Republika ng Pilipinas

KAGAWARAN NG KATARUNGAN
Department of Justice
Manila
TASK FORCE ON ANTI-TRAFFICKING IN PERSONS
STEPHEN E. CASCOLAN,
Complainant,
-versus-
ALEJANDRO A. PADAEN,
JESUS GABRIEL C. DOMINGO,
MARIETA S. LABONG-DELA CRUZ,
ERNESTO B. VISTRO,
NASCEL GABITO,
EDGARDO D. WISCO,
MARICHU G. ELAGHA, and
AMELITA V. VILLAROSA,
Respondents.
NPS Docket No. XVI-INV-11A-00009
For: Violation of Republic Act No. 9208
and Republic Act No. 3019
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RESOLUTION
For resolution is the complaint filed by Stephen E. Cascolan
against respondents Atty. Alejandro A. Padaen, Atty. Jesus Gabriel
C. Domingo, Atty. Marieta S. Labong-Dela Cruz, Ernesto B. Vistro,
Nascel Gabito, Edgardo D. Wisco, Marichu G. Elagha and Amelita
V. Villarosa for violation of Sections 4(a), S(d) and (e), and 6(c) of
Republic Act No. 9208, otherwise known as the ''Anti- Trafficking In
Persons Act of 2003'; and for violation of Section 3(e) of Republic
Act No. 3019, otherwise known as the ''Anti-Graft and Corrupt
Practices A c t ' ~
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
2
The following [Public] respondents are all officers and
employees of the Philippine Overseas Employment Administration,
namely: Respondent Padaen, Director IV for Adjudication;
Respondent Domingo, Director II for the Legal Research, Docket,
& Enforcement Branch; Respondent Labong-Dela Cruz, Attorney
IV, Docket and Enforcement Division; Respondent Vistro,
Administrative Aide VI (Sheriff); and Respondent Gabito, Web
Administrator (collectively, the "POEA Respondents'').
Respondents Wisco, Elagha and Villa rosa (collectively, the
"Private Respondents'') are the respective representatives of
Worldview International Services Corporation ("Worldview'');
Future Careers Recrui t ment Agency, Inc. ("Future Careers''); and
Shanlene Manpower and Recruitment Services ("Shanlene'').
_ Complainant's Allegations:
Complainant Stephen E. Cascolan, former employee of the
POEA as Legal Counsel and Chief-of-Staff, alleges that in 2010, the
licenses of the three (3) recruitment agencies were cancelled by
the POEA. The cancellation orders were already signed by the
POEA Administrator and duly released to the offices of the POEA
respondents but the latter allegedly deliberately delayed the
implementation of the cancellation orders. He claims that despite
such cancellation, and as a result of the delay in its
implementation, these three agencies were still able to deploy 100
Overseas Filipino Workers ("OFWs"), three (3) of whom are now
seeking repatriation due to various forms of exploitation from their
foreign employers. Thus:
Date Order
OFW
Date of
Forwarded to
Deployed/
Date Order
Agency Cancellation
POEA Implemented
Order
Date of
Respondents
Deployment
Worldview 8 Apr 2010 12 Apr 2010
Marivic A.
9 Jul 2010
Luzano/
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
3
26 May 2010
Edgil C.
Future
8 Apr 2010 8 Apr 2010
Senajon/
18 Aug 2010
Careers
22 Jun 2010
Joralyn B.
Shanlene 16 Jul 2010 16 Jul 2010
Dalisay/
6 Sep 2010
12 Aug 2010
Complainant asserts that, "[t]here is fraud in the deployment of
these 100 OFWs as the subject agencies were advertised by the
POEA as being 'in good standing' even if duly signed cancellation
orders existed, and there is abuse of power and authority because
the POEA respondents are accountable public officials mandated to
enforce overseas employment laws and regulations. He further
avers that respondent POEA officials and employees, in conspiracy
with private respondent owners of the recruitment agencies
concerned, caused undue injury to deployed workers who are
presently seeking repatriation. Public respondents either
deliberately or with gross inexcusable negligence did not transmit
the cancellation orders of the recruitment agencies concerned or
publish the notice of cancellation issued them. Such failure to
perform their duty caused the further recruitment of Filipino
workers who were subsequently exploited by their foreign
employers.
In support of his allegations, complainant attached copies of
the cancellation orders signed by the POEA Administrator; proof of
release of the orders from the Office of the Administrator to the
offices of the POEA respondents; proof of late implementation by
POEA respondents.
Likewise, complainant claims that respondents should be
held accountable for violation of Section 3( e) of Republic Act No.
3019 when, through the delay in the implementation of the
cancellation orders, they gave private respondents unwarranted
benefits, advantage and/or preference in the discharge of their
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
4
official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence,
thereby causing undue injury to the deployed OFWs who were
subsequently exploited, including the Government.
Respondents' Counter-Allegations:
a. Respondent Padaen
Respondent Padaen averred that orders from the Office of
the POEA Administrator do not pass through his office as they go
directly to the Docket and Enforcement Division and thus, he could
not have any hand in the delay in the implementation of the
cancellation order. He also pointed out that the allegation of
conspiracy in the complaint is not supported by even a mere
allegation of a specific overt act that he committed to further the
alleged conspiracy. The mere fact that he was the head of the
POEA Adjudication Office who has direct supervision and control
over respondents Dela Cruz and Domingo does not prove that he
acted in conspiracy with any of them. He argued that the
complainant did not even attempt to allege specific acts that would
show that respondents abused their power and authority.
Moreover, respondent pointed out that complainant's
allegations as regards the exploitation and repatriation of Mr.
Senajon is based purely on hearsay testimonies and that in any
case, he did not recruit or deploy any of the OFWs.
And as regards the charge for violation of RA 3019, he
pointed out that complainant failed to establish acts showing his
bad faith or gross inexcusable negligence, or that any person
suffered any injury (because the allegations to this effect are
based on hearsay evidence).
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
b. Respondent Domingo
5
Respondent Domingo countered that there was no deliberate
delay in the implementation of the cancellation orders and
explained that there were several procedures that had to be
followed before a cancellation order is ultimately implemented. In
this case, the delay is also attributable to the sheer volume of
orders (averaging 300 per month) that had to be processed,
prepared and photocopied by the Docket and Enforcement Division
("DED'').
He alleges that he does not personally receive the signed
cancellation orders from the Office of the POEA Administrator; that
he would be notified and required to sign the advice to the
operating units about the cancellation only after the cancellation
orders have been served on the parties.
Finally, he pointed out the absence of testimonies coming
from the three (3) alleged victims of human trafficking and the
absence of any allegation of specific acts that would render him
liable for human trafficking or for violation of the Anti-Graft and
Corrupt Practices Act ("RA 3019").
c. Respondent Gabito
Respondent Gabito claims that as an information officer, his
assignments are writing press releases, messages, reports and
other official correspondence, photo and video documentation of
official functions and events, design and layout of official
publications, maintenance of the POEA website and other related
tasks. As such, he is not even a recipient of the subject
cancellation orders. Similarly, it is the POEA Licensing Branch that
maintains the database of agencies and is responsible
for any changes in its content including the license status of
recruitment agencies.
He argues that complainant had no personal knowledge of
the alleged acts of trafficking and, except for the statement that
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
6
he is the administrator of the POEA website, complainant did not
cite a single illegal act, much less evidence, that would prove his
involvement in human trafficking.
d. Marieta L. Dela Cruz
Respondent Dela Cruz claims that the repatriation of the
three (3) OFWs by itself does not establish that they were
recruited for the purpose of exploitation. She pointed out that the
requests for repatriation were made by persons who had no
personal knowledge of the circumstances of the OFWs.
She asserts that there was no intentional delay. in the
implemenation of the cancellation orders, thus, she explains that
for the months of April to July 2010, the number of orders
released by the Office of the Administrator totaled 927, all of .
which had to be served on the parties concerned. She likewise
pointed out that service of the orders were further hampered by
logistical problems such as lack of office supplies and
photocopying equipment. And as regards the charge for violation
of RA 3019, s ~ e contends that complainant failed to present proof
showing that she is guilty of gross inexcusable negligence, evident
bad faith or manifest partiality because the delay in the
implementation of the cancellation orders is not attributable to her
but the above mentioned factors.
e. Respondent Vistro
Respondent Vistro asserts the following: that (i) there is
nothing in the complaint that will show his participation in the
implementation of the cancellation orders; (ii) he was not the one
assigned to implement/serve the cancellation orders; (iii) he
neither recruited, trasported, transferred, harbored, or received
any person by force or fraud, employed deception or abused his
power or authority for the purpose of exploiting the workers; (iv)
there is total absence of evidence showing his participation in the
service or implementation of the cancellation orders, or that he
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
7
caused any undue injury to anybody or gave any person any
unwarranted benefits, advantage or preference; (v) complainant .
has no legal standing to file the complaint; and (vi) there is no
affidavit from any of the alleged exploited OFWs and the
statements made by complainant in relation to such alleged
exploitation is not based on his . personal knowledge and are
therefore hearsay.
f. Respondent Villarosa
Respondent Villarosa argues that, on the basis of Section 8
of RA 9208, complainant has no personality to file the complaint
because he has no personal knowledge of the commission of
human trafficking and neither is he the trafficked person, nor the
parents, spouse, siblings, children or legal guardian of the
trafficked person. She claims that any recruitment agency has the
right to continue with its daily operation unless its license is finally
suspended or cancelled and that in fact, the Regional Trial Court of
Mandaluyong had enjoined the POEA, its Administrator, officers,
subordinates, agents, representatives and all other persons acting
for and their behalf from implementing the cancellation order with
respect to Shanlene Manpower & Recruitment Services.
Finally, she points to the utter lack or absence of proof to
show that she conspired with any of the other respondents.
g. Respondent Elagha
Respondent Elagha claims that all 38 OFWs enumerated by
complainant as having been deployed by Future Careers
Recruitment Agency, Inc. applied with the latter prior to the
issuance of the cancellation order and had valid employment
contracts authenticated and approved by the Office of the
Philippine Labor Attache in the country where they were deployed.
She also averred that Future Careers only learned about the
cancellation order on July 16, 2010, that said cancellation was
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
8
immediately appealed before the Department of Labor and
Employment, and that such appeal was still pending.
Finally, she argues that complainant failed to state the
specific acts she committed that would constitute the elements of
human trafficking; and that complainant has no legal personality
to file the complaint.
h. Respondent Wisco
Respondent Wisco raises the following as part of his
defenses: that (1) the complaint is based purely on speculation;
(2) not even one of the elements of the crime charged is present;
(3) complainant has no personal knowledge of the supposed facts
alleged by him; ( 4) he does not even know any of the other
respondents; (5) at the time the OFW was deployed, Worldview
International Services Corporation was properly authorized by the
POEA and the DOLE to recruit and deploy applicants for overseas
employment; and (6) upon receipt of the cancellation order,
Worldwide ceased and desisted from engaging in the recruitment
business.
We now resolve.
Section 4, paragraph (a) of R.A. 9208 (Anti-Trafficking in
Persons Act of 2003) penalizes persons, whether natural or
juridical, who "xxx recruit, transport, transfer, harbor, provide or
receive a person by any means, including those done under the
pretext of domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution, pornography,
sexual exploitation, forced labor, slavery, involuntary servitude or
debt bondage".
Section 5 of the same act deemed the following as acts that
promote trafficking in persons and penalize the same: "xxx (d) to
assist in the conduct of misrepresentation or fraud for purposes of
facilitating the acquisition of clearances and necessary exit
documents from government agencies that are mandated to
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
9
provide pre-departure registration and services for departing
persons for the purpose of promoting trafficking in persons; (e) to
facilitate, assist or help in the exit and entry of persons from/to
the country at international and locaJ airports, territorial
boundaries and seaports who are in possession of unissued,
tampered or fraudulent travel documents for the purpose of
promoting trafficking in persons. xxx"
Section 6 (c) of the foregoing act makes the offense
qualified, "when the crime is committed by a syndicate, or in large
scale. Trafficking is deemed committed by a syndicate if carried
out by a groups of three (3) or more persons conspiring or
confederating with another. It is deemed committed in large
scale if committed against three (3) or more persons, individually
or as a group".
In this case, complainant based his complaint of violations of
the aforecited provisions of R.A. 9208 by the respondents, on the
ground that in the year 2010, a hundred Overseas Filipino Workers
(OFWs) were deployed by three agencies whose business licenses
were already cancelled by the POEA, but whose penalty were not
implemented by the public respondents, who allegedly,
intentionally for very long periods of time, conspired in the non-
implementation of the said cancellation orders to facilitate more
deployment by the said agencies. Allegedly, as a result thereof,
there were cases of actual exploitation which required
repatriation-Marivic Luzano and Joralyn B. Dalisay, who both
complained of employment irregularities; Edgil Senajon who ran
away from his employer; Allan AbrazadG and Elmer Mazaredo.
The above-named Overseas Filipino workers were deployed
by Worldwide International Services Corporation represented by
respondent Edgardo Wisco, Future Careers Recruitment Agency,
Inc., represented by respondent Marichu Elagha and Shanlene
Manpower and Recruitment Services represented by respondent
Amelita V. Villarosa.
Official record shows reports that the above-named OFWs
complained of breach of contracts of employment and alleged
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
10
exploitation i.e., being detained, suffered physical injuries inflicted
by employer, not eating on time, etc: However, the alleged
victims had no statements attached to the record.
The basis of this complaint i.e., alleged unexplained delay in
the implementation of the cancellation of licenses/authority
thereby resulting to deployment of OFWs, where a number were
repatriated, vis a vis the provisions of R.A. 9208 shows that there
is no violation of R.A. 9208. First, there must be a clear showing
that the alleged unexplained delay was intended to promote
trafficking in persons. Evidence gathered does not show that the
delay was intended, and neither does the record show that the
alleged delay was intended to promote trafficking in persons.
Second, while it may appear that exploitation was committed
by some of the employers of some OFWs, the information is still
hearsay, absent any declarations from the OFWs themselves. The
mere fact that they were repatriated sans any personal
declarations/statements/reports signed by these alleged
repatriated OFWs, does not establish the fact of exploitation.
Third, there must be dear and sufficient evidence to support
the allegations that respondents conspire to promote trafficking in
persons.
It should be noted that R.A. 9208 is a special law and to
prove the intent of TIP, there must be an obvert act. In this case,
respondents who are officials of the POEA were able to explain the
delay in the implementation of the cancellation orders. Indeed, it
is not uncommon for government agencies to experience depletion
in supplies and equipment used for daily operations. As such,
there may be cessation of operations, which may be monetary.
Having sufficiently explained the delay in the implementation of
the cancellation orders, this Office finds insufficient evidence to
hold all respondents liable for violation of R.A. 9208, and the Anti-
Graft and Corrupt Practices Act (R.A. 3019).
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
11
WHEREFORE, it is respectfully recommended that the
complaints against respondents be DISMISSED for insufficiency
of evidence.
Manila, Philippines. July 14, 2011.
MA. EMIL
Senior
Prosecutor
ALEJO
Senior Assistant State
Prosecutor
ARIA
RECOMMENDING APPROVAL:

JR.
Senior Deputy State Prosecutor
Chairman, Task Force on Anti-Trafficking in Persons
APPROVED:
/, /
CLARO A. ARELLANO
Prosecutor General
Copy furnished:
ATIY. STEPHEN E. CASCOLAN
CALIZAR CASCOLAN GAREN PASAMONTE LAW OFFICE
Complainant
2nd Floor Vargas Building,
103 Kalayaan Ave.,
Diliman, Quezon City
..
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
AITY. ALEJANDRO A. PADAEN
Director IV for Adjudication, POEA
Respondent
3rd Floor BFO Building, Ortigas corner EDSA,
Mandaluyong City
AITY. JESUS GABRIEL C. DOMINGO
Director II for Legal Research
Docket & Enforcement Branch, POEA
Respondent
3rd Floor BFO Building, Ortigas corner EDSA,
Mandaluyong City
AITY. MARIETA S. LABONG-DELA CRUZ
Attorney V, Docket & Enforcement Division, POEA
Respondent .
3rd Floor BFO Building, Ortigas corner EDSA,
Mandaluyong City
ERNESTO B. VISTRO
Administrative Aide VI (Sheriff), POEA
Respondent
3rd Floor BFO Building, Ortigas corner EDSA,
Mandaluyong City
NASCEL GABITO
Web Administrator, P O ~ A
Respondent
3rd Floor BFO Building, Ortigas corner EDSA,
Mandaluyong City
0 EDGARDO D. WISCO
representing Worldview International Service Corporation
Respondent
Mezz A & B, 2F & 3F (Rl-5)
Felisa Building, 952 Quirino Avenue,
Malate, Manila
MARICHU G. ELAGHA
12
Resolution
NPS Docket No. XVI-INV-llA-00009
Cascolan vs. Padaen, et.al.
representing Future Careers Recruitment Agency, Inc.
Respondent
Rooms 305 and 306, Jalandoni Building,
1444 R. Salas,
Ermita, Manila
(q\ AMELITA V. VILLAROSA
v representing Shanlene Manpower and Recruitment Services
Respondent
Units 205, 207 & 208, 2F Sunrise Building,
488 P. Ocampo St.,
Malate, Manila
13