by Lito Banayo
from MALAYA
A dear friend died on Valentine morn, also the first day of the Lunar New Year, after a massive stroke which rendered her comatose for more than a week in Hong Kong. In that crisis-laden week and in the few days she was at St. Luke’s, family and friends prayed for her recovery. She finally went to the kingdom of the Lord in peace, surrounded by her loved ones.
That friend was Josefina Trinidad Lichauco, former secretary of the Department of Transportation and Communications, and a feisty lawyer who had always fought for good governance, up to the very last. We will miss the “press dinners” at her residence, where colleagues in the profession would discuss with other concerned citizens the issues that bedevil the benighted land, over good food and better company.
In a sense, I am glad Tita Josie (she was my wife’s distant relative) did not get to read this article. She would have fulminated with righteous indignation. She would have cringed upon realization of the depths to which the profession of the law has been brought down by the bench and bar in indecent collusion. She had learned its precepts and procedures at the University of the Philippines, and then polished the same at Yale.
A lawyer-friend once chided me for an article where I wrote “Lady Justice has become a lady of the night in this benighted country”. Sobra naman daw ako. But many others agreed with my observations.
Read the chronology I narrate here, and weep:
Andrew James McBurnie, an Australian national, used to work for Pan-Pacific Hotel but his contract of work was about to end in early 1999. A common acquaintance introduced him to Eulalio Ganzon, a successful engineer-contractor who was in the business of building residential condominiums, and who wanted to dabble in the resort-hotel business. McBurnie proposed to Ganzon that they set up “Leisure Experts, Inc.”, which could go into the business of managing and supervising hotel and resort properties in the country. Agreement was reached in principle, but nothing concrete was done, not even to incorporate McBurnie’s idea.
To prolong his stay in the country, McBurnie requested Ganzon to stand as his “sponsor/employer” so he could apply for an alien work permit and a working visa thereafter. He prepared an “employment contract”, allegedly patterned after his “contract” with Pan Pacific Hotel, which Ganzon signed in May 1999, to be effective in September 1999, when the new business entity would hopefully have commenced registration and operation.
That never happened, because neither party raised the necessary funds, and hence, no alien work permit was issued McBurnie. In November 1999, McBurnie left for Australia. In December of the same year, he wrote Ganzon a letter stating that he would not be getting back, and requested that his personal belongings in a condominium unit be shipped back to Australia at Ganzon’s expense, with the promise that he would reimburse shipping expenses later. That was the end of Ganzon’s dealings with McBurnie, who did not bother to reimburse, nor pay other small financial accommodations in the past.
Whereupon, on October 4, 2002, a certain Andrew McBurnie allegedly filed a complaint for “illegal dismissal” with the National Labor Relations Commission. The case records showed that McBurnie “personally” filed the complaint in Quezon City. Yet, McBurnie never appeared before any of 14 hearings set by the labor arbiter assigned to his case. A subsequent check with the Bureau of Immigration would show that the Australian left on November 26, 1999, and no record of any return to the Philippines was recorded. In short, even the complaint he filed was not personally attested. Only a certain Atty. Arnel Z. Dolendo appeared for him.
But, despite non-appearance in 14 hearings, labor arbiter Salimathar Nambi on September 30, 2004 ruled that McBurnie was illegally dismissed and ordered Eulalio Ganzon to pay US $ 985,162.00 plus interest (46 million pesos more or less), damages of 2 million pesos, and 10% attorney’s fees. In effect, some 52 million pesos! For work never done, by a phantom worker without any work permit or alien resident visa.
Eulalio Ganzon’s lawyers went through the process of seeking reconsideration, as legal procedures go, and a petition to lower the appeal bond, set by an NLRC decision dated 31 March 2005 at the humongous sum of 54 million pesos. On 15 July 2005, NLRC denied their urgent motion for reconsideration. So, respondent Ganzon went to the Court of Appeals on August 12, 2005 and filed a Petition for Certiorari and Prohibition. The CA forthwith issued a TRO against the NLRC.
Then, while Ganzon’s petition was still pending at the CA, the NLRC dismissed his motion for reconsideration on grounds of his failure to post an additional bond of 54 million pesos! And on September 4, 2006, the NLRC issued a writ of execution to enforce McBurnie’s monetary claims, and his lawyers subsequently garnished bank accounts and began auctioning off Ganzon’s properties (McBurnie, remember, was out of sight all this time).
Finally, on February 16, 2007, the Court of Appeals issued a writ of preliminary injunction enjoining the NLRC from causing the execution of their queer order. And on May 29 of the same year, CA ruled against McBurnie and declared that the surety bond of 10 million pesos paid by Ganzon was sufficient.
McBurnie’s lawyer went to the Supreme Court, assailing the CA’s writ of preliminary injunction on June 2007. The SC’s First Division dismissed the McBurnie petition for certiorari, “with finality” on October 8, 2007. And the Court of Appeals, on October 27, 2008, finally issued a decision where it held the NLRC as having gravely abused its discretion for “such capricious and whimsical exercise of judgment…”, and directed said commission to give due course to Ganzon’s appeal, remanding the same to NLRC for further proceedings.
But McBurnie’s lawyer went once more to the SC on March 27, 2009 assailing the CA ruling. Yet, while McBurnie had not even filed his reply, and in just over 5 months from the filing of the petition, the Supreme Court’s Third Division rendered a decision dated 18 September 2009, requiring Ganzon and his corporations to pay McBurnie some 60 million pesos.
Meanwhile, unaware of what was going on in the SC, and in compliance with the CA order to review the case, NLRC reversed the labor arbiter’s 2004 decision, and found “no legal or factual basis…for the money claims” and pronounced the arbiter’s decision “reversed and set aside, and a new one entered dismissing (McBurnie’s) complaint”. Its arbiter Salimathar Nambi clearly erred, and grievously at that.
Now, most everybody who has had to tangle with labor arbiters have horror stories to tell. The NLRC, without knowing who the present commissioners are, has a huge credibility problem, as some cesspool of graft. But what really bothers me most in this case are the actuations of a certain division of the tribunal. Note:
On August 26, 2009, the SC issued a resolution directing Andrew McBurnie to file his reply. Even before he could file a reply, and the respondent Eulalio Ganzon could thus file his rejoinder, the SC prematurely rushed the issuance of a decision dated 18 September 2009 reversing the decision of the Court of Appeals that was in favour of Ganzon.
Curiously, the postal markings of BOTH the August 26, 2009 resolution to file a reply and the September 18 decision show that BOTH were released by the SC and mailed to the parties concerned ON THE SAME DAY, October 13, 2009!
Because of this deft and sinister maneuver, the required filing of pleadings was suspiciously cut short and the Court suddenly issued a decision. In fine, that September 18, 2009 decision was issued without petitioner filing a reply, without respondents able to file their rejoinder, and without parties being notified that the case had been SUBMITTED FOR RESOLUTION. Oh my God!
That decision was penned by Associate Justice Consuelo Ynares Santiago, who retired on October 2, 2009. It was concurred with by the other four members of the division, including another since retired lady justice, Minita Chico Nazario.
In deciding on the basis of the failure of the respondent(s) to comply with the posting of the ludicrously exorbitant bond of 60 million pesos as “fatal” to their appeal, the Court effectively REVOKED and ANNULLED the provisions of the Labor Code and Philippine immigration laws that mandatorily requires foreigners to obtain an Alien Employment Permit. The SC has concluded that Australian Andrew McBurnie was dismissed even if there was ABSOLUTELY NO EVIDENCE at all presented that he was dismissed by respondent(s). It relied only on a bare allegation in a position paper that was not even personally verified by McBurnie himself, that he was dismissed.
This is imposing judicial legislation, and since what the Supreme Court says is LAW, then from this point onwards, aliens need not get working permits. They can just work, and if challenged, they can always invoke that the Supreme Court, the legal holy of holies, has allowed them on the basis of its decision on McBurnie versus Ganzon.
There are other aspects of this unbelievably strange decision that for brevity’s sake I have not written in this article. Respondent Ganzon immediately filed a Motion for Reconsideration on November 3, 2009, which was perfunctorily dismissed in a decision dated December 14, 2009.
Now tell me if I am being extremely unfair when I describe that universal symbol of justice, the blindfolded lady with scale in hand and sword on the other, as having become a “lady of the night” in a long benighted country where the chief executive by admission, executes sleazy contracts in foreign lands “like a thief in the night”.
Weep for the benighted land.
No comments:
Post a Comment