Streetwise
by Carol Pagaduan-Araullo
In this country, the name Failon has instantly become associated with police brutality and abuse of authority. The untimely death of Trinidad Etong, the wife of popular radio and television news anchor Ted Failon, likely by her own hand, has resulted in a series of tragic events for her family. What would otherwise be a personal cross to bear for Mr. Failon and his children has become a highly publicized spectacle of the police venting their ire and their incompetence on the hapless members of Mr. Failon’s household, including his wife’s siblings, who just happened to be there.
This is not just a case of police overzealousness, nor of police brutality. All the elements that should have stayed the hand of the police were present. At the outset the case was an apparent suicide attempt; the commission of a felony was not self-evident although it could not be ruled out. Mr. Failon is a high- profile media personality, a former Congressman, a man of some means and with connections in high places, as high up as Vice President Noli de Castro, who rushed to Mr. Failon’s side after the incident.
Prudence and judiciousness were clearly the way to go for any responsible police investigator but the police authorities did the exact opposite.
Very early on the investigators drew the conclusion that they were dealing with a parricide case; i.e. Mr. Failon had attempted to kill his wife. Even while Ms. Etong was fighting for her life in the hospital, the police were engaged, not in investigating the circumstances of the shooting, but in building up a case against her husband.
They were quick to speculate that the wife had been shot in Mr. Failon’s car and then transferred to the bathroom. This despite the testimony of all the household help, Ms. Etong’s sister and Mr. Failon that they found her in the bathroom bathed in a pool of her own blood, with a gun at her side, and that she was subsequently rushed by Mr. Failon to the hospital in his car.
The police initially stated that there was no evidence of the spent bullet ricocheting in the bathroom (they later found it); that the husband had scratches on his back indicating that the “victim” had fought off her “assailant” (there were none); and that there were solid indications of an attempted cover-up by cleaning the scene of the crime, both the bloodied bathroom and the vehicle.
The “law enforcers” were uncharacteristicall y swift in hauling off Mr. Failon for questioning; they took forever to process his sworn statement; and it was only through the intervention of the Chief of the Public Attorney’s Office that he was temporarily released. Whereupon police officials peremptorily declared that he was the object of a manhunt for illegally removing himself from their custody.
They manhandled, summarily arrested and arbitrarily detained Mr. Failon’s house help, driver, and in-laws on the groundless charge of “obstruction of justice” when they had not even established if a crime had been committed.
Their brash and excessive actions indicate confidence that they had the approval, if not the direct orders of “higher ups” in the Philippine National Police (PNP) and perhaps even in the higher reaches of government.
The immediate and unwavering support for the police by the Justice Secretary compared to the slow response to complaints of police abuse by those directly supervising the PNP, strongly suggest that powerful quarters are at work here. They have an axe to grind against Mr. Failon. Perhaps they want to put an end to his hard-hitting commentaries against the Arroyo regime, erring public officials and their criminal cohorts. Could it be that they are out to cut Mr. Failon and other critical media practitioners like him down to size?
So much so that police brutality and highhandedness, extensively covered by the mass media, were allowed to go on unimpeded for several days after the incident. This was only stopped by overwhelming public sympathy for Mr. Failon, his family and household members and almost universal condemnation of the actuations of the police. For if the police could do this to Mr. Failon, how much more ordinary citizens without the means, the connection, and the clout with the media? What about those who have consistently been in their crosshairs like activists, critics of government and others in opposition to it.
The Arroyo government has been forced to suspend six of the police officers involved and to shift the investigation from the police to the National Bureau of Investigation, an agency under the control of the notoriously biased Justice Secretary. It is clearly in damage control mode. The incident will be dismissed as an isolated case. A few will be “punished” and thereafter investigation into their culpabilities and liabilities will be conveniently forgotten. Involved higher-ups and the system that breeds these kinds of abuse will be firewalled.
It remains to be seen whether the victims will find the steps taken by government to redress their grievances satisfactory. Otherwise they risk being dismissed as unreasonable, incorrigible critics or even allowing themselves to be used by Mrs. Arroyo’s political enemies what with the upcoming 2010 presidential elections.
Unfortunately, if the underlying reasons for such an incident are not probed and exposed and if the government is allowed once more to sweep this atrocity under the rug, impunity for such crimes, by those in authority, will again reign supreme.
The message still for many is that one must not “run afoul of the law” meaning, do not criticize much less oppose government authorities, from the policeman on the beat to the untouchables in and around Malacañang. In this country, crime does pay especially if you have the power and the means to crush your opponents including paying off the police, the military and corrupt fiscals and judges to do your bidding. #
Friday, April 24, 2009
Thursday, April 16, 2009
'Wang-wang'
Philippine Daily Inquirer
Editorial
First Posted 03:07:00 04/16/2009
Call her Jackie S. The “interim first lady” of East Timor, Jacqueline Aquino Siapno, is a Filipina political scientist married to Fernando de Araujo, president of the new country’s National Parliament. She was back in the Philippines recently, for what she called a private visit. It was not the determinedly private nature of her visit that caught the attention of the Philippine Daily Inquirer; it was the resolutely modest way she went a-visiting.
The best way to capture this exemplary modesty is to quote at some length the report written by Inquirer correspondent Gabriel Cardinoza. “After exchanging greetings [at the Manila airport] they [Jackie S. and her mother] took a cab and headed to a bus terminal in Pasay City where they boarded a bus bound for her native Dagupan. The Friday night trip took five hours. At the station, they hailed a tricycle and asked to be taken to their house in Barangay Bonuan Gueset.”
This isn’t merely a charming anecdote: it is an indirect indictment of the way most public officials or political personalities in the Philippines conduct themselves, when travelling. It makes for a good story because it reminds us of the inexhaustibly surprising quality of human nature. But it makes for a front-page story because it offers a contrast to the “wang-wang” culture our political VIPs, both high and petty, take for granted.
Ms Siapno may not know the meaning of “wang-wang”—she has lived abroad for most of her adult life, earning (among other distinctions) a Ph.D. from the University of California in Berkeley—but she should recognize the self-importance her old country’s politicians attach to themselves. Wang-wang is the siren that “very important people” acquire, whether they ride unescorted or as part of a convoy; the sound is a sign that the usual (traffic) rules do not apply to VIPs. They are, obviously, too important.
Already, we can anticipate the objections, the clarifications, that officials who feel alluded to will issue. Her visit, they would say, was a private affair. There is no comparison with their official travel.
Yes, but they would miss the point. Jackie S. could have used or borrowed a private vehicle. That she did not consider herself too good for an ordinary bus or—Que barbaridad!—a rickety tricycle tells us more about the dignity of public office than flashing lights and wailing sirens ever can.
But East Timor is a small, impoverished country, other politicians or their hired spokesmen might say. There is no comparison.
Again, they would miss the point. Substantial government resources are spent every year to provide public officials with the illusion that we are already a rich country. How many hundreds of soldiers, how many thousands of policemen, are assigned to public officials as personal security? How many vehicles must be deployed to ferry a VIP and his security retinue from venue to venue? Does a vice mayor of a second-class municipality really need a close-in bodyguard? Does a congressman back in her district really need a motorcycle escort? Does a Cabinet secretary making the rounds in Metro Manila really need two beige-colored, red-plated AUVs to shadow his gas-guzzling SUV?
You get the point. Or at least we ordinary citizens do. We are not asking our public officials to use public transportation to go to and from work—although that would amount to a moral revolution. We are only asking them to reconsider the sense of entitlement, the sense of inflated dignity they display because of their complicity in the wang-wang culture.
But the “interim first lady” of East Timor is not even an official, nor does she hold a permanent position, still other officials would say. There is no comparison.
They would, again, be missing the point. All public office is temporary. And too many of our own officeholders use their office to aggrandize not only themselves but their families. Who has not seen police bodyguards deployed to secure an official’s child, or a convoy of government vehicles to accompany an official’s spouse?
In her simplicity, in her sure sense of self, Jackie S. reminds us how spoiled, how self-indulgent, how corrupt, many of our high-riding officials have become.
Editorial
First Posted 03:07:00 04/16/2009
Call her Jackie S. The “interim first lady” of East Timor, Jacqueline Aquino Siapno, is a Filipina political scientist married to Fernando de Araujo, president of the new country’s National Parliament. She was back in the Philippines recently, for what she called a private visit. It was not the determinedly private nature of her visit that caught the attention of the Philippine Daily Inquirer; it was the resolutely modest way she went a-visiting.
The best way to capture this exemplary modesty is to quote at some length the report written by Inquirer correspondent Gabriel Cardinoza. “After exchanging greetings [at the Manila airport] they [Jackie S. and her mother] took a cab and headed to a bus terminal in Pasay City where they boarded a bus bound for her native Dagupan. The Friday night trip took five hours. At the station, they hailed a tricycle and asked to be taken to their house in Barangay Bonuan Gueset.”
This isn’t merely a charming anecdote: it is an indirect indictment of the way most public officials or political personalities in the Philippines conduct themselves, when travelling. It makes for a good story because it reminds us of the inexhaustibly surprising quality of human nature. But it makes for a front-page story because it offers a contrast to the “wang-wang” culture our political VIPs, both high and petty, take for granted.
Ms Siapno may not know the meaning of “wang-wang”—she has lived abroad for most of her adult life, earning (among other distinctions) a Ph.D. from the University of California in Berkeley—but she should recognize the self-importance her old country’s politicians attach to themselves. Wang-wang is the siren that “very important people” acquire, whether they ride unescorted or as part of a convoy; the sound is a sign that the usual (traffic) rules do not apply to VIPs. They are, obviously, too important.
Already, we can anticipate the objections, the clarifications, that officials who feel alluded to will issue. Her visit, they would say, was a private affair. There is no comparison with their official travel.
Yes, but they would miss the point. Jackie S. could have used or borrowed a private vehicle. That she did not consider herself too good for an ordinary bus or—Que barbaridad!—a rickety tricycle tells us more about the dignity of public office than flashing lights and wailing sirens ever can.
But East Timor is a small, impoverished country, other politicians or their hired spokesmen might say. There is no comparison.
Again, they would miss the point. Substantial government resources are spent every year to provide public officials with the illusion that we are already a rich country. How many hundreds of soldiers, how many thousands of policemen, are assigned to public officials as personal security? How many vehicles must be deployed to ferry a VIP and his security retinue from venue to venue? Does a vice mayor of a second-class municipality really need a close-in bodyguard? Does a congressman back in her district really need a motorcycle escort? Does a Cabinet secretary making the rounds in Metro Manila really need two beige-colored, red-plated AUVs to shadow his gas-guzzling SUV?
You get the point. Or at least we ordinary citizens do. We are not asking our public officials to use public transportation to go to and from work—although that would amount to a moral revolution. We are only asking them to reconsider the sense of entitlement, the sense of inflated dignity they display because of their complicity in the wang-wang culture.
But the “interim first lady” of East Timor is not even an official, nor does she hold a permanent position, still other officials would say. There is no comparison.
They would, again, be missing the point. All public office is temporary. And too many of our own officeholders use their office to aggrandize not only themselves but their families. Who has not seen police bodyguards deployed to secure an official’s child, or a convoy of government vehicles to accompany an official’s spouse?
In her simplicity, in her sure sense of self, Jackie S. reminds us how spoiled, how self-indulgent, how corrupt, many of our high-riding officials have become.
Wednesday, April 01, 2009
Writer's 'Racist Slur’ Offends Filipinos
By Danilo Reyes
Column: Point of Action
UPI Asia Online, March 31, 2009
Hong Kong, China — A journalist in Hong Kong who described the Philippines as a “nation of servants” in his column may have written his article as a satire, and perhaps his insults were “not intentional,” but the Filipinos’ reaction demonstrates they could not take it lightly. Such comments are deeply hurtful, satirical or otherwise.
The article entitled “The War At Home,” written by Chip Tsao, was published in HK Magazine on March 27, but the publishing company, the Asia City Publishing Group, had to pull it from their website three days later. Massive condemnation of the article in both Hong Kong and the Philippines forced the company to make an apology on Monday.
Before Chip Tsao’s article came to light, another local newspaper, The Standard, had published a report on Feb. 25 claiming that Filipinos were carriers of an infectious disease, a “superbug,” quoting an expert from the Center for Health Protection. Considering this a serious issue, I personally wrote to the CHP asking for clarification, only to find out the report did not “express the views of the CHP.”
But unlike HK Magazine, The Standard did not apologize, nor did its editor, Ivan Tong, reply to my letter or email. The journalist who wrote the article, Patsy Moy, stands by her story despite the disclaimer in the CHP’s letter to me.
In searching for a remedy to the problem of articles that misrepresent the Filipino community, I was told that the newly passed Racial Discrimination Ordinance in Hong Kong, though it has provisions to protect ethnic minorities from discrimination, applies only in the workplace. There is no redress for an ethnic group that is offended by published articles or reports.
Thus Filipinos in Hong Kong, for lack of other options, must resort to issuing statements and press releases to protest against discrimination or offensive and false comments. The Filipinos’ reaction to Chip Tsao’s supposedly “satirical” column is not the first time, nor will it be the last, that Filipinos collectively protested against comments they thought offensive.
I recall a controversy over Hollywood actress Claire Danes, who was declared “persona non grata” in the Philippines and whose movies were banned in the country after she commented, following filming in the city, that Manila was infested with cockroaches and rats. She later apologized. There was another case of a Canadian mentor who was condemned over her offensive comments about a Filipino toddler for not being able to use spoon and fork at a primary school.
The Filipinos may be fragmented and divided in some ways – by social class, ethnic group, dialect and ideology – but if their identity as Filipinos is shaken, if they are humiliated or offended, they come together. Perhaps this is a byproduct of their historical colonial past and oppressive regimes.
Let’s take Chip Tsao’s column as an example. He may argue that his article was intended as a satire; however, he touches upon the very reasons Filipinos have to come to Hong Kong to work as domestic helpers. They come not by their own choice, but are forced to do so by the lack of opportunities at home. This is due to both the abject failure of the Philippines government to develop the country’s economy and to the policy of exporting labor set up during the Marcos regime in the 1970s.
Therefore, it is not the Filipinos’ choice as citizens that pushes them to serve foreign households as “modern slaves.” This is the product of a policy, crafted by a dictatorial and oppressive regime, that has lasted to this day. It impacts the whole range of Filipinos, which actually includes different ethnic minorities scattered in more than 7,000 islands in the archipelago.
Writings and literary articles that are satirical in nature are not a monopoly of any group of people. This approach is nothing new to Filipinos. In fact, satire was widely used in works by Filipino nationalists like Jose Rizal in his novels, and others who inspired the Philippine revolution against colonial Spain in the 1800s. Thus, to argue that the Filipinos, in reading Chip Tsao, could not “read between the lines” is not accurate.
Filipino domestic workers are often better English speakers and writers than their employers, as English has been their medium of instruction from grade school through college – once again a product of a colonial American past imposed in the 1900s that continues in the education system to this day. It is not accurate to say they cannot grasp subtle meanings.
But in Rizal’s writings, in his politically charged satirical novel “Noli Me Tangere,” he used as his objects of ridicule the Spanish friars, the oppressors and plunderers – not those who were suffering due to oppression, the Filipinos. This is what makes Chip Tsao’s approach condemnable. His objects of satire were the domestic workers who are already suffering, forced to separate from their families and to serve foreign households.
The problem with some writers is that they know full well what is offensive but they nevertheless test the waters. Journalism also entails responsibility. When U.S. President Barack Obama was elected, a Filipino-owned newspaper headline read: “Black in White House,” and not “Negro in White House.” In our modern times, not only Filipinos, but everyone knows how deeply it hurts for blacks to be described as Negroes.
In conclusion, I would like to borrow the late Filipino nationalist Jose “Pepe” Diokno’s words from an essay written in 1984, in which he described the Philippines as “a nation for our children,” not a nation of servants as Tsao described it. Building a nation for our children has long been the aspiration of all Filipinos, including me.
--
(Danilo Reyes is a staff member of the Asian Human Rights Commission, a regional human rights NGO in Hong Kong. He is responsible for the organization’s work on the Philippines. Previously, he worked as a human rights activist and journalist in the Philippines.)
Column: Point of Action
UPI Asia Online, March 31, 2009
Hong Kong, China — A journalist in Hong Kong who described the Philippines as a “nation of servants” in his column may have written his article as a satire, and perhaps his insults were “not intentional,” but the Filipinos’ reaction demonstrates they could not take it lightly. Such comments are deeply hurtful, satirical or otherwise.
The article entitled “The War At Home,” written by Chip Tsao, was published in HK Magazine on March 27, but the publishing company, the Asia City Publishing Group, had to pull it from their website three days later. Massive condemnation of the article in both Hong Kong and the Philippines forced the company to make an apology on Monday.
Before Chip Tsao’s article came to light, another local newspaper, The Standard, had published a report on Feb. 25 claiming that Filipinos were carriers of an infectious disease, a “superbug,” quoting an expert from the Center for Health Protection. Considering this a serious issue, I personally wrote to the CHP asking for clarification, only to find out the report did not “express the views of the CHP.”
But unlike HK Magazine, The Standard did not apologize, nor did its editor, Ivan Tong, reply to my letter or email. The journalist who wrote the article, Patsy Moy, stands by her story despite the disclaimer in the CHP’s letter to me.
In searching for a remedy to the problem of articles that misrepresent the Filipino community, I was told that the newly passed Racial Discrimination Ordinance in Hong Kong, though it has provisions to protect ethnic minorities from discrimination, applies only in the workplace. There is no redress for an ethnic group that is offended by published articles or reports.
Thus Filipinos in Hong Kong, for lack of other options, must resort to issuing statements and press releases to protest against discrimination or offensive and false comments. The Filipinos’ reaction to Chip Tsao’s supposedly “satirical” column is not the first time, nor will it be the last, that Filipinos collectively protested against comments they thought offensive.
I recall a controversy over Hollywood actress Claire Danes, who was declared “persona non grata” in the Philippines and whose movies were banned in the country after she commented, following filming in the city, that Manila was infested with cockroaches and rats. She later apologized. There was another case of a Canadian mentor who was condemned over her offensive comments about a Filipino toddler for not being able to use spoon and fork at a primary school.
The Filipinos may be fragmented and divided in some ways – by social class, ethnic group, dialect and ideology – but if their identity as Filipinos is shaken, if they are humiliated or offended, they come together. Perhaps this is a byproduct of their historical colonial past and oppressive regimes.
Let’s take Chip Tsao’s column as an example. He may argue that his article was intended as a satire; however, he touches upon the very reasons Filipinos have to come to Hong Kong to work as domestic helpers. They come not by their own choice, but are forced to do so by the lack of opportunities at home. This is due to both the abject failure of the Philippines government to develop the country’s economy and to the policy of exporting labor set up during the Marcos regime in the 1970s.
Therefore, it is not the Filipinos’ choice as citizens that pushes them to serve foreign households as “modern slaves.” This is the product of a policy, crafted by a dictatorial and oppressive regime, that has lasted to this day. It impacts the whole range of Filipinos, which actually includes different ethnic minorities scattered in more than 7,000 islands in the archipelago.
Writings and literary articles that are satirical in nature are not a monopoly of any group of people. This approach is nothing new to Filipinos. In fact, satire was widely used in works by Filipino nationalists like Jose Rizal in his novels, and others who inspired the Philippine revolution against colonial Spain in the 1800s. Thus, to argue that the Filipinos, in reading Chip Tsao, could not “read between the lines” is not accurate.
Filipino domestic workers are often better English speakers and writers than their employers, as English has been their medium of instruction from grade school through college – once again a product of a colonial American past imposed in the 1900s that continues in the education system to this day. It is not accurate to say they cannot grasp subtle meanings.
But in Rizal’s writings, in his politically charged satirical novel “Noli Me Tangere,” he used as his objects of ridicule the Spanish friars, the oppressors and plunderers – not those who were suffering due to oppression, the Filipinos. This is what makes Chip Tsao’s approach condemnable. His objects of satire were the domestic workers who are already suffering, forced to separate from their families and to serve foreign households.
The problem with some writers is that they know full well what is offensive but they nevertheless test the waters. Journalism also entails responsibility. When U.S. President Barack Obama was elected, a Filipino-owned newspaper headline read: “Black in White House,” and not “Negro in White House.” In our modern times, not only Filipinos, but everyone knows how deeply it hurts for blacks to be described as Negroes.
In conclusion, I would like to borrow the late Filipino nationalist Jose “Pepe” Diokno’s words from an essay written in 1984, in which he described the Philippines as “a nation for our children,” not a nation of servants as Tsao described it. Building a nation for our children has long been the aspiration of all Filipinos, including me.
--
(Danilo Reyes is a staff member of the Asian Human Rights Commission, a regional human rights NGO in Hong Kong. He is responsible for the organization’s work on the Philippines. Previously, he worked as a human rights activist and journalist in the Philippines.)
Sunday, March 29, 2009
Modernisayon ng Philippine General Hospital: Para saan?… Para kanino?
Sa araw ng Lunes, ika 30 ng Marso, 2009 ay inaasahan na darating si GMA upang pasinayaan ang bagong PABX/Paging System ng PGH (Philippine General Hospital). Isang okasyon kung saan maaari nating iparating ang ating saloobin para sa hinaharap ng Ospital ng Bayan – ang PGH nating mahal!
Para saan at para kanino nga ba ang mga kosmetikong pagbabago at pagpapaunlad ng mga inprastraktura, equipment at iba pang kagamitan?
Layunin nga ba nito na magbigay ng dagdag na serbisyo... o dagdag na bayarin sa mga taong lumalapit sa ating tanggapan? Ano ang silbi ng mga bagong equipments na bigay ng mga donors (Presidente, mga Senador at Congresssman at iba pa na karamihan ay galing rin naman sa buwis ng taumbayan) kung ang kapalit nito ay mas mataas na singilin para sa ating mga kliyente? Bakit pinahihintulutan ang pagpasok ng mga pribadong equipment/apparatus sa likod ng mga MOA na ang bunga ay hindi makakuha ng libre o discount sa serbisyo ng ospital and ating mga mamamayan at maging ang sarili mismong mga kawani nito? Dahil talaga bang ang matingkad na tunguhin ng pagpapatakbo ng ating ospital ay kita, kita at kumita pa rin?
Bilang isa sa mga abanteng organisasyon sa loob ng U.P. ang ating Unyon ay naninindigan na ang PGH, bilang Ospital ng Bayan ay itinatag upang magbigay ng laan at abot kayang serbisyong pangkalusugan at hindi maging behikulo sa pagpapasulpot ng mga dagdag kita na mamamayan din ang magpapasan. Hindi totoo na wala o kulang ang pondo ng gobyerno para tustusan ang pangangailangan ng mamamayan para sa mga panlipunang serbisyo katulad ng edukasyon at kalusugan. Tayong lahat ay saksi sa malawakan at bilyon-bilyong Pisong korupsiyon na kinasasangkutan hanggang ng mga sa kataas-taasang mga opisyal gobyerno na siyang umuubos sa kaban ng bayan, bukod pa sa pambayad utang na karamihan sa mga utang na ito ay sa bulso rin ng iilan pumupunta.
Kasama rin sa ating matagal ng kahilingan ay ang pagdaragdag ng badyet ng U.P. at PGH para mapunuan ang kakulangan sa bilang ng mga kawani, maibigay ang mga nararapat na mga benepisyo at upang makapaglingkod ng laan at abot-kayang serbisyong pangkalusugan sa ating mamamayan.
Sa totoo lang, sa ilalim ng pamunuan ng Administrasyong Alfiler, walang nadagdag na pondo ng PGH mula sa pambansang pamahalaan lalong-lalo ang sa MOOE (Maintenance, Operating and Other Expenses). Sa halip na igiit ang dagdag pondo, patong-patong na bayarin sa mga diagnostic exams at treatment procedures ang ipinapatupad na lalong nagpapahirap at siyang pumapatay sa ating mga pasyente.
ANG ATING MGA PANAWAGAN:
• Badyet ng Edukasyon at Kalusugan, Dagdagan!
• Joint Resolution No. 24 (Salary Standardization Law Part 3) – Anti-Health Workers, Mapanlinlang! Pondohan at Ipatupad ang mga Benepisyo ng mga Manggagawang Pangkalusugan, Huwag Tanggalin!
• Korporatisasyon/Privatization ng mga Pampublikong Ospital, Tutulan, Labanan!
• PGH – Ospital ng Bayan, Todo Serbisyo sa Mamamayan, Hindi Negosyo!
Para saan at para kanino nga ba ang mga kosmetikong pagbabago at pagpapaunlad ng mga inprastraktura, equipment at iba pang kagamitan?
Layunin nga ba nito na magbigay ng dagdag na serbisyo... o dagdag na bayarin sa mga taong lumalapit sa ating tanggapan? Ano ang silbi ng mga bagong equipments na bigay ng mga donors (Presidente, mga Senador at Congresssman at iba pa na karamihan ay galing rin naman sa buwis ng taumbayan) kung ang kapalit nito ay mas mataas na singilin para sa ating mga kliyente? Bakit pinahihintulutan ang pagpasok ng mga pribadong equipment/apparatus sa likod ng mga MOA na ang bunga ay hindi makakuha ng libre o discount sa serbisyo ng ospital and ating mga mamamayan at maging ang sarili mismong mga kawani nito? Dahil talaga bang ang matingkad na tunguhin ng pagpapatakbo ng ating ospital ay kita, kita at kumita pa rin?
Bilang isa sa mga abanteng organisasyon sa loob ng U.P. ang ating Unyon ay naninindigan na ang PGH, bilang Ospital ng Bayan ay itinatag upang magbigay ng laan at abot kayang serbisyong pangkalusugan at hindi maging behikulo sa pagpapasulpot ng mga dagdag kita na mamamayan din ang magpapasan. Hindi totoo na wala o kulang ang pondo ng gobyerno para tustusan ang pangangailangan ng mamamayan para sa mga panlipunang serbisyo katulad ng edukasyon at kalusugan. Tayong lahat ay saksi sa malawakan at bilyon-bilyong Pisong korupsiyon na kinasasangkutan hanggang ng mga sa kataas-taasang mga opisyal gobyerno na siyang umuubos sa kaban ng bayan, bukod pa sa pambayad utang na karamihan sa mga utang na ito ay sa bulso rin ng iilan pumupunta.
Kasama rin sa ating matagal ng kahilingan ay ang pagdaragdag ng badyet ng U.P. at PGH para mapunuan ang kakulangan sa bilang ng mga kawani, maibigay ang mga nararapat na mga benepisyo at upang makapaglingkod ng laan at abot-kayang serbisyong pangkalusugan sa ating mamamayan.
Sa totoo lang, sa ilalim ng pamunuan ng Administrasyong Alfiler, walang nadagdag na pondo ng PGH mula sa pambansang pamahalaan lalong-lalo ang sa MOOE (Maintenance, Operating and Other Expenses). Sa halip na igiit ang dagdag pondo, patong-patong na bayarin sa mga diagnostic exams at treatment procedures ang ipinapatupad na lalong nagpapahirap at siyang pumapatay sa ating mga pasyente.
ANG ATING MGA PANAWAGAN:
• Badyet ng Edukasyon at Kalusugan, Dagdagan!
• Joint Resolution No. 24 (Salary Standardization Law Part 3) – Anti-Health Workers, Mapanlinlang! Pondohan at Ipatupad ang mga Benepisyo ng mga Manggagawang Pangkalusugan, Huwag Tanggalin!
• Korporatisasyon/Privatization ng mga Pampublikong Ospital, Tutulan, Labanan!
• PGH – Ospital ng Bayan, Todo Serbisyo sa Mamamayan, Hindi Negosyo!
Sunday, March 22, 2009
Conflicting Findings of Facts: The Sentosa Nurses Cases
By Rico Foz*
“The State shall afford full protection to labor, local and overseas.”*
(Section 3, Art. XIII, Philippine Constitution)
The New York Supreme Court Appellate Division issued on January 13, 2009 its decision prohibiting the Suffolk County District Attorney from prosecuting the Avalon 10 nurses and their labor lawyer. It made findings of facts that conflicted with findings of facts made by Philippine government agencies in related cases. The Philippine agencies’ findings did not rule in favor of former Sentosa nurses. The New York court decision did. This discrepancy has led not a few from the Filipino-American community to ask: “Can we really expect the Philippine government to uphold the dignity and fundamental human rights of labor? Or shall we look instead to a foreign court to render justice to Filipino migrant workers?”
Background
Back in 2006, the former Sentosa nurses filed complaints against Sentosa Recruitment Agency (SRA), its Philippine-based recruiter, and its nursing home-principals for misrepresentation in the recruitment process and for contract-substitution. The nurses submitted to the Philippine Overseas Employment Administration (POEA) documentary as well as testimonial evidence to the effect that their recruiter had misrepresented to them the nature of their employment in the United States. They argued that their recruiter had represented that each nurse would be directly-hired by his or her respective contracting employer. The contracting employers were the various nursing home facilities accredited by the POEA as SRA’s principals. Each nurse and a particular nursing home-employer signed a three-year employment agreement. Upon the nurses’ arrival in the United States, they were not offered employment by their respective contracting employers. Instead, they found employment with Prompt Nursing Employment Agency, doing business as Sentosa Services. The nurses learned to their surprise that Francris Luyun, SRA’s proprietor, was himself working in New York as the international recruiter for Prompt/Sentosa Services. Prompt/Sentosa Services thereafter assigned the nurses to work at various nursing home facilities managed by Sentosa Care, LLC, a healthcare management company owned by Bent Philipson.
The nurses likewise filed money claims and constructive dismissal complaints against SRA’s principals before the National Labor Relations Commission (NLRC). They also filed illegal recruitment complaints before the Philippine Department of Justice (DOJ) against Luyun, SRA and its officers, and Philipson.
The POEA Decision
The POEA dismissed the complaints filed by the nurses in Elmer Jacinto et al. v. Sentosa Recruitment Agency et al., POEA Case No. RV-06-05-0713 and DAE-06-05-0551.
It found the following facts to have been allegedly “established by the records”:
1. “ Sentosa Recruitment Agency is a duly licensed recruitment agency of this Administration.
2. There is a Recruitment Agreement between Sentosa Recruitment Agency and Sentosa Care LLC.
3. Sentosa Care LLC has individual Special Power of Attorneys from each of its affiliates, authorizing Sentosa Care LLC to represent the affiliate in any transaction relative to the recruitment of Filipino workers, and all of it business operations.
4. Each of the affiliates, to which Sentosa Care LLC has individual Special Power of Attorney, are all identified and listed in the official website of the Sentosa Recruitment Agency and Sentosa Care LLC.
5. The notice/information as published in the official website of Sentosa Recruitment Agency is for the Filipino nurses to work in the biggest privately owned healthcare group in downstate New York – Sentosa Care Group – also referring to the Sentosa Care LLC.
6. Complainants were deployed with the Sentosa Care Group using EB-3 visas, obtained by Sentosa Recruitment Agency, totally at no cost to the complainants.”
The POEA ruled that “as to alleged misrepresentation relating to publication of false information, this Administration finds that no such false information was published in flyers or advertised in the websites that will constitute the alleged misrepresentation.” It reasoned that “Sentosa Care LLC as the managing company … entered into a Recruitment Agreement with Sentosa Recruitment Agency for and in behalf of each affiliated companies who in turn executed individual special power of attorneys in favor of Bent Philipson as Managing Partner and Chief Operating Officer of Sentosa Care LLC.”
The POEA found that “Sentosa Recruitment Agency is the local agency of the direct foreign principal which is the Sentosa Care LLC and its affiliated companies. It is not Prompt Nursing Employment Agency, Sentosa Services and Home Care Center, Inc. The fact that they receive their salaries from the aforementioned three entities does not make them their employers because the Sentosa Care Group is merely outsourcing the services of these entities for its payroll, purchasing and other administrative operations and all the facilities under respondent Sentosa Care closely coordinate with the outsourcing company on its operations.”
It ruled that “the fact that the complainants were made to work for a facility different from that appearing in their OECs and in their POEA approved contracts does not make for a case of misrepresentation. What is more important to consider is the fact that all the facilities from where they were made to work are all affiliated companies managed by Sentosa Care LLC and they are all duly registered with POEA as affiliates.”
It further ruled that “complainants failed to prove that because of their assignment to a healthcare facility different from that appearing in their DOLE approved contract there was diminution of their benefits and privileges.”
The NLRC Decision
The nurses’ money claims and constructive dismissal complaints were assigned to the Executive Labor Arbiter, who, on January 24, 2008, dismissed the complaints (Juliet Anilao et al. v. Sentosa Recruitment Agency et al., NLRC OFW Case Nos. (L) 06-05-01397-00 and (L) 06-12-03784-00).
The Executive Labor Arbiter made the following findings:
1. “…(E)xcept for the last batch of complainants, who gave two or four days notice, all other complainants tendered their respective resignations en mass, either before or after their respective shifts to take effect immediately. In short, there was no sufficient notice given to their employer.
2. Under the employment contracts, the employees, herein complainants, agree to be employed for three years. It is also stipulated that after three (3) years of employment, the employer and the employees agree to give each other two (2) weeks notice of intent before terminating their employment.
3. If, under their agreement for employment, the parties have agreed to give each others at least two (2) weeks notice of intent before terminating their employment after the three years expiration of their contract, with more reason that the complainants-employees should have given their employer sufficient time inorder to find their replacement inasmuch as the nurses pre-terminated their employment contracts.
4. Under art. 285 (a) of the Labor Code, as amended, it is necessary that service of notice of the termination or resignation letter to the employer must be made at least one (1) month in advance….Unfortunately, this was not observed by the complainants, thus constituting a clear violation of the aforequoted provision of the Labor Code. All told, complainants herein who tendered their voluntary resignation cannot claim that they were constructively dismissed.”
The DOJ Decision
Like the POEA and the NLRC, the Philippine DOJ, in Elmer Jacinto et al. v. Bent Philipson et al., I.S. Nos. 2006-472, summarily dismissed the illegal recruitment complaints. It found, thus:
“… (T)here was no substantive alteration in the employment contracts signed by the complainants to sustain findings of illegal recruitment against the respondents. It is clear that what happened was that respondents for one reason or another, failed to fully comply and fully implement the stipulations entered into by both parties. Respondents’ failure to fully comply with the stipulations in their contracts or the alleged breach of their contracts may warrant an action which is civil in nature, but definitely, not a criminal action.”
The NY Supreme Court Appellate Division’s Decision
The Appellate Division of the New York Supreme Court, in issuing the extraordinary writ of prohibition in the case of Matter of Vinluan v Doyle, __A.D.3d __, 2009 WL 93065 (2d. Dept. Jan. 13, 2009), made the following findings of facts:
1. The nurses “were recruited to work in the United States by the Sentosa Recruitment Agency, a Philippine-based company that hires nurses for several nursing care facilities in New York”.
2. “Each of the nurses signed an employment contract with the specific nursing homes for which they had been selected to work.”
3. “When the nurses arrived in the United States, they learned that they would be working for an employment agency instead of the specific nursing homes they had signed contracts with.”
4. “The nurses alleged that almost immediately, … issues arose concerning the terms of their employment, and the promises made to them in the Philippines were breached.”
5. “The nurses resigned from their employment either at the end of their shift, or in advance of their next shift, using an identical form letter which they had agreed upon together.”
6. “Following an investigation, on September 28, 2006, the Education Department closed the nurses’ cases, concluding that they had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.”
7. “The prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will.”
POEA and NY Appellate Division’s Decisions
The POEA decision admits that the nurses individually signed employment agreements with accredited nursing home principals of SRA. It however concludes that the actual employer was Sentosa Care Group or Sentosa Care, LLC, the healthcare management company. The nursing employment agency (Prompt/Sentosa Services) was allegedly only a payroll company. That the nurses were made to work in facilities different from their contracting employers was inconsequential as their actual worksite-facilities were likewise facilities affiliated with Sentosa Care Group (or Sentosa Care, LLC).
The NY Court’s decision likewise found the nurses to have entered into employment agreements with specific nursing home facilities. It differs from the POEA decision in that it understands the non-provision by the contracting employers of employment to the contracted nurses as a “breach” of the employment agreements. It found Prompt/Sentosa Services as the at-will employer of the nurses. As at-will employees, the nurses had the right to resign at anytime, except in the middle of their work shifts. Prosecuting the nurses for exercising their right to resign as at-will employees impermissibly criminalizes their protected labor activity in violation of the 13th Amendment.
Critique on the POEA Decision
The POEA decision finds its fulcrum on the alleged findings of fact that there was a recruitment agreement between SRA and Sentosa Care, LLC, and that Sentosa Care, LLC has a special power of attorney from each of its affiliated nursing home facilities. The nurses’ lawyers claim that neither the recruitment agreement nor the special power of attorneys was submitted during the proceedings. The findings are simply not supported by the records of the case. Even assuming these findings to be grounded in reality, the fact remains that each nurse entered into an employment agreement with a nursing home facility-principal of SRA. The nurses did not sign up with Sentosa Care Group. Each one of them was induced to be recruited by SRA’s representation that each recruit would be directly-hired by his/her contracting employer. They were not informed that they would be working for Sentosa Care Group. In fact, Sentosa Care Group or Sentosa Care, LLC is not even an accredited principal of SRA.
POEA conveniently dismissed the nurses’ contention that Prompt/Sentosa Services was their actual employer, and not merely a payroll company. The decision did not bother to discuss the elements of employer-employee relationship. It ignored the voluminous documentary evidence submitted by the nurses proving their having been employed, not by a nursing home facility nor by Sentosa Care, LLC, but by Prompt Nursing Employment Agency/Sentosa Services.
The Role of Prompt Nursing Employment Agency
In its brazen attempt not to find employer-employee relationship between the nurses, on one hand, and Prompt or Sentosa Services, on the other hand, the POEA characterized Prompt/Sentosa Services’ role as merely that of a payroll company. Documentary evidence was however submitted by SRA itself that belied this finding. SRA submitted a copy of the Complaint filed by Sentosa’s Philipson in Nassau County Supreme Court entitled Sentosa Care, LLC et al. vs Anilao et al., Index No. 006079/06. Prompt Nursing Employment Agency is one of the named plaintiffs in this civil case. Pertinent paragraphs of the Complaint support the nurses’ contention that Prompt, in collusion with SRA, violated POEA rules and regulations on illegal recruitment.
Paragraphs 12, 16, 17, 18 and 19 of the Complaint state, thus:
“ x x x.
12. Prompt is a New York corporation with its principal place of business located at 204 Broadway, Brooklyn, NY 11211, engaged in the recruitment and placement of nurses and other healthcare workers with employers.
x x x.
16. Representatives of Prompt traveled to the Philippines and recruited the Nurses, many of whom had little or no experience working as nurses, to work at the Sentosa Facilities.
17. Among other things, Prompt financed the Nurses’ travel expenses to come to the United States, provided them with housing for two months at no cost, provided them with several weeks of orientation, training, financed the licensing process with the New York Department of Education and financed the immigration process to enable them to enter, work and remain in the United States.
18. Prompt informed the Nurses in advance that they would be expected to work --- initially at a reduced rate of compensation which would be increased from time to time.
19. Upon commencement of their employment, the Nurses were also given health care coverage, two weeks vacation and an extra week to study and prepare for licensing tests.
x x x.”
The judicial admissions by Prompt that it traveled to the Philippines and recruited nurses manifestly reveal its true role. As a “recruitment and placement” agency, it colluded with SRA, which was owned by its own employee/independent contractor Francris Luyun, to recruit Filipino nurses and assign them elsewhere, which in this case, would be the various Sentosa-afiliated facilities. Prompt was not merely a payroll company. It actually employed the recruited nurses whom it “placed” or assigned to work at the various Sentosa facilities.
At the outset, SRA and Luyun knew that the recruited nurses would not be working for the contracting nursing home-employers. SRA and Luyun knew that the nurses would be working for a nursing agency – Prompt/Sentosa Services. Luyun clearly misrepresented this fact to the detriment of the nurse-recruits.
Furthermore, by Prompt’s judicial admission, the POEA should have found that SRA and Prompt violated POEA rules and regulations concerning who can recruit in the Philippines. Prompt/Sentosa Services is neither a licensed recruitment agency in the Philippines nor an accredited principal of SRA. Why should it recruit or be allowed to recruit then in the Philippines? Prompt’s recruitment activities in the Philippines constituted a flagrant violation of Philippine recruitment rules and regulations.
NLRC and NY Appellate Division Decisions
Like the POEA decision, the NLRC decision did not bother to analyze whether or not Prompt/Sentosa Services was indeed the actual employer of the nurses. It unjustifiably presumed that the nursing home facilities that contracted with the nurses were the employers of the nurses. That was precisely the bone of contention. The nurses complained that they were not employed by the contracting nursing home facilities. They argued they were employed by Prompt/Sentosa Services. The Executive Labor Arbiter, however, did not analyze the documentary evidence submitted that proved the existence of employer-employee relationship between Prompt/Sentosa Services and the nurses. She ruled that the nurses were the ones who preterminated their employment agreements when they resigned from their jobs. She even went on to say that the nurses had the obligation to give at least one month notice of their intention to resign from their jobs.
The NY court decision, however, found that terms of the nurses’ employment contracts were breached. When the nurses found employment with the nursing employment agency, they entered into an “employment at will” relationship with the agency. The Appellate Division ruled that they had the right to resign anytime, so long as it was not in the middle of their shifts. Clearly, they had no obligation to give any notice at all, much more so a one-month notice. It must be emphasized that New York State is an “employment-at-will” state (http://www.labor.state.ny.us/workerprotection/laborstandards/faq.shtm).
The DOJ and NY Court Decisions
The DOJ remarkably found that the contracting nursing home facilities “failed to fully comply and fully implement the stipulations entered” into with the nurses. Although it acknowledged the nurses may have a civil cause of action against their contracting employers, the DOJ ruled that the contracts were not substantially altered as to constitute the crime of illegal recruitment.
The Appellate Division did not discuss the issue of substantial alterations to the employment contracts. It did however find that terms of the employment contracts were “breached”.
When the POEA decided that SRA and its nursing home principals did not violate any POEA rule or regulation, the DOJ deemed it had no choice but to dismiss the illegal recruitment complaints. In so doing, the DOJ miserably failed to rise to the occasion by not finding that SRA misrepresented the nature of the nurses’ employment. SRA’s website and flyers that promised “direct-hire” employment and the employment contracts that stated which “specific nursing homes” as the nurses’ employers, when understood together, clearly represented that a recruited nurse would be directly hired by his/her contracting employer, not by a healthcare management company (Sentosa Care Group or Sentosa Care, LLC), nor by a third-party nursing employment agency (Prompt/Sentosa Services). Proof of the misrepresentation was the fact that the nurses were made agency nurses of Prompt/Sentosa Services. This misrepresentation alone would have been sufficient to find probable cause to accuse SRA and its officers with illegal recruitment.
POEA’s Review of Sentosa Contracts
Inquirer.net reported on January 20, 2009 that the new POEA Administrator, Jennifer Manalili, had reviewed Sentosa contracts after the New York Court came out with its decision in favor of the former Sentosa nurses. She opined that the “liquidated damages” provision of the employment contracts whereby a nurse would pay the employer $25,000 in damages if he/she preterminated the 3-year employment contract “did not seem illegal” and was “reasonable”.
Whether the “liquidated damages” provision was reasonable or not should not have been the issue the POEA Administrator concerned herself with. She should have instead looked at the “parties” of the employment contract and clarified who the “employer” is of a particular nurse. What does the contract say? Does it name “Sentosa Care Group” or “Sentosa Care, LLC” as the “employer” of the nurses? In addition to the “parties” of the employment contracts, the POEA Administrator should have reviewed the Administration’s files if a “Sentosa Care Group” or a “Sentosa Care, LLC” is indeed registered as an accredited principal of SRA.
Sentosa Care Group or Sentosa Care, LLC is not a party to any of the employment agreements signed by any of the nurses. It is likewise not an accredited principal of SRA. Why should Sentosa Care, LLC then be considered by the POEA as the “direct foreign principal” of SRA and the employer of the nurses?
Liquidated Damages or Penalty?
The employment agreements as prepared by SRA provided that the nurses would have to pay twenty five thousand dollars ($25,000) “as liquidated damages penalty” if they were to preterminate their 3-year agreement. If only to belabor the point, the contracting employers were the ones that breached the employment agreements when they did not afford the contracted nurses any employment at all. The nurses were the aggrieved parties to breached contracts. Thus, the aforementioned liquidated damages provision in the employment agreements would be a non-issue insofar as the nurses are concerned.
Furthermore, liquidated damages provisions in the state of New York are unenforceable if they provide for a “penalty” (Vernitron Corp. v CF 48 Associates, 478 N.Y.S.2d, 933, 934). That is precisely how the adhesion contracts prepared by SRA worded the provision – a “penalty”. A liquidated damages provision to be enforceable must provide for graduated damages based upon the degree of breach. Fixing the damages at $25,000 whether the breach occurred a few months after the start of the contract or a few months before the end of a 3-year contract exemplifies the nature of the provision as a penalty. It penalizes a breach in the same amount regardless of when the breach happened relative to the term of the contract. To be enforceable, liquidated damages provisions should set out a specific formula that would result in a reasonable approximation of harm suffered. They should not seek to penalize the breaching party. In the Sentosa contracts, the provision is clearly a penalty, and is therefore unenforceable.
Challenge to the Philippine Secretaries of Labor and of Justice
In light of the recent decision by the NY Appellate Division vis-à-vis the POEA, NLRC and DOJ decisions, we call upon the Philippine Secretary of Labor to reverse the POEA’s decision in Elmer Jacinto et al. v. Sentosa Recruitment Agency et al. The appeal has been sitting on the Secretary’s desk for quite some time now. It is about time to right a wrong. The Labor Secretary must likewise instruct the National Labor Relations Commission (NLRC) to review its findings in Juliet Anilao et al. v. Sentosa Recruitment Agency et al.
We also challenge the Philippine Secretary of Justice to motu propio initiate an investigation into the recruitment activities of SRA and its accredited principals. Not only does SRA misrepresent the nature of employment of its nurse-recruits. It has colluded with a non-licensee and a non-principal to engage in recruitment activities in the Philippines. SRA’s employment contracts with its nurses do not follow its approved model contract. The actual employment agreements that SRA require its recruits to sign do not contain the minimum provisions as mandated by Part V, Rule I, section 2, 2002 POEA Rules in relation to Memo Circular #26, series of 2003. Luyun, in collusion with Prompt/Sentosa Services and its accredited principals, has coerced workers to accept prejudicial arrangements in exchange for certain benefits that rightfully belong to the workers (Part VI, Rule I, section 2t, 2002 POEA Rules). Finally, SRA has deployed workers to principals not accredited by the Administration (Part VI, Rule1, section 2q, 2002 POEA Rules).
Or shall we expect the Philippine government agencies to remain inutile and not give true meaning to the constitutional mandate to afford full protection to labor? Must justice for Filipino migrant workers come from a foreign court? Pray, tell, the Philippine government can protect the interests of its citizens, especially those it calls the “new heroes of the nation”.
* The author is the Executive Vice President of the National Alliance for Filipino Concerns (NAFCON), a national, multi-issue alliance of Filipino organizations and individuals in the United States serving to protect the rights and welfare of Filipinos by fighting for social, economic, and racial justice and equality. He is also the Lead Campaign Convener of the “Justice for Sentosa 27++! Justice for all Filipino Migrant Workers!”
“The State shall afford full protection to labor, local and overseas.”*
(Section 3, Art. XIII, Philippine Constitution)
The New York Supreme Court Appellate Division issued on January 13, 2009 its decision prohibiting the Suffolk County District Attorney from prosecuting the Avalon 10 nurses and their labor lawyer. It made findings of facts that conflicted with findings of facts made by Philippine government agencies in related cases. The Philippine agencies’ findings did not rule in favor of former Sentosa nurses. The New York court decision did. This discrepancy has led not a few from the Filipino-American community to ask: “Can we really expect the Philippine government to uphold the dignity and fundamental human rights of labor? Or shall we look instead to a foreign court to render justice to Filipino migrant workers?”
Background
Back in 2006, the former Sentosa nurses filed complaints against Sentosa Recruitment Agency (SRA), its Philippine-based recruiter, and its nursing home-principals for misrepresentation in the recruitment process and for contract-substitution. The nurses submitted to the Philippine Overseas Employment Administration (POEA) documentary as well as testimonial evidence to the effect that their recruiter had misrepresented to them the nature of their employment in the United States. They argued that their recruiter had represented that each nurse would be directly-hired by his or her respective contracting employer. The contracting employers were the various nursing home facilities accredited by the POEA as SRA’s principals. Each nurse and a particular nursing home-employer signed a three-year employment agreement. Upon the nurses’ arrival in the United States, they were not offered employment by their respective contracting employers. Instead, they found employment with Prompt Nursing Employment Agency, doing business as Sentosa Services. The nurses learned to their surprise that Francris Luyun, SRA’s proprietor, was himself working in New York as the international recruiter for Prompt/Sentosa Services. Prompt/Sentosa Services thereafter assigned the nurses to work at various nursing home facilities managed by Sentosa Care, LLC, a healthcare management company owned by Bent Philipson.
The nurses likewise filed money claims and constructive dismissal complaints against SRA’s principals before the National Labor Relations Commission (NLRC). They also filed illegal recruitment complaints before the Philippine Department of Justice (DOJ) against Luyun, SRA and its officers, and Philipson.
The POEA Decision
The POEA dismissed the complaints filed by the nurses in Elmer Jacinto et al. v. Sentosa Recruitment Agency et al., POEA Case No. RV-06-05-0713 and DAE-06-05-0551.
It found the following facts to have been allegedly “established by the records”:
1. “ Sentosa Recruitment Agency is a duly licensed recruitment agency of this Administration.
2. There is a Recruitment Agreement between Sentosa Recruitment Agency and Sentosa Care LLC.
3. Sentosa Care LLC has individual Special Power of Attorneys from each of its affiliates, authorizing Sentosa Care LLC to represent the affiliate in any transaction relative to the recruitment of Filipino workers, and all of it business operations.
4. Each of the affiliates, to which Sentosa Care LLC has individual Special Power of Attorney, are all identified and listed in the official website of the Sentosa Recruitment Agency and Sentosa Care LLC.
5. The notice/information as published in the official website of Sentosa Recruitment Agency is for the Filipino nurses to work in the biggest privately owned healthcare group in downstate New York – Sentosa Care Group – also referring to the Sentosa Care LLC.
6. Complainants were deployed with the Sentosa Care Group using EB-3 visas, obtained by Sentosa Recruitment Agency, totally at no cost to the complainants.”
The POEA ruled that “as to alleged misrepresentation relating to publication of false information, this Administration finds that no such false information was published in flyers or advertised in the websites that will constitute the alleged misrepresentation.” It reasoned that “Sentosa Care LLC as the managing company … entered into a Recruitment Agreement with Sentosa Recruitment Agency for and in behalf of each affiliated companies who in turn executed individual special power of attorneys in favor of Bent Philipson as Managing Partner and Chief Operating Officer of Sentosa Care LLC.”
The POEA found that “Sentosa Recruitment Agency is the local agency of the direct foreign principal which is the Sentosa Care LLC and its affiliated companies. It is not Prompt Nursing Employment Agency, Sentosa Services and Home Care Center, Inc. The fact that they receive their salaries from the aforementioned three entities does not make them their employers because the Sentosa Care Group is merely outsourcing the services of these entities for its payroll, purchasing and other administrative operations and all the facilities under respondent Sentosa Care closely coordinate with the outsourcing company on its operations.”
It ruled that “the fact that the complainants were made to work for a facility different from that appearing in their OECs and in their POEA approved contracts does not make for a case of misrepresentation. What is more important to consider is the fact that all the facilities from where they were made to work are all affiliated companies managed by Sentosa Care LLC and they are all duly registered with POEA as affiliates.”
It further ruled that “complainants failed to prove that because of their assignment to a healthcare facility different from that appearing in their DOLE approved contract there was diminution of their benefits and privileges.”
The NLRC Decision
The nurses’ money claims and constructive dismissal complaints were assigned to the Executive Labor Arbiter, who, on January 24, 2008, dismissed the complaints (Juliet Anilao et al. v. Sentosa Recruitment Agency et al., NLRC OFW Case Nos. (L) 06-05-01397-00 and (L) 06-12-03784-00).
The Executive Labor Arbiter made the following findings:
1. “…(E)xcept for the last batch of complainants, who gave two or four days notice, all other complainants tendered their respective resignations en mass, either before or after their respective shifts to take effect immediately. In short, there was no sufficient notice given to their employer.
2. Under the employment contracts, the employees, herein complainants, agree to be employed for three years. It is also stipulated that after three (3) years of employment, the employer and the employees agree to give each other two (2) weeks notice of intent before terminating their employment.
3. If, under their agreement for employment, the parties have agreed to give each others at least two (2) weeks notice of intent before terminating their employment after the three years expiration of their contract, with more reason that the complainants-employees should have given their employer sufficient time inorder to find their replacement inasmuch as the nurses pre-terminated their employment contracts.
4. Under art. 285 (a) of the Labor Code, as amended, it is necessary that service of notice of the termination or resignation letter to the employer must be made at least one (1) month in advance….Unfortunately, this was not observed by the complainants, thus constituting a clear violation of the aforequoted provision of the Labor Code. All told, complainants herein who tendered their voluntary resignation cannot claim that they were constructively dismissed.”
The DOJ Decision
Like the POEA and the NLRC, the Philippine DOJ, in Elmer Jacinto et al. v. Bent Philipson et al., I.S. Nos. 2006-472, summarily dismissed the illegal recruitment complaints. It found, thus:
“… (T)here was no substantive alteration in the employment contracts signed by the complainants to sustain findings of illegal recruitment against the respondents. It is clear that what happened was that respondents for one reason or another, failed to fully comply and fully implement the stipulations entered into by both parties. Respondents’ failure to fully comply with the stipulations in their contracts or the alleged breach of their contracts may warrant an action which is civil in nature, but definitely, not a criminal action.”
The NY Supreme Court Appellate Division’s Decision
The Appellate Division of the New York Supreme Court, in issuing the extraordinary writ of prohibition in the case of Matter of Vinluan v Doyle, __A.D.3d __, 2009 WL 93065 (2d. Dept. Jan. 13, 2009), made the following findings of facts:
1. The nurses “were recruited to work in the United States by the Sentosa Recruitment Agency, a Philippine-based company that hires nurses for several nursing care facilities in New York”.
2. “Each of the nurses signed an employment contract with the specific nursing homes for which they had been selected to work.”
3. “When the nurses arrived in the United States, they learned that they would be working for an employment agency instead of the specific nursing homes they had signed contracts with.”
4. “The nurses alleged that almost immediately, … issues arose concerning the terms of their employment, and the promises made to them in the Philippines were breached.”
5. “The nurses resigned from their employment either at the end of their shift, or in advance of their next shift, using an identical form letter which they had agreed upon together.”
6. “Following an investigation, on September 28, 2006, the Education Department closed the nurses’ cases, concluding that they had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.”
7. “The prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will.”
POEA and NY Appellate Division’s Decisions
The POEA decision admits that the nurses individually signed employment agreements with accredited nursing home principals of SRA. It however concludes that the actual employer was Sentosa Care Group or Sentosa Care, LLC, the healthcare management company. The nursing employment agency (Prompt/Sentosa Services) was allegedly only a payroll company. That the nurses were made to work in facilities different from their contracting employers was inconsequential as their actual worksite-facilities were likewise facilities affiliated with Sentosa Care Group (or Sentosa Care, LLC).
The NY Court’s decision likewise found the nurses to have entered into employment agreements with specific nursing home facilities. It differs from the POEA decision in that it understands the non-provision by the contracting employers of employment to the contracted nurses as a “breach” of the employment agreements. It found Prompt/Sentosa Services as the at-will employer of the nurses. As at-will employees, the nurses had the right to resign at anytime, except in the middle of their work shifts. Prosecuting the nurses for exercising their right to resign as at-will employees impermissibly criminalizes their protected labor activity in violation of the 13th Amendment.
Critique on the POEA Decision
The POEA decision finds its fulcrum on the alleged findings of fact that there was a recruitment agreement between SRA and Sentosa Care, LLC, and that Sentosa Care, LLC has a special power of attorney from each of its affiliated nursing home facilities. The nurses’ lawyers claim that neither the recruitment agreement nor the special power of attorneys was submitted during the proceedings. The findings are simply not supported by the records of the case. Even assuming these findings to be grounded in reality, the fact remains that each nurse entered into an employment agreement with a nursing home facility-principal of SRA. The nurses did not sign up with Sentosa Care Group. Each one of them was induced to be recruited by SRA’s representation that each recruit would be directly-hired by his/her contracting employer. They were not informed that they would be working for Sentosa Care Group. In fact, Sentosa Care Group or Sentosa Care, LLC is not even an accredited principal of SRA.
POEA conveniently dismissed the nurses’ contention that Prompt/Sentosa Services was their actual employer, and not merely a payroll company. The decision did not bother to discuss the elements of employer-employee relationship. It ignored the voluminous documentary evidence submitted by the nurses proving their having been employed, not by a nursing home facility nor by Sentosa Care, LLC, but by Prompt Nursing Employment Agency/Sentosa Services.
The Role of Prompt Nursing Employment Agency
In its brazen attempt not to find employer-employee relationship between the nurses, on one hand, and Prompt or Sentosa Services, on the other hand, the POEA characterized Prompt/Sentosa Services’ role as merely that of a payroll company. Documentary evidence was however submitted by SRA itself that belied this finding. SRA submitted a copy of the Complaint filed by Sentosa’s Philipson in Nassau County Supreme Court entitled Sentosa Care, LLC et al. vs Anilao et al., Index No. 006079/06. Prompt Nursing Employment Agency is one of the named plaintiffs in this civil case. Pertinent paragraphs of the Complaint support the nurses’ contention that Prompt, in collusion with SRA, violated POEA rules and regulations on illegal recruitment.
Paragraphs 12, 16, 17, 18 and 19 of the Complaint state, thus:
“ x x x.
12. Prompt is a New York corporation with its principal place of business located at 204 Broadway, Brooklyn, NY 11211, engaged in the recruitment and placement of nurses and other healthcare workers with employers.
x x x.
16. Representatives of Prompt traveled to the Philippines and recruited the Nurses, many of whom had little or no experience working as nurses, to work at the Sentosa Facilities.
17. Among other things, Prompt financed the Nurses’ travel expenses to come to the United States, provided them with housing for two months at no cost, provided them with several weeks of orientation, training, financed the licensing process with the New York Department of Education and financed the immigration process to enable them to enter, work and remain in the United States.
18. Prompt informed the Nurses in advance that they would be expected to work --- initially at a reduced rate of compensation which would be increased from time to time.
19. Upon commencement of their employment, the Nurses were also given health care coverage, two weeks vacation and an extra week to study and prepare for licensing tests.
x x x.”
The judicial admissions by Prompt that it traveled to the Philippines and recruited nurses manifestly reveal its true role. As a “recruitment and placement” agency, it colluded with SRA, which was owned by its own employee/independent contractor Francris Luyun, to recruit Filipino nurses and assign them elsewhere, which in this case, would be the various Sentosa-afiliated facilities. Prompt was not merely a payroll company. It actually employed the recruited nurses whom it “placed” or assigned to work at the various Sentosa facilities.
At the outset, SRA and Luyun knew that the recruited nurses would not be working for the contracting nursing home-employers. SRA and Luyun knew that the nurses would be working for a nursing agency – Prompt/Sentosa Services. Luyun clearly misrepresented this fact to the detriment of the nurse-recruits.
Furthermore, by Prompt’s judicial admission, the POEA should have found that SRA and Prompt violated POEA rules and regulations concerning who can recruit in the Philippines. Prompt/Sentosa Services is neither a licensed recruitment agency in the Philippines nor an accredited principal of SRA. Why should it recruit or be allowed to recruit then in the Philippines? Prompt’s recruitment activities in the Philippines constituted a flagrant violation of Philippine recruitment rules and regulations.
NLRC and NY Appellate Division Decisions
Like the POEA decision, the NLRC decision did not bother to analyze whether or not Prompt/Sentosa Services was indeed the actual employer of the nurses. It unjustifiably presumed that the nursing home facilities that contracted with the nurses were the employers of the nurses. That was precisely the bone of contention. The nurses complained that they were not employed by the contracting nursing home facilities. They argued they were employed by Prompt/Sentosa Services. The Executive Labor Arbiter, however, did not analyze the documentary evidence submitted that proved the existence of employer-employee relationship between Prompt/Sentosa Services and the nurses. She ruled that the nurses were the ones who preterminated their employment agreements when they resigned from their jobs. She even went on to say that the nurses had the obligation to give at least one month notice of their intention to resign from their jobs.
The NY court decision, however, found that terms of the nurses’ employment contracts were breached. When the nurses found employment with the nursing employment agency, they entered into an “employment at will” relationship with the agency. The Appellate Division ruled that they had the right to resign anytime, so long as it was not in the middle of their shifts. Clearly, they had no obligation to give any notice at all, much more so a one-month notice. It must be emphasized that New York State is an “employment-at-will” state (http://www.labor.state.ny.us/workerprotection/laborstandards/faq.shtm).
The DOJ and NY Court Decisions
The DOJ remarkably found that the contracting nursing home facilities “failed to fully comply and fully implement the stipulations entered” into with the nurses. Although it acknowledged the nurses may have a civil cause of action against their contracting employers, the DOJ ruled that the contracts were not substantially altered as to constitute the crime of illegal recruitment.
The Appellate Division did not discuss the issue of substantial alterations to the employment contracts. It did however find that terms of the employment contracts were “breached”.
When the POEA decided that SRA and its nursing home principals did not violate any POEA rule or regulation, the DOJ deemed it had no choice but to dismiss the illegal recruitment complaints. In so doing, the DOJ miserably failed to rise to the occasion by not finding that SRA misrepresented the nature of the nurses’ employment. SRA’s website and flyers that promised “direct-hire” employment and the employment contracts that stated which “specific nursing homes” as the nurses’ employers, when understood together, clearly represented that a recruited nurse would be directly hired by his/her contracting employer, not by a healthcare management company (Sentosa Care Group or Sentosa Care, LLC), nor by a third-party nursing employment agency (Prompt/Sentosa Services). Proof of the misrepresentation was the fact that the nurses were made agency nurses of Prompt/Sentosa Services. This misrepresentation alone would have been sufficient to find probable cause to accuse SRA and its officers with illegal recruitment.
POEA’s Review of Sentosa Contracts
Inquirer.net reported on January 20, 2009 that the new POEA Administrator, Jennifer Manalili, had reviewed Sentosa contracts after the New York Court came out with its decision in favor of the former Sentosa nurses. She opined that the “liquidated damages” provision of the employment contracts whereby a nurse would pay the employer $25,000 in damages if he/she preterminated the 3-year employment contract “did not seem illegal” and was “reasonable”.
Whether the “liquidated damages” provision was reasonable or not should not have been the issue the POEA Administrator concerned herself with. She should have instead looked at the “parties” of the employment contract and clarified who the “employer” is of a particular nurse. What does the contract say? Does it name “Sentosa Care Group” or “Sentosa Care, LLC” as the “employer” of the nurses? In addition to the “parties” of the employment contracts, the POEA Administrator should have reviewed the Administration’s files if a “Sentosa Care Group” or a “Sentosa Care, LLC” is indeed registered as an accredited principal of SRA.
Sentosa Care Group or Sentosa Care, LLC is not a party to any of the employment agreements signed by any of the nurses. It is likewise not an accredited principal of SRA. Why should Sentosa Care, LLC then be considered by the POEA as the “direct foreign principal” of SRA and the employer of the nurses?
Liquidated Damages or Penalty?
The employment agreements as prepared by SRA provided that the nurses would have to pay twenty five thousand dollars ($25,000) “as liquidated damages penalty” if they were to preterminate their 3-year agreement. If only to belabor the point, the contracting employers were the ones that breached the employment agreements when they did not afford the contracted nurses any employment at all. The nurses were the aggrieved parties to breached contracts. Thus, the aforementioned liquidated damages provision in the employment agreements would be a non-issue insofar as the nurses are concerned.
Furthermore, liquidated damages provisions in the state of New York are unenforceable if they provide for a “penalty” (Vernitron Corp. v CF 48 Associates, 478 N.Y.S.2d, 933, 934). That is precisely how the adhesion contracts prepared by SRA worded the provision – a “penalty”. A liquidated damages provision to be enforceable must provide for graduated damages based upon the degree of breach. Fixing the damages at $25,000 whether the breach occurred a few months after the start of the contract or a few months before the end of a 3-year contract exemplifies the nature of the provision as a penalty. It penalizes a breach in the same amount regardless of when the breach happened relative to the term of the contract. To be enforceable, liquidated damages provisions should set out a specific formula that would result in a reasonable approximation of harm suffered. They should not seek to penalize the breaching party. In the Sentosa contracts, the provision is clearly a penalty, and is therefore unenforceable.
Challenge to the Philippine Secretaries of Labor and of Justice
In light of the recent decision by the NY Appellate Division vis-à-vis the POEA, NLRC and DOJ decisions, we call upon the Philippine Secretary of Labor to reverse the POEA’s decision in Elmer Jacinto et al. v. Sentosa Recruitment Agency et al. The appeal has been sitting on the Secretary’s desk for quite some time now. It is about time to right a wrong. The Labor Secretary must likewise instruct the National Labor Relations Commission (NLRC) to review its findings in Juliet Anilao et al. v. Sentosa Recruitment Agency et al.
We also challenge the Philippine Secretary of Justice to motu propio initiate an investigation into the recruitment activities of SRA and its accredited principals. Not only does SRA misrepresent the nature of employment of its nurse-recruits. It has colluded with a non-licensee and a non-principal to engage in recruitment activities in the Philippines. SRA’s employment contracts with its nurses do not follow its approved model contract. The actual employment agreements that SRA require its recruits to sign do not contain the minimum provisions as mandated by Part V, Rule I, section 2, 2002 POEA Rules in relation to Memo Circular #26, series of 2003. Luyun, in collusion with Prompt/Sentosa Services and its accredited principals, has coerced workers to accept prejudicial arrangements in exchange for certain benefits that rightfully belong to the workers (Part VI, Rule I, section 2t, 2002 POEA Rules). Finally, SRA has deployed workers to principals not accredited by the Administration (Part VI, Rule1, section 2q, 2002 POEA Rules).
Or shall we expect the Philippine government agencies to remain inutile and not give true meaning to the constitutional mandate to afford full protection to labor? Must justice for Filipino migrant workers come from a foreign court? Pray, tell, the Philippine government can protect the interests of its citizens, especially those it calls the “new heroes of the nation”.
* The author is the Executive Vice President of the National Alliance for Filipino Concerns (NAFCON), a national, multi-issue alliance of Filipino organizations and individuals in the United States serving to protect the rights and welfare of Filipinos by fighting for social, economic, and racial justice and equality. He is also the Lead Campaign Convener of the “Justice for Sentosa 27++! Justice for all Filipino Migrant Workers!”
Saturday, March 21, 2009
The Bigger Picture
Streetwise
By Carol Pagaduan-Araullo
Business World
Vol. XXII, No. 163, Friday, March 20, 2009 | MANILA, PHILIPPINES
The headline of a widely circulated broadsheet screams, “Nicole recants, clears Smith”. For the first time, the face of the young Filipina raped by a US marine, who used the pseudonym Nicole to hide her real identity, is published in the front page with the caption “The Unveiling, Unmaking of Nicole”. The temptation to sensationalize the purported recantation; to accept it hook, line and sinker; and to thereafter condemn Nicole is so strong, many have succumbed to it.
Nicole is disparaged and scorned for either taking almost everyone, including a court of law, for a ride crying “Rape!” Or for changing her story and allowing herself to appear as the stereotypical slut and gold digger, out to hook an American soldier that the defense lawyers had tried to do during trial but failed.
Not a few are disappointed and disheartened. While they do not condemn her for caving in to tremendous pressure from all sides to give up the fight for justice, they secretly wish that she had been made of sterner stuff. At least, that she had some remaining sense of decency not to have reportedly flown off to the United States with a new-found American boyfriend, in order to pursue the foolhardy dream of the colonial-minded.
As for Smith’s lawyer, Atty. Jose Justiniano, what is important is not Nicole’s credibility nor reputation, nor the public’s affront at this distasteful turn of events, only that she has retracted critical parts of her earlier testimony, sufficient to jeopardize the legal victory she had attained in a lower court. The wily lawyer that he is, Mr. Justiniano knows that the defense has successfully thrown a monkey wrench into the overall equation, no matter that the predominant legal opinion is that Nicole’s latest affidavit is no better than a scrap of paper.
We leave it to the legal experts to explain why Nicole’s “recantation” is worthless going by the rules of court and the law on evidence applicable in this case. What must be exposed are the highly suspicious circumstances surrounding the execution of the affidavit that render it totally lacking in credibility despite the claims of the victim’s mother that Nicole signed it of her own free will and that it is not an out-of-court settlement.
Atty. Evalyn Ursua , Nicole’s dismissed lawyer, says that the affidavit has all the hallmarks of something the defense lawyers cooked up. For one it contains the line of defense used unsuccessfully by Smith at his trial. Moreover, going by what she knew about her client in the three years that she counseled her, Ms. Ursua says that the affidavit does not “sound” like Nicole at all. And why did it have to be one of the lawyers in the law firm that is defending Smith, to notarize the document? Nicole herself is conveniently unavailable to either corroborate or refute the contents of the affidavit.
Those who easily condemn Nicole forget what she has been up against in pursuing the rape case against US Marine Smith. They forget that Smith was fully backed by his government, the superpower USA. This is the same superpower that has ignored worldwide protests and has single-mindedly, as well as violently, imposed its imperial designs on sovereign countries. It is the same US government that has threatened sovereign states with economic sanctions to dissuade them from ratifying the Rome Statute. In so doing, US troops and civilian personnel are exempted from prosecution by the International Criminal Court for violations of human rights and international law.
Even worse, Nicole has had to contend with the Philippine government, her government, which has consistently been more concerned with not offending, but rather sucking up to, the US government, than defending its own citizen's rights.
Sec. Gonzales and his prosecutors have used the “recantation” to further assail the credibility of their own client, the person they are duty-bound to stand by considering that the criminal justice system from the police to the fiscals to the trial judge all found that the evidence presented proved Nicole to have been raped by Smith.
Recall how Sec. Gonzales badgered and threatened the fiscal in Olongapo and later, in Makati, with administrative sanctions when they stood their ground in finding that all four US servicemen who were at the scene of the crime be indicted. Recall how disparaging Mr. Gonzales was about Nicole.
See how the public prosecutors showed little understanding much less sympathy for the plight of Nicole then and now. Remember how Nicole’s mother then made public her disgust that the government prosecutors were pushing for an out-of-court settlement rather than a conviction.
In this light, Nicole's "retraction" is hardly worth considering. Nicole is clearly the victim twice-over: she was raped by US marine Smith and now she has somehow been duped to be a party to her own undoing by Smith’s lawyers with the collusion of the US and Philippine governments.
So what is the game plan here? First, the rape conviction. To have it overturned by the Court of Appeals by means of Nicole’s much-ballyhooed “recantation”, if not legally, then extra legally, by shaping the public’s and the justices’ opinion that there is now, at the minimum, doubt as to the guilt of Smith.
The fish is caught by the mouth. Sec. Ermita says that if Smith is set free then the issue of custody is rendered moot. The Arroyo regime will no longer have to engage in negotiations for custody and be subjected to the indignity of being ignored by the US government. He predicts that calls for abrogation of the VFA will loose steam.
Again, this regime and US foreign policymakers who have not changed gears despite US President Obama’s I-am-the-darling- of-the-American- people and I-am-the-friend- of-the-world’s peoples pose, grossly underestimate how the lesson in the Nicole rape case is getting hammered, little by little, into the Filipino people’s consciousness. That is, with the VFA, Filipinos are treated as second class citizens in their own country, no different from the victims of American soldiers’ abuse when the US bases were still around.
US Ambassador Kenney will do a song-and-dance number, kiss babies, hand over reward money to Abu Sayyaf bounty hunters and lecture the Philippines ever so sweetly about how democratic elections should take place in the grand tradition of the US of A. But she, as the principal representative of an overweening, aggressive Superpower out to corner the best business deals and the world’s resources, will deny Nicole and other Filipino victims of crimes perpetrated by the US armed forces their due justice.
Outrage as to how the Arroyo government sells out the country’s sovereignty and the people’s rights to a former colonizer, acting now as neocolonizer, will accumulate over time, to an extent and to a degree, much more than the outrage at the abuse inflicted on this unfortunate individual Filipino who goes by the name Nicole.#
By Carol Pagaduan-Araullo
Business World
Vol. XXII, No. 163, Friday, March 20, 2009 | MANILA, PHILIPPINES
The headline of a widely circulated broadsheet screams, “Nicole recants, clears Smith”. For the first time, the face of the young Filipina raped by a US marine, who used the pseudonym Nicole to hide her real identity, is published in the front page with the caption “The Unveiling, Unmaking of Nicole”. The temptation to sensationalize the purported recantation; to accept it hook, line and sinker; and to thereafter condemn Nicole is so strong, many have succumbed to it.
Nicole is disparaged and scorned for either taking almost everyone, including a court of law, for a ride crying “Rape!” Or for changing her story and allowing herself to appear as the stereotypical slut and gold digger, out to hook an American soldier that the defense lawyers had tried to do during trial but failed.
Not a few are disappointed and disheartened. While they do not condemn her for caving in to tremendous pressure from all sides to give up the fight for justice, they secretly wish that she had been made of sterner stuff. At least, that she had some remaining sense of decency not to have reportedly flown off to the United States with a new-found American boyfriend, in order to pursue the foolhardy dream of the colonial-minded.
As for Smith’s lawyer, Atty. Jose Justiniano, what is important is not Nicole’s credibility nor reputation, nor the public’s affront at this distasteful turn of events, only that she has retracted critical parts of her earlier testimony, sufficient to jeopardize the legal victory she had attained in a lower court. The wily lawyer that he is, Mr. Justiniano knows that the defense has successfully thrown a monkey wrench into the overall equation, no matter that the predominant legal opinion is that Nicole’s latest affidavit is no better than a scrap of paper.
We leave it to the legal experts to explain why Nicole’s “recantation” is worthless going by the rules of court and the law on evidence applicable in this case. What must be exposed are the highly suspicious circumstances surrounding the execution of the affidavit that render it totally lacking in credibility despite the claims of the victim’s mother that Nicole signed it of her own free will and that it is not an out-of-court settlement.
Atty. Evalyn Ursua , Nicole’s dismissed lawyer, says that the affidavit has all the hallmarks of something the defense lawyers cooked up. For one it contains the line of defense used unsuccessfully by Smith at his trial. Moreover, going by what she knew about her client in the three years that she counseled her, Ms. Ursua says that the affidavit does not “sound” like Nicole at all. And why did it have to be one of the lawyers in the law firm that is defending Smith, to notarize the document? Nicole herself is conveniently unavailable to either corroborate or refute the contents of the affidavit.
Those who easily condemn Nicole forget what she has been up against in pursuing the rape case against US Marine Smith. They forget that Smith was fully backed by his government, the superpower USA. This is the same superpower that has ignored worldwide protests and has single-mindedly, as well as violently, imposed its imperial designs on sovereign countries. It is the same US government that has threatened sovereign states with economic sanctions to dissuade them from ratifying the Rome Statute. In so doing, US troops and civilian personnel are exempted from prosecution by the International Criminal Court for violations of human rights and international law.
Even worse, Nicole has had to contend with the Philippine government, her government, which has consistently been more concerned with not offending, but rather sucking up to, the US government, than defending its own citizen's rights.
Sec. Gonzales and his prosecutors have used the “recantation” to further assail the credibility of their own client, the person they are duty-bound to stand by considering that the criminal justice system from the police to the fiscals to the trial judge all found that the evidence presented proved Nicole to have been raped by Smith.
Recall how Sec. Gonzales badgered and threatened the fiscal in Olongapo and later, in Makati, with administrative sanctions when they stood their ground in finding that all four US servicemen who were at the scene of the crime be indicted. Recall how disparaging Mr. Gonzales was about Nicole.
See how the public prosecutors showed little understanding much less sympathy for the plight of Nicole then and now. Remember how Nicole’s mother then made public her disgust that the government prosecutors were pushing for an out-of-court settlement rather than a conviction.
In this light, Nicole's "retraction" is hardly worth considering. Nicole is clearly the victim twice-over: she was raped by US marine Smith and now she has somehow been duped to be a party to her own undoing by Smith’s lawyers with the collusion of the US and Philippine governments.
So what is the game plan here? First, the rape conviction. To have it overturned by the Court of Appeals by means of Nicole’s much-ballyhooed “recantation”, if not legally, then extra legally, by shaping the public’s and the justices’ opinion that there is now, at the minimum, doubt as to the guilt of Smith.
The fish is caught by the mouth. Sec. Ermita says that if Smith is set free then the issue of custody is rendered moot. The Arroyo regime will no longer have to engage in negotiations for custody and be subjected to the indignity of being ignored by the US government. He predicts that calls for abrogation of the VFA will loose steam.
Again, this regime and US foreign policymakers who have not changed gears despite US President Obama’s I-am-the-darling- of-the-American- people and I-am-the-friend- of-the-world’s peoples pose, grossly underestimate how the lesson in the Nicole rape case is getting hammered, little by little, into the Filipino people’s consciousness. That is, with the VFA, Filipinos are treated as second class citizens in their own country, no different from the victims of American soldiers’ abuse when the US bases were still around.
US Ambassador Kenney will do a song-and-dance number, kiss babies, hand over reward money to Abu Sayyaf bounty hunters and lecture the Philippines ever so sweetly about how democratic elections should take place in the grand tradition of the US of A. But she, as the principal representative of an overweening, aggressive Superpower out to corner the best business deals and the world’s resources, will deny Nicole and other Filipino victims of crimes perpetrated by the US armed forces their due justice.
Outrage as to how the Arroyo government sells out the country’s sovereignty and the people’s rights to a former colonizer, acting now as neocolonizer, will accumulate over time, to an extent and to a degree, much more than the outrage at the abuse inflicted on this unfortunate individual Filipino who goes by the name Nicole.#
Friday, March 20, 2009
Nicole Did Not Fail Us. The Justice System Did
by: Rob Ty
Mar 18, '09 12:34 PM
Sen. Francis Pangilinan's words, not mine. But I completely agree with him.
Let's one thing straight: We are not the victims here. She is. We've never been raped. Never been exposed to an overblown media circus. Never been agitated in court. Never been harassed by reporters, lawyers and embassy men.
So when someone like Korina Sanchez announces on her AM radio station that Nicole is a disgrace to Filipino women everywhere (translated from tagalog), you can't help but shudder.
So this is justice, this is hate. It's no wonder she left the country.
We are not the victims here. Yet, we are the ones who cannot forgive. Here we are, sitting in our armchairs, waving our nation's flags, our gender's hopes, our nurtured concepts of justice.
But the thing is, we did nothing. We let people like Raul Gonzalez change the prosecutors of the case. We let people like NSA Norberto Gonzales change custody of Smith in the dead of the night. We let the US embassy exert pressure on Nicole by withdrawing her US VISA. We allowed countless women like Nicole to be gobbled up by the system, by the politics.
So who are we to judge? Who are we to cast the first stone?
Truth be told, we've already used her up. We got the conviction - which allowed us to question the VFA in the Supreme Court. We got the Supreme Court decision.
What more do we want? Maybe just more blood, sweat and tears.
What Can We Do?
Right now, if you really care for Nicole, you will support the drafting of a disbarment complaint against Daniel Smith's lawyer.
Why? At the time of the affidavit (March 12), Evalyn Ursua was still Nicole's lawyer. She was only fired last Monday (March 16). Smith's lawyer violated a cardinal rule of legal ethics by talking to Nicole behind her lawyer's back. Why is this unethical? The legal reason is that it undermines a fellow attorney's ability to handle her client's case. It's a form of disrespect for a colleague. The practical reason is to prevent people from being tricked since the best defense against the opposing lawyer, is your own lawyer.
In the case of Camacho v. Pangulayan, a UP law professor accused some lawyers of directly negotiating with his clients in order to obtain an amicable settlement. In effect, they ignored him even though he was the counsel on record. The Court agreed with the professor and said that the failure to inform opposing counsel is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. The erring lawyer was suspended from the practice of law for three months.
Fast forward to the present: Smith's lawyer prepares a statement, has a junior associate (who, by the way, is a UP law graduate) notarize the document, and then asks Nicole to sign it as a condition for the release of her VISA and 100,000 pesos. All this WITHOUT EVER consulting her counsel on record.
If Nicole had a lawyer, she might still have signed the affidavit. But it would have never looked this bad. Take a look at paragraphs 6-10, which incorporate all the arguments the defense raised during trial. ALL OF THEM.
And then take a look at the last sentence of the affidavit: "I would rather risk public outrage than do nothing to help the court in ensuring that justice is served." The sentence brings a whole new low to the legal profession. I admit I am ashamed of what we have become.
Nicole left everything behind so she could start anew, and I don't blame her. Not one bit.
Mar 18, '09 12:34 PM
Sen. Francis Pangilinan's words, not mine. But I completely agree with him.
Let's one thing straight: We are not the victims here. She is. We've never been raped. Never been exposed to an overblown media circus. Never been agitated in court. Never been harassed by reporters, lawyers and embassy men.
So when someone like Korina Sanchez announces on her AM radio station that Nicole is a disgrace to Filipino women everywhere (translated from tagalog), you can't help but shudder.
So this is justice, this is hate. It's no wonder she left the country.
We are not the victims here. Yet, we are the ones who cannot forgive. Here we are, sitting in our armchairs, waving our nation's flags, our gender's hopes, our nurtured concepts of justice.
But the thing is, we did nothing. We let people like Raul Gonzalez change the prosecutors of the case. We let people like NSA Norberto Gonzales change custody of Smith in the dead of the night. We let the US embassy exert pressure on Nicole by withdrawing her US VISA. We allowed countless women like Nicole to be gobbled up by the system, by the politics.
So who are we to judge? Who are we to cast the first stone?
Truth be told, we've already used her up. We got the conviction - which allowed us to question the VFA in the Supreme Court. We got the Supreme Court decision.
What more do we want? Maybe just more blood, sweat and tears.
What Can We Do?
Right now, if you really care for Nicole, you will support the drafting of a disbarment complaint against Daniel Smith's lawyer.
Why? At the time of the affidavit (March 12), Evalyn Ursua was still Nicole's lawyer. She was only fired last Monday (March 16). Smith's lawyer violated a cardinal rule of legal ethics by talking to Nicole behind her lawyer's back. Why is this unethical? The legal reason is that it undermines a fellow attorney's ability to handle her client's case. It's a form of disrespect for a colleague. The practical reason is to prevent people from being tricked since the best defense against the opposing lawyer, is your own lawyer.
In the case of Camacho v. Pangulayan, a UP law professor accused some lawyers of directly negotiating with his clients in order to obtain an amicable settlement. In effect, they ignored him even though he was the counsel on record. The Court agreed with the professor and said that the failure to inform opposing counsel is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. The erring lawyer was suspended from the practice of law for three months.
Fast forward to the present: Smith's lawyer prepares a statement, has a junior associate (who, by the way, is a UP law graduate) notarize the document, and then asks Nicole to sign it as a condition for the release of her VISA and 100,000 pesos. All this WITHOUT EVER consulting her counsel on record.
If Nicole had a lawyer, she might still have signed the affidavit. But it would have never looked this bad. Take a look at paragraphs 6-10, which incorporate all the arguments the defense raised during trial. ALL OF THEM.
And then take a look at the last sentence of the affidavit: "I would rather risk public outrage than do nothing to help the court in ensuring that justice is served." The sentence brings a whole new low to the legal profession. I admit I am ashamed of what we have become.
Nicole left everything behind so she could start anew, and I don't blame her. Not one bit.
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