Illegal Recruitment: A Global and Local Issue

Illegal recruitment is one of the most pervasive forms of fraud today. The Philippine Overseas Employment Administration reveals that in 2010, the government handled 1,648 cases of illegal recruitment but it only acted and resolved 283, translated to 17.2% disposition rate, 1, 365 were pending at the end of the year. The increasing incidence of illegal recruitment is one of the biggest problem victimizing Filipino workers, in the country or abroad. Maria Otero, the Under Secretary for Civilian Security, Democracy, and Human Rights, emphasized that trafficking and illegal recruitment is one of the big problems of local and international communities as well. It is such a pressing issue because it deals with one of our most fundamental values. That is the basic freedom and dignity of every individual. Furthermore, the solution that she proposes is helping countries and governments create just societies, societies that are grounded in democratic principles that guarantee respect for human rights and that apply the rule of law. She explained, whether were helping strengthen judicial systems or were denouncing human rights abuses or helping build strong law enforcement capacities or combating trafficking and illegal recruitment in persons, were aiming to help countries protect the individual citizens in their countries. However, dealing with the issue is not an easy feat. Alcestis Abrera, a columnist, commented that the question of "balance" in terms of recruitment, regulation and protection of workers vis-a-vis market development and promotion has always been critical. This is because the concern over abusive recruitment practices and sub-standard contract terms and conditions often conflicts with the government's desire to realize tangible economic benefits: employment and foreign exchange. (Alcestis Abrera, Illegal recruitment: The Philippine Experience) But then it cannot be said that the government has been sleeping on its duty to protect the Filipino workers from exploitative practices. As early as 1975, the campaign against illegal recruitment received its biggest impetus when President Ferdinand Marcos directed the Ministers of Labor, Justice, National Defense, Foreign Affairs, Public Information and Tourism to launch a massive and coordinated effort to eradicated the menace to the public. LOI 324, which embodies this directive, is the basis for the creation of the National Council on Illegal Recruitment (NCIR) designed as a superbody in charge of coordinating the campaign to protect job-seekers against being victimized by licensed and unlicensed recruiters. From 1975 and to the present, the government has been harnessing exhaustive measures and control machineries.

At the present, the country maintained its Tier 2 status in the overall assessment for the country in the 2012 edition of the Trafficking in Persons (TIP) report, released by the US State Department on June 19, 2012. Such rank indicates compliance of country with international standards and agreements in the fight against modern-day slavery which involves human trafficking and illegal recruitment. Tier 2 countries are officially defined as "countries whose governments do not fully comply with the TVPAs (Trafficking Victims Protection Act) minimum standards, but are making significant efforts to bring themselves into compliance with those standards." Though the country failed to attain Tier 3 rank, the report cited the Philippines' efforts in curbing this major problem. For instance, the country's budget for the Inter-Agency Council Against Trafficking (IACAT) was raised to an equivalent of $1.5 million last year, up from $230,000 the year before. The report also said the Philippines continues to prosecute and convict trafficking offenders, as well as initiate new programs to help their victims. However, one gray spot for the government's efforts is the failure to make progress on efforts to prosecute illegal recruiters, as well as issues in victim identification and protection. As such the TIP recommended that the country boost its efforts in anti-trafficking programs. Among the recommendations are the continued and intensified efforts to try trafficking cases here and abroad; 1. increase funding and training for government agencies dealing with the problem 2. address the backlog of cases 3. respond to new cases immediately and rigorously

4. pursuing criminal investigation and prosecution of traffickers.

What is Recruitment and Placement?

Article 13(b) of the Code defines recruitment and placement as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referral, 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 free

employment to two or more persons shall be deemed engaged in recruitment and placement. (People vs Sanoron, 267 SCRA 278)

Is the number of persons dealt with an essential ingredient of the act of recruitment and placement of workers?
The Court ruled that the number of persons is not an essential ingredient of the act of recruitment and placement of workers. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or she is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made. Furthermore, the number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13 (b) will constitute recruitment and placement even if only one prospective worker is involved. The provision merely lays down a rule of evidence that were a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words shall be deemed create that presumption. (People vs Panis, 142 SCRA 664)

Illegal Recruitment
Illegal Recruitment is defined under Article 38(a) of the Labor Code, as amended, as any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non0holders of authority. (People vs Senoron, 267 SCRA 278) Private fee-charging employment agency means any person or entity engaged in recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both. (Article 13c of the Labor Code) License means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency. (Article 13d of the Labor Code) Private recruitment entity means any person or association engaged in the recruitment and placement of workers, locally or

overseas, without charging, directly or indirectly, any fee from the workers or employers. (Article 13e of the Labor Code) Authority means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. (Article 13f of the Labor Code)

RA No. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995, has consolidated the various provisions of the Labor Code pertaining to illegal recruitment as applied to migrant workers. The following is its definition of illegal recruitment as amended by RA No. 10022, section 5: Section 6. DefinitionFor 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(b) of PD No. 442 or the Labor Code of the Philippines. Provided, that any such non-licensee or non0holder who, in a any manner, persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person whether a non-licensee, non-holder, licensee or holder or authority.

a. To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance; b. To furnish or publish any false notice or information or document in relation to recruitment or employment; c. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;

d. To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; e. To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; f. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; g. To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; h. 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; i. For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency; j. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; k. Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; l. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and

m. To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

What are the recruitment?

essential

elements

of

illegal

Illegal recruitment is committed when two elements concur: a) that the offender has no valid license or authority required by law to enable on to lawfully engage in recruitment and placement of workers b) that the offender undertakes either any activity within the meaning of recruitment and placement defined under Article 13b, or any prohibited practice enumerated under Article 34 of the Labor Code or the Migrant Workers Act for migrant workers and overseas Filipinos. ARTICLE 34. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder of authority: (a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;

(h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor; (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; (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations.

Kinds of Illegal Recruitment

1. Simple illegal recruitment committed by a licensee or holder of authority; 2. Illegal recruitment committed by a person who is neither licensee nor a holder of authority; 3. Illegal recruitment committed in large scale; and 4. Illegal recruitment committed by a syndicate.

Simple Illegal Recruitment

is committed where a person

a) undertakes any recruitment activity defined under Article 13(b) or any prohibited practice enumerated under Article 34 and 38 of the Labor Code b) does not have a license or authority to lawfully engage in the recruitment and placement of workers.

Illegal Recruitment in a Large Scale

Aside from the two elements enumerated above, a third element, that is the offense is committed against three or more persons, individually or as a group, creates illegal recruitment in a large scale.

Illegal Recruitment by a Syndicate

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

When is Illegal Recruitment considered as economic sabotage?

Article 38(b) of the Labor Code, as amended by PD No. 2018, provides that illegal recruitment shall be considered an offense involving economic sabotage if any of the following qualifying circumstances exists: a) when illegal recruitment is committed by a syndicate b) when illegal recruitment is committed in a large scale, example when it is committed against three or more persons individually or as a group

May a person convicted for illegal recruitment may also be convicted for estafa?
A person convicted for illegal recruitment may also be convicted for the crime of estafa. The principal reason for this is that the former offense is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where criminal intent of the accused is an additional element for conviction. (People vs. Elvis Sanchez, People vs. Saulo)

Penalties
Under Article 39 of the Labor Code: a. The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein;

b. Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; c. Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; d. If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings; e. In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives.

Republic Act No. 8042, section 7. Migrant Workers and Overseas Filipinos Act of 1995 as amended by Republic Act No. 10022, Section 6. a. Any persons found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve years (12) years and one (1) day but not more than twenty (20) years and a fine or not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00); b. The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.

Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. c. Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00). If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings. In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic.

Are travel agencies and sales agencies companies allowed to recruit workers?

of

airline

Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.

What is the citizenship requirement for persons, corporations, partnerships or entities to participate in the recruitment and placement of workers?
Only Filipino citizens or corporations, partnership or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas.

Are government officials and employees allowed to recruit workers for overseas employment? It shall be unlawful for any official or employee of the Department of Labor and Employment, the Philippine Overseas Employment Administration (POEA), or the Overseas Workers Welfare Administration (OWWA), or the Department of Foreign Affairs, or other government agencies involved in the implementation of this Act, or their relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting migrant

workers as defined in this Act. The penalties provided in the immediately preceding paragraph shall be imposed upon them.

Cases
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. Elvis Sanchez, accusedappellant. [G.R. No. 122508. June 26, 1998] NATURE: An appeal from the Decision of RTC Branch 6, Baguio City dated 24 July 1995 finding appellant Elvis Sanchez guilty beyond reasonable doubt of the crimes of illegal recruitment in large scale and three (3) counts of estafa and sentencing him accordingly. FACTS: Accused-appellant was charged with violation of Article 38(b) of Presidential Decree No. 442 (Labor Code), as amended, for illegal recruitment in large scale and the corresponding five (5) cases of Estafa on 25 November 1993 under informations which, except for the names of the complainants and the amounts involved, substantially contained similar allegations after he promised employment or job placement in Taiwan to Alice G. Kimay, Veronica Filog, Aaron John Acena, Nancy Fesset and Jerry Akia. Said complainants all paid accused-appellant a substantial amount in view of said promise which never materialized. ISSUE: Whether or not an accused convicted of violation of Article 38(b) of Presidential Decree No. 442 (Labor Code), as amended, for illegal recruitment in large scale may still be convicted of Estafa under para 1, Art 315 of the RPC. HELD: Yes. Article 13(b) of the Labor Code 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 shall be deemed engaged in recruitment and placement. The essential elements then of the crime of illegal recruitment in large scale are that:

(1) the accused engages in acts of recruitment and placement of workers defined under Article 13(b) or in any prohibited activities under Article 34 of the Labor Code; (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) the accused commits the unlawful acts against three or more persons, individually or as a group. The series of acts done by appellant of promising complainants employment abroad, instructing them to comply with the documentary requirements therefor, requiring them to undergo tests such as the trade test undergone by Jerry Akia, using airline procedures for checking reservations and demanding the payment of fees for his services, have created an impression upon complainants that he is capable of providing them with work abroad. It is not disputed that appellant has had no license or authority to engage in job recruitment. A license is that which is issued by the Department of Labor and Employment ("DOLE") authorizing a person or entity to operate a private employment agency, while an authority is that issued by the DOLE entitling a person or association to so engage in recruitment and placement activities as a private recruitment agency. It is the lack of the necessary license or authority that renders the recruitment activity unlawful or criminal. Appellant is neither licensed nor authorized to recruit workers in Baguio City or any part of the Region for overseas work per the uncontroverted certification of the POEA to that effect. More than three complainants have come out to denounce appellants illegal venture. Conviction for the crime of illegal recruitment under the Labor Code does not preclude punishment under other statutes if some other crimes or felonies are committed in the process. Thus, a person convicted for illegal recruitment may also be convicted for the crime of estafa. The principal reason for this is that the former offense is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is an additional element for conviction. The elements of estafa in general are: (1) that the accused has defrauded another by abuse of confidence or by deceit, and (2) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. These elements are present in the case at bench - (a) appellant has deceived complainants into believing that he is capable of providing them with work abroad, and (b) that, by reason of his false assurances, complainants have

parted with money to their damage and prejudice - that thereby can render appellant liable for estafa under paragraph 2(a), Article 315, of the Revised Penal Code. Decision of the RTC is affirmed. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DELIA SADIOSA y CABENTA, Accused-Appellant. [G.R. No. 107084. May 15, 1998] NATURE: An appeal from the Decision of RTC Branch 113, Pasay City. FACTS: In Bayombong, Nueva Ecija, the four complainants, Cely Navarro, Marcela Manzano, Erly Tuliao and Benilda Domingo were enticed by Arsenia Conse to apply for overseas employment informing them that she had a cousin who could send them to Kuwait as domestic helpers. Apparently convinced they went with the latter to Room 210, Diamond Building, Libertad St., Pasay City on February 5, 1992 where Arsenia Conse introduced the group to accused-appellant Delia Sadiosa. On that occasion, accused-appellant assured the four that she could dispatch them to Kuwait and forthwith demanded P8,000.00 from each of them for processing fee and P1,000.00 for passport (P1,500.00 from complainant Cely Navarro). The four did give accused-appellant the money demanded although on different dates. The latter issued the corresponding receipts therefor. Again, she assured them that they could leave for Kuwait on different dates. However, not one of them was able to leave for Kuwait. When they asked for the return of their money, accused-appellant refused and ignored their demand. Consequently, the four filed the complaint for illegal recruitment against accused-appellant. Consequently an information charging accusedappellant with Illegal Recruitment was filed by the Prosecutor In addition to the complainants testimonies, the prosecution presented Virginia Santiago, a Senior Officer in the Licensing Branch and Inspection Division of the Philippine Overseas Employment Administration (POEA) who testified that accused-appellant was neither licensed nor authorized to recruit workers for overseas employment. Accused-appellant herself took the witness stand and testified in her defense. She resolutely denied having a hand in the illegal recruitment, claiming that she merely received the money on behalf of one Mrs. Ganura who owned the recruitment agency called Staff Organizers, Inc. in her capacity as an officer of the said recruitment agency. Said Mrs. Ganura was however never presented in the trial court.

The trial court found accused-appellant guilty beyond reasonable doubt of the charge in the information and was sentenced to life imprisonment and pay a fine of P100,000.00. The accused was likewise ordered to indemnify Benilda Sabado y Domingo, the sum of P8,000.00; Marcela Tabernero y Manzano, the sum of P8,000.00; Erly Tuliao y Sabado, the sum of P8,000.00 and Cely Navarro y Manzano, the sum of P8,000.00. ISSUE: Whether or not an accused charged in an information of illegal recruitment with recital of facts appearing to be Estafa under Art 315 para 1 and 2 of the RPC be validly convicted of illegal recruitment in large scale. HELD: It is well-settled in our jurisprudence that the information is sufficient where it clearly states the designation of the offense by the statute and the acts or omissions complained of as constituting the offense. However, there is no need to specify or refer to the particular section or subsection of the statute that was violated by the accused. No law requires that in order that an accused may be convicted, the specific provision penalizing the act charged should be mentioned in the information. What identifies the charge is the actual recital of the facts and not that designated by the fiscal in the preamble thereof. It is not even necessary for the protection of the substantial rights of the accused, nor the effective preparation of his defense, that the accused be informed of the technical name of the crime of which he stands charged. He must look to the facts alleged. In the instant case, the information filed against accused-appellant sufficiently shows that it is for the crime of illegal recruitment in large scale, as defined in Art. 38 (b) of the Labor Code and penalized in Art. 39 of the same Code although it is designated as for illegal recruitment only. Hence, to avoid misconception and misinterpretation of the information, the prosecutor involved in this case should have indicated in its caption, the offense he had clearly alleged in its body, that the crime charged was for illegal recruitment in large scale. However, such omission or lack of skill of the prosecutor who crafted the information should not deprive the people of the right to prosecute a crime with so grave a consequence against the economic life of the aggrieved parties. What is important is that he did allege in the information the facts sufficient to constitute the offense of illegal recruitment in large scale. Under the Code, the essential elements of the crime of illegal recruitment in large scale which all are to be found in the information, are as follows:

(1) The accused engages in the recruitment and placement of workers, as defined under Article 13 (b) or in any prohibited activities under Article 34 of the Labor Code; (2) Accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, whether locally or overseas; and (3) Accused commits the same against three (3) or more persons, individually or as a group. While on its face the allegations in the information may constitute estafa, this Court agrees with the Solicitor General that it merely describes how accused-appellant was able to consummate the act of illegal recruitment - through false and fraudulent representation by pretending that she was a duly-licensed recruiter who could secure employment for complainants in Kuwait. These allegations in the information therefore do not render the information defective or multiplicitous. It is apropos to underscore the firmly established jurisprudence that a person who has committed illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under Article 315 of the Revised Penal Code. The crime of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is necessary for conviction. In other words, a person convicted under the Labor Code may be convicted of offenses punishable by other laws. In the case at bar, accused-appellant could have been validly charged separately with Estafa under the same set of facts in the illegal recruitment case, but she was fortunate enough not to have been so charged. Nevertheless, there is no doubt from a reading of the information, that it accurately and clearly avers all of the ingredients that constitute illegal recruitment in large scale. There are at least four kinds of illegal recruitment under the law (Arts 38 and 39 of the Labor Code), these are: Simple illegal recruitment committed by a licensee or holder of authority. The law penalizes such offender with imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine. Any person who is neither a licensee nor a holder of authority commits the second type of illegal recruitment. The penalty imposed for such offense is imprisonment of not less than four years nor more than eight years or a fine of not less

than P20,000 nor more than P100,000 or both such imprisonment and fine at the discretion of the court. The third type of illegal recruitment refers to offenders who either commit the offense alone or with another person against three or more persons individually or as a group. A syndicate or a group of three or more persons conspiring and confederating with one another in carrying out the act circumscribed by the law commits the fourth type of illegal recruitment by the law.

For the third and fourth types of illegal recruitment the law prescribes the penalty of life imprisonment and a fine of P100,000. Decision of the RTC was affirmed.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENGINEER RODOLFO DIAZ, accused-appellant. [G.R. No. 112175. July 26, 1996]

NATURE: An appeal from the decision dated September 2, 1993, of the Regional Trial Court, 11th Judicial Region, Branch 10, Davao City. FACTS: In June 1992 Mary Anne Navarro, Maria Theresa Fabricante and Maria Elena Ramirez were all enrolled at the Henichi Techno Exchange Cultural Foundation in Davao City, studying Niponggo. Their teacher was Mrs. Remedios Aplicador. One day Mrs. Aplicador told them that if they wanted to go and work abroad, particularly Brunei where they could earn a salary of "$700.00 for four hours daily work," she would refer them to Mr. Paulo Lim who knew one Engr. Erwin Diaz who was recruiting applicants for Brunei. Mr. Paulo Lim explained to them that he was not the one recruiting workers but Engr. Diaz. Mr. Lim informed them that his children had already applied with Engr. Diaz and that the requirements were bio-data, passport, medical checkup, I.D. and income tax return, and P2,500.00 for processing of their papers. Mr. Lim offered to accompany them to Engr. Erwin Diaz at the office

of the CIS. They asked Mr. Lim when he was available, and he said July 18 (1992), Saturday morning. The complainants met Engr. Diaz who was then being detained in the CIS Detention Center in Davao City because of a case filed against him. Engr. Diaz confirmed that he was recruiting applicants for Brunei. The requirements include four passport size pictures of each applicant, bio-data, income tax return, medical certificate, NBI clearance, passport, P2,500.00 for processing of the papers of each applicant, and P65,000.00 as placement fee, but only P20,000.00 for plane fare was to be paid by each applicant, the balance of P45,000.00 was to be paid by means of salary deductions. The P2,500.00 for processing of their respective applications was to be paid at the house of Engr. Diaz at 14 Aries Street, GSIS Heights, Davao City, with telephone no. 846-71. The complainants complied with the requirements. However, upon inquiry by complainant Fabricante, the POEA verified that Engr. Diaz was not a licensed recruiter. The three complainants withdrew their applications from Engr. Diaz without paying his charges. The amounts they paid for processing fees were all returned to them by Engr. Diaz. A case was subsequently filed against accused-appellant. The trial court rendered a decision finding the appellant guilty of the crimes charged.

ISSUES: 1. Whether or not the lower court erred in finding that the accused not only confined himself to facilitating the passport and medical examination of the complainants but also promised them employment abroad.

2.

Whether or not the lower court erred in not finding that the accused was merely a facilitator of travel documents and not an illegal recruiter. Whether or not the lower court erred in convicting the accused of the crime charged.

3.

RULING: The issues being intertwined shall be discussed together. The crime of illegal recruitment, as defined under Articles 38 (a) in relation to Articles 13 (b) and 34 and penalized under Article 39 of the Labor Code, as amended by Presidential Decree 1920 and Presidential Decree 2018, is any

recruitment activity, including the prohibited practices enumerated under Article 34, undertaken by a non-licensee or non-holder of authority. Article 13 (b) of the Labor Code, provides for the statutory definition of "recruitment and placement, as follows: "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." In People v. Panis, the SC made the pronouncement that any of the acts mentioned in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement. Article 38(a) clearly shows that illegal recruitment is an offense which is essentially committed by a non-licensee or non-holder of authority. A non-licensee or non-holder of authority means any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked or cancelled by the POEA or the Secretary. Moreover, recruitment and placement activities of agents or representatives whose appointments by a licensee or holder of authority were not previously authorized by the POEA shall likewise constitute illegal recruitment. The elements of the crime of illegal recruitment in large scale, which are undoubtedly present in this case are: 1] The offender is a non-licensee or non-holder of authority to engage in recruitment and placement activity, 2] The offender undertakes recruitment and placement activity defined under Article 13(b), or any prohibited practices enumerated under Article 34, and 3] Illegal recruitment is committed against three or more persons individually or as a group.[10] As can be ascertained after a thorough reading of the records, appellant Diaz was neither a licensee nor a holder of authority to qualify him to lawfully engage in recruitment and placement activity. As to the third element of the crime, there were obviously three persons who were victims of the appellant's nefarious act of large scale illegal recruitment.

Relative to the question of whether or not appellant Diaz was engaged in recruitment activity, it is clear from the testimonies of the three complainants that appellant undertook to recruit them. In synthesis, considering the positive testimonies of the complainants against the negative bare denials of accused-appellant, no other conclusion could be arrived at but to sustain the conviction of accused-appellant finding the latter guilty of large scale illegal recruitment beyond reasonable doubt. IN VIEW OF THE FOREGOING PREMISES, the Decision appealed from dated September 2, 1993 is hereby AFFIRMED in all respects, with costs against accused-appellant Rodolfo Diaz.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDITHA SEORON Y LIMORA, accused-appellant. [G.R. No. 119160. January 30, 1997]

NATURE: An appeal from the decision Regional Trial Court of Pasay City dated October 25, 1994 convicting appellant Editha Seoron of the crimes of illegal recruitment in large scale and three (3) counts of estafa. FACTS: Sometime in October 1991, Cesar Virtucio met appellant at accused Aquilino Ilano's house in Malibay, Pasay City, when he (Virtucio) and other applicants applied for jobs abroad. During the meeting at Ilano's residence, Virtucio and his companions were given job application forms which they filled up as told. Thereafter, Virtucio paid Ilano, in the presence of appellant, the amount of P20,000.00 as placement fee. After paying the placement fee, Virtucio and his companions were told by appellant to follow-up their applications at her office or at Padre Faura, Manila. Appellant failed to send Virtucio and his companions abroad, hence, he (Virtucio), together with applicants Ronilo Bueno and Greg Corsega, filed a complaint for illegal Recruitment and Estafa against appellant, a certain John Doe and Aquilino Ilano before the National Bureau of Investigation. Appellant Editha L. Seoron and her co-accused Aquilino Ilano and one John Doe, both at large, were charged in four separate informations with one count of illegal recruitment in large scale and three counts of estafa before the Regional Trial Court of Pasay City. When arraigned, appellant pleaded not guilty. Trial thereafter ensued. On October 25, 1994, the trial court rendered a decision convicting appellant as charged and sentencing her accordingly.

ISSUE:

Whether or not the lower court erred in not finding that the prosecution failed to prove the guilt of the accused-appellant Editha Seoron beyond reasonable doubt in the illegal recruitment, (large scale) case.

RULING: In essence, the centerpiece of appellant's defense dwells on the alleged insufficiency of the prosecution's evidence to prove her guilt as "[t]here is nothing on record . . . which says that placement fees received by Aquilino Ilano from the three (3) private complainants was turned over to [her]". Appellant asserts that she never issued or signed any receipts and that as a matter of fact "[t]he receipts of payment of alleged placement fees were received and receipted by accused Aquilino Ilano. Thus, appellant concludes that the prosecution failed to discharge its burden of proof thereby necessitating her acquittal. The SC was not persuaded. Illegal recruitment is defined under Article 38 (a) of the Labor Code, as amended, as "(a)ny recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority." Article 13 (b) of the Code defines "recruitment and placement" as [A]ny 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. 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. Contrary to appellant's mistaken notion, therefore, it is not the issuance or signing of receipts for the placement fees that makes a case for illegal recruitment, but rather the undertaking of recruitment activities without the necessary license or authority. And in this case, evidence on record belie appellant's assertion that she did not engage in any recruitment activity and that the fees paid by the applicants were not turned over to her possession as shown by the following testimony of private complainant Virtucio. Appellant made a distinct impression that she had the ability to send applicants for work abroad. She, however, does not possess any license or authority to recruit which fact was confirmed by the duly authenticated certification issued by the Manager of the Licensing Branch of the POEA, and by the testimony of Ms. Socorro Landas representing the Licensing Division of the Philippine Overseas Employment Administration (POEA). It is the lack of

necessary license or authority that renders the recruitment activity, as in this case, unlawful or criminal. Appellant's residual arguments that she was just an accommodation maker in the issuance of the check and that private complainants failed to notify her after the check bounced do not merit serious consideration. It has to be emphasized that appellant is not being prosecuted for violation of the antibouncing check law where the foregoing contentions may have an impact, but for illegal recruitment which the prosecution was able to establish beyond reasonable doubt. WHEREFORE, the trial court's decision is hereby AFFIRMED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NIMFA REMULLO, accused-appellant. [G.R. Nos. 124443-46 June 6, 2002] NATURE: An appeal from a decision of the Regional Trial Court of Makati City, Branch 132. FACTS: Private complainants JENELYN QUINSAAT, ROSARIO CADACIO, and HONORINA MEJIA averred that they went to appellants house sometime in March 1993, where appellant told them she was recruiting factory workers for Malaysia. Appellant told them to fill up application forms and to go to the office of Jamila and Co., the recruitment agency where appellant worked. Appellant also required each applicant to submit a passport, pictures, and clearance from the National Bureau of Investigation (NBI); and then to undergo a medical examination. Appellant told them the placement fee was P15,000 for each applicant, which private complainants gave her. Appellant did not issue receipts for any of the payments. At the Jamila office, private complainants met a certain Steven Mah, the alleged broker from the company in Malaysia that was interested in hiring the women. Mah told them they were fit to work. Private complainants were supposed to leave for Malaysia on June 6, 1993. On May 28, 1993, private complainant Quinsaat testified that she and the others met with appellant at the Philippine General Hospital where appellant showed them their plane tickets. Appellant also told them to fill up departure cards by checking the word "holiday" thereon. At the airport on June 6, 1993, an immigration officer told private complainants they lacked a requirement imposed by the Philippine Overseas Employment Administration (POEA). Their passports were cancelled and their boarding passes marked "offloaded". Private complainant Mejia testified that appellant told them they were not able to leave because their visas were for tourists only. Appellant told private

complainants they would be able to leave on June 20, 1993 but this, too, did not push through. Hence, appellant Remullo was charged with Illegal Recruitment in Large Scale and Estafa. The trial court found appellant guilty of the charges against her.

ISSUE: Whether or not appellant Recruitment in Large Scale. Nimfa Remullo is guilty of Illegal

RULING: Yes. In Criminal Case No. 95-653, appellant was charged with illegal recruitment in large scale. For such a charge to prosper, the following elements must concur: (1) the accused was engaged in recruitment activity defined under Article 13 (b), or any prohibited practice under Article 34 of the Labor Code; (2) he or she lacks the requisite license or authority to lawfully engage in the recruitment and placement of workers; and (3) he or she committed such acts against three or more persons, individually or as a group. Article 13 (b) of the Labor Code provides: ART. 13. Definitions. -- xxx(b) "Recruitment and placement" refers to 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. The Supreme Court was convinced that private complainants, the main witnesses for the prosecution, were enticed by appellant to apply for jobs abroad. The three private complainants filled up application forms at appellants house, and each paid appellant the amount of P15,000 as placement fee. However, she acted without license or lawful authority to conduct recruitment of workers for overseas placement. The POEAs licensing branch issued a certification stating that appellant, in her personal capacity, was not authorized to engage in recruitment activities. Evelyn Landrito, general manager of the placement agency where appellant used to work, denied that the scope of appellants work included recruiting workers and receiving placement fees. Such lack of authority to recruit is also apparent from a reading of the job description of a marketing consultant, the post that appellant occupied at Jamila and Co.

WHEREFORE, the appealed decision of the Regional Trial Court, Makati City, Branch 132, is hereby AFFIRMED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENRIQUE TAGUBA AND MIRAFE TAGUBA, accused-appellants. [G.R. No. 95207-17. January 10, 1994]

NATURE: An appeal from a Decision of the Regional Trial Court of Caloocan City, Branch 121. FACTS: The complainants, namely, Jesus Garcia, Gilbert Fabrigas, Josefina Sarrion, Myrna Roxas, Elena Santiago, Federico Sagurit, Manuel Aquiban, Violeta Porte, Renelito Cerbito, Danilo Pacheco, narrated almost identical versions of the deception practiced on them by the accused. These witnesses testified that appellants approached them on separate occasions and assured them that upon their payment of a specified sum of money they would be sent to Korror, Palau, to work variously as a waiter, fisherman, master cutter, dressmaker, farmer, laborer, mason carpenter or macho dancer. The consideration for their recruitment ranged from P2,200.00 to P20,000.00 while the promised monthly wages ranged from $300.00 top $500.00. The required payments were made by them from loans they had contracted or from the proceeds of the sale of their properties. However, no overseas employment materialized. Only Gilbert Fabrigas and Norman Sarrion (the son of Josefina Sarrion) were able to reach Korror but after three months, during which they were not given any work, they were deported to Manila for expired visas. The rest of the complainants were never even able to leave the Philippines. Enrique Taguba and Mirafe Taguba were both charged with eight counts of illegal recruitment and three counts of estafa in separate informations. After trial, Judge Adoracion C. Angeles of the Regional Trial Court in Caloocan City declared them guilty of all the charges in a decision dated June 4, 1990. The Solicitor General maintains in the appellee's brief that it was incumbent on the accused to prove that they were licensed to recruit workers, conformably to the well-settled rule that any party who asserts the affirmative of an issue has the burden of presenting evidence required to obtain a favorable judgment. 19 He agrees, however, that PD 2018 is inapplicable and that the appellants can only be held guilty of eight counts of illegal recruitment and penalized in accordance with Sec. 39 (c) of the Labor Code.

ISSUES: 1. Whether or not the prosecution failed to prove that appellants were not holders of licenses to engage in the recruitment and placement of workers abroad.

2. Whether or not appellants recruitment in large scale.

can

be

convicted

of

illegal

RULING: For the first issue, the SC ruled in the affirmative. The record shows that the prosecution indeed failed to establish that the appellants had not been issued licenses to recruit for overseas employment. It had moved to present Cecilia E. Curso, Chief of the Licensing and Evaluation Division of the Philippine Overseas Employment Agency, so she could testify that the accused were not licensed recruiters, but this was never done. Rule 131 Sec. 2, of the Rules of Court provides: Sec. 2. Burden of proof in criminal cases. In criminal cases the burden of proof as to the offense charged lies on the prosecution. A negative fact alleged by the prosecution need not be proved unless it is an essential ingredient of the offense. Non-possession of a license to recruit is an essential ingredient of the crime of illegal recruiting. As it is an indispensable requisite for the conviction of the pretended recruiter, the burden of establishing this element is upon the prosecution. In the case before us, the prosecution cannot deny its failure to show that no license had indeed been issued to either of the appellees by the Philippine Overseas Employment Administration. This would have been a fatal omission under ordinary circumstances. Fortunately for the prosecution, however, this flaw was repaired by appellant Enrique Taguba himself when he testified. On the second issue, the SC ruled in the negative. The Court agrees with the Solicitor General that the appellants cannot be convicted of illegal recruitment on a large scale because only two of the complainants, Jesus Garcia and Elena Santiago, categorically testified that their recruitment came after February 10, 1986. This was the date when P.D. 2018, the law defining and penalizing illegal recruitment in a large scale, took effect. P.D. 2018 has amended Articles 38 and 39 of the Labor Code by providing inter alia as follows:

Art. 38. Illegal Recruitment. . . . (b) Illegal recruitment when committed by a syndicate or in a large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under this first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. xxx xxx xxx (d) Art. 39. Penalties. (a) The penalty of the imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; xxx xxx xxx (c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,00 or both such imprisonment and fine, at the discretion of the Court. P.D. 2018 cannot apply to the appellants retroactively as it would be an ex post facto law to them. A law is ex post facto if it refers to a criminal act, punishes an act which was innocent when done, and retroacts to the disadvantage of the accused. Prior to the said date, recruiting on a large scale was not yet punished with the penalty imposed in the said decree. WHEREFORE, the appealed decision is AFFIRMED with modifications.