In a country full of venerated heroes, from the brave Lapu-Lapu to the revolutionary Bonifacio and the patriotic writer Rizal, it is no surprise that Filipinos regard any acts of living Pinoys,[1] individually or collectively, that are deemed to create positive impacts on the Philippines as a nation as one of heroism. As such, with the huge amounts of annual remittances of overseas Filipino workers (OFWs)—more than US$20.1 billion[2] in 2011 comprising almost 10% of the country’s Gross Domestic Product[3]—OFWs have been highly regarded as the Bagong Bayani (New Heroes) in the Philippines. Their contribution to the country’s economy cannot be overemphasized, as OFW remittances have perennially saved the nation from recurring global and regional financial crisis, starting from the Asia financial collapse in the mid-1990s.

And like their hero ‘counterparts’ of the olden times, however, these present-day heroes—who are in almost any part of the world in a staggering number of 9.45 million OFWs in 2010[4]—in spite of their major drive inputs to the economy, have become vulnerable targets of oppression and exploitation, from the Philippine government’s neglect of its obligations to protect their rights and promote their welfare to most of the destination countries’ apparent unequal and discriminatory treatment against OFWs.

OFWs are not alone in this predicament, as the entire Asia-Pacific region shows a pattern of conferring legitimacy to labour-export policy of States that deny and deprive migrant workers, along with other marginalized sectors of society, of their right to be accorded by their own government of their economic and social rights.

Profile of Labour Migration in Asia Pacific

Labour migration has become a global phenomenon spurred by the advent of globalization (of products and services) in the late 1970s.[5] Though the major inputs into the economy of overseas workers are admirable, labour migration is a prominent feature of a crisis within the economic order not only of the respective origin countries but more importantly of the current global economic paradigm. “The global labour market becomes one big pool of “flexible labour” that can be shifted within and across national borders based on the needs of monopoly capital.”[6]

In Asia-Pacific (excluding Oceania countries), the numbers are staggering: there are 27.5 million migrant workers in 2010, from 25 million in 2005, and which accounts for almost 13% of all world labour migrants. Almost half (48%) of the migrant stock is composed of women workers.[7] The top origin countries of migrants are China, Bangladesh, India, Sri Lanka, Myanmar, the Philippines, and Pakistan.[8] It has been noted that while the United States and the Middle East are the main destination countries of most migrant workers, intra-regional labour migration is becoming a pattern, as the top destination countries in the region in 2010 are India (6.1 million), Hong Kong SAR (2.5 million), Iran (1.9 million), and Malaysia (1.7 million).[9]

The Oceania region[10] is no different. It has 6.8 million migrant workers and that is 16.8% of the total population in the region and 3.2% of all world labour migrants. Labour migrants account for a quarter of the population in cities like Sydney, Melbourne and Perth in Australia, and Auckland in New Zealand, which are the two primary destination countries in the region. The most number of migrant workers are in Sydney (1.2 million) and Melbourne (940,000).[11]

As such, in Asia-Pacific, including the Oceania region, there are a staggering 34.3 million migrant workers or 16.2% of all world labour migrants. Another regional trend that should be a cause of concern is the rising number of irregular or undocumented migration, estimated by the International Organization for Migration as one of the largest in the world according to overall contemporary flows. The Bangladesh-India corridor alone contributes to around 17 million irregular migrant workers in 2010.[12]

All these figures are striking that the numbers portray the fundamental protracted economic crisis that the origin countries are facing in their respective territories. It is because the push and the need to work in another country—compelled primarily by the scarcity in labour opportunities and insufficiency of domestic wage levels—that is at the core of the labour migration phenomenon. This is the crux of the problem, and the exploitation and oppression of migrant workers in their destination countries are merely the consequences of the same.

It must be emphasized that most of the origin countries’ economies in Asia-Pacific can be aptly characterised as primarily pre-industrial and agrarian, and have always been bombarded by the harsh effects of the adopted/imposed neo-liberal, free-market system. These underdeveloped and developing origin countries have been placed at the mercy of the predatory structural adjustment packages of deregulation in the economy and privatisation of social services by industrialized nations and lending institutions—the immediate effect thereof is the perennial increase in the price of basic commodities and essential social services—at the expense of the collective interests of the majority of their people. Also, even the giant countries like China and India, with their rising capitalist economies, could not contain the labour migration of their own people as there is a great disparity (and inequality) in the distribution of wealth therein between the very few that own the large majority of resources and the very majority of people who are put in a bleak situation to share among them the scant resources that are made available to them.

As such, these increasing labour migration figures, not only in the Asia-Pacific region but also in other parts of the world, constitute a preponderance of evidence that the origin countries have continued to fail in their obligation to even progressively realize to their own people the economic and social rights that must be accorded to them. Labour migration, particularly from underdeveloped and developing origin countries in Asia-Pacific, has become in essence an institutionalized framework of ‘passing the buck’ of the realization of this obligation to the destination countries through the transformation of the human capital into a pool of flexible labour, a metamorphosis from subjects that should be properly governed into usable products-services that may be utilised/exploited.

Therefore, the sad state of migrant workers is even more exemplified by the act of conferring legitimacy to labour migration by these underdeveloped and developing origin countries in Asia-Pacific through their usually unadmitted labour-export policy, as these governments heavily rely on overseas workers’ remittances to keep their respective economies afloat. Thus, efforts to address labour migration, by governments and even by some NGOs, are merely focused on mitigation of the ill-effects of labour migration on migrant workers (e.g. reforming labour-export practices in origin countries and demanding for proper employment terms and working conditions in destination countries), and not towards the overarching and long-term objective of its elimination, of the realization of the economic and social rights of the people in their respective countries, in order to “ensure that migrant advocacy will not go around perpetually in circles, like circular migration.”[13]

Philippines’ Situation vis-à-vis International Standards for Migrant Workers

The first generation of Filipino labour migrants started in 1565 when Filipinos, or Indios as the Spaniards had labelled them, worked in dockyards and aboard ships that brought them to Mexico. After that, there were already three waves of Philippine labour migration as an origin country: 1900-1940s, 1940s-1970s, and 1970s-1990s,[14] which all made it as one of the world’s largest labour exporting countries. In the 1970s, the late strongman, Ferdinand Marcos, created the policy of Development Diplomacy which was focused on utilizing surplus labour capital to export the same to oil-exporting countries. This led to an increase of OFWs by 75% in 1980 from the previous year.[15]

From the mid-1990s until the present day, it may be categorized as the fourth wave of Philippine labour migration, as for the first time after centuries since the first generation of Filipino labour migrants, a statute on the matter was finally enacted by Philippine Congress in 1995: Republic Act No. 8042 or The Migrant Workers and Overseas Filipino Act of 1995.[16] But this statute, however, was a result of the intensified pressures from migrant advocates for the Philippine government to promote and protect the rights and welfare of OFWs in view of the controversial case of Flor Contemplacion, a Filipina domestic helper in Singapore who was executed on March 17, 1995 by authorities therein for allegedly murdering a fellow Filipina domestic helper, Delia Maga, and a four-year old Singaporean child that Maga was taking care of.[17] The execution of Contemplacion aptly symbolized the long history of abuse, exploitation and oppression that OFWs around the world have been experiencing in their respective destination countries.

RA 8042 supposedly aims “to institute the policies overseas employment and establish a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress.”[18] It affirms the State policies to uphold the dignity of its citizens in country or overseas, particularly the Filipino migrant workers,[19] afford full protection to labour, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities to all,[20] that overseas employment program rests solely on the assurance that fundamental rights and freedoms of Filipinos shall not, at any time, be compromised or violated, and that the State shall continuously create local employment opportunities and promote the equitable distribution of wealth and benefits of development,[21] the equality before the law of women and men,[22] free access to courts and quasi-judicial bodies and adequate legal assistance and institution of an effective mechanism to protect the rights and interests of documented and irregular or undocumented OFWs,[23] the right of OFWs to participate in democratic decision-making processes,[24] that NGOs are State partners in the protection and promotion of OFWs’ welfare,[25] and that government fees and administrative costs of recruitment, introduction, placement and assistance to OFWs shall be rendered free.[26]

The Philippine government, however, denies that exportation of its labour capital is an established, albeit unofficial, policy of the State. As such, it has stated in RA 8042 that while the State recognises the OFWs significant contribution to the national economy through their remittances, “the State does not[27] promote overseas employment as a means to sustain economic growth and achieve national development.”[28] But the increasing annual rate[29] of OFWs in exodus tells a narrative of ‘doublespeak’ on the part of its government: there are 7.38 million OFWs in 2000 constituting a significant 9.65% of the country’s population in that year, 9.85% in 2007 and 10.23% in 2010.[30]

RA 8042 establishes seemingly comprehensive mechanisms for the promotion and protection of the OFWs’ rights and welfare: detailed and all-encompassing provisions on illegal recruitment, and punishing syndicated[31] and large scale[32] illegal recruitment as an offense involving economic sabotage;[33] deployment of OFWs only in destination countries where the rights of OFWs are protected,[34] mechanisms for money and damages claims of OFWs arising from contract for overseas deployment where the domestic recruitment/placement agency is solidarily liable with the foreign principal/employer; free legal assistance for victims of illegal recruitment; travel advisory and information dissemination on migrant issues;[35] free repatriation of OFWs and creation of an emergency repatriation fund at an initial cost of P100 million;[36] mandatory repatriation of underage OFWs; creation of a re-placement and monitoring centre for returning OFWs’ reintegration into the society; establishment of OFWs resource centres in destination countries with large concentration of OFWs to assist them in all migrant matters; creation of a shared inter-agency government information system for migration; a migrant workers loan guarantee fund of P100 million for pre-departure and family assistance loan; and mechanisms for rights and enforcement mechanism under international and regional human rights systems.[37]

It designates the proper role of relevant Philippine government agencies to promote the welfare and protect the rights of OFWs[38] in the entire migration process which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the destination country as well as the return to the origin State;[39] the creation of the position of legal assistant for migrant workers affairs; and a legal assistance fund of P100 million for OFWs in distress.

All these guarantees, processes and mechanisms under RA 8042, on paper, appear to somehow address, albeit more in a general sense, “the situation of vulnerability in which migrant workers frequently find themselves,” and other similar considerations under the International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, which was ratified by the Philippines on July 5, 1997 or just almost a month after the enactment of RA 8042. The statute, however, is significantly lacking in terms of the promotion and protection of the rights and welfare of the members of OFWs’ families, who are similarly protected in the same degree as migrant workers under all the standards laid down in the said international convention, Migrant Workers (Supplementary Provisions) Convention, 1975 (C. 143), Migrant Workers Recommendation No. 151 (1975), and Migration for Employment Recommendation No. 86 (Revised), 1949.

Said statute relatively complies with the Migration for Employment Convention (Revised), 1949 (C. 97) on matters involving the OFWs’ departure, journey and reception and transfer of earnings, in general and particular terms, as well as with said convention’s two annexes on matters involving conditions of labour, and recruitment and placement that are also contained in the Migration for Employment Recommendation No. 86 (Revised), 1949. That same may also be said concerning with the Migrant Workers (Supplementary Provisions) Convention, 1975 (C. 143) on labour migration’s standards that address abusive conditions, the need to suppress clandestine movements of migrants and their employment in irregular status by taking action against their organizers and employers (not the workers themselves), and protecting the rights of migrant workers in irregular status arising out of their employment.

But RA 8042 violates the international standard concerning recruitment and placement activities as it has a comprehensive deregulation plan[40] on such crucial matters. Moreover, it is silent as to the categorical assertion of the paramount principle of equal and no less favourable treatment[41] that is accorded to migrant workers and members of their families[42] as a vital international standard under the above-stated international instruments. Also, said statute apparently lacks the particular and detailed principles and guidelines for a rights-based approach to labour migration under the International  Labour Organization’s Multilateral Framework on Labour Migration (Principle 15).

Conclusion

Philippine labour migration policy, in sum, is still far from being a comprehensive and detailed one that fully accords the standards established under international instruments on labour migration. Even the RA 10022, which was enacted on March 8, 2010 to amend several provisions of RA 8042, fails to sufficiently provide for the insufficiencies of the latter statute, especially on the detailed particularities of the rights of OFWs and members of their families pursuant to international standards.

In 2002, the country has already removed its cloak that disguises its labour-export policy when then President Gloria Arroyo declared overseas employment as a legitimate option for the country’s work force, and that the government shall fully respect labour mobility, including the preference for overseas employment. This started the shift of the government’s traditional role from merely managing the migration of OFWs into an active promoter of “international labour migration as a growth strategy, especially of the higher-skilled, knowledge-based workers.”[43] This has resulted to the onset of the exodus from the country of a very substantial number of professionals, particularly nurses and doctors. As such, the country has long been suffering from the so-called brain drain phenomenon in the medical field.

But this should not come as a surprise because even the Migration for Employment Recommendation No. 86 (Revised), 1949[44] advocates for a flexible labour-export policy, a consequence of the current global economic order.

The wide gap between the present Philippine labour migration policy, even at least on the promotion and protection of the rights and welfare of OFWs, and the enforcement/implementation thereof is still evident up to this day. The country may have already gone beyond the paradigm exemplified by the irresponsible remark of Corazon Aquino’s foreign affairs secretary, Raul Manglapus, in the early 1990s about the many cases of rape against Filipina domestic helpers in the Middle East that, “If rape were inevitable, one should relax and enjoy it,” but its government has consistently shown that it continues to fail to accord sufficient protection for OFWs contrary to its rights and welfare policies—from illegal recruitment to unjust exaction of government fees, from inhumane conditions of work to exploitative terms of employment, from arbitrary prosecution/persecution of OFWs in destination countries to delayed and prolonged repatriation in needed instances.

They[45] are heroes. They should be exploited. This historical dictum is now applied in the Philippine labour migration policy.

References

Battistella, Graziano, Philippine Labor Migration: Impact and Policy, Quezon City, 1992.

Global Migration, Facts and Figures 2010, Asia Pacific Mission for Migrants (APMM), Hong Kong SAR, China, 2010, pp. 5, 7, 9, 23, 95.

Go, Stella, Remittances and International Labour Migration: Impact on the Philippines, Philippine Migration Network, De La Salle University, Manila, 2002.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: Articles 1(2), 25(1)(a)(b).

Migration for Employment Convention (Revised), 1949 (C. 97).

Migration for Employment Recommendation No. 86 (Revised), 1949: 4(1).

Migrant Workers Recommendation No. 151 (1975): I(2)(a)(b)(c)(d)(e)(f)(g)(h)(i).

Migrant Workers (Supplementary Provisions) Convention, 1975 (C. 143)

Multilateral Framework on Labour Migration (Principle 15).

Overseas Filipinos’ Remittances, Bangko Sentral ng Pilipinas (Central Bank of the Philippines), http://www.bsp.gov.ph/statistics/keystat/ofw.htm, accessed on April 12, 2012.

Remo, Michelle V., OFW remittances grew by 7.2% to $20.1-B in 2011 – BSP, February 15, 2012, http://business.inquirer.net/44695/ofw-remittances-grew-by-7-2-to-20-1-b-in-2011-bsp, accessed on April 12, 2012.

Republic Act No. 8042, Migrant Workers and Overseas Filipinos Act of 1995.

Republic Act No. 10022, An Act Amending Republic Act No. 8042 Otherwise Known As The Migrant Workers and Overseas Filipinos Act of 1995, As Amended, Further Improving the Standard of Protection and Promotion of the Welfare of Migrant Workers, Their families and Overseas Filipinos in Distress, and for other purposes.

Stock Estimates of Overseas Filipinos, as of December 2010, Commission on Filipino Overseas, Philippine Overseas Employment Administration (POEA), http://www.poea.gov.ph/stats/Stock%20Estmate%202010.pdf, accessed on April 12, 2012.

World Migration Report 2010, International Organization for Migration, Geneva, 2010, p. 167.


[1]  Pinoy is the short term of Pilipino, the Filipino language word for the English term Filipino, who is a national of the Philippines.

[2] Overseas Filipinos’ Remittances, Bangko Sentral ng Pilipinas (Central Bank of the Philippines), http://www.bsp.gov.ph/statistics/keystat/ofw.htm, accessed on April 12, 2012. The Philippines is the 4th top remittance-receiving country in 2010 in terms of actual amount of money remittances, after India, China and Mexico, according to the Global Migration, Facts and Figures 2010, Asia Pacific Mission for Migrants (APMM).

[3] Remo, Michelle V., OFW remittances grew by 7.2% to $20.1-B in 2011 – BSP, February 15, 2012, http://business.inquirer.net/44695/ofw-remittances-grew-by-7-2-to-20-1-b-in-2011-bsp, accessed on April 12, 2012.

[4] Stock Estimates of Overseas Filipinos, as of December 2009, Commission on Filipino Overseas, Philippine Overseas Employment Administration (POEA), http://www.poea.gov.ph/stats/Stock%20Estmate%202010.pdf, accessed on April 12, 2012.

[5] Global Migration, Facts and Figures 2010, Asia Pacific Mission for Migrants (APMM), Hong Kong SAR, China, 2010, p. 5.

[6] Ibid, p. 7.

[7] Id., p. 23.

[8] Id., p. 23.

[9] World Migration Report 2010, International Organization for Migration, Geneva, 2010, p. 167.

[10] This includes the following countries and subregions: Australia, New Zealand, Melanesia, (Fiji, New Caledonia, Papua New Guinea, Solomon Islands and Vanuatu), Micronesia (Guam, Kiribati, Marshall Islands, Nauru, Northern Mariana Islands, Palau), and Polynesia (American Samoa, Cook Islands, French Polynesia, Niue, Pitcairn, Samoa, Tokelau, Tonga, Tuvalu, and Wallis and Futuna Islands.)

[11] Global Migration, Facts and Figures 2010, p. 95.

[12] World Migration Report 2010, p. 167.

[13] Global Migration, Facts and Figures 2010, p. 9.

[14] Battistella, Graziano, Philippine Labor Migration: Impact and Policy, Quezon City, 1992.

[15] Ibid.

[16] RA 8042 was enacted by Philippine Congress on June 7, 1995.

[17] Just before Contemplacion’s execution, two Filipino witnesses claimed that the child’s father framed Contemplacion for the murders. They said that the father killed Maga in rage after finding his son to have accidentally drowned, as the son was an epileptic who allegedly had an epilepsy attack while in the bath tub and Maga was not aware thereof. The Singaporean court, however, rejected their testimony.

[18] RA 8042, preliminary clause.

[19] RA 8042, Section 2(a), Declaration of Policies.

[20] RA 8042, Section 2(b), Declaration of Policies.

[21] RA 8042, Section 2(c), Declaration of Policies.

[22] RA 8042, Section 2(d), Declaration of Policies.

[23] RA 8042, Section 2(e), Declaration of Policies.

[24] RA 8042, Section 2(f), Declaration of Policies.

[25] RA 8042, Section 2(h), Declaration of Policies.

[26] RA 8042, Section 2(i), Declaration of Policies.

[27] Italics supplied.

[28] RA 8042, Section 2(c), Declaration of Policies.

[29] Stock Estimates of Overseas Filipinos by the Commission on Filipino Overseas, Philippine Overseas Employment Administration (POEA): 1997 (6.97 million), 1998 (7.20 million), 1999 (7.29 million), 2000 (7.38 million), 2001 (7.41 million), 2002 (7.58 million), 2003 (7.76 million), 2004 (8.08 million), 2005 (7.92 million), 2006 (8.23 million), 2007 (8.72 million), 2008 (8.18 million), 2009 (8.57 million), 2010 (9.45 million).

[30] The percentages have been obtained by dividing the stock estimates of OFWs by the number of population of the Philippines in a particular year taken from the data gathered by the Philippine National Statistics Office (NSO): 2000 [(7,383,122 OFWs / 76,504,077 country population (CP)], 2007 (8,726,520 OFWs / 88,574,614 CP), and 2010 (9,452,984 OFWs / 92,337,852 CP).

[31] RA 8042, Section 6(m)(2): Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another.

[32] RA 8042, Section 6(m)(2): Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

[33] RA 8042, Section 7(b): The penalty of life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00 shall be imposed if illegal recruitment constitutes economic sabotage. As such, posting of a bail bond by the accused is not allowed as a general rule.

[34] RA 8042, Section 4: The Philippine government recognizes any of the following as guarantee on the part of the destination country for the protection of the rights of OFWs: (a) It has existing labour and social laws that protect migrant workers’ rights; (b) It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers; (c) It has concluded a bilateral agreement or arrangement with the Philippines protecting the rights of OFWs; and (d) It is taking positive, concrete measures to protect the rights of migrant workers.

[35] RA 8042, Section 14: Information dissemination on labour and employment conditions, migration realities and other facts to prevent illegal recruitment, fraud, and exploitation or abuse of OFWs.

[36] RA 8042, Section 15: Free repatriation of OFWs in cases of termination of employment, death, war, epidemic, disasters or calamities, natural or man-made, and other similar events.

[37] RA 8042, Section 22: The Philippine Department of Foreign Affairs is mandated to undertake initiatives such as promotions, acceptance or adherence of destination countries to multilateral convention, declaration or resolutions pertaining to the protection of migrant workers’ rights. It is also mandated to make an assessment of rights and avenues of redress under international and regional human rights systems that are available to OFWs who are victims of abuse and violation and, as far as practicable, pursue the same on behalf of the victim it is legally impossible to file individual complaints.

[38] RA 8042, Section 23: Role of Government Agencies. – The following government agencies shall perform the following to promote the welfare and protect the rights of migrant workers and, as far as applicable, all overseas Filipinos: (a) Department of Foreign Affairs - The Department, through its home office or foreign posts, shall take priority action or make representation with the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos; (b) Department of Labor and Employment – The Department of Labor and Employment shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable, to other overseas Filipinos including the grant of legal assistance and the referral to proper medical centers or hospitals: (b.1) Philippine Overseas Employment Administration – Subject to deregulation and phase-out as provided under Secs. 29 and 30 herein, the Administration shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements. (b.2) Overseas Workers Welfare Administration – The Welfare officer or in his absence, the coordinating officer shall provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or by their principals. In the performance of this function, he shall make representation and may call on the agencies or entities concerned to conferences or conciliation meetings for the purpose of settling the complaints or problems brought to his attention.

[39] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 1(2).

[40] RA 8042, VII. DEREGULATION AND PHASE-OUT,  Section 29. Comprehensive Deregulation Plan on Recruitment Activities. – Pursuant to a progressive policy of deregulation whereby the migration of workers becomes strictly a matter between the worker and his foreign employer, the DOLE, within one (1) year from the effectivity of this Act, is hereby mandated to formulate a five-year comprehensive deregulation plan on recruitment activities taking into account labor market trends, economic conditions of the country and emerging circumstances which may affect the welfare of migrant workers. Section 30. Gradual Phase-out of Regulatory Functions. – Within a period of five (5) years from the effectivity of this Act, the DOLE shall phase-out the regulatory functions of the POEA pursuant to the objectives of deregulation.

[41] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 25(1). Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and: (a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms; (b) Other terms of employment, that is to say, minimum age of employment, restriction on work and any other matters which, according to national law and practice, are considered a term of employment.

[42] Migrant Workers Recommendation No. 151 (1975), I. Equality of Opportunity and Treatment. (2) Migrant workers and members of their families lawfully within the territory of a Member should enjoy effective equality of opportunity and treatment with nationals of the Member concerned in respect of –

(a) access to vocational guidance and placement services;

(b) access to vocational training and employment of their own choice on the basis of individual suitability for such training or employment, account being taken of qualifications acquired outside the territory of and in the country of employment;

(c) advancement in accordance with their individual character, experience, ability and diligence;

(d) security of employment, the provision of alternative employment, relief work and retraining;

(e) remuneration for work of equal value;

(f) conditions of work, including hours of work, rest periods, annual holidays with pay, occupational safety and occupational health measures, as well as social security measures and welfare facilities and benefits provided in connection with employment;

(g) membership of trade unions, exercise of trade union rights and eligibility for office in trade unions and in labour-management relations bodies, including bodies representing workers in undertakings;

(h) rights of full membership in any form of co-operative;

(i) conditions of life, including housing and the benefits of social services and educational and health facilities.

[43] Go, Stella, Remittances and International Labour Migration: Impact on the Philippines, Philippine Migration Network, De La Salle University, Manila, 2002.

[44] Migration for Employment Recommendation No. 86 (Revised), 1949, 4(1) It should be the general policy of Members to develop and utilise all possibilities of employment and for this purpose to facilitate the international distribution of manpower and in particular the movement of manpower from countries which have a surplus of manpower to those countries that have a deficiency.

[45] This refers to the overseas Filipino workers.

(Para kay Adjani Guerrero Arumpac)

If I go blind, I will follow you
by the sound of your voice alone,
in your throat there is a sound
more golden and unique among all things.

If I go deaf, my entire being
will converse with your eyes alone,
in your every look I will conjure
all the words you want to say.

If I go deaf and blind and there’s nothing more
in the world for me to see,
I will follow your scent if that’s all that’s left,
I will let my nose do all my loving.

Even if you hide, the wind will deliver to me
your every gesture that overflows with poetry.
In the dried grass I will trace your footprints
like perfume that someone has spilled.

Without perfume or radiance or voice
to whom I can pledge my love
your very presence is enough to make me feel
you will yet draw near.

I may go blind but only come close
to the chords of my heart full of longing,
I know you by your footfall, my love,
and I am filled with so much poetry.

(Translated into English by Eric Gamalinda)

Satirical writer Thomas Carlyle once wrote, “The present is the living sum-total of the whole past.” We need not examine Australia’s entire past to see how its government currently addresses, or to be politically correct, evades and ducks into containment, the issue of treatment and settlement of refugees arriving in its territory by boat.

A look at what happened ten years ago in its waters near Christmas Island is sufficient for us to comprehend the things that did not happen there, and how such contemptible omissions continue to mould the existing Australian policy on the ‘boat people.’

A five-day standoff ensued from August 26 to 30, 2001 between the Australian government and Captain Arne Rinnan of the MV Tampa, a Norwegian cargo ship which rescued 438 Afghan refugees from a 20-metre wooden Indonesian fishing boat stranded in the international waters about 140 km north of Christmas Island. Australian authorities themselves sounded the calls for assistance; MV Tampa simply responded. It was directed to disembark the refugees to the port of Merak in Java, Indonesia, about 12 hours away from the rescue site. Christmas Island was only two hours closer. The refugees rightly demanded from Rinnan that they be taken to Australia, not to Indonesia where they sailed from. Authorities, however, refused entry to its territorial waters, and threatened to prosecute Rinnan as a people smuggler if he dared to do so.

Rinnan patiently awaited Australia’s compassion for days on the boundary of its territorial waters near Christmas Island, as there was a ‘mass medical crisis and that medical attention was urgently required.’ The wait was in vain. On August 29, MV Tampa entered Australia’s territorial waters. The response was a deployment of its special forces—the Special Air Service Regiment—who boarded the vessel and ordered it to move back to international waters. Rinnan aptly refused and MV Tampa anchored four nautical miles off Christmas Island. After the Senate rejected Howard’s oppressive Border Protection Bill the following day, Australia hurriedly excised Christmas Island and other coastal islands from its migration zone to prevent asylum seekers who failed to reach the mainland from applying for refugee status. The Pacific Solution was conceived, transporting asylum seekers to detention camps in Manus Island in Papua New Guinea and on the tiny island nation of Nauru, where the MV Tampa refugees were eventually shipped and their status processed.

Those facts were clear then, as they are now in the Malaysia Solution—Australia’s latest refugee policy to transport its first 800 asylum seekers, including unaccompanied children, arriving by boat to Malaysia, a non-signatory to the Convention on Refugees and has a dismal record in refugee protection. Australia in turn will provide permanent homes to 4,000 Burmese refugees from Malaysia over a period of four years. The arrival of another boat carrying 62 asylum seekers last August 12 brings the total to 269 arbitrarily detained ‘boat people’ in Australia.

The Tampa affair was characterised by a great crime of omission—an intentional evasion of its earnest duty as a civilised and enlightened nation to comply with its international obligation to assist refugees. The Malaysia Solution becomes an aggravating circumstance to Australia’s notoriety, for what on Poseidon’s name is the wisdom behind sending away 800 and getting 4,000 refugees in return? Acquiring such a huge number clearly shows Australia’s capacity to take more refugees than those that arrive here by boat.

It is claimed that the Tampa affair had occurred to frustrate, and the Pacific and Malaysia Solutions were devised against, people smuggling. But certainly, such a reprehensible act and inhumane policies work heavily against the proper treatment and settlement of asylum seekers arriving by boat. As a testament to its hypocrisy, Australia shirks from its obligation to its few ‘boat people’ by arranging to send them away to ‘dissuade’ people smugglers and then gather numerous refugees from Malaysia to proclaim that it is a nation that bears a torch for refugee protection.

The problem lies there. Australia’s policymakers have to recognise two things: that Australia is an acknowledged part of the regime of asylum nations and that the policy should be geared towards the humane treatment of refugees on its shores. Asylum seekers arriving by boat have to be accorded the heavy presumption of being refugees, who are as such as defined under the Convention on Refugees whether their journey has been caused by people smugglers or not. A myopic policy hooked callously against people smugglers is weighing down on the refugees, in serious violation of their right to liberty and security.

The problem is not the people smugglers. It is how Australia responds to its role as an asylum nation. Australia is not a paradise of fools where asylum seekers set sail to land. It should not act as one.

Samuel P. Huntington chose not to heed Chomsky’s bold verdict in the late 1970s that, “If a rational Fascist dictatorship were to exist, then it would choose the American system” (Chomsky 1979). Huntington published his influential study, The Third Wave: Democratization in the Late Twentieth Century, where he openly professes that, “The United States is the premier democratic country of the modern world” (Huntington 1991) and pursues in his article ‘Democracy’s Third Wave’ that, “During the 1970s and 1980s the United States was a major promoter of democratization,” and “Democratic movements around the world have been inspired by and have borrowed from the American example” (Huntington 1991).

Though often accused of ideological ethnocentric bias, his discourse that the diffusion of democracy in the world comes in waves has attracted significant attention from scholars. Huntington’s (1991) study shows that the first wave of democratization started in the 1820s and lasted until 1926 with 29 democratic countries. The first “reverse wave” begun in 1922 in Mussolini’s Italy until 1942 that only 12 democratic states were left. After World War II and by the process of decolonisation, the second wave took off that lasted in 1962 with 36 democratic regimes. The years 1960-1975 saw the second reverse wave reducing the number to 30. By 1974, transitions to democracy gained strength in the current third wave that brought another 30 states to the figure scale until 1990, the last year of his observation.

Huntington (1991) offers us the causes of the third wave of democratization from 1974-1990: the deepening legitimacy problems of authoritarian regimes; the global economic growth of the 1960s; the shift in the Catholic Church as opponent of authoritarianism; the external forces from policy changes in the West; and the “snowballing” effect providing models for democratization.

But what is the impetus for the third wave of democratisation after 1990? Are the driving forces submitted by Huntington the same foundations for democratization after that period? What kind of democracy has been created through democratization? What have been the strengths and weaknesses of the states that made transitions to democracy during the third wave?

Impetus for Democracy’s Third Wave Post-1990

Leftwich (1993) advances four central influences to the transitions to democratization in the current third wave: “the experience of structural adjustment lending,” “the resurgence of neo-liberalism in the West,” the collapse of communist regimes,” and “the rise of pro-democracy movements in the developing world and elsewhere.” Diamond (1996) forwards the “collapse of Soviet and East European communism and the diffusion of the third wave to sub-Saharan Africa” as the reasons; the latter is elucidated by Katulondi (2005) as due to the general economic misery perpetuated by corrupt dictatorships across sub-Saharan Africa during the late 1980s and the demands following the end of the cold war.

The harsh economic effects of the measures imposed by lending institutions—IMF, World Bank and Western industrialized states—in exchange for the loans during the 1980s have resulted to struggles and massive protests by the poor in the recipient countries. As privatisation of social services and deregulation of the market became the only model for lending institutions, the political nature of structural adjustment emerged, creating conditions that posed danger to the liberalisation of the economy.

Thus, the emergence of the conflicting/paradoxical concept of “good governance” in 1989 (Leftwich 1993)—the exercise of political power to manage a country’s resources and affairs—combining the political principles of democratization (rule of law, participatory and representative form of government, separation of powers of state institutions, accountability of public officials, independent judicial system, strong and pluralistic civil society, respect for human rights, transparency in state affairs) together with the previous model pursuing economic liberalisation: an open, market-based economy (AusAID 2000). As they have realized, “the ability to design and implement adjustment programmes was largely a consequence of political commitment, capacity and skill, as well as bureaucratic competence, independence and probity” (Leftwich 1993). It asserts the normative and functional approaches of the political dimensions of neoliberalism: the importance of individual rights that are claimed to propel market forces and growth and the alleged necessity of a non-interventionist position—in contrast to excessive concentration of political power—of states in the economy (Leftwich 1993). But as prudently observed by Armory & Schamis (2005), “The literature on democratization has been prompt to identify the unfolding of new democracies’ tendencies toward concentrations of executive power, yet has been less keen to acknowledge similar phenomena in benchmark democracies.”

As Eastern European communist states collapsed (though the politically correct term is the demise of Marxist-revisionist regimes), it provided renewed vitality and pomposity to the West to propagate the claimed ‘virtues’ of political liberalisation through democratization as a condition sine qua non for economic growth, or in simple terms, that “good governance is an essential precondition for the claimed sustainable development caused by a market-based economy” (AusAID 2000). The alleged stimulating effects of pro-democracy movements in the 1980s have produced democratization in several countries in Africa, but can be seen as largely due to the miserable internal political and economic conditions of the said states (Katulondi 2005).

As expected, due to “spreading disillusion with the superficial, electoralist democratization of the post-1990 period” (Katulondi 2005)—a product of the foregoing impetus—such itself has become the crucial factor for the demand by the African people for a democratic system that captures their interests and not of the political elites.

Though a peek in the preceding paragraph may have already been provided, an inquiry is still of principal significance: are the countries affected by the impetus for the third wave of democratization embodying the principles of liberal democracy (Doorenspleet 2000) or at least what Dahl (1971) calls “polyarchy”—a concept of modern democracy (Dahl 1992) whereby the three conditions of competition, inclusiveness and civil liberties are sufficiently met—which the model of ‘good governance’ promises or at least undertakes to achieve?

Kinds of Democracy, Characteristics and Features

“Democracy, as we know it, is liberal democracy, a system based on a series of institutional arrangements conducive to the creation and preservation of representative government” (Armory & Schamis 2005). These arrangements take the form of separation of powers, forwarding the doctrine that “the rights of citizens are best protected by a constitutional state whose power is limited—that is, legally circumscribed and divided” (Armory & Schamis 2005).

Doorenspleet (2000) observes that Huntington’s classification of democracy is problematic, as it focuses primarily on Dahl’s element of competition, or the establishment of institutional opportunity mechanisms for contestation in leadership, and ignores the factor of the inclusiveness disparity in the allowed participation of the people in the elections. As such, Doorenspleet (2000) sees the need for reclassification of democratic systems into two kinds: a liberal democracy possessing “meaningful and extensive competition, sufficiently inclusive suffrage in national elections, and a high level of civil and political liberties,” and a minimal democracy which has both the conditions of competition and inclusiveness but absent of a high degree of respect for civil and political liberties. States lacking in any or both of the first two foundations are authoritarian regimes.

Diamond (1996) terms the minimalist conceptions of democracy as electoral democracy—in contrast to liberal democracy—that recognizes the requisite of basic degree of civil freedom as the virtue of participation. But again, despite such recognition, the same has not been ordinarily considered in the measurement of democracy. In the same extent that Dahl (1971) categorizes inclusive states lacking in meaningful competition as inclusive hegemonies, Diamond (1996) forwards the concept of psedodemocracies which fail to provide a fair avenue of contestation.

O’Donnell (1994) makes a distinction between his delegative democracy and a representative one, asserting that “it is more democratic but less liberal” than the latter. According to him, the former rests on the principle that whoever wins the presidential election is entitled to govern as the elected leader deems fit, limited only by the prevailing power relations and the term of office; it is a strong majoritarian and individualistic regime, an almost complete delegation by the electorate of how the country shall be governed by their leader and his or her clique. Accountability to state institutions and the electorate is seen only as an obstruction to the exercise of the president’s duties. Though its strength comes from the full trust given by the majority of the people, who see in their elected president a personification of a total leader tasked to readily remedy the ills of their nation beyond parties and interests, this almost messianic delegation possesses the great danger of the leader concentrating all state powers in his or her office for an authoritarian rule. A representative democracy, on the other hand, “entails accountability” (O’Donnel 1994), where the representative leaders are made accountable for their actions, either vertically through the power of the ballot or horizontally by other state branches and institutions. Though power struggles and compromises beset this kind, such a system provides checks and balance that may limit, if not avoid, the possibility of mistakes and abuse in laying down policies and may ensue mantles of protection against executive abuses.

“As in O’Donnell’s brown areas, Larry Diamond’s multiple types of ambiguous regimes, and Zakaria’s illiberal democracy, these polities both fail to protect individuals’ basic rights and they encourage a rampant centralization of power, a lack of executive accountability, and other forms of unfettered majoritarianism” (Armory & Schamis 2005). Democracy as a political form is asserted to distinguish from such political forms as monarchy and dictatorship. “Within that rubric there exist different systems of democracy: advanced liberal democracy, parliamentary democracy, electoral democracy, socialist democracy” (Ong 2001; see Pailey 2002). Such an approach has the virtue of “disentangl[ing] democratic systems from the actual distribution of democratic values—equality in fundamental rights—that not all people even in advanced liberal democracy enjoy” (Pailey 2002), much less in the so-called bourgeois democracies. As a set of process unevenly realized over time, the concept of the “civil component of citizenship,” as in the justice system, is seen as ineffectual (Holston & Calderia 1998; see Pailey 2002) to rely on for the respect of fundamental freedoms, resulting to a “disjunctive democracy” (Holston & Calderia 1998; see Pailey 2002) which reveals that notions of actual realization of the significance of citizenship is hardly homogeneous in character. The concept of “dialogic democracy” is proposed to provide space to diverse groups “to express identity, community, and social aspiration in the service of imagining and constructing alternative social universes” (Coombe 1998; see see Pailey 2002).

It is interesting to see the results in the Freedom House’s Freedom in the World 2011 Survey which rates 194 countries during 2010 into three categories: free (87 countries or 45%), partly free (60 states or 31%), and not free (47 regimes or 24%). A free country has a “broad scope for open political competition, a climate for respect for civil liberties, significant independent civic life, and independent media.

Conclusion

But what really is the rationale—manifest and underpinning—behind the painstaking and systematic push for democratization by Western industrialized states and lending institutions? Is it out of sympathy so that others may breathe the air of freedom and realize their fundamental rights?

We may be naive if that is the conception. Through democratization and democracy, the imposition of neo-liberal economic policies is empirically certain, which is generally unlikely in authoritarian regimes, as the former inherently in modern history advances unbridled liberalisation as ‘played’ by the market forces. The evidence is real and overwhelming, though often ignored by most scholars, that it is no longer needed to state that said scheme of things greatly benefits capitalist and industrialized countries while developing countries continue to remain stagnant as such.

Chomsky’s striking thoughts sum it up: “Personally, I’m in favour of democracy, which means that the central institutions of society have to be under popular control. Now, under capitalism, we can’t have democracy by definition. Capitalism is a system in which the central institutions of society are in principle under autocratic control. A corporation or an industry is, in political terms, fascist; it has tight control at the top and strict obedience has to be established at every level—there is little bargaining, a little give and take, but the line of authority is perfectly straightforward. Until the major institutions of society are under the popular control of participants and communities, it’s pointless to talk about democracy.”

On October 30, 2009, this counsel, together with clients KABATAAN Party-List Rep. Raymond Palatino and leaders of the College Editors Guild of the Philippines (CEGP), National Union of Students of the Philippines (NUSP), Student Christian Movement of the Philippines (SCMP), Anakbayan, Kabataang Artista Para Sa Tunay Na Kalayaan (Karatula) and first-time registrants and voters, sought redress from the Supreme Court to extend the voter’s registration until January 9, 2010, as mandated by the Voter’s Registration Act of 1996, through the filing of an Urgent Petition for Certiorari and Mandamus with application for preliminary mandatory injunction.

The said petition is brought to the Supreme Court because the Commission on Elections (COMELEC) miserably failed to accommodate around 4 to 5 million first-time registrants and voters in its October 31, 2009 deadline.

The prayer for the declaration of COMELEC’s Resolution No. 8585, which set the October 31, 2009 deadline, as null and void is anchored on two (2) crucial grounds, thus:

First, it is unconstitutional as it is a manifest usurpation of the legislative power of Congress.

I.

THE RESOLUTION NO. 8585 DATED FEBRUARY 12, 2009 IS UNCONSTITUTIONAL AS THE SAME AMENDED SECTION 8 OF THE VOTER’S REGISTRATION ACT OF 1996 ON THE SYSTEM OF CONTINUING REGISTRATION OF VOTERS IN USURPATION OF THE LEGISLATIVE POWER OF CONGRESS.

Second, it is an indubitable violation of the system of continuing registration of voters under The Voter’s Registration Act of 1996 stating in clear and categorical terms that the personal filing of application of registration of voters shall be conducted daily but prohibited only during one hundred twenty (120) days before a regular election and ninety (90) days before a special election, and the assailed Resolution causes the disenfranchisement of millions of first-time youth registrants and voters who cannot be accommodated by COMELEC as of the October 31, 2009 deadline for purposes of the May 10, 2010 elections.

II.

THE RESOLUTION NO. 8585 DATED FEBRUARY 12, 2009 FIXING THE DEADLINE FOR THE FILING OF APPLICATION OF REGISTRATION OF VOTERS ON OCTOBER 31, 2009 VIOLATED SECTION 8 OF THE VOTER’S REGISTRATION ACT OF 1996 PRESCRIBING THAT THE FILING OF APPLICATION OF REGISTRATION OF VOTERS SHALL BE CONDUCTED DAILY BUT PROHIBITED DURING ONE HUNDRED TWENTY (120) DAYS BEFORE A REGULAR ELECTION, AS OCTOBER 31, 2009 IS SEVENTY (70) DAYS SHORT OF THAT PRESCRIBED BY SAID STATUTE, THEREBY CAUSING THE DISENFRANCHISEMENT OF MILLIONS OF FIRST-TIME REGISTRANTS AND VOTERS THAT CANNOT BE ACCOMMODATED BY RESPONDENT COMELEC AS OF OCTOBER 31, 2009 FOR PURPOSES OF THE MAY 10, 2010 ELECTIONS.

The start of the 120-day prohibitive period before the May 10, 2010 elections is on January 10, 2010. Thus, the deadline of application of registration of voters should be on January 9, 2010, not on October 31, 2009 which is seventy (70) days earlier than is prescribed by the statute.

Click the link below to see the full text of our petition, thanks:

http://kabataanpartylist.com/blog/urgent-petition-for-certiorari-and-mandamus-with-application-for-pleminary-mandatory-injunction/

And then the whole of November 2009 went by. This counsel has been updated of the significant developments of our petition in the Supreme Court. Thanks to good friends.

And on December 15, 2009, ten days before Christmas, the Supreme Court en banc promulgated its decision on our petition. Lo and behold, the Supreme Court en banc unanimously voted to grant our petition.

The dispositive portion of the Supreme Court decision reads:

“WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void insofar as it set the deadline of voter registration for the May 10, 2010 elections on October 31, 2009. The COMELEC is directed to proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010. This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

(sgd)
CONCHITA CARPIO MORALES
Associate Justice”

Click the link below to see the full text of the Supreme Court decision on our petition, KABATAAN Party-List v. COMELEC [G.R. No 189868, December 15, 2009], thanks:

http://www.scribd.com/doc/24123228/GR189868-Full-Text-of-Supreme-Court-decision-on-voter-registration

That’s it, we have won. The youth have won.

Below is the link of the full text of the National Union of Peoples’ Lawyers’ (NUPL) petition in the Supreme Court to declare Proclamation No. 1959 as unconstitutional and void.

On December 4, 2009, President Gloria Macapagal-Arroyo issued Proclamation No. 1959 proclaiming a state of martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao, except in areas controlled by the Moro Islamic Liberation Front.

On December 7, 2009, NUPL Secretary General Neri Javier Colmenares, Bayan Muna Rep. Satur C. Ocampo, Gabriela Women’s Party Rep. Liza L. Maza, Atty. Julius Garcia Matibag, Atty. Jobert Ilarde Pahilga, Atty. Ephraim B. Cortez, Atty. Voltaire B. Africa, Bagong Alyansang Makabayan (Bayan) Secretary General Renato M. Reyes Jr., and Anthony Ian Cruz filed a

‘Very Urgent Petition for Certiorari and Prohibition with very urgent application for temporary restraining order and/or preliminary injunction’

in the Supreme Court against President Gloria Macapagal Arroyo, Executive Secretary Eduardo R. Ermita, AFP Chief of Staff Victor S. Ibrado, PNP Director General Jesus A. Verzosa, DOJ Secretary Agnes VST Devanadera, and AFP Eastern Mindanao Command Chief Lt. Gen. Raymundo B. Ferrer.

Click the link below, thanks.

http://tonyocruz.com/?p=2719

‘Martial law and suspension of writ privilege’:
No sufficient factual basis, patently illegal, a brazen abuse of president’s power

National Union of Peoples’ Lawyers to file Petition in Supreme Court on Monday

“President Gloria Macapagal-Arroyo has gone berserk.”

This is the reaction of human rights law group National Union of Peoples’ Lawyers (NUPL) on the president’s issuance of Proclamation No. 1959 proclaiming a state of martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao.

It is elementary in political law that such declaration and suspension may be made only ‘in case of invasion or rebellion’ and only ‘when the public safety requires it,’ under Article VII, Section 18 of the 1987 Philippine Constitution.

The proclamation’s third whereas clause merely invokes an element of rebellion of “depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

The proclamation’s fourth whereas clause simply says, “WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety.”

That is all there is to it. The proclamation did not even bother to state the particulars about the identity, extent and purpose or purposes of these ‘heavily armed groups’. How could we ascertain if the president is indeed telling us the truth?

And even assuming that the president is telling us the truth this time, the ‘presence’ of heavily armed groups in the area does not necessarily mean that there is already rebellion.

The gravamen of the felony of rebellion is the armed public uprising against the government, as clearly defined in Article 134 of the Revised Penal Code, “Rebellion or insurrection; How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

More importantly, the powers and prerogatives of the president as the chief executive or of the legislature have never been deprived to them since the Ampatuan town massacre happened. Thus, there is no rebellion to speak of. In fact, the president has already invoked and exercised as commander-in-chief her ‘calling out power’ after the Ampatuan town massacre when the president has called out the armed forces to prevent or suppress lawless violence in the province.

The ‘calling out power’ is entirely different from the president’s ‘powers to declare martial law and suspend the privilege of the writ of habeas corpus ’.

There has never been such deprivation of powers or prerogatives of the chief executive or the legislature. The president had even time to file her certificate of candidacy to run as member of the House of Representatives in next year’s elections. So where did Malacañang get the idea of such deprivation of powers or prerogatives?

Not only does the president have to prove that rebellion indeed exists, she likewise has to prove that ‘public safety requires’ the declaration of martial law and the suspension of the privilege of the writ of habeas corpus .

Public safety in the area can be ensured even without such declaration and suspension. The president’s exercise of her ‘calling out power’ is more than enough to prevent or suppress any lawless violence or even a supposed rebellion, if any. There is no need for the president to invoke and exercise her highest and extraordinary powers: the ‘martial law power’ and the ‘power to suspend the privilege of the writ of habeas corpus ’.

Worse, the text of Proclamation No. 1959 is clearly bereft of any sufficient factual basis for such declaration and suspension. This is an unequivocal and brazen abuse of the president’s powers under the Constitution, plain and simple. Hence, it is very obvious that Malacañang’s ‘factual basis’ is not true at all. The president is testing the outer limits of the Constitution; the president is playing fire with fundamental freedoms by placing the military above civilian authorities.

We remind the president and state security forces that a state of martial law does not suspend the operation of the Constitution. Thus, warrantless arrests of any person must still be through a lawful cause. And given the record of the military in human rights abuses, we must ensure that no torture or cruel or degrading treatment will be inflicted against anyone that may be arrested.

A person may be detained for a period of three (3) days without even being charged due to the suspension of the privilege of the writ of habeas corpus .

The president’s exercise of the ‘martial law and suspension of writ privilege powers’ is a patent indication that the president is a megalomaniac, a person obsessed with wealth and power. As the president’s term and immunity from suit shall expire at noon of June 30, 2010 and plunder cases and human rights abuses shall certainly be immediately filed against her, it is not impossible for her to think about placing the entire country under martial law to perpetuate herself in power and avoid punishment for her crimes.

If she desires to be another Marcos, she will fail. The people will ensure it.

This coming Monday, we shall immediately file a petition before the Supreme Court to question Malacañang’s sufficiency of the factual basis of the proclamation of martial law and suspension of the privilege of the writ of habeas corpus .

Atty. Julius Garcia Matibag
National Union of Peoples’ Lawyers

The Philippine National Police has stated that it has no suspects yet in the Ampatuan massacre though it considers the motive behind the mass murder as “political”. Justice Secretary Agnes Devenadera has likewise been declaring in the media that no suspects have been officially named and arrested as the authorities are still conducting their investigation on the massacre which so far has claimed the lives of 57 people, 22 females and 35 males. The innocent victims include 25 journalists so far and two lawyers.

Malacanañg officials have been saying that “due process” must be observed in the apprehension of the perpetrators, hence not a single arrest has been made.

But are the authorities correct in invoking “due process”? Is the PNP correct in saying that witnesses must first execute affidavits before anyone can be arrested? Is Justice Secretary Devenadera correct in her declaration that investigation must be conducted first before anyone can be arrested?

All these excuses are just that – pure excuses.

In ordering an arrest, you do not need proof beyond reasonable doubt. Such quantum of evidence is needed only during the trial to ensure the conviction of the accused. We are not yet at the trial stage in the Ampatuan massacre; we are still in the stage of apprehension of the culprits.

In ordering an arrest, all you need is probable cause. It simply means that a crime has been committed and the person to be arrested has probably committed the same. And a warrant of arrest may even be dispensed with.

There are instances where an arrest without a warrant is lawful. The wisdom behind this rule is for the immediate apprehension of criminals because the issuance of a warrant of arrest takes time.

Only judges can issue a warrant of arrest. Prior to such issuance, a complaint has to be filed first before a public prosecutor who shall conduct a preliminary investigation, which shall take time. And only if the investigating prosecutor finds probable cause will he issue a Resolution, which has to be approved by the city or provincial prosecutor, as the case may be. After such approval, the investigating prosecutor shall file an Information in court charging the accused. The Information shall be raffled to determine which sala shall take cognizance thereof. Upon receipt of the Information by the judge, he shall conduct a preliminary examination to determine whether probable cause exists for the issuance of a warrant of arrest. Only then that a warrant of arrest may be issued.

Thus, due to the long time needed before a warrant of arrest may be issued, instances of lawful warrantless arrest have been clearly and categorically enumerated under the Rules of Criminal Procedure.

What are these instances?

Rule 113 – Arrest

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In the application of Rule 113, Section 5 (b), the term “personal knowledge” therein should not be strictly construed.

“Personal knowledge” of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be based upon “probable cause” which means an “actual belief or reasonable grounds of suspicion.” The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.”

In the Ampatuan massacre, there are reasonable grounds of suspicion that the Ampatuans, particularly Andal Ampatuan Jr., are probably guilty of committing such gruesome act of mass murder, thus:

(1) Ampatuan Jr. has been positively identified by witnesses and wife of Vice Mayor Ismael Mangudadatu as the leader of the 100 armed men. This information was directly relayed to Vice Mayor Mangudadatu by his wife through cellphone immediately when their convoy was forced to stop.

(2) The backhoe used by the killers in the digging of the graves is owned by the province of Maguindanao, as such is clearly printed on said equipment. The governor of Maguindano is Andal Ampatuan Sr.

(3) The victims were murdered while they were on their way to the Comelec office to file the certificate of candidacy of Vice Mayor Mangudadatu as Maguindanao governor. He will challenge Ampatuan Jr. for the said post as it is already the last term of Ampatuan Sr. as Maguindanao governor.

(4) Chief Inspector Zukarno Adil Dicay, Maguindanao provincial director, was seen by witnesses as among the armed men led by Ampatuan Jr. Thus, C/Insp. Dicay was relieved of his post. As C/Insp. Dicay has direct and personal knowledge of the massacre, he saw the killers while actually committing the massacre in his presence.

(5) The Ampatuans have absolute control over the province of Maguindanao and they even have a private army.

(6) The Ampatuans, particularly Ampatuan Jr., are completely silent about the imputations against them as the mastermind behind the massacre.

These circumstances are enough to establish probable cause for the immediate lawful warrantless arrest of Ampatuan Jr., C/Insp. Dicay and the members of the Ampatuan private army.

The reason why not a single arrest has been made so far? Malacañang is afraid that the Ampatuans might disclose what really happened during the 2004 and 2007 elections in the counting of votes in Maguindanao. Thus, the negotiation between Sec. Jesus Dureza and the Ampatuans for the former’s request for “cooperation” from the latter in the investigation.

Imagine, a government official requesting for “cooperation” from the Ampatuans. Secretary Dureza is even acting as if he were lawyering for the Ampatuans.

Whether the Ampatuans would cooperate or not, that is their problem. It should not be Malacañang’s problem.

Authorities should apply the full force of the law if the Ampatuans are not willing to cooperate. If the Ampatuans resist the arrest and the confiscation of their firearms and the dismantling of their private army, authorities should simply apply the full force of the law, plain and simple.

If the Ampatuans fire upon the authorities in the course of these actions, authorities should return the favor to the Ampatuans, plain and simple. The Philippine National Police and the Armed Forces of the Philippines have more than enough manpower and firepower to assert the law in Manguindanao and force Ampatuan Jr. et al. inside prison cells.

Anything less than these courses of actions is injustice to the victims and their families, plain and simple.

NB. First posted on Facebook on November 25, Wednesday.

Philippines a dangerous country for lawyers
Law group strongly condemns killing of its two lawyer-members

The National Union of Peoples’ Lawyers (NUPL) condemns in the strongest possible terms the horrible act of brutal killings of innocent civilians including its two lawyer-members, Attys. Concepcion Brizuela and Cynthia Oquendo, and scores of women and journalists in Maguindanao yesterday.

Penal books are not enough to depict the horrifying mass slaughter of innocent civilians, much less the state of mental perversity of their executioners in the commission of such a gruesome act.

Lawyers are essential agents of the administration of justice, and journalists are an institution in a civilized society. If lawyers and journalists are brutally murdered while in the performance of their duties, and in broad daylight at that, democracy is dead, plain and simple.

Malacañang must see to it that it knows how to accord justice to the hapless victims, especially in this case where military reports disclosed that the mastermind is its closest political ally in Mindanao, the Ampatuans. All government resources must be brought to bear on the Ampatuans. Otherwise, Malacañang itself would tolerate lawlessness and violence. The private army of the Ampatuans must be instantly disarmed and placed under immediate custody and investigation, and all their firearm licenses immediately revoked.

Malacañang’s tolerance of warlords greatly contributes to the persistence of the culture of impunity in our society. Since 2001 and prior to the Maguindanao massacre, 22 lawyers and 15 judges in the country have already been murdered and not a soul was put in prison by the authorities, and this has earned the present administration the dubious distinction of having the most number of lawyers and judges that were killed in an administration.

These extra-judicial killings of lawyers and journalists must be put to an end. We demand in the strongest possible manner that justice be accorded to the innocent victims, particularly to our compañeras, Attys. Brizuela and Oquendo. We demand justice, no more, no less.

Atty. Julius Garcia Matibag
0927.9293089

NB. First posted on Facebook on November 24, Tuesday.

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