Introduction

President Fidel Ramos signed into law Republic Act 8042 (Migrant Workers and Overseas Filipinos Act), more popularly known as the Magna Carta for Overseas Filipinos, on June 7, 1995. The Migrant Act, as the law is popular known, was intended to address the welfare and protection issues of overseas Filipinos and their families. However, eight years after its enactment, welfare and protection remain a far-fetched dream for Filipinos working or residing overseas and for their families in the homeland. In fact, with the recent outbreaks of interventionist wars and the Severe Acute Respiratory Syndrome (SARS) hysteria, the plight of overseas Filipinos continues to worsen as issues of rights and welfare are wantonly violated by both foreign employers and the Philippine government.

The Migrant Act of 1995 was passed at the height of the people’s vigorous protest movement against the hanging of Flor Contemplacion due to gross government neglect. It took only two weeks for the Ramos government to come up with the Migrants Act. As expected with slapdash legislation, RA 8042 has become a loop-holed law that is almost useless as the abuse and exploitation of Filipino migrants continue. Succeeding governments that have followed the Ramos administration, on the other hand, have always turned a blind eye to the victims’ cry for justice. Protection for overseas Filipinos is widely seen as a prime example of government foot-dragging, if not all-out lip-service.

MIGRANTE shall delve into the existing R.A. 8042 and juxtapose the law with pending bill authored by Senator Manuel Villar Jr. in this position paper. As a matter of the sectoral party’s policy, MIGRANTE will never endorse labor export. It shall always exert all efforts in the long-term for government to junk the country’s labor export program and instead pursue a massive program of job creation here in the homeland for the utmost benefit of our people.

The Migrants Act of 1995

The Magna Carta attempts to give assurances with regard to the rights and welfare of migrant Filipinos and their families. Its title “An Act to Institute the Policies of Overseas Employment and Establish a Higher Standard of Protection and Promotion of the Welfare of Migrant Workers, their Families and Overseas Filipinos in Distress, and for Other Purposes,” presumes that government provides the Filipino migrants and their families protection and promotion of their welfare and that all it needs is to raise this to a higher level. But for a long time now, government, thanks to a problematic law, continues to neglect its duty to protect and promote the rights and welfare of Filipino migrants and their families. Worse, the Philippine government intensifies the export of Filipinos as cheap and docile labor in all available markets in advanced and developing countries.

Here are some provisions of RA 8042 that sorely needs to be amended:

The Declaration of Principles (Section 2) elaborates various statements on human dignity, protection of labor, creation of local employment opportunities, equality of women, free access to the courts, ensuring participation in decision-making, providing legal assistance, accrediting NGOs as partners for migrant concerns and the like.

These claims remain vague and untrue. For one, government is not concerned with the rising cases of abuses and exploitation to migrant Filipinos. Government is not interested to uphold the rights and welfare of migrant Filipinos abroad. Only when crisis situations burst into the public eye (i.e.: the US War in the Middle East and the SARS hysteria) does government grudgingly do some action.

Section 2 (c) states that “.... the State does not promote overseas employment as a means to sustain economic growth and achieve national development.”

Concrete realities show that all administrations from Marcos to Gloria Macapagal-Arroyo have intensified the policy of labor export. Overseas employment was incorporated in the 1974 Labor Code as a measure to curb unemployment and to generate revenues for the country’s balance of payment (BOP) deficits. President Aquino integrated the labor export in its economic recovery program. Ramos practically conscripted migrant Filipinos as commodities in its Medium Term Philippine Development Program (MTPDP). Estrada pursued this same course. Macapagal-Arroyo has embarked on a massive marketing spree to export a million Filipinos annually and has given in to foreign governments’ and employers’ whims to slash the already low wages of OFWs in Taiwan, Hong Kong and Saudi Arabia.

Letter (I) of Section 2 of the Migrant Act of 1995 states that “Government fees and other administrative costs of recruitment, introduction, placement, and assistance to migrant workers shall be rendered free without prejudice to the provisions of Section 36 hereof.”

This motherhood provision unburdens the Filipino migrants of the cost of working abroad. However, Section 36 stipulates that “Upon approval of this Act, all fees being charged by any government office on migrant workers shall remain at their present levels and the repatriation bond shall be abolished.”

These contradictory provisions legalized and institutionalized government exactions from migrant Filipinos who end up with heavy financial burdens even before they leave the country for work abroad. The government made sure that the collection of government fees will continue as it is when the Migrant Act was drafted and approved. This just proves that the government will not let go of one of its major sources of income: the fees it exacts from overseas Filipinos.

Various revenue schemes are concocted by government to bleed overseas Filipinos of their hard-earned yet meager wages. “Funds” with hundreds of millions of pesos annual budget was established under the Act. However, these so-called funds are non-existent or do not respond effectively and appropriately to the needs of migrants Filipinos and their families, or may have found themselves in the pocket of corrupt government officials.

For instance, many of the stranded Filipinos in Saudi Arabia were repatriated through the money sent by their families. OWWA refused to reimburse the transportation expenses of the stranded. It was only through the pressure of Migrante International that the OWWA was forced to reimburse the travel expenses of many of the stranded Filipinos in Riyadh. Still, Filipinos with cases abroad are forced to pay lawyers to defend or pursue their cases.

The full deregulation of recruitment activities put migrants in a more precarious position. Under the RA 8042, deregulation would mean the “migration of workers becomes strictly a matter between the worker and the foreign employer.” While this is already the case in various recruitment processes, the deregulation component of the Act will legalize the illegal practice of recruitment agencies such as giving wages way below the ceiling provided by the POEA.

Under deregulation, the wages of Filipino migrants will all the more go down to unparalleled proportions as employers and host governments’ bid for lower wages. A case in point is the Unified Contract of the Saudi Arabian National Recruitment Committee (SANARCOM) that was initialed by DOLE Secretary Patricia Sto. Tomas.

Section 30 provides for the gradual phase-out of the regulatory functions of the POEA. This means the whole issue of recruitment and employment overseas is left between the employer and the migrant worker. Thus, the Philippine government conveniently neglects the welfare of Filipinos deployed abroad.

While government continuously neglect, it will continue to earn billions from labor export of Filipino workers abroad. Government exactions will not be affected by the deregulation of overseas employment. The flow of foreign exchange remittances will continue. Fees charged to overseas Filipinos will continue to increase as government will come out with laws, circulars, orders and memoranda for hiking fees and the creation of new revenue schemes.

It is in this context that we want RA 8042 to be amended appropriately and decisively for the fullest benefits of overseas Filipinos and their families.

Senator Manuel Villar’s Proposed
Magna Carta for the Overseas Filipino Workers of 2003

Sen. Villar’s draft bill has some potential positive provisions for OFWs as compared to RA 8042. Among these are: Establishment of a Pool for Local Employment (Chapter II, Sub-Chapter I, Section 7), a National Health Program for OFWs (Sub-Chapter III, Section 9), Ladderized Benefits System (Section 12), Discount Privileges in Airfare and Hotel Accommodations (Sub-Chapter IV, Section 14), and Additional Benefits for the OFWs (Sub-Chapter X).

But the Villar draft bill, with all its good intentions via the list of potential benefits and remittance percentage rebates for OFWs, also does not address the loopholes in RA 8042.

Firstly, the Villar draft bill is silent on the seafarers (or sea-based OFWs). Our compatriot Filipino seafarers have been left out of RA 8042 and do not enjoy equal footing with our land-based OFWs.

Secondly, the draft is also silent on pressing realities faced by OFWs such as illegal recruitment, blacklisting of Filipino seafarers and human rights violations against OFWs.

Thirdly, the draft mistakenly states “that the ultimate protection to all OFWs is the possession of skills.” The best protection that the State can provide OFWs is (1) onsite protection and decisive concrete action for OFWs in distress, and (2) the creation of stable well-paying jobs for our people here in the homeland.

MIGRANTE Suggestions for Inclusion
in the Bills to Amend RA 8042

Definitions

Overseas Filipino Workers State explicitly sea-based and land-based OFWs; and, to include members of their families where applicable.

On the rights and welfare of OFWs

Enforce mandatory investigations, reports and appropriate assistance for all OFW-in-distress and their cases especially those involving mysterious deaths, physical and sexual abuse, detention, slavery, mental illness, etc.

Illegal Recruitment. Definition

Include recruitment of minors /under aged citizens (as prescribed by law, there is a minimum age for overseas employment) in the prohibited acts;

Include relevant provisions banning and punishing recruiters and agencies that engage or are party to human and sex trafficking.

Effectively implement pertinent laws to stop sex trafficking and illegal recruitment.

Increase penalties for persons and agencies involved in such crimes especially where the perpetrator is a government official/s and the victim/s is a minor.

Money Claims

Include the POEA in the liability and accountability in money claims cases.

To speed up the resolution of OFW cases at the National Labor Relations Commission (NLRC) in favor of OFWs by assigning labor arbiters exclusively for OFW-related cases and create a special division to hear appeals or, if it reverts back to POEA, NLRC's role should be reviewed.

Increased liability of recruitment agencies for claims, damages and civil suits that shall be filed by migrant workers against foreign employers/ recruitment agencies in Philippine courts;

On Deregulation and Phase Out

Delete this provision as it is unconstitutional for it contradicts the policy of the State’s extension of full protection for its citizens. The state must maintain regulatory functions with regard to OFW deployment.

MIGRANTE fervently hopes that we can work hand-in-hand to craft genuine legislation aimed at alleviating overseas Filipinos harrowing plight both in foreign shores and in the homeland.

MIGRANTE Sectoral Party
May 2003