for his visa and to pay P25,000.00 as processing fee. He paid the
amount of P25,000.00 to Ong who issued receipts therefor.11 Craftrade, however,
failed to deploy him. Hence, Miranda filed or complaint with the POEA against
Chowdury for illegal recruitment.12

Labor Employment Officer Abbelyn Caguitla of the Licensing Branch of the POEA
testified that she prepared a certification on June 9, 1996 that Chowdury and his co-
accused, Ong, were not, in their personal capacities, licensed recruiters nor were
they connected with any licensed agency. She nonetheless stated that Craftrade was
previously licensed to recruit workers for abroad which expired on December 15,
1993. It applied for renewal of its license but was only granted a temporary license
effective December 16, 1993 until September 11, 1994. From September 11, 1994,
the POEA granted Craftrade another temporary authority to process the expiring
visas of overseas workers who have already been deployed. The POEA suspended
Craftrade's temporary license on December 6, 1994.13

For his defense, Chowdury testified that he worked as interviewer at Craftrade from
1990 until 1994. His primary duty was to interview job applicants for abroad. As a
mere employee, he only followed the instructions given by his superiors, Mr.
Emmanuel Geslani, the agency's President and General Manager, and Mr. Utkal
Chowdury, the agency's Managing Director. Chowdury admitted that he interviewed
private complainants on different dates. Their office secretary handed him their bio-
data and thereafter he led them to his room where he conducted the interviews.
During the interviews, he had with him a form containing the qualifications for the
job and he filled out this form based on the applicant's responses to his questions.
He then submitted them to Mr. Utkal Chowdury who in turn evaluated his findings.
He never received money from the applicants. He resigned from Craftrade on
November 12, 1994.14

Another defense witness, Emelita Masangkay who worked at the Accreditation

Branch of the POEA presented a list of the accredited principals of Craftrade
Overseas Developers15 and a list of processed workers of Craftrade Overseas
Developers from 1988 to 1994.16

The trial court found Chowdury guilty beyond reasonable doubt of the crime of
illegal recruitment in large scale. It sentenced him to life imprisonment and to pay a
fine of P100,000.00. It further ordered him to pay Aser Sasis the amount of
P16,000.00, Estrella Calleja, P20,000.00 and Melvin Miranda, P25,000.00. The
dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing considerations, the prosecution having

proved the guilt of the accused Bulu Chowdury beyond reasonable doubt of the
crime of Illegal Recruitment in large scale, he is hereby sentenced to suffer the
penalty of life imprisonment and a fine of P100,000.00 under Art. 39 (b) of the New
Labor Code of the Philippines. The accused is ordered to pay the complainants Aser
Sasis the amount of P16,000.00; Estrella Calleja the amount of P20,000.00; Melvin
Miranda the amount of P25,000.00.17

Chowdury appealed.

The elements of illegal recruitment in large scale are:

(1) The accused undertook any recruitment activity defined under Article 13 (b) or
any prohibited practice enumerated under Article 34 of the Labor Code;

(2) He did not have the license or authority to lawfully engage in the recruitment
and placement of workers; and

(3) He committed the same against three or more persons, individually or as a

group.18

The last paragraph of Section 6 of Republic Act (RA) 804219 states who shall be
held liable for the offense, thus:

The persons criminally liable for the above offenses are the principals, accomplices
and accessories. In case of juridical persons, the officers having control,
management or direction of their business shall be liable.
The Revised Penal Code which supplements the law on illegal recruitment20 defines
who are the principals, accomplices and accessories. The principals are: (1) those
who take a direct part in the execution of the act; (2) those who directly force or
induce others to commit it; and (3) those who cooperate in the commission of the
offense by another act without which it would not have been accomplished.21 The
accomplices are those persons who may not be considered as principal as defined in
Section 17 of the Revised Penal Code but cooperate in the execution of the offense
by previous or simultaneous act.22 The accessories are those who, having
knowledge of the commission of the crime, and without having participated therein,
either as principals or accomplices, take part subsequent to its commission in any of
the following manner: (1) by profiting themselves or assisting the offenders to profit
by the effects of the crime; (2) by concealing or destroying the body of the crime, or
the effects or instruments thereof, in order to prevent its discovery; and (3) by
harboring, concealing, or assisting in the escape of the principal of the crime,
provided the accessory acts with abuse of his public functions or whenever the
author of the crime is guilty of treason, parricide, murder, or an attempt at the life of
the chief executive, or is known to be habitually guilty of some other crime.23

Citing the second sentence of the last paragraph of Section 6 of RA 8042, accused-
appellant contends that he may not be held liable for the offense as he was merely
an employee of Craftrade and he only performed the tasks assigned to him by his
superiors. He argues that the ones who should be held liable for the offense are the
officers having control, management and direction of the agency.

As stated in the first sentence of Section 6 of RA 8042, the persons who may be held
liable for illegal recruitment are the principals, accomplices and accessories. An
employee of a company or corporation engaged in illegal recruitment may be held
liable as principal, together with his employer,24 if it is shown that he actively and
consciously participated in illegal recruitment.25 It has been held that the existence
of the corporate entity does not shield from prosecution the corporate agent who
knowingly and intentionally causes the corporation to commit a crime. The
corporation obviously acts, and can act, only by and through its human agents, and it
is their conduct which the law must deter, The employee or agent of a corporation
engaged in unlawful business naturally aids and abets in the carrying on of such
business and will be prosecuted as principal if with knowledge of the business, its
purpose and effect, he consciously contributes his efforts to its conduct and
promotion, however slight his contribution may be.26 The law of agency, as applied
in civil cases, has no application in criminal cases, and no man can escape
punishment when he participates in the commission of a crime upon the ground
that he simply acted as an agent of any party.27 The culpability of the employee
therefore hinges on his knowledge of the offense and his active participation in its
commission. Where it is shown that the employee was merely acting under the
direction of his superiors and was unaware that his acts constituted a crime, he may
not be held criminally liable for an act done for and in behalf of his employer.28
The fundamental issue in this case, therefore, is whether accused-appellant
knowingly and intentionally participated in the commission of the crime charged.

We find that he did not.

Evidence shows that accused-appellant interviewed private complainants in the

months of June, August and September in 1994 at Craftrade's office. At that time, he
was employed as interviewer of Craftrade which was then operating under a
temporary authority given by the POEA pending renewal of its license.29 The
temporary license included the authority to recruit workers.30 He was convicted
based on the fact that he was not registered with the POEA as employee of
Craftrade. Neither was he, in his personal capacity, licensed to recruit overseas
workers. Section 10 Rule II Book II of the Rules and Regulation Governing Overseas
Employment (1991) requires that every change, termination or appointment of
officers, representatives and personnel of licensed agencies be registered with the
POEA. Agents or representatives appointed by a licensed recruitment agency whose
appointments are not previously approved by the POEA are considered "non-
licensee" or "non-holder of authority" and therefore not authorized to engage in
recruitment activity.31

Upon examination of the records, however, we find that the prosecution failed to
prove that accused-appellant was aware of Craftrade's failure to register his name
with the POEA and that he actively engaged in recruitment despite this knowledge.
The obligation to register its personnel with the POEA belongs to the officers of the
agency.32 A mere employee of the agency cannot be expected to know the legal
requirements for its operation. The evidence at hand shows that accused-appellant
carried out his duties as interviewer of Craftrade believing that the agency was duly
licensed by the POEA and he, in turn, was duly authorized by his agency to deal with
the applicants in its behalf. Accused-appellant in fact confined his actions to his job
description. He merely interviewed the applicants and informed them of the
requirements for deployment but he never received money from them. Their
payments were received by the agency's cashier, Josephine Ong. Furthermore, he
performed his tasks under the supervision of its president and managing director.
Hence, we hold that the prosecution failed to prove beyond reasonable doubt
accused-appellant's conscious and active participation in the commission of the
crime of illegal recruitment. His conviction, therefore, is without basis.

This is not to say that private complainants are left with no remedy for the wrong
committed against them. The Department of Justice may still file a complaint against
the officers having control, management or direction of the business of Craftrade
Overseas Developers (Craftrade), so long as the offense has not yet prescribed.
Illegal recruitment is a crime of economic sabotage which need to be curbed by the
strong arm of the law. It is important, however, to stress that the government's
action must be directed to the real offenders, those who perpetrate the crime and
benefit from it.
IN VIEW WHEREOF, the assailed decision of the Regional Trial Court is REVERSED
and SET ASIDE. Accused-appellant is hereby ACQUITTED. The Director of the
Bureau of Corrections is ordered to RELEASE accused-appellant unless he is being
held for some other cause, and to REPORT to this Court compliance with this order
within ten (10) days from receipt of this decision. Let a copy of this Decision be
furnished the Secretary of the Department of Justice for his information and
appropriate action.1wphi1.nt

SO ORDERED.

People v SAGUN

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine
Overseas Employment Administration, and FERDIE MARQUEZ, respondents.

This concerns the validity of the power of the Secretary of Labor to issue warrants of
arrest and seizure under Article 38 of the Labor Code, prohibiting illegal
recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay
City, in a sworn statement filed with the Philippine Overseas Employment
Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko sa

iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha

ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom

said complaint was assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI
ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE.
MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST
YOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to
operate a recruitment agency, public respondent Administrator Tomas D. Achacoso
issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have

(1) No valid license or authority from the Department of Labor and Employment
to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New

Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty.

Estelita B. Espiritu issued an office order designating respondents Atty. Marquez,
Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a team tasked to
implement Closure and Seizure Order No. 1205. Doing so, the group assisted by
Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and
Ernie Baluyot of News Today proceeded to the residence of the petitioner at 615
R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner was
operating Hannalie Dance Studio. Before entering the place, the team served said
Closure and Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed
them entry into the premises. Mrs. Flora Salazar informed the team that Hannalie
Dance Studio was accredited with Moreman Development (Phil.). However, when
required to show credentials, she was unable to produce any. Inside the studio, the
team chanced upon twelve talent performers practicing a dance number and saw
about twenty more waiting outside, The team confiscated assorted costumes which
were duly receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora
Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last
January 26, 1988 be immediately returned on the ground that said seizure was
contrary to law and against the will of the owner thereof. Among our reasons are the
following:

1. Our client has not been given any prior notice or hearing, hence the Closure
and Seizure Order No. 1205 dated November 3, 1987 violates "due process of law"
guaranteed under Sec. 1, Art. III, of the Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which
guarantees right of the people "to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others
(including 2 policemen) are the private residence of the Salazar family, and the
entry, search as well as the seizure of the personal properties belonging to our client
were without her consent and were done with unreasonable force and intimidation,
together with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal Code.

Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00)
in all (and which were already due for shipment to Japan) are returned within
twenty-four (24) hours from your receipt hereof, we shall feel free to take all legal
action, civil and criminal, to protect our client's interests.

We trust that you will give due attention to these important matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed
the instant petition; on even date, POEA filed a criminal complaint against her with
the Pasig Provincial Fiscal, docketed as IS-88-836. 1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts
sought to be barred are already fait accompli, thereby making prohibition too late,
we consider the petition as one for certiorari in view of the grave public interest
involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas
Employment Administration (or the Secretary of Labor) validly issue warrants of
search and seizure (or arrest) under Article 38 of the Labor Code? It is also an issue
squarely raised by the petitioner for the Court's resolution.

Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was
declared that mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the person
or things to be seized." The constitutional proscription has thereby been manifested
that thenceforth, the function of determining probable cause and issuing, on the
basis thereof, warrants of arrest or search warrants, may be validly exercised only
by judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants.
4
Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally
interested in the success of his case. Although his office "is to see that justice is done
and not necessarily to secure the conviction of the person accused," he stands,
invariably, as the accused's adversary and his accuser. To permit him to issue search
warrants and indeed, warrants of arrest, is to make him both judge and jury in his
own right, when he is neither. That makes, to our mind and to that extent,
Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,
unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an
amendment by Presidential Decrees Nos. 1920 and 2018 of the late President
Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his legislative
powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then
Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the
power to recommend the arrest and detention of any person engaged in illegal
recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the
avowed purpose of giving more teeth to the campaign against illegal recruitment.
The Decree gave the Minister of Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the
arrest and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national
security and public order or will lead to further exploitation of job-seekers. The
Minister shall order the closure of companies, establishment and entities found to
be engaged in the recruitment of workers for overseas employment, without having
been licensed or authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018,
giving the Labor Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized

representatives shall have the power to cause the arrest and detention of such non-
licensee or non-holder of authority if after investigation it is determined that his
activities constitute a danger to national security and public order or will lead to
further exploitation of job-seekers. The Minister shall order the search of the office
or premises and seizure of documents, paraphernalia, properties and other
implements used in illegal recruitment activities and the closure of companies,
establishment and entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of

authoritarian rule in its twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue
search or arrest warrants. Hence, the authorities must go through the judicial
process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken.
Vivo involved a deportation case, governed by Section 69 of the defunct Revised
Administrative Code and by Section 37 of the Immigration Law. We have ruled that
in deportation cases, an arrest (of an undesirable alien) ordered by the President or
his duly authorized representatives, in order to carry out a final decision of
deportation is valid. 10 It is valid, however, because of the recognized supremacy of
the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that when
the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is
detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam
vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously,
exceptional. It (the power to order arrests) can not be made to extend to other
cases, like the one at bar. Under the Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti,
that it was validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have

(1) No valid license or authority from the Department of Labor and Employment
to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New

Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws.
13

We have held that a warrant must identify clearly the things to be seized, otherwise,
it is null and void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration

constitutionally objectionable is that they are in the nature of general warrants. The
search warrants describe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment,

typewriters, cabinets, tables, communications/ recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of the "WE
FORUM" newspaper and any and all documents/communications, letters and
facsimile of prints related to the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other publications to

promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and

other subversive materials and propaganda, more particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong
Silang."
In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any evidence in
connection with the violation of SDC 13-3703 or otherwise" have been held too
general, and that portion of a search warrant which authorized the seizure of any
"paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a
general warrant, and therefore invalid. The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the
English Press, when "Officers of the Crown were given roving commissions to search
where they pleased in order to suppress and destroy the literature of dissent both
Catholic and Puritan." Reference herein to such historical episode would not be
relevant for it is not the policy of our government to suppress any newspaper or
publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no
other, who may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens,

whom the President or the Commissioner of Immigration may order arrested,
following a final order of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code
is declared UNCONSTITUTIONAL and null and void. The respondents are ORDERED
to return all materials seized as a result of the implementation of Search and Seizure
Order No. 1205.

No costs.

SO ORDERED.
G.R. No. 168715 September 15, 2010

MEDLINE MANAGEMENT, INC. and GRECOMAR SHIPPING AGENCY, Petitioners,

vs.
GLICERIA ROSLINDA and ARIEL ROSLINDA, Respondents.

If a seafarer dies after the termination of his contract of employment, the Court can
only commiserate with his heirs because it has no alternative but to declare that his
beneficiaries are not entitled to the death benefits provided in the Philippine
Overseas Employment Administration (POEA) Standard Employment Contract
(SEC).

This Petition for Review on Certiorari1 assails the Decision2 dated March 11, 2005
of the Court of Appeals (CA) in CA-G.R. SP No. 87648, which dismissed the petition
for certiorari with prayer for the issuance of a writ of preliminary injunction and/or
restraining order challenging the Resolution dated August 31, 20043 and October
15, 20044 of the National Labor Relations Commission (NLRC) in NLRC NCR CA No.
040435-04. Also assailed is the Resolution5 dated June 22, 2005 denying the Motion
for Reconsideration.

Factual Antecedents

Petitioner Medline Management, Inc. (MMI), on behalf of its foreign principal,

petitioner Grecomar Shipping Agency (GSA), hired Juliano Roslinda (Juliano) to
work on board the vessel MV "Victory." Juliano was previously employed by the
petitioners under two successive separate employment contracts of varying
durations. His latest contract was approved by the POEA on September 9, 1998 for a
duration of nine months.6 In accordance with which, he boarded the vessel MV
"Victory" on October 25, 1998 as an oiler and, after several months of extension, was
discharged on January 20, 2000.

Months after his repatriation, or on March 6, 2000, Juliano consulted Dr. Pamela R.
Lloren (Dr. Lloren) of Metropolitan Hospital. He complained about abdominal
distention which is the medical term for a patient who vomits previously ingested
foods. From March 8 to August 24, 2000, Juliano visited Dr. Lloren for a series of
medical treatment.7 In a Medical Certificate8 issued by Dr. Lloren, the condition of
Juliano required hemodialysis which was initially done twice a week for a period of
two months and then once every 10 days. In medicine, hemodialysis is the method
of removing waste products such as creatinine and urea, as well as freeing water
from the blood, when the kidneys are in renal failure.9

On August 27, 2001, Juliano died. On September 4, 2003, his wife Gliceria Roslinda
and son Ariel Roslinda, respondents herein, filed a complaint against MMI and GSA
for payment of death compensation, reimbursement of medical expenses, damages,
and attorney's fees before the Labor Arbitration Branch of the NLRC.
Petitioners received on September 25, 2003 a copy of the summons10 and
complaint. Instead of filing an answer, they filed a Motion to Dismiss11 on the
grounds of prescription, lack of jurisdiction and prematurity. Petitioners contended
that the action has already prescribed because it was filed three years, seven
months and 22 days from the time the deceased seafarer reached the point of hire.
They also argued that the case should be dismissed outright for prematurity
because respondents failed to comply with a condition precedent by not availing of
the grievance machinery. Lastly, petitioners opined that the Labor Arbiter had no
jurisdiction because there exists no employer-employee relationship between the
parties.

On January 9, 2004, respondents submitted their Position Paper with Opposition to

Motion to Dismiss.12 On January 26, 2004, petitioners submitted their
Comment/Reply with Motion to Expunge Complainant's Position Paper.13

Ruling of the Labor Arbiter

On April 21, 2004, Labor Arbiter Fatima Jambaro-Franco denied the Motion to
Dismiss filed by the petitioners. The dispositive portion provides:

WHEREFORE, premises considered, the Motion to Dismiss is hereby DENIED for

lack of merit.

In order to expedite the proceedings of this case, the respondents [herein

petitioners] are hereby ordered to submit their position paper on May 18, 2004 at
9:30 a.m.

SO ORDERED.14

Ruling of the National Labor Relations Commission

Petitioners, instead of complying with the order of the Labor Arbiter to submit their
position paper, filed their Notice of Appeal with Memorandum15 of Appeal on May
7, 2004 with the NLRC.

Petitioners asserted that the Labor Arbiter seriously erred in disregarding the basic
provision of the POEA Contract. According to them, the POEA contract is clear that
any claim arising from the employment of a seafarer should be filed within one year
from the seafarer's return to the point of hire; otherwise, it shall be barred forever.
In addition, petitioners claimed that the Labor Arbiter also erred when she issued an
order without resolving the other issues in their Motion to Dismiss. The Labor
Arbiter failed to take into consideration that respondents have no employer-
employee relationship with herein petitioners, which means that the former have no
cause of action against the latter. Lastly, they opined that the Labor Arbiter failed to
resolve the issue of prematurity when the present case was filed without passing
through the grievance committee.
On August 31, 2004, the NLRC issued its Resolution, the dispositive portion of which
provides:

PREMISES CONSIDERED, respondents' appeal from the Order dated April 21, 2004
is hereby DISMISSED for lack of merit. Let records herein be REMANDED to
Arbitration Branch of origin for immediate appropriate proceedings.

SO ORDERED.16

Ruling of the Court of Appeals

After reviewing the case on certiorari, the CA ruled that the claim was filed within
the three-year prescriptive period which must be reckoned from the time of
Juliano's death on August 27, 2001 and not from the date of his repatriation on
January 20, 2000. As to the denial of the Motion to Dismiss, it found that under
Section 3 of Rule V of the NLRC Rules of Procedure, an order denying the Motion to
Dismiss or suspension of its resolution until the final determination of the case, is
not appealable. Anent the issue that the Labor Arbiter had no jurisdiction over the
case because there exists no employee-employer relationship between the parties,
the CA held that such matter is a factual issue which should be threshed out in the
trial of the case. Being a factual matter needing evidence for its existence, a motion
to dismiss is not the proper remedy. The dispositive portion of the CA Decision
states:

IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED. Costs
against the petitioners.

SO ORDERED.17

After the denial by the CA of their Motion for Reconsideration, petitioners filed the
present petition for review on certiorari.

Issues

Petitioners raise the following issues:

I.

Whether the CA seriously erred in holding that the Order of the Labor Arbiter
dismissing the Motion to Dismiss is not appealable.

II.

Whether the CA seriously erred in ruling that the claim is not yet barred by
prescription despite the fact that it was filed beyond the one-year prescriptive
period provided by the POEA Standard Employment Contract.

III.

Whether the ruling of the CA is contrary to the jurisprudence laid down in the case
of Fem's Elegance Lodging House vs. Murillo decided by this Court.

Petitioners' Arguments

Petitioners contend that although Rule 1, Section 3 of the NLRC Rules of Procedure
provides for the suppletory application of the Rules of Court, the same is proper
only in the absence of applicable provision in the NLRC Rules of Procedure to the
issue at hand. Here, Section 1, Rule VI of the NLRC Rules of Procedure and Article
223 of the Labor Code specifically provide that any order of the Labor Arbiter is
appealable to the NLRC, regardless if it is final or interlocutory in nature. Hence,
there is no room for the suppletory application of the Rules of Court in the case at
bench.

Petitioners also argue that the POEA SEC provides that the employer and the
seafarer agree that all claims arising from the contract shall be made within one
year from the date of seafarer's return to the point of hire. Hence, respondents
claim for death benefits has clearly prescribed because they filed their complaint
before the NLRC Arbitration Branch only on September 11, 2003 or three years
seven months and 22 days after the return of Juliano to the point of hire on January
20, 2000.

Respondents' Arguments

Respondents posit that Section 3, Rule V of the NLRC Rules of Procedure clearly
provides that an order denying a motion to dismiss or suspension of its resolution
until the final determination of the case is not appealable. It is for this reason that
petitioners were required to proceed with the Arbitration Branch of origin for
further proceedings.

Moreover, respondents argue that the Motion to Dismiss filed by the petitioners was
properly denied by the Labor Arbiter because the cause of action has not yet
prescribed. The prescriptive period that should apply is three years and not one
year as provided for in the POEA SEC. Therefore, when the complaint was filed on
September 4, 2003, it is well within the three-year prescriptive period. The
reckoning point is the time when the cause of action accrued which is from the time
of death of the seafarer and not from the time of repatriation.

Our Ruling
A close perusal of the three issues presented for our review readily reveals a single
issue of substance that the Labor Arbiter seriously erred in denying the Motion to
Dismiss filed by the petitioners without ruling on all the grounds raised by them.
Another issue involved a procedural ground that the CA erred in dismissing the
petition assailing the denial of the Motion to Dismiss based on Section 3, Rule V of
the NLRC Rules of Procedure.

The Labor Arbiter Properly Denied the Motion to Dismiss

The denial of the Motion to Dismiss by the Labor Arbiter, the NLRC, and the CA was
made in accordance with prevailing law and jurisprudence. It should be noted that
in the Motion to Dismiss filed by the petitioners before the Labor Arbiter, they cited
prescription, lack of jurisdiction and failure to comply with a condition precedent, as
the three grounds for dismissal of the case.

Prescription

The employment contract signed by Juliano stated that "Upon approval, the same
shall be deemed an integral part of the Standard Employment Contract

(SEC) for seafarers."18 Section 28 of the POEA SEC states:

SECTION 28. JURISDICTION

The Philippine Overseas Employment Administration (POEA) or the National Labor

Relations Commission (NLRC) shall have original and exclusive jurisdiction over any
and all disputes or controversies arising out of or by virtue of this Contract.

Recognizing the peculiar nature of overseas shipboard employment, the employer

and the seafarer agree that all claims arising from this contract shall be made within
one (1) year from the date of the seafarer's return to the point of hire. (Emphasis
supplied)

On the other hand, the Labor Code states:

ART. 291. Money claims. All money claims arising from employer-employee
relations accruing during the effectivity of this Code shall be filed within three (3)
years from the time the cause of action accrued; otherwise they shall forever be
barred.

x x x x (Emphasis supplied)

In Southeastern Shipping v. Navarra, Jr.,19 we ruled that "Article 291 is the law
governing the prescription of money claims of seafarers, a class of overseas contract
workers. This law prevails over Section 28 of the Standard Employment Contract for
Seafarers which provides for claims to be brought only within one year from the
date of the seafarer's return to the point of hire." We further declared that "for the
guidance of all, Section 28 of the Standard Employment Contract for Seafarers,
insofar as it limits the prescriptive period within which the seafarers may file their
money claims, is hereby declared null and void. The applicable provision is Article
291 of the Labor Code, it being more favorable to the seafarers and more in accord
with the State's declared policy to afford full protection to labor. The prescriptive
period in the present case is thus three years from the time the cause of action
accrues."

In the present case, the cause of action accrued on August 27, 2001 when Juliano
died. Hence, the claim has not yet prescribed, since the complaint was filed with the
arbitration branch of the NLRC on September 4, 2003.

Lack of Jurisdiction

Petitioners claim that the Labor Arbiter has no jurisdiction to hear the case for want
of employer-employee relationship between the parties lacks merit. Petitioners
have not taken into consideration that respondents, as heirs of Juliano, have the
personality to file the claim for death benefits. As the parties claiming benefits for
the death of a seafarer, they can file a case with the Labor Arbiter as provided for
under Section 28 of the POEA SEC. It is clearly provided therein that the NLRC shall
have original and exclusive jurisdiction over any and all disputes or controversies
arising out of or by virtue of the Contract.

Furthermore, Section 20 of the Standard Terms and Conditions Governing the

Employment of Filipino Seafarers On-Board Ocean-Going Vessels states:

A. COMPENSATION AND BENEFITS FOR DEATH

1. In the case of work-related death of the seafarer during the term of his contract,
the employer shall pay his beneficiaries the Philippine Currency equivalent to the
amount of Fifty Thousand US dollars (US$ 50,000.00) and an additional amount of
Seven Thousand US Dollars (US$ 7,000.00) to each child under the age of twenty-
one (21) but not exceeding four (4) children, at the exchange rate prevailing during
the time of payment.

xxxx

In filing the complaint for payment of death compensation, reimbursement of

medical expenses, damages and attorney's fees before the Labor Arbitration Branch
of the NLRC, respondents are actually enforcing their entitlement to the above
provision of the contract of Juliano with petitioners. They are the real parties in
interest as they stand to be benefited or injured by the judgment in this case, or the
parties entitled to the avails of the case.
Having shown that respondents have the personality to file the complaint and that
the Labor Arbiter has the original and exclusive jurisdiction over the said claims,
then this ground for petitioners' Motion to Dismiss has no basis and, therefore, its
denial was proper.

Failure to Comply with a Condition Precedent

Petitioners likewise contend that the present claim should have been dismissed on
the ground that respondents prematurely filed the present complaint because the
employment contract requires respondents to first bring their claim before the
Grievance Machinery.

Indeed, the records of this case would not give us any idea on what actions were
taken by respondents before they filed the case. What can only be deduced from the
records is that respondents demanded from petitioners the payment of death
benefits and the reimbursement of medical expenses incurred by Juliano from the
time of his repatriation on January 20, 2000 until his death on August 27, 2001
amounting to P149,490.00 which was refused by petitioners. There is therefore no
showing that they complied with the provisions of the employment contract to first
bring the matter before the Grievance Machinery.

Having shown that respondents failed to bring this matter to the Grievance
Machinery as provided in the POEA SEC, can we now conclude that the Labor
Arbiter erred in denying the Motion to Dismiss on the ground that respondents
failed to comply with a condition precedent? We answer this in the negative. The
denial by the Labor Arbiter of the Motion to Dismiss filed by petitioners on the
ground of non-compliance with a condition precedent is still proper.

Section 4, Rule III of the New Rules of Procedure of the NLRC (As amended by NLRC
Resolution No. 01-02, series of 2002) provides:

SECTION 4. PROHIBITED PLEADINGS AND MOTIONS. The following pleadings,

motions or petitions shall not be allowed in the cases covered by these Rules:

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over
the subject matter, improper venue, res adjudicata, prescription and forum
shopping;

xxxx

The above provision thus explicitly provides that a motion to dismiss that can be
availed of is one which is based on lack of jurisdiction over the subject matter,
improper venue, res judicata, prescription and forum shopping. Conversely, a
motion to dismiss on the ground of failure to comply with a condition precedent is,
therefore, a prohibited pleading. Hence, the Labor Arbiter did not commit any grave
abuse of discretion amounting to lack or excess of jurisdiction when she denied the
Motion to Dismiss filed by petitioners.

Having shown that the Labor Arbiter properly denied the Motion to Dismiss, the
NLRC and the CA have likewise acted in accordance with law in denying the appeal
of the dismissal of such Motion to Dismiss.

The CA Properly Denied the Petition Based on Section 3, Rule V of the NLRC Rules of
Procedure

Petitioners contend that Section 3 (now Section 6), Rule V of the NLRC Rules of
Procedure is in direct conflict with the provisions of Section 1, Rule VI of the same
NLRC Rules of Procedure and Article 223 of the Labor Code and, hence, it should be
the latter which should prevail.

We do not agree.

Section 3 (now Section 6) of Rule V and Section 1 of Rule VI of the NLRC Rules of
Procedure, as amended, provide:

SECTION 3. MOTION TO DISMISS. On or before the date set for the conference, the
respondent may file a motion to dismiss. Any motion to dismiss on the ground of
lack of jurisdiction, improper venue, or that the cause of action is barred by prior
judgment, prescription or forum shopping, shall be immediately resolved by the
Labor Arbiter by a written order. An order denying the motion to dismiss or
suspending its resolution until the final determination of the case is not appealable.

SECTION 1. PERIODS OF APPEAL. Decisions, resolutions or orders of the Labor

Arbiter shall be final and executory unless appealed to the Commission by any or
both parties within ten (10) calendar days from receipt of such decisions,
resolutions or orders of the Labor Arbiter and in case of a decision of the Regional
Director within five (5) calendar days from receipt of such decisions, resolutions, or
orders. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or a
holiday, the last day to perfect the appeal shall be the next working day.

Another provision cited by petitioners is Article 223 of the Labor Code which states:

ART. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and
executory unless appealed to the Commission by any or both parties within ten (10)
calendar days from receipt of such decisions, awards, or orders. Such appeal may be
entertained only on any of the following grounds:

xxxx

However, all the three provisions above-mentioned refer to final orders and not
interlocutory ones, such as, a denial of a motion to dismiss. Based on the above
provisions, the Labor Arbiter's decisions, resolutions or orders shall be final and
executory unless appealed to the Commission. Only a final order can attain the final
and executory stage; an interlocutory order cannot go that far. Consequently, when
the law says that the orders appealable to the Commission are those which will
become final and executory if not appealed, it can only refer to a final order, not an
interlocutory order, such as a denial of a motion to dismiss.

There is no conflict between the above provisions. The CA therefore correctly

dismissed the petition assailing the denial of the Motion to Dismiss based on Section
3 (now Section 6), Rule V of the NLRC Rules of Procedure because it involved an
interlocutory order. Admittedly, the order denying a Motion to Dismiss is an
interlocutory order because it still requires a party to perform certain acts leading
to the final adjudication of a case.

Lastly, petitioners' reliance in FEM's Elegance Lodging House v. Murillo20 to justify

their position that an interlocutory order like the denial of their Motion to Dismiss
can be appealed is misplaced. The CA properly addressed this issue in this wise:

Reliance in the case of FEM's Elegance vs. Murillo is misdirected. In that case, the
Labor Arbiter's denial was appealed directly to the Supreme Court and did not pass
the Court of Appeals. In ruling that orders of the Labor Arbiter shall be appealable to
the Court of Appeals, the High Court, to Our mind, was simply saying that you cannot
go and seek review directly from the Labor Arbiter to the Supreme Court. One has to
pass first the NLRC.21

For Expediency, this Court can Decide the Merits of this Case

This Court is aware that in this case, since the petition is denied, the normal
procedure is for it to remand the case to the Labor Arbiter for further proceedings.
"However, when there is enough basis on which the Court may render a proper
evaluation of the merits of petitioners case, x x x the Court may dispense with the
time[-]consuming procedure in order to prevent further delays in the disposition of
the case."22 Indeed, remand of the case to the Labor Arbiter for further reception of
evidence is not conducive to the speedy administration of justice and it becomes
unnecessary where the Court is in a position to resolve the dispute based on the
records before it. Briefly stated, a remand of the instant case to the Labor Arbiter
would serve no purpose save to further delay its disposition contrary to the spirit of
fair play.

"It is an accepted precept of procedural law that the Court may resolve the dispute
in a single proceeding, instead of remanding the case to the lower court for further
proceedings if, based on the records, pleadings, and other evidence, the matter can
readily be ruled upon."23 Instead of remanding the case to the Labor Arbiter for
further proceedings, we will resolve the dispute to serve the ends of
justice.1avvphi1
The complete records of this case have already been elevated to this Court. The
pleadings on record will fully support this adjudication.

Respondents are not Entitled to the Death Benefits Provided Under the POEA
Standard Employment Contract

In Southeastern Shipping v. Navarra, Jr.,24 we declared that "in order to avail of

death benefits, the death of the employee should occur during the effectivity of the
employment contract." "The death of a seaman during the term of employment
makes the employer liable to his heirs for death compensation benefits. Once it is
established that the seaman died during the effectivity of his employment contract,
the employer is liable."25

Juliano did not die while he was under the employ of petitioners. His contract of
employment ceased when he was discharged on January 20, 2000, after having
completed his contract thereat. He died on August 27, 2001 or one year, seven
months and seven days after the expiration of his contract. Thus, his beneficiaries
are not entitled to the death benefits under the Standard Employment Contract for
Seafarers.

Moreover, there is no evidence to show that Julianos illness was acquired during
the term of his employment with petitioners. In respondents Position Paper,26 they
admitted that Juliano was discharged not because of any illness but due to the
expiration of his employment contract.27 Although they stated that Juliano was
hospitalized on August 28, 1999, or five months before his contract expired, they
presented no proof to support this allegation. Instead, what respondents presented
were the Medical Certificates28 issued by Dr. Lloren attesting to the fact that on
March 6, 2000, Juliano consulted her complaining of abdominal distention. We find
this not substantial evidence to prove that Julianos illness which caused his death
was contracted during the term of his contract.29 "Indeed, the death of a seaman
several months after his repatriation for illness does not necessarily mean that: a)
the seaman died of the same illness; b) his working conditions increased the risk of
contracting the illness which caused his death; and c) the death is compensable,
unless there is some reasonable basis to support otherwise."30 In the instant case,
Juliano was repatriated not because of any illness but because his contract of
employment expired. There is likewise no proof that he contracted his illness during
the term of his employment or that his working conditions increased the risk of
contracting the illness which caused his death.

"While the Court adheres to the principle of liberality in favor of the seafarer in
construing the Standard Employment Contract, we cannot allow claims for
compensation based on surmises. When the evidence presented negates
compensability, this Court has no choice but to deny the claim, lest we cause
injustice to the employer."31

WHEREFORE, the instant petition for review on certiorari is DENIED.

We hereby declare that the claim for death benefits of respondents Gliceria Roslinda
and Ariel Roslinda has not yet prescribed but petitioners are not liable to pay to
respondents death compensation benefits under the Standard Employment Contract
for Seafarers considering that Juliano's death occurred after the effectivity of his
contract. The Labor Arbiter is therefore DIRECTED to dismiss the complaint filed by
herein respondents against the petitioners for payment of death compensation,
reimbursement of medical expenses, damages and attorneys fees.

SO ORDERED.

G.R. No. 123146 June 17, 2003

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ALONA BULI-E and JOSEFINA (JOSIE) ALOLINO, Appellants.

Appellants Alona Buli-e and Josefina Alolino assail the decision of the Regional Trial
Court of Baguio City, Branch 15, finding them guilty beyond reasonable doubt of
illegal recruitment committed in large scale and eight counts of estafa.

On March 16, 1993, the following information was filed against Jose Alolino and
appellants, Alona Buli-e and Josefina Alolino:

The undersigned accuses ALONA BULI-E, JOSEFINA (JOSIE) ALOLINO and JOSE
ALOLINO for VIOLATION OF ARTICLE 38 (b), PRESIDENTIAL DECREE NO. 442, AS
AMENDED BY P.D. 1920 FURTHER AMENDED BY P.D. 2018, committed in large
scale, which is an act of economic sabotage, and by a syndicate, committed as
follows:

That during the period from March 1991 to July 1992, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused representing themselves to have the capacity to contract, enlist and hire
and transport Filipino workers for employment abroad did then and there willfully
and unlawfully, for a fee, recruit and promise employment / job placement to the
following persons:

1. Constancio Macli-ing

2. Jesssica Estay

3. Sidolia Fias-eo

4. John Mangili
5. Nieva Lampoyas

6. Sabado Agapito

7. Joseph Oratil and

8. Joel Oratil

in Taiwan without first obtaining or securing license or authority from the proper
government agency

CONTRARY TO LAW.1

On the same day, eight separate informations for estafa were also filed against Jose
Alolino and appellants Alona Buli-e (Buli-e for brevity) and Josefina Alolino
(Josefina, for brevity). Except as to the dates, amounts involved2 and the names of
complainants, the following information in Criminal Case No. 11123-R typified the
seven other informations for the crime of estafa:

That on or about the 12th day of July, 1992, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable court, the above-named accused,
conspiring, confederating and mutually aiding one another, did then and there
willfully, unlawfully and feloniously defraud one Constancio Macli-ing by way of
false pretenses, which are executed prior to or simultaneously with the commission
of the fraud, as follows, to wit: the accused knowing fully well that they are not
authorized job recruiters for persons intending to secure work abroad convinced
said Constancio Macli-ing and pretended that they could secure a job for him/her
abroad, for and in consideration of the sum of P15,000.00 when in truth and in fact
they could not; the said Constancio Macli-ing, deceived and convinced by the false
pretenses employed by the accused, parted away the total sum of P15,000.00 in
favor of the accused, to the damage and prejudice of the said Constancio Macli-ing in
the aforementioned amount of FIFTEEN THOUSAND PESOS (P15,000.00), Philippine
Currency.3

Jose Alolino was never apprehended and remains at large. Upon arraignment,
appellants pleaded not guilty to each of the nine informations filed against them. A
joint trial ensued since the cases involved the same factual milieu.

Evidence for the prosecution showed that on various dates from June 1990 to July
1992, complainants went to the house of appellant Buli-e at No. 63 Sanitary Camp,
Baguio City upon learning that she was recruiting workers for overseas
employment. A cousin of complainant Lampoyas, whom Buli-e helped deploy
abroad, introduced Lampoyas to Buli-e in 1990.4 The brothers Oratil went to see
Buli-e about possible overseas employment in April 1992.5 Mangili inquired from
Buli-e if she was recruiting workers for overseas employment also in April 1992.6
Sabado and Macli-ing approached Buli-e for possible overseas work in May 1992,7
while Estay, accompanied by her sister, went to see Buli-e on June 17, 1992.8 Fias-
eo approached Buli-e on July 13, 1992, accompanied by Lampoyas.9

Buli-e confirmed to complainants that she was, in fact, recruiting contract workers
for Taiwan and that, although she did not have a license of her own to recruit, her
boss in Manila who was a licensed recruiter, was in the process of getting her one
which would soon be issued.10 Buli-e identified her superiors in Manila to be the
spouses Jose11 and Josefina Alolino. Josefina was connected with Rodolfo S. Ibuna
Employment Agency (RSI for brevity), a private employment agency licensed to
recruit overseas contract workers. Buli-e informed complainants that requirements
for application of overseas work included submission of bio-data, passport, NBI
clearance, and medical examination clearance to show that the applicant is
physically and mentally fit. There was also a placement fee of P40,000 of which
P15,000 must be paid in advance. Buli-e told complainants that if they were
interested in applying, they may submit to her said requirements which she, in turn,
will submit to her boss who was in charge of processing the necessary documents.

In the case of complainant Lampoyas who originally applied with Buli-e for
employment in Kuwait, she was informed by Buli-e that the latter was working for a
certain Jessie Agtarep.12 Lampoyas gave Buli-e P4,000 on March 14, 1991 as
downpayment for the placement fee and P5,000 on August 24, 1991. Lampoyas
application papers were processed by Jamal Enterprises in Makati, Metro Manila but
in 1992 , Buli-e transferred Lampoyas application to appellant Josefina, whom Buli-
e referred to as her new boss.13 Lampoyas was enticed to work in Taiwan instead of
Kuwait and was assured that her deployment papers would be processed more
quickly.14

From March to August 1992, Buli-e accompanied complainants, on separate

occasions, to Manila where they had their medical check-up at Saints Peter and Paul
Medical Clinic in Ermita. Lampoyas had her medical check-up in March 199215
while Mangili and Joseph Oratil had their medical check-up in May 1992.16 On June
20, 1992, Estay had her medical check-up,17 while Agapito and Macli-ing had their
medical examination on July 5, 1992.18 Fias-eo had her medical examination on July
20, 1992 while Joel Oratil had his medical examination in August 1992.
Complainants paid for the medical examination, the results of which were given to
Buli-e.

Immediately after complainants had undergone medical examination, Buli-e

brought them to No. 11 Concorde Street, Airmans Village, Las Pias, Metro Manila
purportedly to introduce them to her boss, the spouses Alolino. Complainants,
except for Macli-ing and Agapito, were able to meet only Jose Alolino on the same
day that they had undergone medical examination. Jose Alolino allegedly told
complainants that his wife, Josefina, was in Taiwan following up applications but he
assured them that they too would be deployed abroad in a matter of months.19
Mangili, Estay, and the brothers Oratil were able to meet Josefina personally when
they returned to the residence of the Alolinos in Manila to follow up their
applications.20 Fias-eo and Lampoyas, on the other hand, never met Josefina
personally although they were able to talk to her over the telephone several times
when they were following up the status of their applications.21 It was during these
telephone conversations that Josefina instructed Fias-eo and Lampoyas to have their
medical examinations and secure their NBI clearance in Manila accompanied by
Buli-e whom she identified as her agent.22

Complainants were assured by one or both of the spouses that they were licensed to
recruit overseas contract workers and that they can deploy workers within two to
three months.23 Complainants were informed by Buli-e and Josefina that
deployment for Taiwan is on a first-come, first-served basis and that those who can
comply with the requirements, particularly the advance payment of P15,000, shall
be deployed first.24

On different dates from May 1992 to July 1992, complainants handed to Buli-e at
Sanitary Camp, Baguio City their advance payments of P15,000 for which they were
issued receipts.25 Mangili paid P11,000 on May 22, 1992 and P4,000 on June 18,
1992.26 The Oratil brothers paid P15,000 each in installments from May 1992 to
July 15, 1992.27 Macli-ing paid P15,000 on July 12, 1992.28 Fias-eo gave Buli-e
P15,000 on July 13, 1992.29 In addition to her previous payments amounting to
P9,000, Lampoyas paid Buli-e P5,000 also on July 13, 1992.30 Estay gave P15,000
on July 21, 199231 while Agapito paid Buli-e P15,000 on July 22, 1992.32 Buli-e
assured complainants that she delivered the payments to Josefina. Aside from giving
the downpayment of the placement fee, complainants complied with the rest of the
requirements which included submission of pictures, bio-data, passports, NBI
clearances and medical examination reports.

After months of waiting and despite compliance with all the requirements,
complainants were not deployed abroad as promised by appellants. From August
1992 to February 1993, complainants trooped to Buli-es house but Buli-e merely
kept on telling them to wait. When complainants called up Josefina by long distance
telephone, they were also told just to wait.

Weary of the interminable waiting, complainants went to the POEA office in Baguio
City on February 2, 1993, to check whether appellants were indeed licensed to
recruit overseas contract workers. They were dismayed to find out that appellants
had no license to recruit in Baguio City or any part of the Cordillera Administrative
Region (CAR). On the same day, complainants filed their complaints with the POEA-
CAR and the Prosecutors Office of Baguio City.

After appellants were apprehended and during their detention at the Baguio City
Jail, Josefina, through counsel, refunded complainant Fias-eo P15,000 for his
downpayment on the placement fee.33 Complainant Mangili also demanded a
refund and he was paid by Josefina, again through her counsel, the sum of P25,000
for his advance payment of P15,000 and as reimbursement of the actual expenses he
incurred for his application.34

During trial, Buli-e testified that she worked for RSI and had been referring
applicants to the agency before 1991. She met Josefina a year after she resigned
from RSI.35 In 1990, Buli-e had an applicant for Singapore, a certain Prescilla
Laoayan from Baguio City. Buli-e referred Prescilla to RSI which, through Mrs. Fe Go,
handled the processing of her application. As part of the requirements of the agency,
Prescilla had to undergo training at the house of Josefina, who was then the
Marketing Director of RSI. In 1991, Josefina sent Buli-e a note, through Prescilla,
telling her to go to the house of Josefina at No.11 Concorde Street, Airmans Village,
Las Pias, Metro Manila to discuss matters about recruitment of workers. Buli-e
went to the house of Josefina as requested and it was then that she was appointed as
an agent of Josefina.36 Buli-e was tasked to find job applicants for Taiwan, Korea or
Singapore whom she can refer to RSI through Josefina. Buli-e would then be paid for
each referral. When Buli-e asked Josefina if the latter was authorized or had any
license to recruit for overseas placement, Josefina answered in the affirmative.37

Thereafter, Buli-e started recruiting job applicants for Taiwan, Singapore and Korea
at her house in No. 63 Sanitary Camp, Baguio City. Complainants sought her of their
own accord and Buli-e informed them of the requirements for job application which
consisted of submission of bio-data, passport, NBI clearance and placement fee of
P40,000 of which P15,000 must be paid in advance upon instructions of Josefina.
Josefina allegedly instructed Buli-e to accompany complainants to Sts. Peter and
Paul Medical Clinic in Ermita, Manila for medical check-up.38 Buli-e was likewise
instructed by Josefina to accompany some of the complainants in securing their NBI
clearance and to receive whatever documents complainants will be submitting
including the P15,000 advance payment, all of which should be submitted to
Josefina. Buli-e said that she submitted the documents and the payments either to
Jose Alolino or to Josefina.39 She clarified that she did not have a hand in securing
the passports of complainants40 and received instructions from Josefina only when
she communicated with Josefina through the telephone or went to Manila. She
averred that she and several members of her family also tried to apply for overseas
work with Josefina and paid the latter P100,000. 41

Buli-e presented Mrs. Nonette Legaspi-Villanueva, Unit Coordinator of POEA-CAR, to

testify that RSI was a licensed employment agency and that Josefina was a licensed
recruiter at the time that Buli-e had dealings with her co-appellant. Mrs. Villanueva
testified that she has been with the POEA since 1985. Part of her functions included
administrative and technical supervision of the staff regarding employment,
facilitation, licensing, investigation and monitoring of the provincial recruitment
authority as well as issuance of authorization to personnel to conduct inspection of
licensed agencies in the City of Baguio.42 Mrs.Villanueva said that, as per the
certification of the Chief of the Licensing Branch of the POEA, RSI was a private
employment agency with a license which expired on July 14, 1992. Josefina Alolino
was included in the list of the personnel submitted by the agency in July 1990 as
Marketing Consultant.43 Mrs. Villanueva, however, clarified that licenses or permits
to recruit workers are territorial in nature so that an agency licensed in Manila can
only engage in recruitment activities within the place specified in the license
although the applicants may be non-residents of Metro Manila. She further testified
that she cannot remember if Buli-e was given any authority to recruit in Baguio
City.44

Josefina, on the other hand, testified that on September 16, 1987, she was appointed
as one of the four Marketing Directors of RSI which was located in 408 Jovan
Condominium, Shaw Boulevard, Mandaluyong, Metro Manila. RSI, represented by
Rodolfo S. Ibuna as proprietor, was a private employment agency with a license
which expired on July 14, 1992. As Overseas Marketing Director of RSI, Josefina was
tasked to represent the agency in negotiating with employers in Taiwan, Malaysia,
United States and Singapore45 for said employers to avail of the services of RSI in
recruiting, hiring, processing and deploying Filipino contract workers. She was also
authorized to solicit applicants for overseas placement through advertisements,
referrals, walk-ins, etc., and to undertake screening, evaluation and final selection of
applicants. As per agreement with RSI, Josefina was entitled to a certain share for
each successful negotiation with a foreign employer.46

Josefina denied that Buli-e was her agent and insisted that she never gave Buli-e
authority to recruit for RSI. On the contrary, Buli-e allegedly informed Josefina that
she was an agent of Mrs. Fe Go, another marketing Director of RSI. Sometime in
1991, Mrs. Go referred to Josefina a certain Prescilla Laoayan, who wanted to apply
as a domestic helper in Taiwan. Upon being told that she could not be deployed
unless she would give a downpayment of P15,000 for the placement fee, Prescilla
informed Josefina that she already gave P15,000 to an agent whom she identified to
be Buli-e. Josefina then wrote a note for Buli-e informing her that there was a
problem regarding the processing of Prescillas application. Prescilla delivered the
note to Buli-e who in turn went to see Josefina at her house in No. 11 Concorde
Street, Airmans Village, Las Pias, Metro Manila. Josefina said that she and Buli-e
merely talked about Prescillas application and that was the first time that Josefina
met and talked with Buli-e although she had already seen her before in the office of
Mrs. Fe Go.47

Josefina testified that herein complainants were originally referred by Buli-e to Mrs.
Fe Go who, in turn, referred them to her. Josefina said that she accepted referrals
from Buli-e even though the latter was not her agent nor connected with RSI
because their agency accepts referrals from everyone. In 1992, Buli-e, claiming that
complainants authorized and designated her to act as their spokesperson, went to
the house of Josefina several times to follow up the progress of their applications.48

Josefina denied having given Buli-e instructions to accompany complainants to

Saints Peter and Paul Medical Clinic in Ermita, Manila. She also denied having an
understanding with Buli-e to receive payments from each of complainants and to
bring them to her house in Las Pias, Metro Manila.49 Josefina explained that the
deployment of complainants was delayed because the Taiwanese government
changed its previous policy of allowing foreign employment agencies like RSI to
negotiate directly with prospective employers in Taiwan. Foreign employment
agencies were instead allowed to negotiate only with local employment agencies in
Taiwan, which, in turn, were responsible for negotiating with the Taiwanese
employers. The change in the policy caused delay in the deployment of
complainants since the local employment agencies in Taiwan demanded additional
requirements such as additional fees. Josefina said she informed complainants of the
delay and the reason for it but complainants could not wait to be deployed and,
instead, demanded the refund of their payments.50

On March 2, 1993, Josefina allegedly gave Buli-e P75,000 with the instruction that
she was to give complainant Lampoyas P5,000 as refund, and P10,000 each to
complainants Macli-ing, Estay, Fias-eo, Mangili, Agapito, and the Oratil brothers.
Upon having been approached by complainants for the refund of their money,
Josefina informed them that she already gave their refunds through Buli-e.
Complainants, however, claimed that they did not receive their refunds from Buli-e.
When complainants could not wait for the refund of their payments and failed to see
Josefina who was always out of the country due to her work, they filed the present
cases.51

Emelita Racelis testified that she was an employee of RSI from 1989 to 1992 and
was one of the two persons assigned to Josefina.52 Ms. Racelis said that Buli-e
frequently went to the RSI, bringing applicants with her three times a month. Among
the applicants whom Buli-e referred to RSI through one of the marketing directors,
Mrs. Fe Go, was a certain Prescilla Laoayan. Racelis said that Laoayan was endorsed
by Mrs. Go to Josefina because it is the practice that when the applicant of one of the
marketing directors cannot be deployed, the applicant will be endorsed to another
marketing director with a job opening. Josefina, however, had trouble deploying Ms.
Laoayan whose placement fee had not been forwarded by Buli-e to RSI.53

On July 4, 1995, the trial court rendered a decision, the dispositive portion of which
reads, as follows:

WHEREFORE, judgment is rendered as follows:

1. In Criminal Case No. 11122-R, the Court finds the accused Alona Buli-e and
Josefina (Josie) Alolino guilty beyond reasonable doubt, by direct participation and
in conspiracy with each other, of the crime of illegal recruitment in a large scale as
defined and penalized under Article 38(b) in relation to Article 39 of PD 442 as
amended by PD 2018 and sentences each of them to life imprisonment and to pay a
fine of P100,000.00 each, and to pay the costs.

2. In Criminal case No. 11123-R to 11130-R (8 counts), the court finds the accused
Alona Buli-e and Josefina (Josie) Alolino guilty beyond reasonable doubt by direct
participation and in conspiracy with each other of the crime of Estafa as charged in
the Informations in the aforesaid 8 cases as defined and penalized under Article 315
first paragraph in relation to No. 2 (a) of the same article and sentences each of
them, applying the indeterminate sentence law, to an imprisonment ranging from
six (6) months and one (1) day of prision correccional as minimum to six (6) years,
eight (8) months and twenty (20) days of prision mayor as maximum in each of the
aforesaid 8 cases; to indemnify jointly and severally the offended parties Constancio
Macli-ing, Jessica Estay, Sidolia Fias-eo, John Mangili, Sabado Agapito, Joseph Oratil
and Joel Oratil the sum of P15,000.00 each and Nieva Lampoyas the sum of
P14,000.00 as actual damages without subsidiary imprisonment in case of
insolvency and to pay the costs.

The accused Alona Buli-e and Josefina (Josie) Alolino being detention prisoners are
entitled to be credited 4/5 of their preventive imprisonment in the service of their
sentence in accordance with Article 29 of the Revised Penal Code.

SO ORDERED.54

In rendering the decision, the trial court ruled that by their acts, Buli-e and Josefina,
conspired and confederated with one another in the illegal recruitment of
complainants for overseas employment. Buli-e performed the recruitment activities
in Baguio and Josefina, in Manila. The trial court specifically noted Buli-es acts of
accompanying the complainants to Manila for their medical examinations, securing
complainants NBI clearances and passports as well as receiving complainants
downpayments for the purported placement fee as an indication that she directly
participated in the recruitment of all complainants. The trial court observed that
Buli-e practically confessed her acts of recruitment in open court and justified the
same by claiming that she was just acting as an agent of Josefina or was authorized
to act in behalf of the latter.

As regards Josefina, the trial court held that she directly participated in the
recruitment of complainants even if she did not personally go to Baguio City since
she received the applications and other requirements such as NBI clearances,
passports, bio-data as well as the advanced payments of complainants from Buli-e.
Either she or her husband Jose, or both of them, entertained complainants who were
brought by Buli-e to their home at No. 11 Concorde Street, Airmans Village, Las
Pias, Metro Manila. The spouses repeatedly promised to work or make
arrangements for complainants deployment abroad.

The trial court ruled that the authority given to Josefina as Overseas Marketing
Director of RSI, a duly licensed employment agency, was confined to negotiating
with foreign employers in Taiwan and she was not supposed to recruit overseas
Filipino workers. The court stressed that assuming Josefina was authorized to
recruit in Manila, she had no authority to do so in Baguio City. Citing Article 29 of
the Labor Code which states that no license or authority shall be used directly or
indirectly by any person other than the one in whose favor it was issued or at any
place other than that stated in the license or authority, nor may such license or
authority be transferred or conveyed to any other person or entity, the trial court
ruled that appellants could not use the RSI license in Manila to recruit overseas
contract workers in Baguio City.

The trial court further noted that the license of RSI employment office was already
suspended on June 8, 1992 and expired on July 14, 1992. Consequently, the
authority given by RSI to Josefina was likewise suspended on June 8, 1992 and
expired on July 14, 1992.

Finally, the trial court said that Josefinas act of returning the advanced payments of
some of complainants would not exculpate her and only proved that she had in fact
received money from complainants who were made to believe that they would be
deployed abroad at the soonest possible time.

With regard to the eight charges of estafa filed against appellants, the trial court
convicted them on the ground that all the elements of estafa were present under
each of the eight charges filed. The trial court held that appellants through false
pretenses and fraudulent acts represented to complainants that they had the power,
authority and capacity to deploy workers abroad for a fee of P40,000, of which
P15,000 should be paid as advance payment. The false pretenses and fraudulent
acts were executed prior to or simultaneous with appellants taking the sum of
P15,000 as advance payment from each of private complainants55 which were
received by Buli-e in Baguio City and turned over by her to Josefina in Manila.
Complainants relied on the pretenses and misrepresentations of appellants and
parted with substantial sums of money as advance payments of their placement
fees. As a result of the false pretenses and misrepresentations, complainants were
damaged and prejudiced to the extent of the sums they had given as downpayment
since appellants failed to send them abroad as promised.

In her appeal before us, appellant Buli-e contends that the trial court erred:

I. IN FAILING TO APPRECIATE THE DEFENSE OF THE CO-ACCUSED ALONA BULI-E

THAT SHE MERELY REFERRED THE PRIVATE OFFENDED PARTIES TO CO-
ACCUSED SPOUSES JOSE AND JOSEFINA ALOLINO, WHOM SHE HONESTLY
BELIEVED TO BE BONA FIDE OVERSEAS JOB RECRUITERS;

II. IN HOLDING THAT THERE WAS CONSPIRACY BETWEEN HEREIN APPELLANT

BULI-E AND SPOUSES ALOLINO IN THE COMMISSION OF THE CRIMES OF LARGE
SCALE ILLEGAL RECRUITMENT AND ESTAFA; AND

III. HOLDING CO-ACCUSED ALONA BULI-E LIABLE FOR ESTAFA WHEN THERE WAS
NO SHOWING THAT SAID ACCUSED BENEFITED FROM THE ALLEGED
MISREPRESENTATION.

Appellant Josefina, on the other hand, presents the following assignments of error:
I. THE COURT A QUO ERRED IN FINDING JOSEFINA ALOLINO GUILTY BEYOND
REASONABLE DOUBT BY DIRECT PARTICIPATION AND IN CONSPIRACY WITH CO-
ACCUSED ALONA BULI-E OF THE CRIME OF ILLEGAL RECRUITMENT IN LARGE
SCALE AS DEFINED AND PENALIZED UNDER ARTICLE 38[b] IN RELATION TO
ARTICLE 39 OF P.D. 442 AS AMENDED BY P.D. 2018 AND IN SENTENCING EACH OF
THEM TO LIFE IMPRISONMENT AND TO PAY A FINE OF P100,000.

II. THE COURT A QUO ERRED IN FINDING THE ACCUSED JOSEFINA ALOLINO
GUILTY BEYOND REASONABLE DOUBT BY DIRECT PARTICIPATION AND IN
CONSPIRACY WITH CO-ACCUSED ALONA BULI-E OF THE CRIME OF ESTAFA AS
CHARGED IN THE INFORMATION IN THE AFORESAID 8 CASES AS DEFINED AND
PENALIZED UNDER ARTICLE 315 FIRST PARAGRAPH IN RELATION TO NO. 2[A] OF
THE SAME ARTICLE.

We shall discuss the interrelated issues together.

Under Article 13(b) of the Labor Code, recruitment and placement refer to any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring
workers, and include 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 deemed engaged in recruitment or placement.

The essential elements of the crime of illegal recruitment in large scale are (1) the
accused engages in acts of recruitment and placement of workers defined under
Article 13(b) or in any prohibited activities under Article 34 of the Labor Code; (2)
the 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) the
accused commits the unlawful acts against three or more persons, individually or as
a group.56 When illegal recruitment is committed in large scale or when it is
committed by a syndicate, i.e., if it is carried out by a group of three or more persons
conspiring and/or confederating with one another, it is considered as an offense
involving economic sabotage.

The factual backdrop shows that appellants engaged in recruitment activities

involving eight persons. The recruitment activities were made by appellants without
having the license or authority to do so as evidenced by the certification issued by
Legal Officer of the POEA Regional Extension Unit, Cordillera Administrative Region,
which stated that Alona Buli-e, Hilario Antonio,57 Josie Alolino and Jose Alolino
were not licensed nor authorized to recruit workers for overseas employment in the
City of Baguio or in any part of the region.58

Appellant Buli-e herself does not deny that she had no license or authority to recruit
workers for overseas employment. She, however, insists that she had never directly
participated in recruiting complainants since it was in fact complainants who sought
her help in applying for overseas employment. Buli-e explained that she merely
"referred" complainants to the spouses Alolino whom she honestly believed to be
bona fide overseas job recruiters and, since she, herself, had intentions of applying
for overseas work, she tagged along with complainants to Manila to see the spouses
Alolino. Inasmuch as she and complainants were all from Baguio City, complainants
allegedly designated her to conduct all negotiations and follow up of their
applications with the spouses.

Buli-es claim deserves scant consideration. It is true that Buli-e did not actively seek
complainants to recruit them for overseas employment. It was complainants who
sought her out. Nevertheless, when complainants approached her, Buli-e gave
complainants the impression that she had the ability to send workers abroad by
saying that although she did not have a license of her own to recruit, her boss, who
was a licensed recruiter, was already in the process of securing her a license.59 She
not only informed complainants of the requirements in applying for overseas
employment and even accompanied them to Manila to procure the necessary
documents such as passport, medical and NBI clearances.60 It was she who brought
them to the house of the spouses Alolino and it was also she who received from
complainants advanced payments for placement fee which she handed over to the
spouses. Her claim that she and her relatives were also victims of illegal recruitment
by the spouses Alolino is not substantiated.

We also find no reason to disturb the findings of the trial court that Josefina Alolino
conspired and confederated with Buli-e in recruiting applicants for overseas
employment from Baguio City although neither she nor Buli-e had license or
authority to do so. Her claim that she did not have a direct participation in the
recruitment in Baguio City and that she merely assisted the complainants by
referring them to RSI to facilitate their papers does not merit credence. There is no
showing that complainants ever set foot in the RSI office. They were always brought
by Buli-e to the house of the spouses Alolino in Las Pias after their medical check
up. Complainants, who were with other applicants, were entertained and generously
fed breakfast or dinner by one or both of the spouses who assured them that they
would be able to fly to Taiwan in just a matter of months.61 Although Josefina
alleged that the documents and payments were handed by Buli-e to the RSI office,
Josefina could show no proof to substantiate her claim. It is significant to note that
after the informations for illegal recruitment and eight counts of estafa were already
filed in court, some of the complainants were given a refund of their advances for
the placement fees by Josefina herself, through counsel, and not by RSI.

Josefinas acts clearly show that she and Buli-e acted in concert towards the
accomplishment of a common felonious purpose which was to recruit workers for
overseas employment even though they had no license to do so. Settled is the rule
that if it is proved that two or more persons, aimed, by their acts, at the
accomplishment of the same unlawful object, each doing a part so that their acts,
although apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment, a
conspiracy may be inferred even though no actual meeting between or among them
to coordinate ways and means is proved. 62

Josefina, however, maintains that as Overseas Marketing Director for RSI, she was
authorized to solicit applicants for overseas placement through advertisements,
referrals, walk-ins, etc. and to undertake screening, evaluation and final selection of
applicants.

Apart from her bare testimony, there is nothing on record to corroborate Josefinas
claim that as Marketing Director she was authorized to solicit applicants for
overseas placement through advertisements, referrals, walk-ins, etc. Josefina did not
bother to formally offer as evidence the document allegedly supporting her claim
that part of her duties as Marketing Director included recruitment of overseas
contract workers. The document not having been formally offered in court cannot
be considered, pursuant to Section 34, Rule 132 of the Rules of Court.

Moreover, the Licensing Branch of the POEA confirmed that the license of RSI had
already been suspended on June 8, 1992 and expired on July 14, 1992.63
Consequently, even if Josefina was licensed to recruit workers for overseas
employment, her authority to do so ceased when the license of her agency, RSI, was
suspended and when it eventually expired. Josefina, however, despite the
suspension and expiration of the RSI license, continued to engage in recruitment
activities for overseas employment. Except for Lampoyas who met Jose Alolino at
the latters house in March 1992, and Mangili and Joseph Oratil who met Jose Alolino
in May 1992, complainants were entertained at the house of the Alolinos after the
license of RSI had already been suspended. Lampoyas, Macli-ing and Mangili
completed the P15,000 downpayment of the placement fee after the license of RSI
had already been suspended. The rest of complainants gave payments for the
placement fee after the license of RSI had already expired.

Furthermore, Josefinas alleged authority to recruit applicants for overseas

employment as Marketing Director of RSI was only confined to Metro Manila. Article
29 of the Labor Code provides:

Art. 29. Non-transferability of license or authority No license or authority shall be

used directly or indirectly by any person other than the one in whose favor it was
issued or at any place other than that stated in the license or authority, nor may
such license or authority be transferred, conveyed or assigned to any other person
or entity. Any transfer of business address, appointment or designation of any agent
or representative including the establishment of additional offices anywhere shall
be subject to the prior approval of the Secretary of Labor.

We are not persuaded by Josefinas claim that no recruitment activity was being
done outside of the territorial permit of RSI and it was only incidental that
complainants who were referred to her by Buli-e were residents of Baguio City. As
earlier discussed, there is no indication that complainants ever set foot in the RSI
office. They were always brought by Buli-e to Las Pias, Metro Manila where they
were entertained by one or both of the spouses Alolino who repeatedly assured
them that they would be able to fly to Taiwan in a matter of months. Josefina, who
claims to have authority to recruit applicants for overseas employment in behalf of
RSI, should have known that licensed agencies are prohibited from conducting any
provincial recruitment, job fairs or recruitment activities of any form outside of the
address stated in the license, acknowledged branch or extension office, without
securing prior authority from the POEA.64 Pursuant to the POEA rules and
regulations, Josefina could recruit applicants for overseas employment and process
their applications only at the RSI office in Mandaluyong, Metro Manila since there
was no showing that RSI had an acknowledged branch or extension office in Baguio
City or that the prior approval of the POEA for provincial recruitment or
recruitment activities outside the RSI office was obtained.

Finally, the trial court did not err in finding appellants guilty of eight (8) counts of
estafa.1wphi1 It is settled that a person convicted of illegal recruitment under the
Labor Code can also be convicted of violation of the Revised Penal Code provisions
on estafa provided that the elements of the crime are present.65 The elements for
estafa are: (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
caused to the offended party or third person.66

Appellants deceived complainants into believing that they had the authority and
capability to send them to Taiwan for employment. By reason or on the strength of
such assurance, complainants parted with their money in payment of the placement
fees. Since the representations of appellants proved to be false, paragraph 2(a),
Article 315 of the Revised Penal Code is applicable. Buli-es claim that she did not
benefit from the money collected from complainants since she gave the payments to
Josefina is of no moment. It was clearly established that she acted in connivance
with Josefina in defrauding complainants. As regards Josefina, the fact that she
returned the payment of some of the complainants will not exculpate her from
criminal liability. Criminal liability for estafa is not affected by compromise or
novation, for it is a public offense which must be prosecuted and punished by the
government on its own motion even though complete reparation has been made of
the damage suffered by the offended party.67

The actual damages in the sum of P15,000 awarded to each of complainants Fias-eo
and Mangili, however, should be deleted inasmuch as said amounts have already
been reimbursed by Josefina during her detention.

WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 15, is
AFFIRMED with the MODIFICATION that the actual damages awarded to Fias-eo and
Mangili in Criminal Cases Nos. 11125-R and 11126-R are deleted. Costs de oficio.

SO ORDERED.
G.R. No. 146964 August 10, 2006

ROSA C. RODOLFO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Petitioner was charged before the Regional Trial Court (RTC) of Makati for illegal
recruitment alleged to have been committed as follows:

That in or about and during the period from August to September 1984, in Makati,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the
said accused representing herself to have the capacity to contract, enlist and
transport Filipino workers for employment abroad, did then and there willfully and
unlawfully, for a fee, recruit and promise employment/job placement abroad to
VILLAMOR ALCANTARA, NARCISO CORPUZ, 1 NECITAS R. FERRE, GERARDO H.
TAPAWAN and JOVITO L. CAMA, without first securing the required license or
authority from the Ministry of Labor and Employment. 2

After trial on the merits, Branch 61 of the Makati RTC rendered its Judgment on the
case, 3 the decretal portion of which reads:

WHEREFORE, PREMISES ABOVE CONSIDERED, the Court finds the accused ROSA C.
RODOLFO as GUILTY of the offense of ILLEGAL RECRUITMENT and hereby
sentences her [to] a penalty of imprisonment of EIGHT YEARS and to pay the costs. 4
(Underscoring supplied)

In so imposing the penalty, the trial court took note of the fact that while the
information reflected the commission of illegal recruitment in large scale, only the
complaint of the two of the five complainants was proven.

On appeal, the Court of Appeals correctly synthesized the evidence presented by the
parties as follows:

[The evidence for the prosecution] shows that sometime in August and September
1984, accused-appellant approached private complainants Necitas Ferre and
Narciso Corpus individually and invited them to apply for overseas employment in
Dubai. The accused-appellant being their neighbor, private complainants agreed and
went to the formers office. This office which bore the business name "Bayside
Manpower Export Specialist" was in a building situated at Bautista St. Buendia,
Makati, Metro Manila. In that office, private complainants gave certain amounts to
appellant for processing and other fees. Ferre gave P1,000.00 as processing fee
(Exhibit A) and another P4,000.00 (Exhibit B). Likewise, Corpus gave appellant
P7,000.00 (Exhibit D). Appellant then told private complainants that they were
scheduled to leave for Dubai on September 8, 1984. However, private complainants
and all the other applicants were not able to depart on the said date as their
employer allegedly did not arrive. Thus, their departure was rescheduled to
September 23, but the result was the same. Suspecting that they were being
hoodwinked, private complainants demanded of appellant to return their money.
Except for the refund of P1,000.00 to Ferre, appellant was not able to return private
complainants money. Tired of excuses, private complainants filed the present case
for illegal recruitment against the accused-appellant.

To prove that accused-appellant had no authority to recruit workers for overseas

employment, the prosecution presented Jose Valeriano, a Senior Overseas
Employment Officer of the Philippine Overseas Employment Agency (POEA), who
testified that accused-appellant was neither licensed nor authorized by the then
Ministry of Labor and Employment to recruit workers for overseas employment.

For her defense, appellant denied ever approaching private complainants to recruit
them for employment in Dubai. On the contrary, it was the private complainants
who asked her help in securing jobs abroad. As a good neighbor and friend, she
brought the private complainants to the Bayside Manpower Export Specialist
agency because she knew Florante Hinahon, 5 the owner of the said agency. While
accused-appellant admitted that she received money from the private complainants,
she was quick to point out that she received the same only in trust for delivery to
the agency. She denied being part of the agency either as an owner or employee
thereof. To corroborate appellants testimony, Milagros Cuadra, who was also an
applicant and a companion of private complainants, testified that appellant did not
recruit them. On the contrary, they were the ones who asked help from appellant. To
further bolster the defense, Eriberto C. Tabing, the accountant and cashier of the
agency, testified that appellant is not connected with the agency and that he saw
appellant received money from the applicants but she turned them over to the
agency through either Florantino Hinahon or Luzviminda Marcos. 6 (Emphasis and
underscoring supplied)

In light thereof, the appellate court affirmed the judgment of the trial court but
modified the penalty imposed due to the trial courts failure to apply the
Indeterminate Sentence Law.

The appellate court thus disposed:

WHEREFORE, finding no merit in the appeal, this Court DISMISSES it and AFFIRMS
the appealed Decision EXCEPT the penalty x x x which is hereby changed to five (5)
years as minimum to seven (7) years as maximum with perpetual disqualification
from engaging in the business of recruitment and placement of workers. 7
(Underscoring supplied)

Petitioners Motion for Reconsideration having been denied, 8 the present petition
was filed, faulting the appellate court

I
x x x IN GIVING CREDENCE TO THE TESTIMONIES OF THE COMPLAINING
WITNESSES, [AND]

II

x x x IN FINDING THE PETITIONER-ACCUSED GUILTY WHEN THE PROSECUTION

FAILED TO PROVE HER GUILT BEYOND REASONABLE DOUBT. 9 (Underscoring
supplied)

Petitioner bewails the failure of the trial court and the Court of Appeals to credit the
testimonies of her witnesses, her companion Milagros Cuadra, and Eriberto C.
Tabing who is an accountant-cashier of the agency.

Further, petitioner assails the trial courts and the appellate courts failure to
consider that the provisional receipts she issued indicated that the amounts she
collected from the private complainants were turned over to the agency through
Minda Marcos and Florante Hinahon. At any rate, she draws attention to People v.
Seoron 10 wherein this Court held that the issuance or signing of receipts for
placement fees does not make a case for illegal recruitment. 11

The petition fails.

Articles 38 and 39 of the Labor Code, the legal provisions applicable when the
offense charged was committed, 12 provided:

ART. 38. Illegal Recruitment. (a) Any recruitment activities, including the
prohibited practices enumerated under Article 34 of this Code, to be undertaken by
non-licensees or non-holders of authority shall be deemed illegal and punishable
under Article 39 of this Code. x x x

Article 39. Penalties. x x x x

(c) Any person who is neither a licensee nor a holder of authority under this Title
found violating any provision thereof or its implementing rules and regulations
shall, upon conviction thereof, suffer the penalty of imprisonment of not less than
four years nor more than eight years or a fine of not less than P20,000 nor more
than P100,000 or both such imprisonment and fine, at the discretion of the court;

x x x x (Underscoring supplied)

The elements of the offense of illegal recruitment, which must concur, are: (1) that
the offender has no valid license or authority required by law to lawfully engage in
recruitment and placement of workers; and (2) that the offender undertakes any
activity within the meaning of recruitment and placement under Article 13(b), or
any prohibited practices enumerated under Article 34 of the Labor Code. 13 If
another element is present that the accused commits the act against three or more
persons, individually or as a group, it becomes an illegal recruitment in a large scale.
14

Article 13 (b) of the Labor Code defines "recruitment and placement" as "[a]ny 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." (Underscoring supplied)

That the first element is present in the case at bar, there is no doubt. Jose Valeriano,
Senior Overseas Employment Officer of the Philippine Overseas Employment
Administration, testified that the records of the POEA do not show that petitioner is
authorized to recruit workers for overseas employment. 15 A Certification to that
effect was in fact issued by Hermogenes C. Mateo, Chief of the Licensing Division of
POEA. 16

Petitioners disclaimer of having engaged in recruitment activities from the very

start does not persuade in light of the evidence for the prosecution. In People v.
Alvarez, this Court held:

Appellant denies that she engaged in acts of recruitment and placement without
first complying with the guidelines issued by the Department of Labor and
Employment. She contends that she did not possess any license for recruitment,
because she never engaged in such activity.

We are not persuaded. In weighing contradictory declarations and statements,

greater weight must be given to the positive testimonies of the prosecution
witnesses than to the denial of the defendant. Article 38 (a) clearly shows that illegal
recruitment is an offense that is essentially committed by a non-licensee or non-
holder of authority. A non-licensee means any person, corporation or entity to
which the labor secretary has not issued a valid license or authority to engage in
recruitment and placement; or whose license or authority has been suspended,
revoked or cancelled by the POEA or the labor secretary. A license authorizes a
person or an entity to operate a private employment agency, while authority is
given to those engaged in recruitment and placement activities.

xxxx

That appellant in this case had been neither licensed nor authorized to recruit
workers for overseas employment was certified by Veneranda C. Guerrero, officer-
in-charge of the Licensing and Regulation Office; and Ma. Salome S. Mendoza,
manager of the Licensing Branch both of the Philippine Overseas Employment
Administration. Yet, as complainants convincingly proved, she recruited them for
jobs in Taiwan. 17 (Italics in the original; underscoring supplied)
The second element is doubtless also present. The act of referral, which is included
in recruitment, 18 is "the act of passing along or forwarding of an applicant for
employment after an initial interview of a selected applicant for employment to a
selected employer, placement officer or bureau." 19 Petitioners admission that she
brought private complainants to the agency whose owner she knows and her
acceptance of fees including those for processing betrays her guilt.

That petitioner issued provisional receipts indicating that the amounts she received
from the private complainants were turned over to Luzviminda Marcos and Florante
Hinahon does not free her from liability. For the act of recruitment may be "for
profit or not." It is sufficient that the accused "promises or offers for a fee
employment" to warrant conviction for illegal recruitment. 20 As the appellate court
stated:

x x x Sec. 13(b) of P.D. 442 [The Labor Code] does not require that the recruiter
receives and keeps the placement money for himself or herself. For as long as a
person who has no license to engage in recruitment of workers for overseas
employment offers for a fee an employment to two or more persons, then he or she
is guilty of illegal recruitment. 21

Parenthetically, why petitioner accepted the payment of fees from the private
complainants when, in light of her claim that she merely brought them to the
agency, she could have advised them to directly pay the same to the agency, she
proferred no explanation.

On petitioners reliance on Seoron, 22 true, this Court held that issuance of receipts
for placement fees does not make a case for illegal recruitment. But it went on to
state that it is "rather the undertaking of recruitment activities without the
necessary license or authority" that makes a case for illegal recruitment. 23

A word on the penalty. Indeed, the trial court failed to apply the Indeterminate
Sentence Law which also applies to offenses punished by special laws.

Thus, Section 1 of Act No. 4103 (An Act to Provide for an Indeterminate Sentence
and Parole for All Persons Convicted of Certain Crimes by the Courts of the
Philippine Islands; To Create A Board of Indeterminate Sentence and to Provide
Funds Therefor; and for Other Purposes) provides:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the

Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same. (As
amended by Act No. 4225) (Underscoring supplied)

While the penalty of imprisonment imposed by the appellate court is within the
prescribed penalty for the offense, its addition of "perpetual disqualification from
engaging in the business of recruitment and placement of workers" is not part
thereof. Such additional penalty must thus be stricken off.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the
Court of Appeals are AFFIRMED with MODIFICATION in that the accessory penalty
imposed by it consisting of "perpetual disqualification from engaging in the business
of recruitment and placement of workers" is DELETED.

Costs against petitioner.

SO ORDERED.

G.R. No. 173792 August 31, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROSARIO "ROSE" OCHOA, Accused-Appellant.

For Our consideration is an appeal from the Decision1 dated March 2, 2006 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00888, which affirmed with modification
the Decision2 dated April 17, 2000 of the Regional Trial Court (RTC), Quezon City,
Branch 104, in Criminal Case Nos. 98-77300 to 98-77303. The RTC found accused-
appellant Rosario "Rose" Ochoa (Ochoa) guilty of illegal recruitment in large scale,
as defined and penalized under Article II, Section 6 in relation to Section 7(b) of
Republic Act No. 8042, otherwise known as the "Migrant Workers and Overseas
Filipinos Act of 1995," in Criminal Case No. 98-77300; and of the crime of estafa, as
defined and penalized in Article 315, paragraph 2(a) of the Revised Penal Code, in
Criminal Case Nos. 98-77301, 98-77302, and 98-77303.

The Information filed before the RTC and docketed as Criminal Case No. 98-77300,
charged Ochoa with illegal recruitment in large scale, allegedly committed as
follows:

That on or about the period covering the months of February 1997 up to April 1998
or immediately before or subsequent thereto in Quezon City, Philippines and within
the jurisdiction of this Honorable Court, the above name accused, did then and there
willfully, unlawfully and feloniously recruit Robert Gubat, Junior Agustin, Cesar
Aquino, Richard Luciano, Fernando Rivera, Mariano R. Mislang, Helen B. Palogo,
Joebert Decolongon, Corazon S. Austria, Cristopher A. Bermejo, Letecia D. Londonio,
Alma Borromeo, Francisco Pascual, Raymundo A. Bermejo and Rosemarie A.
Bermejo for a consideration ranging from P2,000.00 to P32,000.00 or a total amount
of P124,000.00 as placement fee which the complainants paid to herein accused
without the accused having secured the necessary license from the Department of
Labor and Employment.3 (Emphases supplied.)

Three other Informations were filed before the RTC and docketed as Criminal Case
Nos. 98-77301, 98-77302, and 98-77303, this time charging Ochoa with three
counts of estafa, committed separately upon three private complainants Robert
Gubat (Gubat), Cesar Aquino (Cesar), and Junior Agustin (Agustin), respectively. The
Information in Criminal Case No. 98-77301 accuses Ochoa of the following acts
constituting estafa:

That on or about March 3, 1998 in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above name accused did then and there
willfully, unlawfully and feloniously recruit and promise employment in Taiwan to
one ROBERT GUBAT for a consideration of P18,800.00 as placement fee, knowing
that she has no power, capacity or lawful authority whatsoever and with no
intention to fulfill her said promise, but merely as pretext, scheme or excuse to get
and exact money from said complainant, as she did in fact collect and received the
amount of P18,800.00 from said Robert Gubat, to his damage and prejudice.4
(Emphases supplied.)

The two other Informations for estafa were similarly worded as the aforequoted
Information, except as to the name of the private complainants and the amount
purportedly collected by Ochoa from them, particularly:

Docket No. Private Complainant Amount Collected

Criminal Case No. 98-773025 Cesar Aquino P19.000.00
Criminal Case No. 98-773036 Junior Agustin P32,000.00
As prayed for by the State Prosecutor, all four criminal cases against Ochoa before
the RTC were consolidated. When arraigned, Ochoa pleaded not guilty. Thereafter,
joint trial of the four criminal cases ensued.

The prosecution presented as witnesses Cory Aquino (Cory) of the Philippine

Overseas Employment Agency (POEA) and private complainants Gubat, Agustin,
Francisco Pascual (Pascual), Rosemarie Bermejo (Rosemarie), Cesar, Christopher
Bermejo (Christopher), Joebert Decolongon (Decolongon), and Fernando Rivera
(Rivera).

According to private complainants, they were recruited by Ochoa from January to

March 1998 for various jobs in either Taiwan or Saudi Arabia, under the following
circumstances:

1. In the second week of February 1998, Ochoa was introduced to Robert Gubat, a
licensed electrical engineer and a resident of Pulang Lupa, Las Pias, through a
certain Nila, Gubats neighbor, who had a pending application for work abroad with
Ochoa. Ochoa talked to Gubat on the telephone, and during their conversation,
Ochoa told Gubat that one of her applicants was already leaving for Taiwan. Per
Ochoas instruction, Gubat met with Francisco Pascual, who accompanied him to
Ochoas house in San Bartolome, Novaliches, Quezon City, and personally introduced
Gubat to Ochoa. Gubat submitted his rsum to Ochoa, which Ochoa would bring to
Axil International Agency where Ochoa was working as a recruiter. Right after
browsing through Gubats rsum, Ochoa informed Gubat that as an engineer, Gubat
was qualified to work as a factory supervisor and could leave for Taiwan in two
weeks or in March 1998. Ochoa also told Gubat that the total application expenses
would amount to 100,000.00, and the downpayment was 50,000.00. Gubat was
able to actually pay Ochoa 18,800.00 as reservation fee at the agency; processing
fee for Gubats papers at the Department of Foreign Affairs (DFA), Malacaang, and
Embassy of Taiwan; and medical examination fee. Ochoa, however, only issued to
Gubat three receipts, dated March 3, March 31, and April 6, all in the year 1998, in
the amount of P5,000.00 each or a total of P15,000.00. Gubat started to worry when
he was not able to leave for abroad as Ochoa promised and when she failed to show
up at their arranged meetings. When Gubat was finally able to talk to Ochoa, Ochoa
again promised him that he would be leaving for abroad soon. Despite Ochoas
renewed promise, Gubat was still not able to leave the country. Gubat then
demanded that Ochoa return his documents and money. When Ochoa failed to
comply with his demand, Gubat filed a report against Ochoa at Barangay (Brgy.) San
Bartolome, Novaliches, Quezon City. On May 21, 1998, he met the other private
complainants7 who had similar complaints against Ochoa. When nothing came out
of the confrontation with Ochoa at Brgy. San Bartolome, Gubat and the other private
complainants filed a joint complaint against Ochoa before the National Bureau of
Investigation (NBI).8

2. The paths of Junior Agustin and Ochoa crossed on February 2, 1998. Agustin, a
farmer, was staying at the home of Pascual, his cousin, at No. 4 Gulod, Novaliches,
Quezon City. When Ochoa arrived at Pascuals home, Pascual introduced Ochoa to
Agustin as a recruiter for overseas workers in Taiwan. Interested in working
abroad, Agustin submitted his bio-data to Ochoa at the latters residence at Phase 1,
Lot 3, San Bartolome, Novaliches, Quezon City. Ochoa promised Agustin that he
would be fielded as a factory worker in Taiwan for three years, earning a monthly
salary of P18,000.00. Ochoa then informed Agustin that the total placement fee for
Taiwan is P80,000.00. Agustin initially paid Ochoa the sum of P28,000.00 as
processing fee. Ochoa then promised that Agustin could leave for Taiwan in two
months. However, the two months passed, but there was still no overseas
employment for Agustin. Agustin was compelled to file a complaint against Ochoa at
Brgy. San Bartolome, Novaliches, Quezon City. Agustin met the other private
complainants during the barangay hearing on May 21, 1998. Ochoa was also present
at said hearing. Given the unsuccessful barangay hearing, Agustin and the other
private complainants lodged a complaint against Ochoa before the NBI.9
3. Francisco Pascual, presently jobless and a resident of Gulod, Novaliches, Quezon
City, learned from a neighbor of one Mrs. Bermejo that her son was being helped by
Ochoa, a recruiter, to find a job abroad. Pascual went to Mrs. Bermejos house in
January 1998, and met Ochoa for the first time. Ochoa invited Pascual to apply for a
job abroad, saying that the latter could leave within two weeks. During Pascuals
visit at Ochoas house at Blk. 1, Lot 1, San Bartolome, Novaliches, Quezon City, Ochoa
promised Pascual employment as a driver salesman in Saudi Arabia, with a monthly
salary of P18,000.00. Ochoa told Pascual that the placement fee would be P7,000.00
and that Pascual should already have his medical examination so that the position in
Saudi Arabia could be reserved for him. Since his visa had not yet arrived, Pascual
did not pay any placement fee to Ochoa. Pascual did undergo medical examination at
St. Peter Medical Clinic in Ermita, Manila, for which he paid P2,600.00 to Ochoa.
Pascual though did not receive the results of his medical examination because
according to Ochoa, the same was withheld by the clinic. Despite Ochoas promises,
Pascual was not able to leave for Saudi Arabia. At that time, Pascual was still
employed as a Field Coordinator with Selecta, but because of his frequent absences,
spent following-up on his application for work abroad, he was fired. Pascual filed a
complaint against Ochoa at Brgy. San Bartolome, Novaliches, Quezon City. As
nothing happened during the confrontation with Ochoa at the barangay hearing on
May 21, 1998, Pascual and the other private complainants filed a complaint before
the NBI.10

4. Rosemarie Bermejo came to know of Ochoa through Rivera, a friend of

Rosemaries mother. Rosemarie first met Ochoa at the latters home in Quezon City
sometime in January 1998. Rosemarie was promised by Ochoa employment for
three years in Saudi Arabia as clerk/typist, earning US$400.00. Rosemarie was also
instructed by Ochoa to have a medical examination and secure a passport and NBI
clearance. Rosemarie and her brothers, who also applied for jobs abroad, were
accompanied by Ochoa to the St. Peter Medical Clinic in Malate, Manila for their
medical examination on February 27, 1998. Rosemarie and her brother each handed
over to Ochoa P2,600.00 for their medical examinations, and it was Ochoa who gave
the payment to the clinic. Rosemarie and her brothers then spent P55.00 each to
secure NBI clearances for travel abroad. In addition, Rosemarie gave Ochoa
P5,500.00 on April 17, 1998; and although not secured by a receipt, said payment
was witnessed by Rosemaries mother and Imelda Panuga, the landlord of
Rosemaries mother, who lent Rosemarie the P5,500.00. During their initial meeting
in January 1998, Ochoa said that Rosemarie could already leave for abroad in two
weeks. Since Rosemarie was not able to complete the requirements, her departure
for Saudi Arabia was moved to April 19, 1998. On April 19, 1998, Ochoa requested
Rosemarie to go to the office of Al Arab Agency located at Jalandoni Building, Ermita,
Manila, to which Ochoa was purportedly connected. Rosemarie waited at the Al
Arab Agency until noon, but no one came to pick her up. Later, at the same day,
Ochoa invited Rosemarie to her house for the birthday celebration of her father.
There, Ochoa explained that Rosemarie was unable to leave for Saudi Arabia
because the Al Arab Agency has yet to secure Rosemaries Overseas Employment
Certificate (OEC). Ochoa advised Rosemarie to stay at the rented apartment of
Rosemaries mother because it was close to Ochoas house and would be more
convenient as Rosemarie could leave for abroad any day soon. When none of
Ochoas promises came to fruition, Rosemarie, together with the other private
complainants, first sought redress from Brgy. San Bartolome, Novaliches, Quezon
City, and then from the NBI.11

5. It was Pascual who introduced Cesar Aquino, a resident of Cubao, to Ochoa at the
latters residence in San Bartolome, Novaliches, Quezon City, sometime in February
1998. When Cesar directly asked Ochoa if she was a recruiter, the latter answered in
the affirmative. Cesar applied to work as a factory worker in Taiwan. Ochoa told
Cesar that as a factory worker, he could earn at least P15,000.00 a month. On March
13, 1998, Cesar handed over P17,000.00 to Ochoa to cover his processing fee and
medical examination. On the same day, Cesar had his medical examination at St.
Peter Medical Clinic. Ochoa then promised that Cesar could leave two weeks
thereafter. When two weeks had passed and he was not able to leave for Taiwan,
Cesar demanded that Ochoa return his money. Ochoa failed to comply with Cesars
demand, and Cesar instituted a complaint against Ochoa at Brgy. San Bartolome,
Novaliches, Quezon City. At the hearing attended by Ochoa, Cesar, and the other
private complainants before the Barangay Lupon, Ochoa signed a Kasunduan,
agreeing to return the money to private complainants. Again, Ochoa failed to fulfill
her promise to return the money paid by Cesar, thus, the latter, together with the
other complainants, filed a complaint with the NBI.12

6. Christopher Bermejo met Ochoa at the house of his mother in Novaliches, Quezon
City in January 1998. Also present at the house were Fernando Bermejo,
Christophers brother, and Richard Luciano. Ochoa promised that after a week,
Christopher would already be deployed to Saudi Arabia as an accountant, earning
250-350 Saudi Riyals. As a result, Christopher immediately resigned from his job at
the Development Bank of the Philippines (DBP). Christophers mother paid Ochoa
P5,000.00 as processing fee for Christophers application. A week passed and Ochoa
failed to send Christopher to Saudi Arabia for work. When Rosemarie and
Raymundo Bermejo (Raymundo), Christophers sister and brother, respectively, also
failed to leave for work abroad as promised by Ochoa, Christopher, Rosemarie, and
their mother went to see Ochoa at an office at the Jalandoni Building, Ermita, Manila.
Ochoa explained that Christopher and his siblings could not leave yet because there
are other documents that still need to be accomplished. Ochoa said that she would
just notify Christopher and his siblings of their scheduled departure. When they still
did not receive any notification from Ochoa, Rosemarie, Raymundo, and their
mother returned to the office at the Jalandoni Building and found out that their
placement fees were not given to said office. Christopher joined the other private
complainants in filing a complaint against Ochoa before the NBI.13

7. Joebert Decolongon is a resident of Sta. Maxima, Gulod, Novaliches, Quezon City,

and works as a bus conductor.lawphi1 Decolongon was introduced to Ochoa by
Rivera, Decolongons friend, at Riveras house on Villareal Street, Gulod, Novaliches.
Ochoa informed Decolongon that there was a vacancy for the position of janitor in
Saudi Arabia, with a monthly salary of 800 Saudi Riyals. Decolongon submitted his
application, birth certificate, and passport to Ochoa. Ochoa also went to
Decolongons house and collected from Decolongons wife the initial amount of
P2,000.00 as placement fee. The rest of Decolongons placement fees would be paid
by one-month salary deduction. Trusting Ochoa, neither Decolongon nor his wife
demanded a receipt. When Ochoa failed to deploy Decolongon for employment
abroad, Decolongon too filed a complaint against Ochoa before Brgy. San Bartolome,
Novaliches, Quezon City. Without a successful resolution at the barangay level,
Decolongon joined the private complainants in filing a complaint against Ochoa
before the NBI.14

8. Sometime in January 1998, Ochoa was accompanied by a certain Amy to Fernando

Riveras residence at 27 Villareal Street, Novaliches, Quezon City. Ochoa first talked
to Riveras mother who had previously worked abroad. Ochoa then also offered
work to Rivera, either as tea boy or janitor in the army in Riyadh, Saudi Arabia.
Rivera chose to work as a tea boy, with a salary of 800 to 1,000 Saudi Riyals. Ochoa
said that Rivera would be deployed in the first week of February 1998. Ochoa
required Rivera to submit NBI clearance, passport, and pictures, but Rivera
submitted only his NBI clearance. In January 1998, Rivera paid Ochoa P2,000.00 as
she would be the one to secure Riveras passport. In March 1998, Rivera handed
over his ring and necklace, worth of P10,000.00, to Ochoa to cover his processing
and medical examination fees. Rivera did not require a receipt from Ochoa because
he trusted Ochoa, who was his mothers friend. When Rivera failed to leave in
February 1998, Ochoa explained that Riveras departure was postponed until March
1998 due to Ramadan. After the period of Ramadan, Rivera was still not able to
leave for Saudi Arabia. Rivera then filed a complaint against Ochoa before Brgy. San
Bartolome, Novaliches, Quezon City. Ochoa promised to return to Rivera his
jewelries and P2,000.00, but Ochoa did not appear at the barangay hearing set on
April 30, 1998. Thus, Rivera and the other private complainants proceeded to file a
complaint against Ochoa before the NBI.15

Cory C. Aquino of the POEA authenticated the Certification dated June 3, 1998,
issued by Hermogenes C. Mateo (Mateo), Director, Licensing Branch of the POEA,
that Ochoa, in her personal capacity, is neither licensed nor authorized by the POEA
to recruit workers for overseas employment. Cory identified Director Mateos
signature on the Certification, being familiar with the same. The Certification was
issued after a check of the POEA records pursuant to a request for certification from
the NBI. Cory, however, admitted that she did not participate in the preparation of
the Certification, as the NBIs request for certification was through a counter
transaction, and another person was in charge of verification of counter
transactions.16

Ochoa testified on her own behalf.

Ochoa stated under oath that she was employed by AXIL International Services and
Consultant (AXIL) as recruiter on December 20, 1997. AXIL had a temporary license
to recruit Filipino workers for overseas employment. Ochoa worked at AXIL from
8:00 a.m. to 5:00 p.m. and was paid on a commission basis.

Ochoa claimed though that she remitted private complainants money to a person
named Mercy, the manager of AXIL, but AXIL failed to issue receipts because the
private complainants did not pay in full.25

On April 17, 2000, the RTC rendered a Decision finding Ochoa guilty beyond
reasonable doubt of the crimes of illegal recruitment in large scale (Criminal Case
No. 98-77300) and three counts of estafa (Criminal Case Nos. 98-77301, 98-77302,
98-77303). The dispositive portion of said Decision reads:

WHEREFORE, judgment is hereby rendered as follows:

1. In Criminal Case No. 98-77300, the Court finds the accused, ROSARIO "ROSE"
OCHOA, guilty beyond reasonable doubt as principal of ILLEGAL RECRUITMENT IN
LARGE SCALE, defined and penalized in Section 6 in relation to Section 7 (b) of
Republic Act No. 8042, and sentences her to life imprisonment and a fine of One
Million Pesos.

2. In Criminal Case No. 98-77301, the Court finds the accused, ROSARIO "ROSE"
OCHOA, guilty beyond reasonable doubt as principal of the crime of ESTAFA,
defined and penalized in Article 315, paragraph 2 (a) of the Revised Penal Code, and
sentences her to an indeterminate penalty of two (2) years, eleven (11) months and
eleven (11) days of prision correccional as minimum to six (6) years, eight (8)
months and twenty (20) days of prision mayor, as maximum, and to indemnify
complainant Robert Gubat in the amount of Eighteen Thousand Eight Hundred
(P18,800.00) Pesos.

3. In Criminal Case No. 98-77302, the Court finds the accused, ROSARIO "ROSE"
OCHOA, guilty beyond reasonable doubt as principal of the crime of ESTAFA,
defined and penalized in Article 315, paragraph 2 (a) of the Revised Penal Code, and
sentences her to an indeterminate penalty of two (2) years, eleven (11) months and
eleven (11) days of prision correccional as minimum to six (6) years, eight (8)
months and twenty (20) days of prision mayor as maximum, and to indemnify the
complainant Cesar Aquino in the amount of Seventeen Thousand (P17,000.00)
Pesos.

4. In Criminal Case No. 98-77303, the Court finds the accused, ROSARIO "ROSE"
OCHOA, guilty beyond reasonable doubt as principal of the crime of ESTAFA,
defined and penalized in Article 315, paragraph 2 (a) of the Revised Penal Code, and
sentences her to an indeterminate penalty of two (2) years, eleven (11) months and
eleven (11) days of prision correccional as minimum to six (6) years, eight (8)
months and twenty-one (21) days of prision mayor as maximum, and to indemnify
complainant Junior Agustin in the amount of Twenty-Eight Thousand (P28,000.00)
Pesos.26
Ochoa filed a Notice of Appeal27 in which she stated her intention to appeal the RTC
judgment of conviction and prayed that the records of her case be forwarded to the
Court of Appeals. Ochoas appeal was docketed as CA-G.R. CR. No. 24147 before the
Court of Appeals.

In a Resolution28 dated August 8, 2000, the Court of Appeals granted Ochoas First
Motion for Extension of Time to file her brief.

Ochoa filed her Appellants Brief on September 4, 200029 while the People, through
the Office of the Solicitor General (OSG), filed its Appellees Brief on March 1,
2001.30

The Special Fourteenth Division of the Court of Appeals promulgated its Decision31
dated June 17, 2002 affirming the appealed RTC decision dated April 17, 2000.
Ochoa filed a Motion for Reconsideration,32 which the People opposed for being
bereft of merit.33

In its Resolution34 dated August 6, 2003, the Court of Appeals declared that it had
no jurisdiction over Ochoas appeal, ratiocinating thus:

We affirmed this judgment on 17 June 2002. While neither the accused-appellant

nor the Office of the Solicitor General representing the people ever raised the issue
of jurisdiction, our second look at the suit proved worthwhile because we came to
realize that we mistakenly assumed jurisdiction over this case where it does not
obtain.

It was error to consider accused-appellants appeal from a trial court judgment

imposing life imprisonment in Criminal Case No. Q-98-77300 for illegal recruitment
in a large scale. Consequently, the judgment we rendered dated 17 June 2002 is null
and void. No less than Article VIII, 5(2)(d) of the Constitution proscribes us from
taking jurisdiction

SECTION 5. The Supreme Court shall have the following powers:

xxxx

(2) Review, revise, reverse, modify or affirm on appeal or certiorari as the law or
Rules of Court may provide, final judgments and orders of the lower court in:

xxxx

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher

17(1) of the Judiciary Act of 1948 reiterates

SECTION 17. Jurisdiction of the Supreme Court.

The Supreme Court shall have exclusive jurisdiction to review, revise, reverse,
modify or affirm on appeal, as the law or rules of court may provide, final judgments
and decrees of inferior courts as herein provided, in

(1) All criminal cases involving offenses for which the penalty imposed is life
imprisonment; and those involving offenses which, although not so punished, arose
out of the same occurrences or which may have been committed by the accused on
the same occasion as that giving rise to the more serious offense, regardless of
whether the accused are charged as principals, accomplices, or accessories, or
whether they have been tried jointly or separately; x x x.

3 of Rule 122 of the Revised Rules of Criminal Procedure likewise declares

SEC. 3. How appeal taken.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the
Regional Trial Court is reclusion perpetua or life imprisonment, or where a lesser
penalty is imposed but for offenses committed on the same occasion or which arose
out of the same occurrence that gave rise to the more serious offense for which the
penalty of death, reclusion perpetua, or life imprisonment is impose[d], shall be by
filing a notice of appeal in accordance with paragraph (a) of this section.

Even if only in Criminal Case No. Q-98-77300 was the penalty of life imprisonment
meted out, we still cannot consider the appeal of the verdict in Criminal Case Nos.
98-77301 to 98-77303 for as the Supreme Court clearly clarified

An appeal of a single decision cannot be split between two courts. The splitting of
appeals is not conclusive to the orderly administration of justice and invites possible
conflict of dispositions between the reviewing courts. Specifically, the Court of
Appeals has no jurisdiction to review an appeal of a judgment imposing an
indeterminate sentence, if the same ruling also imposes reclusion perpetua, life
imprisonment and death for crimes arising out of the same facts. In other words, the
Supreme Court has exclusive jurisdiction over appeals of criminal cases in which the
penalty imposed below is reclusion perpetua, life imprisonment or death, even if the
same decision orders, in addition, a lesser penalty or penalties for crimes arising out
of the same occurrence or facts.

It will be seen that Robert Gubat, private complainant in Criminal Case No. Q-98-
77301, Cesar Aquino, private complainant in Criminal Case No. Q-98-77302 and
Junior Agustin, private complainant in Criminal Case No. Q-98-77303 were also the
private complainant in the illegal recruitment in a large scale suit, docketed as
Criminal Case No. Q-98-77300. As gleaned from the charges, the estafa cases were
intimately related to or arose from the facts and occurrences of the alleged illegal
recruitment. Clearly, we have no recourse but to refuse cognizance over the estafa
cases as well.35

Despite its lack of jurisdiction over Ochoas appeal, the Court of Appeals did not
dismiss the same and merely ordered its transfer to us:

While the Supreme Court Circular No. 2-90 directs the dismissal of appeals filed
before the wrong court, the Supreme Court has in practice allowed the transfer of
records from this Court to the highest court. In which case, we shall subscribe to this
practice in the interest of substantial justice.

WHEREFORE, premises considered, our decision is declared NULL and VOID. We

order the TRANSFER of the records of Criminal Cases Nos. 98-77300 to 98-77303 to
the Supreme Court for proper action.36

In the Resolution37 dated September 17, 2003, we accepted Ochoas appeal and
informed both Ochoa and the OSG to file their respective additional briefs. Ochoas
appeal was then docketed as G.R. No. 159252.

On August 17, 2004, Ochoas counsel filed an explanation stating that he had nothing
more to add since he had already written and filed all necessary pleadings, complete
with all the necessary research and arguments.38

In the meantime, People v. Mateo39 was promulgated on July 7, 2004, where we

held that an appeal from the decisions of the RTC, sentencing the accused to life
imprisonment or reclusion perpetua, should be made to the Court of Appeals. Thus,
in our Resolution40 dated March 11, 2005, the Court ordered the transfer of the
records of G.R. No. 159252 to the Court of Appeals for a decision on the merit. We
likewise directed the Court of Appeals to raffle the said case to any of its regular
divisions.

When Ochoas appeal was before the Court of Appeals a second time, it was
docketed as CA-G.R. CR.-H.C. No. 00888. The Court of Appeals, in a Decision dated
March 2, 2006, affirmed with modification the RTC Decision dated April 17, 2000.
The appellate court essentially affirmed the findings of fact and law of the RTC, but
reduced the award of damages in Criminal Case No. 98-77301 and increased the
prison sentence in Criminal Case No. 98-77303. The decretal portion of said
Decision reads:

WHEREFORE, judgment is hereby rendered as follows:

I. The judgment of the trial court in Criminal Case No. 98-77300 finding appellant
Rosario Ochoa guilty beyond reasonable doubt of Illegal Recruitment in Large Scale
constituting economic sabotage under Sec. 6 (l) and (m) in relation to Sec. 7(b) of
R.A. No. 8042 and sentencing her to life imprisonment and a fine of One Million
Pesos (P1,000,000.00) is AFFIRMED.
II. The judgment in Criminal Case No. 98-77301, finding appellant guilty beyond
reasonable doubt of estafa is MODIFIED. Appellant is, hereby, ordered to indemnify
Robert Gubat in the amount of P15,000.00 only as and by way of actual damages.

III. The judgment in Criminal Case No. 98-77302, finding appellant guilty beyond
reasonable doubt of estafa is AFFIRMED.

IV. The judgment in Criminal Case No. 98-77303, finding appellant guilty beyond
reasonable doubt of estafa is MODIFIED. Appellant is, hereby, sentenced to an
indeterminate penalty of FOUR (4) YEARS and TWO (2) MONTHS of prision
correccional as minimum, to EIGHT (8) YEARS OF prision mayor as maximum.41

Ochoas appeal is anchored on the following assignment of errors:

The lower court erred:

a. In admitting Exhibit "A" the POEA Certification when it was already excluded
during the bail hearing

b. In shifting the burden of the accused to prove that there was no illegal
recruitment

c. In finding that there was estafa

d. By not limiting liability of the accused to civil liability only42

We find no reversible error in the assailed Court of Appeals decision.

Illegal recruitment in large scale

Ochoa was charged with violation of Section 6 of Republic Act No. 8042. Said
provision broadens the concept of illegal recruitment under the Labor Code43 and
provides stiffer penalties, especially for those that constitute economic sabotage, i.e.,
illegal recruitment in large scale and illegal recruitment committed by a syndicate.

Section 6 of Republic Act No. 8042 defines illegal recruitment as follows:

SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring
workers and includes referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when undertaken by a non-licensee
or non-holder of authority contemplated under Article 13(f) of Presidential Decree
No. 442, as amended, otherwise known as the Labor Code of the Philippines:
Provided, That any such non-licensee or non-holder who, in any manner, offers or
promises for a fee employment abroad to two or more persons shall be deemed so
engaged. It shall likewise include the following acts, whether committed by any
person, whether a non-licensee, non-holder, licensee or holder of authority:

xxxx

(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of

three (3) or more persons conspiring or confederating with one another. It is
deemed committed in large scale if committed against three (3) or more persons
individually or as a group.

It is well-settled that to prove illegal recruitment, it must be shown that appellant

gave complainants the distinct impression that she had the power or ability to send
complainants abroad for work such that the latter were convinced to part with their
money in order to be employed.44 All eight private complainants herein
consistently declared that Ochoa offered and promised them employment overseas.
Ochoa required private complainants to submit their bio-data, birth certificates, and
passports, which private complainants did. Private complainants also gave various
amounts to Ochoa as payment for placement and medical fees as evidenced by the
receipts Ochoa issued to Gubat,45 Cesar,46 and Agustin.47 Despite private
complainants compliance with all the requirements Ochoa specified, they were not
able to leave for work abroad. Private complainants pleaded that Ochoa return their
hard-earned money, but Ochoa failed to do so.

Ochoa contends that Exhibit "A," the POEA certification which states that Ochoa, in
her personal capacity, is neither licensed nor authorized to recruit workers for
overseas employment was already rejected by the RTC during the hearings on bail
for being hearsay, and should not have been admitted by the RTC after the trial on
the merits of the criminal cases. Inadmissible evidence during bail hearings do not
become admissible evidence after formal offer. Without the POEA certification, the
prosecution had no proof that Ochoa is unlicensed to recruit and, thus, she should be
acquitted.

Ochoas contention is without merit.

We refer to the following ruling in Fullero v. People,48 wherein we rejected a

similar argument raised by petitioner therein against a certification issued by an
officer of the Professional Regulation Commission:

Regarding the third issue, petitioner contended that the prosecution's documentary
evidence, consisting of Exhibits "A," "C," "F," "G," "H," "I," "J," "K," "L," "M," "N," "O,"
"P," "Q" and "R" and their sub-markings, are inadmissible in evidence based on the
following reasons:

(1) Exhibit "A," which is the Certification of the PRC dated 17 January 1998,
confirming that petitioner's name does not appear in the registry books of licensed
civil engineers, was not properly identified during the trial. The proper person to
identify the certification should have been the signatory therein which was PRC
Director II Jose A. Arriola, or in his absence, a person who actually witnessed the
execution of the certification. Prosecution witness Atayza, who was not present
when the certification was executed, had identified the certification during the trial.
Thus, the contents of the certification are mere hearsay; x x x.

xxxx

Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can
testify only to those facts which he knows of or comes from his personal knowledge,
that is, which are derived from his perception. A witness, therefore, may not testify
as to what he merely learned from others either because he was told, or he read or
heard the same. Such testimony is considered hearsay and may not be received as
proof of the truth of what he has learned. This is known as the hearsay rule.

The law, however, provides for specific exceptions to the hearsay rule. One of the
exceptions is the entries in official records made in the performance of duty by a
public officer. In other words, official entries are admissible in evidence regardless
of whether the officer or person who made them was presented and testified in
court, since these entries are considered prima facie evidence of the facts stated
therein. Other recognized reasons for this exception are necessity and
trustworthiness. The necessity consists in the inconvenience and difficulty of
requiring the official's attendance as a witness to testify to innumerable
transactions in the course of his duty. This will also unduly hamper public business.
The trustworthiness consists in the presumption of regularity of performance of
official duty by a public officer.

Exhibit "A," or the Certification of the PRC dated 17 January 1998, was signed by
Arriola, Director II of the PRC, Manila. Although Arriola was not presented in court
or did not testify during the trial to verify the said certification, such certification is
considered as prima facie evidence of the facts stated therein and is therefore
presumed to be truthful, because petitioner did not present any plausible proof to
rebut its truthfulness. Exhibit A is therefore admissible in evidence.49

In the case at bar, the POEA certification was signed by Dir. Mateo of the POEA
Licensing Branch. Although Dir. Mateo himself did not testify before the RTC, the
prosecution still presented Cory, Dir. Mateos subordinate at the POEA Licensing
Branch, to verify Dir. Mateos signature.
Also worth re-stating is the justification provided by the Court of Appeals for the
admissibility of the POEA certification, viz:

The certificate is admissible. It is true that the trial court, during the bail hearings,
rejected the certification for being hearsay because at that stage of the proceedings,
nobody testified yet on the document. However, as the trial progressed, an officer of
the POEA, specifically in its licensing branch, had testified on the document. It does
not follow, then, as appellant would want this court to assume, that evidence
rejected during bail hearings could not be admissible during the formal offer of
evidence.

This court admits that Ms. Cory Aquino was not the signatory of the document.
Nevertheless, she could testify on the veracity of the document because she is one of
the officers of the licensing branch of the POEA. Being so, she could testify whether a
certain person holds a license or not. It bears stressing that Ms. Aquino is familiar
with the signature of Mr. Mateo because the latter is her superior. Moreover, as
testified to by Ms. Aquino, that as a policy in her office, before a certification is made,
the office checks first whether the name of the person requested to be verified is a
reported personnel of any licensed agency by checking their index and computer
files.

As found in the offices records, appellant, in her personal capacity, is neither

licensed nor authorized to recruit workers for overseas employment. It bears
stressing, too, that this is not a case where a certification is rendered inadmissible
because the one who prepared it was not presented during the trial. To reiterate, an
officer of the licensing branch of the POEA, in the person of Ms. Aquino, testified on
the document. Hence, its execution could be properly determined and the veracity of
the statements stated therein could be ascertained.50

More importantly, Ochoa could still be convicted of illegal recruitment even if we

disregard the POEA certification, for regardless of whether or not Ochoa was a
licensee or holder of authority, she could still have committed illegal recruitment.
Section 6 of Republic Act No. 8042 clearly provides that any person, whether a non-
licensee, non-holder, licensee or holder of authority may be held liable for illegal
recruitment for certain acts as enumerated in paragraphs (a) to (m) thereof. Among
such acts, under Section 6(m) of Republic Act No. 8042, is the "[f]ailure to reimburse
expenses incurred by the worker in connection with his documentation and
processing for purposes of deployment, in cases where the deployment does not
actually take place without the workers fault." Ochoa committed illegal recruitment
as described in the said provision by receiving placement and medical fees from
private complainants, evidenced by the receipts issued by her, and failing to
reimburse the private complainants the amounts they had paid when they were not
able to leave for Taiwan and Saudi Arabia, through no fault of their own.

Ochoa further argues in her defense that she should not be found personally and
criminally liable for illegal recruitment because she was a mere employee of AXIL
and that she had turned over the money she received from private complainants to
AXIL.

We are not convinced. Ochoas claim was not supported by any corroborating
evidence. The POEA verification dated September 23, 1998, also signed by Dir.
Mateo, and presented by Ochoa during trial, pertains only to the status of AXIL as a
placement agency with a "limited temporary authority" which had already expired.
Said verification did not show whether or not Ochoa was employed by AXIL.
Strangely, for an alleged employee of AXIL, Ochoa was not able to present the most
basic evidence of employment, such as appointment papers, identification card (ID),
and/or payslips. The receipts presented by some of the private complainants were
issued and signed by Ochoa herself, and did not contain any indication that Ochoa
issued and signed the same on behalf of AXIL. Also, Ochoa was not able to present
any proof that private complainants money were actually turned over to or
received by AXIL.

There is no reason for us to disturb the weight and credence accorded by the RTC to
the evidence of the prosecution, over that of the defense. As is well-settled in this
jurisdiction, greater weight is given to the positive identification of the accused by
the prosecution witnesses than the accuseds denial and explanation concerning the
commission of the crime.51 Likewise, factual findings of the trial courts, including
their assessment of the witnesses credibility, are entitled to great weight and
respect by the Supreme Court, particularly when the Court of Appeals affirmed such
findings. After all, the trial court is in the best position to determine the value and
weight of the testimonies of witnesses. The absence of any showing that the trial
court plainly overlooked certain facts of substance and value that, if considered,
might affect the result of the case, or that its assessment was arbitrary, impels the
Court to defer to the trial courts determination according credibility to the
prosecution evidence.52 Moreover, in the absence of any evidence that the
prosecution witnesses were motivated by improper motives, the trial courts
assessment of the credibility of the witnesses shall not be interfered with by this
Court.53

Under the last paragraph of Section 6 of Republic Act No. 8042, illegal recruitment
shall be considered an offense involving economic sabotage if committed in a large
scale, that is, committed against three or more persons individually or as a group.
Here, there are eight private complainants who convincingly testified on Ochoas
acts of illegal recruitment.

In view of the overwhelming evidence presented by the prosecution, we uphold the

verdict of the RTC, as affirmed by the Court of Appeals, that Ochoa is guilty of illegal
recruitment constituting economic sabotage.

Section 7(b) of Republic Act No. 8042 provides that the penalty of life imprisonment
and a fine of not less than P500,000.00 nor more than P1,000.000.00 shall be
imposed when the illegal recruitment constitutes economic sabotage. Thus:
Sec. 7. Penalties.

(a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than
twelve (12) years and a fine of not less than Two hundred thousand pesos
(P200,000.00) nor more than Five hundred thousand pesos (P500,000.00).

(b) The penalty of life imprisonment and a fine of not less than Five hundred
thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00)
shall be imposed if illegal recruitment constitutes economic sabotage as defined
herein.

Since the penalty of life imprisonment and a fine of P1,000,000.00 imposed on

Ochoa by the RTC, and affirmed by the Court of Appeals, are in accord with the law,
we similarly sustain the same.

Estafa

We affirm as well the conviction of Ochoa for estafa committed against three private
complainants in Criminal Case Nos. 98-77301, 98-77302, and 98-77303. The very
same evidence proving Ochoas criminal liability for illegal recruitment also
established her criminal liability for estafa.

It is settled that a person may be charged and convicted separately of illegal

recruitment under Republic Act No. 8042, in relation to the Labor Code, and estafa
under Article 315, paragraph 2(a) of the Revised Penal Code. We explicated in
People v. Cortez and Yabut54 that:

In this jurisdiction, it is settled that a person who commits illegal recruitment may
be charged and convicted separately of illegal recruitment under the Labor Code
and estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of
illegal recruitment is malum prohibitum where the criminal intent of the accused is
not necessary for conviction, while estafa is malum in se where the criminal intent
of the accused is crucial for conviction. Conviction for offenses under the Labor Code
does not bar conviction for offenses punishable by other laws. Conversely,
conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not
bar a conviction for illegal recruitment under the Labor Code. It follows that ones
acquittal of the crime of estafa will not necessarily result in his acquittal of the crime
of illegal recruitment in large scale, and vice versa.55

Article 315, paragraph 2(a) of the Revised Penal Code defines estafa as:

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow x x x:
xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior
to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence,

qualifications, property, credit, agency, business or imaginary transactions; or by
means of other similar deceits.

The elements of estafa are: (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 caused to the offended party or third person.56 Both
elements are present in Criminal Case Nos. 98-77301, 98-77302, and 98-77303.
Ochoas deceit was evident in her false representation to private complainants
Gubat, Cesar, and Agustin that she possessed the authority and capability to send
said private complainants to Taiwan/Saudi Arabia for employment as early as one
to two weeks from completion of the requirements, among which were the payment
of placement fees and submission of a medical examination report. Ochoa promised
that there were already existing job vacancies overseas for private complainants,
even quoting the corresponding salaries. Ochoa carried on the deceit by receiving
application documents from the private complainants, accompanying them to the
clinic for medical examination, and/or making them go to the offices of certain
recruitment/placement agencies to which Ochoa had actually no connection at all.
Clearly deceived by Ochoas words and actions, private complainants Gubat, Cesar,
and Aquino were persuaded to hand over their money to Ochoa to pay for their
placement and medical fees. Sadly, private complainants Gubat, Cesar, and Aquino
were never able to leave for work abroad, nor recover their money.

The penalty for estafa depends on the amount of defraudation. According to Article
315 of the Revised Penal Code:

Art. 315. Swindling (estafa). Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in
its minimum period, if the amount of the fraud is over 12,000 pesos but does not
exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year
for each additional 10,000 pesos; but the total penalty which may be imposed shall
not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed under the provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal, as the case may be.

It was established by evidence that in Criminal Case No. 98-77301, Gubat was
defrauded by Ochoa in the amount of P15,000.00; in Criminal Case No. 77-98302,
Cesar paid Ochoa the sum of P17,000.00; and in Criminal Case No. 77-98303,
Agustin handed over to Ochoa a total of P28,000.00.

The prescribed penalty for estafa under Article 315 of the Revised Penal Code, when
the amount of the fraud is over P12,000.00 but not exceeding P22,000.00, is prision
correccional maximum to prision mayor minimum (i.e., from 4 years, 2 months and
1 day to 8 years). If the amount of fraud exceeds P22,000.00, the aforementioned
penalty shall be imposed in its maximum period, adding one year for each additional
P10,000.00, provided that the total penalty shall not exceed 20 years.1avvphi1

Under the Indeterminate Sentence Law, the minimum term shall be within the range
of the penalty next lower to that prescribed by the Revised Penal Code, or anywhere
within prision correccional minimum and medium (i.e., from 6 months and 1 day to
4 years and 2 months).57 Consequently, the minimum terms in Criminal Case Nos.
98-77301 and 98-77302 were correctly fixed by the RTC and affirmed by the Court
of Appeals at 2 years, 11 months, and 11 days of prision correccional. While the
minimum term in Criminal Case No. 98-77303 was increased by the Court of
Appeals to 4 years and 2 months of prision correccional, it is still within the range of
the penalty next lower to that prescribed by Section 315 of the Revised Penal Code.

The maximum term under the Indeterminate Sentence Law 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 4 years, 2 months, and 1 day to 5 years, 5 months, and 10
days; the medium period is from 5 years, 5 months, and 11 days to 6 years, 8
months, and 20 days; and the maximum period is from 6 years, 8 months, and 21
days to 8 years. Any incremental penalty (i.e., 1 year for every P10,000.00 in excess
of P22,000.) shall thus be added to anywhere from 6 years, 8 months, and 21 days to
8 years, at the discretion of the court, provided that the total penalty does not
exceed 20 years.58

In Criminal Case Nos. 98-77301 and 98-77302, the amounts of fraud were more
than P12,00.00 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., 5 years, 5 months, and 11 days to 6 years, 8
months, and 20 days). Thus, the maximum terms of 6 years, 8 months, and 20 days
actually imposed by the RTC and affirmed by the Court of Appeals in Criminal Case
Nos. 98-77301 and 98-77302 are proper.

As for determining the maximum term in Criminal Case No. 98-77303, we take into
consideration that the amount of fraud was P28,000.00. Since the amount of fraud
exceeded P22,000.00, the maximum term shall be taken from the maximum period
of the prescribed penalty, which is 6 years, 8 months, and 21 days to 8 years; but
since the amount of fraud exceeded P22,000.00 by only P6,000.00 (less than
P10,000.00), no incremental penalty shall be imposed. Considering that the
maximum term of 8 years fixed by the Court of Appeals in Criminal Case No. 98-
77303 is within the maximum period of the proscribed penalty, we see no reason
for disturbing the same.

WHEREFORE, we DENY the present appeal for lack of merit and AFFIRM the
Decision dated March 2, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00888,
affirming with modification the Decision dated April 17, 2000 of the Regional Trial
Court, Quezon City, Branch 104, in Criminal Case Nos. 98-77300 to 98-77303, to
read as follows:

1. In Criminal Case No. 98-77300, accused-appellant Rosario "Rose" Ochoa is found

guilty beyond reasonable doubt of illegal recruitment in large scale, constituting
economic sabotage, as defined and penalized in Section 6(l) and (m), in relation to
Section 7(b), of Republic Act No. 8042, and is sentenced to life imprisonment and a
fine of One Million Pesos (P1,000.000.00);

2. In Criminal Case No. 98-77301, accused-appellant Rosario "Rose" Ochoa is found

guilty beyond reasonable doubt of the crime of estafa, as defined and penalized in
Article 315, paragraph 2(a) of the Revised Penal Code, and is sentenced to an
indeterminate penalty of two (2) years, eleven (11) months, and eleven (11) days of
prision correccional, as minimum, to six (6) years, eight (8) months, and twenty (20)
days of prision mayor, as maximum, and to indemnify private complainant Robert
Gubat in the amount of Fifteen Thousand Pesos (P15,000.00) as actual damages;

3. In Criminal Case No. 98-77302, accused-appellant Rosario "Rose" Ochoa is found

guilty beyond reasonable doubt of the crime of estafa, as defined and penalized in
Article 315, paragraph 2(a) of the Revised Penal Code, and is sentenced to an
indeterminate penalty of two (2) years, eleven (11) months, and eleven (11) days of
prision correccional, as minimum, to six (6) years, eight (8) months, and twenty (20)
days of prision mayor, as maximum, and to indemnify private complainant Cesar
Aquino in the amount of Seventeen Thousand Pesos (P17,000.00); and

4. In Criminal Case No. 98-77303, accused-appellant Rosario "Rose" Ochoa is found

guilty beyond reasonable doubt of the crime of estafa, as defined and penalized in
Article 315, paragraph 2(a) of the Revised Penal Code, and is sentenced to an
indeterminate penalty of four (4) years and two (2) months of prision correccional,
as minimum, to eight (8) years of prision mayor, as maximum, and to indemnify
private complainant Junior Agustin in the amount of Twenty-Eight Thousand Pesos
(P28,000.00).

SO ORDERED.
G.R. No. 197528 September 5, 2012

PERT/CPM MANPOWER EXPONENT CO., INC., Petitioner,

vs.
ARMANDO A. VINUY A, LOUIE M. ORDOVEZ, ARSENIO S. LUMANTA,. JR.,
ROBELITO S. ANIPAN, VIRGILIO R. ALCANTARA, MARINO M. ERA, SANDY 0.
ENJAMBRE and NOEL T. LADEA, Respondents.

We resolve the present petition for review on certiorari1 assailing the decision2
dated May 9, 2011 and the resolution3dated June 23, 2011 of the Court of Appeals
(CA) in CA-G.R. SP No. 114353.

The Antecedents

On March 5, 2008, respondents Armando A. Vinuya, Louie M. Ordovez, Arsenio S.

Lumanta, Jr., Robelito S. Anipan, Virgilio R. Alcantara, Marino M. Era, Sandy O.
Enjambre and Noel T. Ladea (respondents) filed a complaint for illegal dismissal
against the petitioner Pert/CPM Manpower Exponent Co., Inc. (agency), and its
President Romeo P. Nacino.

The respondents alleged that the agency deployed them between March 29, 2007
and May 12, 2007 to work as aluminum fabricator/installer for the agencys
principal, Modern Metal Solution LLC/MMS Modern Metal Solution LLC (Modern
Metal) in Dubai, United Arab Emirates.

The respondents employment contracts,4 which were approved by the Philippine

Overseas Employment Administration (POEA), provided for a two-year
employment, nine hours a day, salary of 1,350 AED with overtime pay, food
allowance, free and suitable housing (four to a room), free transportation, free
laundry, and free medical and dental services. They each paid a P 15,000.00
processing fee.5

On April 2, 2007, Modern Metal gave the respondents, except Era, appointment
letters6 with terms different from those in the employment contracts which they
signed at the agencys office in the Philippines. Under the letters of appointment,
their employment was increased to three years at 1,000 to 1,200 AED and food
allowance of 200 AED.

The respondents claimed that they were shocked to find out what their working and
living conditions were in Dubai. They were required to work from 6:30 a.m. to 6:30
p.m., with a break of only one hour to one and a half hours. When they rendered
overtime work, they were most of the time either underpaid or not paid at all. Their
housing accommodations were cramped and were shared with 27 other occupants.
The lodging house was in Sharjah, which was far from their jobsite in Dubai, leaving
them only three to four hours of sleep a day because of the long hours of travel to
and from their place of work; there was no potable water and the air was polluted.
When the respondents received their first salaries (at the rates provided in their
appointment letters and with deductions for placement fees) and because of their
difficult living and working conditions, they called up the agency and complained
about their predicament. The agency assured them that their concerns would be
promptly addressed, but nothing happened.

On May 5, 2007, Modern Metal required the respondents to sign new employment
contracts,7 except for Era who was made to sign later. The contracts reflected the
terms of their appointment letters. Burdened by all the expenses and financial
obligations they incurred for their deployment, they were left with no choice but to
sign the contracts. They raised the matter with the agency, which again took no
action.

On August 5, 2007, despondent over their unbearable living and working conditions
and by the agencys inaction, the respondents expressed to Modern Metal their
desire to resign. Out of fear, as they put it, that Modern Metal would not give them
their salaries and release papers, the respondents, except Era, cited personal/family
problems for their resignation.8 Era mentioned the real reason "because I dont
(sic) want the company policy"9 for his resignation.

It took the agency several weeks to repatriate the respondents to the Philippines.
They all returned to Manila in September 2007. Except for Ordovez and Enjambre,
all the respondents shouldered their own airfare.

For its part, the agency countered that the respondents were not illegally dismissed;
they voluntarily resigned from their employment to seek a better paying job. It
claimed that the respondents, while still working for Modern Metal, applied with
another company which offered them a higher pay. Unfortunately, their supposed
employment failed to materialize and they had to go home because they had already
resigned from Modern Metal.

The agency further alleged that the respondents even voluntarily signed affidavits of
quitclaim and release after they resigned. It thus argued that their claim for benefits,
under Section 10 of Republic Act No. (R.A.) 8042, damages and attorneys fees is
unfounded.

The Compulsory Arbitration Rulings

On April 30, 2008, Labor Arbiter Ligerio V. Ancheta rendered a Decision10

dismissing the complaint, finding that the respondents voluntarily resigned from
their jobs. He also found that four of them Alcantara, Era, Anipan and Lumanta
even executed a compromise agreement (with quitclaim and release) before the
POEA. He considered the POEA recourse a case of forum shopping.
The respondents appealed to the National Labor Relations Commission (NLRC).
They argued that the labor arbiter committed serious errors in (1) admitting in
evidence the quitclaims and releases they executed in Dubai, which were mere
photocopies of the originals and which failed to explain the circumstances behind
their execution; (2) failing to consider that the compromise agreements they signed
before the POEA covered only the refund of their airfare and not all their money
claims; and (3) ruling that they violated the rule on non-forum shopping.

On May 12, 2009, the NLRC granted the appeal.11 It ruled that the respondents had
been illegally dismissed. It anchored its ruling on the new employment contracts
they were made to sign in Dubai. It stressed that it is illegal for an employer to
require its employees to execute new employment papers, especially those which
provide benefits that are inferior to the POEA-approved contracts.

The NLRC rejected the quitclaim and release executed by the respondents in Dubai.
It believed that the respondents executed the quitclaim documents under duress as
they were afraid that they would not be allowed to return to the Philippines if they
did not sign the documents. Further, the labor tribunal disagreed with the labor
arbiters opinion that the compromise agreement they executed before the POEA
had effectively foreclosed the illegal dismissal complaint before the NLRC and that
the respondents had been guilty of forum shopping. It pointed out that the POEA
case involved pre-deployment issues; whereas, the complaint before the NLRC is
one for illegal dismissal and money claims arising from employment.

The agency moved for reconsideration, contending that the appeal was never
perfected and that the NLRC gravely abused its discretion in reversing the labor
arbiters decision.The respondents, on the other hand, moved for partial
reconsideration, maintaining that their salaries should have covered the unexpired
portion of their employment contracts, pursuant to the Courts ruling in Serrano v.
Gallant Maritime Services, Inc.13

The NLRC denied the agencys motion for reconsideration, but granted the
respondents motion.14 It sustained the respondents argument that the award
needed to be adjusted, particularly in relation to the payment of their salaries,
consistent with the Courts ruling in Serrano. The ruling declared unconstitutional
the clause, "or for three (3) months for every year of the unexpired term, whichever
is less," in Section 10, paragraph 5, of R.A. 8042, limiting the entitlement of illegally
dismissed overseas Filipino workers to their salaries for the unexpired term of their
contract or three months, whichever is less.

Again, the agency moved for reconsideration, reiterating its earlier arguments and,
additionally, questioning the application of the Serrano ruling in the case because it
was not yet final and executory. The NLRC denied the motion, prompting the agency
to seek recourse from the CA through a petition for certiorari.

The CA Decision
The CA dismissed the petition for lack of merit.16 It upheld the NLRC ruling that the
respondents were illegally dismissed. It found no grave abuse of discretion in the
NLRCs rejection of the respondents resignation letters, and the accompanying
quitclaim and release affidavits, as proof of their voluntary termination of
employment.

The CA stressed that the filing of a complaint for illegal dismissal is inconsistent
with resignation. Moreover, it found nothing in the records to substantiate the
agencys contention that the respondents resignation was of their own accord; on
the contrary, it considered the resignation letters "dubious for having been
lopsidedly-worded to ensure that the petitioners (employers) are free from any
liability."17

The appellate court likewise refused to give credit to the compromise agreements
that the respondents executed before the POEA. It agreed with the NLRCs
conclusion that the agreements pertain to the respondents charge of recruitment
violations against the agency distinct from their illegal dismissal complaint, thus
negating forum shopping by the respondents.

Lastly, the CA found nothing legally wrong in the NLRC correcting itself (upon being
reminded by the respondents), by adjusting the respondents salary award on the
basis of the unexpired portion of their contracts, as enunciated in the Serrano case.

The agency moved for, but failed to secure, a reconsideration of the CA decision.18

The Petition

The agency is now before the Court seeking a reversal of the CA dispositions,
contending that the CA erred in:

1. affirming the NLRCs finding that the respondents were illegally dismissed;

2. holding that the compromise agreements before the POEA pertain only to the
respondents charge of recruitment violations against the agency; and

3. affirming the NLRCs award to the respondents of their salaries for the unexpired
portion of their employment contracts, pursuant to the Serrano ruling.

The agency insists that it is not liable for illegal dismissal, actual or constructive. It
submits that as correctly found by the labor arbiter, the respondents voluntarily
resigned from their jobs, and even executed affidavits of quitclaim and release; the
respondents stated family concerns for their resignation. The agency posits that the
letters were duly proven as they were written unconditionally by the respondents.
It, therefore, assails the conclusion that the respondents resigned under duress or
that the resignation letters were dubious.
The agency raises the same argument with respect to the compromise agreements,
with quitclaim and release, it entered into with Vinuya, Era, Ladea, Enjambre,
Ordovez, Alcantara, Anipan and Lumanta before the POEA, although it submitted
evidence only for six of them. Anipan, Lumanta, Vinuya and Ladea signing one
document;19 Era20 and Alcantara21 signing a document each. It points out that the
agreement was prepared with the assistance of POEA Conciliator Judy Santillan, and
was duly and freely signed by the respondents; moreover, the agreement is not
conditional as it pertains to all issues involved in the dispute between the parties.

On the third issue, the agency posits that the Serrano ruling has no application in the
present case for three reasons. First, the respondents were not illegally dismissed
and, therefore, were not entitled to their money claims. Second, the respondents
filed the complaint in 2007, while the Serrano ruling came out on March 24, 2009.
The ruling cannot be given retroactive application. Third, R.A. 10022, which was
enacted on March 8, 2010 and which amended R.A. 8042, restored the subject clause
in Section 10 of R.A. 8042, declared unconstitutional by the Court.

The Respondents Position

In their Comment (to the Petition) dated September 28, 2011,22 the respondents
ask the Court to deny the petition for lack of merit. They dispute the agencys
insistence that they resigned voluntarily. They stand firm on their submission that
because of their unbearable living and working conditions in Dubai, they were left
with no choice but to resign. Also, the agency never refuted their detailed narration
of the reasons for giving up their employment.

The respondents maintain that the quitclaim and release affidavits,23 which the
agency presented, betray its desperate attempt to escape its liability to them. They
point out that, as found by the NLRC, the affidavits are ready-made documents; for
instance, in Lumantas24 and Eras25 affidavits, they mentioned a certain G & A
International Manpower as the agency which recruited them a fact totally
inapplicable to all the respondents. They contend that they had no choice but to sign
the documents; otherwise, their release papers and remaining salaries would not be
given to them, a submission which the agency never refuted.

On the agencys second line of defense, the compromise agreement (with quitclaim
and release) between the respondents and the agency before the POEA, the
respondents argue that the agreements pertain only to their charge of recruitment
violations against the agency. They add that based on the agreements, read and
considered entirely, the agency was discharged only with respect to the recruitment
and pre-deployment issues such as excessive placement fees, non-issuance of
receipts and placement misrepresentation, but not with respect to post-deployment
issues such as illegal dismissal, breach of contract, underpayment of salaries and
underpayment and nonpayment of overtime pay. The respondents stress that the
agency failed to controvert their contention that the agreements came about only to
settle their claim for refund of their airfare which they paid for when they were
repatriated.

Lastly, the respondents maintain that since they were illegally dismissed, the CA was
correct in upholding the NLRCs award of their salaries for the unexpired portion of
their employment contracts, as enunciated in Serrano. They point out that the
Serrano ruling is curative and remedial in nature and, as such, should be given
retroactive application as the Court declared in Yap v. Thenamaris Ships
Management.26 Further, the respondents take exception to the agencys contention
that the Serrano ruling cannot, in any event, be applied in the present case in view of
the enactment of R.A. 10022 on March 8, 2010, amending Section 10 of R.A. 8042.
The amendment restored the subject clause in paragraph 5, Section 10 of R.A. 8042
which was struck down as unconstitutional in Serrano.

The respondents maintain that the agency cannot raise the issue for the first time
before this Court when it could have raised it before the CA with its petition for
certiorari which it filed on June 8, 2010;27 otherwise, their right to due process will
be violated. The agency, on the other hand, would later claim that it is not barred by
estoppel with respect to its reliance on R.A. 10022 as it raised it before the CA in CA-
G.R. SP No. 114353.28 They further argue that RA 10022 cannot be applied in their
case, as the law is an amendatory statute which is, as a rule, prospective in
application, unless the contrary is provided.29 To put the issue to rest, the
respondents ask the Court to also declare unconstitutional Section 7 of R.A. 10022.

Finally, the respondents submit that the petition should be dismissed outright for
raising only questions of fact, rather than of law.

The Courts Ruling

The procedural question

We deem it proper to examine the facts of the case on account of the divergence in
the factual conclusions of the labor arbiter on the one hand, and, of the NLRC and
the CA, on the other.30 The arbiter found no illegal dismissal in the respondents
loss of employment in Dubai because they voluntarily resigned; whereas, the NLRC
and the CA adjudged them to have been illegally dismissed because they were
virtually forced to resign.

The merits of the case

We find no merit in the petition. The CA committed no reversible error and neither
did it commit grave abuse of discretion in affirming the NLRCs illegal dismissal
ruling.

The agency and its principal, Modern Metal, committed flagrant violations of the law
on overseas employment, as well as basic norms of decency and fair play in an
employment relationship, pushing the respondents to look for a better employment
and, ultimately, to resign from their jobs.

First. The agency and Modern Metal are guilty of contract substitution. The
respondents entered into a POEA-approved two-year employment contract,31 with
Modern Metal providing among others, as earlier discussed, for a monthly salary of
1350 AED. On April 2, 2007, Modern Metal issued to them appointment letters32
whereby the respondents were hired for a longer three-year period and a reduced
salary, from 1,100 AED to 1,200 AED, among other provisions. Then, on May 5,
2007, they were required to sign new employment contracts33 reflecting the same
terms contained in their appointment letters, except that this time, they were hired
as "ordinary laborer," no longer aluminum fabricator/installer. The respondents
complained with the agency about the contract substitution, but the agency refused
or failed to act on the matter.

The fact that the respondents contracts were altered or substituted at the
workplace had never been denied by the agency.1wphi1 On the contrary, it
admitted that the contract substitution did happen when it argued, "as to their claim
for underpayment of salary, their original contract mentioned 1350 AED monthly
salary, which includes allowance while in their Appointment Letters, they were
supposed to receive 1,300 AED. While there was a difference of 50 AED monthly, the
same could no longer be claimed by virtue of their Affidavits of Quitclaims and
Desistance."34

Clearly, the agency and Modern Metal committed a prohibited practice and engaged
in illegal recruitment under the law. Article 34 of the Labor Code provides:

Art. 34. Prohibited Practices. It shall be unlawful for any individual, entity, licensee,
or holder of authority:

xxxx

(i) To substitute or alter employment contracts approved and verified by the

Department of Labor from the time of actual signing thereof by the parties up to and
including the periods of expiration of the same without the approval of the
Secretary of Labor.

Further, Article 38 of the Labor Code, as amended by R.A. 8042,35 defined "illegal
recruitment" to include the following act:

(i) To substitute or alter to the prejudice of the worker, employment contracts

approved and verified by the Department of Labor and Employment from the time
of actual signing thereof by the parties up to and including the period of the
expiration of the same without the approval of the Department of Labor and
Employment.
Second. The agency and Modern Metal committed breach of contract. Aggravating
the contract substitution imposed upon them by their employer, the respondents
were made to suffer substandard (shocking, as they put it) working and living
arrangements. Both the original contracts the respondents signed in the Philippines
and the appointment letters issued to them by Modern Metal in Dubai provided for
free housing and transportation to and from the jobsite. The original contract
mentioned free and suitable housing.36 Although no description of the housing was
made in the letters of appointment except: "Accommodation: Provided by the
company," it is but reasonable to think that the housing or accommodation would be
"suitable."

As earlier pointed out, the respondents were made to work from 6:30 a.m. to 6:30
p.m., with a meal break of one to one and a half hours, and their overtime work was
mostly not paid or underpaid. Their living quarters were cramped as they shared
them with 27 other workers. The lodging house was in Sharjah, far from the jobsite
in Dubai, leaving them only three to four hours of sleep every workday because of
the long hours of travel to and from their place of work, not to mention that there
was no potable water in the lodging house which was located in an area where the
air was polluted. The respondents complained with the agency about the hardships
that they were suffering, but the agency failed to act on their reports. Significantly,
the agency failed to refute their claim, anchored on the ordeal that they went
through while in Modern Metals employ.

Third. With their original contracts substituted and their oppressive working and
living conditions unmitigated or unresolved, the respondents decision to resign is
not surprising. They were compelled by the dismal state of their employment to give
up their jobs; effectively, they were constructively dismissed. A constructive
dismissal or discharge is "a quitting because continued employment is rendered
impossible, unreasonable or unlikely, as, an offer involving a demotion in rank and a
diminution in pay."37

Without doubt, the respondents continued employment with Modern Metal had
become unreasonable. A reasonable mind would not approve of a substituted
contract that pays a diminished salary from 1350 AED a month in the original
contract to 1,000 AED to 1,200 AED in the appointment letters, a difference of 150
AED to 250 AED (not just 50 AED as the agency claimed) or an extended
employment (from 2 to 3 years) at such inferior terms, or a "free and suitable"
housing which is hours away from the job site, cramped and crowded, without
potable water and exposed to air pollution.

We thus cannot accept the agencys insistence that the respondents voluntarily
resigned since they personally prepared their resignation letters38 in their own
handwriting, citing family problems as their common ground for resigning. As the
CA did, we find the resignation letters "dubious,"39 not only for having been
lopsidedly worded to ensure that the employer is rendered free from any liability,
but also for the odd coincidence that all the respondents had, at the same time, been
confronted with urgent family problems so that they had to give up their
employment and go home. The truth, as the respondents maintain, is that they cited
family problems as reason out of fear that Modern Metal would not give them their
salaries and their release papers. Only Era was bold enough to say the real reason
for his resignation to protest company policy.

We likewise find the affidavits40of quitclaim and release which the respondents
executed suspect. Obviously, the affidavits were prepared as a follow through of the
respondents supposed voluntary resignation. Unlike the resignation letters, the
respondents had no hand in the preparation of the affidavits. They must have been
prepared by a representative of Modern Metal as they appear to come from a
standard form and were apparently introduced for only one purpose to lend
credence to the resignation letters. In Modern Metals haste, however, to secure the
respondents affidavits, they did not check on the model they used. Thus, Lumantas
affidavit41 mentioned a G & A International Manpower as his recruiting agency, an
entity totally unknown to the respondents; the same thing is true for Eras
affidavit.42 This confusion is an indication of the employers hurried attempt to
avoid liability to the respondents.

The respondents position is well-founded. The NLRC itself had the same
impression, which we find in order and hereunder quote:

The acts of respondents of requiring the signing of new contracts upon reaching the
place of work and requiring employees to sign quitclaims before they are paid and
repatriated to the Philippines are all too familiar stories of despicable labor
practices which our employees are subjected to abroad. While it is true that
quitclaims are generally given weight, however, given the facts of the case, We are of
the opinion that the complainants-appellants executed the same under duress and
fear that they will not be allowed to return to the Philippines.43

Fourth. The compromise agreements (with quitclaim and release)44 between the
respondents and the agency before the POEA did not foreclose their employer-
employee relationship claims before the NLRC. The respondents, except Ordovez
and Enjambre, aver in this respect that they all paid for their own airfare when they
returned home45 and that the compromise agreements settled only their claim for
refund of their airfare, but not their other claims.46 Again, this submission has not
been refuted or denied by the agency.

On the surface, the compromise agreements appear to confirm the agencys position,
yet a closer examination of the documents would reveal their true nature. Copy of
the compromise agreement is a standard POEA document, prepared in advance and
readily made available to parties who are involved in disputes before the agency,
such as what the respondents filed with the POEA ahead (filed in 2007) of the illegal
dismissal complaint before the NLRC (filed on March 5, 2008).
Under the heading "Post-Deployment," the agency agreed to pay Era47 and
Alcantara48 P 12,000.00 each, purportedly in satisfaction of the respondents claims
arising from overseas employment, consisting of unpaid salaries, salary differentials
and other benefits, including money claims with the NLRC. The last document was
signed by (1) Anipan, (2) Lumanta, (3) Ladea, (4) Vinuya, (5) Jonathan Nangolinola,
and (6) Zosimo Gatchalian (the last four signing on the left hand side of the
document; the last two were not among those who filed the illegal dismissal
complaint).49

The agency agreed to pay them a total of P 72,000.00. Although there was no
breakdown of the entitlement for each of the six, but guided by the compromise
agreement signed by Era and Alcantara, we believe that the agency paid them P
12,000.00 each, just like Era and Alcantara.

The uniform insubstantial amount for each of the signatories to the agreement lends
credence to their contention that the settlement pertained only to their claim for
refund of the airfare which they shouldered when they returned to the Philippines.
The compromise agreement, apparently, was intended by the agency as a settlement
with the respondents and others with similar claims, which explains the inclusion of
the two (Nangolinola and Gatchalian) who were not involved in the case with the
NLRC. Under the circumstances, we cannot see how the compromise agreements
can be considered to have fully settled the respondents claims before the NLRC
illegal dismissal and monetary benefits arising from employment. We thus find no
reversible error nor grave abuse of discretion in the rejection by the NLRC and the
CA of said agreements.

Fifth. The agencys objection to the application of the Serrano ruling in the present
case is of no moment. Its argument that the ruling cannot be given retroactive effect,
because it is curative and remedial, is untenable. It points out, in this respect, that
the respondents filed the complaint in 2007, while the Serrano ruling was handed
down in March 2009. The issue, as the respondents correctly argue, has been
resolved in Yap v. Thenamaris Ships Management,50 where the Court sustained the
retroactive application of the Serrano ruling which declared unconstitutional the
subject clause in Section 10, paragraph 5 of R.A. 8042, limiting to three months the
payment of salaries to illegally dismissed Overseas Filipino Workers.

Undaunted, the agency posits that in any event, the Serrano ruling has been nullified
by R.A. No. 10022, entitled "An Act Amending Republic Act No. 8042, Otherwise
Known as the Migrant Workers and Overseas Filipinos Act of 1995, As Amended,
Further Improving the Standard of Protection and Promotion of the Welfare of
Migrant Workers, Their Families and Overseas Filipinos in Distress, and For Other
Purposes."51 It argues that R.A. 10022, which lapsed into law (without the
Signature of the President) on March 8, 2010, restored the subject clause in the 5th
paragraph, Section 10 of R.A. 8042. The amendment, contained in Section 7 of R.A.
10022, reads as follows:
In case of termination of overseas employment without just, valid or authorized
cause as defined by law or contract, or any unauthorized deductions from the
migrant workers salary, the worker shall be entitled to the full reimbursement "of"
his placement fee and the deductions made with interest at 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.52
(emphasis ours)

This argument fails to persuade us. Laws shall have no retroactive effect, unless the
contrary is provided.53 By its very nature, the amendment introduced by R.A.
10022 restoring a provision of R.A. 8042 declared unconstitutional cannot be
given retroactive effect, not only because there is no express declaration of
retroactivity in the law, but because retroactive application will result in an
impairment of a right that had accrued to the respondents by virtue of the Serrano
ruling - entitlement to their salaries for the unexpired portion of their employment
contracts.

All statutes are to be construed as having only a prospective application, unless the
purpose and intention of the legislature to give them a retrospective effect are
expressly declared or are necessarily implied from the language used.54 We thus
see no reason to nullity the application of the Serrano ruling in the present case.
Whether or not R.A. 1 0022 is constitutional is not for us to rule upon in the present
case as this is an issue that is not squarely before us. In other words, this is an issue
that awaits its proper day in court; in the meanwhile, we make no pronouncement
on it.

WHEREFORE, premises considered, the petition is DENIED. The assailed Decision

dated May 9, 2011 and the Resolution dated June 23, 2011 of the Court of Appeals in
CA-G.R. SP No. 114353 are AFFIRMED. Let this Decision be brought to the attention
of the Honorable Secretary of Labor and Employment and the Administrator of the
Philippine Overseas Employment Administration as a black mark in the deployment
record of petitioner Pert/CPM Manpower Exponent Co., Inc., and as a record that
should be considered in any similar future violations.

Costs against the petitioner.

SO ORDERED.
G.R. No. 173198, June 01, 2011

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DOLORES OCDEN,

ACCUSED-APPELLANT.

For Our consideration is an appeal from the Decision[1] dated April 21, 2006 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00044, which affirmed with modification
the Decision[2] dated July 2, 2001 of the Regional Trial Court (RTC), Baguio City,
Branch 60, in Criminal Case No. 16315-R. The RTC found accused-appellant Dolores
Ocden (Ocden) guilty of illegal recruitment in large scale, as defined and penalized
under Article 13(b), in relation to Articles 38(b), 34, and 39 of Presidential Decree
No. 442, otherwise known as the New Labor Code of the Philippines, as amended, in
Criminal Case No. 16315-R; and of the crime of estafa under paragraph 2(a), Article
315 of the Revised Penal Code, in Criminal Case Nos. 16316-R, 16318-R, and 16964-
R.[3] The Court of Appeals affirmed Ocden's conviction in all four cases, but
modified the penalties imposed in Criminal Case Nos. 16316-R, 16318-R, and
16964-R,

The Amended Information[4] for illegal recruitment in large scale in Criminal Case
No. 16315-R reads:

That during the period from May to December, 1998, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously for a fee, recruit and
promise employment as factory workers in Italy to more than three (3) persons
including, but not limited to the following: JEFFRIES C. GOLIDAN, HOWARD C.
GOLIDAN, KAREN M. SIMEON, JEAN S. MAXIMO, NORMA PEDRO, MARYLYN MANA-
A, RIZALINA FERRER, and MILAN DARING without said accused having first secured
the necessary license or authority from the Department of Labor and Employment.

Ocden was originally charged with six counts of estafa in Criminal Case Nos. 16316-
R, 16318-R, 16350-R, 16369-R, 16964-R, and 16966-R.

The Information in Criminal Case No. 16316-R states:

That sometime during the period from October to December, 1998 in the City of
Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously defraud
JEFFRIES C. GOLIDAN, by way of false pretenses, which are executed prior to or
simultaneous with the commission of the fraud, as follows, to wit: the accused
knowing fully well that she is not (sic) authorized job recruiter for persons
intending to secure work abroad convinced said Jeffries C. Golidan and pretended
that she could secure a job for him/her abroad, for and in consideration of the sum
of P70,000.00 when in truth and in fact they could not; the said Jeffries C. Golidan
deceived and convinced by the false pretenses employed by the accused parted
away the total sum of P70,000.00, in favor of the accused, to the damage and
prejudice of the said Jeffries C. Golidan in the aforementioned amount of SEVENTY
THOUSAND PESOS (P70,000,00), Philippine Currency.[5]

The Informations in the five other cases for estafa contain substantially the same
allegations as the one above-quoted, except for the private complainants' names, the
date of commission of the offense, and the amounts defrauded, to wit:

Case No.
Name of the
Private Complainant
Date of Commission of
the Offense
Amount
Defrauded
16318-R
Howard C. Golidan
Sometime during the period from October to December 1998
P70,000.00
16350-R
Norma Pedro
Sometime in May, 1998
P65,000.00
16369-R
Milan O. Daring
Sometime during the period from November 13, 1998 to December 10, 1998
P70.000.00
16964-R
Rizalina Ferrer
Sometime in September
P70,000.00
16966-R
Marilyn Mana-a
Sometime in September 1998
P70,000.00[6]

All seven cases against Ocden were consolidated on July 31, 2000 and were tried
jointly after Ocden pleaded not guilty.

The prosecution presented three witnesses namely: Marilyn Mana-a (Mana-a) and
Rizalina Ferrer (Ferrer), complainants; and Julia Golidan (Golidan), mother of
complainants Jeffries and Howard Golidan.

Mana-a testified that sometime in the second week of August 1998, she and Isabel
Dao-as (Dao-as) went to Ocden's house in Baguio City to apply for work as factory
workers in Italy with monthly salaries of US$1,200.00. They were required by Ocden
to submit their bio-data and passports, pay the placement fee of P70,000.00, and to
undergo medical examination.

Upon submitting her bio-data and passport, Mana-a paid Ocden P500.00 for her
certificate of employment and P20,000.00 as down payment for her placement fee.
On September 8, 1998, Ocden accompanied Mana-a and 20 other applicants to
Zamora Medical Clinic in Manila for their medical examinations, for which each of
the applicants paid P3,000.00. Mana-a also paid to Ocden P22,000.00 as the second
installment on her placement fee. When Josephine Lawanag (Lawanag), Mana-a's
sister, withdrew her application, Lawanag's P15,000.00 placement fee, already paid
to Ocden, was credited to Mana-a.[7]

Mana-a failed to complete her testimony, but the RTC considered the same as no
motion to strike the said testimony was filed.

Ferrer narrated that she and her daughter Jennilyn were interested to work
overseas. About the second week of September 1998, they approached Ocden
through Fely Alipio (Alipio). Ocden showed Ferrer and Jennilyn a copy of a job order
from Italy for factory workers who could earn as much as $90,000.00 to
$100,000.00.[8] In the first week of October 1998, Ferrer and Jennilyn decided to
apply for work, so they submitted their passports and pictures to Ocden. Ferrer also
went to Manila for medical examination, for which she spent P3,500.00. Ferrer paid
to Ocden on November 20, 1998 the initial amount of P20,000.00, and on December
8, 1998 the balance of her and Jennilyn's placement fees. All in all, Ferrer paid
Ocden P140,000.00, as evidenced by the receipts issued by Ocden.[9]

Ferrer, Jennilyn, and Alipio were supposed to be included in the first batch of
workers to be sent to Italy. Their flight was scheduled on December 10, 1998. In
preparation for their flight to Italy, the three proceeded to Manila. In Manila, they
were introduced by Ocden to Erlinda Ramos (Ramos). Ocden and Ramos then
accompanied Ferrer, Jennilyn, and Alipio to the airport where they took a flight to
Zamboanga. Ocden explained to Ferrer, Jennilyn, and Alipio that they would be
transported to Malaysia where their visa application for Italy would be processed.

Sensing that they were being fooled, Ferrer and Jennilyn decided to get a refund of
their money, but Ocden was nowhere to be found. Ferrer would later learn from the
Baguio office of the Philippine Overseas Employment Administration (POEA) that
Ocden was not a licensed recruiter.

Expecting a job overseas, Ferrer took a leave of absence from her work. Thus, she
lost income amounting to P17,700.00, equivalent to her salary for one and a half
months. She also spent P30,000.00 for transportation and food expenses.[10]

According to Golidan, the prosecution's third witness, sometime in October 1998,

she inquired from Ocden about the latter's overseas recruitment. Ocden informed
Golidan that the placement fee was P70,000.00 for each applicant, that the accepted
applicants would be sent by batches overseas, and that priority would be given to
those who paid their placement fees early. On October 30, 1998, Golidan brought
her sons, Jeffries and Howard, to Ocden. On the same date, Jeffries and Howard
handed over to Ocden their passports and P40,000.00 as down payment on their
placement fees. On December 10, 1998, Jeffries and Howard paid the balance of
their placement fees amounting to P100,000.00. Ocden issued receipts for these
two payments.[11] Ocden then informed Golidan that the first batch of accepted
applicants had already left, and that Jeffries would be included in the second batch
for deployment, while Howard in the third batch.

In anticipation of their deployment to Italy, Jeffries and Howard left for Manila on
December 12, 1998 and December 18, 1998, respectively. Through a telephone call,
Jeffries informed Golidan that his flight to Italy was scheduled on December 16,
1998. However, Golidan was surprised to again receive a telephone call from
Jeffries saying that his flight to Italy was delayed due to insufficiency of funds, and
that Ocden went back to Baguio City to look for additional funds. When Golidan
went to see Ocden, Ocden was about to leave for Manila so she could be there in
time for the scheduled flights of Jeffries and Howard.

On December 19, 1998, Golidan received another telephone call from Jeffries who
was in Zamboanga with the other applicants. Jeffries informed Golidan that he was
stranded in Zamboanga because Ramos did not give him his passport. Ramos was
the one who briefed the overseas job applicants in Baguio City sometime in
November 1998. Jeffries instructed Golidan to ask Ocden's help in looking for
Ramos. Golidan, however, could not find Ocden in Baguio City.

On December 21, 1998, Golidan, with the other applicants, Mana-a and Dao-as, went
to Manila to meet Ocden. When Golidan asked why Jeffries was in Zamboanga,
Ocden replied that it would be easier for Jeffries and the other applicants to acquire
their visas to Italy in Zamboanga. Ocden was also able to contact Ramos, who
assured Golidan that Jeffries would be able to get his passport. When Golidan went
back home to Baguio City, she learned through a telephone call from Jeffries that
Howard was now likewise stranded in Zamboanga.

By January 1999, Jeffries and Howard were still in Zamboanga. Jeffries refused to
accede to Golidan's prodding for him and Howard to go home, saying that the
recruiters were already working out the release of the funds for the applicants to get
to Italy. Golidan went to Ocden, and the latter told her not to worry as her sons
would already be flying to Italy because the same factory owner in Italy, looking for
workers, undertook to shoulder the applicants' travel expenses. Yet, Jeffries called
Golidan once more telling her that he and the other applicants were still in
Zamboanga.

Golidan went to Ocden's residence. This time, Ocden's husband gave Golidan
P23,000.00 which the latter could use to fetch the applicants, including Jeffries and
Howard, who were stranded in Zamboanga. Golidan traveled again to Manila with
Mana-a and Dao-as. When they saw each other, Golidan informed Ocden regarding
the P23,000.00 which the latter's husband gave to her. Ocden begged Golidan to
give her the money because she needed it badly. Of the P23,000.00, Golidan retained
P10,000.00, Dao-as received P3,000.00, and Ocden got the rest. Jeffries was able to
return to Manila on January 16, 1999. Howard and five other applicants,
accompanied by Ocden, also arrived in Manila five days later.

Thereafter, Golidan and her sons went to Ocden's residence to ask for a refund of
the money they had paid to Ocden. Ocden was able to return only P50,000.00.
Thus, out of the total amount of P140,000.00 Golidan and her sons paid to Ocden,
they were only able to get back the sum of P60,000.00. After all that had happened,
Golidan and her sons went to the Baguio office of the POEA, where they discovered
that Ocden was not a licensed recruiter.[12]

The defense presented the testimony of Ocden herself.

Ocden denied recruiting private complainants and claimed that she was also an
applicant for an overseas job in Italy, just like them. Ocden identified Ramos as the
recruiter.

Ocden recounted that she met Ramos at a seminar held in St. Theresa's Compound,
Navy Base, Baguio City, sometime in June 1998. The seminar was arranged by Aida
Comila (Comila), Ramos's sub-agent. The seminar was attended by about 60
applicants, including Golidan. Ramos explained how one could apply as worker in a
stuff toys factory in Italy. After the seminar, Comila introduced Ocden to Ramos.
Ocden decided to apply for the overseas job, so she gave her passport and pictures
to Ramos. Ocden also underwent medical examination at Zamora Medical Clinic in
Manila, and completely submitted the required documents to Ramos in September
1998.

After the seminar, many people went to Ocden's house to inquire about the jobs
available in Italy. Since most of these people did not attend the seminar, Ocden
asked Ramos to conduct a seminar at Ocden's house. Two seminars were held at
Ocden's house, one in September and another in December 1998. After said
seminars, Ramos designated Ocden as leader of the applicants. As such, Ocden
received her co-applicants' applications and documents; accompanied her co-
applicants to Manila for medical examination because she knew the location of
Zamora Medical Clinic; and accepted placement fees in the amount of P70,000.00
each from Mana-a and Ferrer and from Golidan, the amount of P140,000.00 (for
Jeffries and Howard).

Ramos instructed Ocden that the applicants should each pay P250,000.00 and if the
applicants could not pay the full amount, they would have to pay the balance
through salary deductions once they start working in Italy. Ocden herself paid
Ramos P50,000.00 as placement fee and executed a promissory note in Ramos's
favor for the balance, just like any other applicant who failed to pay the full amount.
Ocden went to Malaysia with Ramos's male friend but she failed to get her visa for
Italy.

Ocden denied deceiving Mana-a and Ferrer. Ocden alleged that she turned over to
Ramos the money Mana-a and Ferrer gave her, although she did not indicate in the
receipts she issued that she received the money for and on behalf of Ramos.

Ocden pointed out that she and some of her co-applicants already filed a complaint
against Ramos before the National Bureau of Investigation (NBI) offices in
Zamboanga City and Manila.[13]

On July 2, 2001, the RTC rendered a Decision finding Ocden guilty beyond
reasonable doubt of the crimes of illegal recruitment in large scale (Criminal Case
No. 16315-R) and three counts of estafa (Criminal Case Nos. 16316-R, 16318-R, and
16964-R). The dispositive portion of said decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Case No. 16315-R, the Court finds the accused, DOLORES OCDEN,
GUILTY beyond reasonable doubt of the crime of Illegal Recruitment committed in
large scale as defined and penalized under Article 13(b) in relation to Article 38(b),
34 and 39 of the Labor Code as amended by P.D. Nos. 1693, 1920, 2018 and R.A.
8042. She is hereby sentenced to suffer the penalty of life imprisonment and to pay
a fine of P100,000.00;

2. In Criminal Case No. 16316-R, the Court finds the accused, DOLORES OCDEN,
GUILTY beyond reasonable doubt of the crime of estafa and sentences her to suffer
an indeterminate penalty ranging from two (2) years, eleven (11) months and ten
(10) days of prision correccional, as minimum, up to nine (9) years and nine (9)
months of prision mayor, as maximum, and to indemnify the complainant Jeffries
Golidan the amount of P40,000.00;

3. In Criminal Case No. 16318-R, the Court finds the accused, DOLORES OCDEN,
GUILTY beyond reasonable doubt of the crime of estafa and sentences her to suffer
an indeterminate penalty ranging from two (2) years, eleven (11) months and ten
(10) days of prision correccional, as minimum, up to nine (9) years and nine (9)
months of prision mayor, as maximum, and to indemnify Howard Golidan the
amount of P40,000.00;

4. In Criminal Case No. 16350-R, the Court finds the accused, DOLORES OCDEN, NOT
GUILTY of the crime of estafa for lack of evidence and a verdict of acquittal is
entered in her favor;

5. In Criminal Case No. 16369-R, the Court finds the accused, DOLORES OCDEN, NOT
GUILTY of the crime of estafa for lack of evidence and a verdict of acquittal is hereby
entered in her favor;
6. In Criminal Case No. 16964-R, the Court finds the accused, DOLORES OCDEN,
GUILTY beyond reasonable doubt of the crime of estafa and sentences her to suffer
an indeterminate penalty of Four (4) years and Two (2) months of prision
correccional, as minimum, up to Twelve (12) years and Nine (9) months of reclusion
temporal, as maximum, and to indemnify Rizalina Ferrer the amount of P70,000.00;
and

7. In Criminal Case No. 16966-R, the Court finds the accused, DOLORES OCDEN, NOT
GUILTY of the crime of estafa for insufficiency of evidence and a verdict of acquittal
is hereby entered in her favor.

In the service of her sentence, the provisions of Article 70 of the Penal Code shall be
observed.[14]

Aggrieved by the above decision, Ocden filed with the RTC a Notice of Appeal on
August 15, 2001.[15] The RTC erroneously sent the records of the cases to the
Court of Appeals, which, in turn, correctly forwarded the said records to us.

In our Resolution[16] dated May 6, 2002, we accepted the appeal and required the
parties to file their respective briefs. In the same resolution, we directed the
Superintendent of the Correctional Institute for Women to confirm Ocden's
detention thereat.

Ocden filed her Appellant's Brief on August 15, 2003,[17] while the People, through
the Office of the Solicitor General, filed its Appellee's Brief on January 5, 2004.[18]

Pursuant to our ruling in People v. Mateo,[19] we transferred Ocden's appeal to the

Court of Appeals. On April 21, 2006, the appellate court promulgated its Decision,
affirming Ocden's conviction but modifying the penalties imposed upon her for the
three counts of estafa, viz:

[T]he trial court erred in the imposition of accused-appellant's penalty.

Pursuant to Article 315 of the RPC, the penalty for estafa is prision correccional in
its maximum period to prision mayor in its minimum period. If the amount of the
fraud exceeds P22,000.00, the penalty provided shall be imposed in its maximum
period (6 years, 8 months and 21 days to 8 years), adding 1 year for each additional
P10,000.00; but the total penalty which may be imposed shall not exceed 20 years.

Criminal Case Nos. 16316-R and 16318-R involve the amount of P40,000.00 each.
Considering that P18,000.00 is the excess amount, only 1 year should be added to
the penalty in its maximum period or 9 years. Also, in Criminal Case No. 16964-R,
the amount involved is P70,000.00. Thus, the excess amount is P48,000.00 and only
4 years should be added to the penalty in its maximum period.
WHEREFORE, the instant appeal is DISMISSED. The assailed Decision, dated 02 July
2001, of the Regional Trial Court (RTC) of Baguio City, Branch 60 is hereby
AFFIRMED with the following MODIFICATIONS:

In Criminal Case No. 16316-R, accused-appellant is sentenced to 2 years, 11 months,

and 10 days of prision correccional, as minimum to 9 years of prision mayor, as
maximum and to indemnify Jeffries Golidan the amount of P40,000.00;

In Criminal Case No. 16318-R, accused-appellant is sentenced to 2 years, 11 months,

and 10 days of prision correccional, as minimum to 9 years of prision mayor, as
maximum and to indemnify Howard Golidan the amount of P40,000.00; and

In Criminal Case No. 16964-R, accused-appellant is sentenced to 4 years and 2

months of prision correccional, as minimum to 12 years of prision mayor, as
maximum and to indemnify Rizalina Ferrer the amount of P70,000.00.[20]

Hence, this appeal, in which Ocden raised the following assignment of errors:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF ILLEGAL

RECRUITMENT COMMITTED IN LARGE SCALE ALTHOUGH THE CRIME WAS NOT
PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF ESTAFA IN

CRIMINAL CASES NOS. 16316-R, 16318-R AND 16[9]64-R.[21]

After a thorough review of the records of the case, we find nothing on record that
would justify a reversal of Ocden's conviction.

Illegal recruitment in large scale

Ocden contends that the prosecution failed to prove beyond reasonable doubt that
she is guilty of the crime of illegal recruitment in large scale. Other than the bare
allegations of the prosecution witnesses, no evidence was adduced to prove that she
was a non-licensee or non-holder of authority to lawfully engage in the recruitment
and placement of workers. No certification attesting to this fact was formally
offered in evidence by the prosecution.

Ocden's aforementioned contentions are without merit.

Article 13, paragraph (b) of the Labor Code defines and enumerates the acts which
constitute recruitment and placement:
(b) "Recruitment and placement" refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers, and includes
referrals, contract services, promising for 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
deemed engaged in recruitment and placement.

The amendments to the Labor Code introduced by Republic Act No. 8042, otherwise
known as the Migrant Workers and Overseas Filipinos Act of 1995, broadened the
concept of illegal recruitment and provided stiffer penalties, especially for those that
constitute economic sabotage, i.e., illegal recruitment in large scale and illegal
recruitment committed by a syndicate. Pertinent provisions of Republic Act No.
8042 are reproduced below:

SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring
workers and includes referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when undertaken by a non-licensee
or non-holder of authority contemplated under Article 13(f) of Presidential Decree
No. 442, as amended, otherwise known as the Labor Code of the Philippines:
Provided, That any such non-licensee or non-holder who, in any manner, offers or
promises for a fee employment abroad to two or more persons shall be deemed so
engaged. It shall likewise include the following acts, whether committed by any
person, whether a non-licensee, non-holder, licensee or holder of authority:

(a) To charge or accept directly or indirectly any amount greater than that specified
in the schedule of allowable fees prescribed by the Secretary of Labor and
Employment, or to make a worker pay any amount greater than that actually
received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to

recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any act
of misrepresentation for the purpose of securing a license or authority under the
Labor Code;

(d) To induce or attempt to induce a worker already employed to quit his

employment in order to offer him another unless the transfer is designed to liberate
a worker from oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;

(f) To engage in the recruitment or placement of workers in jobs harmful to public

health or morality or to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and
Employment or by his duly authorized representative;

(h) To fail to submit reports on the status of employment, placement vacancies,

remittance of foreign exchange earnings, separation from jobs, departures and such
other matters or information as may be required by the Secretary of Labor and
Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts

approved and verified by the Department of Labor and Employment from the time
of actual signing thereof by the parties up to and including the period of the
expiration of the same without the approval of the Department of Labor and
Employment;

(j) For an officer or agent of a recruitment or placement agency to become an officer

or member of the Board of any corporation engaged in travel agency or to be
engaged directly or indirectly in the management of a travel agency;

(k) To withhold or deny travel documents from applicant workers before departure
for monetary or financial considerations other than those authorized under the
Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy without valid reason as determined by the Department
of Labor and Employment; and

(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale shall be considered an
offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of

three (3) or more persons conspiring or confederating with one another. It is
deemed committed in large scale if committed against three (3) or more persons
individually or as a group.

xxxx

Sec. 7. Penalties. -

(a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than
twelve (12) years and a fine of Two hundred thousand pesos (P200,000.00) nor
more than Five hundred thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not less than Five hundred
thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00)
shall be imposed if illegal recruitment constitutes economic sabotage as defined
herein.

Provided, however, That the maximum penalty shall be imposed if the person
illegally recruited is less than eighteen (18) years of age or committed by a non-
licensee or non-holder of authority. (Emphasis ours.)

It is well-settled that to prove illegal recruitment, it must be shown that appellant

gave complainants the distinct impression that he had the power or ability to send
complainants abroad for work such that the latter were convinced to part with their
money in order to be employed.[22] As testified to by Mana-a, Ferrer, and Golidan,
Ocden gave such an impression through the following acts: (1) Ocden informed
Mana-a, Ferrer, and Golidan about the job opportunity in Italy and the list of
necessary requirements for application; (2) Ocden required Mana-a, Ferrer, and
Golidan's sons, Jeffries and Howard, to attend the seminar conducted by Ramos at
Ocden's house in Baguio City; (3) Ocden received the job applications, pictures, bio-
data, passports, and the certificates of previous employment (which was also issued
by Ocden upon payment of P500.00), of Mana-a, Ferrer, and Golidan's sons, Jeffries
and Howard; (4) Ocden personally accompanied Mana-a, Ferrer, and Golidan's sons,
Jeffries and Howard, for their medical examinations in Manila; (5) Ocden received
money paid as placement fees by Mana-a, Ferrer, and Golidan's sons, Jeffries and
Howard, and even issued receipts for the same; and (6) Ocden assured Mana-a,
Ferrer, and Golidan's sons, Jeffries and Howard, that they would be deployed to
Italy.

It is not necessary for the prosecution to present a certification that Ocden is a non-
licensee or non-holder of authority to lawfully engage in the recruitment and
placement of workers. Section 6 of Republic Act No. 8042 enumerates particular
acts which would constitute illegal recruitment "whether committed by any person,
whether a non-licensee, non-holder, licensee or holder of authority." Among such
acts, under Section 6(m) of Republic Act No. 8042, is the "[f]ailure to reimburse
expenses incurred by the worker in connection with his documentation and
processing for purposes of deployment, in cases where the deployment does not
actually take place without the worker's fault."

Since illegal recruitment under Section 6(m) can be committed by any person, even
by a licensed recruiter, a certification on whether Ocden had a license to recruit or
not, is inconsequential. Ocden committed illegal recruitment as described in said
provision by receiving placement fees from Mana-a, Ferrer, and Golidan's two sons,
Jeffries and Howard, evidenced by receipts Ocden herself issued; and failing to
reimburse/refund to Mana-a, Ferrer, and Golidan's two sons the amounts they had
paid when they were not able to leave for Italy, through no fault of their own.
Ocden questions why it was Golidan who testified for private complainants Jeffries
and Howard. Golidan had no personal knowledge of the circumstances proving
illegal recruitment and could not have testified on the same. Also, Jeffries and
Howard already executed an affidavit of desistance. All Golidan wants was a
reimbursement of the placement fees paid.

Contrary to Ocden's claims, Golidan had personal knowledge of Ocden's illegal

recruitment activities, which she could competently testify to. Golidan herself had
personal dealings with Ocden as Golidan assisted her sons, Jeffries and Howard, in
completing the requirements for their overseas job applications, and later on, in
getting back home from Zamboanga where Jeffries and Howard were stranded, and
in demanding a refund from Ocden of the placement fees paid. That Golidan is
seeking a reimbursement of the placement fees paid for the failed deployment of her
sons Jeffries and Howard strengthens, rather than weakens, the prosecution's case.
Going back to illegal recruitment under Section 6(m) of Republic Act No. 8042,
failure to reimburse the expenses incurred by the worker when deployment does
not actually take place, without the worker's fault, is illegal recruitment.

The affidavit of desistance purportedly executed by Jeffries and Howard does not
exonerate Ocden from criminal liability when the prosecution had successfully
proved her guilt beyond reasonable doubt. In People v. Romero,[23] we held that:

The fact that complainants Bernardo Salazar and Richard Quillope executed a Joint
Affidavit of Desistance does not serve to exculpate accused-appellant from criminal
liability insofar as the case for illegal recruitment is concerned since the Court looks
with disfavor the dropping of criminal complaints upon mere affidavit of desistance
of the complainant, particularly where the commission of the offense, as is in this
case, is duly supported by documentary evidence.

Generally, the Court attaches no persuasive value to affidavits of desistance,

especially when it is executed as an afterthought. It would be a dangerous rule for
courts to reject testimonies solemnly taken before the courts of justice simply
because the witnesses who had given them, later on, changed their mind for one
reason or another, for such rule would make solemn trial a mockery and place the
investigation of truth at the mercy of unscrupulous witness.

Complainants Bernardo Salazar and Richard Quillope may have a change of heart
insofar as the offense wrought on their person is concerned when they executed
their joint affidavit of desistance but this will not affect the public prosecution of the
offense itself. It is relevant to note that "the right of prosecution and punishment for
a crime is one of the attributes that by a natural law belongs to the sovereign power
instinctly charged by the common will of the members of society to look after, guard
and defend the interests of the community, the individual and social rights and the
liberties of every citizen and the guaranty of the exercise of his rights." This cardinal
principle which states that to the State belongs the power to prosecute and punish
crimes should not be overlooked since a criminal offense is an outrage to the
sovereign State.[24]

In her bid to exculpate herself, Ocden asserts that she was also just an applicant for
overseas employment; and that she was receiving her co-applicants' job
applications and other requirements, and accepting her co-applicants' payments of
placement fees, because she was designated as the applicants' leader by Ramos, the
real recruiter.

Ocden's testimony is self-serving and uncorroborated. Ocden's denial of any illegal

recruitment activity cannot stand against the prosecution witnesses' positive
identification of her in court as the person who induced them to part with their
money upon the misrepresentation and false promise of deployment to Italy as
factory workers. Besides, despite several opportunities given to Ocden by the RTC,
she failed to present Ramos, who Ocden alleged to be the real recruiter and to whom
she turned over the placement fees paid by her co-applicants.

Between the categorical statements of the prosecution witnesses, on the one hand,
and the bare denial of Ocden, on the other, the former must perforce prevail. An
affirmative testimony is far stronger than a negative testimony especially when the
former comes from the mouth of a credible witness. Denial, same as an alibi, if not
substantiated by clear and convincing evidence, is negative and self-serving
evidence undeserving of weight in law. It is considered with suspicion and always
received with caution, not only because it is inherently weak and unreliable but also
because it is easily fabricated and concocted.[25]

Moreover, in the absence of any evidence that the prosecution witnesses were
motivated by improper motives, the trial court's assessment of the credibility of the
witnesses shall not be interfered with by this Court.[26] It is a settled rule that
factual findings of the trial courts, including their assessment of the witnesses'
credibility, are entitled to great weight and respect by the Supreme Court,
particularly when the Court of Appeals affirmed such findings. After all, the trial
court is in the best position to determine the value and weight of the testimonies of
witnesses. The absence of any showing that the trial court plainly overlooked
certain facts of substance and value that, if considered, might affect the result of the
case, or that its assessment was arbitrary, impels the Court to defer to the trial
court's determination according credibility to the prosecution evidence.[27]

Ocden further argues that the prosecution did not sufficiently establish that she
illegally recruited at least three persons, to constitute illegal recruitment on a large
scale. Out of the victims named in the Information, only Mana-a and Ferrer testified
in court. Mana-a did not complete her testimony, depriving Ocden of the
opportunity to cross-examine her; and even if Mana-a's testimony was not
expunged from the record, it was insufficient to prove illegal recruitment by Ocden.
Although Ferrer testified that she and Mana-a filed a complaint for illegal
recruitment against Ocden, Ferrer's testimony is competent only as to the illegal
recruitment activities committed by Ocden against her, and not against Mana-a.
Ocden again objects to Golidan's testimony as hearsay, not being based on Golidan's
personal knowledge.

Under the last paragraph of Section 6, Republic Act No. 8042, illegal recruitment
shall be considered an offense involving economic sabotage if committed in a large
scale, that is, committed against three or more persons individually or as a group.

In People v. Hu,[28] we held that a conviction for large scale illegal recruitment must
be based on a finding in each case of illegal recruitment of three or more persons,
whether individually or as a group. While it is true that the law does not require
that at least three victims testify at the trial, nevertheless, it is necessary that there
is sufficient evidence proving that the offense was committed against three or more
persons. In this case, there is conclusive evidence that Ocden recruited Mana-a,
Ferrer, and Golidan's sons, Jeffries and Howard, for purported employment as
factory workers in Italy. As aptly observed by the Court of Appeals:

Mana-a's testimony, although not completed, sufficiently established that accused-

appellant promised Mana-a a job placement in a factory in Italy for a fee with
accused-appellant even accompanying her for the required medical examination.
Likewise, Julia Golidan's testimony adequately proves that accused-appellant
recruited Jeffries and Howard Golidan for a job in Italy, also for a fee. Contrary to
the accused-appellant's contention, Julia had personal knowledge of the facts and
circumstances surrounding the charges for illegal recruitment and estafa filed by
her sons. Julia was not only privy to her sons' recruitment but also directly
transacted with accused-appellant, submitting her sons' requirements and paying
the placement fees as evidenced by a receipt issued in her name. Even after the
placement did not materialize, Julia acted with her sons to secure the partial
reimbursement of the placement fees.[29]

And even though only Ferrer and Golidan testified as to Ocden's failure to reimburse
the placements fees paid when the deployment did not take place, their testimonies
already established the fact of non-reimbursement as to three persons, namely,
Ferrer and Golidan's two sons, Jeffries and Howard.

Section 7(b) of Republic Act No. 8042 prescribes a penalty of life imprisonment and
a fine of not less than P500,000.00 nor more than P1,000,000.00 if the illegal
recruitment constitutes economic sabotage. The RTC, as affirmed by the Court of
Appeals, imposed upon Ocden the penalty of life imprisonment and a fine of only
P100,000.00. Since the fine of P100,000 is below the minimum set by law, we are
increasing the same to P500,000.00.

Estafa
We are likewise affirming the conviction of Ocden for the crime of estafa. The very
same evidence proving Ocden's liability for illegal recruitment also established her
liability for estafa.

It is settled that a person may be charged and convicted separately of illegal

recruitment under Republic Act No. 8042 in relation to the Labor Code, and estafa
under Article 315, paragraph 2(a) of the Revised Penal Code. We explicated in
People v. Yabut[30] that:

In this jurisdiction, it is settled that a person who commits illegal recruitment may
be charged and convicted separately of illegal recruitment under the Labor Code
and estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of
illegal recruitment is malum prohibitum where the criminal intent of the accused is
not necessary for conviction, while estafa is malum in se where the criminal intent
of the accused is crucial for conviction. Conviction for offenses under the Labor
Code does not bar conviction for offenses punishable by other laws. Conversely,
conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not
bar a conviction for illegal recruitment under the Labor Code. It follows that one's
acquittal of the crime of estafa will not necessarily result in his acquittal of the crime
of illegal recruitment in large scale, and vice versa.[31]

Article 315, paragraph 2(a) of the Revised Penal Code defines estafa as:

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow x x x:

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior
to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence,

qualifications, property, credit, agency, business or imaginary transactions; or by
means of other similar deceits.

The elements of estafa are: (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 caused to the offended party or third person.[32]

Both these elements are present in the instant case. Ocden represented to Ferrer,
Golidan, and Golidan's two sons, Jeffries and Howard, that she could provide them
with overseas jobs. Convinced by Ocden, Ferrer, Golidan, and Golidan's sons paid
substantial amounts as placement fees to her. Ferrer and Golidan's sons were never
able to leave for Italy, instead, they ended up in Zamboanga, where, Ocden claimed,
it would be easier to have their visas to Italy processed. Despite the fact that
Golidan's sons, Jeffries and Howard, were stranded in Zamboanga for almost a
month, Ocden still assured them and their mother that they would be able to leave
for Italy. There is definitely deceit on the part of Ocden and damage on the part of
Ferrer and Golidan's sons, thus, justifying Ocden's conviction for estafa in Criminal
Case Nos. 16316-R, 16318-R, and 16964-R.

The penalty for estafa depends on the amount of defraudation. According to Article
315 of the Revised Penal Code:

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in
its minimum period, if the amount of the fraud is over 12,000 pesos but does not
exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year
for each additional 10,000 pesos; but the total penalty which may be imposed shall
not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case
may be.

The prescribed penalty for estafa under Article 315 of the Revised Penal Code, when
the amount of fraud is over P22,000.00, is prision correccional maximum to prision
mayor minimum, adding one year to the maximum period for each additional
P10,000.00, provided that the total penalty shall not exceed 20 years.

Applying the Indeterminate Sentence Law, 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 6 months and 1 day to 4 years
and 2 months).[33] Consequently, both the RTC and the Court of Appeals correctly
fixed the minimum term in Criminal Case Nos. 16316-R and 16318-R at 2 years, 11
months, and 10 days of prision correccional; and in Criminal Case No. 16964-R at 4
years and 2 months of prision correccional, since these are within the range of
prision correccional minimum and medium.

As for the maximum term under the Indeterminate Sentence Law, we take the
maximum period of the prescribed penalty, adding 1 year of imprisonment for every
P10,000.00 in excess of P22,000.00, provided that the total penalty shall not exceed
20 years. To compute the maximum period of the prescribed penalty, 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 maximum period for prision correccional maximum to prision
mayor minimum is from 6 years, 8 months, and 21 days to 8 years. The incremental
penalty, when proper, shall thus be added to anywhere from 6 years, 8 months, and
21 days to 8 years, at the discretion of the court.[34]
In computing the incremental penalty, the amount defrauded shall be substracted
by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a
year shall be discarded as was done starting with People v. Pabalan.[35]

In Criminal Case Nos. 16316-R and 16318-R, brothers Jeffries and Howard Golidan
were each defrauded of the amount of P40,000.00, for which the Court of Appeals
sentenced Ocden to an indeterminate penalty of 2 years, 11 months, and 10 days of
prision correccional as minimum, to 9 years of prision mayor as maximum. Upon
review, however, we modify the maximum term of the indeterminate penalty
imposed on Ocden in said criminal cases. Since the amount defrauded exceeds
P22,000.00 by P18,000.00, 1 year shall be added to the maximum period of the
prescribed penalty (anywhere between 6 years, 8 months, and 21 days to 8 years).
There being no aggravating circumstance, we apply the lowest of the maximum
period, which is 6 years, 8 months, and 21 days. Adding the one year incremental
penalty, the maximum term of Ocden's indeterminate sentence in these two cases is
only 7 years, 8 months, and 21 days of prision mayor.

In Criminal Cases No. 19694-R, Ferrer was defrauded of the amount of P70,000.00,
for which the Court of Appeals sentenced Ocden to an indeterminate penalty of 4
years and 2 months of prision correccional, as minimum, to 12 years of prision
mayor, as maximum. Upon recomputation, we also have to modify the maximum
term of the indeterminate sentence imposed upon Ocden in Criminal Case No.
19694-R. Given that the amount defrauded exceeds P22,000.00 by P48,000.00, 4
years shall be added to the maximum period of the prescribed penalty (anywhere
between 6 years, 8 months, and 21 days to 8 years). There likewise being no
aggravating circumstance in this case, we add the 4 years of incremental penalty to
the lowest of the maximum period, which is 6 years, 8 months, and 21 days. The
maximum term, therefor, of Ocden's indeterminate sentence in Criminal Case No.
19694-R is only 10 years, 8 months, and 21 days of prision mayor.

WHEREFORE, the instant appeal of accused-appellant Dolores Ocden is DENIED.

The Decision dated April 21, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No.
00044 is AFFIRMED with MODIFICATION to read as follows:

1. In Criminal Case No. 16315-R, the Court finds the accused, Dolores Ocden, GUILTY
beyond reasonable doubt of the crime of Illegal Recruitment committed in large
scale as defined and penalized under Article 13(b) in relation to Articles 38(b), 34
and 39 of the Labor Code, as amended. She is hereby sentenced to suffer the penalty
of life imprisonment and to pay a fine of P500,000.00;

2. In Criminal Case No. 16316-R, the Court finds the accused, Dolores Ocden, GUILTY
beyond reasonable doubt of the crime of estafa and sentences her to an
indeterminate penalty of 2 years, 11 months, and 10 days of prision correccional, as
minimum, to 7 years, 8 months, and 21 days of prision mayor, as maximum, and to
indemnify Jeffries Golidan the amount of P40,000.00;
3. In Criminal Case No. 16318-R, the Court finds the accused, Dolores Ocden, GUILTY
beyond reasonable doubt of the crime of estafa and sentences her to an
indeterminate penalty of 2 years, 11 months, and 10 days of prision correccional, as
minimum, to 7 years, 8 months, and 21 days of prision mayor, as maximum, and to
indemnify Howard Golidan the amount of P40,000.00; and

4. In Criminal Case No. 16964-R, the Court finds the accused, Dolores Ocden, GUILTY
beyond reasonable doubt of the crime of estafa and sentences her to an
indeterminate penalty of 4 years and 2 months of prision correccional, as minimum,
to 10 years, 8 months, and 21 days of prision mayor, as maximum, and to indemnify
Rizalina Ferrer the amount of P70,000.00.

SO ORDERED.

G.R. No. 185277 March 18, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RODOLFO GALLO, Accused-Appellant.

This is an appeal from the Decision1 dated 31 January 2008 of the Court of Appeals,
affirming, with modification, the Judgment2 of conviction for the crimes of illegal
recruitment and estafa rendered by the Regional Trial Court of Manila, Branch 34.

Appellant Rodolfo Gallo (Gallo), together with Pilar Manta (Manta) and Fides
Pacardo (Pacardo), was originally charged with illegal recruitment in large scale and
thirty four (34) counts of estafa in thirty five (35) separate informations3 filed
before the Regional Trial Court of Manila, Branch 34.

When arraigned, all three accused pleaded not guilty to the charges.4

In the course of the trial of the cases, some of the private complainants, one after
another, moved for the withdrawal of their respective complaints5 while others
failed to appear during the scheduled hearings despite due notice.6 Hence, the
public prosecutor moved for the provisional dismissal7 of their cases until only
three private complainants remained.

The remaining private complainants, Reynaldo Panlilio (Panlilio), Ian Fernandez

(Fernandez) and Zenaida Filomeno (Filomeno), testified for the prosecution.

Fernandez narrated that at around 9:00 a.m. on 5 June 2001, he was at the MPM
International Recruitment Agency (MPM) with his friend Reynaldo Panlilio applying
for a job overseas.8 He recounted that he was able to talk first with accused Gallo,
then with the owner of MPM, Mardeolyn Martir (Martir).9 Gallo informed him that if
he pays P45,000.00, he would be able to leave for Korea in two to three months
time.10 Thus, he returned the following day with P45,000.00 and gave the amount
to Martir.11 Gallo issued a receipt covering the amount but this was later on
replaced with a promissory note.12

Panlilio narrated that on 5 June 2001, he went to the offices of MPM in Ermita,
Manila, to apply for a job as a factory worker in Korea.13 He testified that he talked
to Martir who told him to come back the next day with P45,000.00 for the
processing of his application.14 Upon arriving the following day (6 June 2001), he
was met by accused Gallo and upon the instruction of Martir, Panlilio gave the
money to Gallo.15 Unable to leave for Korea despite the lapse of several months,
Panlilio demanded the return of his money.16 The agency, however, requested a
month within which to refund the money17 and the receipt issued for the
P45,000.00 he paid was replaced with a promissory note.18

While in the province, he learned that the agency had closed, so he went back to
Manila to verify this information.19 He found out that the agency had transferred its
offices to the Prudential Bank Building in Sta. Cruz, Manila.20 There, he and about
30 to 40 other victims of the agency arrested the three accused by virtue of a
citizens arrest.21 The accused were first brought to the Sta. Cruz Police Station,
then to the National Bureau of Investigation (NBI), where a formal complaint was
filed against them.22

Private complainant Filomeno testified that she learned from a friend that MPM is
accepting applicants for work in Korea.23 She went to the agency sometime in May
2001 and was initially met by accused Manta who instructed her to talk to Martir.24
Inside the latters office, she found Gallo and Martir accepting applicants for
overseas employment.25 She narrated that she initially paid P15,000.00 as
processing fee to Gallo and Martir who both counted the money in front of her.26
She later on paid another P5,000.00, both of which amounts were covered by a
receipt.27 Gallo and Martir told her that in September 2001, she would be able to
leave for Korea where she would be working as a factory worker with a monthly
salary of US$500.00 plus overtime pay.28 Because she failed to leave as promised,
she called the agency on at least four occasions to follow up her application, but she
was unable to talk to either accused Gallo or Martir.29 When she went to the agency
to personally inquire about the status of her application, she found out that the
accused had been arrested so she proceeded to the NBI to file a complaint.30

The prosecution likewise presented documentary evidence consisting of the

promissory notes and official receipts issued by the agency to the private
complainants.31 Also presented was a certification dated 23 August 2002, issued by
the Philippine Overseas Employment Agency, stating that according to its records,
the New Filipino Manpower Development and Services, Inc. had an expired license
and that its application for the re-issuance of a new license was denied.32 It appears
that MPM had earlier applied for a license but its application was not granted;
hence, it changed its name to New Filipino Manpower Development and Services,
Inc.33

For his defense, appellant Gallo alleged that he was not an employee of MPM but
was himself an applicant for overseas work.34 According to him, someone from
their province informed him that MPM was recruiting applicants to be employed as
factory workers in Korea, so he applied sometime in November 2000.35 He further
testified that he paid P20,000.00 for the processing of his visa but was not issued a
receipt; his payment was merely recorded in the agencys logbook.36 When his visa
was issued, the agency asked for an additional payment of P40,000.00 for his plane
fare, but he was unable to produce the amount, so another person was sent abroad
in his stead.37 He was advised by Martir to wait because the visa issued to him
earlier will be replaced by a trainee visa.38 As a result, he was often seen at the
office of Martir because he would often go there to follow up his application.39 He
denied having received money from or having issued any receipt to private
complainants.40

Appellant, however, admitted having executed a Kontra Salaysay and a Rejoinder

Affidavit wherein it was stated that he is merely a utility worker of New Filipino
Manpower Development and Services, Inc., and, as such, his only duties therein
consist of repair, janitorial and messengerial jobs.41 He explained the conflict in his
statements by claiming that the aforesaid documents were prepared by a lawyer
from the NBI and he signed them without reading their contents.42 He,
nevertheless, disclosed during his testimony that the personal circumstances stated
in the documents were gathered by the NBI from him.43

Finding that the evidence for the prosecution sufficiently established the criminal
liability of appellant, the trial court rendered a decision on 10 April 2003 convicting
him of the crimes charged. Accused Manta and Pacardo were acquitted for
insufficiency of the evidence presented against them.44 The dispositive portion of
the decision, in part, reads:

In Criminal Case No. 02-200788:

Finding Rodolfo Gallo to have participated in illegally recruiting the three

complainants, Ian Fernandez, Reynaldo Panlilio and Zenaida Filomeno, he is hereby
found GUILTY of the crime of Illegal Recruitment without any mitigating nor
aggravating circumstance attendant to its commission and is hereby sentenced to
suffer the penalty of life imprisonment and to pay a fine of P500,000.00.

In Criminal Case No. 02-200803:

Finding Rodolfo Gallo having conspired and confederated with another person not
charged in this Information in defrauding Ian Fernandez, he is hereby found Guilty
of the crime of Estafa without any mitigating nor aggravating circumstance
attendant to its commission, granting him the benefit of the Indeterminate Sentence
Law he is hereby sentenced to suffer an indeterminate prison term ranging from
four (4) years two (2) months of prision correccional to ten (10) years of prision
mayor. He is hereby ordered to indemnify Ian Fernandez the sum of P45,000.00
representing the amount embezzled.

In Criminal Case No. 02-200810:

Finding Rodolfo Gallo having conspired and confederated with another person not
charged in this Information in defrauding Zenaida Filomeno, he is hereby found
Guilty of the crime of Estafa without any mitigating nor aggravating circumstance
attendant to its commission, granting the accused the benefit of the Indeterminate
Sentence Law, he is hereby sentenced to suffer an indeterminate prison term of
ranging from four (4) years two (2) months of prision correccional to eight (8) years
of prision mayor. He is hereby ordered to indemnify the victim Zenaida Filomeno
the sum of P20,000.00 representing the amount embezzled.

In Criminal Case No. 02-200812:

Finding Rodolfo Gallo having conspired and confederated with another person not
charged in this Information in defrauding Reynaldo Panlilio he is hereby found
Guilty of the crime of Estafa without any mitigating nor aggravating circumstance
attendant to its commission, granting him the benefit of the Indeterminate Sentence
Law he is hereby sentenced to suffer an indeterminate prison term ranging from
four (4) years two (2) months of prision correccional to ten (10) years of prision
mayor. He is hereby ordered to indemnify Reynaldo Panlilio the sum of P45,000.00
representing the amount of money embezzled.45

In view of the penalty imposed, the case was elevated to this Court on automatic
review. In accordance with our ruling in People v. Mateo,46 the Court resolved to
transfer the cases to the Court of Appeals for intermediate review.

On 31 January 2008, the Court of Appeals rendered the Decision now subject of this
review. The dispositive portion of which provides:

WHEREFORE, judgment is hereby rendered as follows:

I. The judgment of the trial court in Criminal Case No. 02-200788 finding the
accused-appellant Rodolfo Gallo guilty of Illegal Recruitment in Large Scale and
sentencing him to life imprisonment, as well as to pay a fine of Five Hundred
Thousand Pesos is AFFIRMED.

The judgments in Criminal Cases Nos. 02-200803 and 02-200812 sentencing the
accused-appellant to suffer an indeterminate prison term of four (4) years, two (2)
months of prision correccional to ten (10) years of prision mayor is AFFIRMED with
the following MODIFICATION:
In additional to the P45,000.00 each to be paid by the accused-appellant to Ian
Fernandez and Reynaldo Panlilio as actual damages; the accussed-appellant is also
ordered to pay legal interest on the said amount of P45,000.00 from the time of the
filing of the Information until fully paid.

II. The judgment in Criminal Case No. 02-200810 finding the accused-appellant
guilty of estafa is MODIFIED, and the accused-appellant is hereby sentenced to an
indeterminate penalty ranging from one (1) year, eight (8) months and twenty-one
(21) days of prision correccional minimum to five (5) years, five (5) months and
[eleven] (11) days of prision correccional maximum. The accused-appellant shall
pay Zenaida Filomeno P20,000.00 by way of actual damages. In addition, the
accused-appellant shall also pay legal interest on the said amount of P20,000.00
from the time of filing of the Information until fully paid.

In all four cases, the accused-appellant Rodolfo Gallo shall be credited with the full
extent of his preventive imprisonment pursuant to Article 29 of the Revised Penal
Code. Costs against accused-appellant.47

Hence, the instant petition.

On 21 January 2009, the Court resolved to require the parties to file their respective
supplemental briefs, if they so desire, within thirty (30) days from notice.48
Appellant filed a Manifestation dated 18 March 2009 stating that he will no longer
file a supplemental brief and is adopting his Appellants Brief as his Supplemental
Brief.49 The Office of the Solicitor General likewise manifested that it would no
longer file a supplemental brief.50

In his Brief, appellant assigns the following as errors committed by the trial court:

THE COURT A QUO ERRED IN GIVING MUCH WEIGHT AND CREDENCE TO THE
TESTIMONIES OF THE PROSECUTION WITNESSES.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THREE

COUNTS OF ESTAFA NOTWITHSTANDING THE PATENT ABSENCE OF CRIMINAL
INTENT ON THE PART OF THE LATTER.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE

CRIME OF ILLEGAL RECRUITMENT NOTWITHSTANDING THE FAILURE OF THE
PROSECUTION TO PROVE ALL THE ESSENTIAL ELEMENTS OF THE CRIME
CHARGED.51
Appellant, in essence, claims that the prosecution failed to establish his guilt beyond
reasonable doubt.

The appeal must fail. We find no valid grounds to reverse the decision of the Court of
Appeals affirming the lower courts judgment of conviction.

Well-settled is the rule that the issue of credibility is the domain of the trial court
which had the opportunity to observe the deportment and manner of the witnesses
as they testified.52 The findings of facts of a trial court, arrived at only after a
hearing and evaluation of the testimonies of witnesses, certainly deserve respect by
an appellate court.53 Unless it plainly overlooked certain facts of substance and
value which, if considered, may affect the result of the case, appellate courts will not
disturb the findings of the trial court on the issue of credibility of witnesses, it being
in a better position to decide the question, having heard and observed the witnesses
themselves.54

We find no exceptional circumstances in this case that would justify a deviation

from the general rule. The trial courts findings and conclusions are duly supported
by the evidence on record; thus, there is no reason to disturb them.

Moreover, there is no showing that the private complainants were impelled by any
ill motive that could have affected their credibility. Where there is nothing to show
that the witnesses for the prosecution were actuated by improper motive, their
positive and categorical declarations on the witness stand, under the solemnity of an
oath, deserve full faith and credence.55

Appellant professes lack of criminal intent to escape liability for estafa. He maintains
that, like the private complainants, he is also an applicant trying his luck at finding
work overseas; that he would usually help out in office work on occasions that he
would visit the agency as an applicant which explains why complainants could have
indeed seen and conversed with him about their applications.

These implausible arguments fail to persuade us.

As with the Regional Trial Court and the Court of Appeals, this Court is likewise
convinced that the prosecution was able to prove, beyond reasonable doubt,
appellants guilt for estafa under Article 315 (2)(a) of the Revised Penal Code, which
provides:

Article 315. Swindling (estafa). x x x

xxxx

1. By means of any of the following false pretenses or fraudulent acts executed prior
to or simultaneously with the commission of the fraud:
(a)By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits.

Under the above-quoted provision, there are three (3) ways of committing estafa:
(1) by using a fictitious name; (2) by falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions; and (3)
by means of other similar deceits.56 To convict for this type of crime, it is essential
that the false statement or fraudulent representation constitutes the very cause or
the only motive which induces the complainant to part with the thing of value.57

In the case before us, appellant and Martir led the private complainants to believe
that they possessed the power, qualifications and means to provide work in Korea.
During the trial of these cases, it was clearly shown that, together with Martir,
appellant discussed with private complainants the fact of their being deployed
abroad for a job if they pay the processing fee, and that he actually received
payments from private complainants. Thus, it was proven beyond reasonable doubt
that the three private complainants were deceived into believing that there were
jobs waiting for them in a factory in Korea when in fact there were none. Because of
the assurances of appellant, each of the private complainants parted with their
money and suffered damages as a result of their being unable to leave for Korea. The
elements of estafa deceit and damage are thus indisputably present, making
the conviction for estafa appropriate.

Appellants defense that he is also an applicant is unavailing given the complete

absence of any attempt on his part to seek a refund of the money he allegedly paid to
the agency when the job promised him failed to materialize. He did not complain at
all, at the very least, but, instead, even "helped out" at the office whenever he went
there to follow up his application. As aptly put by the Court of Appeals, "[s]uch a
story is highly improbable, incompatible with human behavior and contrary to
ordinary experience."58

Likewise, we find that the trial court and the Court of Appeals correctly found
appellant guilty of the crime of illegal recruitment in large scale under Republic Act
No. 8042,59 the pertinent provision of which provides:

Sec. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring
workers and includes referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when undertaken by a non-licensee
or non-holder of authority contemplated under Article 13(f) of Presidential Decree
No. 442, as amended, otherwise known as the Labor Code of the Philippines:
Provided, That any such non-licensee or non-holder who, in any manner, offers or
promises for a fee employment abroad to two or more persons shall be deemed so
engaged. x x x.

xxxx

Illegal recruitment is deemed committed by a syndicate if carried out by a group of

three (3) or more persons conspiring or confederating with one another. It is
deemed committed in large scale if committed against three (3) or more persons
individually or as a group. x x x.

To constitute illegal recruitment in large scale, three elements must concur: (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 same Code (now Section 6 of Republic Act No. 8042); and, (c) the
offender committed the same against three (3) or more persons, individually or as a
group.60

Article 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, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not." In the simplest terms,
illegal recruitment is committed by persons who, without authority from the
government, give the impression that they have the power to send workers abroad
for employment purposes.61

We are persuaded that all three elements of illegal recruitment in large scale were
proven in this case.

First, appellant had no valid license or authority to engage in the recruitment and
placement of workers. This is established by the Karagdagang Salaysay executed by
Pacardo on 8 March 2002, paragraph 6 of which states that while MPM applied for a
license, it was never issued one, for which reason, it changed its name to New
Filipino Manpower Development and Services, Inc.62

Second, despite not having such authority, appellant nevertheless engaged in

recruitment activities, offering and promising jobs to private complainants and
collecting from them various amounts as placement fees. This is substantiated by
the respective testimonies of the three private complainants.

Fernandez narrated that it was appellant who assured him that if he pays
P45,000.00, he would be able to leave for Korea within two to three months. Both
Fernandez and Panlilio affirmed that they gave the money to appellant who issued a
receipt therefore. Filomeno testified that when she went to the office of Martir, the
latter and appellant were in the process of accepting applicants for work overseas.
They told her that as a factory worker in Korea, she would have a monthly salary of
US$500.00 with overtime pay. Relying on their misrepresentations, she paid the
placement fee to appellant and Martir.

Thus, the mere denials of appellant cannot stand against the clear, positive and
straightforward testimonies of private complainants who positively identified
appellant as one of two persons who undertook to recruit them for a supposed
employment in Korea. As already previously mentioned, absent any evidence that
the prosecution witnesses were motivated by improper motives, the trial courts
assessment of the credibility of the witnesses shall not be interfered with by this
Court.

WHEREFORE, the decision of the Court of Appeals dated 31 January 2008 in CAG.R.
CR H.C. No. 01663, affirming with modification the Judgment of the Regional Trial
Court of Manila, Branch 34, finding appellant Rodolfo Gallo guilty of illegal
recruitment in large scale and three (3) counts of estafa is AFFIRMED.

SO ORDERED.

G.R. No. 105204 March 9, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
THELMA REYES and NICK REYES, accused, THELMA REYES accused-appellant.

This is an appeal from the decision of the Regional Trial Court of Laguna, Branch 35,
the dispositive portion of which reads as follows:

WHEREFORE, the prosecution having established the guilt of the accused Thelma
Reyes beyond reasonable doubt of Illegal Recruitment defined and penalized under
Article 38, P.D. No. 442 as amended, the Court hereby sentences said accused to
suffer a penalty of Reclusion Perpetua and to pay a fine in the amount of
P100,000.00 and to indemnify Rosalino Bitang and Fabian Baradas, Mr. de Castro,
Lorenzo Blanza and Ramon Mendoza the sum of P45,000.00 and to pay the costs.

Appellant Thelma Reyes was charged together with her husband Nick Reyes, but the
latter was at large and so has remained up to now. Consequently, the trial proceeded
only with respect to Thelma Reyes in view of her plea of not guilty.

The prosecution's first witness, Rosalino Bitang, testified that sometime in 1985, he
and five others (Lorenzo Blanza, Fabian Baradas, Edgardo Garcia, Ramon Mendoza
and Dionisio de Castro) went to the house of the appellant in Los Baos, Laguna, to
apply for employment abroad; that he gave P5,000 to Nick Reyes as downpayment
for the recruitment fees; that Nick Reyes handed the money to his wife Thelma
Reyes, and afterward issued a receipt (Exh. A), which reads:

RECEIPT

RECEIVED from MR. RIZALINO BITANG the amount of FIVE THOUSAND (P5,000.00)
PESOS, Philippine Currency.

Manila, September 19, 1985.

(SGD.) NICK N. REYES, SR.

Bitang testified that on January 14, 1986, he and his companions paid P34,000.00
more to the spouses through Dionisio de Castro. Of this amount, P8,500.00 was for
his (witness Bitang's) placement fee, while the balance was for payment of his
companions' fees. As before Nick Reyes received the amount and gave it to his wife,
Thelma Reyes, after which he issued a receipt (Exh. B) which reads:

RECEIPT

RECEIVED from MR. DIONISIO DE CASTRO the amount of THIRTY FOUR THOUSAND
(P34,000.00) Pesos, Philippine Currency for the following: Edgardo Garcia Ramon
Mendoza Lorenzo Blanza, Fabian Barradas, and Rosalino Bitang.

Manila, January 14, 1986.

(SGD) NICHOL REYES SR.

According to complainant, Nick Reyes promised to notify them as soon as they were
accepted for employment so that they could leave for abroad, but this promise was
not fulfilled. He said that he checked with the Philippine Overseas Employment
Administration (POEA) and found out that the spouses were not licensed recruiters.
A certification to this effect was issued to him by the POEA. (Exh. C)

The other complainant Fabian Baradas also testified. He stated that he was
introduced to Thelma Reyes sometime in September, 1985 at Lemery, Batangas,
while the latter was recruiting workers for deployment in Saudi Arabia.

On several occasions between September and December, 1985, he and several

others went to appellant's house at Junction, Los Baos Laguna for overseas
employment and were required to submit travel documents, such as passports, birth
certificates and NBI clearances and to pay various amounts of money.

On January 9, 1986, he gave P6,000.00 to Nick and Thelma Reyes, through his
godfather Dionisio de Castro, for which Nick Reyes issued to him a receipt (Exh. E),
reading:
RECEIPT

Received from Mr. Dionisio de Castro the amount of Six Thousand (P6,000.00)
Pesos, Philippine Currency.

Manila, January 9, 1986.

(SGD.) NICK N. REYES

On January 14, 1986, he paid the additional amount of P12,000.00 to Reyes through
Dionisio de Castro as evidenced by Exh. B. The money was supposed to cover the
cost of the processing papers. However, as no job was forthcoming, he went to the
POEA to inquire, and, like Rosalino Bitang, he learned that the spouses were not
licensed recruiters.

The complainants both testified that as soon as they obtained the POEA certification
that appellant and her husband were not licensed to recruit, they demanded from
the spouses the return of their money and when the latter did not give back their
money, they filed the complaint in this case.

Only the appellant Thelma Reyes testified in her behalf. She claimed that she met the
witnesses Bitang and Baradas only when they were looking for her husband at their
house in Los Baos, Laguna, between March and May of 1986. She denied having
met them before.

She admitted that the receipts (Exhs. A, B and E) were all written and signed by her
husband, but she denied she had anything to do with her husband's activities. She
said they had been estranged since March 1986 precisely because she did not
approve of her husband's illegal activities. She claimed that she had told her
husband that, even though they were poor, they could live on their earning and the
monthly support of P10,000.00 which they were receiving from her mother-in-law
who lived in the United States.

According to appellant, she and her husband saw each other only occasionally,
whenever they visited their children in Los Baos where they were studying
because she lived in Singalong, Manila. She presumed that her husband had told
complainants to go to the house in Los Baos which they were merely renting for
their children and that she was included in the complaint only because her husband
could not be located.

On cross-examination she admitted that there were fourteen (14) other cases of
Illegal Recruitment filed and/or pending against her and her husband in different
courts of Manila and claimed that some of the cases had been dismissed or settled
after she had refunded the money of the complainants.
Testifying on rebuttal for the prosecution, Rosalino Bitang stated that it was Thelma
Reyes herself who gave the job applicants the address and sketch of their house in
Los Baos, Laguna, and that she represented to him that she was negotiating for job
placements abroad. Bitang reiterated that money paid to Nick Reyes was given to
Thelma Reyes who counted it before Nick Reyes issued receipts.

On the basis of the parties' evidence, the trial court found Thelma Reyes guilty of
illegal recruitment and sentenced her as stated in the beginning. Hence this appeal.

Appellant claims that the trial court erred

1. IN FINDING THAT THE PROSECUTION HAS MARSHALLED THE QUANTUM

OF EVIDENCE SUFFICIENT TO CONVICT THE ACCUSED OF THE CRIME OF ILLEGAL
RECRUITMENT UNDER ARTICLE 38, P.D. NO. 442.

2. IN NOT CONSIDERING THE FACT THAT THERE ARE ONLY TWO

COMPLAINANTS IN THE INFORMATION FILED ON DECEMBER 11, 1986 AGAINST
THE ACCUSED HENCE THEY CANNOT BE PROSECUTED UNDER ARTICLE 38, P.D.
NO. 442.

3. IN GIVING CREDENCE TO THE VERBAL TESTIMONIES OF PRIVATE

COMPLAINANTS RATHER THAN THE DOCUMENTARY EVIDENCE.

We shall now deal with these contentions of appellant.

First. Appellant contends that the testimonies of Bitang and Baradas are insufficient
to sustain conviction. She contends that Dionisio de Castro, who allegedly advanced
P34,000.00 for the complainants and their companions, should have been presented
to corroborate the claim of the claimants.

The contention is without merit. To be sure, an accused can be convicted on the

strength of the testimony of a single witness, if such testimony is credible and
positive and produces a conviction beyond reasonable doubt. 1 That the witness is
also the complainant in a case makes little difference as long as the court is
convinced beyond doubt that the witness is telling the truth. For instance, in
Hernandez v. Court of Appeals 2 this Court held:

Petitioner claims that the decision of the trial court is not supported by the
evidence, which is contrary to the findings of the Court of Appeals that said decision
is "in accordance with law and the evidence" (Rollo,
p. 12). He points out that the appellate court should not have believed the trial
court's conclusion that "the sole testimony of the offended party would have
sufficed to sustain her assertions" (Rollo, p. 47). He claims that self-serving
declarations of a party favorable to himself are not admissible and that none of the
alleged witnesses to the transactions were presented.
The common objection known as "self-serving" is not correct because almost all
testimonies are self-serving. The proper basis for objection is "hearsay" (Wenke,
Making and Meeting Objections, 69).

Petitioner fails to take into account the distinction between self-serving statements
and testimonies made in court. Self-serving statements are those made by a party
out of court advocating his own interest; they do not include a party's testimony as a
witness in court (National Development Co. v. Workmen's Compensation
Commission, 19 SCRA 861 [1967]).

Self-serving statements are inadmissible because the adverse party is not given the
opportunity for cross-examination, and their admission would encourage
fabrication of testimony. This cannot be said of a party's testimony in court made
under oath, with full opportunity on the part of the opposing party for cross-
examination.

It is not true that none of the alleged witnesses to the transactions was presented in
court (Rollo, p. 13). Yolanda Dela Rosa, an eye-witness to some of the transactions,
testified for the prosecution. Assuming that Dela Rosa was not presented as a
witness, the testimony of de Leon sufficed to sustain the conviction of petitioner.
The conviction of an accused may be on the basis of the testimony of a single
witness (People v. Rumeral, 200 SCRA 194 [1991]). In determining the value and
credibility of evidence, witnesses are to be weighed, not counted (People v.
Villalobos, 209 SCRA 304 [1992]).

In the case at bar, the trial court gave weight to the testimonies of complainants
because,

Except for the denial of accused Thelma Reyes that she has nothing to do with the
recruitment of the complaining witnesses as well as the collection of the amount
from them, said accused failed to sufficiently overthrow the convincing testimony of
the complaining witnesses that accused Thelma Reyes was present and even
counted the money evidenced by Exhibit[s] "A" and "B" after her husband hands it
to her and that her husband Nick Reyes who issued the receipts to the complainants.

Moreover, when the issue is the credibility of witnesses, appellate courts will in
general not disturb the findings of the trial court unless certain facts or
circumstances of weight have been overlooked, misunderstood or misapplied which,
if considered, might affect the result of the case. This is because the trial court heard
the testimony of the witnesses and observed their deportment and manner of
testifying during the trial. 3

With respect to the fact that Dionisio de Castro was not presented to testify, it is
sufficient to say that there was no necessity for this because there is no question
that the amount of P34,000.00 which he had advanced for the complainants and
others was received by Nick Reyes.
Second. Appellant contends that the receipts constitute the best evidence to show
that only Nick Reyes received the amounts stated therein because only his signature
appears on the receipts. That the receipts were signed by Nick Reyes alone only
proves that it was to him that the amounts were paid. What, on the other hand,
complainants are saying is that appellant is guilty because she and her husband,
conspiring together, acted and made them believe that they were licensed
recruiters. If so, the acts of the husband were likewise those of her. Indeed, the
evidence shows that after receiving the amounts from complainants, Nick Reyes
handed the money paid to the appellant and that Nick Reyes issued the receipts in
question only after appellant Thelma Reyes had counted it.

Appellant claims that she and her husband separated in 1985 precisely because she
did not want to be involved in his illegal activities. This seems to be us to be a
convenient way to dissociate herself, but her mere claim is not enough to overcome
the evidence of the prosecution. If there was anyone whose testimony needed
corroboration it was appellant.

Taking another tack, appellant points out that complainants cannot explain why the
purpose for which payment was made is not stated in the receipts nor why the
receipts purport to have been issued in "Manila" and not in Los Baos where they
said they had made all the payments. She argues that if the illegal recruitment was
made in Manila, then the Regional Trial Court of Laguna had no jurisdiction to try
the case.

The circumstances pointed out by appellant only underscores the deviousness of

appellant and her husband. Complainants have an elementary education only. It is
not for them but for appellant and her husband to explain these circumstances
because it was the latter who made-the receipts. It is not far fetched that they made
the receipts this way precisely to create doubt as to their real import. It is enough
that complainants positively identified the appellant and her husband as having
illegally recruited them and collected money from them. Their testimonies have not
been successfully rebutted by the lame denial of appellant.

Third. Appellant contends that in any event the testimonies of the two complainants
could not be the basis for a finding of illegal recruitment on a large scale and for
imposing the penalty of life imprisonment on her. The Labor Code prescribes the
penalty of life imprisonment for illegal recruitment when committed on a "large
scale." Art. 38 (b) of the Code provides:

(b) Illegal recruitment when committed by a syndicate or in large scale shall be

considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.

And Art. 39 (a) provides:

Art. 39. Penalties. (a) The penalty of life imprisonment and a fine of One
Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment
constitutes economic sabotage as defined herein.

We agree with this contention.

In this case the information against appellant mentioned only the two complainants
Fabian Baradas and Rosalino Bitang as having been illegally recruited by appellant
and her husband. The trial Court, however, held appellant guilty of illegal
recruitment on a large scale because aside from Baradas and Bitang, appellant and
her husband allegedly recruited others, namely, Lorenzo Blanza, Edgardo Garcia,
Ramon Mendoza, and Dionisio de Castro.

This is error. To be sure, Blanza and Garcia, according to complainant Baradas were
able to obtain overseas employment. On the other hand, with respect to De Castro
there is no evidence that he, too, had been illegally recruited by the spouses. What
appears in the record is that he advanced the amount of P34,000.00 in behalf of the
complainants and the three others. Only two, therefore, had been illegally recruited.

There are, it is said, 14 other cases filed pending in the courts against the accused
for illegal recruitment. These cases cannot be taken into account for the purpose of
Art. 38(b). When the Labor Code speaks of illegal recruitment "committed against
three (3) or more persons individually or as a group," it must be understood as
referring to the number of complainants in each case who are complainants therein,
otherwise, prosecutions for single crimes of illegal recruitment can be cummulated
to make out a case of large scale illegal recruitment. In other words, a conviction for
large scale illegal recruitment must be based on a finding in each case of illegal
recruitment of three or more persons whether individually or as a group.

Moreover, even it Blanza and Garcia had been illegally recruited so as to make the
number of persons illegally recruited four and make the crime that of illegal
recruitment on a large scale, since this was not alleged in the information and this is
the more serious offense which includes that which was charged, the appellant can
only be found guilty of the less serious offense charged, pursuant to Rule 120, 4.

Accordingly, appellant must be punished under Art. 39(c) of the Labor Code which
provides:

(c) Any person who is neither a licensee nor a holder of authority under this
Title found violating any provision thereof or its implementing rules and regulations
shall upon conviction thereof, suffer the penalty of imprisonment of not less than
four years nor more than eight years or a fine of not less than P20,000 nor more
than P100,000 or both such imprisonment and fine, at the discretion of the court.

WHEREFORE, the decision appealed from is SET ASIDE and another one is rendered,
finding appellant Thelma Reyes guilty of illegal recruitment on two (2) counts and is
hereby sentenced for each crime to suffer imprisonment of 6 years and 1 day to 8
years and pay a fine of P50,000.00; and ordered to indemnify Rosalino Bitang in the
amount of P13,500.00 and Fabian Baradas in the amount of P18,000.00 and pay the
costs.

SO ORDERED.

G.R. No. 183879 April 14, 2010

ROSITA SY, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision1 dated July 22, 2008 of the Court of Appeals (CA) in CA-
G.R. CR No. 30628.

Rosita Sy (Sy) was charged with one count of illegal recruitment in Criminal Case
No. 02-0537 and one count of estafa in Criminal Case No. 02-0536. In a joint
decision of the Regional Trial Court (RTC), Sy was exonerated of the illegal
recruitment charge. However, she was convicted of the crime of estafa. Thus, the
instant appeal involves only Criminal Case No. 02-0536 for the crime of estafa.

The Information2 for estafa reads:

That sometime in the month of March 1997, in the City of Las Pias, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did, then
and there willfully, unlawfully and feloniously defraud Felicidad Mendoza-Navarro y
Landicho in the following manner, to wit: the said accused by means of false
pretenses and fraudulent representation which she made to the said complainant
that she can deploy her for employment in Taiwan, and complainant convinced by
said representations, gave the amount of P120,000.00 to the said accused for
processing of her papers, the latter well knowing that all her representations and
manifestations were false and were only made for the purpose of obtaining the said
amount, but once in her possession[,] she misappropriated, misapplied and
converted the same to her own personal use and benefit, to the damage and
prejudice of Felicidad Mendoza-Navarro y Landicho in the aforementioned amount
of P120,000.00.

CONTRARY TO LAW.3

On May 27, 2007, Sy was arraigned and pleaded not guilty to the crimes charged.
Joint trial ensued thereafter.
As summarized by the CA, the facts of the case are as follows:

Version of the Prosecution

Sometime in March 1997, appellant, accompanied by Corazon Miranda (or

"Corazon"), went to the house of Corazons sister, Felicidad Navarro (or "Felicidad"),
in Talisay, Batangas to convince her (Felicidad) to work abroad. Appellant assured
Felicidad of a good salary and entitlement to a yearly vacation if she decides to take
a job in Taiwan. On top of these perks, she shall receive compensation in the amount
of Php120,000.00. Appellant promised Felicidad that she will take care of the
processing of the necessary documents, including her passport and visa. Felicidad
told appellant that she will think about the job offer.

Two days later, Felicidad succumbed to appellants overseas job solicitation. With
Corazon in tow, the sisters proceeded to appellants residence in Better Homes,
Moonwalk, Las Pias City. Thereat, Felicidad handed to appellant the amount of
Php60,000.00. In the third week of March 1997, Felicidad returned to appellants
abode and paid to the latter another Php60,000.00. The latter told her to come back
the following day. In both instances, no receipt was issued by appellant to
acknowledge receipt of the total amount of Php120,000.00 paid by Felicidad.

On Felicidads third trip to appellants house, the latter brought her to Uniwide in
Sta. Cruz, Manila, where a male person showed to them the birth certificate that
Felicidad would use in applying for a Taiwanese passport. The birth certificate was
that of a certain Armida Lim, born to Margarita Galvez and Lim Leng on 02 June
1952. Felicidad was instructed on how to write Armida Lims Chinese name.

Subsequently, appellant contacted Felicidad and thereafter met her at the Bureau of
Immigration office. Thereat, Felicidad, posing and affixing her signature as Armida
G. Lim, filled out the application forms for the issuance of Alien Certificate of
Registration (ACR) and Immigrant Certificate of Registration (ICR). She attached to
the application forms her own photo. Felicidad agreed to use the name of Armida
Lim as her own because she already paid to appellant the amount of Php120,000.00.

In December 1999, appellant sent to Felicidad the birth certificate of Armida Lim,
the Marriage Contract of Armida Lims parents, ACR No. E128390, and ICR No.
317614. These documents were submitted to and eventually rejected by the
Taiwanese authorities, triggering the filing of illegal recruitment and estafa cases
against appellant.

Version of the Defense

Appellant denied offering a job to Felicidad or receiving any money from her. She
asserted that when she first spoke to Felicidad at the latters house, she mentioned
that her husband and children freely entered Taiwan because she was a holder of a
Chinese passport. Felicidad commented that many Filipino workers in Taiwan were
holding Chinese passports.

Three weeks later, Felicidad and Corazon came to her house in Las Pias and asked
her if she knew somebody who could help Felicidad get a Chinese ACR and ICR for a
fee.

Appellant introduced a certain Amelia Lim, who, in consideration of the amount of

Php120,000.00, offered to Felicidad the use of the name of her mentally deficient
sister, Armida Lim. Felicidad agreed. On their second meeting at appellants house,
Felicidad paid Php60,000.00 to Amelia Lim and they agreed to see each other at
Uniwide the following day. That was the last time appellant saw Felicidad and
Amelia Lim.4

On January 8, 2007, the RTC rendered a decision,5 the dispositive portion of which
reads:

WHEREFORE, premises considered the court finds the accused Rosita Sy NOT
GUILTY of the crime of Illegal Recruitment and she is hereby ACQUITTED of the said
offense. As regards the charge of Estafa, the court finds the accused GUILTY thereof
and hereby sentences her to an indeterminate penalty of four (4) years of prision
correctional as minimum to 11 years of prision mayor, as maximum. The accused is
ordered to reimburse the amount of sixty-thousand (Php60,000.00) to the private
complainant.

SO ORDERED.6

Aggrieved, Sy filed an appeal for her conviction of estafa. On July 22, 2008, the CA
rendered a Decision,7 affirming with modification the conviction of Sy, viz.:

WHEREFORE, with the MODIFICATION sentencing accused-appellant to suffer the

indeterminate penalty of four (4) years and two (2) months of prision correccional,
as minimum, to seventeen (17) years of reclusion temporal, as maximum, the
appealed decision is AFFIRMED in all other respects.

SO ORDERED.8

Hence, this petition.

The sole issue for resolution is whether Sy should be held liable for estafa, penalized
under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).9

Swindling or estafa is punishable under Article 315 of the RPC. There are three ways
of committing estafa, viz.: (1) with unfaithfulness or abuse of confidence; (2) by
means of false pretenses or fraudulent acts; or (3) through fraudulent means. The
three ways of committing estafa may be reduced to two, i.e., (1) by means of abuse
of confidence; or (2) by means of deceit.

The elements of estafa in general are the following: (a) that an accused defrauded
another by abuse of confidence, or by means of deceit; and (b) that damage and
prejudice capable of pecuniary estimation is caused the offended party or third
person.

The act complained of in the instant case is penalized under Article 315, paragraph
2(a) of the RPC, wherein estafa is committed by any person who shall defraud
another by false pretenses or fraudulent acts executed prior to or simultaneously
with the commission of the fraud. It is committed by using fictitious name, or by
pretending to possess power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or by means of other similar deceits.

The elements of estafa by means of deceit are the following, viz.: (a) that there must
be a false pretense or fraudulent representation as to his power, influence,
qualifications, property, credit, agency, business or imaginary transactions; (b) that
such false pretense or fraudulent representation was made or executed prior to or
simultaneously with the commission of the fraud; (c) that the offended party relied
on the false pretense, fraudulent act, or fraudulent means and was induced to part
with his money or property; and (d) that, as a result thereof, the offended party
suffered damage.10

In the instant case, all the foregoing elements are present. It was proven beyond
reasonable doubt, as found by the RTC and affirmed by the CA, that Sy
misrepresented and falsely pretended that she had the capacity to deploy Felicidad
Navarro (Felicidad) for employment in Taiwan. The misrepresentation was made
prior to Felicidads payment to Sy of One Hundred Twenty Thousand Pesos
(P120,000.00). It was Sys misrepresentation and false pretenses that induced
Felicidad to part with her money. As a result of Sys false pretenses and
misrepresentations, Felicidad suffered damages as the promised employment
abroad never materialized and the money she paid was never recovered.

The fact that Felicidad actively participated in the processing of the illegal travel
documents will not exculpate Sy from liability. Felicidad was a hapless victim of
circumstances and of fraud committed by Sy. She was forced to take part in the
processing of the falsified travel documents because she had already paid
P120,000.00. Sy committed deceit by representing that she could secure Felicidad
with employment in Taiwan, the primary consideration that induced the latter to
part with her money. Felicidad was led to believe by Sy that she possessed the
power and qualifications to provide Felicidad with employment abroad, when, in
fact, she was not licensed or authorized to do so. Deceived, Felicidad parted with her
money and delivered the same to petitioner. Plainly, Sy is guilty of estafa.
Illegal recruitment and estafa cases may be filed simultaneously or separately. The
filing of charges for illegal recruitment does not bar the filing of estafa, and vice
versa. Sys acquittal in the illegal recruitment case does not prove that she is not
guilty of estafa. Illegal recruitment and estafa are entirely different offenses and
neither one necessarily includes or is necessarily included in the other. A person
who is convicted of illegal recruitment may, in addition, be convicted of estafa under
Article 315, paragraph 2(a) of the RPC.11 In the same manner, a person acquitted of
illegal recruitment may be held liable for estafa. Double jeopardy will not set in
because illegal recruitment is malum prohibitum, in which there is no necessity to
prove criminal intent, whereas estafa is malum in se, in the prosecution of which,
proof of criminal intent is necessary.12

The penalty prescribed for estafa under Article 315 of the RPC is prision
correccional in its maximum period to prision mayor in its minimum period, if the
amount defrauded is over Twelve Thousand Pesos (P12,000.00) but does not
exceed Twenty-two Thousand Pesos (P22,000.00), and if such amount exceeds the
latter sum, the penalty shall be imposed in its maximum period, adding one year for
each additional Ten Thousand Pesos (P10,000.00); but the total penalty that may be
imposed shall not exceed twenty years. In such cases, and in connection with the
accessory penalties that may be imposed under the provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The addition of one year imprisonment for each additional P10,000.00, in excess of
P22,000.00, is the incremental penalty. The incremental penalty rule is a
mathematical formula for computing the penalty to be actually imposed using the
prescribed penalty as the starting point. This special rule is applicable in estafa and
in theft.131avvphi1

In estafa, the incremental penalty is added to the maximum period of the penalty
prescribed, at the discretion of the court, in order to arrive at the penalty to be
actually imposed, which is the maximum term within the context of the
Indeterminate Sentence Law (ISL).14 Under the ISL, attending circumstances in a
case are applied in conjunction with certain rules of the Code in order to determine
the penalty to be actually imposed based on the penalty prescribed by the Code for
the offense. The circumstance is that the amount defrauded exceeds P22,000.00, and
the incremental penalty rule is utilized to fix the penalty actually imposed.15

To compute the incremental penalty, the amount defrauded shall be subtracted by

P22,000.00, and the difference shall be divided by P10,000.00, and any fraction of
P10,000.00 shall be discarded.16

In the instant case, prision correccional in its maximum period to prision mayor in
its minimum period is the imposable penalty. The duration of prision correccional in
its maximum period is from four (4) years, two (2) months and one (1) day to six (6)
years; while prision mayor in its minimum period is from six (6) years and one (1)
day to eight (8) years. The incremental penalty for the amount defrauded would be
an additional nine years imprisonment, to be added to the maximum imposable
penalty of eight years. Thus, the CA committed no reversible error in sentencing Sy
to an indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to seventeen (17) years of reclusion temporal, as
maximum.

As to the amount that should be returned or restituted by Sy, the sum that Felicidad
gave to Sy, i.e., P120,000.00, should be returned in full. The fact that Felicidad was
not able to produce receipts is not fatal to the case of the prosecution since she was
able to prove by her positive testimony that Sy was the one who received the money
ostensibly in consideration of an overseas employment in Taiwan.17

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals dated
July 22, 2008 in CA-G.R. CR No. 30628, sentencing petitioner Rosita Sy to an
indeterminate penalty of four (4) years and two (2) months of prision correccional,
as minimum, to seventeen (17) years of reclusion temporal, as maximum, is hereby
AFFIRMED. We, however, MODIFY the CA Decision as to the amount of civil
indemnity, in that Sy is ordered to reimburse the amount of One Hundred Twenty
Thousand Pesos (P120,000.00) to private complainant Felicidad Navarro.

SO ORDERED.

G.R. No. 143726 February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
LETICIA SAGAYAGA, ALMA SO, VICENTE SO YAN HAN and ORLANDO BURGOS,
accused.
LETICIA SAGAYAGA, appellant.

This is an appeal from the Decision1 of the Regional Trial Court of Manila, Branch
35, convicting the appellant Leticia Sagayaga of large scale illegal recruitment as
defined in Section 6, Republic Act No. 8042 and sentencing her to suffer life
imprisonment.

The Indictment

The appellant was charged with large scale illegal recruitment in an Information, the
accusatory portion of which reads:

That during the period from October 1997 to December 1997 and sometime prior or
subsequent thereto, in the City of Manila, Philippines, and within the jurisdiction of
this Honorable Court, above-named accused, conspiring, confederating and helping
each other and representing themselves to have the power, capacity and lawful
authority to deploy complainants as factory workers in Taiwan, did then and there
willfully, unlawfully and feloniously recruit and promise employment to ELMER
JANER, ERIC FAROL and ELMER RAMOS for and in consideration of amounts
ranging from P70,000.00 to P75,000.00 which they paid to said accused, without the
latter having deployed and/or reimbursed complainants of their payments despite
demands, to the damage and prejudice of said complainants.

CONTRARY TO LAW.2

Only the appellant was arrested, duly arraigned, and, with the assistance of counsel,
pleaded not guilty to the crime charged. The other accused remained at large.

The Case for the Prosecution

As culled by the Office of the Solicitor General, the facts which triggered the case in
the trial court are as follows:

Re: Elmer Janer

Sometime in the last week of October 1997, Elmer Janer went to the office of Alvis
Placement Service Corporation located at AP Building 1563 F. Agoncillo St., corner
Pedro Gil St., Ermita, Manila, to apply for overseas employment as factory worker in
Taiwan (pp. 4, 5 and 14, TSN, September 7, 1999). Appellant Leticia Sagayaga, after
personally receiving Elmer's application, required him to submit the necessary
documents (p. 5, TSN, September 7, 1999).

Appellant further asked Elmer to pay seventy-five thousand pesos (P75,000.00) as

placement fee (Id.). Elmer paid the said fee to appellant in three (3) installments, the
first, on November 5, 1997, in the amount of twenty-five thousand pesos
(P25,000.00); the second, on November 13, 1997, in the amount of five thousand
pesos (P5,000.00); and the third, on November 19, 1997, in the amount of forty-five
thousand pesos (P45,000.00). All the payments were made inside Alvis Placement
Agency (p. 6, id.).

As required, Elmer also had his medical examination at the Angeles Medical Clinic,
the result of which confirmed that he was fit to work (p. 9, Ibid.). Thereafter, he was
told to wait for the arrival of the employer. After seven (7) months, no employer
arrived. Tired of waiting, Elmer demanded that he be refunded of his money (Id.).
Despite appellant's promises to pay, Elmer was not refunded of his money.

Exasperated, Elmer asked appellant for a promissory note, which appellant

executed, promising to pay Elmer seventy-five thousand (P75,000.00) on May 6,
1998 (pp. 10 and 11, TSN, September 7, 1999). In said promissory note, appellant
designated herself as the assistant general manager of the placement agency (Id.).
When appellant failed to refund the amount to Elmer on the date stated in the
promissory note, the latter went to the Philippine Overseas Employment
Administration (POEA) and filed a sworn complaint against appellant (p. 11, TSN,
September 7, 1999).

Re: Testimony of Eric Farol

On November 20, 1997, Eric Farol first met appellant at Alvis Placement Service
Corporation when he applied for an overseas job in Taiwan as a plastic factory
worker (pp. 3-4, TSN, September 20, 1999). Appellant and her co-accused Vicente So
Yan Han discussed with Eric about the latter's job application (Id.). They required
Eric to submit to them his passport, National Bureau of Investigation (NBI)
clearance, medical clearance and to pay seventy-five thousand pesos (P75,000.00)
as placement fee (Id.). Eric submitted all the aforestated requirements and paid the
seventy-five thousand pesos to appellant in two (2) installments, for which the
latter issued receipts affixing her signature thereon (pp. 5-9, TSN, September 20,
1999). Appellant then promised Eric that he will be leaving for Taiwan before
Christmas of 1997. Failing to fulfill her promise, appellant and Vicente So Yan Han
told Eric to wait up to the month of January 1998 (pp. 10 and 11, Ibid.). When
appellant failed to comply with her commitment to send Eric to Taiwan in January
1998, Eric demanded from appellant the refund of his money (pp. 11 and 12, Ibid.).
Appellant then issued to him a check dated February 5, 1998, affixing her signature
thereon, for the amount of seventy-two thousand five hundred pesos (P72,500.00).
But when Eric presented the check to the drawee bank for payment, the same was
dishonored by reason: "ACCOUNT CLOSED" (pp. 11-14, TSN, September 20, 1999).

Insistent that he be refunded of his money, Vicente So Yan Han gave him cash
amounts on different dates: February 6, 1998 - - five thousand pesos; February 7,
1998 - - five thousand pesos; and February 17, 1998 - - one thousand pesos (pp. 14-
18, TSN, September 20, 1999). Eric was told to return on April 4, 1998 for the full
payment of the refund. However, when Eric went back on the first week of April,
appellant gave him a letter that the full refund of his money would be given on April
30, 1998 (p. 19, Ibid). Eric returned to appellant on April 30, 1998, but still,
appellant failed to refund the money (p. 20, Id.).

On May 8, 1998, Eric filed a complaint against appellant and Vicente So Yan Han at
the POEA (pp. 20-21, TSN, September 20, 1999).

Re: Elmer Ramos

Om September 27, 1997, Elmer Ramos went to the office of Alvis Placement Services
Corporation to apply for overseas employment as factory worker in Taiwan (pp. 8
and 9, TSN, September 27, 1999). Initially, he took up his application with Vicente So
Yan Han who required him to submit his passport, NBI and medical clearances and
to pay seventy thousand pesos (P70,000.00) as placement fee (pp. 10 and 11, TSN,
September 27, 1999). Elmer submitted the aforestated requirements and paid the
placement fee in two (2) installments: twenty thousand pesos (P20,000.00) - - paid
to appellant and Vicente So Yan Han on October 22, 1997; and fifty thousand pesos
(P50,000.00) - - paid to Vicente So Yan Han on November 12, 1997 (pp. 11-15, TSN,
September 27, 1999). Vicente So Yan Han then assured Elmer that he would be
included for deployment in the first batch on the first week of December 1997
which, however, did not materialize (pp. 19 and 20, TSN, September 27, 1997).
Elmer decided to withdraw his application. The documents submitted were
returned to Elmer but not the placement fee he paid (pp. 21 and 22, TSN, September
27, 1999). Instead, appellant issued a check dated February 5, 1998 for the amount
of seventy thousand pesos (P70,000.00) (p. 22, Id.). When Elmer encashed the check
with the bank, it was dishonored by reason: "closed account" (p. 23, Ibid.).

On May 6, 1998, Elmer went back to the office of Alvis Placement Service
Corporation to demand the refund of his money. Elmer discussed the matter with
appellant, but the latter failed to return Elmer's money. The next day (May 7, 1998),
Elmer went to the POEA and filed a sworn complaint against appellant and Vicente
So Yan Han (pp. 25 and 26, TSN, September 27, 1999). On May 9, 1998, Elmer again
tried to get a refund from appellant, but the latter only issued a promissory note
assuring Elmer payment of the seventy thousand pesos on May 14 and 15, 1998 at
3:00 o'clock in the afternoon (pp. 27 and 28, Ibid.). On May 15, 1998, appellant gave
Elmer the amount of only five thousand pesos (P5,000.00) (p. 29, Ibid.).3

The Case for the Appellant

The appellant restates her case as follows:

On different dates in 1997, the three (3) complaining witnesses in this case (Elmer
Ramos, Elmer Janer and Eric Farol) filed separate applications for job placement as
factory workers in Taiwan with ALvis Placement Services Corporation, with
business address at Rm. 507, AP Bldg., 1563 F. Agoncillo cor. Pedro Gil Sts., Ermita,
Manila[,] where the appellant Leticia Sagayaga was then working as corporate
treasurer.

Elmer Ramos filed his application sometime in September 1997 with the
corporation, through accused-at-large Vicente So Yan Han. It was the same Vicente
So Yan Han who asked him to submit the required documents (NBI and medical
clearances, etc.), and to pay the amount of P70,000.00 as placement fee. He
submitted the required documents, and paid the placement fee in two (2)
installments as follows: P20,000.00 was paid by him on 22 October 1997 to
appellant Letecia Sagayaga and Vicente So Yan Han on the office of the corporation;
and P50,000.00 was paid by him on 12 November 1997 to Vicente So Yan Han. Then
So Yan Han informed him that he would be deployed in Taiwan in the first week of
December 1997. The promised deployment or job placement never came. He then
decided to withdraw his application and get back the documents he submitted and
the money he had paid. He was issued a check for the fee he had paid but the check
was dishonored by the bank for the reason "account closed." Failing to get his
money ba[c]k, he filed a complaint with the Philippine Overseas Employment
Administration where he executed a "Sinumpaang Salaysay" on 7 May 1998.
Elmer Janer filed his job placement application with Alvis Placement Services
Corporation in the last week of October 1997. Similarly, he was required to submit
the necessary documents and to pay the amount of P75,000.00 as placement fee. He
submitted the requisite documents and paid the placement in three (3) installments,
as follows: He paid P25,000.00 on 5 November 1997; P5,000.00 on 13 November
1997; and P45,000.00 on 19 November 1997. Thereafter, he was asked to wait for 7
months for his employer to arrive. No employer arrive[d]. He decided to withdraw
his application and asked to be reimbursed the money he had paid. Appellant Leticia
Sagayaga gave him instead a "promissory note" indicating that the amount of
P75,000.00 will be paid to Elmer Janer on 6 May 1998. When no payment was made
to him as promised, he filed a complaint with the Philippine Overseas Employment
Administration and where he executed a "Sinumpaang Salaysay" on 13 May 1998.

Eric Farol filed his job placement application with Alvis Placement Services
Corporation on 20 November 1997. After submitting the required documents, he
paid the placement fee of P75,000.00 in two (2) installments as follows: He paid the
first installment of P15,000.00 on 12 December 1997; and the balance of P60,000.00
was paid by him on 16 December 1997. The appellant Leticia Sagayaga promised
that he would be able to leave for Taiwan before Christmas of 1997. When he was
not able to leave for Taiwan before the end of 1997, he was asked to wait until
January 1998. When he failed to leave as promised, he decided to withdraw his
application and asked that he be refunded the amount of P75,000.00 he had paid as
placement fee. The check given to him by the appellant bounced for the reason
"account closed." Forthwith, Vicente So Yan Han paid him on different dates the
amounts of P5,000.00 on 6 February 1998, another P5,000.00 on 7 February 1998,
and P1,000.00 on 17 February 1998. And as he was not refunded the full amount of
the fee paid by him, he filed a complaint with the Philippine Overseas Employment
Administration and executed a "Sinumpaang Salaysay" on 7 May 1998.

As supplied by the unrebutted testimony of the appellant, the persons who had
effective and actual control, management and direction of the business and
transactions of Alvis Placement Services Corporation were the accused-spouses
Vicente So Yan Han and Alma So. As Treasurer of the corporation, her duties were
limited to receiving money or fees paid to the agency by applicants and to deposit
the same in the bank in the name and for the account of the corporation. Although
she (appellant) received money from the complainants Elmer Janer and Eric Farol,
the same was deposited by her with the bank under the account of the corporation.
And if ever she signed promissory notes in behalf of the corporation and issued
checks to the complainants, she did so upon the instruction and assurance of
accused-spouses So Yan Han and Alma So that said notes and checks would have
sufficient funds on their due dates. And said checks and notes were never paid
because the accused-spouses disappeared and left for unknown addresses.4

After trial, the trial court rendered judgment convicting the appellant of the crime
charged, the dispositive portion of which reads:
WHEREFORE, judgment is rendered pronouncing accused LETICIA SAGAYAGA
guilty beyond reasonable doubt of illegal recruitment in large scale and sentencing
said accused to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of
P750,000.00, and the costs.

The accused is further ordered to refund to Elmer Janer the sum of P75,000.00; to
Eric V. Farol the amount of P61,500.00; and to Elmer Ramos the amount of
P65,000.00.

SO ORDERED.5

The appellant assails the decision of the trial court contending that:

-I-

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT "NO WEIGHT CAN BE
GIVEN TO THE CONTENTION OF THE ACCUSED THAT SHE IS NOT CRIMINALLY
LIABLE BECAUSE SHE HAD NO PARTICIPATION IN THE OPERATION OF THE ALVIS
PLACEMENT SERVICE CORPORATION, AND SHE HAD NO KNOWLEDGE ABOUT ITS
RECRUITMENT ACTIVITIES."

- II -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT AS TREASURER OF

ALVIS PLACEMENT SERVICE CORPO[R]ATION, THE ACCUSED-APPELLANT "WAS IN
CHARGE (OF) THE MANAGEMENT AND CONTROL OF THE FINANCIAL AFFAIRS
AND RESOURCES OF THE CORPORATION."

- III -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT AS THE VICE-

PRESIDENT/TREASURER AND ASSISTANT GENERAL MANAGER OF ALVIS
PLACEMENT SERVICE CORPORATION, THE ACCUSED-APPELLANT WAS A TOP
RANKING OFFICER OF SAID CORPORATION, WITH AUTHORITY TO PARTICIPATE
DIRECTLY IN THE CONTROL, MANAGEMENT OR DIRECTION OF ITS BUSINESS
AFFAIRS.

- IV -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT ACCUSED-APPELLANT

WAS GUILTY OF ILLEGAL RECRUITMENT "IN LARGE SCALE" AND IN SENTENCING
HER TO SUFFER THE PENALTY OF "LIFE IMPRISONMENT."6

The appellant avers that she is not criminally liable for the crime charged because
the prosecution failed to prove that she had a direct or actual control, management
or direction of the business and recruitment activities of the Alvis Placement
Services Corporation (APSC). She asserts that she had no knowledge of the
recruitment activities of APSC and had no participation whatsoever in its operation.
In dealing with the private complainants, she was merely performing routinary
office work as a mere employee. Her participation as an employee of APSC with
respect to the employment application of Elmer Ramos for Taiwan was to receive
his placement fee of P20,000.00. Hence, the appellant avers, she cannot be held
criminally liable for illegal recruitment in large scale. If, at all, she can be held liable
only with respect to the employment applications of Janer and Farol. Thus,
according to the appellant, the trial court erred in sentencing her to life
imprisonment.

The appeal has no merit.

Under Section 6 (m) of Rep. Act No. 8042,7 illegal recruitment may be committed by
any person, whether a non-licensee, non-holder of authority, licensee or holder of
authority, thus:

(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's fault....8

Under the last paragraph of the said section, those criminally liable are the
principals, accomplices and accessories. In case of a juridical person, the officers
having control, management or direction of the business shall be criminally liable.

In this case, the appellant, as shown by the records of the POEA, was both the APSC
Vice-President-Treasurer and the Assistant General Manager. She was a high
corporate officer who had direct participation in the management, administration,
direction and control of the business of the corporation. As the trial court aptly
declared in its decision:

Again, no weight can be given to the contention of the accused. The terms "control,
management or direction" used in the last paragraph of Section 6 of Republic Act
No. 8042 broadly cover all phases of business operation. They include the aspects of
administration, marketing and finances, among others.

From the records of the POEA, the accused appears as the Vice President
(V.P.)/Treasurer of the Alvis Placement Service Corporation (Exhibit A). Moreover,
in the promissory note dated April 30, 1998 (Exhibit K), which the accused issued to
Elmer Janer, she designated her position in the said corporation as its "Asst. General
Manager" (Exhibit K-1). Undoubtedly, the positions of vice-president, treasurer, and
assistant general manager are high ranking corporate positions in any corporate
body. These positions invest on the incumbent the authority of managing,
controlling and directing the corporate affairs.
The claim of the accused that her designation in the certification of the POEA
(Exhibit A) as the vice-president of Alvis Placement Service Corporation has
surprised her because, according to her, the vice-president was Vicente So Yan Han
(TSN, Mar. 13, 2000, pp. 16-17), hardly inspires belief. If this were true, she would
have no difficulty in securing from the POEA an authenticated copy of the list of all
officials of the corporation which they were required to file with the said Office. For
no stated reason, however, the defense omitted to secure such list and submit it to
this Court.

At any rate, the accused has expressly admitted in the course of her testimony that
she was at the time the Treasurer of their recruitment agency. As such she was in
charge of the management and control of the financial affairs and resources of the
corporation. She was in charge of collecting all its receivables, safely keeping them,
and disbursing them. She testified that it was part of her duties to receive and collect
the monies paid by applicants (TSN, Mar. 13, 2000, p. 5). Her disbursing authority
has been clearly demonstrated by her co-signing the checks Exhibits D-2 and G.9

The appellant is guilty of illegal recruitment as a principal by direct participation,

having dealt directly with the private complainants. In fact, she received their
placement fees and even signed, in her capacity as the Assistant General Manager of
the APSC, the promissory note on May 6, 1998 in favor of private complainant Elmer
Janer, obliging the APSC to pay to him the amount of P75,000.00. However, despite
the private complainants' demands, their placement fees were not reimbursed in
full. In People vs. Cabais,10 we held thus:

Accused-appellant contends that she was not involved in recruitment but was
merely an employee of a recruitment agency. An employee of a company or
corporation engaged in illegal recruitment may be held liable as principal, together
with his employer, if it is shown that he actively and consciously participated in
illegal recruitment. Recruitment is "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 deemed engaged in
recruitment and placement11

In this case, the overwhelming evidence on record indubitably shows that the
appellant engaged in illegal recruitment. As aptly ruled by the trial court:

The first line of defense invoked by the accused to exonerate herself of the criminal
charge is clearly and conclusively without merit. There is no dispute about the fact
that the three complainants engaged (sic) the Alvis Placement Service Corporation,
a recruitment agency duly authorized by the POEA wherein the accused was one of
its top officers, to deploy them as factory workers in Taiwan. Admittedly, they
incurred expenses, designated as placement fees, in connection with their
documentation and processing for purposes of their de[pl]oyment. Elmer Janer paid
to the accused, who received the payment, the total amount of P75,000.00 for his
placement fee (Exhibit J; TSN, Sept. 7, 1999, pp. 6-8). Eric Farol paid also to the
accused a similar amount for the same purpose (Exhibit E; TSN, Sept. 20, 1999, pp.
5-8). Elmer Ramos paid to the agency the sum of P70,000.00 of which P20,000.00
was received by the accused, and the balance of P50,000.00 was received by Vicente
So Yan Han (Exhibit F; TSN, Sept. 27, 1999, pp. 10-18). In the course of her
testimony, the accused admitted that she received these payments by the
complainants of their placement fees.

However, the expected deployment of the complainants as factory workers in

Taiwan, or even elsewhere, did not take place, without any fault on their part. There
is absolutely no evidence reflecting that the failure to deploy them was imputable to
their faults.

The evidence has satisfactorily established that the complainants have not been
reimbursed the full amount of their placement fees, notwithstanding their
persistent demands. Not a single peso of his placement fee was returned to Elmer
Janer. Instead, on April 30, 1998, the accused executed a promissory note (Exhibit
K) in behalf of the Alvis Placement Service Corporation, undertaking to pay Elmer
Janer the amount of P75,000.00 on May 6, 1998. However, the amount covered by
the promissory note was not paid (TSN, Sept. 7, 1999, p. 11).

On the other hand, although Eric Farol and Elmer Ramos were reimbursed of
P11,000.00 and P5,000.00 in cash, respectively, and the balance of their placement
fees were covered by checks (Exhibits D-2 and G), these transactions did not relieve
the accused of her criminal liability. The reimbursement contemplated by paragraph
(m) of Section 6 of Republic Act No. 8042 is full reimbursement of the expenses
incurred by the worker in connection with the documentation and processing of his
deployment. To rule otherwise would be offensive to the administration of justice,
as illegal recruiters could easily escape criminal liability with impunity by simply
returning an insignificant portion of the amount they collected from the worker. The
checks drawn and issued by the accused to these two complainants, however, did
not produce the effect of payment, for they were both dishonored by the drawee
bank on the ground of closed account. Pursuant to the second paragraph of Article
1249 of the Civil Code, "(t)he delivery of promissory notes payable to order, or bills
of exchange or other mercantile documents shall produce the effect of payment only
when they have been cashed, or when through the fault of the creditor they have
been impaired."12

The appellant's bare denial of her involvement in the management, administration,

control and operation of APSC cannot prevail over her judicial admissions, the
positive testimonies of the private complainants and the documentary evidence
adduced by the prosecution.

Section 6 of Rep. Act No. 8042 provides that illegal recruitment shall be considered
an offense involving economic sabotage if committed in large scale, viz, committed
against three (3) or more persons individually or as a group, the imposable penalty
for which is life imprisonment and a fine of not less than P500,000.00 nor more than
P1,000,000.00.13 In this case, there are three private complainants, namely, Elmer
Janer, Eric Farol and Elmer Ramos. The trial court, thus, correctly convicted the
appellant of large scale illegal recruitment and sentenced her to suffer life
imprisonment.

IN LIGHT OF ALL THE FOREGOING, the appeal is DENIED. The Decision of the
Regional Trial Court of Manila, Branch 35, is AFFIRMED. Costs against the appellant.

SO ORDERED.

G.R. Nos. 182978-79 April 7, 2009

BECMEN SERVICE EXPORTER AND PROMOTION, INC., Petitioner,

vs.
SPOUSES SIMPLICIO and MILA CUARESMA (for and in behalf of their daughter,
Jasmin G. Cuaresma), WHITE FALCON SERVICES, INC. and JAIME ORTIZ
(President,White Falcon Services, Inc.), Respondents.

These consolidated petitions assail the Amended Decision1 of the Court of Appeals
dated May 14, 2008 in CA-G.R. SP No. 80619 and CA-G.R. SP No. 81030 finding White
Falcon Services, Inc. and Becmen Service Exporter and Promotion, Inc. solidarily
liable to indemnify spouses Simplicio and Mila Cuaresma the amount of US$4,686.73
in actual damages with interest.

On January 6, 1997, Jasmin Cuaresma (Jasmin) was deployed by Becmen Service

Exporter and Promotion, Inc.2 (Becmen) to serve as assistant nurse in Al-Birk
Hospital in the Kingdom of Saudi Arabia (KSA), for a contract duration of three
years, with a corresponding salary of US$247.00 per month.

Over a year later, she died allegedly of poisoning.

Jessie Fajardo, a co-worker of Jasmin, narrated that on June 21, 1998, Jasmin was
found dead by a female cleaner lying on the floor inside her dormitory room with
her mouth foaming and smelling of poison.3

Based on the police report and the medical report of the examining physician of the
Al-Birk Hospital, who conducted an autopsy of Jasmins body, the likely cause of her
death was poisoning. Thus:

According to letter No. 199, dated 27.2.1419H, issued by Al-Birk Police Station, for
examining the corpse of Jasmin Cuaresma, 12.20 P.M. 27.2.1419H, Sunday, at Al-Birk
Hospital.
1. The Police Report on the Death

2. The Medical Diagnosis

Sex: Female Age: 25 years Relg: Christian

The said person was brought to the Emergency Room of the hospital; time 12.20
P.M. and she was unconscious, blue, no pulse, no respiration and the first aid esd
undertaken but without success.

3. Diagnosis and Opinion: Halt in blood circulation respiratory system and brain
damage due to an apparent poisoning which is under investigation.4

Name : Jasmin Cuaresma

Sex : Female
Marital Status : Single Nationality: Philipino (sic)
Religion : Christian
Profession : Nurse
Address : Al-Birk Genrl. Hospital Birth Place: The Philippines
On 27.2.1419H, Dr. Tariq Abdulminnem and Dr. Ashoki Komar, both have examined
the dead body of Jasmin Cuaresma, at 12.20 P.M., Sunday, 22.2.14189H, and the
result was:

1. Report of the Police on the death

2. Medical Examination: Blue skin and paleness on the Extrimes (sic), total halt to
blood circulation and respiratory system and brain damage. There were no external
injuries. Likely poisoning by taking poisonous substance, yet not determined. There
was a bad smell in the mouth and unknown to us.5 (Emphasis supplied)

Jasmins body was repatriated to Manila on September 3, 1998. The following day,
the City Health Officer of Cabanatuan City conducted an autopsy and the resulting
medical report indicated that Jasmin died under violent circumstances, and not
poisoning as originally found by the KSA examining physician. The City Health
Officer found that Jasmin had abrasions at her inner lip and gums; lacerated wounds
and abrasions on her left and right ears; lacerated wounds and hematoma
(contusions) on her elbows; abrasions and hematoma on her thigh and legs; intra-
muscular hemorrhage at the anterior chest; rib fracture; puncture wounds; and
abrasions on the labia minora of the vaginal area.6

On March 11, 1999, Jasmins remains were exhumed and examined by the National
Bureau of Investigation (NBI). The toxicology report of the NBI, however, tested
negative for non-volatile, metallic poison and insecticides.7
Simplicio and Mila Cuaresma (the Cuaresmas), Jasmins parents and her surviving
heirs, received from the Overseas Workers Welfare Administration (OWWA) the
following amounts: P50,000.00 for death benefits; P50,000.00 for loss of life;
P20,000.00 for funeral expenses; and P10,000.00 for medical reimbursement.

On November 22, 1999, the Cuaresmas filed a complaint against Becmen and its
principal in the KSA, Rajab & Silsilah Company (Rajab), claiming death and
insurance benefits, as well as moral and exemplary damages for Jasmins death.8

In their complaint, the Cuaresmas claim that Jasmins death was work-related,
having occurred at the employers premises;9 that under Jasmins contract with
Becmen, she is entitled to "iqama insurance" coverage; that Jasmin is entitled to
compensatory damages in the amount of US$103,740.00, which is the sum total of
her monthly salary of US$247.00 per month under her employment contract,
multiplied by 35 years (or the remaining years of her productive life had death not
supervened at age 25, assuming that she lived and would have retired at age 60).

The Cuaresmas assert that as a result of Jasmins death under mysterious

circumstances, they suffered sleepless nights and mental anguish. The situation,
they claim, was aggravated by findings in the autopsy and exhumation reports
which evidently show that a grave injustice has been committed against them and
their daughter, for which those responsible should likewise be made to pay moral
and exemplary damages and attorneys fees.

In their position paper, Becmen and Rajab insist that Jasmin committed suicide,
citing a prior unsuccessful suicide attempt sometime in March or April 1998 and
relying on the medical report of the examining physician of the Al-Birk Hospital.
They likewise deny liability because the Cuaresmas already recovered death and
other benefits totaling P130,000.00 from the OWWA. They insist that the Cuaresmas
are not entitled to "iqama insurance" because this refers to the "issuance" not
insurance of iqama, or residency/work permit required in the KSA. On the issue of
moral and exemplary damages, they claim that the Cuaresmas are not entitled to the
same because they have not acted with fraud, nor have they been in bad faith in
handling Jasmins case.

While the case was pending, Becmen filed a manifestation and motion for
substitution alleging that Rajab terminated their agency relationship and had
appointed White Falcon Services, Inc. (White Falcon) as its new recruitment agent in
the Philippines. Thus, White Falcon was impleaded as respondent as well, and it
adopted and reiterated Becmens arguments in the position paper it subsequently
filed.

On February 28, 2001, the Labor Arbiter rendered a Decision10 dismissing the
complaint for lack of merit. Giving weight to the medical report of the Al-Birk
Hospital finding that Jasmin died of poisoning, the Labor Arbiter concluded that
Jasmin committed suicide. In any case, Jasmins death was not service-connected,
nor was it shown that it occurred while she was on duty; besides, her parents have
received all corresponding benefits they were entitled to under the law. In regard to
damages, the Labor Arbiter found no legal basis to warrant a grant thereof.

On appeal, the National Labor Relations Commission (Commission) reversed the

decision of the Labor Arbiter. Relying on the findings of the City Health Officer of
Cabanatuan City and the NBI as contained in their autopsy and toxicology report,
respectively, the Commission, via its November 22, 2002 Resolution11 declared
that, based on substantial evidence adduced, Jasmin was the victim of compensable
work-connected criminal aggression. It disregarded the Al-Birk Hospital attending
physicians report as well as the KSA police report, finding the same to be
inconclusive. It declared that Jasmins death was the result of an "accident"
occurring within the employers premises that is attributable to her employment, or
to the conditions under which she lived, and thus arose out of and in the course of
her employment as nurse. Thus, the Cuaresmas are entitled to actual damages in the
form of Jasmins lost earnings, including future earnings, in the total amount of
US$113,000.00. The Commission, however, dismissed all other claims in the
complaint.

Becmen, Rajab and White Falcon moved for reconsideration, whereupon the
Commission issued its October 9, 2003 Resolution12 reducing the award of
US$113,000.00 as actual damages to US$80,000.00.13 The NLRC likewise declared
Becmen and White Falcon as solidarily liable for payment of the award.

Becmen and White Falcon brought separate petitions for certiorari to the Court of
Appeals.14 On June 28, 2006, the appellate court rendered its Decision,15 the
dispositive portion of which reads, as follows:

WHEREFORE, the subject petitions are DENIED but in the execution of the decision,
it should first be enforced against White Falcon Services and then against Becmen
Services when it is already impossible, impractical and futile to go against it (White
Falcon).

SO ORDERED.16

The appellate court affirmed the NLRCs findings that Jasmins death was
compensable, the same having occurred at the dormitory, which was contractually
provided by the employer. Thus her death should be considered to have occurred
within the employers premises, arising out of and in the course of her employment.

Becmen and White Falcon moved for reconsideration. On May 14, 2008, the
appellate court rendered the assailed Amended Decision, the dispositive portion of
which reads, as follows:

WHEREFORE, the motions for reconsideration are GRANTED. Accordingly, the

award of US$80,000.00 in actual damages is hereby reduced to US$4,686.73 plus
interest at the legal rate computed from the time it became due until fully paid.
Petitioners are hereby adjudged jointly and solidarily liable with the employer for
the monetary awards with Becmen Service Exporter and Promotions, Inc. having a
right of reimbursement from White Falcon Services, Inc.

SO ORDERED.17

In the Amended Decision, the Court of Appeals found that although Jasmins death
was compensable, however, there is no evidentiary basis to support an award of
actual damages in the amount of US$80,000.00. Nor may lost earnings be collected,
because the same may be charged only against the perpetrator of the crime or quasi-
delict. Instead, the appellate court held that Jasmins beneficiaries should be entitled
only to the sum equivalent of the remainder of her 36-month employment contract,
or her monthly salary of US$247.00 multiplied by nineteen (19) months, with legal
interest.

Becmen filed the instant petition for review on certiorari (G.R. Nos. 182978-79). The
Cuaresmas, on the other hand, moved for a reconsideration of the amended
decision, but it was denied. They are now before us via G.R. Nos. 184298-99.

On October 6, 2008, the Court resolved to consolidate G.R. Nos. 184298-99 with G.R.
Nos. 182978-79.

In G.R. Nos. 182978-79, Becmen raises the following issues for our resolution:

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT GAVE MORE CREDENCE

AND WEIGHT TO THE AUTOPSY REPORT CONDUCTED BY THE CABANATUAN CITY
HEALTH OFFICE THAN THE MEDICAL AND POLICE REPORTS ISSUED BY THE
MINISTRY OF HEALTH OF KINGDOM OF SAUDI ARABIA AND AL-BIRK HOSPITAL.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN ON THE BASIS OF THE

POSITION PAPERS AND ANNEXES THERETO INCLUDING THE AUTOPSY REPORT, IT
CONCLUDED THAT THE DEATH OF JASMIN CUARESMA WAS CAUSED BY CRIMINAL
AGGRESSION.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD THAT THE DEATH OF
JASMIN CUARESMA WAS COMPENSABLE PURSUANT TO THE RULING OF THE
SUPREME COURT IN TALLER VS. YNCHAUSTI, G.R. NO. 35741, DECEMBER 20, 1932,
WHICH IT FOUND TO BE STILL GOOD LAW.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN LIABLE FOR
THE DEATH OF JASMIN CUARESMA NOTWITHSTANDING ITS ADMISSIONS THAT
"IQAMA INSURANCE" WAS A TYPOGRAPHICAL ERROR SINCE "IQAMA" IS NOT AN
INSURANCE.
(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT CONCLUDED THAT THE
DEATH OF JASMIN WAS WORK RELATED.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN LIABLE TO

JASMINS BENEFICIARIES FOR THE REMAINDER OF HER 36-MONTH CONTRACT
COMPUTED IN THIS MANNER: MONTHLY SALARY OF US$246.67 MULTIPLIED BY
19 MONTHS, THE REMAINDER OF THE TERM OF JASMINS EMPLOYMENT
CONTRACT, IS EQUAL TO US$4,686.73.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN LIABLE TO

PAY INTEREST AT THE LEGAL RATE FROM THE TIME IT WAS DUE UNTIL FULLY
PAID.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN AND WHITE
FALCON JOINTLY AND SEVERALLY LIABLE WITH THE EMPLOYER
NOTWITHSTANDING THE ASSUMPTION OF LIABILITY EXECUTED BY WHITE
FALCON IN FAVOR OF BECMEN.

On the other hand, in G.R. Nos. 184298-99, the Cuaresmas raise the following issues:

(THE COURT OF APPEALS) GRAVELY ERRED IN APPLYING THE PROVISIONS OF

THE CIVIL CODE CONSIDERED GENERAL LAW DESPITE THE CASE BEING COVERED
BY E.O. 247, R.A. 8042 AND LABOR CODE CONSIDERED AS SPECIAL LAWS.

(THE COURT OF APPEALS) GRAVELY ERRED IN NOT APPLYING THE DECEASEDS

FUTURE EARNINGS WHICH IS (AN) INHERENT FACTOR IN THE COMPUTATION OF
DEATH BENEFITS OF OVERSEAS FILIPINO CONTRACT WORKERS.

(THE COURT OF APPEALS) GRAVELY ERRED IN REDUCING THE DEATH BENEFITS

AWARDED BY NLRC CONSIDERED FINDINGS OF FACT THAT CANNOT BE
DISTURBED THROUGH CERTIORARI UNDER RULE 65 OF THE RULES OF COURT.

The issue for resolution is whether the Cuaresmas are entitled to monetary claims,
by way of benefits and damages, for the death of their daughter Jasmin.

The terms and conditions of Jasmins 1996 Employment Agreement which she and
her employer Rajab freely entered into constitute the law between them. As a rule,
stipulations in an employment contract not contrary to statutes, public policy, public
order or morals have the force of law between the contracting parties.18 An
examination of said employment agreement shows that it provides for no other
monetary or other benefits/privileges than the following:

1. 1,300 rials (or US$247.00) monthly salary;

2. Free air tickets to KSA at the start of her contract and to the Philippines at the end
thereof, as well as for her vacation at the end of each twenty four-month service;
3. Transportation to and from work;

4. Free living accommodations;

5. Free medical treatment, except for optical and dental operations, plastic surgery
charges and lenses, and medical treatment obtained outside of KSA;

6. Entry visa fees will be shared equally between her and her employer, but the
exit/re-entry visa fees, fees for Iqama issuance, renewal, replacement, passport
renewal, sponsorship transfer and other liabilities shall be borne by her;

7. Thirty days paid vacation leave with round trip tickets to Manila after twenty
four-months of continuous service;

8. Eight days public holidays per year;

9. The indemnity benefit due her at the end of her service will be calculated as per
labor laws of KSA.

Thus, the agreement does not include provisions for insurance, or for accident,
death or other benefits that the Cuaresmas seek to recover, and which the labor
tribunals and appellate court granted variably in the guise of compensatory
damages.

However, the absence of provisions for social security and other benefits does not
make Jasmins employment contract infirm. Under KSA law, her foreign employer is
not obliged to provide her these benefits; and neither is Jasmin entitled to minimum
wage unless of course the KSA labor laws have been amended to the opposite
effect, or that a bilateral wage agreement has been entered into.

Our next inquiry is, should Jasmins death be considered as work-connected and
thus compensable? The evidence indicates that it is not. At the time of her death, she
was not on duty, or else evidence to the contrary would have been adduced. Neither
was she within hospital premises at the time. Instead, she was at her dormitory
room on personal time when she died. Neither has it been shown, nor does the
evidence suggest, that at the time she died, Jasmin was performing an act reasonably
necessary or incidental to her employment as nurse, because she was at her
dormitory room. It is reasonable to suppose that all her work is performed at the Al-
birk Hospital, and not at her dormitory room.

We cannot expect that the foreign employer should ensure her safety even while she
is not on duty. It is not fair to require employers to answer even for their employees
personal time away from work, which the latter are free to spend of their own
choosing. Whether they choose to spend their free time in the pursuit of safe or
perilous undertakings, in the company of friends or strangers, lovers or enemies,
this is not one area which their employers should be made accountable for. While
we have emphasized the need to observe official work time strictly,19 what an
employee does on free time is beyond the employers sphere of inquiry.
While the "employers premises" may be defined very broadly not only to include
premises owned by it, but also premises it leases, hires, supplies or uses,20 we are
not prepared to rule that the dormitory wherein Jasmin stayed should constitute
employers premises as would allow a finding that death or injury therein is
considered to have been incurred or sustained in the course of or arose out of her
employment. There are certainly exceptions,21 but they do not appear to apply
here. Moreover, a complete determination would have to depend on the unique
circumstances obtaining and the overall factual environment of the case, which are
here lacking.

But, did Jasmin commit suicide? Rajab, Becmen and White Falcon vehemently insist
that she did; thus, her heirs may not claim benefits or damages based on criminal
aggression. On the other hand, the Cuaresmas do not believe so.

The Court cannot subscribe to the idea that Jasmin committed suicide while halfway
into her employment contract. It is beyond human comprehension that a 25-year
old Filipina, in the prime of her life and working abroad with a chance at making a
decent living with a high-paying job which she could not find in her own country,
would simply commit suicide for no compelling reason.

The Saudi police and autopsy reports which state that Jasmin is a likely/or
apparent victim of poisoning are patently inconclusive. They are thus unreliable as
evidence.

On the contrary, the autopsy report of the Cabanatuan City Health Officer and the
exhumation report of the NBI categorically and unqualifiedly show that Jasmin
sustained external and internal injuries, specifically abrasions at her inner lip and
gums; lacerated wounds and abrasions on her left and right ears; lacerated wounds
and hematoma (contusions) on her elbows; abrasions and hematoma on her thigh
and legs; intra-muscular hemorrhage at the anterior chest; a fractured rib; puncture
wounds; and abrasions on the labia minora of the vaginal area. The NBI toxicology
report came up negative on the presence of poison.

All these show that Jasmin was manhandled and possibly raped prior to her
death.

Even if we were to agree with the Saudi police and autopsy reports that indicate
Jasmin was poisoned to death, we do not believe that it was self-induced. If ever
Jasmin was poisoned, the assailants who beat her up and possibly raped her are
certainly responsible therefor.

We are not exactly ignorant of what goes on with our OFWs. Nor is the rest of the
world blind to the realities of life being suffered by migrant workers in the hands of
some foreign employers. It is inconceivable that our Filipina women would seek
employment abroad and face uncertainty in a foreign land, only to commit suicide
for unexplained reasons. Deciding to leave their family, loved ones, and the comfort
and safety of home, to work in a strange land requires unrivaled strength and
courage. Indeed, many of our women OFWs who are unfortunate to end up with
undesirable employers have been there more times than they care to, beaten up and
broken in body yet they have remained strong in mind, refusing to give up the will
to live. Raped, burned with cigarettes, kicked in the chest with sharp high-heeled
shoes, starved for days or even weeks, stabbed, slaved with incessant work, locked
in their rooms, forced to serve their masters naked, grossly debased, dehumanized
and insulted, their spirits fought on and they lived for the day that they would once
again be reunited with their families and loved ones. Their bodies surrendered, but
their will to survive remained strong.

It is surprising, therefore, that Rajab, Becmen and White Falcon should insist on
suicide, without even lifting a finger to help solve the mystery of Jasmins death.
Being in the business of sending OFWs to work abroad, Becmen and White Falcon
should know what happens to some of our OFWs. It is impossible for them to be
completely unaware that cruelties and inhumanities are inflicted on OFWs who are
unfortunate to be employed by vicious employers, or upon those who work in
communities or environments where they are liable to become victims of crime. By
now they should know that our women OFWs do not readily succumb to the
temptation of killing themselves even when assaulted, abused, starved, debased and,
worst, raped.

Indeed, what we have seen is Rajab and Becmens revolting scheme of conveniently
avoiding responsibility by clinging to the absurd theory that Jasmin took her own
life. Abandoning their legal, moral and social obligation (as employer and recruiter)
to assist Jasmins family in obtaining justice for her death, they immediately gave up
on Jasmins case, which has remained under investigation as the autopsy and police
reports themselves indicate. Instead of taking the cudgels for Jasmin, who had no
relative or representative in the KSA who would naturally demand and seek an
investigation of her case, Rajab and Becmen chose to take the most convenient route
to avoiding and denying liability, by casting Jasmins fate to oblivion. It appears from
the record that to this date, no follow up of Jasmins case was ever made at all by
them, and they seem to have expediently treated Jasmins death as a closed case.
Despite being given the lead via the autopsy and toxicology reports of the Philippine
authorities, they failed and refused to act and pursue justice for Jasmins sake and to
restore honor to her name.

Indeed, their nonchalant and uncaring attitude may be seen from how Jasmins
remains were repatriated. No official representative from Rajab or Becmen was kind
enough to make personal representations with Jasmins parents, if only to extend
their condolences or sympathies; instead, a mere colleague, nurse Jessie Fajardo,
was designated to accompany Jasmins body home.
Of all lifes tragedies, the death of ones own child must be the most painful for a
parent. Not knowing why or how Jasmins life was snuffed out makes the pain
doubly unbearable for Jasmins parents, and further aggravated by Rajab, Becmen,
and White Falcons baseless insistence and accusation that it was a self-inflicted
death, a mortal sin by any religious standard.

Thus we categorically hold, based on the evidence; the actual experiences of our
OFWs; and the resilient and courageous spirit of the Filipina that transcends the
vilest desecration of her physical self, that Jasmin did not commit suicide but a
victim of murderous aggression.

Rajab, Becmen, and White Falcons indifference to Jasmins case has caused
unfathomable pain and suffering upon her parents. They have turned away from
their moral obligation, as employer and recruiter and as entities laden with social
and civic obligations in society, to pursue justice for and in behalf of Jasmin, her
parents and those she left behind. Possessed with the resources to determine the
truth and to pursue justice, they chose to stand idly for the sake of convenience and
in order that they may avoid pecuniary liability, turning a blind eye to the Philippine
authorities autopsy and toxicology reports instead of taking action upon them as
leads in pursuing justice for Jasmins death. They have placed their own financial
and corporate interests above their moral and social obligations, and chose to
secure and insulate themselves from the perceived responsibility of having to
answer for and indemnify Jasmins heirs for her death.

Under Republic Act No. 8042 (R.A. 8042), or the Migrant Workers and Overseas
Filipinos Act of 1995,22 the State shall, at all times, uphold the dignity of its citizens
whether in country or overseas, in general, and Filipino migrant workers, in
particular.23 The State shall provide adequate and timely social, economic and legal
services to Filipino migrant workers.24 The rights and interest of distressed25
overseas Filipinos, in general, and Filipino migrant workers, in particular,
documented or undocumented, are adequately protected and safeguarded.26

Becmen and White Falcon, as licensed local recruitment agencies, miserably failed to
abide by the provisions of R.A. 8042. Recruitment agencies are expected to extend
assistance to their deployed OFWs, especially those in distress. Instead, they
abandoned Jasmins case and allowed it to remain unsolved to further their interests
and avoid anticipated liability which parents or relatives of Jasmin would certainly
exact from them. They willfully refused to protect and tend to the welfare of the
deceased Jasmin, treating her case as just one of those unsolved crimes that is not
worth wasting their time and resources on. The evidence does not even show that
Becmen and Rajab lifted a finger to provide legal representation and seek an
investigation of Jasmins case. Worst of all, they unnecessarily trampled upon the
person and dignity of Jasmin by standing pat on the argument that Jasmin
committed suicide, which is a grave accusation given its un-Christian nature.
We cannot reasonably expect that Jasmins parents should be the ones to actively
pursue a just resolution of her case in the KSA, unless they are provided with the
finances to undertake this herculean task. Sadly, Becmen and Rajab did not lend any
assistance at all in this respect. The most Jasmins parents can do is to coordinate
with Philippine authorities as mandated under R.A. 8042, obtain free legal
assistance and secure the aid of the Department of Foreign Affairs, the Department
of Labor and Employment, the POEA and the OWWA in trying to solve the case or
obtain relief, in accordance with Section 2327 of R.A. 8042. To our mind, the
Cuaresmas did all that was within their power, short of actually flying to the KSA.
Indeed, the Cuaresmas went even further. To the best of their abilities and
capacities, they ventured to investigate Jasmins case on their own: they caused
another autopsy on Jasmins remains as soon as it arrived to inquire into the true
cause of her death. Beyond that, they subjected themselves to the painful and
distressful experience of exhuming Jasmins remains in order to obtain another
autopsy for the sole purpose of determining whether or not their daughter was
poisoned. Their quest for the truth and justice is equally to be expected of all loving
parents. All this time, Rajab and Becmen instead of extending their full
cooperation to the Cuaresma family merely sat on their laurels in seeming
unconcern.

In Interorient Maritime Enterprises, Inc. v. NLRC,28 a seaman who was being

repatriated after his employment contract expired, failed to make his Bangkok to
Manila connecting flight as he began to wander the streets of Bangkok aimlessly. He
was shot to death by Thai police four days after, on account of running amuck with a
knife in hand and threatening to harm anybody within sight. The employer, sued for
death and other benefits as well as damages, interposed as defense the provision in
the seafarer agreement which provides that "no compensation shall be payable in
respect of any injury, incapacity, disability or death resulting from a willful act on
his own life by the seaman." The Court rejected the defense on the view, among
others, that the recruitment agency should have observed some precautionary
measures and should not have allowed the seaman, who was later on found to be
mentally ill, to travel home alone, and its failure to do so rendered it liable for the
seamans death. We ruled therein that

The foreign employer may not have been obligated by its contract to provide a
companion for a returning employee, but it cannot deny that it was expressly tasked
by its agreement to assure the safe return of said worker. The uncaring attitude
displayed by petitioners who, knowing fully well that its employee had been
suffering from some mental disorder, nevertheless still allowed him to travel home
alone, is appalling to say the least. Such attitude harks back to another time when
the landed gentry practically owned the serfs, and disposed of them when the latter
had grown old, sick or otherwise lost their usefulness.29 (Emphasis supplied)

Thus, more than just recruiting and deploying OFWs to their foreign principals,
recruitment agencies have equally significant responsibilities. In a foreign land
where OFWs are likely to encounter uneven if not discriminatory treatment from
the foreign government, and certainly a delayed access to language interpretation,
legal aid, and the Philippine consulate, the recruitment agencies should be the first
to come to the rescue of our distressed OFWs since they know the employers and
the addresses where they are deployed or stationed. Upon them lies the primary
obligation to protect the rights and ensure the welfare of our OFWs, whether
distressed or not. Who else is in a better position, if not these recruitment agencies,
to render immediate aid to their deployed OFWs abroad?

Article 19 of the Civil Code provides that every person must, in the exercise of his
rights and in the performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith. Article 21 of the Code states that any person
who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage. And,
lastly, Article 24 requires that in all contractual, property or other relations, when
one of the parties is at a disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age or other handicap, the courts
must be vigilant for his protection.

Clearly, Rajab, Becmen and White Falcons acts and omissions are against public
policy because they undermine and subvert the interest and general welfare of our
OFWs abroad, who are entitled to full protection under the law. They set an awful
example of how foreign employers and recruitment agencies should treat and act
with respect to their distressed employees and workers abroad. Their shabby and
callous treatment of Jasmins case; their uncaring attitude; their unjustified failure
and refusal to assist in the determination of the true circumstances surrounding her
mysterious death, and instead finding satisfaction in the unreasonable insistence
that she committed suicide just so they can conveniently avoid pecuniary liability;
placing their own corporate interests above of the welfare of their employees all
these are contrary to morals, good customs and public policy, and constitute taking
advantage of the poor employee and her familys ignorance, helplessness, indigence
and lack of power and resources to seek the truth and obtain justice for the death of
a loved one.

Giving in handily to the idea that Jasmin committed suicide, and adamantly insisting
on it just to protect Rajab and Becmens material interest despite evidence to the
contrary is against the moral law and runs contrary to the good custom of not
denouncing ones fellowmen for alleged grave wrongdoings that undermine their
good name and honor.30

Whether employed locally or overseas, all Filipino workers enjoy the protective
mantle of Philippine labor and social legislation, contract stipulations to the
contrary notwithstanding. This pronouncement is in keeping with the basic public
policy of the State to afford protection to labor, promote full employment, ensure
equal work opportunities regardless of sex, race or creed, and regulate the relations
between workers and employers. This ruling is likewise rendered imperative by
Article 17 of the Civil Code which states that laws which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a
foreign country.31

The relations between capital and labor are so impressed with public interest,32
and neither shall act oppressively against the other, or impair the interest or
convenience of the public.33 In case of doubt, all labor legislation and all labor
contracts shall be construed in favor of the safety and decent living for the
laborer.34

The grant of moral damages to the employee by reason of misconduct on the part of
the employer is sanctioned by Article 2219 (10)35 of the Civil Code, which allows
recovery of such damages in actions referred to in Article 21.36

Thus, in view of the foregoing, the Court holds that the Cuaresmas are entitled to
moral damages, which Becmen and White Falcon are jointly and solidarily liable to
pay, together with exemplary damages for wanton and oppressive behavior, and by
way of example for the public good.

Private employment agencies are held jointly and severally liable with the foreign-
based employer for any violation of the recruitment agreement or contract of
employment. This joint and solidary liability imposed by law against recruitment
agencies and foreign employers is meant to assure the aggrieved worker of
immediate and sufficient payment of what is due him.37 If the
recruitment/placement agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the aforesaid claims and damages.38

White Falcons assumption of Becmens liability does not automatically result in

Becmens freedom or release from liability. This has been ruled in ABD Overseas
Manpower Corporation v. NLRC.39 Instead, both Becmen and White Falcon should
be held liable solidarily, without prejudice to each having the right to be reimbursed
under the provision of the Civil Code that whoever pays for another may demand
from the debtor what he has paid.40

WHEREFORE, the Amended Decision of the Court of Appeals dated May 14, 2008 in
CA-G.R. SP No. 80619 and CA-G.R. SP No. 81030 is SET ASIDE. Rajab & Silsilah
Company, White Falcon Services, Inc., Becmen Service Exporter and Promotion, Inc.,
and their corporate directors and officers are found jointly and solidarily liable and
ORDERED to indemnify the heirs of Jasmin Cuaresma, spouses Simplicio and Mila
Cuaresma, the following amounts:

1) TWO MILLION FIVE HUNDRED THOUSAND PESOS (P2,500,000.00) as moral

damages;
2) TWO MILLION FIVE HUNDRED THOUSAND PESOS (P2,500,000.00) as exemplary
damages;

3) Attorneys fees equivalent to ten percent (10%) of the total monetary award; and,

4) Costs of suit.

SO ORDERED.