Trafficking Case Against POEA officials Dismissed

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 Act'~

Resolution NPS Docket No. XVI-INV-llA-00009 Cascolan vs. Padaen, et.al.

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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 Recruitment 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/


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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


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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).


b. Respondent Domingo ·

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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 ~ecruitment 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


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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


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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


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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


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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 nonimplementation 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


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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 AntiGraft and Corrupt Practices Act (R.A. 3019).


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WHEREFORE, it is respectfully recommended that the complaints against respondents be DISMISSED for insufficiency of evidence.

Manila, Philippines. July 14, 2011.

MA. EMIL ~CTORIO Senior J!!ta~~CState

Prosecutor

LILIA~-s-S. ALEJO Senior Assistant State

Prosecutor

ARIA

RECOMMENDING APPROVAL:

~4:~' ~SEVERINO~~, JR. Senior Deputy State Prosecutor

Chairman, Task Force on Anti-Trafficking in Persons

APPROVED: /, / /~I

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

..


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, PO~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

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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

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Documents

Trafficking Case Against POEA officials Dismissed