Sei sulla pagina 1di 85

[G.R. No. 167614. March 24, 2009.] ANTONIO M. SERRANO, petitioner, vs. GALLANT MARITIME SERVICES, INC.

and MARLOW NAVIGATION CO., INC., respondents.

DECISION

AUSTRIA-MARTINEZ, J :
p

For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They have woven together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link between cultures, societies and economies. Yet,

only recently have we begun to understand not only how much international migration impacts development, but how smart public policies can magnify this effect.
TacESD

United Nations Secretary-General Ban Ki-Moon Global Forum on Migration and Development Brussels, July 10, 2007
1

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042, 2 to wit:
Sec. 10.Money Claims. . . . In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. xxx xxx xxx (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract "or for three months for every year of the unexpired term, whichever is less" (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process. By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8, 2004 Decision 3and April 1, 2005 Resolution 4 of the Court of Appeals (CA), which applied the subject clause, entreating this Court to declare the subject clause unconstitutional. Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas Employment Administration (POEA)-approved Contract of Employment with the following terms and conditions:
Duration of contract12 months PositionChief Officer

Basic monthly salaryUS$1,400.00 Hours of work48.0 hours per week OvertimeUS$700.00 per month Vacation leave with pay7.00 days per month
5

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief Officer by the end of April 1998. 6 Respondents did not deliver on their promise to make petitioner Chief Officer. 7 Hence, petitioner refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998. 8
DHAcET

Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days. Petitioner filed with the Labor Arbiter (LA) a Complaint 9 against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down as follows:
May 27/31, 1998 (5 days) incl. Leave payUS$413.90 June 01/30, 19982,590.00 July 01/31, 19982,590.00 August 01/31, 19982,590.00 Sept. 01/30, 19982,590.00 Oct. 01/31, 19982,590.00 Nov. 01/30, 19982,590.00 Dec. 01/31, 19982,590.00 Jan. 01/31, 19992,590.00 Feb. 01/28, 19992,590.00 Mar. 1/19, 1999 (19 days) incl. leave pay1,640.00 25,382.23 Amount adjusted to chief mate's salary (March 19/31, 1998 to April 1/30, 1998) +1,060.50
10

TOTAL CLAIMUS$26,442.73 =============

11

as well as moral and exemplary damages and attorney's fees.

SIDTCa

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him monetary benefits, to wit:
WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant (petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of EIGHT THOUSAND

SEVEN HUNDRED SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainant's salary for three (3) months of the unexpired portion of the aforesaid contract of employment.
The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00), 12 representing the complainant's claim for a salary differential. In addition, the respondents are hereby ordered to pay the complainant, jointly and severally, in Philippine Currency, at the exchange rate prevailing at the time of payment, the complainant's (petitioner's) claim for attorney's fees equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee under this Decision. The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit. All other claims are hereby DISMISSED. SO ORDERED.
13

(Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of three months only rather than the entire unexpired portion of nine months and 23 days of petitioner's employment contract applying the subject clause. However, the LA applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per month." 14 Respondents appealed 15 to the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was illegally dismissed.
ESacHC

Petitioner also appealed 16 to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court inTriple Integrated Services, Inc. v. National Labor Relations Commission 17 that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts. 18 In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment the following: 1.Three (3) months salary $1,400 x 3US$4,200.00

2.Salary differential45.00 US$4,245.00 3.10% Attorney's fees424.50 TOTALUS$4,669.50 ========== The other findings are affirmed. SO ORDERED.
19

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide for the award of overtime pay, which should be proven to have been actually performed, and for vacation leave pay." 20 Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the subject clause. 21 The NLRC denied the motion. 22 Petitioner filed a Petition for Certiorari 23 with the CA, reiterating the constitutional challenge against the subject clause. 24 After initially dismissing the petition on a technicality, the CA eventually gave due course to it, as directed by this Court in its Resolution dated August 7, 2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner. In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner. 25 His Motion for Reconsideration the following grounds:
26

having been denied by the CA,


I

27

petitioner brings his cause to this Court on

The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the unexpired portion of his contract of employment instead of limiting it to three (3) months. II In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to discharge its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme Court, particularly, the constitutional issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and arbitrarily limits payment of the award for back wages of overseas workers to three (3) months.
HETDAa

III

Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding from petitioner's award the overtime pay and vacation pay provided in his contract since under the contract they form part of his salary. 28

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he intends to make use of the monetary award for his medical treatment and medication. 29 Required to comment, counsel for petitioner filed a motion, urging the court to allow partial execution of the undisputed monetary award and, at the same time, praying that the constitutional question be resolved. 30 Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the petition mindful of the extreme importance of the constitutional question raised therein.

On the first and second issues


The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal. Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of US$4,200.00. Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment contract, computed at the monthly rate of US$2,590.00. 31
AcTHCE

The Arguments of Petitioner Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed salary package. 32 It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the two groups; 33 and that it defeats Section 18, 34 Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally or overseas. 35 Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of affected OFWs. 36 Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose but to benefit local placement agencies. He marks the statement made by the Solicitor General in his Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their

obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to

promote their continued helpful contribution in deploying Filipino migrant workers, liability for money claims was reduced under Section 10 of R.A. No. 8042. 37 (Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better off than local employers because in cases involving the illegal dismissal of employees, foreign employers are liable for salaries covering a maximum of only three months of the unexpired employment contract while local employers are liable for the full lump-sum salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the amount of backwages they have to give their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers the maximum of three (3) months unpaid salaries notwithstanding the unexpired term of the contract that can be more than three (3) months. 38

Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments he is entitled to under his fixed-period employment contract. 39 The Arguments of Respondents In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity, which was when he filed an appeal before the NLRC. 40
cTACIa

The Arguments of the Solicitor General The Solicitor General (OSG) 41 points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon by the parties. 42 Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment, such that their rights to monetary benefits must necessarily be treated differently. The OSG enumerates the essential elements that distinguish OFWs from local workers: first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v. National Labor Relations Commission 43 and Millares v. National Labor Relations Commission, 44 OFWs are contractual employees who can never acquire regular employment status, unlike local workers who are or can become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the differentiated treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision does not violate the equal protection clause nor Section 18, Article II of the Constitution. 45 Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate the solidary liability of placement agencies for this "redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions." 46 The Court's Ruling

The Court sustains petitioner on the first and second issues. When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case or controversy involving a conflict of rights susceptible of judicial determination; 47 (2) that the constitutional question is raised by a proper party 48 and at the earliest opportunity; 49 and (3) that the constitutional question is the very lis mota of the case, 50 otherwise the Court will dismiss the case or decide the same on some other ground. 51
DICcTa

Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally aggrieved that the labor tribunals and the CA computed his monetary award based on the salary period of three months only as provided under the subject clause. The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the pleadings before a competent court, such that, if the issue is not raised in the pleadings before that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be considered on appeal. 52 Records disclose that the issue on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial Reconsideration with said labor tribunal, 53 and reiterated in his Petition for Certiorari before the CA. 54Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial function its function in the present case is limited to determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the law itself; 55 thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other hand, is vested with the power of judicial review or the power to declare unconstitutional a law or a provision thereof, such as the subject clause. 56 Petitioner's interposition of the constitutional issue before the CA was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its decision.

The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his 12month employment contract, and not just for a period of three months, strikes at the very core of the subject clause. Thus, the stage is all set for the determination of the constitutionality of the subject clause.

Does the subject clause violate Section 10, Article III of the Constitution on non-impairment of contracts?
The answer is in the negative. Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive 57 is not tenable.
ETAICc

Section 10, Article III of the Constitution provides:


No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation, 58 and cannot affect acts or contracts already perfected; 59 however, as to laws already in existence, their provisions are read into contracts and deemed a part thereof. 60 Thus, the non-impairment

clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto. As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042. But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed. 61 Police power legislations adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare. 62

Does the subject clause violate Section 1, Article III of the Constitution, and Section 18, Article II and Section 3, Article XIII on labor as a protected sector?
The answer is in the affirmative. Section 1, Article III of the Constitution guarantees:
No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the law.

Section 18, 63 Article II and Section 3, 64 Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare. To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like circumstances. 65
AECacT

Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the class. 66 There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest; 67 b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest; 68 and c) strict judicial scrutiny 69 in which a legislative classification which impermissibly interferes with the exercise of a fundamental right 70 or operates to the peculiar disadvantage of a suspect class 71 is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. 72

Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications race 74 or gender 75 but not when the classification is drawn along income categories. 76

73

based on

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, 77 the constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the rank-and-file employees of other GFIs had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a suspect classification based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial philosophy, to wit:
aHDTAI

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of

our decisions. We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others. xxx xxx xxx Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of effective judicial intervention. Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in "all phases of national development", further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality. . . . [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.

Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.
TDcHCa

xxx xxx xxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the

perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call

for the abdication of this Court's solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor. xxx xxx xxx In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status.It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, lowsalaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank possessing higher and better education and opportunities for career advancement are given higher compensation packages to entice them to stay. Considering that majority, if not all, the

rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they and not the officers who have the real economic and financial need for the adjustment. This is in accord with the policy counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. (Emphasis supplied)

of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all." Any act of Congress that runs

Imbued with the same sense of "obligation to afford protection to labor", the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs. Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts ofone year or more; Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis--vis local workers with fixed-period employment;
cITCAa

OFWs with employment contracts of less than one year vis--vis OFWs with employment contracts of one year or more As pointed out by petitioner, 78 it was in Marsaman Manning Agency, Inc. v. National Labor Relations Commission 79(Second Division, 1999) that the Court laid down the following rules on the application of the periods prescribed under Section 10 (5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months' salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries . . . for three months". To follow petitioners' thinking that private respondent is entitled to three (3) months salary

only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the law-making body is presumed to know the meaning of the words employed in the statute and to have used them advisedly. Ut res magis valeat quam pereat. 80(Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded his salaries for the remaining 8 months and 6 days of his contract. Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10 (5). One was Asian Center for Career and Employment System and Services v. National Labor Relations Commission (Second Division, October 1998), 81 which involved an OFW who was awarded a two-year employment contract, but was dismissed after working for one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months' salary, this being the lesser value, to wit:
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.
SATDEI

In the case at bar, the unexpired portion of private respondent's employment contract is eight (8) months. Private respondent should therefore be paid his basic salary corresponding to three (3) months or a total of SR3,600. 82

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third Division, December 1998), 83 which involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed for another 12 months. After serving for one year and sevenand-a-half months, respondent Osdana was illegally dismissed, and the Court awarded her salaries for the entire unexpired portion of four and one-half months of her contract. The Marsaman interpretation of Section 10 (5) has since been adopted in the following cases:
Case TitleContractPeriod of UnexpiredPeriod Applied PeriodServicePeriodin the Computation of the Monetary Award

Skippers v.6 months2 months4 months4 months Maguad 84 Bahia9 months8 months4 months4 months Shipping v. Reynaldo Chua 85 Centennial9 months4 months5 months5 months Transmarine v. dela Cruz l 86 Talidano v.12 months3 months9 months3 months Falcon 87

Univan v.12 months3 months9 months3 months CA 88 Oriental v.12 monthsmore than 210 months3 months CA 89 months PCL v.12 monthsmore than 2more or less 93 months NLRC 90 monthsmonths Olarte v.12 months21 days11 months and3 months Nayona 91 9 days JSS v.12 months16 days11 months and3 months Ferrer 92 24 days Pentagon v.12 months9 months and2 months and2 months and Adelantar 93 7 days23 days23 days Phil. Employ12 months10 months2 monthsUnexpired v. Paramio,portion et al. 94
ECDHIc

Flourish2 years26 days23 months and6 months or Maritime v.4 days3 months for Almanzor 95 each year of
contract

Athenna1 year, 101 month1 year, 96 months or Manpower v.monthsmonths and3 months for Villanos 96 and 28 days28 dayseach year of
contract

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category includes OFWs with fixed-period employment contracts of less than one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of their contract. The second category consists of OFWs with fixed-period employment contracts of one year or more; in case of illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired portion of their contracts.
IaSCTE

The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent OFW worked for only 2 months out of his 6-month contract, but was awarded his salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the unexpired portion of their contracts. Even the OFWs involved in Talidanoand Univan who had worked for a longer period of 3 months out of their 12-month contracts before being illegally dismissed were awarded their salaries for only 3 months. To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate of US$1,000.00. Both commenced work on the same day and under the same employer, and were illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser amount. The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, 1995, 97 illegally dismissed OFWs, no matter how long the period of their employment contracts, were entitled to their salaries for the entire unexpired portions of their contracts. The matrix below speaks for itself:

Case TitleContractPeriod of UnexpiredPeriod Applied in PeriodServicePeriodthe Computation of the Monetary Award

ATCI v.2 years2 months22 months22 months CA, et al. 98 Phil.2 years7 days23 months and23 months and Integrated v.23 days23 days NLRC 99 JGB v.2 years9 months15 months15 months NLC 100 Agoy v.2 years2 months22 months22 months NLRC 101 EDI v.2 years5 months19 months19 months NLRC, et al. 102 Barros v.12 months4 months8 months8 months NLRC, et al. 103 Philippine12 months6 months and5 months and5 months and Transmarine v.22 days18 days18 days Carilla 104

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts.
TaDSHC

The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired contracts fall short of one year. Among OFWs With Employment Contracts of More Than One Year Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the accuracy of the Marsaman interpretation. The Court notes that the subject clause "or for three (3) months for every year of the unexpired term, whichever is less" contains the qualifying phrases "every year" and "unexpired term". By its ordinary meaning, the word "term" means a limited or definite extent of time. 105 Corollarily, that "every year" is but part of an "unexpired term" is significant in many ways: first, the unexpired term must be at least one year, for if it were any shorter, there would be no occasion for such unexpired term to be measured by every year; and second, the original term must be more than one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the determination of when the subject clause "for three (3) months for every year of the unexpired term, whichever is less" shall apply is not the length of the original contract period as held in Marsaman, 106but the length of the unexpired portion of the

contract period the subject clause applies in cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that the original contract period be more than one year.
EDCIcH

Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only. To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be entitled, not to US$12,000.00 or the latter's total salaries for the 12 months unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion. OFWs vis--vis Local Workers With Fixed-Period Employment As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally dismissed OFWs was in place. This uniform system was applicable even to local workers with fixedterm employment.107 The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of Commerce (1888), 108 to wit:
Article 299.If the contracts between the merchants and their shop clerks and employees

should have been made of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from the fulfillment of said contract until the termination of the period agreed upon.
Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the provisions contained in the following articles.

In Reyes v. The Compaia Maritima, 109 the Court applied the foregoing provision to determine the liability of a shipping company for the illegal discharge of its managers prior to the expiration of their fixed-term employment. The Court therein held the shipping company liable for the salaries of its managers for the remainder of their fixed-term employment.
cAEaSC

There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which provides:
Article 605.If the contracts of the captain and members of the crew with the agent should be for a definite period or voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by malice or manifest or proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie, 110 in which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees for the entire unexpired portion of their employment contracts.

While Article 605 has remained good law up to the present, replaced by Art. 1586 of the Civil Code of 1889, to wit:

111

Article 299 of the Code of Commerce was

Article 1586.Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan 112 read the disjunctive "or" in Article 1586 as a conjunctive "and" so as to apply the provision to local workers who are employed for a time certain although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel de France Company. 113 And in both Lemoineand Palomar, the Court adopted the general principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to them by the terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v. Gay 114 held:
ITDHcA

The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other employment of the same kind in the same community, for the purpose of reducing the damages resulting from such wrongful discharge. However, while this is the general rule, the burden of showing that he failed to make an effort to secure other employment of a like nature, and that other employment of a like nature was obtainable, is upon the defendant. When an

employee is wrongfully discharged under a contract of employment his prima facie damage is the amount which he would be entitled to had he continued in such employment until the termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.) 115 (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV. 116 Much like Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich, 117 the Court carried over the principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal discharge of a local worker whose fixed-period employment contract was entered into in 1952, when the new Civil Code was already in effect. 118 More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixedterm employment contracts were illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v. Ople, 119involving seafarers who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission, 120 an OFW who was illegally dismissed prior to the expiration of her fixed-period employment contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her contract. The Court arrived at the same ruling in Anderson v. National Labor Relations Commission, 121 which involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on the job the Court awarded him salaries corresponding to 15 months, the unexpired portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission, 122 a Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations Commission, 123 an OFW whose 12-month contract was illegally cut short in the second month was declared entitled to his salaries for the remaining 10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042,

specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment.
DEAaIS

The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.
There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means. What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history. 124 It is akin to the paramount interest of the state 125 for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards, 126 or in maintaining access to information on matters of public concern. 127 In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly serve. The OSG defends the subject clause as a police power measure "designed to protect the employment of Filipino seafarers overseas . . . . By limiting the liability to three months [sic], Filipino seafarers have better chance of getting hired by foreign employers." The limitation also protects the interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in "termination pay". 128 The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to
IaHDcT

promote their continued helpful contribution in deploying Filipino migrant workers, liability for money arereduced under Section 10 of RA 8042.
This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions. 129 (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state interest sought to be served by the subject clause. The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from which the law originated; 130 but the speech makes no reference to the underlying reason for the adoption of the subject clause. That is only natural for none of the 29 provisions in HB 14314 resembles the subject clause. On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:

Sec. 10.Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of the complaint, the claim arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be joint and several. Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment payments, if applicable, to satisfy any such compromise or voluntary settlement shall not be more than two (2) months. Any compromise/voluntary agreement in violation of this paragraph shall be null and void.
TaDAHE

Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the responsible officials to any or all of the following penalties: (1)The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (2)Suspension for not more than ninety (90) days; or (3)Dismissal from the service with disqualification to hold any appointive public office for five (5) years. Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims. A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the transcripts of the "Bicameral Conference Committee (Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However, the Court finds no discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of the subject clause. In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause. Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious.
EScIAa

Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies visa-vistheir foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs.

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

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable right to stave off the dismissal of an employee for just cause owing to the failure to

serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their enforceability. 135 (Emphasis added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every conceivable violation of so broad a concept as social justice for labor. It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action and judicial recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working class. And it was in fact consistent with that constitutional agenda that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then

Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection such as the working class or a section thereof the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny. The view that the concepts of suspect classification and strict judicial scrutiny formulated inCentral Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause. Article XIII, by itself, without the application of the equal protection clause, has no life or force of its own as elucidated in Agabon.
aCTHDA

Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose. 136 The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a better chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings of respondent that would indicate that there is an existing governmental purpose for the subject clause, or even just a pretext of one. The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason that the clause violates not just petitioner's right to equal protection, but also her right to substantive due process under Section 1, 137 Article III of the Constitution. The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042.

On the Third Issue


Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his monetary award, because these are fixed benefits that have been stipulated into his contract. Petitioner is mistaken. The word salaries in Section 10 (5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work "performed" in excess of the regular eight hours, and holiday pay is compensation for any work "performed" on designated rest days and holidays.
SAcCIH

By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela Cruz, 138
However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v. National Labor Relations Commission, to wit: The rendition of overtime work and the submission of sufficient proof that said was actually performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the basis of 30% of the basic monthly salary. In short, the

contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established. In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since the same is given during the actual service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00 per month. No costs.
THacES

SO ORDERED.

Puno, C.J., Ynares-Santiago, Corona, Carpio-Morales, Tinga, Velasco, Jr., Nachura, Leonardo-de Castro and Peralta, JJ.,concur. Quisumbing, J., I join J. Carpio's opinion. Carpio, J., see separate concurring opinion. Chico-Nazario, J., is on leave. Brion, J., see separate concurring opinion.

[G.R. No. 175558. February 8, 2012.] SKIPPERS UNITED PACIFIC, INC. and SKIPPERS MARITIME SERVICES, INC., LTD., petitioners,vs. NATHANIEL DOZA, NAPOLEON DE GRACIA, ISIDRO L. LATA, and CHARLIE APROSTA,respondents.

DECISION

CARPIO, J :
p

The Case This is a Petition for Review under Rule 45 assailing the 5 July 2006 Decision Resolution 2 of the Court of Appeals in CA-G.R. SP No. 88148. 3
1

and 7 November 2006

This arose from consolidated labor case 4 filed by seafarers Napoleon De Gracia (De Gracia), Isidro L. Lata (Lata), Charlie Aprosta (Aprosta), and Nathaniel Doza (Doza) against local manning agency Skippers United Pacific, Inc. and its foreign principal, Skippers Maritime Services, Inc., Ltd. (Skippers) for unremitted home allotment for the month of December 1998, salaries for the unexpired portion of their employment contracts, moral damages, exemplary damages, and attorney's fees. Skippers, on the other hand, answered with a claim for reimbursement of De Gracia, Aprosta and Lata's repatriation expenses, as well as award of moral damages and attorney's fees.

De Gracia, Lata, Aprosta and Doza's (De Gracia, et al.) claims were dismissed by the Labor Arbiter for lack of merit. 5The Labor Arbiter also dismissed Skippers' claims. 6 De Gracia, et al. appealed 7 the Labor Arbiter's decision with the National Labor Relations Commission (NLRC), but the First Division of the NLRC dismissed the appeal for lack of merit.8 Doza, et al.'s Motion for Reconsideration was likewise denied by the NLRC, 9 so they filed a Petition for Certiorari with the Court of Appeals (CA). 10 The CA granted the petition, reversed the Labor Arbiter and NLRC Decisions, and awarded to De Gracia, Lata and Aprosta their unremitted home allotment, three months salary each representing the unexpired portion of their employment contracts and attorney's fees. 11 No award was given to Doza for lack of factual basis. 12 The CA denied Skippers' Motion for Partial Reconsideration. 13 Hence, this Petition. The Facts Skippers United Pacific, Inc. deployed, in behalf of Skippers, De Gracia, Lata, and Aprosta to work on board the vessel MV Wisdom Star, under the following terms and conditions:
Name: Napoleon O. De Gracia Position: 3rd Engineer Contract Duration: 10 months Basic Monthly Salary: US$800.00 Contract Date: 17 July 1998 Name: Isidro L. Lata
ETCcSa

14

Position: 4th Engineer Contract Duration: 12 months Basic Monthly Salary: US$600.00 Contract Date: 17 April 1998 Name: Charlie A. Aprosta Position: Third Officer Contract Duration: 12 months Basic Monthly Salary: US$600.00 Contract Date: 17 April 1998
16 15

Paragraph 2 of all the employment contracts stated that: "The terms and conditions of the Revised Employment Contract Governing the Employment of All Seafarers approved per Department Order No. 33 and Memorandum Circular No. 55, both series of 1996 shall be strictly and faithfully observed." 17 No employment contract was submitted for Nathaniel Doza. De Gracia, et al., claimed that Skippers failed to remit their respective allotments for almost five months, compelling them to air their grievances with the Romanian Seafarers Free Union. 18 On 16 December 1998, ITF Inspector Adrian Mihalcioiu of the Romanian Seafarers Union sent Captain Savvas of Cosmos Shipping a

fax letter, relaying the complaints of his crew, namely: home allotment delay, unpaid salaries (only advances), late provisions, lack of laundry services (only one washing machine), and lack of maintenance of the vessel (perforated and unrepaired deck). 19 To date, however, Skippers only failed to remit the home allotment for the month of December 1998. 20 On 28 January 1999, De Gracia, et al. were unceremoniously discharged from MV Wisdom Stars and immediately repatriated. 21 Upon arrival in the Philippines, De Gracia, et al. filed a complaint for illegal dismissal with the Labor Arbiter on 4 April 1999 and prayed for payment of their home allotment for the month of December 1998, salaries for the unexpired portion of their contracts, moral damages, exemplary damages, and attorney's fees. 22 Skippers, on the other hand, claims that at around 2:00 a.m. on 3 December 1998, De Gracia, smelling strongly of alcohol, went to the cabin of Gabriel Oleszek, Master of MV Wisdom Stars, and was rude, shouting noisily to the master. 23 De Gracia left the master's cabin after a few minutes and was heard shouting very loudly somewhere down the corridors. 24 This incident was evidenced by the Captain's Report sent via telex to Skippers on said date. 25 Skippers also claims that at 12:00 noon on 22 January 1999, four Filipino seafarers, namely Aprosta, De Gracia, Lata and Doza, arrived in the master's cabin and demanded immediate repatriation because they were not satisfied with the ship. 26 De Gracia, et al. threatened that they may become crazy any moment and demanded for all outstanding payments due to them. 27 This is evidenced by a telex of Cosmoship MV Wisdom to Skippers, which however bears conflicting dates of 22 January 1998 and 22 January 1999. 28 Skippers also claims that, due to the disembarkation of De Gracia, et al., 17 other seafarers disembarked under abnormal circumstances. 29 For this reason, it was suggested that Polish seafarers be utilized instead of Filipino seamen. 30 This is again evidenced by a fax of Cosmoship MV Wisdom to Skippers, which bears conflicting dates of 24 January 1998 and 24 January 1999. 31 Skippers, in its Position Paper, admitted non-payment of home allotment for the month of December 1998, but prayed for the offsetting of such amount with the repatriation expenses in the following manner: 32
SeafarerRepatriation ExpenseHome AllotmentBalance De GraciaUS$1,340.00US$900.00US$440.00 AprostaUS$1,340.00US$600.00US$740.00 LataUS$1,340.00US$600.00US$740.00

Since De Gracia, et al., pre-terminated their contracts, Skippers claims they are liable for their repatriation expenses 33in accordance with Section 19 (G) of Philippine Overseas Employment Administration (POEA) Memorandum Circular No. 55, series of 1996 which states:
G.A seaman who requests for early termination of his contract shall be liable for his repatriation cost as well as the transportation cost of his replacement. The employer may, in case of compassionate grounds, assume the transportation cost of the seafarer's replacement.

Skippers also prayed for payment of moral damages and attorney's fees.

34

The Decision of the Labor Arbiter The Labor Arbiter rendered his Decision on 18 February 2002, with its dispositive portion declaring:
WHEREFORE, judgment is hereby rendered dismissing herein action for lack of merit. Respondents' claim for reimbursement of the expenses they incurred in the repatriation of complainant Nathaniel Doza is likewise dismissed.
cDCEHa

SO ORDERED.

35

The Labor Arbiter dismissed De Gracia, et al.'s complaint for illegal dismissal because the seafarers voluntarily pre-terminated their employment contracts by demanding for immediate repatriation due to dissatisfaction with the ship. 36The Labor Arbiter held that such voluntary pre-termination of employment contract is akin to resignation, 37 a form of termination by employee of his employment contract under Article 285 of the Labor Code. The Labor Arbiter gave weight and credibility to the telex of the master of the vessel to Skippers, claiming that De Gracia, et al. demanded for immediate repatriation. 38 Due to the absence of illegal dismissal, De Gracia, et al.'s claim for salaries representing the unexpired portion of their employment contracts was dismissed. 39 The Labor Arbiter also dismissed De Gracia et al.'s claim for home allotment for December 1998. 40 The Labor Arbiter explained that payment for home allotment is "in the nature of extraordinary money where the burden of proof is shifted to the worker who must prove he is entitled to such monetary benefit." 41 Since De Gracia, et al., were not able to prove their entitlement to home allotment, such claim was dismissed. 42 Lastly, Skippers' claim for reimbursement of repatriation expenses was likewise denied, since Article 19 (G) of POEA Memorandum Circular No. 55, Series of 1996 allows the employer, in case the seafarer voluntarily preterminates his contract, to assume the repatriation cost of the seafarer on compassionate grounds. 43 The Decision of the NLRC The NLRC, on 28 October 2002, dismissed De Gracia, et al.'s appeal for lack of merit and affirmed the Labor Arbiter's decision. 44 The NLRC considered De Gracia, et al.'s claim for home allotment for December 1998 unsubstantiated, since home allotment is a benefit which De Gracia, et al., must prove their entitlement to. 45 The NLRC also denied the claim for illegal dismissal because De Gracia, et al., were not able to refute the telex received by Skippers from the vessel's master that De Gracia, et al., voluntarily pre-terminated their contracts and demanded immediate repatriation due to their dissatisfaction with the ship's operations. 46 The Decision of the Court of Appeals The CA, on 5 July 2006, granted De Gracia, et al.'s petition and reversed the decisions of the Labor Arbiter and NLRC, its dispositive portion reading as follows:
WHEREFORE, the instant petition for certiorari is GRANTED. The Resolution dated October 28, 2002 and the Order dated August 31, 2004 rendered by the public respondent NLRC are ANNULLED and SET ASIDE. Let another judgment be entered holding private respondents jointly and severally liable to petitioners for the payment of: 1.Unremitted home allotment pay for the month of December, 1998 or the equivalent thereof in Philippine pesos: a.De Gracia = US$900.00 b.Lata = US$600.00 c.Aprosta = US$600.00 2.Salary for the unexpired portion of the employment contract or for 3 months for every year of the unexpired term, whichever is less, or the equivalent thereof in Philippine pesos: a.De Gracia = US$2,400.00 b.Lata = US$1,800.00

c.Aprosta = US$1,800.00 3.Attorney's fees and litigation expenses equivalent to 10% of the total claims. SO ORDERED.
47

The CA declared the Labor Arbiter and NLRC to have committed grave abuse of discretion when they relied upon the telex message of the captain of the vessel stating that De Gracia, et al., voluntarily pre-terminated their contracts and demanded immediate repatriation. 48 The telex message was "a self-serving document that does not satisfy the requirement of substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify the conclusion that petitioners indeed voluntarily demanded their immediate repatriation." 49 For this reason, the repatriation of De Gracia, et al., prior to the expiration of their contracts showed they were illegally dismissed from employment. 50
DaIACS

In addition, the failure to remit home allotment pay was effectively admitted by Skippers, and prayed to be offset from the repatriation expenses. 51 Since there is no proof that De Gracia, et al., voluntarily preterminated their contracts, the repatriation expenses are for the account of Skippers, and cannot be offset with the home allotment pay for December 1998. 52 No relief was granted to Doza due to lack of factual basis to support his petition. 53 Attorney's fees equivalent to 10% of the total claims was granted since it involved an action for recovery of wages or where the employee was forced to litigate and incur expenses to protect his rights and interest. 54 The Issues Skippers, in its Petition for Review on Certiorari, assigned the following errors in the CA Decision:
a)The Court of Appeals seriously erred in not giving due credence to the master's telex message showing that the respondents voluntarily requested to be repatriated. b)The Court of Appeals seriously erred in finding petitioners liable to pay backwages and the alleged unremitted home allotment pay despite the finding of the Labor Arbiter and the NLRC that the claims are baseless. c)The Court of Appeals seriously erred in awarding attorney's fees in favor of respondents despite its findings that the facts attending in this case do not support the claim for moral and exemplary damages. 55

The Ruling of this Court We deny the petition and affirm the CA Decision, but modify the award. For a worker's dismissal to be considered valid, it must comply with both procedural and substantive due process. The legality of the manner of dismissal constitutes procedural due process, while the legality of the act of dismissal constitutes substantive due process. 56 Procedural due process in dismissal cases consists of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be effected: (1) the first notice apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the second notice informs the employee of the employer's decision to dismiss him. Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an opportunity to be heard. It is not necessary that an actual hearing be conducted. 57

Substantive due process, on the other hand, requires that dismissal by the employer be made under a just or authorized cause under Articles 282 to 284 of the Labor Code. In this case, there was no written notice furnished to De Gracia, et al., regarding the cause of their dismissal. Cosmoship furnished a written notice (telex) to Skippers, the local manning agency, claiming that De Gracia, et al., were repatriated because the latter voluntarily pre-terminated their contracts. This telex was given credibility and weight by the Labor Arbiter and NLRC in deciding that there was pre-termination of the employment contract "akin to resignation" and no illegal dismissal. However, as correctly ruled by the CA, the telex message is "a biased and self-serving document that does not satisfy the requirement of substantial evidence." If, indeed, De Gracia, et al., voluntarily pre-terminated their contracts, then De Gracia, et al., should have submitted their written resignations. Article 285 of the Labor Code recognizes termination by the employee of the employment contract by "serving written notice on the employer at least one (1) month in advance." Given that provision, the law contemplates the requirement of a written notice of resignation. In the absence of a written resignation, it is safe to presume that the employer terminated the seafarers. In addition, the telex message relied upon by the Labor Arbiter and NLRC bore conflicting dates of 22 January 1998 and 22 January 1999, giving doubt to the veracity and authenticity of the document. In 22 January 1998, De Gracia, et al., were not even employed yet by the foreign principal. For these reasons, the dismissal of De Gracia, et al., was illegal. On the issue of home allotment pay, Skippers effectively admitted non-remittance of home allotment pay for the month of December 1998 in its Position Paper. Skippers sought the repatriation expenses to be offset with the home allotment pay. However, since De Gracia, et al.'s dismissal was illegal, their repatriation expenses were for the account of Skippers and could not be offset with the home allotment pay. Contrary to the claim of the Labor Arbiter and NLRC that the home allotment pay is in "the nature of extraordinary money where the burden of proof is shifted to the worker who must prove he is entitled to such monetary benefit," Section 8 of POEA Memorandum Circular No. 55, series of 1996, states that the allotment actually constitutes at least eighty percent (80%) of the seafarer's salary:
ScCDET

The seafarer is required to make an allotment which is payable once a month to his designated allottee in the Philippines through any authorized Philippine bank. The master/employer/agency shall provide the seafarer with facilities to do so at no expense to the seafarer. The allotment shall be at least eighty percent (80%)of the seafarer's monthly basic salary including backwages, if any. (Emphasis supplied)

Paragraph 2 of the employment contracts of De Gracia, Lata and Aprosta incorporated the provisions of above Memorandum Circular No. 55, series of 1996, in the employment contracts. Since said memorandum states that home allotment of seafarers actually constitutes at least eighty percent (80%) of their salary, home allotment pay is not in the nature of an extraordinary money or benefit, but should actually be considered as salary which should be paid for services rendered. For this reason, such non-remittance of home allotment pay should be considered as unpaid salaries, and Skippers shall be liable to pay the home allotment pay of De Gracia, et al., for the month of December 1998. Damages As admitted by Skippers in its Position Paper, the home allotment pay for December 1998 due to De Gracia, Lata and Aprosta is:
SeafarerHome Allotment Pay
De GraciaUS$900.00 AprostaUS$600.00

LataUS$600.00

The monthly salary of De Gracia, according to his employment contract, is only US$800.00. However, since Skippers admitted in its Position Paper a higher home allotment pay for De Gracia, we award the higher amount of home allotment pay for De Gracia in the amount of US$900.00. Since the home allotment pay can be considered as unpaid salaries, the peso equivalent of the dollar amount should be computed using the prevailing rate at the time of termination since it was due and demandable to De Gracia, et al., on 28 January 1999. Section 10 of Republic Act No. 8042 (Migrant Workers Act) provides for money claims in cases of unjust termination of employment contracts:
In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

The Migrant Workers Act provides that salaries for the unexpired portion of the employment contract or three (3) months for every year of the unexpired term, whichever is less, shall be awarded to the overseas Filipino worker, in cases of illegal dismissal. However, in 24 March 2009, Serrano v. Gallant Maritime Services and Marlow Navigation Co., Inc., 58 the Court, in an En Banc Decision, declared unconstitutional the clause "or for three months for every year of the unexpired term, whichever is less" and awarded the entire unexpired portion of the employment contract to the overseas Filipino worker. On 8 March 2010, however, Section 7 of Republic Act No. 10022 (RA 10022) amended Section 10 of the Migrant Workers Act, and once again reiterated the provision of awarding the unexpired portion of the employment contract or three (3) months for every year of the unexpired term, whichever is less. Nevertheless, since the termination occurred on January 1999 before the passage of the amendatory RA 10022, we shall apply RA 8042, as unamended, without touching on the constitutionality of Section 7 of RA 10022. The declaration in March 2009 of the unconstitutionality of the clause "or for three months for every year of the unexpired term, whichever is less" in RA 8042 shall be given retroactive effect to the termination that occurred in January 1999 because an unconstitutional clause in the law confers no rights, imposes no duties and affords no protection. The unconstitutional provision is inoperative, as if it was not passed into law at all. 59 As such, we compute the claims as follows:
Seafarer Contract Contract Repatriation Unexpired Monthly Total TermDateDateTermSalaryClaims De Gracia10 months17 Jul. 199828 Jan. 19993 months & US$800US$2933.34 20 days Lata12 months17 Apr. 199828 Jan. 19992 months & US$600US$1600 20 days Aprosta12 months17 Apr. 199828 Jan. 19992 months & US$600US$1600 20 days

Given the above computation, we modify the CA's imposition of award, and grant to De Gracia, et al., salaries representing the unexpired portion of their contracts, instead of salaries for three (3) months. Article 2219 of the Civil Code of the Philippines provides for recovery of moral damages in certain cases:
HTDAac

Art. 2219.Moral damages may be recovered in the following and analogous cases: (1)A criminal offense resulting in physical injuries;

(2)Quasi-delicts causing physical injuries;


(3)Seduction, abduction, rape, or other lascivious acts; (4)Adultery or concubinage; (5)Illegal or arbitrary detention or arrest; (6)Illegal search; (7)Libel, slander or any other form of defamation; (8)Malicious prosecution; (9)Acts mentioned in Article 309; (10)Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.

Article 2229 of the Civil Code, on the other hand, provides for recovery of exemplary damages:
Art. 2229.Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

In this case, we agree with the CA in not awarding moral and exemplary damages for lack of factual basis. Lastly, Article 2208 of the Civil Code provides for recovery of attorney's fees and expenses of litigation:
Art. 2208.In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1)When exemplary damages are awarded; (2)When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3)In criminal cases of malicious prosecution against the plaintiff; (4)In case of a clearly unfounded civil action or proceeding against the plaintiff; (5)Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; (6)In actions for legal support; (7)In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8)In actions for indemnity under workmen's compensation and employer's liability laws; (9)In a separate civil action to recover civil liability arising from a crime; (10)When at least double judicial costs are awarded; (11)In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable.

Article 111 of the Labor Code provides for a maximum award of attorney's fees in cases of recovery of wages:
Art. 111.Attorney's fees. a.In cases of unlawful withholding of wages, the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of wages recovered.
cHaDIA

b.It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney's fees which exceed ten percent of the amount of wages recovered.

Since De Gracia, et al., had to secure the services of the lawyer to recover their unpaid salaries and protect their interest, we agree with the CA's imposition of attorney's fees in the amount of ten percent (10%) of the total claims. WHEREFORE, we AFFIRM the Decision of the Court of Appeals dated 5 July 2006 with MODIFICATION. Petitioners Skippers United Pacific, Inc. and Skippers Maritime Services, Inc., Ltd. are jointly and severally liable for payment of the following: 1)Unremitted home allotment pay for the month of December 1998 in its equivalent rate in Philippine Pesos at the time of termination on 28 January 1999: a.De Gracia = US$900.00 b.Lata = US$600.00 c.Aprosta = US$600.00 2)Salary for the unexpired portion of the employment contract or its current equivalent in Philippine Pesos: a.De Gracia = US$2,933.34 b.Lata = US$1,600.00 c.Aprosta = US$1,600.00 3)Attorney's fees and litigation expenses equivalent to 10% of the total claims. SO ORDERED.

Brion, Perez, Sereno and Reyes, JJ., concur.

[G.R. No. 197528. September 5, 2012.] PERT/CPM MANPOWER EXPONENT CO., INC., petitioner, vs. ARMANDO A. VINUYA, LOUIE M. ORDOVEZ, ARSENIO S. LUMANTA, JR., ROBELITO S. ANIPAN, VIRGILIO R. ALCANTARA, MARINO M. ERA, SANDY O. ENJAMBRE and NOEL T. LADEA, respondents.

DECISION

BRION, J :
p

We resolve the present petition for review on certiorari 1 assailing the decision 2 dated May 9, 2011 and the resolution 3dated June 23, 2011 of the Court of Appeals (CA) in CA-G.R. SP No. 114353. The Antecedents On March 5, 2008, respondents Armando A. Vinuya, Louie M. Ordovez, Arsenio S. Lumanta, Jr., Robelito S. Anipan, Virgilio R. Alcantara, Marino M. Era, Sandy O. Enjambre and Noel T. Ladea (respondents) filed a complaint for illegal dismissal against the petitioner Pert/CPM Manpower Exponent Co., Inc. (agency), and its President Romeo P. Nacino. The respondents alleged that the agency deployed them between March 29, 2007 and May 12, 2007 to work as aluminum fabricator/installer for the agency's principal, Modern Metal Solution LLC/MMS Modern Metal Solution LLC (Modern Metal) in Dubai, United Arab Emirates. The respondents' employment contracts, 4 which were approved by the Philippine Overseas Employment Administration(POEA), provided for a two-year employment, nine hours a day, salary of 1,350 AED with overtime pay, food allowance, free and suitable housing (four to a room), free transportation, free laundry, and free medical and dental services. They each paid a P15,000.00 processing fee. 5 On April 2, 2007, Modern Metal gave the respondents, except Era, appointment letters 6 with terms different from those in the employment contracts which they signed at the agency's office in the Philippines. Under the letters of appointment, their employment was increased to three years at 1,000 to 1,200 AED and food allowance of 200 AED.
CHDAEc

The respondents claimed that they were shocked to find out what their working and living conditions were in Dubai. They were required to work from 6:30 a.m. to 6:30 p.m., with a break of only one hour to one and a half hours. When they rendered overtime work, they were most of the time either underpaid or not paid at all. Their housing accommodations were cramped and were shared with 27 other occupants. The lodging house was in Sharjah, which was far from their jobsite in Dubai, leaving them only three to four hours of sleep a day because of the long hours of travel to and from their place of work; there was no potable water and the air was polluted. When the respondents received their first salaries (at the rates provided in their appointment letters and with deductions for placement fees) and because of their difficult living and working conditions, they called up the agency and complained about their predicament. The agency assured them that their concerns would be promptly addressed, but nothing happened.

On May 5, 2007, Modern Metal required the respondents to sign new employment contracts, 7 except for Era who was made to sign later. The contracts reflected the terms of their appointment letters. Burdened by all the expenses and financial obligations they incurred for their deployment, they were left with no choice but to sign the contracts. They raised the matter with the agency, which again took no action. On August 5, 2007, despondent over their unbearable living and working conditions and by the agency's inaction, the respondents expressed to Modern Metal their desire to resign. Out of fear, as they put it, that Modern Metal would not give them their salaries and release papers, the respondents, except Era, cited personal/family problems for their resignation. 8 Era mentioned the real reason "because I dont (sic) want the company policy" 9 for his resignation.
cHCaIE

It took the agency several weeks to repatriate the respondents to the Philippines. They all returned to Manila in September 2007. Except for Ordovez and Enjambre, all the respondents shouldered their own airfare. For its part, the agency countered that the respondents were not illegally dismissed; they voluntarily resigned from their employment to seek a better paying job. It claimed that the respondents, while still working for Modern Metal, applied with another company which offered them a higher pay. Unfortunately, their supposed employment failed to materialize and they had to go home because they had already resigned from Modern Metal. The agency further alleged that the respondents even voluntarily signed affidavits of quitclaim and release after they resigned. It thus argued that their claim for benefits, under Section 10 of Republic Act No. (R.A.) 8042, damages and attorney's fees is unfounded. The Compulsory Arbitration Rulings On April 30, 2008, Labor Arbiter Ligerio V. Ancheta rendered a decision 10 dismissing the complaint, finding that the respondents voluntarily resigned from their jobs. He also found that four of them Alcantara, Era, Anipan and Lumanta even executed a compromise agreement (with quitclaim and release) before the POEA. He considered the POEA recourse a case of forum shopping. The respondents appealed to the National Labor Relations Commission (NLRC). They argued that the labor arbiter committed serious errors in (1) admitting in evidence the quitclaims and releases they executed in Dubai, which were mere photocopies of the originals and which failed to explain the circumstances behind their execution; (2) failing to consider that the compromise agreements they signed before the POEA covered only the refund of their airfare and not all their money claims; and (3) ruling that they violated the rule on non-forum shopping.
SHIETa

On May 12, 2009, the NLRC granted the appeal. 11 It ruled that the respondents had been illegally dismissed. It anchored its ruling on the new employment contracts they were made to sign in Dubai. It stressed that it is illegal for an employer to require its employees to execute new employment papers, especially those which provide benefits that are inferior to the POEA-approved contracts. The NLRC rejected the quitclaim and release executed by the respondents in Dubai. It believed that the respondents executed the quitclaim documents under duress as they were afraid that they would not be allowed to return to the Philippines if they did not sign the documents. Further, the labor tribunal disagreed with the labor arbiter's opinion that the compromise agreement they executed before the POEA had effectively foreclosed the illegal dismissal complaint before the NLRC and that the respondents had been guilty of forum shopping. It pointed out that the POEA case involved pre-deployment issues; whereas, the complaint before the NLRC is one for illegal dismissal and money claims arising from employment. Consequently, the NLRC ordered the agency, Nacino and Modern Metal to pay, jointly and severally, the respondents, as follows:

WHEREFORE, the Decision dated 30 April 2008 is hereby REVERSED and SET ASIDE, a new Decision is hereby issued ordering the respondents PERT/CPM MANPOWER EXPONENTS CO., INC., ROMEO NACINO, and MODERN METAL SOLUTIONS, INC. to jointly and severally, pay the complainants the following:
EmployeeUnderpaid Placement Salary forExemplary SalaryfeetheDamages unexpired portion of the contract (1350 x 6 months)
Vinuya,150 x 6 =USD 4008100 AEDP20,000.00 ARMANDO900 AED Alcantara150 X 4 =USD 4008100 AEDP20,000.00 VIRGILIO600 AED Era,350 x 4 =USD 4008100 AEDP20,000.00 MARINO1400 AED Ladea,150 x 5 =USD 4008100 AEDP20,000.00 NOEL750 AED Ordovez,250 X 3 =USD 4008100 AEDP20,000.00 LOUIE750 AED Anipan,150 x 4 =USD 4008100 AEDP20,000.00 ROBELITO600 AED Enjambre,150 x 4 =USD 4008100 AEDP20,000.00 SANDY600 AED Lumanta,250 x 5 =USD 4008100 AEDP20,000.00 ARSENIO1250 AED TOTAL:6,850 AEDUS$3,20064,800 AEDP400,000.00

or their peso equivalent at the time of actual payment plus attorney[']s fees equivalent to 10% of the judgment award. 12

The agency moved for reconsideration, contending that the appeal was never perfected and that the NLRC gravely abused its discretion in reversing the labor arbiter's decision.
IECAaD

The respondents, on the other hand, moved for partial reconsideration, maintaining that their salaries should have covered the unexpired portion of their employment contracts, pursuant to the Court's ruling in Serrano v.

Gallant Maritime Services, Inc.

13

The NLRC denied the agency's motion for reconsideration, but granted the respondents' motion. 14 It sustained the respondents' argument that the award needed to be adjusted, particularly in relation to the payment of their salaries, consistent with the Court's ruling in Serrano. The ruling declared unconstitutional the clause, "or for three (3) months for every year of the unexpired term, whichever is less," in Section 10, paragraph 5, of R.A. 8042, limiting the entitlement of illegally dismissed overseas Filipino workers to their salaries for the unexpired term of their contract or three months, whichever is less. Accordingly, it modified its earlier decision and adjusted the respondents' salary entitlement based on the following matrix:
EmployeeDuration of Departure dateDate dismissed Unexpired Contract portion of contract
Vinuya,2 years29 March 20078 August 200719 months ARMANDOand 21 days Alcantara,2 years3 April 20078 August 200720 months VIRGILIOand 5 days

Era,2 years12 May 20078 August 200721 months MARINOand 4 days Ladea,2 years29 March 20078 August 200719 months NOELand 21 days Ordovez,2 years3 April 200726 July 200721 months LOUIEand 23 days Anipan,2 years3 April 20078 August 200720 months ROBELITOand 5 days Enjambre,2 years29 March 200726 July 200720 months SANDYand 3 days Lumanta,2 years29 March 20078 August 200719 months ARSENIOand 21 days 15

Again, the agency moved for reconsideration, reiterating its earlier arguments and, additionally, questioning the application of the Serrano ruling in the case because it was not yet final and executory. The NLRC denied the motion, prompting the agency to seek recourse from the CA through a petition for certiorari. The CA Decision The CA dismissed the petition for lack of merit. 16 It upheld the NLRC ruling that the respondents were illegally dismissed. It found no grave abuse of discretion in the NLRC's rejection of the respondents' resignation letters, and the accompanying quitclaim and release affidavits, as proof of their voluntary termination of employment. The CA stressed that the filing of a complaint for illegal dismissal is inconsistent with resignation. Moreover, it found nothing in the records to substantiate the agency's contention that the respondents' resignation was of their own accord; on the contrary, it considered the resignation letters "dubious for having been lopsidedlyworded to ensure that the petitioners (employer[s]) are free from any liability." 17 The appellate court likewise refused to give credit to the compromise agreements that the respondents executed before the POEA. It agreed with the NLRC's conclusion that the agreements pertain to the respondents' charge of recruitment violations against the agency distinct from their illegal dismissal complaint, thus negating forum shopping by the respondents.
aHADTC

Lastly, the CA found nothing legally wrong in the NLRC correcting itself (upon being reminded by the respondents), by adjusting the respondents' salary award on the basis of the unexpired portion of their contracts, as enunciated in theSerrano case. The agency moved for, but failed to secure, a reconsideration of the CA decision. The Petition The agency is now before the Court seeking a reversal of the CA dispositions, contending that the CA erred in: 1.affirming the NLRC's finding that the respondents were illegally dismissed; 2.holding that the compromise agreements before the POEA pertain only to the respondents' charge of recruitment violations against the agency; and 3.affirming the NLRC's award to the respondents of their salaries for the unexpired portion of their employment contracts, pursuant to the Serrano ruling. The agency insists that it is not liable for illegal dismissal, actual or constructive. It submits that as correctly found by the labor arbiter, the respondents voluntarily resigned from their jobs, and even executed affidavits
18

of quitclaim and release; the respondents stated family concerns for their resignation. The agency posits that the letters were duly proven as they were written unconditionally by the respondents. It, therefore, assails the conclusion that the respondents resigned under duress or that the resignation letters were dubious.
TAEcSC

The agency raises the same argument with respect to the compromise agreements, with quitclaim and release, it entered into with Vinuya, Era, Ladea, Enjambre, Ordovez, Alcantara, Anipan and Lumanta before the POEA, although it submitted evidence only for six of them. Anipan, Lumanta, Vinuya and Ladea signing one document; 19 Era 20 and Alcantara 21 signing a document each. It points out that the agreement was prepared with the assistance of POEA Conciliator Judy Santillan, and was duly and freely signed by the respondents; moreover, the agreement is not conditional as it pertains to all issues involved in the dispute between the parties. On the third issue, the agency posits that the Serrano ruling has no application in the present case for three reasons.First, the respondents were not illegally dismissed and, therefore, were not entitled to their money claims. Second, the respondents filed the complaint in 2007, while the Serrano ruling came out on March 24, 2009. The ruling cannot be given retroactive application. Third, R.A. 10022, which was enacted on March 8, 2010 and which amended R.A. 8042, restored the subject clause in Section 10 of R.A. 8042, declared unconstitutional by the Court. The Respondents' Position In their Comment (to the Petition) dated September 28, 2011, 22 the respondents ask the Court to deny the petition for lack of merit. They dispute the agency's insistence that they resigned voluntarily. They stand firm on their submission that because of their unbearable living and working conditions in Dubai, they were left with no choice but to resign. Also, the agency never refuted their detailed narration of the reasons for giving up their employment. The respondents maintain that the quitclaim and release affidavits, 23 which the agency presented, betray its desperate attempt to escape its liability to them. They point out that, as found by the NLRC, the affidavits are ready-made documents; for instance, in Lumanta's 24 and Era's 25 affidavits, they mentioned a certain G & A International Manpower as the agency which recruited them a fact totally inapplicable to all the respondents. They contend that they had no choice but to sign the documents; otherwise, their release papers and remaining salaries would not be given to them, a submission which the agency never refuted.
CSEHIa

On the agency's second line of defense, the compromise agreement (with quitclaim and release) between the respondents and the agency before the POEA, the respondents argue that the agreements pertain only to their charge of recruitment violations against the agency. They add that based on the agreements, read and considered entirely, the agency was discharged only with respect to the recruitment and pre-deployment issues such as excessive placement fees, non-issuance of receipts and placement misrepresentation, but not with respect to post-deployment issues such as illegal dismissal, breach of contract, underpayment of salaries and underpayment and nonpayment of overtime pay. The respondents stress that the agency failed to controvert their contention that the agreements came about only to settle their claim for refund of their airfare which they paid for when they were repatriated. Lastly, the respondents maintain that since they were illegally dismissed, the CA was correct in upholding the NLRC's award of their salaries for the unexpired portion of their employment contracts, as enunciated in Serrano. They point out that the Serrano ruling is curative and remedial in nature and, as such, should be given retroactive application as the Court declared in Yap v. Thenamaris Ship's Management. 26 Further, the respondents take exception to the agency's contention that the Serrano ruling cannot, in any event, be applied in the present case in view of the enactment of R.A. 10022 on March 8, 2010, amending Section 10 of R.A. 8042. The amendment restored the subject clause in paragraph 5, Section 10 of R.A. 8042 which was struck down as unconstitutional in Serrano.

The respondents maintain that the agency cannot raise the issue for the first time before this Court when it could have raised it before the CA with its petition for certiorari which it filed on June 8, 2010; 27 otherwise, their right to due process will be violated. The agency, on the other hand, would later claim that it is not barred by estoppel with respect to its reliance on R.A. 10022 as it raised it before the CA in CA-G.R. SP No. 114353. 28 They further argue that RA 10022 cannot be applied in their case, as the law is an amendatory statute which is, as a rule, prospective in application, unless the contrary is provided. 29 To put the issue to rest, the respondents ask the Court to also declare unconstitutional Section 7 of R.A. 10022. Finally, the respondents submit that the petition should be dismissed outright for raising only questions of fact, rather than of law. The Court's Ruling

The procedural question


We deem it proper to examine the facts of the case on account of the divergence in the factual conclusions of the labor arbiter on the one hand, and, of the NLRC and the CA, on the other. 30 The arbiter found no illegal dismissal in the respondents' loss of employment in Dubai because they voluntarily resigned; whereas, the NLRC and the CA adjudged them to have been illegally dismissed because they were virtually forced to resign.
HCITcA

The merits of the case


We find no merit in the petition. The CA committed no reversible error and neither did it commit grave abuse of discretion in affirming the NLRC's illegal dismissal ruling. The agency and its principal, Modern Metal, committed flagrant violations of the law on overseas employment, as well as basic norms of decency and fair play in an employment relationship, pushing the respondents to look for a better employment and, ultimately, to resign from their jobs. First. The agency and Modern Metal are guilty of contract substitution. The respondents entered into a POEAapproved two-year employment contract, 31 with Modern Metal providing among others, as earlier discussed, for a monthly salary of 1350 AED. On April 2, 2007, Modern Metal issued to them appointment letters 32 whereby the respondents were hired for a longer three-year period and a reduced salary, from 1,100 AED to 1,200 AED, among other provisions. Then, on May 5, 2007, they were required to sign new employment contracts 33 reflecting the same terms contained in their appointment letters, except that this time, they were hired as "ordinary laborer," no longer aluminum fabricator/installer. The respondents complained with the agency about the contract substitution, but the agency refused or failed to act on the matter. The fact that the respondents' contracts were altered or substituted at the workplace had never been denied by the agency. On the contrary, it admitted that the contract substitution did happen when it argued, "[a]s to their claim for [underpayment] of salary, their original contract mentioned 1350 AED monthly salary, which includes allowance while in their Appointment Letters, they were supposed to receive 1,300 AED. While there was [a] difference of 50 AED monthly, the same could no longer be claimed by virtue of their Affidavits of Quitclaims and Desistance[.]" 34 Clearly, the agency and Modern Metal committed a prohibited practice and engaged in illegal recruitment under the law. Article 34 of the Labor Code provides:
Art. 34.Prohibited Practices. It shall be unlawful for any individual, entity, licensee, or holder of authority:
cAaETS

xxx xxx xxx (i)To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor[.]

Further, Article 38 of the Labor Code, as amended by R.A. 8042, the following act:

35

defined "illegal recruitment" to include

(i)To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment[.]

Second. The agency and Modern Metal committed breach of contract. Aggravating the contract substitution imposed upon them by their employer, the respondents were made to suffer substandard (shocking, as they put it) working and living arrangements. Both the original contracts the respondents signed in the Philippines and the appointment letters issued to them by Modern Metal in Dubai provided for free housing and transportation to and from the jobsite. The original contract mentioned free and suitable housing. 36 Although no description of the housing was made in the letters of appointment except: "Accommodation: Provided by the company," it is but reasonable to think that the housing or accommodation would be "suitable." As earlier pointed out, the respondents were made to work from 6:30 a.m. to 6:30 p.m., with a meal break of one to one and a half hours, and their overtime work was mostly not paid or underpaid. Their living quarters were cramped as they shared them with 27 other workers. The lodging house was in Sharjah, far from the jobsite in Dubai, leaving them only three to four hours of sleep every workday because of the long hours of travel to and from their place of work, not to mention that there was no potable water in the lodging house which was located in an area where the air was polluted. The respondents complained with the agency about the hardships that they were suffering, but the agency failed to act on their reports. Significantly, the agency failed to refute their claim, anchored on the ordeal that they went through while in Modern Metal's employ. Third. With their original contracts substituted and their oppressive working and living conditions unmitigated or unresolved, the respondents' decision to resign is not surprising. They were compelled by the dismal state of their employment to give up their jobs; effectively, they were constructively dismissed. A constructive dismissal or discharge is "a quitting because continued employment is rendered impossible, unreasonable or unlikely, as, an offer involving a demotion in rank and a diminution in pay." 37 Without doubt, the respondents' continued employment with Modern Metal had become unreasonable. A reasonable mind would not approve of a substituted contract that pays a diminished salary from 1350 AED a month in the original contract to 1,000 AED to 1,200 AED in the appointment letters, a difference of 150 AED to 250 AED (not just 50 AED as the agency claimed) or an extended employment (from 2 to 3 years) at such inferior terms, or a "free and suitable" housing which is hours away from the job site, cramped and crowded, without potable water and exposed to air pollution.
cSEaTH

We thus cannot accept the agency's insistence that the respondents voluntarily resigned since they personally prepared their resignation letters 38 in their own handwriting, citing family problems as their common ground for resigning. As the CA did, we find the resignation letters "dubious," 39 not only for having been lopsidedly worded to ensure that the employer is rendered free from any liability, but also for the odd coincidence that all the respondents had, at the same time, been confronted with urgent family problems so that they had to give up their employment and go home. The truth, as the respondents maintain, is that they cited family problems as reason out of fear that Modern Metal would not give them their salaries and their release papers. Only Era was bold enough to say the real reason for his resignation to protest company policy.

We likewise find the affidavits 40 of quitclaim and release which the respondents executed suspect. Obviously, the affidavits were prepared as a follow through of the respondents' supposed voluntary resignation. Unlike the resignation letters, the respondents had no hand in the preparation of the affidavits. They must have been prepared by a representative of Modern Metal as they appear to come from a standard form and were apparently introduced for only one purpose to lend credence to the resignation letters. In Modern Metal's haste, however, to secure the respondents' affidavits, they did not check on the model they used. Thus, Lumanta's affidavit 41 mentioned a G & A International Manpower as his recruiting agency, an entity totally unknown to the respondents; the same thing is true for Era's affidavit. 42 This confusion is an indication of the employer's hurried attempt to avoid liability to the respondents. The respondents' position is well-founded. The NLRC itself had the same impression, which we find in order and hereunder quote:
The acts of respondents of requiring the signing of new contracts upon reaching the place of work and requiring employees to sign quitclaims before they are paid and repatriated to the Philippines are all too familiar stories of despicable labor practices which our employees are subjected to abroad. While it is true that quitclaims are generally given weight, however, given the facts of the case, We are of the opinion that the complainants-appellants executed the same under duress and fear that they will not be allowed to return to the Philippines. 43

Fourth. The compromise agreements (with quitclaim and release) 44 between the respondents and the agency before the POEA did not foreclose their employer-employee relationship claims before the NLRC. The respondents, except Ordovez and Enjambre, aver in this respect that they all paid for their own airfare when they returned home 45 and that the compromise agreements settled only their claim for refund of their airfare, but not their other claims. 46 Again, this submission has not been refuted or denied by the agency. On the surface, the compromise agreements appear to confirm the agency's position, yet a closer examination of the documents would reveal their true nature. Copy of the compromise agreement is a standard POEA document, prepared in advance and readily made available to parties who are involved in disputes before the agency, such as what the respondents filed with the POEA ahead (filed in 2007) of the illegal dismissal complaint before the NLRC (filed on March 5, 2008).
EHaCID

Under the heading "Post-Deployment," the agency agreed to pay Era 47 and Alcantara 48 P12,000.00 each, purportedly in satisfaction of the respondents' claims arising from overseas employment, consisting of unpaid salaries, salary differentials and other benefits, including money claims with the NLRC. The last document was signed by (1) Anipan, (2) Lumanta, (3) Ladea, (4) Vinuya, (5) Jonathan Nangolinola, and (6) Zosimo Gatchalian (the last four signing on the left hand side of the document; the last two were not among those who filed the illegal dismissal complaint). 49 The agency agreed to pay them a total of P72,000.00. Although there was no breakdown of the entitlement for each of the six, but guided by the compromise agreement signed by Era and Alcantara, we believe that the agency paid them P12,000.00 each, just like Era and Alcantara. The uniform insubstantial amount for each of the signatories to the agreement lends credence to their contention that the settlement pertained only to their claim for refund of the airfare which they shouldered when they returned to the Philippines. The compromise agreement, apparently, was intended by the agency as a settlement with the respondents and others with similar claims, which explains the inclusion of the two (Nangolinola and Gatchalian) who were not involved in the case with the NLRC. Under the circumstances, we cannot see how the compromise agreements can be considered to have fully settled the respondents' claims before the NLRC illegal dismissal and monetary benefits arising from employment. We thus find no reversible error nor grave abuse of discretion in the rejection by the NLRC and the CA of said agreements. Fifth. The agency's objection to the application of the Serrano ruling in the present case is of no moment. Its argument that the ruling cannot be given retroactive effect, because it is curative and remedial, is untenable. It points out, in this respect, that the respondents filed the complaint in 2007, while the Serrano ruling was

handed down in March 2009. The issue, as the respondents correctly argue, has been resolved in Yap v. Thenamaris Ship's Management, 50 where the Court sustained the retroactive application of the Serrano ruling which declared unconstitutional the subject clause in Section 10, paragraph 5 of R.A. 8042, limiting to three months the payment of salaries to illegally dismissed Overseas Filipino Workers. Undaunted, the agency posits that in any event, the Serrano ruling has been nullified by R.A. No. 10022, entitled "An Act Amending Republic Act No. 8042, Otherwise Known as the Migrant Workers and Overseas

Filipinos Act of 1995, As Amended, Further Improving the Standard of Protection and Promotion of the Welfare of Migrant Workers, Their Families and Overseas Filipinos in Distress, and for Other Purposes." 51 It argues

that R.A. 10022, which lapsed into law (without the Signature of the President) on March 8, 2010, restored the subject clause in the 5th paragraph, Section 10 of R.A. 8042. The amendment, contained in Section 7 of R.A. 10022, reads as follows:
In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement "of" his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. 52 (emphasis ours)
HcACTE

This argument fails to persuade us. Laws shall have no retroactive effect, unless the contrary is provided. 53 By its very nature, the amendment introduced by R.A. 10022 restoring a provision of R.A. 8042 declared unconstitutional cannot be given retroactive effect, not only because there is no express declaration of retroactivity in the law, but because retroactive application will result in an impairment of a right that had accrued to the respondents by virtue of the Serrano ruling entitlement to their salaries for the unexpired portion of their employment contracts. All statutes are to be construed as having only a prospective application, unless the purpose and intention of the legislature to give them a retrospective effect are expressly declared or are necessarily implied from the language used.54 We thus see no reason to nullify the application of the Serrano ruling in the present case. Whether or not R.A. 10022 is constitutional is not for us to rule upon in the present case as this is an issue that is not squarely before us. In other words, this is an issue that awaits its proper day in court; in the meanwhile, we make no pronouncement on it. WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated May 9, 2011 and the Resolution dated June 23, 2011 of the Court of Appeals in CA-G.R. SP No. 114353 are AFFIRMED. Let this Decision be brought to the attention of the Honorable Secretary of Labor and Employment and the Administrator of the Philippine Overseas Employment Administration as a black mark in the deployment record of petitioner Pert/CPM Manpower Exponent Co., Inc., and as a record that should be considered in any similar future violations. Costs against the petitioner. SO ORDERED.

Carpio, Peralta, * Del Castillo and Perez, JJ., concur.

[G.R. No. 166803. October 11, 2012.] CREWLINK, INC. and/or GULF MARINE SERVICES, petitioners, vs. EDITHA TERINGTERING, for her behalf and in behalf of minor EIMAEREACH ROSE DE GARCIA TERINGTERING,respondents.

DECISION

PERALTA, J :
p

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision 1dated July 8, 2004 and Resolution 2 dated January 17, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 79966, setting aside the Resolutions dated February 20, 2003 3 and July 31, 2003 4 of the National Labor Relations Commission (NLRC), which affirmed in toto the Decision 5 dated February 12, 2002 of the Labor Arbiter. The facts, as culled from the records, are as follows: Respondent Editha Teringtering (Teringtering), spouse of deceased Jacinto Teringtering (Jacinto), and in behalf of her minor child, filed a complaint against petitioner Crewlink, Inc. (Crewlink), and its foreign principal Gulf Marine Services for the payment of death benefits, benefit for minor child, burial assistance, damages and attorney's fees. Respondent alleged that her husband Jacinto entered into an overseas employment contract with Crewlink, Inc. for and in behalf of its foreign principal Gulf Marine Services, the details of which are as follows:
Duration of Contract :12 months Position:Oiler Basic Monthly Salary:US$385.00 Hours of Work:48 hrs./wk. Overtime:US$115.50 Vacation Leave with pay:1 mo. leave after 12 months Point of Hire:Manila, Philippines xxx xxx xxx

Teringtering claimed that before her husband was employed, he was subjected to a pre-employment medical examination wherein he was pronounced as "fit to work." Thus, her husband joined his vessel of assignment and performed his duties as Oiler. On or about April 18, 2001, a death certificate was issued by the Ministry of Health of the United Arab Emirates wherein it was stated that Jacinto died on April 9, 2001 due to asphyxia of drowning. Later on, an embalming and sealing certificate was issued after which the remains of Jacinto was brought back to the Philippines.
IECAaD

After learning of the death of Jacinto, respondent claimed from petitioners the payment of death compensation in the amount of US$50,000.00 and burial expenses in the amount of US$1,000.00, as well as

additional death compensation in the amount of US$7,000.00, for the minor Eimaereach Rose de Gracia Teringtering but was refused without any valid cause. Hence, a complaint was filed against the petitioners. Respondent claimed that in order for her husband's death to be compensable it is enough that he died during the term of his contract and while still on board. Respondent asserted that Jacinto was suffering from a psychotic disorder, or Mood Disorder Bipolar Type, which resulted to his jumping into the sea and his eventual death. Respondent further asserted that her husband's death was not deliberate and not of his own will, but was a result of a mental disorder, thus, compensable. For its part, petitioner Crewlink alleged that sometime on April 9, 2001, around 8:20 p.m. while at Nasr Oilfield, the late Jacinto Teringtering suddenly jumped into the sea, but the second engineer was able to recover him. Because of said incident, one personnel was directed to watch Jacinto. However, around 10:30 p.m., while the boat dropped anchor south of Nasr Oilfield and went on standby, Jacinto jumped off the boat again. Around 11:00 p.m., the A/B watchman reported that Jacinto was recovered but despite efforts to revive him, he was already dead from drowning. Petitioner asserted that Teringtering was not entitled to the benefits being claimed, because Jacinto committed suicide. Despite the non-entitlement, however, Teringtering was even given burial assistance in the amount of P35,800.00 and P13,273.00 on May 21, 2001. She likewise received the amount of US$792.51 representing donations from the GMS staff and crew. Petitioner likewise argued that Teringtering is not entitled to moral and exemplary damages, because petitioner had nothing to do with her late husband's untimely demise as the same was due to his own doing. As part of the record, respondent submitted Ship Captain Oscar C. Morado's report on the incident, which we quote: *
At arround 2000 hrs. M/V Raja 3404 still underway to Nasr Complex w/ 1 passenger. 2018 hrs. A/side Nasr Complex boatlanding to drop 1 passenger At 2020 hrs. Mr. Jacinto Tering Tering suddenly jump to the sea, while the boat cast off from Nasr Complex boatlanding. And the second Engr. Mr. Sudarto jump and recover Mr. Jacinto Tering Tering the oiler. 2040 hrs. Dropped anchor south of Nasr oilfield and standby. And that time informed to GMS personnel about the accident, And we informed to A/B on duty to watch Mr. Jacinto Tering Tering. 2230 hrs. The A/B watch man informed that Mr. Jacinto Tering Tering jump again to the sea. And that time the wind NW 10-14 kts. and strong current. And the second Engr. jump to the sea with life ring to recover Mr. Jacinto Tering Tering. 2300 hrs. We recovered Mr. Jacinto Tering Tering onboard the vessel and apply Respiration Kiss of life Mouth to Mouth, And proceed to Nasr Complex to take doctor. 2320 hrs. A/side Nasr Complex boatlanding and the doctor on-board to check the patient. 2330 hrs. As per Nasr Complex Doctor the patient was already dead. Then informed to GMS personnel about the accident.
HTCIcE

I Captain Oscar C. Morado certify this report true and correct with the best of my knowledge and reserve the right, modify, ratify and/or enlarge this statement at any time and place, According to the law. 6

In a Decision dated February 12, 2002, the Labor Arbiter, after hearing, dismissed the case for lack of merit. The Labor Arbiter held that, while it is true that Jacinto Teringtering died during the effectivity of his contract of employment and that he died of asphyxiation, nevertheless, his death was the result of his deliberate or intentional jumping into the sea. Thus, his death was directly attributable to him. Teringtering then appealed before the NLRC which affirmed in toto the ruling of the Labor Arbiter.

Unsatisfied, Teringtering filed a petition for certiorari under Rule 65 before the Court of Appeals and sought the nullification of the NLRC Resolution, dated February 20, 2003, which affirmed the Labor Arbiter's Decision dated February 12, 2002. On July 8, 2004, the CA reversed and set aside the assailed Resolution of the NLRC, the dispositive portion of which reads:
WHEREFORE, premises considered, the Resolution dated February 20, 2003 is hereby REVERSED and SET ASIDE. Respondents Crewlink, Inc. and Gulf Marine Services are hereby DECLARED jointly and severally liable and, accordingly, are directed to pay deceased Jacinto Teringtering's beneficiaries, namely respondent Editha Teringtering and her daughter Eimaereach Rose de Gracia, the Philippine Currency equivalent to US$50,000.00, and an additional amount of US$7,000, both at the exchange rate prevailing at the time of payment. SO ORDERED.
7

Thus, before this Court, Crewlink, Inc. and/or Gulf Marine Services, as petitioner, raised the following issues:
I WHETHER A SPECIAL CIVIL ACTION OF CERTIORARI INCLUDES CORRECTION OF THE NLRC'S EVALUATION OF THE EVIDENCE AND FACTUAL FINDINGS BASED THEREON OR CORRECTION OF ERRORS OF FACTS IN THE JUDGMENT OF THE NLRC; II WHETHER THE NEGLIGENT ACTS OF SUPPOSEDLY FAILING TO TAKE SUCH MEASURES FOR THE COMFORT AND SAFETY OF THE DECEASED SEAFARER, AMONG OTHERS, WHICH WERE ESPECIALLY EMPHASIZED IN THE ASSAILED CA DECISION AND WHICH ACTUALLY REFERRED TO ACTS COMMITTED BY THE SHIPMATES OF THE DECEASED, BUT POSITIVELY ATTRIBUTED TO PETITIONERS AND FOR WHICH THE LATTER ARE NOW BEING HELD LIABLE ARE IN THE NATURE OF AN ENTIRELY DIFFERENT SOURCE OF OBLIGATION THAT IS PREDICATED ON QUASI-DELICT OR TORT AS PROVIDED UNDER OUR CIVIL LAWS AND, THUS, HAS NO REFERENCE TO OUR LABOR CODE;
ITAaHc

III WHETHER THE DEATH OF SEAFARER IN THIS CASE WAS A RESULT OF A DELIBERATE/WILLFUL ACT ON HIS OWN LIFE, AN ACT DIRECTLY ATTRIBUTABLE TO THE DECEASED, AND NO OTHER, AS FOUND AND SO RULED BY THE LABOR ARBITER AND NLRC, AS TO RENDER HIS DEATH NOT COMPENSABLE.

Petitioner claimed that Jacinto's death is not compensable, considering that the latter's death resulted from his willful act. It argued that the rule that the employer becomes liable once it is established that the seaman died during the effectivity of his employment contract is not absolute. The employer may be exempt from liability if he can successfully prove that the seaman's death was caused by an injury directly attributable to his deliberate or willful act, as in this case. We find merit in the petition. In a petition for review on certiorari, our jurisdiction is limited to reviewing errors of law in the absence of any showing that the factual findings complained of are devoid of support in the records or are glaringly erroneous. We are not a trier of facts, and this applies with greater force in labor cases. Findings of fact of administrative agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only great respect but even finality. They are binding

upon this Court unless there is a showing of grave abuse of discretion or where it is clearly shown that they were arrived at arbitrarily or in utter disregard of the evidence on record. This case is no different. As found by the Labor Arbiter, Jacinto's jumping into the sea was not an accident but was deliberately done. Indeed, Jacinto jumped off twice into the sea and it was on his second attempt that caused his death. The accident report of Captain Oscar Morado narrated in detail the circumstances that led to Jacinto's death. The circumstances of Jacinto's actions before and at the time of his death were likewise entered in the Chief Officer's Log Book and were attested to by Captain Morado before the Philippine Embassy. Even the A/B personnel, Ronald Arroga, who was tasked to watch over Jacinto after his first attempt of committing suicide, testified that despite his efforts to prevent Jacinto from jumping again overboard, Jacinto was determined and even shoved him and jumped anew which eventually caused his death. Considering the foregoing, we do not find any reason to discredit the evidence presented as well as the findings of the Labor Arbiter. Settled is the rule that factual findings of labor officials, who are deemed to have acquired expertise in matters within their jurisdiction, are generally accorded not only respect but even finality by the courts when supported by substantial evidence, i.e., the amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. More so, when there is no showing that said findings were arrived at arbitrarily or in disregard of the evidence on record. Likewise, the provisions of the Code of Commerce are certainly inapplicable in this case. For precisely, the issue for resolution here is the obligation of the employer to its employee should the latter die during the term of his employment. The relationship between the petitioner and Jacinto is one based on contract of employment and not one of contract of carriage.
HTIEaS

Under No. 6, Section C, Part II of the POEA "Standard Employment Contract Governing the Employment of All Filipino Seamen On-Board Ocean-Going Vessels" (POEA-SEC), it is provided that:
xxx xxx xxx 6.No compensation shall be payable in respect of any injury, incapacity, disability or death resulting from a willful act on his own life by the seaman, provided, however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to him.(Emphasis ours)

Indeed, in order to avail of death benefits, the death of the employee should occur during the effectivity of the employment contract. The death of a seaman during the term of employment makes the employer liable to his heirs for death compensation benefits. This rule, however, is not absolute. The employer may be exempt from liability if it can successfully prove that the seaman's death was caused by an injury directly attributable to his deliberate or willful act. In the instant case, petitioner was able to substantially prove that Jacinto's death was attributable to his deliberate act of killing himself by jumping into the sea. Meanwhile, respondent, other than her bare allegation that her husband was suffering from a mental disorder, no evidence, witness, or any medical report was given to support her claim of Jacinto's insanity. The record does not even show when the alleged insanity of Jacinto did start. Homesickness and/or family problems may result to depression, but the same does not necessarily equate to mental disorder. The issue of insanity is a question of fact; for insanity is a condition of the mind not susceptible of the usual means of proof. As no man would know what goes on in the mind of another, the state or condition of a person's mind can only be measured and judged by his behavior. Establishing the insanity of an accused requires opinion testimony which may be given by a witness who is intimately acquainted with the person claimed to be insane, or who has rational basis to conclude that a person was insane based on the witness' own perception of the person, or who is qualified as an expert, such as a psychiatrist. 8 No such evidence was presented to support respondent's claim.

The Court commiserates with the respondent, but absent substantial evidence from which reasonable basis for the grant of benefits prayed for can be drawn, the Court is left with no choice but to deny her petition, lest an injustice be caused to the employer. Otherwise stated, while it is true that labor contracts are impressed with public interest and the provisions of the POEA-SEC must be construed logically and liberally in favor of Filipino seamen in the pursuit of their employment on board ocean-going vessels, still the rule is that justice is in every case for the deserving, to be dispensed with in the light of established facts, the applicable law, and existing jurisprudence. 9 WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 79966, dated July 8, 2004, and its January 17, 2005 Resolution denying the motion for reconsideration are REVERSED and SET ASIDE. The February 20, 2003 and July 31, 2003 Resolutions of the National Labor Relations Commission in NLRC NCR OFW Case No. (M) 01-06-1144-00, affirming the February 12, 2002 Decision of the Labor Arbiter, are hereby REINSTATED andAFFIRMED. SO ORDERED.
ICaDHT

Velasco, Jr., Abad, Perez * and Mendoza, JJ., concur.

[G.R. No. 171448. February 28, 2007.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHARLIE COMILA and AIDA COMILA,accused-appellants.

DECISION

GARCIA, J :
p

On April 5, 1999, in the Regional Trial Court (RTC) of Baguio City, an Information 1 for Illegal Recruitment committed in large scale by a syndicate, as defined and penalized under Article 13(6) in relation to Articles 38 (b), 34 and 39 of Presidential Decree No. 442, otherwise known as the New Labor Code, as amended, was filed against Charlie Comila, Aida Comila and one Indira Ram Singh Lastra, allegedly committed as follows:
That on or about the 7th day of September, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and mutually aiding one another, did then and there willfully, unlawfully and feloniously offer, recruit, and promise employment as contract workers in Italy, to the herein complainants, namely: MARLYN ARO y PADCAYAN, ANNIE FELIX y BAKISAN, ELEONOR DONGGA-AS y ANGHEL, ESPERANZA BACKIAN y LADEY, ZALDY DUMPILES y MALIKDAN, JOEL EDIONG y CALDERON, RICKY WALDO y NICKEY, JEROME MONTAEZ y OSBEN, DOVAL DUMPILES y SAP-AY, JONATHAN NGAOSI y DUMPILES, EDMUND DIEGO y SUBIANGAN and MARLON PETTOCO y SUGOT, without said accused having first secured the necessary license or authority from the Department of Labor and Employment. CONTRARY TO LAW.

The Information was docketed in the RTC as Crim. Case No. 16427-R and raffled to Branch 60 thereof. On the same date April 5, 1999 and in the same court, twelve (12) separate Informations 2 for Estafa were filed against the same accused at the instance of the same complainants. Docketed as Criminal Case

Nos. 16428-R to 16439-R and likewise raffled to the same branch of the court, the twelve (12) Informations for Estafa, varying only as regards the names of the offended parties and the respective amounts involved, uniformly recite:
That on or about the 10th day of November, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another did then and there willfully, unlawfully and feloniously defraud one ZALDY DUMPILES Y MALIKDAN by way of false pretenses, which are executed prior to or simultaneously with the commission of the fraud, as follows, to wit: the accused knowing fully well that he/she/they is/are not AUTHORIZED job RECRUITERS for persons intending to secure work abroad convinced said Zaldy Dumpiles y Malikdanand pretended that he/she/they could secure a job for him/her abroad, for and in consideration of the sum ofP25,000.00 and representing the placement and medical fees when in truth and in fact could not; the saidZaldy Dumpiles y Malikdan deceived and convinced by the false pretenses employed by the accused parted away the total sum of P25,000.00 in favor of the accused, to the damage and prejudice of the said Zaldy Dumpiles y Malikdan in the aforementioned amount of TWENTY FIVE THOUSAND PESOS (P25,000.00), Philippine currency.
EICSTa

CONTRARY TO LAW.

Of the three accused named in all the aforementioned two sets of Informations, only accused Aida Comila and Charlie Comila were brought under the jurisdiction of the trial court, the third, Indira Ram Singh Lastra, being then and still is at large. Arraigned with assistance of counsel, accused Aida Comila and Charlie Comila entered a plea of "NOT GUILTY" not only to the Information for Illegal Recruitment (Crim. Case No. 16427-R) but also to the twelve (12) Informations for Estafa (Crim. Case Nos. 16428-R to 16439-R). Thereafter, a joint trial of the cases ensued. Of the twelve (12) complainants in both the illegal recruitment and estafa charges, the prosecution was able to present only seven (7) of them, namely: Annie Felix y Bakisan; Ricky Waldo y Nickey; Jonathan Ngaosi y Dumpiles; Marilyn Aro y Padcayan; Edmund Diego y Subiangan; Jerome Montaez y Osben; and Eleonor Dongga-as y Anghel. A certain Jose Matias of the Philippine Overseas Employment Administration (POEA) was supposed to testify for the prosecution but his testimony was dispensed after the defense agreed that he will merely testify to the effect that as per POEA records, accused Aida Comila and Charlie Comila were not duly licensed or authorized to recruit workers for overseas employment. In a consolidated decision 3 dated October 3, 2000, the trial court found both accused GUILTY beyond reasonable doubt of the crimes of Illegal Recruitment committed in large scale by a syndicate, as charged in Crim. Case No. 16427-R, and of estafa, as charged in Crim. Case Nos. 16430-R; 16431-R, 16432-R, 16434-R, 16436-R, 16438-R, and 16439-R. The other informations for estafa in Crim. Case Nos. 16428-R, 16429-R, 16433-R, 16435-R and 16437-R were, however, dismissed for lack of evidence. We quote the fallo of the trial court's decision:
WHEREFORE, premises considered, this court hereby finds the accused, Aida Comila and Charlie Comila: 1.In Criminal Case No. 16427-R, GUILTY beyond reasonable doubt of the crime of Illegal Recruitment in Large Scale Committed by a Syndicate. They are hereby sentenced to each suffer the penalty of life imprisonment and a fine of P100,000.00; 2.In Criminal Case No. 16430-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances and applying the provisions of the Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as

minimum, to eight (8) years ofprision mayor, as maximum. They shall also jointly and severally pay the complainant, Marilyn Aro, the sum of P25,500.00 plus interest from the date this Information was filed until it is fully paid; 3.In Criminal Case No. 16431-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances and applying the provisions of the Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years ofprision mayor, as maximum. They shall also jointly and severally pay the complainant, Annie Felix, the sum of P50,000.00 plus interest from the date this Information was filed until it is fully paid; 4.In Criminal Case No. 16432-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances, and applying the provisions of the Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years ofprision mayor, as maximum. They shall also jointly and severally pay the complainant, Eleanor Dongga-as, the sum of P50,000.00 plus interest from the date this Information was filed until it is fully paid; 5.In Criminal Case No. 16434-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances and applying the provisions of Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. They shall also jointly and severally pay the complainant, Edmund Diego, the sum of P25,000.00 plus interest from the date this Information was filed until it is fully paid; 6.In Criminal Case No. 16436-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances, and applying the provisions of the Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2)months of prision correccional, as minimum, to eight (8) years ofprision mayor, as maximum. They shall also jointly and severally pay the complainant, Jonathan Ngaosi, the sum of P25,000.00 plus interest from the date this Information was filed until it is fully paid; 7.In Criminal Case No. 16438-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances, and applying the provisions of the Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years ofprision mayor as maximum. They shall also jointly and severally pay the complainant, Ricky Waldo, the sum of P25,000.00 plus interest from the date this Information was filed until it is fully paid; 8.In Criminal Case No. 16439-R, GUILTY beyond reasonable doubt of the crime of Estafa. There being no mitigating and aggravating circumstances, and applying the provisions of the Indeterminate Sentence Law, they are hereby sentenced to each suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum to eight (8) years ofprision mayor, as maximum. They shall also jointly and severally pay the complainant, Jerome Montaez, the sum of P25,000.00 plus interest from the date this Information was filed; and 9.Criminal Cases Nos. 16428-R; 16429-R; 16433-R; 16435-R and 16437-R are hereby DISMISSED for lack of evidence. In the service of the various prison terms herein imposed upon the accused Aida Comila and Charlie Comila, the provisions of Article 70 of the Revised Penal Code shall be observed.

As to the accused, Indira Sighn Lastra, let all these cases be archived in the meantime until the said accused is arrested. SO ORDERED.

Pursuant to a Notice of Appeal 4 filed by the two accused, the trial court forwarded the records of the cases to this Court in view of the penalty of life imprisonment meted in Crim. Case No. 16427-R (Illegal Recruitment in large scale). In its Resolution 5 of October 3, 2001, the Court resolved to accept the appeal and the subsequent respective briefs for the appellants 6 and the appellee 7 as well as the appellants' reply brief. 8

Thereafter, and consistent with its pronouncement in People v. Mateo, 9 the Court, via its Resolution 10 of September 22, 2004, transferred the cases to the Court of Appeals (CA) "for appropriate action and disposition." In the CA, the cases were assigned one docket number and thereat docketed as CA-G.R. CR H.C. No. 01615. In a decision
11 promulgated

on December 29, 2005, the appellate court affirmed that of the trial court, to wit:

WHEREFORE, premises considered, the Decision dated October 3, 2000 of the Regional Trial Court of Baguio City, Branch 60, in Criminal Cases Nos. 16427-R to 16439-R finding accused-appellants guilty of (1) illegal recruitment committed in large scale; and (2) seven (7) counts of estafa is hereby AFFIRMED and UPHELD.
AICDSa

With costs against the accused-appellants. SO ORDERED.

The cases are again with this Court in view of the Notice of Appeal appellants from the aforementioned affirmatory CA decision.

12 interposed

by the herein accused-

Acting thereon, the Court required the parties to simultaneously submit their respective supplemental briefs, if they so desire. In their respective manifestations, 13 the parties opted not to file any supplemental brief and instead merely reiterated what they have said in their earlier appellants' and appellee's briefs. The Office of the Solicitor General, in the brief in the following manner:
14 it

filed for appellee People, summarizes the facts of the case

Annie Felix was introduced by her sister-in-law, Ella Bakisan, to appellant Aida Comila in August 1998 (pp. 3, 24, tsn, September 14, 1999). Ella Bakisan told her that appellant Aida Comila could help her find work abroad as she was recruiting workers for a factory in Palermo, Italy ( ibid.). Annie Felix then went to meet appellant Aida Comila at the Jollibee outlet along Magsaysay Avenue, Baguio City in August, 1998 to inquire about the supposed work in Italy (pp. 3-4, tsn, ibid.). There were other applicants, aside from Annie at the Jollibee outlet at the time, similarly inquiring about the prospective jobs abroad (ibid.). Annie met appellant again at the St. Theresa's College on or about September 6 or 7, 1998 (p. 11, ibid.). there were around fifty (50) to sixty (60) applicants at that time ( ibid.). Appellant introduced them to a certain Erlinda Ramos, one of the agents of Mrs. Indira Lastra, a representative of the Far East Trading Corporation (p. 4, 11, ibid.). Accordingly, Erlinda Ramos would be responsible for the processing of the applicants' visas (ibid.). Erlinda Ramos even showed them the copy of the job order from Italy (ibid.). Like Ramos, appellant likewise introduced herself to Annie and the other applicants as an agent of Lastra (pp. 3-4, ibid.).

Annie submitted all her requirements to appellant, along with the amount of two thousand pesos (P2,000.00) as processing fee (p. 6, tsn, ibid.). She also paid a total of twenty three thousand (P23,000.00) as partial payment of her placement fee of fifty thousand pesos (P50,000.00) on or about September 6 or 7, 1998. Appellant issued a common receipt detailing the amounts she received not only from Annie Felix (23,000.00) but also for her fellow applicants, Zaldy Dumpiles (P23,000.00), Joel Ediong (P25,000.00), and Ricky Baldo (P25,000.00) (p. 8, tsn, ibid.). Annie went to Manila several times to complete her medical examination as required (pp. 14-16, tsn, ibid.). Considering appellant Aida Comila's pregnancy at that time, her husband Charlie Comila, also an agent of Lastra, accompanied Annie and the other applicants during their medical check-up (pp. 22-24, ibid.). On the last week of October, 1998, Annie again paid appellant the total amount of twenty five thousand pesos (P25,000.00) to complete her placement fee of fifty thousand pesos (P50,000.00). Annie was told that her flight to Italy was scheduled on September 14, 1998 (p. 20, ibid.). Later on, Erlinda Ramos told Annie that her flight to Italy was re-scheduled to October, 1998 due to a typhoon (p. 20, ibid.). There were others like Annie Felix who were similarly enticed to apply for the promised job in Italy (pp. 4-5, tsn, September 22, 1999). Among them were Ricky Waldo, Edmund Diego, Eleanor Donga-as, Jonathan Ngaosi, Marilyn Aro and Jerome Montaez (pp. 4-5; 19-28, tsn, September 22, 1999, afternoon session).
AIDTSE

In the briefing at St. Theresa's College, Navy Road, Pacdal, Baguio City, (p. 7, tsn, September 22, 1999; pp. 29-30, tsn, September 14, 1999) appellant briefed Ricky Waldo and the rest of the applicants on their application requirements (pp. 7-8, tsn, Sept. 22, 1999). The briefing was conducted by appellants Aida Comila, Charlie Comila, and Erlinda Ramos who alternately talked about the documents to be submitted for the processing of their applications and the processing fee of fifty thousand pesos (P50,000.00) they have to pay (p. 8, tsn, September 22, 1999). In the same briefing, they were also told that Erlinda Ramos was scheduled to go to Italy on September 14, 1998 and that whoever would pay P25,000.00 first, or half of the P50,000.00 processing fee would be able to go with her to Italy (p. 8. tsn, September 22, 1999). Per the job order shown to Jonathan Ngaosi, for instance, male workers were to receive a salary of two thousand three hundred dollars ($2,300.00) plus an additional eight dollars ($8.00) for overtime work (p. 8, tsn, September 21, 1999, afternoon session). After undergoing the required medical examination in Manila, applicants Ricky Waldo and company paid the following amounts for their respective processing fees, which were duly receipted by appellant Aida Comila in three separate documents, thus: "8-23-98, received the amount of P14,000.00 from Ella Bakisan. Signed, Aida Comila. The second document again is a piece of paper of which the following is written: 9-7-98. Received the amount of the following: Philip Waldo, P20,000.00; Doval Dumpiles, P23,000.00 Edmund Diego, P25,000.00; Jerome Montaez, P25,000.00 Total P93,000.00. Received by A. Comila. The 3rd document is 1/2 page of a yellow pad and it reads 9-7-98, received the following amounts from Zaldy Dumpiles P23,000.00; Joel Ediong P25,000.00; Ricky Waldo P25,000.00; Annie Felix P23,000.00; Marlon Tedoco P23,000.00. Total P119,000.00. Received by Aida Comila; witnesses Ella Bakisan. (p. 14, tsn, of witness Edmund Diego, September 22, 1999, morning session). Considering the payments they made, Ricky Waldo's flight to Italy was scheduled on September 14, 1999 while those of Marilyn Aro, Edmund Diego, Jerome Montanez, Jonathan Ngaosi, and Eleanor Donga-as were scheduled on October 27, 1999 (pp. 8-9, tsn, September 22, 1999; pp. 32-33, tsn, September 14, 1999; pp. 2-4, tsn, September 15, 1999; p. 24, September 21, 1999; p. 10, tsn, September 22, 1999, morning session; p. 27, tsn, September 22, 1999, afternoon session). Like Annie Felix, Ricky Waldo's flight did not push through as scheduled on September 14, 1999 (pp. 32-34, tsn, September 14, 1999; pp. 2-4, tsn, September 15, 1999). Appellant Aida Comila explained that the re-scheduling was due to typhoon (ibid.). Ricky's flight was then re-scheduled to October 7,

1999 but was again moved to October 27, 1999 as, according to appellant Aida Comila, there were some problems in his papers and that of the other applicants (pp. 2-3, ibid.). On October 25, 1998, appellant Aida Comila called the applicants for a briefing at the St. Therese Building at the Navy Base, Baguio City (p. 24, tsn, September 21, 1999). In the same briefing, Erlinda Ramos, as representative of the supposed principal, Indira Lastra, explained to the applicants that their flight on October 27, 1999 was cancelled but will be re-scheduled (ibid.). Appellant Aida Comila told them that they have to wait for the notice from the Italian Embassy ( ibid.). On the first week of November, 1998, appellant Charlie Comila told Marilyn Aro and several other applicants that their visas would be released (p. 25, September, 21, 1999). Appellant Charlie Comila accompanied them and the others to the Elco Building at Shaw Boulevard, Pasig City purportedly to see Erlinda Ramos (p. 25, tsn, September 21, 1999). When Erlinda Ramos arrived, she told Marilyn and the other applicants to wait for the release of their visas, the following day (p. 25, ibid.). Marilyn and the rest came back each day for one whole week but the promised visas were not released to them (ibid.).
AaHcIT

Marilyn and the other applicants complained to appellant Charlie Comila about the delay and told him of their doubts about their application and the promised job in Italy ( ibid.). At this point, appellant Charlie Comila assured them that they should not worry and that everything will be alright ( ibid ). Appellant Charlie Comila then brought them to Indira Lastra (p. 26, ibid.). Marilyn Aro, Annie Felix, and the rest were all shocked to find out that Indira Lastra was actually an inmate of Manila (Quiapo) city jail. (p. 26, ibid.; p. 13, tsn, September 14, 1999). They felt at once that they were, indeed, victims of illegal recruitment (ibid.).When they demanded the return of their money from Indira Lastra, the latter told them to withdraw their money from appellant Aida Comila (p. 26. ibid.). Upon their return to Baguio, Marilyn's group proceeded to appellant Aida Comila's residence at Km. 6, La Trinidad, Benguet to demand the return of their money (p. 27, tsn, ibid.). Appellant Aida Comila, however, told them to wait as Indira Lastra will soon be out of jail and will personally process their papers at the Italian Embassy (ibid.). Marilyn and the other applicants followed-up several times with appellant Aida Comila the return of the amounts of money they paid for their supposed placement fee, but were simply told to wait (ibid.). the last time complainants visited them, appellants Aida Comila and Charlie Comila were already in a Bulacan jail (p. 27, ibid.). In April, 1999, Marilyn Aro, Edmund Diego, Annie Felix, Eleanor Donga-as, Jerome Montanez, Ricky Waldo and Jonathan Ngaosi filed their complaint against appellants Aida Comila and Charlie Comila before the Criminal Investigation Group (CIG).

In the same month of April 1999, separate Informations for estafa and illegal recruitment committed in large scale by a syndicate or violation of Article 13 (b) in relation to Article 38 (b) 34, and 39 of P.D. No. 442, otherwise known as the Labor Code of the Philippines were filed against appellants Charlie Comila, Aida Comila and Indira Lastra.

In their appellants' brief, accused-appellants would fault the two courts below in (1) finding them guilty beyond reasonable doubt of the crimes of illegal recruitment and estafa; and (2) totally disregarding the defense of denial "honestly advanced" by them. It is not disputed that accused-appellants Charlie Comila and Aida Comila are husband-and-wife. Neither is it disputed that husband and wife knew and are well-acquainted with their co-accused, Indira Ram Singh Lastra, and one Erlinda Ramos. It is their posture, however, that from the very beginning, appellant Aida Comila never professed that she had the authority to recruit and made it clear to the applicants for overseas employment that it was Erlinda Ramos who had such authority and who issued the job orders from Italy. Upon this

premise, this appellant contends that the subsequent transactions she had with the applicants negate the presence of deceit, an essential element of estafa under paragraph 2(a) of Article 315 of the Revised Penal Code. On the charge of illegal recruitment, this appellant argues that "she was merely trying to help the applicants to process their papers, believing that Indira Ram Sighn Lastra and Erlinda Ramos would really send the applicants to Italy." With respect to co-appellant Charlie Comila, the defense submits that the prosecution "miserably failed to prove his participation in the illegal recruitment and estafa." The appeal must fail. After a careful and circumspect review of the records, we are fully convinced that both the trial and appellate courts committed no error in finding both appellants guilty beyond moral certainty of doubt of the crimes charged against them. Through the respective testimonies of its witnesses, the prosecution has satisfactorily established that both appellants were then engaged in unlawful recruitment and placement activities. The combined testimonies of the prosecution witnesses point to appellant Aida Comila as the one who promised them foreign employment and assured them of placement overseas through the help of their co-accused Indira Ram Singh Lastra. For sure, it was Aida herself who informed them of the existence of job orders from Palermo, Italy, and of the documents needed for the processing of their applications. Aida, in fact, accompanied the applicants to undergo medical examinations in Manila. And relying completely on Aida's representations, the applicants-complainants entrusted their money to her only to discover later that their hopes for an overseas employment were but vain. In the words of the trial court:
Aida Comila cannot escape culpability by the mere assertion that the recruitment activities were done by Ella Bakisan, Erlinda Ramos and Indira Lastra as if she was just a mere observer of the activities going on right under her nose, especially so that the seven complainants who testified all pointed to her as their recruiter. She could not adequately explain why: (1) she had to show and explain the job order and the work and travel requirements to the complainants; (2) she had to meet the complainants at Jollibee, Magsaysay Ave., Baguio City and in her residence; (3) she had to be present at the briefings for the applicants; (4) she received the placement fees even if she claims that she received them from Ella Bakisan; (5) she had to go down to Manila and accompanied the complainants for their medical examination; and (6) she had to go out of her way to do all these things even when she was pregnant and was about to give birth. Certainly, she was not a social worker or a humanitarian who had all the time in this world to go out of her way to render free services to other people whom she did not know or just met. To be sure, Aida Comila had children to attend to and a husband who was unemployed to be able to conduct such time-consuming charitable activities. 15

Running in parallel vein is what the CA wrote in its appealed decision:

16

As regards appellant Aida Comila's contention that she did not represent herself as a licensed recruiter, and that she merely helped complainants avail of the job opportunity on the belief that Indira Lastra and Erlinda Ramos would really send them to Italy, the same hardly deserves merit. The crime of illegal recruitment is committed when, among other things, a person who, without being duly authorized according to law represents or gives the distinct impression that he or she has the power or the ability to provide work abroad convincing those to whom the representation is made or to whom the impression is given to thereupon part with their money in order to be assured of that employment.
EaSCAH

In fact, even if there is no consideration involved, appellant will still be deemed as having engaged in recruitment activities, since it was sufficiently demonstrated that she promised overseas employment to private complainants. To be engaged in the practice and placement, it is plain that there must at least be a promise or offer of an employment from the person posing as a recruiter whether locally or abroad.

As regards appellant Charlie Comila, it is inconceivable for him to feign ignorance of the illegal recruitment activities of his wife Aida, and of his lack of participation therein. Again, we quote with approval what the trial court has said in its decision: 17

Charlie Comila could not, likewise, feign ignorance of the illegal transactions. It is contrary to human experience, hence, highly incredible for a husband not to have known the activities of his wife who was living with him under the same roof. In fact, he admitted that when Aida gave birth, he had to accompany the complainants to Manila for their medical examination and again, on another trip, to bring them to the office of Erlinda Ramos to follow-up their visas. The fact that he knew the ins and outs of Manila was a desperate excuse or reason why he accompanied the complainants to Manila considering that, as he and his wife claimed, they have nothing to do with the recruitment activities. Furthermore, if he and his wife had nothing to do with the recruitment of the complainants, why did he have to sign the letter and accommodate the request of Myra Daluca whom they have not really known. But damning was his statement that he signed the letter because Aida was not there to sign it. Such a statement would only show that they were indeed parties to these illegal transactions. Charlie Comila would even claim that he was just an elementary graduate and so he did not understand what he was asked to sign. But his booking sheet showed that he was a high school graduate. He was a conductor of a bus company who should know and understand how to read and write. Furthermore, he was already a grown up man in his thirties who knew what was right and wrong and what he should or should not do.

It is well established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa. The reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se. In the first, the criminal intent of the accused is not necessary for conviction. In the second, such an intent is imperative. Estafa under Article 315, paragraph 2, of the Revised Penal Code, is committed by any person who defrauds another by using fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed prior to or simultaneously with the commission of fraud. 18 Here, it has been sufficiently proven that both appellants represented themselves to the complaining witnesses to have the capacity to send them to Italy for employment, even as they do not have the authority or license for the purpose. Doubtless, it is this misrepresentation that induced the complainants to part with their hard-earned money for placement and medical fees. Such act on the part of the appellants clearly constitutes estafa under Article 315, paragraph (2), of the Revised Penal Code. Appellants next bewail the alleged total disregard by the two courts below their defense of denial which, had it been duly considered and appreciated, could have merited their acquittal. The Court disagrees. The two courts below did consider their defense of denial. However, given the positive and categorical testimonies of the complainants who were one in pointing to appellants, in cahoots with their co-accused Indira Ram Singh Lastra, as having recruited and promised them with overseas employment, appellants' defense of denial must inevitably collapse.
IAcDET

All told, we rule and so hold that the two courts below committed no error in adjudging both appellants guilty beyond reasonable doubt of the crimes of illegal recruitment committed by a syndicate in large scale and of estafa in seven (7) counts. We also rule that the penalties imposed by the court of origin, as affirmed by the CA, accord with law and jurisprudence. IN VIEW WHEREOF, the instant appeal is DISMISSED and the appealed decision of the CA, affirmatory of that the trial court, is AFFIRMED in toto. Costs against appellants. SO ORDERED.

Puno, C.J., Sandoval-Gutierrez and Corona, JJ., concur. Azcuna, J., is on official leave.

[G.R. No. 169076. January 23, 2007.] PEOPLE OF THE PHILIPPINES, appellee, vs. JOSEPH JAMILOSA, appellant.

DECISION

CALLEJO, SR., J :
p

This is an appeal from the Decision 1 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q97-72769 convicting appellant Joseph Jamilosa of large scale illegal recruitment under Sections 6 and 7 of Republic Act (R.A.) No. 8042, and sentencing him to life imprisonment and to pay a P500,000.00 fine. The Information charging appellant with large scale illegal recruitment was filed by the Senior State Prosecutor on August 29, 1997. The inculpatory portion of the Information reads:
That sometime in the months of January to February, 1996, or thereabout in the City of Quezon, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, representing to have the capacity, authority or license to contract, enlist and deploy or transport workers for overseas employment, did then and there, willfully, unlawfully and criminally recruit, contract and promise to deploy, for a fee the herein complainants, namely, Haide R. Ruallo, Imelda D. Bamba, Geraldine M. Lagman and Alma E. Singh, for work or employment in Los Angeles, California, U.S.A. in Nursing Home and Care Center without first obtaining the required license and/or authority from the Philippine Overseas Employment Administration (POEA). Contrary to law.
2

On arraignment, the appellant, assisted by counsel, pleaded not guilty to the charge. The case for the prosecution, as synthesized by the Court of Appeals (CA), is as follows:
The prosecution presented three (3) witnesses, namely: private complainants Imelda D. Bamba, Geraldine M. Lagman and Alma E. Singh. Witness Imelda D. Bamba testified that on January 17, 1996, she met the appellant in Cubao, Quezon City on board an aircon bus. She was on her way to Shoemart (SM), North EDSA, Quezon City where she was working as a company nurse. The appellant was seated beside her and introduced himself as a recruiter of workers for employment abroad. The appellant told her that his sister is a head nurse in a nursing home in Los Angeles, California, USA and he could help her get employed as a nurse at a monthly salary of Two Thousand US Dollars ($2,000.00) and that she could leave in two (2) weeks time. He further averred that he has connections with the US Embassy, being a US Federal Bureau of Investigation (FBI) agent on official mission in the Philippines for one month. According to the appellant, she has to pay the amount of US$300.00 intended for the US consul. The appellant gave his pager number and instructed her to contact him if she is interested to apply for a nursing job abroad. On January 21, 1996, the appellant fetched her at her office. They then went to her house where she gave him the photocopies of her transcript of records, diploma, Professional Regulatory Commission (PRC) license and other credentials. On January 28 or 29, 1996, she handed to the appellant the amount of US$300.00 at the McDonalds outlet in North EDSA, Quezon City, and the latter showed to her a photocopy of her supposed US visa. The appellant likewise got several pieces of jewelry which she was then selling and assured her that he would sell the same at the US embassy. However, the appellant did not issue a receipt for the said money and jewelry. Thereafter, the appellant told her to

resign from her work at SM because she was booked with Northwest Airlines and to leave for Los Angeles, California, USA on February 25, 1996. The appellant promised to see her and some of his other recruits before their scheduled departure to hand to them their visas and passports; however, the appellant who was supposed to be with them in the flight failed to show up. Instead, the appellant called and informed her that he failed to give the passport and US visa because he had to go to the province because his wife died. She and her companions were not able to leave for the United States. They went to the supposed residence of the appellant to verify, but nobody knew him or his whereabouts. They tried to contact him at the hotel where he temporarily resided, but to no avail. They also inquired from the US embassy and found out that there was no such person connected with the said office. Thus, she decided to file a complaint with the National Bureau of Investigation (NBI). Prosecution witness Geraldine Lagman, for her part, testified that she is a registered nurse by profession. In the morning of January 22, 1996, she went to SM North EDSA, Quezon City to visit her cousin Imelda Bamba. At that time, Bamba informed her that she was going to meet the appellant who is an FBI agent and was willing to help nurses find a job abroad. Bamba invited Lagman to go with her. On the same date at about 2:00 o'clock in the afternoon, she and Bamba met the appellant at the SM Fast-Food Center, Basement, North EDSA, Quezon City. The appellant convinced them of his ability to send them abroad and told them that he has a sister in the United States. Lagman told the appellant that she had no working experience in any hospital but the appellant assured her that it is not necessary to have one. The appellant asked for US$300.00 as payment to secure an American visa and an additional amount of Three Thousand Four Hundred Pesos (P3,400.00) as processing fee for other documents. On January 24, 1996, she and the appellant met again at SM North EDSA, Quezon City wherein she handed to the latter her passport and transcript of records. The appellant promised to file the said documents with the US embassy. After one (1) week, they met again at the same place and the appellant showed to her a photocopy of her US visa. This prompted her to give the amount of US$300.00 and two (2) bottles of Black Label to the appellant. She gave the said money and liquor to the appellant without any receipt out of trust and after the appellant promised her that he would issue the necessary receipt later. The appellant even went to her house, met her mother and uncle and showed to them a computer printout from Northwest Airlines showing that she was booked to leave for Los Angeles, California, USA on February 25, 1996.
cTDaEH

Four days after their last meeting, Extelcom, a telephone company, called her because her number was appearing in the appellant's cellphone documents. The caller asked if she knew him because they were trying to locate him, as he was a swindler who failed to pay his telephone bills in the amount of P100,000.00. She became suspicious and told Bamba about the matter. One (1) week before her scheduled flight on February 25, 1996, they called up the appellant but he said he could not meet them because his mother passed away. The appellant never showed up, prompting her to file a complaint with the NBI for illegal recruitment. Lastly, witness Alma Singh who is also a registered nurse, declared that she first met the appellant on February 13, 1996 at SM North EDSA, Quezon City when Imelda Bamba introduced the latter to her. The appellant told her that he is an undercover agent of the FBI and he could fix her US visa as he has a contact in the US embassy. The appellant told her that he could help her and her companions Haidee Raullo, Geraldine Lagman and Imelda Bamba find jobs in the US as staff nurses in home care centers. On February 14, 1996 at about 6:30 in the evening, the appellant got her passport and picture. The following day or on February 15, 1996, she gave the appellant the amount of US$300.00 and a bottle of cognac as "grease money" to facilitate the processing of her visa. When she asked for a receipt, the appellant assured her that there is no need for one because she was being directly hired as a nurse in the United States. She again met the appellant on February 19, 1996 at the Farmers Plaza and this time, the appellant required her to submit photocopies of her college diploma, nursing board certificate and PRC license. To show his sincerity, the appellant insisted on meeting her father. They then proceeded to the office

of her father in Barrio Ugong, Pasig City and she introduced the appellant. Thereafter, the appellant asked permission from her father to allow her to go with him to the Northwest Airlines office in Ermita, Manila to reserve airline tickets. The appellant was able to get a ticket confirmation and told her that they will meet again the following day for her to give P10,000.00 covering the half price of her plane ticket. Singh did not meet the appellant as agreed upon. Instead, she went to Bamba to inquire if the latter gave the appellant the same amount and found out that Bamba has not yet given the said amount. They then paged the appellant through his beeper and told him that they wanted to see him. However, the appellant avoided them and reasoned out that he could not meet them as he had many things to do. When the appellant did not show up, they decided to file a complaint for illegal recruitment with the NBI. The prosecution likewise presented the following documentary evidence: Exh. "A" Certification dated February 23, 1998 issued by Hermogenes C. Mateo, Director II, Licensing Branch, POEA. Exh. "B" Affidavit of Alma E. Singh dated February 23, 1996.
3

On the other hand, the case for the appellant, as culled from his Brief, is as follows:
Accused JOSEPH JAMILOSA testified on direct examination that he got acquainted with Imelda Bamba inside an aircon bus bound for Caloocan City when the latter borrowed his cellular phone to call her office at Shoe Mart (SM), North Edsa, Quezon City. He never told Bamba that he could get her a job in Los Angeles, California, USA, the truth being that she wanted to leave SM as company nurse because she was having a problem thereat. Bamba called him up several times, seeking advice from him if Los Angeles, California is a good place to work as a nurse. He started courting Bamba and they went out dating until the latter became his girlfriend. He met Geraldine Lagman and Alma Singh at the Shoe Mart (SM), North Edsa, Quezon City thru Imelda Bamba. As complainants were all seeking advice on how they could apply for jobs abroad, lest he be charged as a recruiter, he made Imelda Bamba, Geraldine Lagman and Alma Singh sign separate certifications on January 17, 1996 (Exh. "2"), January 22, 1996 (Exh. "4"), and February 19, 1996 (Exh. "3"), respectively, all to the effect that he never recruited them and no money was involved. Bamba filed an Illegal Recruitment case against him because they quarreled and separated. He came to know for the first time that charges were filed against him in September 1996 when a preliminary investigation was conducted by Fiscal Daosos of the Department of Justice. (TSN, October 13, 1999, pp. 3-9 and TSN, December 8, 1999, pp. 2-9) 4

On November 10, 2000, the RTC rendered judgment finding the accused guilty beyond reasonable doubt of the crime charged. 5 The fallo of the decision reads:
WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt of Illegal Recruitment in large scale; accordingly, he is sentenced to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00), plus costs. Accused is ordered to indemnify each of the complainants, Imelda Bamba, Geraldine Lagman and Alma Singh the amount of Three Hundred US Dollars ($300.00). SO ORDERED.
6

In rejecting the defenses of the appellant, the trial court declared:


To counter the version of the prosecution, accused claims that he did not recruit the complainants for work abroad but that it was they who sought his advice relative to their desire to apply for jobs in Los Angeles, California, USA and thinking that he might be charged as a recruiter, he made them sign three

certifications, Exh. "2," "3" and "4," which in essence state that accused never recruited them and that there was no money involved. Accused's contention simply does not hold water. Admittedly, he executed and submitted a counteraffidavit during the preliminary investigation at the Department of Justice, and that he never mentioned the aforesaid certifications, Exhibits 2, 3 and 4 in said counter-affidavit. These certifications were allegedly executed before charges were filed against him. Knowing that he was already being charged for prohibited recruitment, why did he not bring out these certifications which were definitely favorable to him, if the same were authentic. It is so contrary to human nature that one would suppress evidence which would belie the charge against him. Denials of the accused can not stand against the positive and categorical narration of each complainant as to how they were recruited by accused who had received some amounts from them for the processing of their papers. Want of receipts is not fatal to the prosecution's case, for as long as it has been shown, as in this case, that accused had engaged in prohibited recruitment. ( People v. Pabalan, 262 SCRA 574). That accused is neither licensed nor authorized to recruit workers for overseas employment, is shown in the Certification issued by POEA, Exh. "A." In fine, the offense committed by the accused is Illegal Recruitment in large scale, it having been committed against three (3) persons, individually. 7

Appellant appealed the decision to this Court on the following assignment of error:
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF ILLEGAL RECRUITMENT IN LARGE SCALE DESPITE THE FACT THAT THE LATTER'S GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT BY THE PROSECUTION. 8

According to appellant, the criminal Information charging him with illegal recruitment specifically mentioned the phrase "for a fee," and as such, receipts to show proof of payment are indispensable. He pointed out that the three (3) complaining witnesses did not present even one receipt to prove the alleged payment of any fee. In its eagerness to cure this "patent flaw," the prosecution resorted to presenting the oral testimonies of complainants which were "contrary to the ordinary course of nature and ordinary habits of life [under Section 3 (y), Rule 131 of the Rules on Evidence] and defied credulity." Appellant also pointed out that complainants' testimony that they paid him but no receipts were issued runs counter to the presumption under Section [3] (d), Rule 131 of the Rules on Evidence that persons take ordinary care of their concern. The fact that complainants were not able to present receipts lends credence to his allegation that it was they who sought advice regarding their desire to apply for jobs in Los Angeles, California, USA. Thus, thinking that he might be charged as a recruiter, he made them sign three (3) certifications stating that he never recruited them and there was no money involved. On the fact that the trial court disregarded the certifications due to his failure to mention them during the preliminary investigation at the Department of Justice (DOJ), appellant pointed out that there is no provision in the Rules of Court which bars the presentation of evidence during the hearing of the case in court. He also pointed out that the counter-affidavit was prepared while he was in jail "and probably not assisted by a lawyer." 9 Appellee, through the Office of the Solicitor General (OSG), countered that the absence of receipts signed by appellant acknowledging receipt of the money and liquor from the complaining witnesses cannot defeat the prosecution and conviction for illegal recruitment. The OSG insisted that the prosecution was able to prove the guilt of appellant beyond reasonable doubt via the collective testimonies of the complaining witnesses, which the trial court found credible and deserving of full probative weight. It pointed out that appellant failed to prove any ill-motive on the part of the complaining witnesses to falsely charge him of illegal recruitment.
cASEDC

On appellant's claim that the complaining witness Imelda Bamba was his girlfriend, the OSG averred:

Appellant's self-serving declaration that Imelda is his girlfriend and that she filed a complaint for illegal recruitment after they quarreled and separated is simply preposterous. No love letters or other documentary evidence was presented by appellant to substantiate such claim which could be made with facility. Imelda has no reason to incriminate appellant except to seek justice. The evidence shows that Alma and Geraldine have no previous quarrel with appellant. Prior to their being recruited by appellant, Alma and Geraldine have never met appellant. It is against human nature and experience for private complainants to conspire and accuse a stranger of a most serious crime just to mollify their hurt feelings. (People v. Coral, 230 SCRA 499, 510 [1994]) 10

The OSG posited that the appellant's reliance on the certifications 11 purportedly signed by the complaining witnesses is misplaced, considering that the certifications are barren of probative weight. On February 23, 2005, the Court resolved to transfer the case to the CA. judgment affirming the decision of the RTC. 13
12 On

June 22, 2005, the CA rendered

The OSG filed a Supplemental Brief, while the appellant found no need to file one. The appeal has no merit. Article 13 (b) of the Labor Code of the Philippines defines recruitment and placement as follows:
(b)"Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not. Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.

Section 6 of R.A. No. 8042 defined when recruitment is illegal:


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

Any recruitment activities to be undertaken by non-licensee or non-holder of contracts shall be deemed illegal and punishable under Article 39 of the Labor Code of the Philippines. 14 Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. 15 To prove illegal recruitment in large scale, the prosecution is burdened to prove three (3) essential elements, to wit: (1) the person charged undertook a recruitment activity under Article 13 (b) or any prohibited practice under Article 34 of the Labor Code; (2) accused did not have the license or the authority to lawfully engage in the recruitment and placement of workers; and (3) accused committed the same against three or more persons individually or as a group.16 As gleaned from the collective testimonies of the complaining witnesses which the trial court and the appellate court found to be credible and deserving of full probative weight, the prosecution mustered the requisite quantum of evidence to prove the guilt of accused beyond reasonable doubt for the crime charged. Indeed, the findings of the trial court, affirmed on appeal by the CA, are conclusive on this Court absent evidence that the tribunals ignored, misunderstood, or misapplied substantial fact or other circumstance. The failure of the prosecution to adduce in evidence any receipt or document signed by appellant where he acknowledged to have received money and liquor does not free him from criminal liability. Even in the absence

of money or other valuables given as consideration for the "services" of appellant, the latter is considered as being engaged in recruitment activities. It can be gleaned from the language of Article 13 (b) of the Labor Code that the act of recruitment may be for profit or not. It is sufficient that the accused promises or offers for a fee employment to warrant conviction for illegal recruitment. 17 As the Court held in People v. Sagaydo: 18
Such is the case before us. The complainants parted with their money upon the prodding and enticement of accused-appellant on the false pretense that she had the capacity to deploy them for employment abroad. In the end, complainants were neither able to leave for work abroad nor get their money back.

The fact that private complainants Rogelio Tibeb and Jessie Bolinao failed to produce receipts as proof of their payment to accused-appellant does not free the latter from liability. The absence of receipts cannot defeat a criminal prosecution for illegal recruitment. As long as the witnesses can positively show through their respective testimonies that the accused is the one involved in prohibited recruitment, he may be convicted of the offense despite the absence of receipts. 19

Appellant's reliance on the certifications purportedly signed by the complaining witnesses Imelda Bamba, Alma Singh and Geraldine Lagman 20 is misplaced. Indeed, the trial court and the appellate court found the certifications barren of credence and probative weight. We agree with the following pronouncement of the appellate court:
Anent the claim of the appellant that the trial court erred in not giving weight to the certifications (Exhs. "2," "3" & "4") allegedly executed by the complainants to the effect that he did not recruit them and that no money was involved, the same deserves scant consideration. The appellant testified that he was in possession of the said certifications at the time the same were executed by the complainants and the same were always in his possession; however, when he filed his counter-affidavit during the preliminary investigation before the Department of Justice, he did not mention the said certifications nor attach them to his counter-affidavit. We find it unbelievable that the appellant, a college graduate, would not divulge the said certifications which would prove that, indeed, he is not an illegal recruiter. By failing to present the said certifications prior to the trial, the appellant risks the adverse inference and legal presumption that, indeed, such certifications were not genuine. When a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose. As aptly pointed out by the trial court: ". . . These certifications were allegedly executed before charges were filed against him. Knowing that he was already being charged for prohibited recruitment, why did he not bring out these certifications which were definitely favorable to him, if the same were authentic. It is so contrary to human nature that one would suppress evidence which would belie the charge against him." (Emphasis Ours) 21

At the preliminary investigation, appellant was furnished with copies of the affidavits of the complaining witnesses and was required to submit his counter-affidavit. The complaining witnesses identified him as the culprit who "recruited" them. At no time did appellant present the certifications purportedly signed by the complaining witnesses to belie the complaint against him. He likewise did not indicate in his counter-affidavit that the complaining witnesses had executed certifications stating that they were not recruited by him and that he did not receive any money from any of them. He has not come forward with any valid excuse for his inaction. It was only when he testified in his defense that he revealed the certifications for the first time. Even

then, appellant lied when he claimed that he did not submit the certifications because the State Prosecutor did not require him to submit any counter-affidavit, and that he was told that the criminal complaint would be dismissed on account of the failure of the complaining witnesses to appear during the preliminary investigation. The prevarications of appellant were exposed by Public Prosecutor Pedro Catral on crossexamination, thus:
QMr. Witness, you said that a preliminary investigation [was] conducted by the Department of Justice through State Prosecutor Daosos. Right? AYes, Sir. QWere you requested to file your Counter-Affidavit? AYes, Sir. I was required. QDid you file your Counter-Affidavit? AYes, Sir, but he did not accept it. QWhy? ABecause he said "never mind" because the witness is not appearing so he dismissed the case. QAre you sure that he did not accept your Counter-Affidavit, Mr. Witness? AI don't know of that, Sir. QIf I show you that Counter-Affidavit you said you prepared, will you be able to identify the same, Mr. Witness? AYes, Sir. QI will show you the Counter-Affidavit dated June 16, 1997 filed by one Joseph J. Jamilosa, will you please go over this and tell if this is the same Counter-Affidavit you said you prepared and you are going to file with the investigating state prosecutor? AYes, Sir. This the same Counter-Affidavit. QThere is a signature over the typewritten name Joseph J. Jamilosa, will you please go over this and tell this Honorable Court if this is your signature, Mr. Witness? AYes, Sir. This is my signature. QDuring the direct examination you were asked to identify [the] Certification as Exh. "2" dated January 17, 1996, allegedly issued by Bamba, one of the complainants in this case, when did you receive this Certification issued by Imelda Bamba, Mr. Witness? AThat is the date, Sir. QYou mean the date appearing in the Certification. AYes, Sir. QWhere was this handed to you by Imelda Bamba, Mr. Witness?

AAt SM North Edsa, Sir. QDuring the direct examination you were also asked to identify a Certification Exh. "3" for the defense dated February 19, 1996, allegedly issued by Alma Singh, one of the complainants in this case, will you please go over this and tell us when did Alma Singh allegedly issue to you this Certification? AOn February 19, 1996, Sir. QAnd also during the direct examination, you were asked to identify a Certification which was already marked as Exh. "4" for the defense dated January 22, 1996 allegedly issued by Geraldine M. Lagman, one of the complainants in this case, will you please tell the court when did Geraldine Lagman give you this Certification? AJanuary 22, 1996, Sir. QDuring that time, January 22, 1996, January 17, 1996 and February 19, 1996, you were in possession of all these Certification. Correct, Mr. Witness? AYes, Sir. QThese were always in your possession. Right? AYes, Sir, with my papers. QDo you know when did the complainants file cases against you? AI don't know, Sir. QAlright. I will read to you this Counter-Affidavit of yours, and I quote "I, Joseph Jamilosa, of legal age, married and resident of Manila City Jail, after having duly sworn to in accordance with law hereby depose and states that: 1) the complainants sworn under oath to the National Bureau of Investigation that I recruited them and paid me certain sums of money assuming that there is truth in those allegation of this ( sic) complainants. The charge filed by them should be immediately dismissed for certain lack of merit in their Sworn Statement to the NBI Investigator; 2) likewise, the complainants' allegation is not true and I never recruited them to work abroad and that they did not give me money, they asked me for some help so I [helped] them in assisting and processing the necessary documents, copies for getting US Visa; 3) the complainant said under oath that they can show a receipt to prove that they can give me sums or amount of money. That is a lie. They sworn (sic), under oath, that they can show a receipt that I gave to them to prove that I got the money from them. I asked the kindness of the state prosecutor to ask the complainants to show and produce the receipts that I gave to them that was stated in the sworn statement of the NBI; 4) the allegation of the complainants that the charges filed by them should be dismissed because I never [received] any amount from them and they can not show any receipt that I gave them," Manila City Jail, Philippines, June 16, 1997. So, Mr. Witness, June 16, 1997 is the date when you prepared this. Correct? AYes, Sir. QNow, my question to you, Mr. Witness, you said that you have with you all the time the Certification issued by [the] three (3) complainants in this case, did you allege in your Counter-Affidavit that this Certification you said you claimed they issued to you? AI did not say that, Sir. QSo, it is not here in your Counter-Affidavit?

ANone, Sir. QWhat is your educational attainment, Mr. Witness? AI am a graduate of AB Course Associate Arts in 1963 at the University of the East. QYou said that the State Prosecutor of the Department of Justice did not accept your Counter-Affidavit, are you sure of that, Mr. Witness? AYes, Sir. QDid you receive a copy of the dismissal which you said it was dismissed? ANo, Sir. I did not receive anything. QDid you receive a resolution from the Department of Justice? ANo, Sir. QDid you go over the said resolution you said you received here? AI just learned about it now, Sir. QDid you read the content of the resolution? ANot yet, Sir. It's only now that I am going to read. COURT QYou said it was dismissed. Correct? AYes, Your Honor. QDid you receive a resolution of this dismissal? ANo, Your Honor. FISCAL CATRAL QWhat did you receive? AI did not receive any resolution, Sir. It's just now that I learned about the finding. QYou said you learned here in court, did you read the resolution filed against you, Mr. Witness? AI did not read it, Sir. QDid you read by yourself the resolution made by State Prosecutor Daosos, Mr. Witness? ANot yet, Sir. QWhat did you take, if any, when you received the subpoena from this court? AI was in court already when I asked Atty. Usita to investigate this case.

QYou said a while ago that your Affidavit was not accepted by State Prosecutor Daosos. Is that correct? AYes, Sir. QWill you please read to us paragraph four (4), page two (2) of this resolution of State Prosecutor Daosos. (witness reading par. 4 of the resolution) Alright. What did you understand of this paragraph 4, Mr. Witness? AProbably, guilty to the offense charge.
22

It turned out that appellant requested the complaining witnesses to sign the certifications merely to prove that he was settling the cases:
COURT QThese complainants, why did you make them sign in the certifications? ABecause one of the complainants told me to sign and they are planning to sue me. QYou mean they told you that they are filing charges against you and yet you [made] them sign certifications in your favor, what is the reason why you made them sign? ATo prove that I'm settling this case. QDespite the fact that they are filing cases against you and yet you were able to make them sign certifications? AOnly one person, Your Honor, who told me and he is not around. QBut they all signed these three (3) certifications and yet they filed charges against you and yet you made them sign certifications in your favor, so what is the reason why you made them sign? (witness can not answer)
23

The Court notes that the trial court ordered appellant to refund US$300.00 to each of the complaining witnesses. The ruling of the appellate court must be modified. Appellant must pay only the peso equivalent of US$300.00 to each of the complaining witnesses. IN LIGHT OF ALL THE FOREGOING, the appeal is DISMISSED. The Decision of the Court of Appeals affirming the conviction of Joseph Jamilosa for large scale illegal recruitment under Sections 6 and 7 of Republic Act No. 8042 is AFFIRMED WITH MODIFICATION. The appellant is hereby ordered to refund to each of the complaining witnesses the peso equivalent of US$300.00. Costs against appellant. SO ORDERED.

Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.

[G.R. No. 156029. November 14, 2008.] SANTOSA B. DATUMAN, petitioner, vs. FIRST COSMOPOLITAN MANPOWER AND PROMOTION SERVICES, INC., respondent.

DECISION

LEONARDO-DE CASTRO, J :
p

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Court of Appeals (CA) Decision 1 dated August 7, 2002, in CA-G.R. SP No. 59825, setting aside the Decision of the National Labor Relations Commission (NLRC).
HCSEIT

The facts are as follows: Sometime in 1989, respondent First Cosmopolitan Manpower & Promotion Services, Inc. recruited petitioner Santosa B. Datuman to work abroad under the following terms and conditions:
Site of employment-Bahrain Employees Classification/Position/Grade-Saleslady Basic Monthly Salary-US$370.00 Duration of Contract-One (1) year Foreign Employer-Mohammed Sharif Abbas Ghulam Hussain 2

On April 17, 1989, petitioner was deployed to Bahrain after paying the required placement fee. However, her employer Mohammed Hussain took her passport when she arrived there; and instead of working as a saleslady, she was forced to work as a domestic helper with a salary of Forty Bahrain Dinar (BD40.00), equivalent only to One Hundred US Dollars (US$100.00). This was contrary to the agreed salary of US$370.00 indicated in her Contract of Employment signed in the Philippines and approved by the Philippine Overseas Employment Administration (POEA). 3 On September 1, 1989, her employer compelled her to sign another contract, transferring her to another employer as housemaid with a salary of BD40.00 for the duration of two (2) years. 4 She pleaded with him to give her a release paper and to return her passport but her pleas were unheeded. Left with no choice, she continued working against her will. Worse, she even worked without compensation from September 1991 to April 1993 because of her employer's continued failure and refusal to pay her salary despite demand. In May 1993, she was able to finally return to the Philippines through the help of the Bahrain Passport and Immigration Department. 5 In May 1995, petitioner filed a complaint before the POEA Adjudication Office against respondent for underpayment and nonpayment of salary, vacation leave pay and refund of her plane fare, docketed as Case No. POEA ADJ. (L) 95-05-1586. 6 While the case was pending, she filed the instant case before the NLRC for underpayment of salary for a period of one year and six months, nonpayment of vacation pay and reimbursement of return airfare.
EHSITc

When the parties failed to arrive at an amicable settlement before the Labor Arbiter, they were required to file their respective position papers, subsequent pleadings and documentary exhibits. In its Position Paper, 7 respondent countered that petitioner actually agreed to work in Bahrain as a housemaid for one (1) year because it was the only position available then. However, since such position was not yet allowed by the POEA at that time, they mutually agreed to submit the contract to the POEA indicating petitioner's position as saleslady. Respondent added that it was actually petitioner herself who violated the terms of their contract when she allegedly transferred to another employer without respondent's knowledge and approval. Lastly, respondent raised the defense of prescription of cause of action since the claim was filed beyond the three (3)-year period from the time the right accrued, reckoned from either 1990 or 1991. 8 On April 29, 1998, Labor Arbiter Jovencio Mayor, Jr. rendered a Decision finding respondent liable for violating the terms of the Employment Contract and ordering it to pay petitioner: (a) the amount of US$4,050.00, or its equivalent rate prevailing at the time of payment, representing her salary differentials for fifteen (15) months; and, (b) the amount of BD180.00 or its equivalent rate prevailing at the time of payment, representing the refund of plane ticket, thus:
DAaEIc

From the foregoing factual backdrop, the only crucial issue for us to resolve in this case is whether or not complainant is entitled to her monetary claims.
AacDHE

xxx xxx xxx In the instant case, from the facts and circumstances laid down, it is thus self-evident that the relationship of the complainant and respondent agency is governed by the Contract of Employment, the basic terms a covenants of which provided for the position of saleslady, monthly compensation of US$370.00 and duration of contract for one (1) year. As it is, when the parties complainant and respondent Agency signed and executed the POEA approved Contract of Employment, this agreement is the law that governs them. Thus, when respondent agency deviated from the terms of the contract by assigning the position of a housemaid to complainant instead of a saleslady as agreed upon in the POEA-approved Contract of Employment, respondent Agency committed a breach of said Employment Contract. Worthy of mention is the fact that respondent agency in their Position Paper paragraph 2, Brief Statement of the Facts and of the Case admitted that it had entered into an illegal contract with complainant by proposing the position of a housemaid which said position was then not allowed by the POEA, by making it appear in the Employment Contract that the position being applied for is the position of a saleslady. As it is, we find indubitably clear that the foreign employer had took advantage to the herein hopeless complainant and because of this ordeal, the same obviously rendered complainant's continuous employment unreasonable if not downright impossible . The facts and surrounding circumstances of her ordeal was convincingly laid down by the complainant in her Position Paper, from which we find no flaws material enough to disregard the same. Complainant had clearly made out her case and no amount of persuasion can convince us to tilt the scales of justice in favor of respondents whose defense was anchored solely on the flimsy allegations that for a period of more than five (5) years from 1989 until 1995 nothing was heard from her or from her relatives, presuming then that complainant had no problem with her employment abroad. We also find that the pleadings and the annexes filed by the parties reveal a total lapse on the part of respondent First Cosmopolitan Manpower and Promotions their failure to support with substantial evidence their contention that complainant transferred from one employer to another without knowledge and approval of respondent agency in contravention of the terms of the POEA approved Employment Contract. Obviously, respondent Agency anchored its disquisition on the alleged "contracts" signed by the complainant that she agreed with the terms of said contracts one (1) year duration only and as a housemaid to support its contention that complainant violated the contract agreement by transferring from one employer to another on her own volition without the knowledge and consent of respondent agency. To us, this posture of respondent agency is unavailing. These "documents" are self-serving. We could not but rule that the same were fabricated to tailor-fit their defense that complainant was guilty of violating the terms of the Employment Contract. Consequently, we could not avoid the inference of a more logical conclusion that complainant was forced against her will to

continue with her employment notwithstanding the fact that it was in violation of the original Employment Contract including the illegal withholding of her passport. With the foregoing, we find and so rule that respondent Agency failed to discharge the burden of proving with substantial evidence that complainant violated the terms of the Employment Contract, thus negating respondent Agency's liability for complainant's money claims. All the more, the record is bereft of any evidence to show that complainant Datuman is either not entitled to her wage differentials or have already received the same from respondent. As such, we are perforce constrained to grant complainant's prayer for payment of salary differentials computed as follows: January 1992 April 1993 (15 months) US$370.00agreed salary US$100.00actual paid salary US$270.00balance US$270.00 x 15 months = US$4050.00 We are also inclined to grant complainant's entitlement to a refund of her plane ticket in the amount of BD180 Bahrain Dinar or the equivalent in Philippine Currency at the rate of exchange prevailing at the time of payment.
SHCaDA

Anent complainant's claim for vacation leave pay and overtime pay, we cannot, however, grant the same for failure on the part of complainant to prove with particularity the months that she was not granted vacation leave and the day wherein she did render overtime work. Also, we could not grant complainant's prayer for award of damages and attorney's fees for lack of factual and legal basis. WHEREFORE, premises considered, judgment is hereby rendered, finding respondent Agency liable for violating the term of Employment Contract and respondent First Cosmopolitan Manpower and Promotions is hereby ordered: To pay complainant the amount of US$ FOUR THOUSAND AND FIFTY (US$4,050.00), or its equivalent rate prevailing at the time of payment, representing her salary differentials for fifteen (15) months; To pay complainant the amount of BD180.00 or its equivalent rate prevailing at the time of payment, representing the refund of plane ticket; All other claims are hereby dismissed for lack of merit. SO ORDERED.
9

(emphasis supplied)

On appeal, the NLRC, Second Division, issued a Decision 10 affirming with modification the Decision of Labor Arbiter Mayor, Jr., by reducing the award of salary differentials from US$4,050.00 to US$2,970.00 ratiocinating as follows:
Accordingly, we find that the claims for salary differentials accruing earlier than April of 1993 had indeed prescribed. This is so as complainant had filed her complaint on May 31, 1995 when she arrived from the jobsite in April 1993. Since the cause of action for salary differential accrues at the time when it falls due, it is clear that only the claims for the months of May 1993 to April 1994 have not yet prescribed. With an approved salary rate of US$370.00 vis--vis the amount of salary received which was $100.00, complainant is entitled to the salary differential for the said period in the amount of $2,970.00.
IHcTDA

xxx xxx xxx WHEREFORE, premises considered, judgment is hereby rendered MODIFYING the assailed Decision by reducing the award of salary differentials to $2,970.00 to the complainant. The rest of the disposition is AFFIRMED. SO ORDERED.
11

On July 21, 2000, respondent elevated the matter to the CA through a petition for certiorari under Rule 65. On August 2, 2000, 12 the CA dismissed the petition for being insufficient in form pursuant to the last paragraph of Section 3, Rule 42 of the 1997 Rules of Civil Procedure, as amended. On October 20, 2000, reconsideration. 14
13

however, the CA reinstated the petition upon respondent's motion for granting the petition and reversing the NLRC and

On August 7, 2002, the CA issued the assailed Decision the Labor Arbiter, thus:

15

Under Section 1 (f), Rule II, Book II of the 1991 POEA Rules and Regulations, the local agency shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, health and disability compensation and repatriation. Respondent Commission was correct in declaring that claims of private respondent "for salary differentials accruing earlier than April of 1993 had indeed prescribed." It must be noted that petitioner company is privy only to the first contract. Granting arguendo that its liability extends to the acts of its foreign principal, the Towering Recruiting Services, which appears to have a hand in the execution of the second contract, it is Our considered opinion that the same would, at the most, extend only up to the expiration of the second contract or until 01 September 1991. Clearly, the money claims subject of the complaint filed in 1995 had prescribed.
STIcEA

However, this Court declares respondent Commission as not only having abused its discretion, but as being without jurisdiction at all, in declaring private respondent entitled to salary differentials. After decreeing the money claims accruing before April 1993 as having prescribed, it has no more jurisdiction to hold petitioner company for salary differentials after that period. To reiterate, the local agency shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract. Which contract? Upon a judicious consideration, we so hold that it is only in connection with the first contract. The provisions in number 2, Section 10 (a), Rule V, Book I of the Omnibus Rules Implementing the Labor Code Section 1 (f), Rule II, Book II of the 1991 POEA Rules and Regulations were not made to make the local agency a perpetual insurer against all untoward acts that may be done by the foreign principal or the direct employer abroad. It is only as regards the principal contract to which it is privy shall its liability extend. In Catan v. National Labor Relations Commission, 160 SCRA 691 (1988), it was held that the responsibilities of the local agent and the foreign principal towards the contracted employees under the recruitment agreement extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. xxx xxx xxx Foregoing considered, the assailed Decision dated 24 February 2000 and the Resolution dated 23 June 2000 of respondent Commission in NLRC NCR CA 016354-98 are hereby SET ASIDE. SO ORDERED.
16

Petitioner's Motion for Reconsideration 14, 2002.

17

thereon was denied in the assailed Resolution

18

dated November

Hence, the present petition based on the following grounds:


I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT ABANDONED THE FACTUAL FINDINGS OF THE LABOR ARBITER AS AFFIRMED BY THE NATIONAL LABOR RELATIONS COMMISSION.
IADaSE

II. THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN HOLDING THAT THE RESPONDENT AGENCY IS ONLY A [sic] PRIVY AND LIABLE TO THE PRINCIPAL CONTRACT. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE CAUSE OF ACTION OF THE PETITIONER ALREADY PRESCRIBED.

The respondent counters in its Comment that the CA is correct in ruling that it is not liable for the monetary claims of petitioner as the claim had already prescribed and had no factual basis. Simply put, the issues boil down to whether the CA erred in not holding respondent liable for petitioner's money claims pursuant to their Contract of Employment. We grant the petition.

On whether respondent is solidarily liable for petitioner's monetary claims


Section 1 of Rule II of the POEA Rules and Regulations states that:
Section 1.Requirements for Issuance of License. Every applicant for license to operate a private employment agency or manning agency shall submit a written application together with the following requirements: xxx xxx xxx f.A verified undertaking stating that the applicant: xxx xxx xxx (3)Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract; including but not limited to payment of wages, death and disability compensation and repatriation. (emphasis supplied)

ADECcI

The above provisions are clear that the private employment agency shall assume joint and solidary liability with the employer. 19 This Court has, time and again, ruled that private employment agencies are held jointly and severally liable with the foreign-based employer for any violation of the recruitment agreement or contract of employment. 20 This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him. 21 This is in line with the policy of the state to protect and alleviate the plight of the working class.

In the assailed Decision, the CA disregarded the aforecited provision of the law and the policy of the state when it reversed the findings of the NLRC and the Labor Arbiter. As the agency which recruited petitioner, respondent is jointly and solidarily liable with the latter's principal employer abroad for her (petitioner's) money claims. Respondent cannot, therefore, exempt itself from all the claims and liabilities arising from the implementation of their POEA-approved Contract of Employment. We cannot agree with the view of the CA that the solidary liability of respondent extends only to the first contract (i.e. the original, POEA-approved contract which had a term of until April 1990). The signing of the "substitute" contracts with the foreign employer/principal before the expiration of the POEA-approved contract and any continuation of petitioner's employment beyond the original one-year term, against the will of petitioner, are continuing breaches of the original POEA-approved contract. To accept the CA's reasoning will open the floodgates to even more abuse of our overseas workers at the hands of their foreign employers and local recruiters, since the recruitment agency could easily escape its mandated solidary liability for breaches of the POEA-approved contract by colluding with their foreign principals in substituting the approved contract with another upon the worker's arrival in the country of employment. Such outcome is certainly contrary to the State's policy of extending protection and support to our overseas workers. To be sure, Republic Act No. 8042 explicitly prohibits the substitution or alteration to the prejudice of the worker of employment contracts already approved and verified by the Department of Labor and Employment (DOLE) from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE. 22
ECTHIA

Respondent's contention that it was petitioner herself who violated their Contract of Employment when she signed another contract in Bahrain deserves scant consideration. It is the finding of both the Labor Arbiter and the NLRC which, significantly, the CA did not disturb that petitioner was forced to work long after the term of her original POEA-approved contract, through the illegal acts of the foreign employer. In Placewell International Services Corporation v. Camote, 23 we held that the subsequently executed side agreement of an overseas contract worker with her foreign employer which reduced his salary below the amount approved by the POEA is void because it is against our existing laws, morals and public policy. The said side agreement cannot supersede the terms of the standard employment contract approved by the POEA. Hence, in the present case, the diminution in the salary of petitioner from US$370.00 to US$100 (BD40.00) per month is void for violating the POEA-approved contract which set the minimum standards, terms, and conditions of her employment. Consequently, the solidary liability of respondent with petitioner's foreign employer for petitioner's money claims continues although she was forced to sign another contract in Bahrain. It is the terms of the original POEA-approved employment contract that shall govern the relationship of petitioner with the respondent recruitment agency and the foreign employer. We agree with the Labor Arbiter and the NLRC that the precepts of justice and fairness dictate that petitioner must be compensated for all months worked regardless of the supposed termination of the original contract in April 1990. It is undisputed that petitioner was compelled to render service until April 1993 and for the entire period that she worked for the foreign employer or his unilaterally appointed successor, she should have been paid US$370/month for every month worked in accordance with her original contract.
HTSIEa

Respondent cannot disclaim liability for the acts of the foreign employer which forced petitioner to remain employed in violation of our laws and under the most oppressive conditions on the allegation that it purportedly had no knowledge of, or participation in, the contract unwillingly signed by petitioner abroad. We cannot give credence to this claim considering that respondent by its own allegations knew from the outset that the contract submitted to the POEA for approval was not to be the "real" contract. Respondent blithely admitted to submitting to the POEA a contract stating that the position to be filled by petitioner is that of "Saleslady" although she was to be employed as a domestic helper since the latter position was not approved for deployment by the POEA at that time. Respondent's evident bad faith and admitted circumvention of the

laws and regulations on migrant workers belie its protestations of innocence and put petitioner in a position where she could be exploited and taken advantage of overseas, as what indeed happened to her in this case. We look upon with great disfavor the unsubstantiated actuations of innocence or ignorance on the part of local recruitment agencies of acts of their foreign principals, as if the agencies' responsibility ends with the deployment of the worker. In the light of the recruitment agency's legally mandated joint and several liability with the foreign employer for all claims in connection with the implementation of the contract, it is the recruitment agency's responsibility to ensure that the terms and conditions of the employment contract, as approved by the POEA, are faithfully complied with and implemented properly by its foreign client/principal. Indeed, it is in its best interest to do so to avoid being haled to the courts or labor tribunals and defend itself from suits for acts of its foreign principal.
IaEACT

On whether petitioner's claims for underpaid salaries have prescribed


It should be recalled that the Labor Arbiter and the NLRC similarly found that petitioner is entitled to underpaid salaries, albeit they differed in the number of months for which salary differentials should be paid. The CA, on the other hand, held that all of petitioner's monetary claims have prescribed pursuant to Article 291 of the Labor Code which provides that:
Art. 291.Money Claims. All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed withinthree years from the time that cause of action accrued; otherwise, they shall be forever barred. (emphasis supplied)

We do not agree with the CA when it held that the cause of action of petitioner had already prescribed as the three-year prescriptive period should be reckoned from September 1, 1989 when petitioner was forced to sign another contract against her will. As stated in the complaint, one of petitioner's causes of action was for underpayment of salaries. The NLRC correctly ruled the right to claim unpaid salaries (or in this case, unpaid salary differentials) accrue as they fall due. 24 Thus, petitioner's cause of action to claim salary differential for October 1989 only accrued after she had rendered service for that month (or at the end of October 1989). Her right to claim salary differential for November 1989 only accrued at the end of November 1989, and so on and so forth. Both the Labor Arbiter and the NLRC found that petitioner was forced to work until April 1993. Interestingly, the CA did not disturb this finding but held only that the extent of respondent's liability was limited to the term under the original contract or, at most, to the term of the subsequent contract entered into with the participation of respondent's foreign principal, i.e. 1991. We have discussed previously the reasons why (a) the CA's theory of limited liability on the part of respondent is untenable and (b) the petitioner has a right to be compensated for all months she, in fact, was forced to work. To determine for which months petitioner's right to claim salary differentials has not prescribed, we must count three years prior to the filing of the complaint on May 31, 1995. Thus, only claims accruing prior to May 31, 1992 have prescribed when the complaint was filed on May 31, 1995. Petitioner is entitled to her claims for salary differentials for the period May 31, 1992 to April 1993, or approximately eleven (11) months. 25 We find that the NLRC correctly computed the salary differential due to petitioner at US$2,970.00 (US$370.00 as approved salary rate - US$100.00 as salary received = US$290 as underpaid salary per month x 11 months). However, it should be for the period May 31, 1992 to April 1993 and not May 1993 to April 1994 as erroneously stated in the NLRC's Decision.

A final note
This Court reminds local recruitment agencies that it is their bounden duty to guarantee our overseas workers that they are being recruited for bona fide jobs withbona fide employers. Local agencies should never allow

themselves to be instruments of exploitation or oppression of their compatriots at the hands of foreign employers. Indeed, being the ones who profit most from the exodus of Filipino workers to find greener pastures abroad, recruiters should be first to ensure the welfare of the very people that keep their industry alive.
CAaSHI

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated August 7, 2002 and Resolution dated November 14, 2002 in CA-G.R. SP No. 59825 are REVERSED AND SET ASIDE. The Decision of the National Labor Relations Commission dated February 24, 2000 is REINSTATED with a qualification with respect to the award of salary differentials, which should be granted for the period May 31, 1992 to April 1993 and not May 1993 to April 1994. SO ORDERED.

Carpio,

**

Austria-Martinez,

***

Corona and Carpio-Morales,

***

JJ., concur.

Puno, C.J., is on official leave.

[G.R. No. 182232. October 6, 2008.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NENITA B. HU, accused-appellant.

DECISION

CHICO-NAZARIO, J :
p

This is a Petition for Review on Certiorari filed by accused-appellant Nenita B. Hu (Hu) seeking to reverse and set aside the Decision 1 of the Court of Appeals dated 9 October 2007 in CA-G.R.-CR.-H.C. No. 02243, affirming with modification the Decision 2 dated 4 January 2005 of the Regional Trial Court (RTC) of Makati City, Branch 66, in Criminal Case No. 03-356. The RTC in its Decision found Hu guilty beyond reasonable doubt of the crime of illegal recruitment in large scale, as defined and penalized under Section 7 (b) of Republic Act No. 8042, 3 and accordingly, sentenced her to suffer the penalty of life imprisonment, to pay the fine of P500,000.00, and to indemnify private complainants Paul Abril (Abril), Joel Panguelo (Panguelo) and Evangeline Garcia (Garcia) in the amounts of P44,000.00, P50,000 and P50,000, respectively. The decretal part of the assailed Court of Appeals Decision reads:
ACEIac

Wherefore, in the light of the foregoing disquisitions, the decision of the Regional Trial Court of Makati City, Branch 66, in Criminal Case No. 03-856, finding appellant Nenita B. Hu, guilty beyond reasonable doubt of the crime charged, is hereby AFFIRMED with MODIFICATION. As modified, the award of actual damages in the amount of P50,000 in favor of Evangeline Garcia, is DELETED. 4

The antecedent facts are as follows: An Information which reads:


5

for Illegal Recruitment in Large Scale was filed against Hu and Ethel V. Genoves (Genoves)

The undersigned Prosecutor accuses Ethel V. Genoves a.k.a. Merry Ann Genoves and Nenita B. Hu, of the crime of Violation of Section 6 penalized under Section 7(b) of RA 8042 6 (Illegal Recruitment in Large Scale) committed as follows: That on or about the 9th day of October 2001, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and both of them helping and aiding one another, did then and there willfully, unlawfully and feloniously recruit, promise employment/job placement abroad for an overseas employment and collect fees from the following persons to wit: NOEL P. DELAYUNJOEY F. SILAO JOEL U. PANGUELOPAUL C. ABRIL EVANGELINE E. GARCIAERIC V. ORILLANO thus in large scale amounting to economic sabotage without any license or authorized by the POEA of the Department of Labor and Employment to recruit workers for an overseas employment.

Upon arraignment, Hu assisted by counsel entered a plea of not guilty while Genoves remained at large. 7 Subsequently, trial on the merits ensued. While the Information for illegal recruitment named several persons as having been promised jobs by Hu and Genoves, only four of them Panguelo, Garcia, Abril and Orillano testified.
CHcETA

Hu was the President of Brighturn International Services, Inc. (Brighturn), a land-based recruitment agency duly licensed by the Philippine Overseas Employment Agency (POEA) to engage in the business of recruitment and placement of workers abroad, with principal address at No. 1916 San Marcelino St., Malate, Manila. Brighturn was authorized by the POEA to recruit, process and deploy land-based workers for the period 18 December 1999 to 17 December 2001. 8 Genoves worked as a consultant and marketing officer of Brighturn. Aside from her stint at Brighturn, Genoves was also connected with Riverland Consultancy Service (Riverland), another recruitment agency located at Room No. 210, LPL Building, Sen. Gil Puyat Avenue, Makati City. Private complainants Orillano, Panguelo, Abril and Garcia sought employment at Brighturn for the positions of factory worker and electronic operator in Taiwan. 9Notwithstanding private complainants' compliance with all of the pre-employment requirements, including the payment of placement fees, they were not able to leave the country to work abroad. Sometime in June 2001, Panguelo was informed by a friend that Brighturn was hiring factory workers for Taiwan. When Panguelo went to Brighturn, he was promised employment abroad by Hu for P50,000.00. Upon Hu's instruction, Panguelo paid in full the placement fee in the amount of P50,000.00 to Genoves. The payment was evidenced by an Official Receipt dated 16 October 2001 bearing Genoves' signature. Panguelo waited for three years to be deployed to Taiwan. His waiting was all for naught. Thus, Panguelo decided to abort his application and demanded from Hu the return of the amount he paid for the placement fee, but Hu could no longer return the money. 10 Also sometime in September 2001, Abril went to Brighturn to apply as a factory worker in Taiwan. At Brighturn, Abril was entertained by Hu who oriented him on the necessary requirements for application which included a valid passport, National Bureau of Investigation (NBI) Clearance and ID pictures. After complying with the documentary requirements, Abril was required by Hu to pay the placement fee to Genoves in the amount of P44,000.00. As shown in Official Receipts dated 9 October 2001 and 26 October 2000, which were signed by Genoves, Abril paid the whole amount of P44,000.00 as placement fee. Abril was assured by Hu that

he would be deployed to Taiwan by December 2001 which was subsequently reset to April 2002. Despite several postponements, Abril was not able to leave the country. 11
cTSDAH

For his part, Orillano came to know of Brighturn thru Genoves. Orillano was interviewed at Brighturn by a Taiwanese principal in October 2001. After the interview, Hu informed Orillano to submit a medical certificate, NBI clearance and passport; and to pay the requisite placement fee in the amount of P50,000.00. Believing that Hu could send him abroad, Orillano faithfully complied with these requirements including the placement fee, the payment of which was made to Genoves at Brighturn's office. Despite such payment, however, Orillano was not able to leave the country. 12 Garcia suffered the same fate as her co-applicants. In April 2002, Garcia applied as Electronic Operator at Brighturn wherein she was entertained by Hu who informed her that Brighturn's license was suspended. Garcia was then referred by Hu to Best One International (Best One), another recruitment agency likewise located in Malate, Manila. While Garcia was told by Hu that the processing of her documents would be done at Best One, the placement fee, however, should be paid at Brighturn. Accordingly, the amount of P60,000.00 was paid by Garcia to Hu and Genoves as placement fee upon Hu's instruction. Almost predictably, the promise of an employment abroad never came to pass. 13 When Hu was not able to refund the amounts paid as placement fees upon demand, private complainants went to NBI to file a complaint for illegal recruitment against Hu and Genoves. For her defense, Hu claimed that she was the President of Brighturn, a duly authorized land-based recruitment agency. Brighturn had foreign principals in Taiwan who were looking for skilled individuals willing to work in a foreign country. Hu alleged that Brighturn had an established recruitment procedure wherein applicants were only required to pay the corresponding placement fees after the POEA had already approved their employment contracts. According to Hu, announcements were posted all over Brighturn's premises warning job applicants to pay placement fees only to the cashier. After the expiration of its license issued by the POEA on 18 December 1999, Brighturn failed to pursue its application for renewal due its inability to post the required cash bond. Brighturn was thus constrained to refer all pending applications to Best One. 14
IEcaHS

Hu admitted knowing the private complainants because these individuals went to her office demanding the return of their placement fees by showing their official receipts. Hu averred that when she examined such receipts, she found that private complainants paid their placement fees to Riverland and not to Brighturn as shown in the heading of the said receipts which bore the name and address of Riverland and its proprietress, Genoves. Hu denied knowing Genoves. 15 On 4 January 2005, the trial court rendered a Decision 16 finding Hu guilty beyond reasonable doubt of the crime of illegal recruitment in large scale, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Nenita Hu guilty beyond reasonable doubt of the crime of illegal recruitment in large scale under Section 6 and 7(b) of Republic Act No. 8042, and, accordingly, sentences the accused to suffer the penalty of life imprisonment, pay the fine of P500,000.00 and to indemnify private complainants Paul Abril in the amount of P44,000.00, Joel Panguelo in the amount of P50,000.00 and Evangeline Garcia in the amount of P50,000.00.

The Court of Appeals, in its Decision 17 dated 9 October 2007, confirmed the presence of all the elements of illegal recruitment in large scale, and thereby affirmed the conviction of Hu with the modification that the amount of actual damages awarded to Garcia in the amount of P50,000.00 be deleted. Hence, this Petition raising the sole issue of:
WHETHER OR NOT THE LOWER COURT ERRED IN FINDING HU GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL RECRUITMENT IN LARGE SCALE.

Hu was charged with and convicted by the trial court of the crime of Illegal Recruitment in Large Scale, which conviction was affirmed by the Court of Appeals. The appellate court found that Hu made enticing, albeit empty promises, which moved private complainants to part with their money and pay the placement fee.
ADCTac

For its part, the Solicitor General joined the lower courts in finding that Hu was indeed guilty of Illegal Recruitment in Large Scale. According to the Solicitor General, all the elements of illegal recruitment in large scale had been established beyond reasonable doubt. 18

We cannot sustain the conviction for illegal recruitment in large scale. Illegal recruitment is committed when two elements concur, namely: (1) the offender has no valid license or authority required by law to enable him to lawfully engage in the recruitment and placement of workers; and (2) he undertakes any activity within the meaning of "recruitment and placement" defined under Article 13 (b) of the Labor Code. 19 Recruitment and placement is "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement." 20 The crime becomes Illegal Recruitment in Large Scale when the foregoing two elements concur, with the addition of a third element the recruiter committed the same against three or more persons, individually or as group. 21 A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group. While it is true that the law does not require that at least three victims testify at the trial, nevertheless, it is necessary that there is sufficient evidence proving that the offense was committed against three or more persons. 22 In the appreciation of evidence in criminal cases, it is a basic tenet that the prosecution has the burden of proof in establishing the guilt of the accused for the offense with which he is charged. Ei incumbit probation qui dicit non qui negat; i.e., "he who asserts, not he who denies, must prove". The conviction of appellant must rest not on the weakness of his defense, but on the strength of the prosecution's evidence. 23
SDIACc

In the case at bar, the prosecution failed to adduce sufficient evidence to prove that illegal recruitment was committed against three or more persons. What we have uncovered upon careful scrutiny of the records was the fact that illegal recruitment was committed against only one person; that is, against Garcia alone. Illegal recruitment cannot successfully attach to the allegations of Panguelo, Abril and Orillano, since they testified that they accomplished their pre-employment requirements through Brighturn from June 2001 up to October of the same year, 24 a period wherein Brighturn's license to engage in recruitment and placement was still in full force and effect. 25 While there were six private complainants in this case, four of whom were presented during the trial, the prosecution, nonetheless, failed to establish that Hu engaged in illegal recruitment acts against at least three of these complainants. In offenses in which the number of victims is essential, such as in the present petition, failure of the prosecution to prove by convincing evidence that the offense is committed against the minimum number of persons required by law is fatal to its cause of action. Underscoring the significance of the number of victims was the disquisition of Justice Florenz Regalado in People v. Ortiz-Miyake: 26
It is evident that in illegal recruitment cases, the number of persons victimized is determinative. Where illegal recruitment is committed against a lone victim, the accused may be convicted of simple illegal recruitment which is punishable with a lower penalty

under Article 39(c) 27 of the Labor Code. Corollarily, where the offense is committed against three or more persons, it is qualified to illegal recruitment in large scale which provides a higher penalty under Article 39(a) 28 of the same Code. (Emphasis supplied.)

Regrettably, we cannot affirm the conviction of Hu for the offense of illegal recruitment in large scale. While we strongly condemn the pervasive proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad, nevertheless, we find the pieces of evidence insufficient to prove the guilt of Hu beyond reasonable doubt. It is unfortunate that the prosecution evidence did not pass the test of reasonable doubt, since the testimonies of its witnesses unveil a contradicting inference that the recruitment of Panguelo, Abril and Orillano was undertaken by Hu with the required authority from the POEA.
cASTED

Failure of the prosecution to prove the guilt of Hu beyond reasonable doubt does not absolve her of her civil obligation to return the money she collected from private complaints Panguelo, Abril and Orillano, plus legal interest in accordance with our ruling in Domagsang v. Court of Appeals. 29 There, the prosecution failed to sufficiently establish a case to warrant a conviction, but clearly proved a just debt owed to the private complainant. Thus, the accused was ordered to pay the face value of the check with 12% legal interest per annum, reckoned from the filing of the information until the finality of the judgment. It is well settled that acquittal based on reasonable doubt does not preclude an award for civil damages. The judgment of acquittal extinguishes the liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. Thus, civil liability is not extinguished where the acquittal is based on lack of proof beyond reasonable doubt, since only preponderance of evidence is required in civil cases. There appears to be no sound reason to require that a separate action be still filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings. 30 In the present case, the prosecution explicitly proved that private complainants parted with substantial amounts of money upon the prodding and enticement of Hu on the false pretense that she had the capacity to deploy them for employment abroad. In the end, private complainants were not able to leave for work abroad or get their money back. Neither does her acquittal herein exempt Hu from subsequent criminal prosecution for estafa 31 provided that deceit, which is an essential element of estafa, be proven by the prosecution. 32 Apparently, Hu deluded private complainants into believing that she had the capacity to send them abroad for employment. Through this hoax, she was able to convince private complainants to surrender their money to her in the vain hope, as it turned out, of securing employment abroad. This leaves us a case of simple illegal recruitment committed against Garcia. Garcia testified that she applied for employment in Taiwan for the position of Electronic Operator thru Brighturn in April 2002. Due to the alleged suspension of Brighturn's license, Hu referred her to a neighboring agency (Best One), but Hu continued collecting placement fees from her.
IaHSCc

The act of referral, which means the act of passing along or forwarding an applicant after an initial interview to a selected employer, placement or bureau, is included in recruitment. 33 Undoubtedly, the act of Hu in referring Garcia to another recruitment agency squarely fell within the purview of recruitment that was undertaken by Hu after her authority to recruit and place workers already expired on 17 December 2001. Failure of Garcia to present proof of payment is irrelevant. The absence of receipts in the case of illegal recruitment does not warrant the acquittal of the appellant and is not fatal to the prosecution's case. As long as the prosecution is able to establish through credible and testimonial evidence, as in the case at bar, that the appellant had engaged in illegal recruitment, a conviction for the offense can be very well justified. 34 Irrefragably, the prosecution has proven beyond reasonable doubt the guilt of Hu of the charge of illegal recruitment against Garcia when the former referred the latter to another agency without the license or

authority to do so. The trial court gave full credence to the testimony of Garcia, which unmistakably demonstrated how Hu successfully enticed her to part with a considerable amount of money in exchange for an employment abroad which was never realized. This finding was adopted by the appellate court, considering that that the trial court was in the best position to ascertain credibility issues, having heard the witnesses themselves and observed their deportment and manner of testifying during trial. Aptly, the bare denials of Hu have no probative value when ranged against the affirmative declarations of Garcia, even if the latter failed to present receipts for the payments she had made. In People v. Villas, 35 this Court affirmed the conviction of the appellant for illegal recruitment even if private complaints were not able to present any receipt that they paid appellant anything, thus:
ETHIDa

Neither is there merit in the contention of the defense that appellant should be exonerated for failure of the prosecution to present any receipt proving that private complainants paid her anything. The defense argues that a receipt is the best evidence to prove delivery of money and the absence thereof shows that no payment was made. This argument is not novel. The Court has previously ruled that the absence of receipts evidencing payment does not defeat a criminal prosecution for illegal recruitment. In People vs. Pabalan [262 SCRA 574, 30 September 1996], this Court ruled: ". . . the absence of receipts in a criminal case for illegal recruitment does not warrant the acquittal of the accused and is not fatal to the case of the prosecution. As long as the witnesses had positively shown through their respective testimonies that the accused is the one involved in the prohibited recruitment, he may be convicted of the offense despite the want of receipts.

"The Statute of Frauds and the rules of evidence do not require the presentation of receipts in order to prove the existence of recruitment agreement and the procurement of fees in illegal recruitment cases. The amounts may consequently be proved by the testimony of witnesses." The private complainants have convincingly testified that the accused enticed them to apply and, in actual fact, received payments from them. And to these testimonies, the trial court accorded credence. On the other hand, appellant has not shown any reason to justify a modification or reversal of the trial court's finding.

Our ruling in People v. Villas 36 that the absence of receipts in illegal recruitment case does not warrant the acquittal of the accused has been reiterated in several cases. 37 We are not unaware of the proliferation of these scheming illegal recruiters who cunningly rob Filipino workers, desperate to work abroad, of their money in exchange of empty promises. This Court cannot be drawn to the ingenious ploy of these illegal recruiters in withholding receipts from their victims in their vain attempt to evade liability. In fine, the Court will have to discard the conviction for illegal recruitment in large scale meted out by the RTC, since only one applicant abroad was recruited by Hu without license and authority from the POEA. Accordingly, Hu should be held responsible for simple illegal recruitment only. Hu's unsuccessful indictment for illegal recruitment in large scale, however, does not discharge her from her civil obligation to return the placement fees paid by private complainants.
DHcEAa

Under Section 7 (a) of Republic Act No. 8042, 38 simple illegal recruitment is punishable by imprisonment of not less than six (6) years and one (1) day but not more than twelve years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00). Section 1 of the Indeterminate Sentence Law provides that if the offense is punishable by a special law, as in this case, the court shall impose on the accused an indeterminate sentence, the maximum term of which shall

not exceed the maximum fixed by the said law and the minimum of which shall not be less than the minimum term prescribed by the same. Accordingly, a penalty of eight (8) to twelve (12) years of imprisonment should be meted out to Hu. In addition, a fine in the amount of P500,000.00; and indemnity to private complainants Abril in the amount of P44,000.00, Panguelo in the amount of P50,000.00, Garcia in the amount of P60,000.00 and Orillano in the amount of P50,000.00, with 12% legal interest per annum, reckoned from the filing of the information until the finality of the judgment is imposed. WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is PARTIALLY GRANTED. The Decision dated 9 October 2007 of the Court of Appeals in CA-G.R.-CR.-H.C. No. 02243 affirming the conviction of the accusedappellant Nenita B. Hu for the offense of Illegal Recruitment in Large Scale and sentencing her to life imprisonment is hereby VACATED. A new Decision is hereby entered convicting the accused-appellant of the offense of Simple Illegal Recruitment committed against private complainant Evangeline Garcia. She is sentenced to suffer the indeterminate penalty of eight (8) years to twelve (12) years of imprisonment. She is ordered to pay a fine in the amount of P500,000.00 and to indemnify private complainant Evangeline Garcia in the amount of P60,000.00, with 12% interest per annum, reckoned from the filing of the information until the finality of the judgment. Accused-appellant Nenita B. Hu is likewise ordered to indemnify private complainants Paul Abril in the amount of P44,000.00, Joel Panguelo in the amount of P50,000.00, and Eric Orillano in the amount of P50,000.00, with 12% interest per annum, as reckoned above.
aTADCE

SO ORDERED.

Ynares-Santiago, Austria-Martinez, Nachura and Reyes, JJ., concur.

[G.R. No. 176169. November 14, 2008.] ROSARIO NASI-VILLAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J :
p

This is a Petition for Review 1 under Rule 45 of the Rules of Court filed by petitioner Rosario Nasi-Villar assailing the Decision 2 dated 27 June 2005 and Resolution 3dated 28 November 2006 of the Court of Appeals. This case originated from an Information 4 for Illegal Recruitment as defined under Sections 6 and 7 of Republic Act (R.A.) No. 8042 5 filed by the Office of the Provincial Prosecutor of Davao del Sur on 5 October 1998 for acts committed by petitioner and one Dolores Placa in or about January 1993. The Information reads:
cDCSTA

That on [sic] or about the month of [January 1993], in the Municipality of Sta. Cruz, Province of Davao del Sur, Philippines and within the jurisdiction of the Honorable Court, the aforenamed accused, conspiring together, confederating with and mutually helping one another through fraudulent representation and deceitful machination, did then and there [willfully], unlawfully and feloniously recruit Nila Panilag for employment abroad[,] demand and receive the amount of P6,500.00 Philippine Currency [sic] as placement fee[,] the said accused being a non-licensee or non-holder of authority to engage in the recruitment of workers abroad to the damage and prejudice of the herein offended party.

CONTRARY TO LAW.

On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br. 18, Digos City, Davao del Sur found the evidence presented by the prosecution to be more credible than that presented by the defense and thus held petitioner liable for the offense of illegal recruitment under the Labor Code, as amended. 7 The dispositive portion of the decision reads:
WHEREFORE, premises considered, the Court hereby finds accused ROSARIO NASI-VILLAR GUILTY BEYOND REASONABLE DOUBT of Illegal Recruitment and, in accordance with the penalty set forth under the Labor Code, as amended, said accused is hereby sentenced to an indeterminate penalty ranging from FOUR YEARS as minimum to FIVE YEARS as maximum. On the civil aspect of the case, there being no substantial proof presented to justify a grant of civil damages, this Court makes no pronouncement thereon. With respect to accused Ma. Dolores Placa, who is still at large, the records of this case are hereby sent to the archives to be retrieved in the event that said accused would be apprehended. Issue an alias warrant of arrest for the apprehension of said accused. SO ORDERED.
8

Petitioner appealed to the Court of Appeals raising as sole issue the alleged error by the trial court in finding her guilty of illegal recruitment on the basis of the trial court's appreciation of the evidence presented by the prosecution.
aDcETC

The Court of Appeals, in its Decision dated 27 June 2005, 9 following the principle that an appeal in a criminal case throws the whole case wide open for review, noted that the criminal acts alleged to have been committed happened sometime in 1993. However, R.A. No. 8042, under which petitioner was charged, was approved only on 7 June 1995 and took effect on 15 July 1995. Thus, the Court of Appeals declared that petitioner should have been charged under the Labor Code, in particular Art. 13 (b) thereof, and not under R.A. No. 8042. Accordingly, it made its findings on the basis of the provisions of the Labor Code and found petitioner liable under Art. 38, in relation to Art. 13 (b), and Art. 39 of the Labor Code. The appellate court affirmed with modification the decision of the RTC, decreeing in the dispositive portion, thus:
WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court, 11th Judicial Region, Br. 18, City of Digos, Province of Davao del Sur, finding Rosario Nasi-Villar guilty beyond reasonable doubt of the crime of Illegal Recruitment is AFFIRMED with MODIFICATION in that Rosario Nasi-Villar is ORDERED to pay Nila Panilag the sum of P10,000.00 as temperate damages. SO ORDERED.
10

On 28 November 2006, the appellate court denied petitioner's motion for reconsideration. Hence, petitioner filed the instant petition for review.

11

Petitioner alleges that the Court of Appeals erred in failing to consider that R.A. No. 8042 cannot be given retroactive effect and that the decision of the RTC constitutes a violation of the constitutional prohibition against ex post facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the crime was allegedly committed, petitioner argues that law cannot be used as the basis of filing a criminal action for illegal recruitment. What was applicable in 1993 is the Labor Code, where under Art. 38, in relation to Art. 39, the violation of the Code is penalized with imprisonment of not less than four (4) years nor more than eight (8) years or a fine of not less than P20,000.00 and not more than P100,000.00 or both. On the other hand, Sec. 7 (c) of R.A. No. 8042 penalizes illegal recruitment with a penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine not less than P200,000.00 nor more than

P500,000.00. Thus, the penalty of imprisonment provided in the Labor Code was raised or increased by R.A. No. 8042. Petitioner concludes that the charge and conviction of an offense carrying a penalty higher than that provided by the law at the time of its commission constitutes a violation of the prohibition against ex post facto law and the retroactive application of R.A. No. 8042.
aCTHDA

In its Comment 12 dated 7 September 2007, the Office of the Solicitor General (OSG) argues that the Court of Appeals' conviction of petitioner under the Labor Code is correct. While conceding that there was an erroneous designation of the law violated by petitioner, the OSG stresses that the designation of the offense in the Information is not determinative of the nature and character of the crime charged against her but the acts alleged in the Information. The allegations in the Information clearly charge petitioner with illegal recruitment as defined in Art. 38, in relation to Art. 13 (b) of the Labor Code, and penalized under Art. 39 (c) of the same Code. The evidence on record substantiates the charge to a moral certainty. Thus, while there was an erroneous specification of the law violated by petitioner in the Information, the CA was correct in affirming the RTC's imposition of the penalty for simple illegal recruitment under the Labor Code, the OSG concludes. The petition is denied. We find no reversible error in the decision arrived at by the Court of Appeals. In Gabriel v. Court of Appeals, 13 we held that the real nature of the crime charged is determined, not from the caption or preamble of the information nor from the specification of the law alleged to have been violated these being conclusions of law but by the actual recital of facts in the complaint or information. What controls is not the designation but the description of the offense charged. From a legal point of view, and in a very real sense, it is of no concern to the accused what the technical name of the crime of which he stands charged is. If the accused performed the acts alleged in the body of the information, in the manner stated, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute. 14 In the case at bar, the prosecution established beyond reasonable doubt that petitioner had performed the acts constituting the offense defined in Art. 38, in relation to Art. 13 (b) and punished by Art. 39 of the Labor Code, as alleged in the body of the Information. To prove illegal recruitment, two elements must be shown, namely: (1) the person charged with the crime must have undertaken recruitment activities, or any of the activities enumerated in Article 34 of the Labor Code, as amended; and (2) said person does not have a license or authority to do so. 15 Art. 13 (b) defines "recruitment and placement" as "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising, or advertising for employment, locally or abroad, whether for profit or not; Provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons, is considered engaged in recruitment and placement." The trial court found these two elements had been proven in the case at bar. Petitioner has not offered any argument or proof that countervails such findings.
HCITDc

The basic rule is that a criminal act is punishable under the law in force at the time of its commission. Thus, petitioner can only be charged and found guilty under the Labor Code which was in force in 1993 when the acts attributed to her were committed. Petitioner was charged in 1998 under an Information that erroneously designated the offense as covered by R.A. No. 8042, but alleged in its body acts which are punishable under the Labor Code. As it was proven that petitioner had committed the acts she was charged with, she was properly convicted under the Labor Code, and not under R.A. No. 8042. There is no violation of the prohibition against ex post facto law nor a retroactive application of R.A. No. 8042, as alleged by petitioner. An ex post facto law is one which, among others, aggravates a crime or makes it greater than it was when committed or changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 16 Penal laws and laws which, while not penal in nature, nonetheless have provisions defining offenses and prescribing penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect, except when they are favorable to the accused. 17

R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a new definition of the crime of illegal recruitment and provided for its higher penalty. There is no indication in R.A. No. 8042 that said law, including the penalties provided therein, would take effect retroactively. A law can never be considered ex post factoas long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment. 18 Neither did the trial court nor the appellate court give R.A. No. 8042 a retroactive application since both courts passed upon petitioner's case only under the aegis of the Labor Code. The proceedings before the trial court and the appellate court did not violate the prohibition against ex post facto law nor involved a retroactive application of R.A. No. 8042 in any way. WHEREFORE, the petition is DENIED. The assailed Decision dated 27 June 2005 and Resolution dated 28 November 2006 of the Court of Appeals are AFFIRMED.
DTAcIa

SO ORDERED.

Quisumbing, Carpio-Morales, Velasco, Jr. and Brion, JJ., concur.

[G.R. Nos. 182978-79. April 7, 2009.] BECMEN SERVICE EXPORTER AND PROMOTION, INC., petitioner, vs. SPOUSES SIMPLICIO and MILA CUARESMA (for and in behalf of their daughter, Jasmin G. Cuaresma), WHITE FALCON SERVICES, INC. and JAIME ORTIZ (President, White Falcon Services, Inc.),respondents. [G.R. Nos. 184298-99. April 7, 2009.] SPOUSES SIMPLICIO and MILA CUARESMA (for and in behalf of their daughter, Jasmin G. Cuaresma), petitioners, vs. WHITE FALCON SERVICES, INC. and BECMEN SERVICE EXPORTER AND PROMOTION, INC., respondents.

DECISION

YNARES-SANTIAGO, J :
p

These consolidated petitions assail the Amended Decision 1 of the Court of Appeals dated May 14, 2008 in CAG.R. SP No. 80619 and CA-G.R. SP No. 81030 finding White Falcon Services, Inc. and Becmen Service Exporter and Promotion, Inc. solidarily liable to indemnify spouses Simplicio and Mila Cuaresma the amount of US$4,686.73 in actual damages with interest.
HTAEIS

On January 6, 1997, Jasmin Cuaresma (Jasmin) was deployed by Becmen Service Exporter and Promotion, Inc. 2 (Becmen) to serve as assistant nurse in Al-Birk Hospital in the Kingdom of Saudi Arabia (KSA), for a contract duration of three years, with a corresponding salary of US$247.00 per month. Over a year later, she died allegedly of poisoning. Jessie Fajardo, a co-worker of Jasmin, narrated that on June 21, 1998, Jasmin was found dead by a female cleaner lying on the floor inside her dormitory room with her mouth foaming and smelling of poison. 3

Based on the police report and the medical report of the examining physician of the Al-Birk Hospital, who conducted an autopsy of Jasmin's body, the likely cause of her death was poisoning. Thus:
According to letter No. 199, dated 27.2.1419H, issued by Al-Birk Police Station, for examining the corpse of Jasmin Cuaresma, 12.20 P.M. 27.2.1419H, Sunday, at Al-Birk Hospital. 1.The Police Report on the Death 2.The Medical Diagnosis Sex: Female Age: 25 years Relg: Christian The said person was brought to the Emergency Room of the hospital; time 12.20 P.M. and she was unconscious, blue, no pulse, no respiration and the first aid esd undertaken but without success. 3.Diagnosis and Opinion: Halt in blood circulation respiratory system and brain damage due to an apparent poisoning which is under investigation.4 Name: Jasmin Cuaresma Sex: Female Marital Status: SingleNationality: Philipino (sic) Religion: ChristianProfession: Nurse Address: Al-Birk Genrl. HospitalBirth Place: The Philippines On 27.2.1419H, Dr. Tariq Abdulminnem and Dr. Ashoki Komar, both have examined the dead body of Jasmin Cuaresma, at 12.20 P.M., Sunday, 22.2.14189H, and the result was: 1.Report of the Police on the death 2.Medical Examination: Blue skin and paleness on the Extrimes (sic), total halt to blood circulation and respiratory system and brain damage. There were no external injuries. Likely poisoning by taking poisonous substance, yet not determined. There was a bad smell in the mouth and unknown to us. 5(Emphasis supplied)

Jasmin's body was repatriated to Manila on September 3, 1998. The following day, the City Health Officer of Cabanatuan City conducted an autopsy and the resulting medical report indicated that Jasmin died under violent circumstances, and not poisoning as originally found by the KSA examining physician. The City Health Officer found that Jasmin had abrasions at her inner lip and gums; lacerated wounds and abrasions on her left and right ears; lacerated wounds and hematoma (contusions) on her elbows; abrasions and hematoma on her thigh and legs; intra-muscular hemorrhage at the anterior chest; rib fracture; puncture wounds; and abrasions on the labia minora of the vaginal area. 6 On March 11, 1999, Jasmin's remains were exhumed and examined by the National Bureau of Investigation (NBI). The toxicology report of the NBI, however, tested negative for non-volatile, metallic poison and insecticides. 7 Simplicio and Mila Cuaresma (the Cuaresmas), Jasmin's parents and her surviving heirs, received from the Overseas Workers Welfare Administration (OWWA) the following amounts: P50,000.00 for death benefits; P50,000.00 for loss of life; P20,000.00 for funeral expenses; and P10,000.00 for medical reimbursement.

On November 22, 1999, the Cuaresmas filed a complaint against Becmen and its principal in the KSA, Rajab & Silsilah Company (Rajab), claiming death and insurance benefits, as well as moral and exemplary damages for Jasmin's death. 8
acAIES

In their complaint, the Cuaresmas claim that Jasmin's death was work-related, having occurred at the employer's premises; 9 that under Jasmin's contract with Becmen, she is entitled to "iqama insurance" coverage; that Jasmin is entitled to compensatory damages in the amount of US$103,740.00, which is the sum total of her monthly salary of US$247.00 per month under her employment contract, multiplied by 35 years (or the remaining years of her productive life had death not supervened at age 25, assuming that she lived and would have retired at age 60). The Cuaresmas assert that as a result of Jasmin's death under mysterious circumstances, they suffered sleepless nights and mental anguish. The situation, they claim, was aggravated by findings in the autopsy and exhumation reports which evidently show that a grave injustice has been committed against them and their daughter, for which those responsible should likewise be made to pay moral and exemplary damages and attorney's fees. In their position paper, Becmen and Rajab insist that Jasmin committed suicide, citing a prior unsuccessful suicide attempt sometime in March or April 1998 and relying on the medical report of the examining physician of the Al-Birk Hospital. They likewise deny liability because the Cuaresmas already recovered death and other benefits totaling P130,000.00 from the OWWA. They insist that the Cuaresmas are not entitled to "iqama insurance" because this refers to the "issuance" not insurance of iqama, or residency/work permit required in the KSA. On the issue of moral and exemplary damages, they claim that the Cuaresmas are not entitled to the same because they have not acted with fraud, nor have they been in bad faith in handling Jasmin's case. While the case was pending, Becmen filed a manifestation and motion for substitution alleging that Rajab terminated their agency relationship and had appointed White Falcon Services, Inc. (White Falcon) as its new recruitment agent in the Philippines. Thus, White Falcon was impleaded as respondent as well, and it adopted and reiterated Becmen's arguments in the position paper it subsequently filed. On February 28, 2001, the Labor Arbiter rendered a Decision 10 dismissing the complaint for lack of merit. Giving weight to the medical report of the Al-Birk Hospital finding that Jasmin died of poisoning, the Labor Arbiter concluded that Jasmin committed suicide. In any case, Jasmin's death was not service-connected, nor was it shown that it occurred while she was on duty; besides, her parents have received all corresponding benefits they were entitled to under the law. In regard to damages, the Labor Arbiter found no legal basis to warrant a grant thereof. On appeal, the National Labor Relations Commission (Commission) reversed the decision of the Labor Arbiter. Relying on the findings of the City Health Officer of Cabanatuan City and the NBI as contained in their autopsy and toxicology report, respectively, the Commission, via its November 22, 2002 Resolution 11 declared that, based on substantial evidence adduced, Jasmin was the victim of compensable work-connected criminal aggression. It disregarded the Al-Birk Hospital attending physician's report as well as the KSA police report, finding the same to be inconclusive. It declared that Jasmin's death was the result of an "accident" occurring within the employer's premises that is attributable to her employment, or to the conditions under which she lived, and thus arose out of and in the course of her employment as nurse. Thus, the Cuaresmas are entitled to actual damages in the form of Jasmin's lost earnings, including future earnings, in the total amount of US$113,000.00. The Commission, however, dismissed all other claims in the complaint. Becmen, Rajab and White Falcon moved for reconsideration, whereupon the Commission issued its October 9, 2003 Resolution 12 reducing the award of US$113,000.00 as actual damages to US$80,000.00. 13 The NLRC likewise declared Becmen and White Falcon as solidarily liable for payment of the award.

Becmen and White Falcon brought separate petitions for certiorari to the Court of Appeals. 14 On June 28, 2006, the appellate court rendered its Decision, 15 the dispositive portion of which reads, as follows:
WHEREFORE, the subject petitions are DENIED but in the execution of the decision, it should first be enforced against White Falcon Services and then against Becmen Services when it is already impossible, impractical and futile to go against it (White Falcon). SO ORDERED.
16

The appellate court affirmed the NLRC's findings that Jasmin's death was compensable, the same having occurred at the dormitory, which was contractually provided by the employer. Thus her death should be considered to have occurred within the employer's premises, arising out of and in the course of her employment. Becmen and White Falcon moved for reconsideration. On May 14, 2008, the appellate court rendered the assailed Amended Decision, the dispositive portion of which reads, as follows:
HAcaCS

WHEREFORE, the motions for reconsideration are GRANTED. Accordingly, the award of US$80,000.00 in actual damages is hereby reduced to US$4,686.73 plus interest at the legal rate computed from the time it became due until fully paid. Petitioners are hereby adjudged jointly and solidarily liable with the employer for the monetary awards with Becmen Service Exporter and Promotions, Inc. having a right of reimbursement from White Falcon Services, Inc.

SO ORDERED.

17

In the Amended Decision, the Court of Appeals found that although Jasmin's death was compensable, however, there is no evidentiary basis to support an award of actual damages in the amount of US$80,000.00. Nor may lost earnings be collected, because the same may be charged only against the perpetrator of the crime or quasi-delict. Instead, the appellate court held that Jasmin's beneficiaries should be entitled only to the sum equivalent of the remainder of her 36-month employment contract, or her monthly salary of US$247.00 multiplied by nineteen (19) months, with legal interest. Becmen filed the instant petition for review on certiorari (G.R. Nos. 182978-79). The Cuaresmas, on the other hand, moved for a reconsideration of the amended decision, but it was denied. They are now before us via G.R. Nos. 184298-99. On October 6, 2008, the Court resolved to consolidate G.R. Nos. 184298-99 with G.R. Nos. 182978-79. In G.R. Nos. 182978-79, Becmen raises the following issues for our resolution:
(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT GAVE MORE CREDENCE AND WEIGHT TO THE AUTOPSY REPORT CONDUCTED BY THE CABANATUAN CITY HEALTH OFFICE THAN THE MEDICAL AND POLICE REPORTS ISSUED BY THE MINISTRY OF HEALTH OF KINGDOM OF SAUDI ARABIA AND ALBIRK HOSPITAL. (THE COURT OF APPEALS) GRAVELY ERRED WHEN ON THE BASIS OF THE POSITION PAPERS AND ANNEXES THERETO INCLUDING THE AUTOPSY REPORT, IT CONCLUDED THAT THE DEATH OF JASMIN CUARESMA WAS CAUSED BY CRIMINAL AGGRESSION. (THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD THAT THE DEATH OF JASMIN CUARESMA WAS COMPENSABLE PURSUANT TO THE RULING OF THE SUPREME COURT IN TALLER VS. YNCHAUSTI, G.R. NO. 35741, DECEMBER 20, 1932, WHICH IT FOUND TO BE STILL GOOD LAW.

(THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN LIABLE FOR THE DEATH OF JASMIN CUARESMA NOTWITHSTANDING ITS ADMISSIONS THAT "IQAMA INSURANCE" WAS A TYPOGRAPHICAL ERROR SINCE "IQAMA" IS NOT AN INSURANCE. (THE COURT OF APPEALS) GRAVELY ERRED WHEN IT CONCLUDED THAT THE DEATH OF JASMIN WAS WORK RELATED. (THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN LIABLE TO JASMIN'S BENEFICIARIES FOR THE REMAINDER OF HER 36-MONTH CONTRACT COMPUTED IN THIS MANNER: MONTHLY SALARY OF US$246.67 MULTIPLIED BY 19 MONTHS, THE REMAINDER OF THE TERM OF JASMIN'S EMPLOYMENT CONTRACT, IS EQUAL TO US$4,686.73. (THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN LIABLE TO PAY INTEREST AT THE LEGAL RATE FROM THE TIME IT WAS DUE UNTIL FULLY PAID. (THE COURT OF APPEALS) GRAVELY ERRED WHEN IT HELD BECMEN AND WHITE FALCON JOINTLY AND SEVERALLY LIABLE WITH THE EMPLOYER NOTWITHSTANDING THE ASSUMPTION OF LIABILITY EXECUTED BY WHITE FALCON IN FAVOR OF BECMEN.

On the other hand, in G.R. Nos. 184298-99, the Cuaresmas raise the following issues:
(THE COURT OF APPEALS) GRAVELY ERRED IN APPLYING THE PROVISIONS OF THE CIVIL CODE CONSIDERED GENERAL LAW DESPITE THE CASE BEING COVERED BY E.O. 247, R.A. 8042 AND LABOR CODE CONSIDERED AS SPECIAL LAWS.
DCIEac

(THE COURT OF APPEALS) GRAVELY ERRED IN NOT APPLYING THE DECEASED'S FUTURE EARNINGS WHICH IS (AN) INHERENT FACTOR IN THE COMPUTATION OF DEATH BENEFITS OF OVERSEAS FILIPINO CONTRACT WORKERS. (THE COURT OF APPEALS) GRAVELY ERRED IN REDUCING THE DEATH BENEFITS AWARDED BY NLRC CONSIDERED FINDINGS OF FACT THAT CANNOT BE DISTURBED THROUGH CERTIORARI UNDER RULE 65 OF THE RULES OF COURT.

The issue for resolution is whether the Cuaresmas are entitled to monetary claims, by way of benefits and damages, for the death of their daughter Jasmin. The terms and conditions of Jasmin's 1996 Employment Agreement which she and her employer Rajab freely entered into constitute the law between them. As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties. 18An examination of said employment agreement shows that it provides for no other monetary or other benefits/privileges than the following:
1.1,300 rials (or US$247.00) monthly salary; 2.Free air tickets to KSA at the start of her contract and to the Philippines at the end thereof, as well as for her vacation at the end of each twenty four-month service; 3.Transportation to and from work; 4.Free living accommodations; 5.Free medical treatment, except for optical and dental operations, plastic surgery charges and lenses, and medical treatment obtained outside of KSA;

6.Entry visa fees will be shared equally between her and her employer, but the exit/re-entry visa fees, fees for Iqama issuance, renewal, replacement, passport renewal, sponsorship transfer and other liabilities shall be borne by her; 7.Thirty days paid vacation leave with round trip tickets to Manila after twenty four-months of continuous service; 8.Eight days public holidays per year; 9.The indemnity benefit due her at the end of her service will be calculated as per labor laws of KSA.

Thus, the agreement does not include provisions for insurance, or for accident, death or other benefits that the Cuaresmas seek to recover, and which the labor tribunals and appellate court granted variably in the guise of compensatory damages. However, the absence of provisions for social security and other benefits does not make Jasmin's employment contract infirm. Under KSA law, her foreign employer is not obliged to provide her these benefits; and neither is Jasmin entitled to minimum wage unless of course the KSA labor laws have been amended to the opposite effect, or that a bilateral wage agreement has been entered into. Our next inquiry is, should Jasmin's death be considered as work-connected and thus compensable? The evidence indicates that it is not. At the time of her death, she was not on duty, or else evidence to the contrary would have been adduced. Neither was she within hospital premises at the time. Instead, she was at her dormitory room on personal time when she died. Neither has it been shown, nor does the evidence suggest, that at the time she died, Jasmin was performing an act reasonably necessary or incidental to her employment as nurse, because she was at her dormitory room. It is reasonable to suppose that all her work is performed at the Al-Birk Hospital, and not at her dormitory room. We cannot expect that the foreign employer should ensure her safety even while she is not on duty. It is not fair to require employers to answer even for their employees' personal time away from work, which the latter are free to spend of their own choosing. Whether they choose to spend their free time in the pursuit of safe or perilous undertakings, in the company of friends or strangers, lovers or enemies, this is not one area which their employers should be made accountable for. While we have emphasized the need to observe official work time strictly, 19 what an employee does on free time is beyond the employer's sphere of inquiry.
aHcDEC

While the "employer's premises" may be defined very broadly not only to include premises owned by it, but also premises it leases, hires, supplies or uses, 20 we are not prepared to rule that the dormitory wherein Jasmin stayed should constitute employer's premises as would allow a finding that death or injury therein is considered to have been incurred or sustained in the course of or arose out of her employment. There are certainly exceptions, 21 but they do not appear to apply here. Moreover, a complete determination would have to depend on the unique circumstances obtaining and the overall factual environment of the case, which are here lacking. But, did Jasmin commit suicide? Rajab, Becmen and White Falcon vehemently insist that she did; thus, her heirs may not claim benefits or damages based on criminal aggression. On the other hand, the Cuaresmas do not believe so. The Court cannot subscribe to the idea that Jasmin committed suicide while halfway into her employment contract. It is beyond human comprehension that a 25-year-old Filipina, in the prime of her life and working abroad with a chance at making a decent living with a high-paying job which she could not find in her own country, would simply commit suicide for no compelling reason.

The Saudi police and autopsy reports which state that Jasmin is a likely/or apparent victim of poisoning are patently inconclusive. They are thus unreliable as evidence. On the contrary, the autopsy report of the Cabanatuan City Health Officer and the exhumation report of the NBI categorically and unqualifiedly show that Jasmin sustained external and internal injuries, specifically abrasions at her inner lip and gums; lacerated wounds and abrasions on her left and right ears; lacerated wounds and hematoma (contusions) on her elbows; abrasions and hematoma on her thigh and legs; intra-muscular hemorrhage at the anterior chest; a fractured rib; puncture wounds; and abrasions on the labia minora of the vaginal area. The NBI toxicology report came upnegative on the presence of poison. All these show that Jasmin was manhandled and possibly raped prior to her death. Even if we were to agree with the Saudi police and autopsy reports that indicate Jasmin was poisoned to death, we do not believe that it was self-induced. If ever Jasmin was poisoned, the assailants who beat her up and possibly raped her are certainly responsible therefor. We are not exactly ignorant of what goes on with our OFWs. Nor is the rest of the world blind to the realities of life being suffered by migrant workers in the hands of some foreign employers. It is inconceivable that our Filipina women would seek employment abroad and face uncertainty in a foreign land, only to commit suicide for unexplained reasons. Deciding to leave their family, loved ones, and the comfort and safety of home, to work in a strange land requires unrivaled strength and courage. Indeed, many of our women OFWs who are unfortunate to end up with undesirable employers have been there more times than they care to, beaten up and broken in body yet they have remained strong in mind, refusing to give up the will to live. Raped, burned with cigarettes, kicked in the chest with sharp high-heeled shoes, starved for days or even weeks, stabbed, slaved with incessant work, locked in their rooms, forced to serve their masters naked, grossly debased, dehumanized and insulted, their spirits fought on and they lived for the day that they would once again be reunited with their families and loved ones. Their bodies surrendered, but their will to survive remained strong. It is surprising, therefore, that Rajab, Becmen and White Falcon should insist on suicide, without even lifting a finger to help solve the mystery of Jasmin's death. Being in the business of sending OFWs to work abroad, Becmen and White Falcon should know what happens to some of our OFWs. It is impossible for them to be completely unaware that cruelties and inhumanities are inflicted on OFWs who are unfortunate to be employed by vicious employers, or upon those who work in communities or environments where they are liable to become victims of crime. By now they should know that our women OFWs do not readily succumb to the temptation of killing themselves even when assaulted, abused, starved, debased and, worst, raped. Indeed, what we have seen is Rajab and Becmen's revolting scheme of conveniently avoiding responsibility by clinging to the absurd theory that Jasmin took her own life. Abandoning their legal, moral and social obligation (as employer and recruiter) to assist Jasmin's family in obtaining justice for her death, they immediately gave up on Jasmin's case, which has remained under investigation as the autopsy and police reports themselves indicate. Instead of taking the cudgels for Jasmin, who had no relative or representative in the KSA who would naturally demand and seek an investigation of her case, Rajab and Becmen chose to take the most convenient route to avoiding and denying liability, by casting Jasmin's fate to oblivion. It appears from the record that to this date, no follow up of Jasmin's case was ever made at all by them, and they seem to have expediently treated Jasmin's death as a closed case. Despite being given the lead via the autopsy and toxicology reports of the Philippine authorities, they failed and refused to act and pursue justice for Jasmin's sake and to restore honor to her name.
IcEACH

Indeed, their nonchalant and uncaring attitude may be seen from how Jasmin's remains were repatriated. No official representative from Rajab or Becmen was kind enough to make personal representations with Jasmin's

parents, if only to extend their condolences or sympathies; instead, a mere colleague, nurse Jessie Fajardo, was designated to accompany Jasmin's body home. Of all life's tragedies, the death of one's own child must be the most painful for a parent. Not knowing why or how Jasmin's life was snuffed out makes the pain doubly unbearable for Jasmin's parents, and further aggravated by Rajab, Becmen, and White Falcon's baseless insistence and accusation that it was a selfinflicted death, a mortal sin by any religious standard. Thus we categorically hold, based on the evidence; the actual experiences of our OFWs; and the resilient and courageous spirit of the Filipina that transcends the vilest desecration of her physical self, that Jasmin did not commit suicide but a victim of murderous aggression. Rajab, Becmen, and White Falcon's indifference to Jasmin's case has caused unfathomable pain and suffering upon her parents. They have turned away from their moral obligation, as employer and recruiter and as entities laden with social and civic obligations in society, to pursue justice for and in behalf of Jasmin, her parents and those she left behind. Possessed with the resources to determine the truth and to pursue justice, they chose to stand idly for the sake of convenience and in order that they may avoid pecuniary liability, turning a blind eye to the Philippine authorities' autopsy and toxicology reports instead of taking action upon them as leads in pursuing justice for Jasmin's death. They have placed their own financial and corporate interests above their moral and social obligations, and chose to secure and insulate themselves from the perceived responsibility of having to answer for and indemnify Jasmin's heirs for her death. Under Republic Act No. 8042 (R.A. 8042), or the Migrant Workers and Overseas Filipinos Act of 1995, 22 the State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and Filipino migrant workers, in particular. 23 The State shall provide adequate and timely social, economic and legal services to Filipino migrant workers. 24 The rights and interest of distressed 25 overseas Filipinos, in general, and Filipino migrant workers, in particular, documented or undocumented, are adequately protected and safeguarded. 26 Becmen and White Falcon, as licensed local recruitment agencies, miserably failed to abide by the provisions of R.A. 8042. Recruitment agencies are expected to extend assistance to their deployed OFWs, especially those in distress. Instead, they abandoned Jasmin's case and allowed it to remain unsolved to further their interests and avoid anticipated liability which parents or relatives of Jasmin would certainly exact from them. They willfully refused to protect and tend to the welfare of the deceased Jasmin, treating her case as just one of those unsolved crimes that is not worth wasting their time and resources on. The evidence does not even show that Becmen and Rajab lifted a finger to provide legal representation and seek an investigation of Jasmin's case. Worst of all, they unnecessarily trampled upon the person and dignity of Jasmin by standing pat on the argument that Jasmin committed suicide, which is a grave accusation given its un-Christian nature. We cannot reasonably expect that Jasmin's parents should be the ones to actively pursue a just resolution of her case in the KSA, unless they are provided with the finances to undertake this herculean task. Sadly, Becmen and Rajab did not lend any assistance at all in this respect. The most Jasmin's parents can do is to coordinate with Philippine authorities as mandated under R.A. 8042, obtain free legal assistance and secure the aid of the Department of Foreign Affairs, the Department of Labor and Employment, the POEA and the OWWA in trying to solve the case or obtain relief, in accordance with Section 23 27 of R.A. 8042. To our mind, the Cuaresmas did all that was within their power, short of actually flying to the KSA. Indeed, the Cuaresmas went even further. To the best of their abilities and capacities, they ventured to investigate Jasmin's case on their own: they caused another autopsy on Jasmin's remains as soon as it arrived to inquire into the true cause of her death. Beyond that, they subjected themselves to the painful and distressful experience of exhuming Jasmin's remains in order to obtain another autopsy for the sole purpose of determining whether or not their daughter was poisoned. Their quest for the truth and justice is equally to be expected of all loving parents. All this time, Rajab and Becmen instead of extending their full cooperation to the Cuaresma family merely sat on their laurels in seeming unconcern.

In Interorient Maritime Enterprises, Inc. v. NLRC, 28 a seaman who was being repatriated after his employment contract expired, failed to make his Bangkok to Manila connecting flight as he began to wander the streets of Bangkok aimlessly. He was shot to death by Thai police four days after, on account of running amuck with a knife in hand and threatening to harm anybody within sight. The employer, sued for death and other benefits as well as damages, interposed as defense the provision in the seafarer agreement which provides that "no compensation shall be payable in respect of any injury, incapacity, disability or death resulting from a willful act on his own life by the seaman." The Court rejected the defense on the view, among others, that the recruitment agency should have observed some precautionary measures and should not have allowed the seaman, who was later on found to be mentally ill, to travel home alone, and its failure to do so rendered it liable for the seaman's death. We ruled therein that
HCEcAa

The foreign employer may not have been obligated by its contract to provide a companion for a returning employee, but it cannot deny that it was expressly tasked by its agreement to assure the safe return of said worker. The uncaring attitude displayed by petitioners who, knowing fully well that its employee had been suffering from some mental disorder, nevertheless still allowed him to travel home alone, is appalling to say the least. Such attitude harks back to another time when the landed gentry practically owned the serfs, and disposed of them when the latter had grown old, sick or otherwise lost their usefulness. 29 (Emphasis supplied)

Thus, more than just recruiting and deploying OFWs to their foreign principals, recruitment agencies have equally significant responsibilities. In a foreign land where OFWs are likely to encounter uneven if not discriminatory treatment from the foreign government, and certainly a delayed access to language interpretation, legal aid, and the Philippine consulate, the recruitment agencies should be the first to come to the rescue of our distressed OFWs since they know the employers and the addresses where they are deployed or stationed. Upon them lies the primary obligation to protect the rights and ensure the welfare of our OFWs, whether distressed or not. Who else is in a better position, if not these recruitment agencies, to render immediate aid to their deployed OFWs abroad? Article 19 of the Civil Code provides that every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 21 of the Code states that any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. And, lastly, Article 24 requires that in all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.

Clearly, Rajab, Becmen and White Falcon's acts and omissions are against public policy because they undermine and subvert the interest and general welfare of our OFWs abroad, who are entitled to full protection under the law. They set an awful example of how foreign employers and recruitment agencies should treat and act with respect to their distressed employees and workers abroad. Their shabby and callous treatment of Jasmin's case; their uncaring attitude; their unjustified failure and refusal to assist in the determination of the true circumstances surrounding her mysterious death, and instead finding satisfaction in the unreasonable insistence that she committed suicide just so they can conveniently avoid pecuniary liability; placing their own corporate interests above of the welfare of their employee's all these are contrary to morals, good customs and public policy, and constitute taking advantage of the poor employee and her family's ignorance, helplessness, indigence and lack of power and resources to seek the truth and obtain justice for the death of a loved one. Giving in handily to the idea that Jasmin committed suicide, and adamantly insisting on it just to protect Rajab and Becmen's material interest despite evidence to the contrary is against the moral law and runs contrary to the good custom of not denouncing one's fellowmen for alleged grave wrongdoings that undermine their good name and honor. 30

Whether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. This ruling is likewise rendered imperative by Article 17 of the Civil Code which states that laws which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. 31 The relations between capital and labor are so impressed with public interest, 32 and neither shall act oppressively against the other, or impair the interest or convenience of the public. 33 In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. 34 The grant of moral damages to the employee by reason of misconduct on the part of the employer is sanctioned by Article 2219 (10) 35 of the Civil Code, which allows recovery of such damages in actions referred to in Article 21. 36 Thus, in view of the foregoing, the Court holds that the Cuaresmas are entitled to moral damages, which Becmen and White Falcon are jointly and solidarily liable to pay, together with exemplary damages for wanton and oppressive behavior, and by way of example for the public good. Private employment agencies are held jointly and severally liable with the foreign-based employer for any violation of the recruitment agreement or contract of employment. This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him. 37 If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. 38
DAEcIS

White Falcon's assumption of Becmen's liability does not automatically result in Becmen's freedom or release from liability. This has been ruled in ABD Overseas Manpower Corporation v. NLRC. 39 Instead, both Becmen and White Falcon should be held liable solidarily, without prejudice to each having the right to be reimbursed under the provision of the Civil Code that whoever pays for another may demand from the debtor what he has paid. 40 WHEREFORE, the Amended Decision of the Court of Appeals dated May 14, 2008 in CA-G.R. SP No. 80619 and CA-G.R. SP No. 81030 is SET ASIDE. Rajab & Silsilah Company, White Falcon Services, Inc., Becmen Service Exporter and Promotion, Inc., and their corporate directors and officers are found jointly and solidarily liable and ORDERED to indemnify the heirs of Jasmin Cuaresma, spouses Simplicio and Mila Cuaresma, the following amounts: 1)TWO MILLION FIVE HUNDRED THOUSAND PESOS (P2,500,000.00) as moral damages; 2)TWO MILLION FIVE HUNDRED THOUSAND PESOS (P2,500,000.00) as exemplary damages; 3)Attorney's fees equivalent to ten percent (10%) of the total monetary award; and, 4)Costs of suit. SO ORDERED.

Carpio Morales, * Chico-Nazario, Nachura and Peralta, JJ., concur.