MEMORANDUM TO: FROM: DATE: RE: Large Scale Illegal Recruitment QUESTION PRESENTED Is Leticia Morticia guilty of large

scale illegal recruitment in failing to deploy the four siblings to Saudi Arabia? SHORT ANSWER Yes. Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. STATEMENT OF FACTS On February 07, 2011, Leticia Morticia promised Amanah Leh and her three sisters namely; Huraya Leh-Santos, Jejelah Leh, Margela Leh-Anarte, employment as housemates in Saudi Arabia on March 07, 2011. Leticia Morticia is licensed to recruit workers for overseas employment under Philippine Overseas Employment Administration (POEA). At such time, she was applying for the renewal of her private recruitment agency license under the said agency. She demanded and received the amount of THIRTY THOUSAND PESOS (P30,000.00) from each of the Leh siblings on the same day as consideration for the services she has rendered to them. However, Leticia Morticias application for renewal of her license to recruit workers for overseas employment under Philippine Overseas Employment Administration (POEA) was denied on February 28, 2011. This prompted her to cancel the deployment of the four sisters to Saudi Arabia. By reason of such failure to deploy, a complaint for Large Scale Illegal Recruitment was filed against Leticia Morticia by the four siblings. Respondent Leticia Morticia alleged that she acted in good faith as her license was still valid and subsisting at the time she promised to deploy the four sisters to Saudi Arabia although she had already submitted her application for the renewal of her license to recruit workers for overseas employment and was pending approval at the Philippine Overseas Employment Administration (POEA). As proof of her good faith, she presented the Affidavit of Desistance executed and signed by the complainants, acknowledging her reimbursements of the amounts paid by the sisters for the supposed fees pertaining to the documentation and processing for the total of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00) and that they would no longer proceed with the case against her.

DISCUSSION Republic Act No. 8042 defined illegal recruitment as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring, referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority. That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. (l) Failure to actually deploy without valid reasons as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the workers 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. Article 38 Section (b) of the Labor Code of the Philippines provides that Illegal recruitment deemed perpetrated in a large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. Thus, in People v. Cabacang (G.R. No. 113917 July 17, 1995) this Court ruled that the crime of illegal recruitment is committed when two elements concur, namely: 1] That the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and, 2] That the offender undertakes either any activity within the meaning of recruitment and placement defined under Article 13(b), or any prohibited practices enumerated under Article 34. The elements of the crime of illegal recruitment in large scale are mentioned below as enunciated in the case of (People vs Diaz, G.R. No. 112175, July 26, 1996). 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 A license is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or entity to operate a private employment agency, while an authority is a document issued by the DOLE authorizing a person or association to engage in

recruitment and placement activities as a private recruitment entity. (People vs. Gasacao, G.R. No. 168445 November 11, 2005) The Respondent, under the facts of the case was engaged in the recruitment and placement business. She was a licensee, offering or promising employment abroad for a fee to the complaining witnesses Amanah Leh, Huraya Leh-Santos, Jejelah Leh, Margela LehAnarte. However, her application for the renewal of her license to recruit workers for overseas employment under Philippine Overseas Employment Administration (POEA) was denied on February 28, 2011. And as result, she has failed to deploy them on the agreed date. . As a consequence of the non-deployment of the complainants, the Respondent was charged with large-scale illegal recruitment. However, complainants failed to prove that at the time respondent Leticia promised to deploy complainants, the former is without a valid license. Section 16 of the POEA Rules and Regulations Governing the Recruitment and Employment of Land-based Overseas Workers on Renewal of License: an agency is allowed to submit an application for the renewal of its license (on or) before the expiration of a current and subsisting license. In addition to that, Section 18 under the same rule provides that where the license holder has made timely and sufficient application for renewal, the existing license shall not expire until the application shall have been finally determined by the Administration. For this purpose, an application shall be considered sufficient if the applicant has substantially complied with the requirements for renewal. Relevant documents attached to this memorandum attest to the fact that at the time respondent Leticia Morticia promised to deploy complainants for overseas employment, her license to operate a private recruitment agency was still valid an and subsisting. (See Annex "X") Even if Leticia failed to deploy the sisters, it is not without valid reason. Such failure was a consequence of the denial of her pending license renewal. To proceed in deploying the workers would then ensure her violation of the law. Hence, it was prudence on her part to desist on the workers' deployment. It is clear from the tenor of the abovementioned doctrines that the instant case without doubt does not involve illegal recruitment in large scale. Morticia's act of reimbursing the processing and documentation fees of the sister's further absolves her of the charge against her. (Section 6, subsection m Republic Act No. 8042) ) As regards the alleged desistance by private complaints, the Supreme Court ruled in the case of People vs. Laurel, G.R. No. 120353,February 12, 1998; an affidavit of desistance may be given due course only when special circumstances exist engendering doubt on the criminal liability of the accused. Otherwise, without such special circumstances, courts look with disfavor on affidavits of retraction considering them as exceedingly unreliable. The reimbursement of the documentation and processing fees can be attributed to a special circumstance as such possesses a direct bearing on the guilt of the accused. The act of reimbursement itself serves to absolve the accused of the crime of illegal recruitment for failure to do so is violative of the directive directed by Sec 6 (m) of RA 8042, and hence renders Leticia Morticia guilty of large-scale illegal recruitment.

CONCLUSION Leticia is not guilty of large scale illegal recruitment for the reason that the recruitment of the Leh sisters was timely made, though the renewal for her license to recruit was subsequently denied.