Overseas Absentee Voting: Voter Turnout Apprehensions

oavOn April 13, 2013, national elections will start early for all overseas Filipinos around the globe. The choosing will only be limited to  party-list representatives and the 12 seats vacated by senators whose terms expire on June 30 noon. Votes for local candidates from governors down to the sangguniang bayan members, and local congressmen will not be included in the electronic ballot. COMELEC find it difficult to print ballots of different LGUs and to electronically configure the voting program to suit every Filipino living abroad who came from different local government units at home.

However, the biggest problem that besets the coming elections for OAV (overseas absentee voting) is to reach the target set by the COMELEC of a 50%-voter turnout.

Overseas Absentee Voting was first conducted in the presidential elections of 2004. The law was passed in 2003, after which only two months were allocated for registration. Of the 359,297 registered voters, it was said that 233,092 or 65% had voted. It was considered a success by the election body then considering the several problems it encountered prior, during and after the elections. In 2007, the mid-term elections resulted in a low voter turnout. From the 503,896 registrants, only 81,732 or 16% voted. This was a very sudden dropped (even in actual numbers) from the 2004 elections. COMELEC was quite optimistic with the voter turnout in the 2010 presidential elections. But after the exercise, of the 589,830 registrants, only 141,846 or 24% voted. There was only a 6% increase.

The sharp decline in 2007 was attributed by COMELEC to the fact that it was a mid-term election and voters were not so much keen in casting votes to fill up the senate seats, compared to electing a new president. They predicted a rebound in 2010. They were dismayed. The low turnout of 24% in 2010 further gave doubts to their alibi that mid-term elections do not encourage many voters.

I however have some reservations to the statistics presented by COMELEC in 2004 with respect to the OAV turnout. There might have been some inaccuracies. The 233,092 figure may not be totally true? We can recall that the national elections at that time was purely manual and the whole practice was rigged. If Arroyo could have pulled 1 million ghost votes in Mindanao, was it not possible for her to control the overseas absentee votes? It was likewise very doubtful to rush the passing of the OAV bill into law in 2003, and set up registration for two months to catch up with the 2004 voting? The whole OAV system may have been built to buffer any deficiency Arroyo might incur in the mainland elections. Maybe the Mindanao scheme was not yet in place then or maybe it was set up to augment it. The 65% turnout is quite shady for a new system.

To draw a clearer picture, the graph would depict a zig-zag line with highs during presidential elections and lows during mid-term elections. I may peg the 2004 elections at 20% turnout and not 65%.

The 2013 mid-term elections may not be any different from the 2007. Sad as it may, but it might not surpass the 2010 voter turnout. Most Filipinos do not see any impact in filling up the vacant seats left by the 12 senators. Unlike voting for the president, who wields all the major powers in the government, voting for the senators will not translate into any major changes in the government.

The other factor that does not give OAVs the fun and thrill to vote abroad is the absence of local elections in their ballots. Most Filipinos, accept it or not, are compelled to vote not because they care about electing national officials. They vote because they support local candidates who may be either their relatives, friends or allies. Others vote because of some considerations, in cash or in kind. During the OAV registration, most Filipinos would inquire whether local elections are part of the ballot. Some would not even register because they prefer to vote at home.

Filipinos who are permanent residents (green card holders, pink card holders, etc.) of other countries fear that they might lose their chance of gaining the host country’s citizenship if they vote in the Philippine elections.  The dilemma whether to register or not, vote or not, always comes at the choice between two citizenships. In this issue, the permanent residents take more into consideration the host country’s laws.

What is crucial in generating higher voter turnout is the information campaign that must be undertaken by the Philippine embassies (DFA) and the COMELEC. Every Filipino should be made aware of the election period so that he may prepare himself and marks his calendar for the activity. Filipino community associations must also be given the lead to spearhead and encourage Filipinos to vote. The band-wagon mentality still works with exercises like these. Social networking sites such as facebook and twitter must be used to disseminate information on the elections. The embassies should convey as much information they have on the event.

One way of ‘forcing’ a higher voter turnout is to give Filipinos a ‘no choice situation’ during the elections. It is undeniable that the right to vote also carries with it the duty to vote. Every Filipino has the civic duty to participate in the exercise. I believe it is not a violation of one’s right to ‘compel’ someone to vote during these times. Filipinos line up every day at embassies to process their official documents, passports and other papers. Why not put conditions on the facilitation or accommodation of these processes? For example, why not require first the individual to vote before continuing with facilitation of his papers? What violation could the embassy make? In the first place, it is the duty under the law of the individual to vote.

With around two weeks before the actual elections start, let us cross our fingers that the turnout will be better this time around.

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The Rehabilitation of EDSA

edsaTwo days ago, my cousin who returned from Jeddah, Saudi Arabia decided to take transit here in Singapore to visit us, before she flies back to the Philippines. I promised that I will fetch her at the airport. So, around forty minutes before she arrived, I drove my car out of the parking lot and headed to Changi Terminal 2. The airport is 32 kilometers away from our place and I have to traverse two major highways: the BKE, (Bukit Timah Expressway), and the PIE (Pan Island Expressway). I have to travel 3 kilometers of BKE and 24 kilometers of PIE. The remaining distance of the 32 kilometers covers inland roads and the airport boulevard. I left our place at exactly 12:10 noontime, and arrived at Changi Terminal 2 at around 12:35. Travel time was only 25 minutes for a 32-kilometer distance during the peak of the day.

I tried to compare the driving time if I were to travel the whole length of EDSA via car at  same time from Monumento to Pasay City on a regular weekday. By the way, the distance from Monumento EDSA to Pasay EDSA (corner of Roxas Boulevard) is only 23 kilometers. It will be a miracle if I reach the other end within 25 minutes.

I read today that PNoy suspended the planned rehabilitation of EDSA because he was not satisfied with the proposal made by a combined group of government agencies. The proponents were given a second chance to further develop and revise, if possible, their hasty act.

I believe that there are only three basic ingredients needed to change EDSA. The first is to build a wider, durable and safer roads; second is to reduce traffic, and third is to discipline motorists. In simpler language, make the roads wider, limit the vehicles that pass through, and kick the hell out of unruly commuters. It seems easy, but it is not. It takes a lot of political will to do it.

First

The present EDSA is never symmetrical in all its length. There are segments or portions of the avenue that are wide, while others are very narrow. These disproportionate widths cause bottlenecks, which in turn cause heavy traffic during rush hours. It is thus better to widen those parts that are narrow so as to attain a symmetrical width. If it started in Monumento as a six-lane road in both directions, it should end as such in Pasay City. I know the act of widening is a bloody exercise because several business establishments will be affected. If the stalls are merely squatters occupying the sidewalks with no legal papers to show, kick them out of the way. If they have good legal documents to show, and they are indeed owners of the place they occupy, expropriate part of their properties. There is no better reason for expropriation of property than its use for the common good.

I likewise see that everything is wrong with the way the MRT was constructed in EDSA. It has a very large base that occupies a larger width of the road. And worse, it only carries small-width carriages that can, the most, accommodate two persons standing between the two seats. I think the design of LRT 2 (Recto-Santolan) is way better than the MRT. This is beyond the fact that the road it occupies is a four-lane street.

With regard to a durable and safer road, it is all technical, and the absence of corruption.

Second

It is not because a new road is renovated or built, everyone can already use it. Hell, no. Careful planning should be made on how many buses should ply the EDSA route. It is not because a bus company is granted franchise to service EDSA, it has already the liberty to provide unlimited number of buses. The DOTC should conduct bids to transportation companies, and select only those transport corporations that can provide good service. Two bus companies servicing EDSA or only one may be feasible.

Moreover, the winning bus company/ies should not be given a free hand on what design the buses should look like. It should be the DOTC that should provide for the design and make of the buses. To make it easier for the DOTC, it can copy and specify in the scope of works the designs of the buses in Singapore or in Washington D.C. Lowered steps, with digital signage of its route (so as to easily change them) complete with CCTV cameras monitoring the inside, larger aisles, and wider windows. The cost of buying these buses will easily be offset by revenues for an number of years. The location of bus stations must be carefully planned. Information [encased in glass] of the route of the buses as well as the fares must be placed conspicuously in  each station. Maintenance of the bus stations may be left to the bus company. Bus drivers must be salaried and fares must be paid via cards. A tie-up between the MRT and the selected bus company to share the same card for the fares is not difficult.

Third

Discipline is one of the most important ingredient to stabilize EDSA. It may be solved partly because as of present the most undisciplined motorists in this road are the buses. The main concern of this third ingredient is how to discipline private motorists. First, a no-contact policy must be strictly implemented with respect to apprehension of unruly vehicles. Personal apprehensions by MMDA traffic enforcers may be made only on jaywalking and other non-vehicle related traffic offenses. Cameras must be mounted on all possible “violation” spots. I believe the MMDA has been doing this exercise a few years now. The use of lanes and primary-secondary intersections must be strictly observed as their misuse often lead to accidents and traffic.

I believe that in solving problems, one must simplify the problem first, then give practical, simple, and direct solutions. It is actually we that make everything complicated.

Carlos Celdran and the “Damaso” Predicament

damaso-imageOn December 14, 2012, the Honorable Judge Juan Bermejo of Metropolitan Trial Court of Manila [Branch 4] promulgated a decision convicting Carlos Celdran y Pamintuan of the crime of “Offending the Religious Feelings” penalized under Article 133 of our Penal Code (Criminal Laws). Celdran was sentenced to 2 months (minimum) to 1 year (maximum) imprisonment.

Since this is a Metropolitan Trial Court, promulgation of judgment is usually not read in the presence of the accused. It is oftentimes mailed to the lawyers of the parties. The decision was maybe only received yesterday or this week (last week of January, 2013) by Celdran’s lawyer through mail. It however immediately became a national topic. Several editorials made it their early morning cup of coffee. Several hasty reactions were thrown. Even the President made his own remarks on the issue. The last time I checked, Celdran is bent on appealing the case to a higher court than applying for probation.

I have rummaged through the decision of Judge Juan Bermejo, the magistrate in this case. By the way, I’ve known him for some time. We had a long and good conversation then when he visited the law office of Justice Bellosillo in Roxas Boulevard, Manila. I was still then an associate of the good Justice.  I may say that Judge Bermejo is a relative because he married a “Vista”. He is also close to my Tita Cely Calupig and often visited her house at Kalayaan, Global City.

There was nothing really to prove much when it comes to what Celdran did because it was photographed and covered  by the media when it happened in September, 2010. It also became a headliner for several national newspapers wherein the views of Carlos Celdran were well-taken and conveyed by reporters to the people. The case then only boils down to the question of whether what he did was a criminal or not.

Let me reproduce to you the provisions of Article 133 of the Revised Penal Code:

Art. 133. Offending the religious feelings. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.

As I see it, the penalty of imprisonment handed down by Judge Bermejo is within the parameters set forth in the particular provision of the law. You may refer to Title 3 of the Revised Penal Code for better understanding of the Spanish terms.

On the other hand, Article 133 has been dissected and formed to comprise two (2) elements:

1) The acts complained of were performed (1) in a place devoted to religious worship, or (2) during the celebration of any religious ceremony; and

2) The acts must be notoriously offensive to the feelings of the faithful.

The first element can be said to have been easily satisfied with, because Celdran raised the placard “DAMASO” and uttered the words “Don’t meddle with politics!” inside the Manila Cathedral.

The second element however is vital since it determines whether the overt act he committed was criminal or not. The witnesses presented, who are “faithfuls” of the Catholic Church testified that what Carlos Celdran did had offended them. With the term “faithfuls” we mean bona fide Catholics and NOT followers of other religions or sects.

Judge Bermejo citing the case of People vs. Baes, G.R. No. L-46000, May 25, 1939, correctly justified that witnesses presented should be faithfuls of the Catholic Church –

Whether or of the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those professing another faith.

To elucidate, the prosecution presented four witnesses, three of which are lay persons and the fourth is a priest. All of them testified that they were offended when Celdran raised the placard and shouted those words. Celdran, on the other hand, presented only two witnesses to defend his case. The two witnesses testified the contrary.

What really mattered here most, according to the judge,was how the four witnesses delivered their testimonies as against how the witnesses of the defense delivered theirs. The Judge observed that the testimonies of the prosecution witnesses were straightforward, natural, spontaneous, and credible. It means that the witnesses’ declarations that they were offended as Catholics are true. The testimonies of the four faithfuls outweigh in greater length the testimonies of the defense’s two.

My Opinion on this ISSUE:

I won’t go farther into the decision of the court. It is, as of this moment, considered lawful (until reversed, if reversed by a higher court in the future) and just. What I hate is the current media mileage given to CELDRAN. Worse, most people in the so-called intellectual and liberal corners of Manila wanted Article 133 of the RPC repealed, or they termed it “revisited”.

These people are trying to bring in their American style freedom of expression and force it to the Filipino culture. Celdran always boasted that he was molded in New York, and he brought with him this free-wheeling right of expression to the country. Yes, we were under the Americans for what? Fifty years? And we think we are whites.

But NO SIR. We have a different culture. We should have a different way of treating our freedom of expression. For all those dimwitted who does not know their rights – this particular “Freedom” is NOT ABSOLUTE.

The best example of our own true culture is our Penal Code. Look at the provisions there that clip our most espoused freedom of expression. The Penal Code is the true sentiment of the people. It tells us who we are as Filipinos. We cannot just bring in a foreign idea because it is COOL and integrate it into our system.

Celdran committed a criminal act and he must be punished. At the end of the day, it will always come to the conclusion that the “law is harsh, but it is the law” [Dura lex sed lex.] So, why make so much fuss about his predicament?

Celdran was barking at the wrong tree. He should have lobbied in Congress for the bill to be passed, and not malign another person or institution because it has the opposing view. He has gone too far with his cause.

I think it is HIGH TIME to discipline Filipinos. Celdran must be jailed to send a message to the whole word that we are not a BUNCH of F*%$ED UP people who play with our laws. We must show the world that we are dead SERIOUS with people who violate our rules. That’s why we have not gotten anywhere, all these years, because we treat everything lightly. We make rules, then we also bend them if they do not fit our likings. We are a land of JOKERS if that is such the case.

Link to the FULL DECISION –

https://docs.google.com/file/d/0ByIQb2-6J40ISGVXOTdXXzFpRGM/edit?pli=1

Passport Misconceptions

passportI am forced to write this blog in response to the countless misconceptions arising either from pure ignorance or laziness to check our laws by our Kababayans with regards to the true mandate of our dearly beloved PASSPORTS. Yes, the one official document that makes us “official” in the country we work, live or visit. I think it might be better to put these annoying and repetitive questions into numbers and answer them accordingly for easy reading and understanding:

1. Is it our right as Filipinos to be issued a passport?

A: Sorry, but NO. It is NEVER a right for us citizens of the Philippines to be issued a Philippine passport. Unlike other rights such as “the right to vote”, where we can demand from the COMELEC or from any Philippine authority to accommodate us and grant us the opportunity, it is never in the case of granting Philippine passports. We cannot demand from the Department of Foreign Affairs of from any Philippine Embassy to issue us passports. We apply for it, and it is within the prerogative of the DFA Secretary or his authorized representatives to grant us  passports or not. IN OTHER WORDS, we are issued a passports as a PRIVILEGE and not as a right.

2. So, if it is ONLY a PRIVILEGE and not a RIGHT, why do I own my PASSPORT?

A: DO NOT EVER THINK that you own your PASSPORT. YOU DO NOT OWN YOUR PASSPORT. It is the government of the Philippines which owns your passport. You are MERELY a HOLDER of that passport. It might be issued in your name, bears your age, your address, and other personal data, but you are not its OWNER.

3. So, if I am not the owner of the PASSPORT, and it is the GOVERNMENT that owns it, what can the government do with my passport even if it is in my POSSESSION?

A: It follows [in property laws] that once a person owns a thing, he has the full right to do whatever he likes with it. He can even destroy such thing, if he feels it. No one will file a case against you, if you break your watch or throw it against a wall. Just like our PASSPORT, since it is owned by the Government, the GOVERNMENT can cancel or revoke it even if we are still in its possession. And since it is the Government’s property, it can choose whether to DENY us its issuance, or RESTRICT us with its use.

4. Then if we do not OWN our PASSPORTS, why do we pay a thousand pesos for its issuance, doesn’t it amount also to BUYING the PASSPORT from the GOVERNMENT.

A: NO, IT IS NEVER THE CASE. We do not pay for that booklet of paper. Because if we should pay for the cost of paper only, we should be charged less. The amount we pay is the PRICE OF THE PRIVILEGE extended to us by the STATE or by the GOVERNMENT. It does not even involve the price of the service that comes with the production of our booklet. In any government or state, either democratic, socialist, or communist, it is the OBLIGATION of every citizen to pay taxes or fees to the STATE. This is in exchange for the security, citizenship, and services granted by their governments to them. Try to imagine yourself as a person without a country; without a citizenship. You will be driven out from any place you will try to live, just like what happened to the Palestinians and the Gypsies.

5. So, is it THE OBLIGATION of the GOVERNMENT, in this case, the Philippine Embassy, to issue my PASSPORT at the exact date and time indicated in my COLLECTION SLIP?

A: DARN NO. Please try to look into the paper you are holding. Is it a CONTRACT with the GOVERNMENT? Is it a CERTIFICATE OF TITLE [TITULO] in your NAME? NO. It is only a NOTICE. A notice that you can expect to receive or collect your PASSPORT on that particular date. From the time you were  permitted to submit your application, photographed and paid the lawful fee, until the time your passport is actually released to you, your legal interest on the PASSPORT is still under the prerogative and discretion of the GOVERNMENT. Even if your PASSPORT Booklet was already made, the DFA still has the discretion not to issue it to you. So during the period where you don’t have the new passport in your hand, you don’t have any right of possession to it.

6. What could be the instances wherein my PASSPORT could not be issued to me on time?

A: The new PASSPORTS are embedded with microchips and are made not by the DFA but are subcontracted to the Bangko Sentral ng Pilipinas. One cause of delay in the creation of the PASSPORT is the unprecedented malfunction at times of the machine that creates it coupled with other factors. The production of the passports were never concealed to the people. It is a basic official act of the GOVERNMENT. All the processes in its production as well as the underlying contracts were, in no doubt, published in newspapers of general circulation. It is not anymore the fault of the DFA if some individuals consider the passport production very long. They should adjust their individual schedules to its processing.

7. Must a citizen renew his PASSPORT, six months prior to its expiration?

A: The Philippine Passport Act DOES NOT provide such requirement. It entirely depends on the the need of the passport holder. It is the International Civil Aviation Authority (ICAO) that encourages the renewal of passports six months prior to its expiration because most countries DO NOT allow persons to enter their territory, possessing  passports with validity of less than six months. For our Kababayans who has problems on this matter, you are NEVER in a POSITION to malign the Philippine Embassy if it cannot issue the PASSPORT on your desired DATE, so as to satisfy your need. You have the OBLIGATION TO KNOW your LAWS. IGNORANTIA LEGIS NEMINEM EXCUSAT.

8. What could be the best guiding line we should learn from all of these?

A: Remember what John F. Kennedy said, “Ask not what your country can do for you – [but] ask what you can do for your country”. Let us stop whining for every inconvenience we encounter, we always end as losers.

Part III: Is the Bureau of Immigration Pushing Beyond its Powers and Violating the Filipino’s Right to Travel to Singapore?

LuckyPlazaI and my wife went to visit Lucky Plaza at Orchard Road in mid-October to do some late-minute bank transactions. For those who are not familiar with the place, it is a ‘popular’ mall among Filipinos situated along the bustling business and shopping avenue in Singapore. Filipino boutiques and stalls are lined-up inside this newly-renovated shopping center. Once you enter the place, you can feel a homy atmosphere because majority of the people speaks Filipino. Even the Singaporean-Chinese and the Singaporean-Indian merchants would greet you simple tagalog phrases such as “Bili na”. Try closing your eyes and you seem to be teleported to Farmer’s Cubao in the Philippines.

As we enter, my attention was caught by a  skimpily-dressed Filipina with dyed-blonde  hair. She may pass as Chinese cum Spanish mestiza. She had another Filipina companion – a morena who is a little bit shorter than her. They were in a rush as if trying to catch someone. The guy was a 50-ish Caucasian with a large frame coupled with a bulging belly. I could mistake him for a tourist, since most expats at those very hours were wearing coats and ties or office attires. This one was wearing a loose collared polo. The Filipina eye-balled him, smiled and greeted ‘hi’. The white man just went his way.

I already heard stories of Kababayans frequenting the Lucky Plaza; hunting for tourist clients – selling sex. I was not very receptive to that fact until I had seen one. To make it worse, these Filipinos are not work pass holders in Singapore. They are also tourists in Singapore who were granted a 30-day visit pass.

After we completed our transactions, we returned to the adjacent mall where we parked our vehicle. On our way, I again saw the two Filipinas sitting on a bench along the avenue side street, smoking. Facing them is a cafe-slash-beer hub where many white tourists conjoin.

I wondered why these Filipinas had set foot in Singapore when our Bureau of Immigration is so strict in permitting passengers to board their flights. Is there some sort of hullabaloo here where those who legally wanted to travel are off-loaded, while those under the stables of criminal syndicates are allowed to enter the country?

As of present, the Bureau of Immigration is still off-loading passengers to Singapore under the color of authority granted by a memorandum, the Bureau itself issued – MEMORANDUM ORDER RADJR NO.-2011- 011. The memorandum orders its immigration officers to “Offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking.”

I have three questions in mind when confronted with this immigration authority issue.

First – Is the Bureau of Immigration indeed mandated by law to offload passengers bound for other countries? Second – Is this provision in Memorandum Order RADJR No. 2011-011 valid? Third – Are abuses in discretion happening as a result of this Order?

First Question

The Bureau of Immigration has indeed authority to offload passengers bound for other countries ALBEIT for only very limited reasons, and that is, in its exercise of ministerial duty. And what do we mean by ministerial duty? A ministerial act or duty is a function performed without the use of judgment by the person performing the act or duty. When we say, “without judgment”, the authority acts on what he objectively sees and not on what he personally feels about the situation. To apply, an immigration officer can offload a passenger when he discovers that the passenger has a forged or invalid passport; or when the passenger lacks the necessary documents required by law to travel. This duty is plainly mechanical. How do you determine if a passenger has a forged or invalid passport? His passport could be scanned and his name does not appear in the DFA list. How do you know if someone lacks the necessary documents to travel? Simply because the document or the documents are not with him.

Now, going further into the question of whether the BID is given authority by Anti-Trafficking in Persons Act of 2003 to offload passengers. A full reading of the law does not provide any provisions giving the BID authority to offload passengers suspected of anti-trafficking. Even the Implementing Rules and Regulations of the law does not provide also. So where did the BID get its authority?

Second Question

I am not saying that the full memorandum [MEMORANDUM ORDER RADJR NO.-2011- 011] issued by the BID is invalid. I only zero-in on the provisions of Section 4(A)(iv). This portion of the memo states –  “All TCEU officers and members, in accordance with the AOD organizational structure, shall perform the following duties and functions: During Departures, TCEU officers and members are duty-bound to: Offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking.”

My question is, do you exercise ministerial duty when you offload a passenger [with a complete and valid (on-its-face) documents and passport] based on your personal judgment that his purpose of travel is doubtful? I fear not. You are already exercising discretion. You are already putting your own judgment over the sets of standards determined by law. Likewise, when you give authority to offload passenger based on your operatives determination that POSSIBLY the traveling person is a victim of human trafficking, is it a delegation of ministerial duty? No, definitely not. It is already soothsaying.

Every Memorandum issued by any government agency must be pursuant to any mandate made by law. I don’t think this provision in the memorandum is a delegated authority.

Third Question

Will abuses in discretion manifest as a result of this Order? Yes, definitely it will, and are already happening as of present. There are reports that some BID men ask considerations in exchange for allowing passengers to travel. And some who did not want to pay were offloaded. It is not appropriate to give such authority to this kind of people in government, whose discretion were already questionable at some point in time this year. Remember what happened in the Governor Reyes’ case? Immigration officers were directly involved in his escape.

The Letter of INVITATION

The Letter of Invitation is an offshoot of this so-called authority granted to Immigration Officers. As far as I know, those Filipinos who wanted their relative to come to Singapore must first secure a Letter of Invitation from the Philippine Embassy as it is required by the BID upon exit by the invitee from the country. The authentication of the letter costs S$54.00 or around P1,800 in our currency. This is a big burden to our OFW “Bayanis”. What makes it worse, is that, even armed with the letter of invitation, one is not guaranteed to leave the country. So what does the document stands for?

This is the last part of my article on this issue. I hope this will be given attention and necessary actions made.

Part II: Is the Bureau of Immigration Pushing Beyond its Powers and Violating the Filipino’s Right to Travel to Singapore?

“Travel is fatal to prejudice, bigotry, and narrow-mindedness.” – Mark Twain

Since recorded history and even beyond the founding of civilized society, the passion for travel had enticed the minds and physical abilities of men. Man has been traveling for eons for different reasons. It may be for food, shelter, fear of danger, or for mere survival. The Filipino ancestors were not spared from this instinctive nature. They traveled far and wide, reaching the shores of the Americas and even the island of Madagascar. It is through travel that the West found the East and Magellan discovered the Philippines.

As civilization grew within the human realm, and as republics and monarchies were founded, this very basic instinct to travel was enshrined as a basic right for every man. Man’s passion for travel is part of natural law.

But for every rule, exceptions were always formed – to enforce order,  safety, and peace. The very basic lifeblood of every civilized government, along with taxes, is the control of its people, the only way to prevent chaos and anarchy.

The right to travel may be restricted on certain cases.

The 1987 Philippine Constitution was not saved from recognizing this human nature. It is just befitting since our basic law was only copied from another advanced democracy. Section 6 of Article III (Bill of Rights) of the current Constitution provides that, “Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”

A reading of the above provision will tell us that the Constitution did not create the right to travel. Before the passing of our  Constitution, this right has already been there. It is part of the existence of man, and of every Filipino. What the Constitution did was to affirm the existence of this human instinct and to recognize that it is a right of every citizen to exercise. The Constitution declares that ‘to travel’ or to move from place to place, is the general rule.

As previously stated, to enforce control over the populace, a government should impose limitations to instill discipline among its people. Our Constitution enumerates the three limits that may prevent an individual to exercise this right. These are national security, public safety, and public health.  However, the Constitution likewise provides the manner in which these states or conditions may be enforced – and that is, when there is a law providing for their causes and reasons. This is the meaning of the clause “as may be provided by law”.

And who then has the authority to curtail one’s right to travel?

There is no other branch of government other than the Judiciary that has the absolute authority to prevent someone from traveling. This authority covers the power to forbid an individual from leaving even through the use of arbitrary discretion. And what do we mean by arbitrary discretion? It is the judgment exercised by a person based on his discretion and not fixed by law.

The following example distinguishes arbitrary discretion from ministerial duty (fixed by law):

The law provides that all persons possessing fraudulent passports shall not be permitted to leave the country. This mandate is fixed by law. Thus, anyone caught possessing a fraudulent passport, maybe through electronic scanning of the device and confirmation with the Department of Foreign Affairs, shall not be allowed to leave. This authority is only mechanical and does not give any discretion to the person in authority.

But the authority is with arbitrary discretion when even possessing a valid passport, the person holding the passport is not allowed to leave by the person in authority. It means that the person in authority has the discretion to rule beyond the confines of what was fixed by law.

In our system of government, who possesses arbitrary discretion and who has only ministerial duty when it comes to the curtailment of travel?

The Supreme Court ruled in the case of Ricardo C. Silverio vs. Court of Appeals [G.R. No. 94284, April 8, 1991] –

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national security, public safety, or public health” and “as may be provided by law,” a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263).

The ruling of the Supreme Court tells us that executive authorities or administrative authorities are not allowed to exercise arbitrary discretion when preventing someone from leaving the country. All they have to do is impose what is fixed by the law.

One may take note of the limits set above, which are – national security, public safety, or public health. Likewise, observe the conjunctive “and” that follows the limitations joining the enumerations to the phrase “as may be provided by law”. This means that the administrative authority cannot on its own define and subjectively determine what are cases of national security, public safety, or public health, this must first be provided by the law. The parameters must be first set by law and they should ONLY work within its bounds without exercising any discretion. Otherwise, a leeway on discretion will result to abuse.

APPLYING THE ABOVE LAWS AND JURISPRUDENCE ON THE CASE OF THE BUREAU OF IMMIGRATION

It is worthwhile to examine the law which is the anchor of the Immigration Office in the exercise of its authority to prevent or offload citizens from leaving. It is equally important to know the authority or tasked imposed by the said law to the Immigration Office in its enforcement.

RA 9208 “Anti-Trafficking in Persons Act of 2003” [link – http://www.lawphil.net/statutes/repacts/ra2003/ra_9208_2003.html%5D

x x x Section 2.Declaration of Policy. – It is hereby declared that the State values the dignity of every human person and guarantees the respect of individual rights. In pursuit of this policy, the State shall give highest priority to the enactment of measures and development of programs that will promote human dignity, protect the people from any threat of violence and exploitation, eliminate trafficking in persons, and mitigate pressures for involuntary migration and servitude of persons, not only to support trafficked persons but more importantly, to ensure their recovery, rehabilitation and reintegration into the mainstream of society. x x x

(f) Bureau of Immigration (BI) – shall strictly administer and enforce immigration and alien administration laws. It shall adopt measures for the apprehension of suspected traffickers both at the place of arrival and departure and shall ensure compliance by the Filipino fiancés/fiancées and spouses of foreign nationals with the guidance and counseling requirement as provided for in this Act. x x x

The Rules and Regulation Implementing the “Anti-Trafficking in Persons Act of 2003” [link – http://www.scribd.com/doc/4664952/Rules-and-Regulations-Implementing-Republic-Act-No-9208-Antitrafficking-Act] was also promulgated as guidelines for the enforcement of the law. The Bureau of Immigration’s tasks are as follows:

(f) Bureau of Immigration (BI)

(i) Strictly administer and enforce immigration and alien registration laws;

(ii) Adopt measures for the apprehension of suspected traffickers both at the place of arrival anddeparture;

(iii) Ensure compliance by the Filipino fiancés/ fiancées and spouses of foreign nationals with thepredeparture and counseling program requirement of the Act;

(iv) Strictly implement the requirement for a parental travel authority duly processed by the DSWD for minors traveling abroad unaccompanied by one parent, and the travel clearance for minors traveling abroadunaccompanied by both parents;

(v) Ensure compliance by Overseas Filipino Workers of the departure requirements of the POEA;

(vi) Conduct periodic training and seminar on fraudulent document detection and passenger assessmentto enhance the level of skill and competence of all its immigration officers and agents in document frauddetection;

(vii) Conduct periodic study of the trends, routes and modus operandi employed by the traffickers includingits recruitment base, transit countries and country of destination;

(viii) Establish a network with other law enforcement agencies and immigration counterparts of source, transit and destination countries to facilitate exchange and sharing of information on the activities of trafficking syndicates;

(ix) Establish network with LGUs for the effective apprehension of suspected traffickers and their cohorts;

(x) Develop a program for the procurement and installation of International Civil Aviation Organization(ICAO) — compliant machine readers and fraud detection equipment at all international airports andseaports in the country to deter trafficking in persons; and(xi) Develop and distribute materials containing advisory and other pertinent information to enhance awareness against trafficking in person

A careful reading of the authorities granted to the Bureau by the law would show that there is no authority given to exercise arbitrary discretion to prevent passengers from leaving the country. RA 9208 is the law cited by the Constitution that limits a Filipino’s right to travel. This law, in order to be effective, must be implemented. There are several agencies mentioned in this law that are tasked to carry on their different assignments and one of them is the Bureau of Immigration.

However, on June 30, 2011, the Bureau of Immigration issued MEMORANDUM ORDER RADJR NO.-2011- 011. This memorandum is entitled “Strengthening the Travel Control and Enforcement Unit (TCEU) under Airport Operations Division (AOD) and defining the Duties and Functions Thereof” [link – http://immigration.gov.ph/index.php?option=com_content&task=view&id=845&Itemid=103]. In this administrative issuance, the Bureau mandated in number 4(A) –

4. All TCEU officers and members, in accordance with the AOD organizational structure, shall perform the following duties and functions:

A) During Departures, TCEU officers and members are duty-bound to:

i) Implement strict departure formalities for certain Philippine nationals pursuant to Memorandum Order No. RPL-10-004 dated 09 August 2010, in relation to Republic Act No. 9208, otherwise known as the “Anti-Trafficking in Persons Act of 2003” and its Implementing Rules and Regulations (IRR);

ii) Conduct, in a respectful and professional manner, interview of passengers referred for secondary inspection by the duty supervisor or the duty immigration officers at the counter to determine their purpose of travel. All passengers subject for interview by the TCEU must fully accomplish the BI Indicator Checklist to determine purpose of travel. The TCEU officer/member shall conduct the interview of passengers for secondary inspection at the duly designated TCEU counter. The interviewing TCEU member/officer must clearly indicate on the indicator list the requirements presented by the interviewed passenger, the result of the inspection, whether allowed or disallowed to leave the country, and the basis of such decision.

iii) Conduct redundancy check on travel documents of departing passengers;

iv) Offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking.

v) Document and report any person verified to be escorting passengers and facilitating and/or influencing the decision and evaluation of immigration officers, supervisors and TCEU members on admissibility or excludability of passengers expert upon specific clearance from the Immigration Commissioner; and x x x

No. 4(A)(iv) of the Memorandum expressly provides for the offloading of passengers not only found with fraudulent travel documents. The Bureau however also added two (2) new provisions:

  1. passengers who have doubtful purpose of travel; and
  2. passengers who are possible victims of human trafficking.

Is it not that the two added tasks for immigration officers are not found in the RA 9208 and its Implementing Rules? Is it not that these functions require arbitrary discretion on immigration officers to prevent someone from leaving the country? Please concentrate on the words doubtful purpose and possible victims.

Part III Next …[a thorough discussion]

Part I: Is the Bureau of Immigration Pushing Beyond its Powers and Violating the Filipino’s Right to Travel to Singapore?

A visit to the Philippine Embassy in 20 Nassim Road, one sunny and humid Sunday afternoon in Singapore will surprise someone with the sight of hundreds of Filipino countrymen queuing up for renewal of passports, issuance of overseas employment certificates (OECs), and yes, the new hot paper in town – the invitation letter.

For those new to the state country, the Philippine Embassy is open on Sundays to cater to thousands of Filipinos working there. The opening of the offices on this holy day is a great sacrifice for the hard-working ambassador, her consuls, the embassy employees, and the labor officers who are also part of the diplomatic corps. It is but a big relief to all Filipinos, most of whom are domestic helpers, who only get their day-offs on Sundays, and a chance to avail of government services.

Let us discuss more on this “invitation letter”. On a daily basis, the embassy authenticates around an average of 50 of this paper, gaining its peak of around a hundred on Sundays. This document is totally new to a common Filipino, as this is not one of the several documents that we encounter everyday in our local legal life. But to a Filipino who works and lives in Singapore, this is paper is a must. Authentication of the letter costs S$42.50 (PhP 1,4115.00), quite a hefty amount for an ordinary worker.

An “invitation letter” is actually an affidavit. It is an affidavit that states that the affiant (the person making the affidavit) who is Filipino is inviting another Filipino, preferably an immediate member of the family or relative, to visit Singapore. Other than this important detail, it includes other required and obvious collatillas such as the person visiting shall not violate the laws of Singapore, and the visit shall be for tourism purpose only.

Meanwhile, try to roam around the embassy on this hot afternoon, and also try to eavesdrop on conversations among groups of Filipinos and you may hear seldom-heard words such as “off-loading”. This maybe recited angrily with disappointment or disgust. “Off-loading” is the word used to describe the act of Immigration Officers stationed at various international airports in the Philippines of preventing or forbidding Filipinos to travel to Singapore.  It is based solely on their pure and impromptu whims, and disguised in their so-called unwritten power to enforce some enshrined laws of which they are “tasked” to implement.

For everyone’s information, it is the Bureau of Immigration and not the Philippine Embassy that requires invitation letters and their authentication. This document, Immigration mandates, should be sent to the invited Filipino relative who wishes to experience Singapore. It will then be shown or submitted to the immigration officer before departure at the international airport. Upon receipt, the immigration officer shall then pretend to read the letter, which contents and purpose he already knows, except maybe for the name of the invitee and the inviter. He shall then exercise  his personal judgment whether to permit the passenger to leave or not.

It is “heaven” when he permits the passenger to leave and definitely “hell” if not. With all airfare expense, travel tax, baggage freight expense paid in advance, who would not scream at the top of their lungs. I heard also stories of immigration officers who exchange their so-called judgment with a price. Ask the immigration officers their reason for not allowing the poor Filipino to travel. And they will answer you that it is all in their noble intention to implement the laws on anti-trafficking humans.

Before I continue with the more serious and detailed analysis of the true tasks of the Bureau of Immigration in the implementation of Republic Act No. 9208 (the Anti-trafficking in Persons Act of 2003), and the direct implication of the Bureau’s actions to the Filipino’s constitutional right to travel, let me leave you these questions:

Will this new Order introduced by the country’s Immigration office open the floodgate to a more serious problem? Will it give the opportunity for cunning immigration officers to make money in exchange for their discretion?

Part II next…