By CHARMAINE P. LIRIO AND GLAIZA MAY G. MUZONES
Bulatlat - http://www.bulatlat.com
MANILA — Heavy rains on Thursday May 7 did not stop health workers from celebrating the National Day for Health Workers with a protest on the wet and almost flooded streets of Morayta.
With their umbrellas and white coats, public health workers protested for salary and benefits increase in their sector. They also condemned the privatization of public hospitals and the dire state of health services in the country.
“We nurses, doctors, and other health workers who have chosen to stay in the country amidst crisis, poverty, sickness and corruption decry the willful neglect and disregard of the Arroyo government of the health workers and Filipino peoples’ plight,” the Alliance of Health Workers (AHW) said in a statement.
Led by AHW, the alliance of public health workers’ organizations, the protesters held a motorcade from the Lung Center of the Philippines and intended to have their program in Mendiola when they were blocked by the police.
Against privatization, corporatization
The health workers also expressed opposition to the government’s plan to privatize health services through House Bill (HB) 3287.
“Instead of ensuring the right to people’s health, the Department of Health revenue enhancement programs are giving heyday to private entities while making poor patients pay for every piece of cotton used,” AHW said.
HB 3287 was filed by by Rep. Roque Ablan, Jr. as part of Arroyo’s emergency resiliency package early this year. The bill seeks to corporatize public hospitals in the country.
Aside from this, some public hospitals now have Revenue Enhancement Programs (REP).
According to Remi Ysmael, President of Tondo Medical Center Employees Association, their hospital implements REP by requiring patients to pay for services that were previously offered for free.
Salary increase?
Dr. Geneve Rivera, Secretary General of the Health Alliance for Democracy (HEAD), said the government is deceiving public health workers through Joint Resolution 24.
”Tumaas ang ating sahod, binawasan naman ang ating benepisyo at papalittin pa nito ang mga matatanggap na kakarampot ng ating mga manggagawang pangkalusugan sa mga pribado at pampublikong ospital,” she said. (”Our salaries increased but our benefits were reduced, this will further lessen the already meager income of our health workers in public and private hospitals.”)
Joint Resolution No. 24 legalizes the abolition of economic and non-economic benefits gained through the Magna Carta of Public Health Workers or Republic Act 7305 of 1999.
RA 7305 includes in its provision the benefits and incentives of health workers such as subsistence allowance, hazard pay, and one-grade increase for compulsory retirees.
Under the HJR 24, Salary Grades 1 to 9 employees will receive a 30.1 percent increase in wage, which will be divided in four years as compared with the 100-142 percent increase of those in higher positions.
According to the health groups, even if this increase in wage would be implemented now, they will remain below the poverty line because of the reduction in their benefits and the inadequate raise. Also, with the current global economic crisis, the increase is negligible.
Leni Nolasco of the Philippine Nurses Association, meanwhile, said the provisions under the Nursing Act of 2002 are not recognized by hospitals until now.
Nursing Act of 2002 emphasizes the expansion of the nurses’ role to include comprehensive specialty programs, establishes a minimum pay for nurses working in the government and abroad, and expands the Board of Nursing membership.
“Hindi naman nila talaga tinutugunan yung mga pangangailangan ng mga nurses. Karamihan sa mga nurses, naghahanap na lang sila ng trabaho sa labas ng bansa, imbis na nagsisilbi sila sa ating kapwa mamamayan, sila ay natutulak upang pumunta sa ibang bansa”, she said. (The government does not really address the needs of our nurses. Most of our nurses look for jobs outside the country instead of serving their own countrymen; they are forced to go out of the country.)
Celebration
Alongside the celebration of the National Health Workers’ Day, AHW celebrated its 25th year anniversary.
A program was held at the Philippine General Hospital (PGH) where Senator Loren Legarda, Chairperson of the Senate Committee on Health, said the country invests less than one percent of its GDP on health while the United Nations investment benchmark should be five percent.
“There is hardly money for basic health care, for the maintenance and operations of public health centers and hospitals,” Legarda said.
Also present in the event were members of the All UP Workers Union, Council for Health and Development, Health Students’ Action, and unions and employees association from the Lung Center of the Philippines, Center for Mental Health, Heart Center, San Lazaro Hospital, and other city and provincial hospitals.
Former President Corazon Aquino proclaimed May 7 as National Health Workers’ Day in 1987 as recognition for the contribution of health workers in the country. (Bulatlat.com)
Saturday, May 09, 2009
Saturday, May 02, 2009
Historic High Joblessness Should Be Addressed Beyond Token Measures
Press Statement / 1 May 2009
IBON Foundation
Tel. (632) 9277060 to 62
Fax (632) 9292496
The situation of Filipino workers is seen to be at its worst today due to
record high joblessness and widespread lay-offs amid the global crisis,
and more radical reforms are needed beyond token government measures.
The average real employment rate of over 11% from 2001 up to the first
quarter of 2009 is the worst in Philippine history and is seen to even
worsen due to the crisis. Workers in the manufacturing sector are
apparently the hardest hit, as the Philippine exports industry is more
vulnerable due to its dependence on the US markets. Job losses seem most
severe in this sector, which reduced 122,000 jobs from 2008 on top of the
137,000 manufacturing jobs already from the year before.
The severe jobs crisis in the country cannot be addressed squarely by the
so-called Comprehensive Livelihood and Emergency Employment Program
(CLEEP) of the Arroyo administration, which does not veer away from
government’s approach in generating jobs. Part of the emergency package is
still providing assistance of re-deployment to affected overseas Filipino
workers (OFWs) and additional trainings for skills upgrading and
retooling. Moreover, even if the program does create the projected 800,000
jobs this year, it still cannot absorb the more than 900,000 new labor
force entrants, on top of the roughly 11,600 permanently retrenched and
38,800 temporarily laid off workers plus the 12,000 displaced OFWs since
October 2008 when the global crisis imploded.
While government’s response is grossly inadequate, IBON moreover decries
the efforts of government and big businesses to pass the burden of
adjusting to the crisis on workers through wage and benefit cuts and
layoffs. Under the administration’ s Economic Resiliency Plan (ERP), the
Department of Labor is insidiously pushing for flexible work schemes like
rotated force leaves and shortened work shifts supposedly as a response to
the global crisis.
In the face of inadequate solutions to address the crisis, the labor
sector and the economy urgently need aggressive reforms and programs.
Measures that would yield immediate benefits include increasing public
spending for social services, removing the VAT on oil products, freeing
public resources by discontinuing debt payments, among others.
Government should also be in the forefront of defending Filipinos’ jobs,
which should involve implementing programs that will stop flexibility
schemes and other work measures that threaten job security. Filipino
producers should also be given a wide range of government support,
including greater and cheaper access to financing, technology, raw
materials and infrastructure. The domestic market can be oriented towards
giving greater opportunities for Filipino industries even as foreign
markets are actively sought. The government can also improve its
procedures, tax benefits and other incentives for Filipino businesses.
Government’s elite-biased and free-market oriented policies, which have
kept the Philippine economy backward, should be also be drastically
reformed. At the minimum, there should be an overhaul of reckless trade
and investment liberalization policies that have worked against local
industries and the welfare of Filipino workers. (end)
IBON Foundation
Tel. (632) 9277060 to 62
Fax (632) 9292496
The situation of Filipino workers is seen to be at its worst today due to
record high joblessness and widespread lay-offs amid the global crisis,
and more radical reforms are needed beyond token government measures.
The average real employment rate of over 11% from 2001 up to the first
quarter of 2009 is the worst in Philippine history and is seen to even
worsen due to the crisis. Workers in the manufacturing sector are
apparently the hardest hit, as the Philippine exports industry is more
vulnerable due to its dependence on the US markets. Job losses seem most
severe in this sector, which reduced 122,000 jobs from 2008 on top of the
137,000 manufacturing jobs already from the year before.
The severe jobs crisis in the country cannot be addressed squarely by the
so-called Comprehensive Livelihood and Emergency Employment Program
(CLEEP) of the Arroyo administration, which does not veer away from
government’s approach in generating jobs. Part of the emergency package is
still providing assistance of re-deployment to affected overseas Filipino
workers (OFWs) and additional trainings for skills upgrading and
retooling. Moreover, even if the program does create the projected 800,000
jobs this year, it still cannot absorb the more than 900,000 new labor
force entrants, on top of the roughly 11,600 permanently retrenched and
38,800 temporarily laid off workers plus the 12,000 displaced OFWs since
October 2008 when the global crisis imploded.
While government’s response is grossly inadequate, IBON moreover decries
the efforts of government and big businesses to pass the burden of
adjusting to the crisis on workers through wage and benefit cuts and
layoffs. Under the administration’ s Economic Resiliency Plan (ERP), the
Department of Labor is insidiously pushing for flexible work schemes like
rotated force leaves and shortened work shifts supposedly as a response to
the global crisis.
In the face of inadequate solutions to address the crisis, the labor
sector and the economy urgently need aggressive reforms and programs.
Measures that would yield immediate benefits include increasing public
spending for social services, removing the VAT on oil products, freeing
public resources by discontinuing debt payments, among others.
Government should also be in the forefront of defending Filipinos’ jobs,
which should involve implementing programs that will stop flexibility
schemes and other work measures that threaten job security. Filipino
producers should also be given a wide range of government support,
including greater and cheaper access to financing, technology, raw
materials and infrastructure. The domestic market can be oriented towards
giving greater opportunities for Filipino industries even as foreign
markets are actively sought. The government can also improve its
procedures, tax benefits and other incentives for Filipino businesses.
Government’s elite-biased and free-market oriented policies, which have
kept the Philippine economy backward, should be also be drastically
reformed. At the minimum, there should be an overhaul of reckless trade
and investment liberalization policies that have worked against local
industries and the welfare of Filipino workers. (end)
Friday, May 01, 2009
Lozada - More Than An Accidental Hero
Streetwise
By Carol Pagaduan-Araullo
Engineer Rodolfo “Jun” Lozada is an accidental hero but a hero nonetheless to a people starved for real-life, modern-day heroes. As star witness in the Senate probe on the highly anomalous, $329 NBN-ZTE broadband deal, he exposed the shenanigans of then Comelec Commissioner Abalos, First Gentleman Mike Arroyo, all the way up to de facto President Gloria Arroyo, in inking the contract with a Chinese government-owed corporation to the detriment of public interest. He also exposed the use of government forces to kidnap him and hold him against his will while presidential operators alternately threatened and attempted to bribe him to keep his mouth shut.
Jun Lozada is a hero for (1) deciding to tell the truth and not be a party to a massive cover-up; (2) being steadfast and not caving in to enticements and pressures for him to recant; (3) and for fighting back against political persecution, his own and indirectly, that of others targeted by the Arroyo regime.
In particular, he has taken his cause against the corrupt GMA regime one step further in this latest episode of the continuing saga - Lozada and the Filipino people vs Malacañang - by his refusal to file bail in the perjury case filed against him by Mr. Mike Defensor. Instead he has chosen to go to jail to assert legally and politically that there are absolutely no grounds for his arrest. Rather, he is a victim of Malacanang’s political vendetta and its desperate attempts to deodorize the stink of the NBN-ZTE and other corrupt deals.
Too bad for Malacanang, Mr. Lozada’s story was much more believable; his body language, more spontaneous and sincere; and the dramatic circumstances surrounding his decision to testify in the Senate and state the truth as he knew it, not only added to his credibility but was so gripping, the usually boring Senate investigations became material for prime time TV.
Overwhelming public opinion at the time was that Mr. Lozada told the truth while FG’s and Mrs. Arroyo’s cohorts like Mr. Abalos, and her lapdogs like Mr. Defensor, lied through their teeth. What with the Arroyo regime’s moves to keep then NEDA Secretary Romulo Neri from giving damaging testimony by invoking “executive privilege”, the Arroyo regime’s legal acrobatics was exposed as its way to maintain a humongous lie and get off the hook, the way it did with the “Hello Garci” election fraud scandal and later, the Jocjoc Bolante fertilizer scam.
At first blush, it would appear that Mr. Lozada is trying to be some kind of martyr, if not trying to get public sympathy as an underdog. But what he has done is embark on a determined campaign for justice: first, in the court of public opinion; and secondly, but no less importantly, in the judge’s court.
By refusing to post bail, he has squarely taken on the gross injustice of the court’s finding of probable cause (that he had lied in his sworn testimony) and its issuance of a warrant for his arrest. Had he immediately filed bail to avoid detention, it would have meant accepting the court’s findings and submitting himself to it. The news would have merited a small spot in the inside pages of the newspapers and thereafter been consigned to oblivion. Malacañang would have won Round 1 of the fight.
Mr. Defensor stated in a press conference - while Mr. Lozada was being arrested and just before he flew off on a vacation to the USA with his entire family in tow - that he had sought relief from the courts because he wanted to preserve the honor of his name. Of course, no one really believes the guy considering he has allowed himself to be used repeatedly by his Great Patroness, Mrs. Arroyo, for all sorts of missions impossible, doing political damage control. He only ended up with egg on his face and his name and reputation damaged further each time.
Mr. Lozada has repeatedly stated that this is not just about him and the seemingly peevish Mr. Defensor. He had initially thought of resuming a normal life, going back home with his family and putting up some kind of business so that he would no longer have to depend on the sanctuary program of the Association of Major Religious Superiors in the Philippines. Then this reversal of the court ruling that he had not perjured himself and the order for his arrest.
He could have chosen to go down quietly, i.e. not fight this latest legal setback and just hope that his tormentors get tired of playing games with him and for things to blow over. Like other whistleblowers before him who picked up the pieces of their life after courageously testifying in the Senate or in court and then finding themselves hung out high and dry with no legal and physical protection against the powerful people they dared expose.
Instead Mr. Lozada has chosen passive resistance: to go to jail yet still do battle albeit within the confines of the judicial processes that have been shown highly stacked against him.
His move has taken Malacañang by surprise and is likely causing Mrs. Arroyo and her political advisers sleepless nights. It has landed in print and broadcast media headlines. And it has the potential to capture people’s imaginations and get them on their feet, raging against the injustice of this regime and its manipulation of the flawed judicial system.
But on the part of those who support him - the truth seekers, the social and political activists and those who are just plain fed up with the exploitative and oppressive system - resistance must be active.
Jun Lozada deserves our support. His recent actions are showing him to be an essentially upright and courageous man with an intense sense of patriotism and an unflagging confidence his fellow Filipinos will see the truth and embrace it. His fight is also our fight. And it can be the occasion to further the struggle against systemic corruption and elite politics that is almost universally abhorred except by those who gain from it and wish to maintain the status quo.
Jun Lozada is a leading member of Pagbabago! People’s Movement for Change, a new movement that gathers concerned citizens desirous of a more meaningful change in our society; not just a change of leadership in government but a decisive break from the poverty-ridden, unjust and corrupt social system that grew worse even after two EDSA uprisings. His active participation in Pagbabago! shows he has gone a long, long way from being an accidental hero.
Would it not be an irony of the most triumphant kind if this latest attempt to silence Jun Lozada, to break his will and to isolate him, should in fact turn into an outpouring of support for him and a denunciation of this lying, plundering, and murderous regime?
Let it be so.#
By Carol Pagaduan-Araullo
Engineer Rodolfo “Jun” Lozada is an accidental hero but a hero nonetheless to a people starved for real-life, modern-day heroes. As star witness in the Senate probe on the highly anomalous, $329 NBN-ZTE broadband deal, he exposed the shenanigans of then Comelec Commissioner Abalos, First Gentleman Mike Arroyo, all the way up to de facto President Gloria Arroyo, in inking the contract with a Chinese government-owed corporation to the detriment of public interest. He also exposed the use of government forces to kidnap him and hold him against his will while presidential operators alternately threatened and attempted to bribe him to keep his mouth shut.
Jun Lozada is a hero for (1) deciding to tell the truth and not be a party to a massive cover-up; (2) being steadfast and not caving in to enticements and pressures for him to recant; (3) and for fighting back against political persecution, his own and indirectly, that of others targeted by the Arroyo regime.
In particular, he has taken his cause against the corrupt GMA regime one step further in this latest episode of the continuing saga - Lozada and the Filipino people vs Malacañang - by his refusal to file bail in the perjury case filed against him by Mr. Mike Defensor. Instead he has chosen to go to jail to assert legally and politically that there are absolutely no grounds for his arrest. Rather, he is a victim of Malacanang’s political vendetta and its desperate attempts to deodorize the stink of the NBN-ZTE and other corrupt deals.
Too bad for Malacanang, Mr. Lozada’s story was much more believable; his body language, more spontaneous and sincere; and the dramatic circumstances surrounding his decision to testify in the Senate and state the truth as he knew it, not only added to his credibility but was so gripping, the usually boring Senate investigations became material for prime time TV.
Overwhelming public opinion at the time was that Mr. Lozada told the truth while FG’s and Mrs. Arroyo’s cohorts like Mr. Abalos, and her lapdogs like Mr. Defensor, lied through their teeth. What with the Arroyo regime’s moves to keep then NEDA Secretary Romulo Neri from giving damaging testimony by invoking “executive privilege”, the Arroyo regime’s legal acrobatics was exposed as its way to maintain a humongous lie and get off the hook, the way it did with the “Hello Garci” election fraud scandal and later, the Jocjoc Bolante fertilizer scam.
At first blush, it would appear that Mr. Lozada is trying to be some kind of martyr, if not trying to get public sympathy as an underdog. But what he has done is embark on a determined campaign for justice: first, in the court of public opinion; and secondly, but no less importantly, in the judge’s court.
By refusing to post bail, he has squarely taken on the gross injustice of the court’s finding of probable cause (that he had lied in his sworn testimony) and its issuance of a warrant for his arrest. Had he immediately filed bail to avoid detention, it would have meant accepting the court’s findings and submitting himself to it. The news would have merited a small spot in the inside pages of the newspapers and thereafter been consigned to oblivion. Malacañang would have won Round 1 of the fight.
Mr. Defensor stated in a press conference - while Mr. Lozada was being arrested and just before he flew off on a vacation to the USA with his entire family in tow - that he had sought relief from the courts because he wanted to preserve the honor of his name. Of course, no one really believes the guy considering he has allowed himself to be used repeatedly by his Great Patroness, Mrs. Arroyo, for all sorts of missions impossible, doing political damage control. He only ended up with egg on his face and his name and reputation damaged further each time.
Mr. Lozada has repeatedly stated that this is not just about him and the seemingly peevish Mr. Defensor. He had initially thought of resuming a normal life, going back home with his family and putting up some kind of business so that he would no longer have to depend on the sanctuary program of the Association of Major Religious Superiors in the Philippines. Then this reversal of the court ruling that he had not perjured himself and the order for his arrest.
He could have chosen to go down quietly, i.e. not fight this latest legal setback and just hope that his tormentors get tired of playing games with him and for things to blow over. Like other whistleblowers before him who picked up the pieces of their life after courageously testifying in the Senate or in court and then finding themselves hung out high and dry with no legal and physical protection against the powerful people they dared expose.
Instead Mr. Lozada has chosen passive resistance: to go to jail yet still do battle albeit within the confines of the judicial processes that have been shown highly stacked against him.
His move has taken Malacañang by surprise and is likely causing Mrs. Arroyo and her political advisers sleepless nights. It has landed in print and broadcast media headlines. And it has the potential to capture people’s imaginations and get them on their feet, raging against the injustice of this regime and its manipulation of the flawed judicial system.
But on the part of those who support him - the truth seekers, the social and political activists and those who are just plain fed up with the exploitative and oppressive system - resistance must be active.
Jun Lozada deserves our support. His recent actions are showing him to be an essentially upright and courageous man with an intense sense of patriotism and an unflagging confidence his fellow Filipinos will see the truth and embrace it. His fight is also our fight. And it can be the occasion to further the struggle against systemic corruption and elite politics that is almost universally abhorred except by those who gain from it and wish to maintain the status quo.
Jun Lozada is a leading member of Pagbabago! People’s Movement for Change, a new movement that gathers concerned citizens desirous of a more meaningful change in our society; not just a change of leadership in government but a decisive break from the poverty-ridden, unjust and corrupt social system that grew worse even after two EDSA uprisings. His active participation in Pagbabago! shows he has gone a long, long way from being an accidental hero.
Would it not be an irony of the most triumphant kind if this latest attempt to silence Jun Lozada, to break his will and to isolate him, should in fact turn into an outpouring of support for him and a denunciation of this lying, plundering, and murderous regime?
Let it be so.#
Thursday, April 30, 2009
Unionism in the University of the Philippines: A post-Marcos dictatorship gain
by: Judy M. Taguiwalo, Ph.D.
The UP Forum
Volume 10, Number 2, March-April 2009
Introduction
Unions are established where an employer-employee relationship exists. The basic concerns of unions are the protection of the rights of employees, the advancement of their economic welfare and improvements in their terms and conditions of work.
Public sector unionism in the Philippines is a relatively recent reclaimed right by government personnel in the country. The reclaiming of such a right cannot be divorced from the gains won by the Filipino people in ending the 20-year martial rule when through presidential edict the right of public sector employees to form unions was removed.
Prior to the 1987 Philippine Constitution, unionism in the public sector except in government-owned and controlled-corporations was prohibited by Presidential Decree No. 442 or “The Labor Code of the Philippines.”1
The rights of Filipino government employees to form unions were recognized only after the overthrow of the Marcos dictatorship. These rights are enshrined in the 1987 Philippine Constitution:
Article III, Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged;
Article IX-B, Sec. 2 (5). The right to self organization shall not be denied to government employees; and
Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
The State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
Executive Order No. 180, issued on June 1, 1987 by then President Corazon Aquino spelled out the scope and limits of public sector unionism.2
Unionism in the University of the Philippines: Beginnings
In the University of the Philippines, a number of UP faculty members, administrative staff and research, extension and professional staff banded together in 1987 to exercise the newly recognized right to form a union and established the All-UP Workers Union. Another union composed solely of administrative staff, the Organization of Non-Academic Personnel of UP (ONAPUP) was registered in 1987.
There has been no controversy regarding the need for a union of administrative staff of the university. But questions have been raised about the composition of a faculty union in the university.
In 1990, the UP Administration, through its General Counsel, objected to the inclusion of all teaching personnel as “rank-and-file” and therefore eligible to become union members. It averred that “only those holding appointments at the instructor level may be so considered, because those holding appointments from Assistant Professor to Associate Professor to full Professor take part, as members of the University Council, a policy making body, in the initiation of policies and rules with respect to faculty tenure and promotions.” 3
The Supreme Court in its July 14, 1992 decision ruled that in light “of Executive Order No. 180 and its implementing rules, as well as the University’s charter and relevant regulations, the professors, associate professors and assistant professors (hereafter simply referred to as professors) cannot be considered as exercising such managerial or highly confidential functions as would justify their being categorized as ‘high-level’ employees of the institution.”4 The court also ruled that membership of professors in the University Council is not sufficient to consider them as “policy-determining” since decisions of the University Council are subject to review, evaluation and final approval of the Board of Regents. The Supreme Court further clarified that whatever policy determining functions the University Council has are in the realm of “academic matters, those governing the relationship between the University and its students, and not the University as an employer and the professors as employees”. The same 1992 Supreme Court decision’s final paragraph stated that academic employees of the institution – i.e., full professors, associate professors, assistant professors, instructors and the research, extension and professional staff, “may, if so minded, organize themselves into a separate (from the administrative staff) collective bargaining unit”.
In conformity with this Supreme Court decision, the All-UP Academic Employees Union, as the union of academic teaching and non-teaching personnel, was formed in December 2001 and the All-UP Workers Union transformed itself to become an all-administrative staff union. The All-UP Workers Alliance provides the mechanism for the two UP unions to work together to advance common interests.
Gains made by the UP-accredited unions
The All UP Workers Union and the All UP Academic Employees Union basically adhere to the same basic principles and aims which are reflected in the preamble of their Constitutions:
We are aware of our role in the pursuit of the mission of the University as a sacred trust of the Filipino people. We are also conscious of the need to consolidate our collective strength as a means towards effective participation in decision making on matters affecting our interests and welfare.
We commit ourselves to protect our rights and to advance our interests towards decent work, under conditions which enhance creativity, excellence, freedom, justice, dignity, security and equity without discrimination for all academic/administrative employees in the University.
We fully realize that our effort to enhance the quality of our life forms part of the general movement to achieve a just and democratic social order, and a better standard of living for the Filipino people. We affirm our responsibility to contribute to the unity and well-being of all employees of the University of the Philippines and all disadvantaged members of Philippine society.
To more effectively advance the rights and welfare of rank-and-file personnel of the University which they represent, unions have to win the right to negotiate with the university administration and thus have to be accredited.
Registration and accreditation of a union are two different things. Registration means the formation of a public sector union and registering such with the Department of Labor and Employment and the Civil Service Commission. Registration does not automatically give the union the right to negotiate with the employer. Accreditation or the right to be the sole-and-exclusive representative of the rank-and-file personnel of a negotiating unit requires proof that the union has gained the majority support of such personnel. This is achieved through a certification election (CE) where members of the negotiating unit vote for their union of choice (or in the absence of more than one union, to vote for no union representation) or through the automatic recognition of a union attained by garnering the signatures of the majority of the rank-and-file personnel.
The All-UP Workers Union has twice been accredited by winning the certification elections in 2001 and 2007. The All-UP Academic Employees Union won accreditation in 2006 through the automatic recognition given to it by the Civil Service Commission after the latter verified that the union has garnered the support of the majority of the rank-and-file faculty and REPS of the university.
Through the dual thrusts of negotiations and collective actions, the All UP Workers Union and the All UP Academic Employees Union have won numerous economic and non-economic benefits for the administrative staff and even prior to the accreditation of the academic union, for the academic personnel on the basis of equity. These economic benefits include yearend incentive allowances of P69,000 in the past seven years, the grant of rice subsidy for personnel starting 2003, the first time in the history of the University that personnel received such subsidy; the increase in loyalty pay award from P2,500 to P5,000 for every five years of service; P1,000 annual grocery allowance since 2006, among others. 5
During UPs centennial year, the unions advocated and won the P20,000 centennial bonus for every regular UP employee still employed as of June 2008.* The unions actively and successfully lobbied for the inclusion of the UP personnel in the 10% salary increase automatically granted to other government employees in July 2008 after the Department of Budget and Management initially excluded UP on account of the 2008 UP Charter. A Collective Negotiation Agreement (CNA) incentive of P10, 000 each was awarded early this year to all UP employees after the approval of the CNAs between the two unions and the UP Administration.
The unions have also won non-monetary benefits for the rank-and-file administrative and academic personnel through the grant of additional three-day special leave privileges and additional three-day job-related sickness leave, among others.
Beyond the economic benefits, the unions’ CNAs expanded rank-and-file participation in the university’s governance. The CNAs recognize union representation in key university committees especially those committees involving “terms and conditions of work.” This ensures that representatives of the rank-and-file chosen by them are involved in drafting proposals, in implementing and in reviewing university policies related to their welfare.
The two unions have also facilitated information dissemination on decisions and policies related to UP personnel welfare whether these emanate from the national government or from the University administration. They have worked toward ensuring that transparency and due process are upheld in administrative decisions involving renewal, tenure, promotions or disciplinary actions against UP personnel. In a number of cases, the unions have assisted individual UP personnel with grievance issues raised in the agency or unit levels. And they have proposed enabling conditions for faculty and REPS to fulfill new academic requirements for tenure and promotion.
Consistent with the declarations in their Constitution and by-laws that the All-UP Workers Union and the All-UP Academic Employees Union are part of the “general movement to achieve a just and democratic social order and a better standard of living for the Filipino people.” the two unions have participated in advocacies against corruption in government, against electoral fraud, against human rights violation in the country and against policies which diminish Philippine sovereignty.
Challenges
Conditions internal and external to the University demand that the university unions persist in its advocacy for the rights and welfare of UP personnel and to link this advocacy with national and international issues.
The university unions need to make sure that the following purposes of the university embodied in the 2008 UP Charter and which directly affect them are attained:6
Protect and promote the professional and economic rights and welfare of its academic and non-academic personnel;
Provide democratic governance in the University based on collegiality, representation, accountability, transparency and active participation of its constituents, and promote the holding of fora for students, faculty, research, extension and professional staff (REPS), staff, and alumni to discuss non-academic issues affecting the University
At the same time, the unions need to continue to advocate that UP as a state university should “promote, foster, nurture and protect the right of all citizens to accessible quality education.”7 They have to persist in opposing university policies which “corporatize” university governance and financial management as these erode the public and democratic character of the university and emphasize a market or profit orientation while diminishing the service character of the institution. Aware of the link between national policies and the University’s and its personnel’s welfare, the unions must work for national economic and education policies which give priority to financing education and other social services and an educational direction that would put emphasis on national development and service to the Filipino people instead of education for meeting the needs of the global market through the export of labor.
__________
Dr. Judy Taguiwalo is professor at the College of Social Work and Community Development, University of the Philippines Diliman, and founding National President of the All-UP Academic Employees Union (December 2001-April 2008). She also served as National Secretary of the All-UP Workers Union from 1998-2001.
Notes:
1 Article 244 of PD 442, “Right of employees in the public service. - Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.”
2 Executive Order No. 180 June 1, 1987, Providing Guidelines for the Exercise of the Right to Organize Government Employees. http://www.lawphil.net/executive/execord/eo1987/eo_180_1987.html, accessed August 12, 2007
3 As cited in the Supreme Court decision, G.R. No. 96189, July 14, 1992. p. 4
4 ibid. p. 6.
5 Clodualdo Cabrera, “ Ang Maikling Kasaysayan ng All UP Workers Union”, Serve the People, Ang Kasaysayan ng Radikal na Kilusan sa Unibersidad ng Pilipinas, edited by Bienvenido Lumbera et al. (Quezon City: Ibon Foundation, Inc., 2008).
6 SEC. 3. Purpose of the University; (e) and (h). Republic Act 9500 or the 2008 UP Charter
7 SEC. 2. Declaration of Policy. Republic Act 9500 or the 2008 UP Charter.
Additional Notes:
* Appealed to for clarification, the Office of the UP President provided this information: In response to urgent requests from different sectors of the UP community for a Centennial bonus, President Emerlinda R. Roman began meeting as early as February 2008 with the different chancellors, to determine if funds for this could be sourced. When they were able to identify such sources, the request was submitted to DBM, and subsequently to President Gloria Macapagal Arroyo. Final approval came only on UPs Centennial Day, June 18.
While unionism in state universities and colleges in the Philippines is relatively new, academic unions in the United States have gained ground in the past thirty yeas.
An historical example from the United States illustrates the intimate connection between the founding of faculty unions and the pursuit of academic freedom.
The historian of ideas Arthur O. Lovejoy and the philosopher John Dewey initiated the formation of the American Association of University Professors (AAUP)(Unions of Faculty and other Members of the Academic Community in the United States) in 1915 when they saw how easily the noted economist, Edward Ross was unjustly deprived of his job at Stanford University because the owner didn’t like his views on immigrant labor and railroad monopolies.1
Much more recently, in a November 2005 document entitled “Unionism: Principles and Goals”2 the AAUP noted that:
Over the past thirty years, faculty and other members of the academic community have increasingly turned to unions to protect their individual rights, their shared role in institutional governance, and the standards and practices that guarantee the quality of American higher education. Unions have proven effective in struggles to defend tenure, protect academic freedom, and secure “a sufficient degree of economic security to make the profession attractive to men and women of ability.
In that same AAUP document, the association enumerated a number of benefits that academic unions provide:
(1) Unions enable faculty and other members of the academic community, who would be powerless alone, to safeguard their teaching and working conditions by pooling their strengths.
(2) Unions make it possible for different sectors of the academic community to secure contractual, legally enforceable claims on college administrations, at a time when reliance on traditional advice and consent has proved inadequate.
(3) Unions provide members with critical institutional analyses—of budget figures, enrollment trends, and policy formulations—that would be unavailable without the resources provided by member dues and national experts.
(4) Unions increase the legislative influence and political impact of the academic community as a whole by maintaining regular relations with state and federal governments and collaborating with affiliated labor organizations.
(5) Unions reinforce the collegiality necessary to preserve the vitality of academic life under such threats as deprofessionalization and fractionalization of the faculty, rivatization of public services, and the expanding claims of managerial primacy in governance.
Notes
1 “History of AAUP”. http://www.aaup.org/AAUP/about/history/ , accessed March 28, 2009
2 “Unionism: Principles and Goals”. http://www.aaup.org/AAUP/protect/bargaining/aaup-unionism.htm, accessed April 22, 2008.
The UP Forum
Volume 10, Number 2, March-April 2009
Introduction
Unions are established where an employer-employee relationship exists. The basic concerns of unions are the protection of the rights of employees, the advancement of their economic welfare and improvements in their terms and conditions of work.
Public sector unionism in the Philippines is a relatively recent reclaimed right by government personnel in the country. The reclaiming of such a right cannot be divorced from the gains won by the Filipino people in ending the 20-year martial rule when through presidential edict the right of public sector employees to form unions was removed.
Prior to the 1987 Philippine Constitution, unionism in the public sector except in government-owned and controlled-corporations was prohibited by Presidential Decree No. 442 or “The Labor Code of the Philippines.”1
The rights of Filipino government employees to form unions were recognized only after the overthrow of the Marcos dictatorship. These rights are enshrined in the 1987 Philippine Constitution:
Article III, Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged;
Article IX-B, Sec. 2 (5). The right to self organization shall not be denied to government employees; and
Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
The State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
Executive Order No. 180, issued on June 1, 1987 by then President Corazon Aquino spelled out the scope and limits of public sector unionism.2
Unionism in the University of the Philippines: Beginnings
In the University of the Philippines, a number of UP faculty members, administrative staff and research, extension and professional staff banded together in 1987 to exercise the newly recognized right to form a union and established the All-UP Workers Union. Another union composed solely of administrative staff, the Organization of Non-Academic Personnel of UP (ONAPUP) was registered in 1987.
There has been no controversy regarding the need for a union of administrative staff of the university. But questions have been raised about the composition of a faculty union in the university.
In 1990, the UP Administration, through its General Counsel, objected to the inclusion of all teaching personnel as “rank-and-file” and therefore eligible to become union members. It averred that “only those holding appointments at the instructor level may be so considered, because those holding appointments from Assistant Professor to Associate Professor to full Professor take part, as members of the University Council, a policy making body, in the initiation of policies and rules with respect to faculty tenure and promotions.” 3
The Supreme Court in its July 14, 1992 decision ruled that in light “of Executive Order No. 180 and its implementing rules, as well as the University’s charter and relevant regulations, the professors, associate professors and assistant professors (hereafter simply referred to as professors) cannot be considered as exercising such managerial or highly confidential functions as would justify their being categorized as ‘high-level’ employees of the institution.”4 The court also ruled that membership of professors in the University Council is not sufficient to consider them as “policy-determining” since decisions of the University Council are subject to review, evaluation and final approval of the Board of Regents. The Supreme Court further clarified that whatever policy determining functions the University Council has are in the realm of “academic matters, those governing the relationship between the University and its students, and not the University as an employer and the professors as employees”. The same 1992 Supreme Court decision’s final paragraph stated that academic employees of the institution – i.e., full professors, associate professors, assistant professors, instructors and the research, extension and professional staff, “may, if so minded, organize themselves into a separate (from the administrative staff) collective bargaining unit”.
In conformity with this Supreme Court decision, the All-UP Academic Employees Union, as the union of academic teaching and non-teaching personnel, was formed in December 2001 and the All-UP Workers Union transformed itself to become an all-administrative staff union. The All-UP Workers Alliance provides the mechanism for the two UP unions to work together to advance common interests.
Gains made by the UP-accredited unions
The All UP Workers Union and the All UP Academic Employees Union basically adhere to the same basic principles and aims which are reflected in the preamble of their Constitutions:
We are aware of our role in the pursuit of the mission of the University as a sacred trust of the Filipino people. We are also conscious of the need to consolidate our collective strength as a means towards effective participation in decision making on matters affecting our interests and welfare.
We commit ourselves to protect our rights and to advance our interests towards decent work, under conditions which enhance creativity, excellence, freedom, justice, dignity, security and equity without discrimination for all academic/administrative employees in the University.
We fully realize that our effort to enhance the quality of our life forms part of the general movement to achieve a just and democratic social order, and a better standard of living for the Filipino people. We affirm our responsibility to contribute to the unity and well-being of all employees of the University of the Philippines and all disadvantaged members of Philippine society.
To more effectively advance the rights and welfare of rank-and-file personnel of the University which they represent, unions have to win the right to negotiate with the university administration and thus have to be accredited.
Registration and accreditation of a union are two different things. Registration means the formation of a public sector union and registering such with the Department of Labor and Employment and the Civil Service Commission. Registration does not automatically give the union the right to negotiate with the employer. Accreditation or the right to be the sole-and-exclusive representative of the rank-and-file personnel of a negotiating unit requires proof that the union has gained the majority support of such personnel. This is achieved through a certification election (CE) where members of the negotiating unit vote for their union of choice (or in the absence of more than one union, to vote for no union representation) or through the automatic recognition of a union attained by garnering the signatures of the majority of the rank-and-file personnel.
The All-UP Workers Union has twice been accredited by winning the certification elections in 2001 and 2007. The All-UP Academic Employees Union won accreditation in 2006 through the automatic recognition given to it by the Civil Service Commission after the latter verified that the union has garnered the support of the majority of the rank-and-file faculty and REPS of the university.
Through the dual thrusts of negotiations and collective actions, the All UP Workers Union and the All UP Academic Employees Union have won numerous economic and non-economic benefits for the administrative staff and even prior to the accreditation of the academic union, for the academic personnel on the basis of equity. These economic benefits include yearend incentive allowances of P69,000 in the past seven years, the grant of rice subsidy for personnel starting 2003, the first time in the history of the University that personnel received such subsidy; the increase in loyalty pay award from P2,500 to P5,000 for every five years of service; P1,000 annual grocery allowance since 2006, among others. 5
During UPs centennial year, the unions advocated and won the P20,000 centennial bonus for every regular UP employee still employed as of June 2008.* The unions actively and successfully lobbied for the inclusion of the UP personnel in the 10% salary increase automatically granted to other government employees in July 2008 after the Department of Budget and Management initially excluded UP on account of the 2008 UP Charter. A Collective Negotiation Agreement (CNA) incentive of P10, 000 each was awarded early this year to all UP employees after the approval of the CNAs between the two unions and the UP Administration.
The unions have also won non-monetary benefits for the rank-and-file administrative and academic personnel through the grant of additional three-day special leave privileges and additional three-day job-related sickness leave, among others.
Beyond the economic benefits, the unions’ CNAs expanded rank-and-file participation in the university’s governance. The CNAs recognize union representation in key university committees especially those committees involving “terms and conditions of work.” This ensures that representatives of the rank-and-file chosen by them are involved in drafting proposals, in implementing and in reviewing university policies related to their welfare.
The two unions have also facilitated information dissemination on decisions and policies related to UP personnel welfare whether these emanate from the national government or from the University administration. They have worked toward ensuring that transparency and due process are upheld in administrative decisions involving renewal, tenure, promotions or disciplinary actions against UP personnel. In a number of cases, the unions have assisted individual UP personnel with grievance issues raised in the agency or unit levels. And they have proposed enabling conditions for faculty and REPS to fulfill new academic requirements for tenure and promotion.
Consistent with the declarations in their Constitution and by-laws that the All-UP Workers Union and the All-UP Academic Employees Union are part of the “general movement to achieve a just and democratic social order and a better standard of living for the Filipino people.” the two unions have participated in advocacies against corruption in government, against electoral fraud, against human rights violation in the country and against policies which diminish Philippine sovereignty.
Challenges
Conditions internal and external to the University demand that the university unions persist in its advocacy for the rights and welfare of UP personnel and to link this advocacy with national and international issues.
The university unions need to make sure that the following purposes of the university embodied in the 2008 UP Charter and which directly affect them are attained:6
Protect and promote the professional and economic rights and welfare of its academic and non-academic personnel;
Provide democratic governance in the University based on collegiality, representation, accountability, transparency and active participation of its constituents, and promote the holding of fora for students, faculty, research, extension and professional staff (REPS), staff, and alumni to discuss non-academic issues affecting the University
At the same time, the unions need to continue to advocate that UP as a state university should “promote, foster, nurture and protect the right of all citizens to accessible quality education.”7 They have to persist in opposing university policies which “corporatize” university governance and financial management as these erode the public and democratic character of the university and emphasize a market or profit orientation while diminishing the service character of the institution. Aware of the link between national policies and the University’s and its personnel’s welfare, the unions must work for national economic and education policies which give priority to financing education and other social services and an educational direction that would put emphasis on national development and service to the Filipino people instead of education for meeting the needs of the global market through the export of labor.
__________
Dr. Judy Taguiwalo is professor at the College of Social Work and Community Development, University of the Philippines Diliman, and founding National President of the All-UP Academic Employees Union (December 2001-April 2008). She also served as National Secretary of the All-UP Workers Union from 1998-2001.
Notes:
1 Article 244 of PD 442, “Right of employees in the public service. - Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.”
2 Executive Order No. 180 June 1, 1987, Providing Guidelines for the Exercise of the Right to Organize Government Employees. http://www.lawphil.net/executive/execord/eo1987/eo_180_1987.html, accessed August 12, 2007
3 As cited in the Supreme Court decision, G.R. No. 96189, July 14, 1992. p. 4
4 ibid. p. 6.
5 Clodualdo Cabrera, “ Ang Maikling Kasaysayan ng All UP Workers Union”, Serve the People, Ang Kasaysayan ng Radikal na Kilusan sa Unibersidad ng Pilipinas, edited by Bienvenido Lumbera et al. (Quezon City: Ibon Foundation, Inc., 2008).
6 SEC. 3. Purpose of the University; (e) and (h). Republic Act 9500 or the 2008 UP Charter
7 SEC. 2. Declaration of Policy. Republic Act 9500 or the 2008 UP Charter.
Additional Notes:
* Appealed to for clarification, the Office of the UP President provided this information: In response to urgent requests from different sectors of the UP community for a Centennial bonus, President Emerlinda R. Roman began meeting as early as February 2008 with the different chancellors, to determine if funds for this could be sourced. When they were able to identify such sources, the request was submitted to DBM, and subsequently to President Gloria Macapagal Arroyo. Final approval came only on UPs Centennial Day, June 18.
While unionism in state universities and colleges in the Philippines is relatively new, academic unions in the United States have gained ground in the past thirty yeas.
An historical example from the United States illustrates the intimate connection between the founding of faculty unions and the pursuit of academic freedom.
The historian of ideas Arthur O. Lovejoy and the philosopher John Dewey initiated the formation of the American Association of University Professors (AAUP)(Unions of Faculty and other Members of the Academic Community in the United States) in 1915 when they saw how easily the noted economist, Edward Ross was unjustly deprived of his job at Stanford University because the owner didn’t like his views on immigrant labor and railroad monopolies.1
Much more recently, in a November 2005 document entitled “Unionism: Principles and Goals”2 the AAUP noted that:
Over the past thirty years, faculty and other members of the academic community have increasingly turned to unions to protect their individual rights, their shared role in institutional governance, and the standards and practices that guarantee the quality of American higher education. Unions have proven effective in struggles to defend tenure, protect academic freedom, and secure “a sufficient degree of economic security to make the profession attractive to men and women of ability.
In that same AAUP document, the association enumerated a number of benefits that academic unions provide:
(1) Unions enable faculty and other members of the academic community, who would be powerless alone, to safeguard their teaching and working conditions by pooling their strengths.
(2) Unions make it possible for different sectors of the academic community to secure contractual, legally enforceable claims on college administrations, at a time when reliance on traditional advice and consent has proved inadequate.
(3) Unions provide members with critical institutional analyses—of budget figures, enrollment trends, and policy formulations—that would be unavailable without the resources provided by member dues and national experts.
(4) Unions increase the legislative influence and political impact of the academic community as a whole by maintaining regular relations with state and federal governments and collaborating with affiliated labor organizations.
(5) Unions reinforce the collegiality necessary to preserve the vitality of academic life under such threats as deprofessionalization and fractionalization of the faculty, rivatization of public services, and the expanding claims of managerial primacy in governance.
Notes
1 “History of AAUP”. http://www.aaup.org/AAUP/about/history/ , accessed March 28, 2009
2 “Unionism: Principles and Goals”. http://www.aaup.org/AAUP/protect/bargaining/aaup-unionism.htm, accessed April 22, 2008.
Friday, April 24, 2009
The Failon syndrome
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. #
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. #
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.
Thursday, March 19, 2009
THE STRUGGLE CONTINUES FOR THE SENTOSA 27++ NURSES
News Release
March 18, 2009
Reference: Atty. Felix Vinluan, Justice for the Sentosa 27++ Campaign,
email: nafconusa@yahoo.com
Community Forum Pledges to Struggle for Complete Justice for Wronged Healthcare Workers
"It's time to up the ante...."
This was the sentiment posed by community supporters of the Sentosa 27++ Nurses who will be holding an important forum on the ongoing Justice for the Sentosa 27++ Nurses Campaign this Sunday, March 22nd, 2pm at Jing Fong Restaurant in Chinatown . Entitled "Up the Ante Towards Full Justice for the Sentosa 27++ and All Victims of Illegal Recruitment" the dinner event will feature highlights from the community campaign for the trafficked healthcare workers from the Philippines who came to the United States in 2006 under direct hire nursing contracts with SentosaCare LLC. But after tenets of the Sentosa contracts were not honored, the 26 nurses and a physical therapist fought back with the help of their lawyer, Felix Vinluan.
Sentosa's CEO Bent Philipson retaliated against 10 of the nurses who resigned from his Avalon Gardens Nursing home in Suffolk County , Long Island and Vinluan by filing criminal charges of so-called patient endangerment. In a historic court decision earlier this year, the criminal charges against the 10 Avalon Nurses and Vinluan were formally prohibited. This was after supporters, such as the Legal Aid Society, the National Employment Lawyers Association of New York, New York State Nurses Association (NYSNA), the American Nurses Association (ANA), SEIU 1199, and the Suffolk County Defenders Association filed their respective amicus briefs to support the Article 78 prohibition petition filed by lawyers James Druker and Oscar Michelen for the nurses and Vinluan.
"Justice has not been fully served. We still need to fight for the shutting down of SentosaCare LLC. The former Sentosa nurses represent millions of Filipino migrant workers who fall victim to illegal contractualization and other forms of human trafficking because contractors like SentosaCare LLC prey on their desire to escape joblessness and poverty in the Philippines . Every year, tens of thousands of Filipinos enter the US as healthworkers or teachers duped by fraudulent contracts signed in the Philippines ," states Rico Foz of the National Alliance for Filipino Concerns or NAFCON.
NAFCON, along with supporters from the Philippine Nurses Association of America (PNAA), NYSNA, Movement for a Free Philippines (MFP), formed the Justice for the Sentosa 27++ Campaign (J4S27), a grassroots community campaign in support of the nurses as early as 2006, at a time when the nurses plea for justice was largely shunned by others in the Filipino community. "Unfortunately, there were those who refused to offer help to the nurses back then that are only speaking out now in support because of the Avalon 11's recent victory against criminalization," Foz added.
In 2007, the Justice for the Sentosa 27++ Campaign marched as one large contingent down Madison Avenue during the annual Philippine Independence Day Parade in New York City after holding several community forums at the NAFCON office in Queens . NAFCON, PNAA and NYSNA members also held outdoor demonstrations in the freezing cold winter of 2007 outside the Suffolk County Courthouse during the hearings on the Avalon 11's case. Congressional hearings were held in Manila through the J4S27's campaign's Philippine-based partners investigating the Sentosa Recruitment Agency, the agency who contracted the nurses from the Philippines to work at Sentosa-owned facilities in New York State . A campaign website was generated with a petition calling for six basic demands, which include the dropping of all civil and criminal charges against the nurses and shutting down of SentosaCare LLC. "For as long as all six demands have not been met, we will continue to up the ante on this important struggle for justice," Foz ended.
Jing Fong Restaurant is located at 18 Elizabeth Street , between Canal and Bayard Streets in Chinatown . The Justice for the Sentosa 27++ Campaign site can be accessed at www.s27plus.com. ###
March 18, 2009
Reference: Atty. Felix Vinluan, Justice for the Sentosa 27++ Campaign,
email: nafconusa@yahoo.com
Community Forum Pledges to Struggle for Complete Justice for Wronged Healthcare Workers
"It's time to up the ante...."
This was the sentiment posed by community supporters of the Sentosa 27++ Nurses who will be holding an important forum on the ongoing Justice for the Sentosa 27++ Nurses Campaign this Sunday, March 22nd, 2pm at Jing Fong Restaurant in Chinatown . Entitled "Up the Ante Towards Full Justice for the Sentosa 27++ and All Victims of Illegal Recruitment" the dinner event will feature highlights from the community campaign for the trafficked healthcare workers from the Philippines who came to the United States in 2006 under direct hire nursing contracts with SentosaCare LLC. But after tenets of the Sentosa contracts were not honored, the 26 nurses and a physical therapist fought back with the help of their lawyer, Felix Vinluan.
Sentosa's CEO Bent Philipson retaliated against 10 of the nurses who resigned from his Avalon Gardens Nursing home in Suffolk County , Long Island and Vinluan by filing criminal charges of so-called patient endangerment. In a historic court decision earlier this year, the criminal charges against the 10 Avalon Nurses and Vinluan were formally prohibited. This was after supporters, such as the Legal Aid Society, the National Employment Lawyers Association of New York, New York State Nurses Association (NYSNA), the American Nurses Association (ANA), SEIU 1199, and the Suffolk County Defenders Association filed their respective amicus briefs to support the Article 78 prohibition petition filed by lawyers James Druker and Oscar Michelen for the nurses and Vinluan.
"Justice has not been fully served. We still need to fight for the shutting down of SentosaCare LLC. The former Sentosa nurses represent millions of Filipino migrant workers who fall victim to illegal contractualization and other forms of human trafficking because contractors like SentosaCare LLC prey on their desire to escape joblessness and poverty in the Philippines . Every year, tens of thousands of Filipinos enter the US as healthworkers or teachers duped by fraudulent contracts signed in the Philippines ," states Rico Foz of the National Alliance for Filipino Concerns or NAFCON.
NAFCON, along with supporters from the Philippine Nurses Association of America (PNAA), NYSNA, Movement for a Free Philippines (MFP), formed the Justice for the Sentosa 27++ Campaign (J4S27), a grassroots community campaign in support of the nurses as early as 2006, at a time when the nurses plea for justice was largely shunned by others in the Filipino community. "Unfortunately, there were those who refused to offer help to the nurses back then that are only speaking out now in support because of the Avalon 11's recent victory against criminalization," Foz added.
In 2007, the Justice for the Sentosa 27++ Campaign marched as one large contingent down Madison Avenue during the annual Philippine Independence Day Parade in New York City after holding several community forums at the NAFCON office in Queens . NAFCON, PNAA and NYSNA members also held outdoor demonstrations in the freezing cold winter of 2007 outside the Suffolk County Courthouse during the hearings on the Avalon 11's case. Congressional hearings were held in Manila through the J4S27's campaign's Philippine-based partners investigating the Sentosa Recruitment Agency, the agency who contracted the nurses from the Philippines to work at Sentosa-owned facilities in New York State . A campaign website was generated with a petition calling for six basic demands, which include the dropping of all civil and criminal charges against the nurses and shutting down of SentosaCare LLC. "For as long as all six demands have not been met, we will continue to up the ante on this important struggle for justice," Foz ended.
Jing Fong Restaurant is located at 18 Elizabeth Street , between Canal and Bayard Streets in Chinatown . The Justice for the Sentosa 27++ Campaign site can be accessed at www.s27plus.com. ###
Wednesday, March 18, 2009
Leftist Victory in El Salvador Closes an Historic Cycle
by: Marc Cooper
The Huffington Post
Special Correspondent, frmr Editorial Director of OffTheBus
Posted March 16, 2009 | 09:08 AM (EST)
The apparent victory of leftist candidate Maurico Funes in Sunday's presidential election in El Salvador finally closes out the Cold War in Central America and raises some serious questions about the long term goals of U.S. foreign policy.
With Funes' election, history has come full cycle. Both El Salvador and neighboring Nicaragua will now be governed by two former guerrilla fronts against which the Reagan administration spared no efforts in trying to defeat during the entire course of the 1980's. We will now coexist with those we once branded as the greatest of threats to our national security. Those we branded as "international terrorists" now democratically govern much of Central America.
Funes, once a commentator for CNN's Spanish-language service, comes to power representing the Farabundo Marti National Liberation Front (FMLN), a Marxist guerrilla group-turned-political -party, an organization that the U.S. government once described in terms now reserved for Al Qaeda and Hizbollah.
From the late 1970's until a negotiated peace settlement in 1992, the FMLN fought a bloody civil war against a series of U.S.-backed right-wing regimes. Those Salvadoran regimes engaged in horrific massacres and deployed savage death squads, taking a massive human toll. While the FMLN also perpetrated atrocities, all independent analysts agree that the overwhelming majority of the 75,000 who were killed in the war in El Salvador were victims of government-sponsored violence.
This same FMLN which now comes to power in El Salvador was once declared as the primary perpetrator of "international terrorism" by the Reagan administration who deployed hundreds of U.S. military advisors to the tiny Central American country and who quadrupled the size of the Salvadoran Army. In this all-out quest to crush the FLMN, U.S. authorities, at best, turned a blind eye to the bloody excesses of the Salvadoran regime. At worst, it encouraged them.
At the same time in history, the U.S. spent billions creating a "contra" army to destabilize and dislodge the leftist Sandinista National Liberation Front (FSLN) which had taken power in Nicaragua in 1979, overthrowing the dynastic and dictatorial rule of the Somoza family - another U.S.-backed ally.
During the entire eight years of the Reagan era, defeating both the FMLN and the FSLN were the absolute top priorities of U.S. foreign policy as the administration argued that the Texas border was a short hop from the fields of Central America and that all must be done to stop the northward march of hemispheric revolution. The sort of inflammatory rhetoric used to describe the Central American guerrilla movements was an eerie precedent for the overheated war of words against "The Axis of Evil" that would emerge earlier this decade.
The Nicaraguan Sandinistas were eventually defeated by an American-backed opposition in elections in 1990 and democratically and peacefully transferred power (something the Reaganites claimed could never happen). But the Sandinistas returned to power last year re-electing its historic leader Daniel Ortega as president. Almost twenty years of rule from the pro-U.S. coalitions that had succeeded the Sandinistas had failed to implement any meaningful social change.
The Salvadoran FMLN, meanwhile, which has acted as a parliamentary opposition party since the 1992 Salvadoran peace accords, now comes to power ending twenty years of uninterrupted rule by the country's ultra-conservative ARENA party - a political organization born directly from the death squads of the 1980's and, yes, a close ally of the U.S.
All of this raises the question of why so many lives were spent and so many billions in U.S. dollars were burned in an attempt to expunge these leftist forces twenty years ago? Wouldn't it have been possible in 1989 to find some sort of accommodation with these radical forces and not postpone the inevitable for twenty years?
In the case of Nicaragua, the year-old reborn and duly elected Sandinista administration--while far from a model of democratic ethics-- hardly poses any threat to U.S. interests. Though President Ortega, saddled with governing one of the poorest countries in the hemisphere, still clothes his actions in revolutionary rhetoric, he has headed up what many think is essentially a conservative regime which recently outlawed all abortion (a move that could warm the deceased Ronald Reagan's heart). Ortega campaigned successfully for the presidency last year by quoting from scripture and has not flinched from pacting with the most conservative of political elements.
In the case of El Salvador, President-elect Funes has pledged to maintain close and cordial relations with the U.S. And while the FMLN--like the Sandinistas - clings to some of its Cold War revolutionary rhetoric, no one expects any radical moves by the incoming government. Fighting widespread poverty aggravated by the global slump and a chilling crime wave, the FMLN will have its hands full just keeping the government on keel. President-elect Funes holds distinctly moderate views and in an American context would be little more than a liberal Democrat. In any case, the FMLN can point to its recent governance of several Salvadoran cities (including until recently the capital of San Salvador) as its democratic bona fides.
The resurrection of the FMLN and the FSLN at this time in history raises a troubling irony regarding U.S. foreign policy. Yesterday we were told they were our greatest enemies. Today, now in power, they hardly garner any U.S. press coverage, let alone much attention from Washington. Likewise, the right-wing forces we bankrolled with blood and treasure and who we were told were a bulwark of Western Civilization, utterly failed in solving the basic existential questions that bedeviled their respective countries. Twenty years from now, we have to ask, what will Iraq, Afghanistan and Syria look like? Might we find ourselves peacefully co-existing with the same undefeated forces who today we proclaim our mortal enemies? Might we be better off using our soft power, our economic and diplomatic clout to force negotiation and moderation with those we perceive as irrational and radical enemies? Or do we only reach that conclusion after the dissipation of prolonged, bloody and ultimately unsuccessful armed intervention and war?
The Huffington Post
Special Correspondent, frmr Editorial Director of OffTheBus
Posted March 16, 2009 | 09:08 AM (EST)
The apparent victory of leftist candidate Maurico Funes in Sunday's presidential election in El Salvador finally closes out the Cold War in Central America and raises some serious questions about the long term goals of U.S. foreign policy.
With Funes' election, history has come full cycle. Both El Salvador and neighboring Nicaragua will now be governed by two former guerrilla fronts against which the Reagan administration spared no efforts in trying to defeat during the entire course of the 1980's. We will now coexist with those we once branded as the greatest of threats to our national security. Those we branded as "international terrorists" now democratically govern much of Central America.
Funes, once a commentator for CNN's Spanish-language service, comes to power representing the Farabundo Marti National Liberation Front (FMLN), a Marxist guerrilla group-turned-political -party, an organization that the U.S. government once described in terms now reserved for Al Qaeda and Hizbollah.
From the late 1970's until a negotiated peace settlement in 1992, the FMLN fought a bloody civil war against a series of U.S.-backed right-wing regimes. Those Salvadoran regimes engaged in horrific massacres and deployed savage death squads, taking a massive human toll. While the FMLN also perpetrated atrocities, all independent analysts agree that the overwhelming majority of the 75,000 who were killed in the war in El Salvador were victims of government-sponsored violence.
This same FMLN which now comes to power in El Salvador was once declared as the primary perpetrator of "international terrorism" by the Reagan administration who deployed hundreds of U.S. military advisors to the tiny Central American country and who quadrupled the size of the Salvadoran Army. In this all-out quest to crush the FLMN, U.S. authorities, at best, turned a blind eye to the bloody excesses of the Salvadoran regime. At worst, it encouraged them.
At the same time in history, the U.S. spent billions creating a "contra" army to destabilize and dislodge the leftist Sandinista National Liberation Front (FSLN) which had taken power in Nicaragua in 1979, overthrowing the dynastic and dictatorial rule of the Somoza family - another U.S.-backed ally.
During the entire eight years of the Reagan era, defeating both the FMLN and the FSLN were the absolute top priorities of U.S. foreign policy as the administration argued that the Texas border was a short hop from the fields of Central America and that all must be done to stop the northward march of hemispheric revolution. The sort of inflammatory rhetoric used to describe the Central American guerrilla movements was an eerie precedent for the overheated war of words against "The Axis of Evil" that would emerge earlier this decade.
The Nicaraguan Sandinistas were eventually defeated by an American-backed opposition in elections in 1990 and democratically and peacefully transferred power (something the Reaganites claimed could never happen). But the Sandinistas returned to power last year re-electing its historic leader Daniel Ortega as president. Almost twenty years of rule from the pro-U.S. coalitions that had succeeded the Sandinistas had failed to implement any meaningful social change.
The Salvadoran FMLN, meanwhile, which has acted as a parliamentary opposition party since the 1992 Salvadoran peace accords, now comes to power ending twenty years of uninterrupted rule by the country's ultra-conservative ARENA party - a political organization born directly from the death squads of the 1980's and, yes, a close ally of the U.S.
All of this raises the question of why so many lives were spent and so many billions in U.S. dollars were burned in an attempt to expunge these leftist forces twenty years ago? Wouldn't it have been possible in 1989 to find some sort of accommodation with these radical forces and not postpone the inevitable for twenty years?
In the case of Nicaragua, the year-old reborn and duly elected Sandinista administration--while far from a model of democratic ethics-- hardly poses any threat to U.S. interests. Though President Ortega, saddled with governing one of the poorest countries in the hemisphere, still clothes his actions in revolutionary rhetoric, he has headed up what many think is essentially a conservative regime which recently outlawed all abortion (a move that could warm the deceased Ronald Reagan's heart). Ortega campaigned successfully for the presidency last year by quoting from scripture and has not flinched from pacting with the most conservative of political elements.
In the case of El Salvador, President-elect Funes has pledged to maintain close and cordial relations with the U.S. And while the FMLN--like the Sandinistas - clings to some of its Cold War revolutionary rhetoric, no one expects any radical moves by the incoming government. Fighting widespread poverty aggravated by the global slump and a chilling crime wave, the FMLN will have its hands full just keeping the government on keel. President-elect Funes holds distinctly moderate views and in an American context would be little more than a liberal Democrat. In any case, the FMLN can point to its recent governance of several Salvadoran cities (including until recently the capital of San Salvador) as its democratic bona fides.
The resurrection of the FMLN and the FSLN at this time in history raises a troubling irony regarding U.S. foreign policy. Yesterday we were told they were our greatest enemies. Today, now in power, they hardly garner any U.S. press coverage, let alone much attention from Washington. Likewise, the right-wing forces we bankrolled with blood and treasure and who we were told were a bulwark of Western Civilization, utterly failed in solving the basic existential questions that bedeviled their respective countries. Twenty years from now, we have to ask, what will Iraq, Afghanistan and Syria look like? Might we find ourselves peacefully co-existing with the same undefeated forces who today we proclaim our mortal enemies? Might we be better off using our soft power, our economic and diplomatic clout to force negotiation and moderation with those we perceive as irrational and radical enemies? Or do we only reach that conclusion after the dissipation of prolonged, bloody and ultimately unsuccessful armed intervention and war?
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