601 Phil.

245

EN BANC
[ G.R. No. 167614, March 24, 2009 ]
ANTONIO M. SERRANO, PETITIONER, VS. GALLANT
MARITIME SERVICES, INC. AND MARLOW NAVIGATION
CO., INC., RESPONDENTS.
DECISION
AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire
families and communities out of poverty. Their earnings have built
houses, provided health care, equipped schools and planted the
seeds of businesses. They have woven together the world by
transmitting ideas and knowledge from country to country. They
have provided the dynamic human link between cultures, societies
and economies. Yet, only recently have we begun to understand not
only how much international migration impacts development, but
how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-Moon Global Forum on

Migration and Development Brussels, July 10, 2007[1]

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th
paragraph of Section 10, Republic Act (R.A.) No. 8042,[2] to wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas

employment without just, valid or authorized cause as defined by
law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent
(12%) per annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) months for every year of the
unexpired term, whichever is less.

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 x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to

national development, but exacerbates the hardships borne by them by unduly
limiting their entitlement in case of illegal dismissal to their lump-sum salary
either for the unexpired portion of their employment contract "or for three
months for every year of the unexpired term, whichever is less" (subject
clause). Petitioner claims that the last clause violates the OFWs' constitutional
rights in that it impairs the terms of their contract, deprives them of equal
protection and denies them due process.

By way of Petition for Review under Rule 45 of the Rules of Court, petitioner
assails the December 8, 2004 Decision[3] and April 1, 2005 Resolution[4] of the
Court of Appeals (CA), which applied the subject clause, entreating this Court
to declare the subject clause unconstitutional.

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation
Co., Ltd. (respondents) under a Philippine Overseas Employment
Administration (POEA)-approved Contract of Employment with the following
terms and conditions:

Duration of contract 12 months

Position Chief Officer
Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week
Overtime US$700.00 per month
Vacation leave with pay 7.00 days per month[5]

On March 19, 1998, the date of his departure, petitioner was constrained to
accept a downgraded employment contract for the position of Second Officer
with a monthly salary of US$1,000.00, upon the assurance and representation
of respondents that he would be made Chief Officer by the end of April 1998.[6]

Respondents did not deliver on their promise to make petitioner Chief Officer.
[7] Hence, petitioner refused to stay on as Second Officer and was repatriated to

the Philippines on May 26, 1998.[8]

Petitioner's employment contract was for a period of 12 months or from March

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 19, 1998 up to March 19, 1999, but at the time of his repatriation on May 26,
1998, he had served only two (2) months and seven (7) days of his contract,
leaving an unexpired portion of nine (9) months and twenty-three (23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint[9] against respondents
for constructive dismissal and for payment of his money claims in the total
amount of US$26,442.73, broken down as follows:

May 27/31, 1998 (5 days) incl. LeaveUS$ 413.90

pay
June 01/30, 1998 2,590.00
July 01/31, 1998 2,590.00
August 01/31, 1998 2,590.00
Sept. 01/30, 1998 2,590.00
Oct. 01/31, 1998 2,590.00
Nov. 01/30, 1998 2,590.00
Dec. 01/31, 1998 2,590.00
Jan. 01/31, 1999 2,590.00
Feb. 01/28, 1999 2,590.00
Mar. 1/19, 1999 (19 days) incl. leave1,640.00
pay
25,382.23
Amount adjusted to chief mate's
salary
(March 19/31, 1998 to April 1/30,1,060.50[10]
1998) +
TOTAL CLAIM US$ 26,442.73[11]

as well as moral and exemplary damages and attorney's fees.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of
petitioner illegal and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered

declaring that the dismissal of the complainant (petitioner) by the
respondents in the above-entitled case was illegal and the
respondents are hereby ordered to pay the complainant [petitioner],
jointly and severally, in Philippine Currency, based on the rate of
exchange prevailing at the time of payment, the amount of EIGHT
THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS

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 (US $8,770.00), representing the complainant's salary for three (3)
months of the unexpired portion of the aforesaid contract of
employment.

The respondents are likewise ordered to pay the complainant

[petitioner], jointly and severally, in Philippine Currency, based on
the rate of exchange prevailing at the time of payment, the amount
of FORTY FIVE U.S. DOLLARS (US$ 45.00),[12] representing the
complainant's claim for a salary differential. In addition, the
respondents are hereby ordered to pay the complainant, jointly and
severally, in Philippine Currency, at the exchange rate prevailing at
the time of payment, the complainant's (petitioner's) claim for
attorney's fees equivalent to ten percent (10%) of the total amount
awarded to the aforesaid employee under this Decision.

The claims of the complainant for moral and exemplary damages are
hereby DISMISSED for lack of merit.

All other claims are hereby DISMISSED.

SO ORDERED.[13] (Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his

computation on the salary period of three months only -- rather than the entire
unexpired portion of nine months and 23 days of petitioner's employment
contract - applying the subject clause. However, the LA applied the salary rate
of US$2,590.00, consisting of petitioner's "[b]asic salary, US$1,400.00/month +
US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay
= US$2,590.00/compensation per month."[14]

Respondents appealed[15] to the National Labor Relations Commission (NLRC)

to question the finding of the LA that petitioner was illegally dismissed.

Petitioner also appealed[16] to the NLRC on the sole issue that the LA erred in
not applying the ruling of the Court in Triple Integrated Services, Inc. v.
National Labor Relations Commission[17] that in case of illegal dismissal,
OFWs are entitled to their salaries for the unexpired portion of their contracts.
[18]

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 In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:

WHEREFORE, the Decision dated 15 July 1999 is MODIFIED.

Respondents are hereby ordered to pay complainant, jointly and
severally, in Philippine currency, at the prevailing rate of exchange
at the time of payment the following:

1. Three (3) months

salary
$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorney's fees 424.50
TOTAL US$4,669.50

The other findings are affirmed.

SO ORDERED.[19]

The NLRC corrected the LA's computation of the lump-sum salary awarded to
petitioner by reducing the applicable salary rate from US$2,590.00 to
US$1,400.00 because R.A. No. 8042 "does not provide for the award of
overtime pay, which should be proven to have been actually performed, and for
vacation leave pay."[20]

Petitioner filed a Motion for Partial Reconsideration, but this time he

questioned the constitutionality of the subject clause.[21] The NLRC denied the
motion.[22]

Petitioner filed a Petition for Certiorari[23] with the CA, reiterating the
constitutional challenge against the subject clause.[24] After initially dismissing
the petition on a technicality, the CA eventually gave due course to it, as
directed by this Court in its Resolution dated August 7, 2003 which granted the
petition for certiorari, docketed as G.R. No. 151833, filed by petitioner.

In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the
reduction of the applicable salary rate; however, the CA skirted the
constitutional issue raised by petitioner.[25]

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 His Motion for Reconsideration[26] having been denied by the CA,[27]
petitioner brings his cause to this Court on the following grounds:

The Court of Appeals and the labor tribunals have decided the case
in a way not in accord with applicable decision of the Supreme
Court involving similar issue of granting unto the migrant worker
back wages equal to the unexpired portion of his contract of
employment instead of limiting it to three (3) months

II

In the alternative that the Court of Appeals and the Labor Tribunals
were merely applying their interpretation of Section 10 of Republic
Act No. 8042, it is submitted that the Court of Appeals gravely erred
in law when it failed to discharge its judicial duty to decide
questions of substance not theretofore determined by the Honorable
Supreme Court, particularly, the constitutional issues raised by the
petitioner on the constitutionality of said law, which unreasonably,
unfairly and arbitrarily limits payment of the award for back wages
of overseas workers to three (3) months.

III

Even without considering the constitutional limitations [of] Sec. 10

of Republic Act No. 8042, the Court of Appeals gravely erred in law
in excluding from petitioner's award the overtime pay and vacation
pay provided in his contract since under the contract they form part
of his salary.[28]

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he
is already old and sickly, and he intends to make use of the monetary award for
his medical treatment and medication.[29] Required to comment, counsel for
petitioner filed a motion, urging the court to allow partial execution of the
undisputed monetary award and, at the same time, praying that the
constitutional question be resolved.[30]

Considering that the parties have filed their respective memoranda, the Court
now takes up the full merit of the petition mindful of the extreme importance of

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 the constitutional question raised therein.

On the first and second issues

The unanimous finding of the LA, NLRC and CA that the dismissal of
petitioner was illegal is not disputed. Likewise not disputed is the salary
differential of US$45.00 awarded to petitioner in all three fora. What remains
disputed is only the computation of the lump-sum salary to be awarded to
petitioner by reason of his illegal dismissal.

Applying the subject clause, the NLRC and the CA computed the lump-sum
salary of petitioner at the monthly rate of US$1,400.00 covering the period of
three months out of the unexpired portion of nine months and 23 days of his
employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends that,

in addition to the US$4,200.00 awarded by the NLRC and the CA, he is entitled
to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for
the entire nine months and 23 days left of his employment contract, computed
at the monthly rate of US$2,590.00.[31]

The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it unduly

impairs the freedom of OFWs to negotiate for and stipulate in their overseas
employment contracts a determinate employment period and a fixed salary
package.[32] It also impinges on the equal protection clause, for it treats OFWs
differently from local Filipino workers (local workers) by putting a cap on the
amount of lump-sum salary to which OFWs are entitled in case of illegal
dismissal, while setting no limit to the same monetary award for local workers
when their dismissal is declared illegal; that the disparate treatment is not
reasonable as there is no substantial distinction between the two groups;[33] and
that it defeats Section 18,[34] Article II of the Constitution which guarantees the
protection of the rights and welfare of all Filipino workers, whether deployed
locally or overseas.[35]

Moreover, petitioner argues that the decisions of the CA and the labor tribunals
are not in line with existing jurisprudence on the issue of money claims of
illegally dismissed OFWs. Though there are conflicting rulings on this,

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 petitioner urges the Court to sort them out for the guidance of affected OFWs.
[36]

Petitioner further underscores that the insertion of the subject clause into R.A.
No. 8042 serves no other purpose but to benefit local placement agencies. He
marks the statement made by the Solicitor General in his Memorandum, viz.:

Often, placement agencies, their liability being solidary, shoulder

the payment of money claims in the event that jurisdiction over the
foreign employer is not acquired by the court or if the foreign
employer reneges on its obligation. Hence, placement agencies that
are in good faith and which fulfill their obligations are unnecessarily
penalized for the acts of the foreign employer. To protect them and
to promote their continued helpful contribution in deploying
Filipino migrant workers, liability for money claims was reduced
under Section 10 of R.A. No. 8042. [37] (Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies,

the subject clause sacrifices the well-being of OFWs. Not only that, the
provision makes foreign employers better off than local employers because in
cases involving the illegal dismissal of employees, foreign employers are liable
for salaries covering a maximum of only three months of the unexpired
employment contract while local employers are liable for the full lump-sum
salaries of their employees. As petitioner puts it:

In terms of practical application, the local employers are not limited

to the amount of backwages they have to give their employees they
have illegally dismissed, following well-entrenched and unequivocal
jurisprudence on the matter. On the other hand, foreign employers
will only be limited to giving the illegally dismissed migrant
workers the maximum of three (3) months unpaid salaries
notwithstanding the unexpired term of the contract that can be more
than three (3) months.[38]

Lastly, petitioner claims that the subject clause violates the due process clause,
for it deprives him of the salaries and other emoluments he is entitled to under
his fixed-period employment contract.[39]

The Arguments of Respondents

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 In their Comment and Memorandum, respondents contend that the
constitutional issue should not be entertained, for this was belatedly interposed
by petitioner in his appeal before the CA, and not at the earliest opportunity,
which was when he filed an appeal before the NLRC.[40]

The Arguments of the Solicitor General

The Solicitor General (OSG)[41] points out that as R.A. No. 8042 took effect on
July 15, 1995, its provisions could not have impaired petitioner's 1998
employment contract. Rather, R.A. No. 8042 having preceded petitioner's
contract, the provisions thereof are deemed part of the minimum terms of
petitioner's employment, especially on the matter of money claims, as this was
not stipulated upon by the parties.[42]

Moreover, the OSG emphasizes that OFWs and local workers differ in terms of
the nature of their employment, such that their rights to monetary benefits must
necessarily be treated differently. The OSG enumerates the essential elements
that distinguish OFWs from local workers: first, while local workers perform
their jobs within Philippine territory, OFWs perform their jobs for foreign
employers, over whom it is difficult for our courts to acquire jurisdiction, or
against whom it is almost impossible to enforce judgment; and second, as held
in Coyoca v. National Labor Relations Commission[43] and Millares v. National
Labor Relations Commission,[44] OFWs are contractual employees who can
never acquire regular employment status, unlike local workers who are or can
become regular employees. Hence, the OSG posits that there are rights and
privileges exclusive to local workers, but not available to OFWs; that these
peculiarities make for a reasonable and valid basis for the differentiated
treatment under the subject clause of the money claims of OFWs who are
illegally dismissed. Thus, the provision does not violate the equal protection
clause nor Section 18, Article II of the Constitution.[45]

Lastly, the OSG defends the rationale behind the subject clause as a police
power measure adopted to mitigate the solidary liability of placement agencies
for this "redounds to the benefit of the migrant workers whose welfare the
government seeks to promote. The survival of legitimate placement agencies
helps [assure] the government that migrant workers are properly deployed and
are employed under decent and humane conditions."[46]

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 The Court's Ruling

The Court sustains petitioner on the first and second issues.

When the Court is called upon to exercise its power of judicial review of the
acts of its co-equals, such as the Congress, it does so only when these
conditions obtain: (1) that there is an actual case or controversy involving a
conflict of rights susceptible of judicial determination;[47] (2) that the
constitutional question is raised by a proper party[48] and at the earliest
opportunity;[49] and (3) that the constitutional question is the very lis mota of
the case,[50] otherwise the Court will dismiss the case or decide the same on
some other ground.[51]

Without a doubt, there exists in this case an actual controversy directly

involving petitioner who is personally aggrieved that the labor tribunals and the
CA computed his monetary award based on the salary period of three months
only as provided under the subject clause.

The constitutional challenge is also timely. It should be borne in mind that the
requirement that a constitutional issue be raised at the earliest opportunity
entails the interposition of the issue in the pleadings before a competent court,
such that, if the issue is not raised in the pleadings before that competent court,
it cannot be considered at the trial and, if not considered in the trial, it cannot be
considered on appeal.[52] Records disclose that the issue on the constitutionality
of the subject clause was first raised, not in petitioner's appeal with the NLRC,
but in his Motion for Partial Reconsideration with said labor tribunal,[53] and
reiterated in his Petition for Certiorari before the CA.[54] Nonetheless, the issue
is deemed seasonably raised because it is not the NLRC but the CA which has
the competence to resolve the constitutional issue. The NLRC is a labor tribunal
that merely performs a quasi-judicial function - its function in the present case
is limited to determining questions of fact to which the legislative policy of
R.A. No. 8042 is to be applied and to resolving such questions in accordance
with the standards laid down by the law itself;[55] thus, its foremost function is
to administer and enforce R.A. No. 8042, and not to inquire into the validity of
its provisions. The CA, on the other hand, is vested with the power of judicial
review or the power to declare unconstitutional a law or a provision thereof,
such as the subject clause.[56] Petitioner's interposition of the constitutional
issue before the CA was undoubtedly seasonable. The CA was therefore remiss

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 in failing to take up the issue in its decision.

The third condition that the constitutional issue be critical to the resolution of
the case likewise obtains because the monetary claim of petitioner to his lump-
sum salary for the entire unexpired portion of his 12-month employment
contract, and not just for a period of three months, strikes at the very core of the
subject clause.

Thus, the stage is all set for the determination of the constitutionality of the
subject clause.

Does the subject clause violate Section 10,

Article III of the Constitution on non-impairment
of contracts?

The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes with the stipulations
in his contract on the term of his employment and the fixed salary package he
will receive[57] is not tenable.

Section 10, Article III of the Constitution provides:

No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted
have only a prospective operation,[58] and cannot affect acts or contracts
already perfected;[59] however, as to laws already in existence, their provisions
are read into contracts and deemed a part thereof.[60] Thus, the non-impairment
clause under Section 10, Article II is limited in application to laws about to be
enacted that would in any way derogate from existing acts or contracts by
enlarging, abridging or in any manner changing the intention of the parties
thereto.

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995
preceded the execution of the employment contract between petitioner and
respondents in 1998. Hence, it cannot be argued that R.A. No. 8042,
particularly the subject clause, impaired the employment contract of the parties.
Rather, when the parties executed their 1998 employment contract, they were

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 deemed to have incorporated into it all the provisions of R.A. No. 8042.

But even if the Court were to disregard the timeline, the subject clause may not
be declared unconstitutional on the ground that it impinges on the impairment
clause, for the law was enacted in the exercise of the police power of the State
to regulate a business, profession or calling, particularly the recruitment and
deployment of OFWs, with the noble end in view of ensuring respect for the
dignity and well-being of OFWs wherever they may be employed.[61] Police
power legislations adopted by the State to promote the health, morals, peace,
education, good order, safety, and general welfare of the people are generally
applicable not only to future contracts but even to those already in existence, for
all private contracts must yield to the superior and legitimate measures taken by
the State to promote public welfare.[62]

Does the subject clause violate Section 1,

Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:

No person shall be deprived of life, liberty, or property without due process of

law nor shall any person be denied the equal protection of the law.

Section 18,[63] Article II and Section 3,[64] Article XIII accord all members of
the labor sector, without distinction as to place of deployment, full protection of
their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing constitutional

provisions translate to economic security and parity: all monetary benefits
should be equally enjoyed by workers of similar category, while all monetary
obligations should be borne by them in equal degree; none should be denied the
protection of the laws which is enjoyed by, or spared the burden imposed on,
others in like circumstances.[65]

Such rights are not absolute but subject to the inherent power of Congress to
incorporate, when it sees fit, a system of classification into its legislation;

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 however, to be valid, the classification must comply with these requirements: 1)
it is based on substantial distinctions; 2) it is germane to the purposes of the
law; 3) it is not limited to existing conditions only; and 4) it applies equally to
all members of the class.[66]

There are three levels of scrutiny at which the Court reviews the
constitutionality of a classification embodied in a law: a) the deferential or
rational basis scrutiny in which the challenged classification needs only be
shown to be rationally related to serving a legitimate state interest;[67] b) the
middle-tier or intermediate scrutiny in which the government must show that
the challenged classification serves an important state interest and that the
classification is at least substantially related to serving that interest;[68] and c)
strict judicial scrutiny[69] in which a legislative classification which
impermissibly interferes with the exercise of a fundamental right[70] or operates
to the peculiar disadvantage of a suspect class[71] is presumed unconstitutional,
and the burden is upon the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least
restrictive means to protect such interest.[72]

Under American jurisprudence, strict judicial scrutiny is triggered by suspect

classifications[73] based on race[74] or gender[75] but not when the classification
is drawn along income categories.[76]

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng

Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,[77] the
constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas
(BSP), a government financial institution (GFI), was challenged for maintaining
its rank-and-file employees under the Salary Standardization Law (SSL), even
when the rank-and-file employees of other GFIs had been exempted from the
SSL by their respective charters. Finding that the disputed provision contained a
suspect classification based on salary grade, the Court deliberately employed
the standard of strict judicial scrutiny in its review of the constitutionality of
said provision. More significantly, it was in this case that the Court revealed the
broad outlines of its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid

classification, and its policies should be accorded recognition and
respect by the courts of justice except when they run afoul of the

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 Constitution. The deference stops where the classification violates a
fundamental right, or prejudices persons accorded special
protection by the Constitution. When these violations arise, this
Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not
suffice.

Admittedly, the view that prejudice to persons accorded special

protection by the Constitution requires a stricter judicial scrutiny
finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se
controlling in this jurisdiction. At best, they are persuasive and
have been used to support many of our decisions. We should not
place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our
own decisions through the employment of our own endowments. We
live in a different ambience and must decide our own problems in
the light of our own interests and needs, and of our qualities and
even idiosyncrasies as a people, and always with our own concept of
law and justice. Our laws must be construed in accordance with the
intention of our own lawmakers and such intent may be deduced
from the language of each law and the context of other local
legislation related thereto. More importantly, they must be construed
to serve our own public interest which is the be-all and the end-all of
all our laws. And it need not be stressed that our public interest is
distinct and different from others.

xxxx

Further, the quest for a better and more "equal" world calls for the
use of equal protection as a tool of effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in
the Constitution. The Preamble proclaims "equality" as an ideal
precisely in protest against crushing inequities in Philippine society.
The command to promote social justice in Article II, Section 10, in
"all phases of national development," further explicitated in Article
XIII, are clear commands to the State to take affirmative action in
the direction of greater equality. x x x [T]here is thus in the

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 Philippine Constitution no lack of doctrinal support for a more
vigorous state effort towards achieving a reasonable measure of
equality.

Our present Constitution has gone further in guaranteeing vital

social and economic rights to marginalized groups of society,
including labor. Under the policy of social justice, the law bends
over backward to accommodate the interests of the working class
on the humane justification that those with less privilege in life
should have more in law. And the obligation to afford protection to
labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a
living reality. Social justice calls for the humanization of laws and
the equalization of social and economic forces by the State so that
justice in its rational and objectively secular conception may at
least be approximated.

xxxx

Under most circumstances, the Court will exercise judicial restraint

in deciding questions of constitutionality, recognizing the broad
discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational basis" test, and the
legislative discretion would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a

fundamental right, or the perpetuation of prejudice against persons
favored by the Constitution with special protection, judicial
scrutiny ought to be more strict. A weak and watered down view
would call for the abdication of this Court's solemn duty to strike
down any law repugnant to the Constitution and the rights it
enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or
one of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor.

xxxx

In the case at bar, the challenged proviso operates on the basis of the
salary grade or officer-employee status. It is akin to a distinction

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 based on economic class and status, with the higher grades as
recipients of a benefit specifically withheld from the lower grades.
Officers of the BSP now receive higher compensation packages that
are competitive with the industry, while the poorer, low-salaried
employees are limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file employees are
paid the strictly regimented rates of the SSL while employees higher
in rank - possessing higher and better education and opportunities
for career advancement - are given higher compensation packages to
entice them to stay. Considering that majority, if not all, the rank-
and-file employees consist of people whose status and rank in life
are less and limited, especially in terms of job marketability, it is
they - and not the officers - who have the real economic and
financial need for the adjustment. This is in accord with the policy
of the Constitution "to free the people from poverty, provide
adequate social services, extend to them a decent standard of living,
and improve the quality of life for all." Any act of Congress that
runs counter to this constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster. (Emphasis
supplied)

Imbued with the same sense of "obligation to afford protection to labor," the
Court in the present case also employs the standard of strict judicial scrutiny,
for it perceives in the subject clause a suspect classification prejudicial to
OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it applies
to all OFWs. However, a closer examination reveals that the subject clause has
a discriminatory intent against, and an invidious impact on, OFWs at two
levels:

First, OFWs with employment contracts of less than one year vis-à-
vis OFWs with employment contracts of one year or more;

Second, among OFWs with employment contracts of more than one

year; and

Third, OFWs vis-à-vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis-à-vis OFWs
with employment contracts of one year or more

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 As pointed out by petitioner,[78] it was in Marsaman Manning Agency, Inc. v.
National Labor Relations Commission[79] (Second Division, 1999) that the
Court laid down the following rules on the application of the periods prescribed
under Section 10(5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which

amount to award an illegally dismissed overseas contract worker,
i.e., whether his salaries for the unexpired portion of his
employment contract or three (3) months' salary for every year of
the unexpired term, whichever is less, comes into play only when
the employment contract concerned has a term of at least one (1)
year or more. This is evident from the words "for every year of the
unexpired term" which follows the words "salaries x x x for three
months." To follow petitioners' thinking that private respondent is
entitled to three (3) months salary only simply because it is the
lesser amount is to completely disregard and overlook some words
used in the statute while giving effect to some. This is contrary to
the well-established rule in legal hermeneutics that in interpreting a
statute, care should be taken that every part or word thereof be given
effect since the law-making body is presumed to know the meaning
of the words employed in the statue and to have used them
advisedly. Ut res magis valeat quam pereat.[80] (Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his
10-month contract, but was awarded his salaries for the remaining 8 months and
6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court made
conflicting rulings on Section 10(5). One was Asian Center for Career and
Employment System and Services v. National Labor Relations Commission
(Second Division, October 1998),[81] which involved an OFW who was
awarded a two-year employment contract, but was dismissed after working for
one year and two months. The LA declared his dismissal illegal and awarded
him SR13,600.00 as lump-sum salary covering eight months, the unexpired
portion of his contract. On appeal, the Court reduced the award to SR3,600.00
equivalent to his three months' salary, this being the lesser value, to wit:

Under Section 10 of R.A. No. 8042, a worker dismissed from

overseas employment without just, valid or authorized cause is

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 entitled to his salary for the unexpired portion of his employment
contract or for three (3) months for every year of the unexpired
term, whichever is less.

In the case at bar, the unexpired portion of private respondent's

employment contract is eight (8) months. Private respondent should
therefore be paid his basic salary corresponding to three (3) months
or a total of SR3,600.[82]

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations

Commission (Third Division, December 1998),[83] which involved an OFW
(therein respondent Erlinda Osdana) who was originally granted a 12-month
contract, which was deemed renewed for another 12 months. After serving for
one year and seven-and-a-half months, respondent Osdana was illegally
dismissed, and the Court awarded her salaries for the entire unexpired portion
of four and one-half months of her contract.

The Marsaman interpretation of Section 10(5) has since been adopted in the
following cases:

Case Title Contract Period of Unexpired Period

Period Service Period Applied in
the
Computation
of the
Monetary
Award
Skippers v.
6 months 2 months 4 months 4 months
Maguad[84]
Bahia Shipping v.
9 months 8 months 4 months 4 months
Reynaldo Chua [85]
Centennial
Transmarine v. dela 9 months 4 months 5 months 5 months
Cruz l[86]
Talidano v. Falcon[87] 12 months 3 months 9 months 3 months
[88]
Univan v. CA 12 months 3 months 9 months 3 months
more than
Oriental v. CA [89] 12 months 10 months 3 months
2 months

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 PCL v. NLRC[90] 12 months more than more or less 3 months
2 months 9 months
11 months and
Olarte v. Nayona[91] 12 months 21 days 3 months
9 days
11 months and
JSS v. Ferrer[92] 12 months 16 days 3 months
24 days
9 months
Pentagon v. 2 months and 2 months and
[93] 12 months and 7
Adelantar 23 days 23 days
days
Phil. Employ v. 10 Unexpired
. [94] 12 months 2 months
Paramio, et al months portion
6 months or 3
Flourish Maritime v. 23 months and months for
[95] 2 years 26 days
Almanzor 4 days each year of
contract
1 year, 10 6 months or 3
Athenna Manpower v. months 1 year, 9
months for
[96] 1 month months and 28
Villanos and 28 each year of
days
days contract

As the foregoing matrix readily shows, the subject clause classifies OFWs into
two categories. The first category includes OFWs with fixed-period
employment contracts of less than one year; in case of illegal dismissal, they are
entitled to their salaries for the entire unexpired portion of their contract. The
second category consists of OFWs with fixed-period employment contracts of
one year or more; in case of illegal dismissal, they are entitled to monetary
award equivalent to only 3 months of the unexpired portion of their contracts.

The disparity in the treatment of these two groups cannot be discounted. In

Skippers, the respondent OFW worked for only 2 months out of his 6-month
contract, but was awarded his salaries for the remaining 4 months. In contrast,
the respondent OFWs in Oriental and PCL who had also worked for about 2
months out of their 12-month contracts were awarded their salaries for only 3
months of the unexpired portion of their contracts. Even the OFWs involved in
Talidano and Univan who had worked for a longer period of 3 months out of
their 12-month contracts before being illegally dismissed were awarded their
salaries for only 3 months.

To illustrate the disparity even more vividly, the Court assumes a hypothetical
OFW-A with an employment contract of 10 months at a monthly salary rate of

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 US$1,000.00 and a hypothetical OFW-B with an employment contract of 15
months with the same monthly salary rate of US$1,000.00. Both commenced
work on the same day and under the same employer, and were illegally
dismissed after one month of work. Under the subject clause, OFW-A will be
entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months
of his contract, whereas OFW-B will be entitled to only US$3,000.00,
equivalent to his salaries for 3 months of the unexpired portion of his contract,
instead of US$14,000.00 for the unexpired portion of 14 months of his contract,
as the US$3,000.00 is the lesser amount.

The disparity becomes more aggravating when the Court takes into account
jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,
[97] illegally dismissed OFWs, no matter how long the period of their
employment contracts, were entitled to their salaries for the entire unexpired
portions of their contracts. The matrix below speaks for itself:

Case Title Contract Period of Unexpired Period

Period Service Period Applied in
the
Computation
of the
Monetary
Award
ATCI v. CA, et al.[98] 2 years 2 months 22 months 22 months
23 months
Phil. Integrated v. 23 months and
2 years 7 days and
NLRC[99] 23 days
23 days
JGB v. NLC[100] 2 years 9 months 15 months 15 months
Agoy v. NLRC[101] 2 years 2 months 22 months 22 months
EDI v. NLRC, et al. 2 years 5 months 19 months 19 months
[102]
Barros v. NLRC,
12 months 4 months 8 months 8 months
et al.[103]
Philippine 6 months
5 months and 5 months and
Transmarine v. 12 months and 22
18 days 18 days
Carilla[104] days

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods
or the unexpired portions thereof, were treated alike in terms of the computation

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 of their monetary benefits in case of illegal dismissal. Their claims were
subjected to a uniform rule of computation: their basic salaries multiplied by
the entire unexpired portion of their employment contracts.

The enactment of the subject clause in R.A. No. 8042 introduced a

differentiated rule of computation of the money claims of illegally dismissed
OFWs based on their employment periods, in the process singling out one
category whose contracts have an unexpired portion of one year or more and
subjecting them to the peculiar disadvantage of having their monetary awards
limited to their salaries for 3 months or for the unexpired portion thereof,
whichever is less, but all the while sparing the other category from such
prejudice, simply because the latter's unexpired contracts fall short of one year.

Among OFWs With Employment

Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject clause, the
Court now has misgivings on the accuracy of the Marsaman interpretation.

The Court notes that the subject clause "or for three (3) months for every year
of the unexpired term, whichever is less" contains the qualifying phrases "every
year" and "unexpired term." By its ordinary meaning, the word "term" means a
limited or definite extent of time.[105] Corollarily, that "every year" is but part
of an "unexpired term" is significant in many ways: first, the unexpired term
must be at least one year, for if it were any shorter, there would be no occasion
for such unexpired term to be measured by every year; and second, the original
term must be more than one year, for otherwise, whatever would be the
unexpired term thereof will not reach even a year. Consequently, the more
decisive factor in the determination of when the subject clause "for three (3)
months for every year of the unexpired term, whichever is less" shall apply is
not the length of the original contract period as held in Marsaman,[106] but the
length of the unexpired portion of the contract period -- the subject clause
applies in cases when the unexpired portion of the contract period is at least one
year, which arithmetically requires that the original contract period be more
than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination

among OFWs whose contract periods are for more than one year: those who are
illegally dismissed with less than one year left in their contracts shall be entitled
to their salaries for the entire unexpired portion thereof, while those who are

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 illegally dismissed with one year or more remaining in their contracts shall be
covered by the subject clause, and their monetary benefits limited to their
salaries for three months only.

To concretely illustrate the application of the foregoing interpretation of the

subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each
have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C is
illegally dismissed on the 12th month, and OFW-D, on the 13th month.
Considering that there is at least 12 months remaining in the contract period of
OFW-C, the subject clause applies to the computation of the latter's monetary
benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the latter's total
salaries for the 12 months unexpired portion of the contract, but to the lesser
amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month
unexpired term of the contract. On the other hand, OFW-D is spared from the
effects of the subject clause, for there are only 11 months left in the latter's
contract period. Thus, OFW-D will be entitled to US$11,000.00, which is
equivalent to his/her total salaries for the entire 11-month unexpired portion.

OFWs vis-à-vis Local Workers

With Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation

of the monetary awards of illegally dismissed OFWs was in place. This uniform
system was applicable even to local workers with fixed-term employment.[107]

The earliest rule prescribing a uniform system of computation was actually

Article 299 of the Code of Commerce (1888),[108] to wit:

Article 299. If the contracts between the merchants and their shop
clerks and employees should have been made of a fixed period,
none of the contracting parties, without the consent of the other,
may withdraw from the fulfillment of said contract until the
termination of the period agreed upon.

Persons violating this clause shall be subject to indemnify the loss

and damage suffered, with the exception of the provisions contained
in the following articles.

In Reyes v. The Compañia Maritima,[109] the Court applied the foregoing

provision to determine the liability of a shipping company for the illegal

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 discharge of its managers prior to the expiration of their fixed-term
employment. The Court therein held the shipping company liable for the
salaries of its managers for the remainder of their fixed-term employment.

There is a more specific rule as far as seafarers are concerned: Article 605 of
the Code of Commerce which provides:

Article 605. If the contracts of the captain and members of the crew
with the agent should be for a definite period or voyage, they cannot
be discharged until the fulfillment of their contracts, except for
reasons of insubordination in serious matters, robbery, theft, habitual
drunkenness, and damage caused to the vessel or to its cargo by
malice or manifest or proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,[110] in

which the Court held the shipping company liable for the salaries and
subsistence allowance of its illegally dismissed employees for the entire
unexpired portion of their employment contracts.

While Article 605 has remained good law up to the present,[111] Article 299 of
the Code of Commerce was replaced by Art. 1586 of the Civil Code of 1889, to
wit:

Article 1586. Field hands, mechanics, artisans, and other laborers

hired for a certain time and for a certain work cannot leave or be
dismissed without sufficient cause, before the fulfillment of the
contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan[112] read the disjunctive "or" in
Article 1586 as a conjunctive "and" so as to apply the provision to local
workers who are employed for a time certain although for no particular skill.
This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel de
France Company.[113] And in both Lemoine and Palomar, the Court adopted
the general principle that in actions for wrongful discharge founded on Article
1586, local workers are entitled to recover damages to the extent of the amount
stipulated to be paid to them by the terms of their contract. On the computation
of the amount of such damages, the Court in Aldaz v. Gay[114] held:

The doctrine is well-established in American jurisprudence, and

nothing has been brought to our attention to the contrary under

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 Spanish jurisprudence, that when an employee is wrongfully
discharged it is his duty to seek other employment of the same kind
in the same community, for the purpose of reducing the damages
resulting from such wrongful discharge. However, while this is the
general rule, the burden of showing that he failed to make an effort
to secure other employment of a like nature, and that other
employment of a like nature was obtainable, is upon the defendant.
When an employee is wrongfully discharged under a contract of
employment his prima facie damage is the amount which he would
be entitled to had he continued in such employment until the
termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen
vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98
Mich., 43.)[115] (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on
fixed-term employment: Section 2 (Obligations with a Period), Chapter 3, Title
I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work),
Chapter 3, Title VIII, Book IV.[116] Much like Article 1586 of the Civil Code
of 1889, the new provisions of the Civil Code do not expressly provide for the
remedies available to a fixed-term worker who is illegally discharged. However,
it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,[117] the Court
carried over the principles on the payment of damages underlying Article 1586
of the Civil Code of 1889 and applied the same to a case involving the illegal
discharge of a local worker whose fixed-period employment contract was
entered into in 1952, when the new Civil Code was already in effect.[118]

More significantly, the same principles were applied to cases involving

overseas Filipino workers whose fixed-term employment contracts were
illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v.
Ople,[119] involving seafarers who were illegally discharged. In Teknika Skills
and Trade Services, Inc. v. National Labor Relations Commission,[120] an OFW
who was illegally dismissed prior to the expiration of her fixed-period
employment contract as a baby sitter, was awarded salaries corresponding to the
unexpired portion of her contract. The Court arrived at the same ruling in
Anderson v. National Labor Relations Commission,[121] which involved a
foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who
was illegally dismissed after only nine months on the job -- the Court awarded
him salaries corresponding to 15 months, the unexpired portion of his contract.
In Asia World Recruitment, Inc. v. National Labor Relations Commission,[122] a

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 Filipino working as a security officer in 1989 in Angola was awarded his
salaries for the remaining period of his 12-month contract after he was
wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor
Relations Commission,[123] an OFW whose 12-month contract was illegally cut
short in the second month was declared entitled to his salaries for the remaining
10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term
employment who were illegally discharged were treated alike in terms of the
computation of their money claims: they were uniformly entitled to their
salaries for the entire unexpired portions of their contracts. But with the
enactment of R.A. No. 8042, specifically the adoption of the subject clause,
illegally dismissed OFWs with an unexpired portion of one year or more in
their employment contract have since been differently treated in that their
money claims are subject to a 3-month cap, whereas no such limitation is
imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect classification
in that, in the computation of the monetary benefits of fixed-term employees
who are illegally discharged, it imposes a 3-month cap on the claim of OFWs
with an unexpired portion of one year or more in their contracts, but none on
the claims of other OFWs or local workers with fixed-term employment. The
subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by

the Constitution, the Court now subjects the classification to a strict judicial
scrutiny, and determines whether it serves a compelling state interest through
the least restrictive means.

What constitutes compelling state interest is measured by the scale of rights and
powers arrayed in the Constitution and calibrated by history.[124] It is akin to
the paramount interest of the state[125] for which some individual liberties must
give way, such as the public interest in safeguarding health or maintaining
medical standards,[126] or in maintaining access to information on matters of
public concern.[127]

In the present case, the Court dug deep into the records but found no
compelling state interest that the subject clause may possibly serve.

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 The OSG defends the subject clause as a police power measure "designed to
protect the employment of Filipino seafarers overseas x x x. By limiting the
liability to three months [sic], Filipino seafarers have better chance of getting
hired by foreign employers." The limitation also protects the interest of local
placement agencies, which otherwise may be made to shoulder millions of
pesos in "termination pay."[128]

The OSG explained further:

Often, placement agencies, their liability being solidary, shoulder

the payment of money claims in the event that jurisdiction over the
foreign employer is not acquired by the court or if the foreign
employer reneges on its obligation. Hence, placement agencies that
are in good faith and which fulfill their obligations are unnecessarily
penalized for the acts of the foreign employer. To protect them and
to promote their continued helpful contribution in deploying
Filipino migrant workers, liability for money are reduced under
Section 10 of RA 8042.

This measure redounds to the benefit of the migrant workers whose

welfare the government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that migrant
workers are properly deployed and are employed under decent and
humane conditions.[129] (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the
source of its perception of the state interest sought to be served by the subject
clause.

The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio
Gallego in sponsorship of House Bill No. 14314 (HB 14314), from which the
law originated;[130] but the speech makes no reference to the underlying
reason for the adoption of the subject clause. That is only natural for none of the
29 provisions in HB 14314 resembles the subject clause.

On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on
money claims, to wit:

Sec. 10. Money Claims. - Notwithstanding any provision of law to

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 the contrary, the Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original and exclusive
jurisdiction to hear and decide, within ninety (90) calendar days
after the filing of the complaint, the claims arising out of an
employer-employee relationship or by virtue of the complaint, the
claim arising out of an employer-employee relationship or by virtue
of any law or contract involving Filipino workers for overseas
employment including claims for actual, moral, exemplary and other
forms of damages.

The liability of the principal and the recruitment/placement agency

or any and all claims under this Section shall be joint and several.

Any compromise/amicable settlement or voluntary agreement on

any money claims exclusive of damages under this Section shall not
be less than fifty percent (50%) of such money claims: Provided,
That any installment payments, if applicable, to satisfy any such
compromise or voluntary settlement shall not be more than two (2)
months. Any compromise/voluntary agreement in violation of this
paragraph shall be null and void.

Non-compliance with the mandatory period for resolutions of cases

provided under this Section shall subject the responsible officials to
any or all of the following penalties:

(1) The salary of any such official who fails to render his
decision or resolution within the prescribed period shall
be, or caused to be, withheld until the said official
complies therewith;

(2) Suspension for not more than ninety (90) days; or

(3) Dismissal from the service with disqualification to

hold any appointive public office for five (5) years.

Provided, however, That the penalties herein provided shall be

without prejudice to any liability which any such official may have
incurred under other existing laws or rules and regulations as a
consequence of violating the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on the

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 computation of money claims.

A rule on the computation of money claims containing the subject clause was
inserted and eventually adopted as the 5th paragraph of Section 10 of R.A. No.
8042. The Court examined the rationale of the subject clause in the transcripts
of the "Bicameral Conference Committee (Conference Committee) Meetings on
the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077
and House Bill No. 14314)." However, the Court finds no discernible state
interest, let alone a compelling one, that is sought to be protected or advanced
by the adoption of the subject clause.

In fine, the Government has failed to discharge its burden of proving the
existence of a compelling state interest that would justify the perpetuation of the
discrimination against OFWs under the subject clause.

Assuming that, as advanced by the OSG, the purpose of the subject clause is to
protect the employment of OFWs by mitigating the solidary liability of
placement agencies, such callous and cavalier rationale will have to be rejected.
There can never be a justification for any form of government action that
alleviates the burden of one sector, but imposes the same burden on another
sector, especially when the favored sector is composed of private businesses
such as placement agencies, while the disadvantaged sector is composed of
OFWs whose protection no less than the Constitution commands. The idea that
private business interest can be elevated to the level of a compelling state
interest is odious.

Moreover, even if the purpose of the subject clause is to lessen the solidary
liability of placement agencies vis-a-vis their foreign principals, there are
mechanisms already in place that can be employed to achieve that purpose
without infringing on the constitutional rights of OFWs.

The POEA Rules and Regulations Governing the Recruitment and Employment
of Land-Based Overseas Workers, dated February 4, 2002, imposes
administrative disciplinary measures on erring foreign employers who default
on their contractual obligations to migrant workers and/or their Philippine
agents. These disciplinary measures range from temporary disqualification to
preventive suspension. The POEA Rules and Regulations Governing the
Recruitment and Employment of Seafarers, dated May 23, 2003, contains
similar administrative disciplinary measures against erring foreign employers.

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 Resort to these administrative measures is undoubtedly the less restrictive
means of aiding local placement agencies in enforcing the solidary liability of
their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is
violative of the right of petitioner and other OFWs to equal protection.

Further, there would be certain misgivings if one is to approach the declaration

of the unconstitutionality of the subject clause from the lone perspective that the
clause directly violates state policy on labor under Section 3,[131] Article XIII
of the Constitution.

While all the provisions of the 1987 Constitution are presumed self-executing,,
[132] there are some which this Court has declared not judicially enforceable,

Article XIII being one,[133] particularly Section 3 thereof, the nature of which,
this Court, in Agabon v. National Labor Relations Commission,[134] has
described to be not self-actuating:

Thus, the constitutional mandates of protection to labor and security

of tenure may be deemed as self-executing in the sense that these are
automatically acknowledged and observed without need for any
enabling legislation. However, to declare that the constitutional
provisions are enough to guarantee the full exercise of the rights
embodied therein, and the realization of ideals therein expressed,
would be impractical, if not unrealistic. The espousal of such view
presents the dangerous tendency of being overbroad and
exaggerated. The guarantees of "full protection to labor" and
"security of tenure", when examined in isolation, are facially
unqualified, and the broadest interpretation possible suggests a
blanket shield in favor of labor against any form of removal
regardless of circumstance. This interpretation implies an
unimpeachable right to continued employment-a utopian notion,
doubtless-but still hardly within the contemplation of the framers.
Subsequent legislation is still needed to define the parameters of
these guaranteed rights to ensure the protection and promotion, not
only the rights of the labor sector, but of the employers' as well.
Without specific and pertinent legislation, judicial bodies will be at a
loss, formulating their own conclusion to approximate at least the
aims of the Constitution.

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 Ultimately, therefore, Section 3 of Article XIII cannot, on its own,
be a source of a positive enforceable right to stave off the dismissal
of an employee for just cause owing to the failure to serve proper
notice or hearing. As manifested by several framers of the 1987
Constitution, the provisions on social justice require legislative
enactments for their enforceability.[135] (Emphasis added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct

enforceable rights, for the violation of which the questioned clause may be
declared unconstitutional. It may unwittingly risk opening the floodgates of
litigation to every worker or union over every conceivable violation of so broad
a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on the
working class any actual enforceable right, but merely clothes it with the status
of a sector for whom the Constitution urges protection through executive or
legislative action and judicial recognition. Its utility is best limited to being an
impetus not just for the executive and legislative departments, but for the
judiciary as well, to protect the welfare of the working class. And it was in fact
consistent with that constitutional agenda that the Court in Central Bank (now
Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng
Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno,
formulated the judicial precept that when the challenge to a statute is premised
on the perpetuation of prejudice against persons favored by the Constitution
with special protection -- such as the working class or a section thereof -- the
Court may recognize the existence of a suspect classification and subject the
same to strict judicial scrutiny.

The view that the concepts of suspect classification and strict judicial scrutiny
formulated in Central Bank Employee Association exaggerate the significance
of Section 3, Article XIII is a groundless apprehension. Central Bank applied
Article XIII in conjunction with the equal protection clause. Article XIII, by
itself, without the application of the equal protection clause, has no life or force
of its own as elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject clause
violates petitioner's right to substantive due process, for it deprives him of
property, consisting of monetary benefits, without any existing valid
governmental purpose.[136]

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 The argument of the Solicitor General, that the actual purpose of the subject
clause of limiting the entitlement of OFWs to their three-month salary in case
of illegal dismissal, is to give them a better chance of getting hired by foreign
employers. This is plain speculation. As earlier discussed, there is nothing in
the text of the law or the records of the deliberations leading to its enactment or
the pleadings of respondent that would indicate that there is an existing
governmental purpose for the subject clause, or even just a pretext of one.

The subject clause does not state or imply any definitive governmental purpose;
and it is for that precise reason that the clause violates not just petitioner's right
to equal protection, but also her right to substantive due process under Section
1,[137] Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his salaries

for the entire unexpired period of nine months and 23 days of his employment
contract, pursuant to law and jurisprudence prior to the enactment of R.A. No.
8042.

On the Third Issue

Petitioner contends that his overtime and leave pay should form part of the
salary basis in the computation of his monetary award, because these are fixed
benefits that have been stipulated into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave pay.
For seafarers like petitioner, DOLE Department Order No. 33, series 1996,
provides a Standard Employment Contract of Seafarers, in which salary is
understood as the basic wage, exclusive of overtime, leave pay and other
bonuses; whereas overtime pay is compensation for all work "performed" in
excess of the regular eight hours, and holiday pay is compensation for any work
"performed" on designated rest days and holidays.

By the foregoing definition alone, there is no basis for the automatic inclusion
of overtime and holiday pay in the computation of petitioner's monetary award,
unless there is evidence that he performed work during those periods. As the
Court held in Centennial Transmarine, Inc. v. Dela Cruz,[138]

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 However, the payment of overtime pay and leave pay should be
disallowed in light of our ruling in Cagampan v. National Labor
Relations Commission, to wit:

The rendition of overtime work and the submission of

sufficient proof that said was actually performed are
conditions to be satisfied before a seaman could be
entitled to overtime pay which should be computed on
the basis of 30% of the basic monthly salary. In short, the
contract provision guarantees the right to overtime pay
but the entitlement to such benefit must first be
established.

In the same vein, the claim for the day's leave pay for the
unexpired portion of the contract is unwarranted since
the same is given during the actual service of the
seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for
three months for every year of the unexpired term, whichever is less" in the 5th
paragraph of Section 10 of Republic Act No. 8042 is DECLARED
UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1,
2005 Resolution of the Court of Appeals are MODIFIED to the effect that
petitioner is AWARDED his salaries for the entire unexpired portion of his
employment contract consisting of nine months and 23 days computed at the
rate of US$1,400.00 per month.

No costs.

SO ORDERED.

Puno, C.J., Ynares-Santiago, Corona, Carpio Morales, Tinga, Velasco, Jr.,

Nachura, Leonardo-De Castro, and Peralta, JJ., concur.
Quisumbing, J., join J. Carpio's opinion.
Carpio, and Brion, JJ., see separate concurring opinion.
Chico-Nazario, J., on leave.

[1] http://www.un.org/News/Press/docs/2007/sgsm11084.doc.htm.

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 [2] Migrant Workers and Overseas Filipinos Act of 1995, effective July 15,
1995.

[3] Penned by Associate Justice Andres B. Reyes, Jr. and concurred in by

Associate Justices Lucas P. Bersamin and Celia C. Librea-Leagogo; rollo, p.
231.

[4] Id. at 248.

[5] Rollo, p. 57.

[6] Id. at 58.

[7] Id. at 59.

[8] Id. at 48.

[9] Id. at 55.

[10] According to petitioner, this amount represents the pro-rated difference

between the salary of US$2,590.00 per month which he was supposed to
receive as Chief Officer from March 19, 1998 to April 30, 1998 and the salary
of US$1,850.00 per month which he was actually paid as Second Officer for the
same period. See LA Decision, rollo, pp. 107 and 112.

[11] Position Paper, id. at 53-54.

[12] The LA awarded petitioner US$45.00 out of the US$1,480.00 salary

differential to which petitioner is entitled in view of his having received from
respondents US$1,435.00 as evidenced by receipts marked as Annexes "F", "G"
and "H", id. at 319-321.

[13] Id. at 114.

[14] Rollo, pp. 111-112.

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 [15] Id. at 124.

[16] Id. at 115.

[17] G.R. No. 129584, December 3, 1998, 299 SCRA 608.

[18] Appeal Memorandum, rollo, p. 121.

[19] Id. at 134.

[20] NLRC Decision, rollo, p. 140.

[21] Id. at 146-150.

[22] Id. at 153.

[23] Id. at 155.

[24] Id. at 166-177.

[25] CA Decision, id. at 239-241.

[26] Id. at 242.

[27] Id. at 248.

[28] Petition, rollo, p. 28.

[29] Id. at 787.

[30] Id. at 799.

[31] Rollo, p. 282

[32] Memorandum for Petitioner, id. at 741-742.

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 [33] Id. at 746-753.

[34] Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.

[35] Rollo, pp. 763-766.

[36] Petition, id. at 735.

[37] Memorandum of the Solicitor General, rollo, p. 680.

[38] Memorandum for Petitioner, id. at 755.

[39] Id. at 761-763.

[40] Rollo, pp. 645-646 and 512-513.

[41] Alfredo L. Benipayo was Solicitor General at the time the Comment was
filed. Antonio Eduardo B. Nachura (now an Associate Justice of the Supreme
Court) was Solicitor General when the Memorandum was filed.

[42] Memorandum of the Solicitor General, id. at 662-665.

[43] G.R. No. 113658, March 31, 1995, 243 SCRA 190.

[44] G.R. No. 110524, July 29, 2002, 385 SCRA 306.

[45] Memorandum of the Solicitor General, rollo, pp. 668-678.

[46] Id. at 682.

[47] The Province of North Cotabato v. The Government of the Republic of the
Philippines Peace Panel on Ancestral Domain, G.R. No. 183591 October 14,
2008.

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 [48] Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509,
January 18, 2005, 449 SCRA 1.

[49] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA
160.

[50] Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004, 432 SCRA 136.

[51] Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No.
149719, June 21, 2007, 525 SCRA 198; Marasigan v. Marasigan, G.R. No.
156078, March 14, 2008, 548 SCRA 409.

[52] Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49.

[53] Rollo, p. 145.

[54] Id. at 166.

[55] Smart Communications, Inc. v. National Telecommunications Commission,

G.R. No. 151908, August 12, 2003, 408 SCRA 678.

[56] Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No.

152214, September 19, 2006, 502 SCRA 295.

[57] Memorandum for Petitioner, rollo, pp. 741-742.

[58] Ortigas & Co., Ltd. v. Court of Appeals, G.R. No. 126102, December 4,
2000, 346 SCRA 748.

[59] Picop Resources, Inc. v. Base Metals Mineral Resources Corporation, G.R.
No. 163509, December 6, 2006, 510 SCRA 400.

[60] Walker v. Whitehead, 83 U.S. 314 (1873); Wood v. Lovett, 313 U.S. 362,
370 (1941); Intrata-Assurance Corporation v. Republic of the Philippines, G.R.
No. 156571, July 9, 2008; Smart Communications, Inc. v. City of Davao, G.R.
No. 155491, September 16, 2008.

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 [61] Executive Secretary v. Court of Appeals, G.R. No. 131719, May 25, 2004,
429 SCRA 81, citing JMM Promotion and Management, Inc. v. Court of
Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319.

[62] Ortigas & Co., Ltd. v. Court of Appeals, supra note 58.

[63] Section 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.

[64] Section 3, The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all.

[65] See City of Manila v. Laguio, G.R. No. 118127, April 12, 2005, 455 SCRA
308; Pimentel III v. Commission on Elections, G.R. No. 178413, March 13,
2008, 548 SCRA 169.

[66] League of Cities of the Philippines v. Commission on Elections G.R. No.

176951, November 18, 2008; Beltran v. Secretary of Health, G.R. No.
139147,November 25, 2005, 476 SCRA 168.

[67] Association of Small Landowners in the Philippines v. Secretary of

Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343.

[68] Los Angeles v. Almeda Books, Inc., 535 U.S. 425 (2002); Craig v. Boren,
429 US 190 (1976).

[69] There is also the "heightened scrutiny" standard of review which is less
demanding than "strict scrutiny" but more demanding than the standard rational
relation test. Heightened scrutiny has generally been applied to cases that
involve discriminatory classifications based on sex or illegitimacy, such as in
Plyler v. Doe, 457 U.S. 202, where a heightened scrutiny standard was used to
invalidate a State's denial to the children of illegal aliens of the free public
education that it made available to other residents.

[70] America v. Dale, 530 U.S. 640 (2000); Parents Involved in Community
Schools v. Seattle School District No. 1, 551 U.S. (2007);
http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf.

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 [71] Adarand Constructors, Inc. v. Peña, 515 US 230 (1995).

[72] Grutter v. Bollinger, 539 US 306 (2003); Bernal v. Fainter, 467 US 216
(1984).

[73] The concept of suspect classification first emerged in the famous footnote
in the opinion of Justice Harlan Stone in U.S. v. Carolene Products Co., 304
U.S. 144 (1938), the full text of which footnote is reproduced below:

There may be narrower scope for operation of the presumption of

constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution, such as those of the first ten amendments,
which are deemed equally specific when held to be embraced within the
Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v.
Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those

political processes which can ordinarily be expected to bring about repeal of
undesirable legislation is to be subjected to more exacting judicial scrutiny
under the general prohibitions of the Fourteenth Amendment than are most
other types of legislation. On restrictions upon the right to vote, see Nixon v.
Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the
dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S.
697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233;
Lovell v. Griffin, supra; on interferences with political organizations, see
Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v.
California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see
Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of
peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of
statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S.
510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S.
404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v.
Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and
insular minorities may be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching judicial
inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina

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 v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited.

[74] Korematsu v. United States, 323 U.S. 214 (1944); Regents of the University
of California v. Bakke, 438 U.S. 265 (1978).

[75] Frontiero v. Richardson, 411 U.S. 677 (1973); U.S. v. Virginia, 518 U.S.
515 (1996).

[76] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

[77] G.R. No. 148208, December 15, 2004, 446 SCRA 299.

[78] Rollo, pp. 727 and 735.

[79] 371 Phil. 827 (1999).

[80] Id. at 840-841.

[81] G.R. No. 131656, October 20, 1998, 297 SCRA 727.

[82] Id.

[83] Supra note 17.

[84] G.R. No. 166363, August 15, 2006, 498 SCRA 639.

[85] G.R. No. 162195, April 8, 2008, 550 SCRA 600.

[86] G.R. No. 180719, August 22, 2008.

[87] G.R. No. 172031, July 14, 2008, 558 SCRA 279.

[88] G.R. No. 157534, June 18, 2003 (Resolution).

[89] G.R. No. 153750, January 25, 2006, 480 SCRA 100.

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 [90] G.R. No. 148418, July 28, 2005, 464 SCRA 314.

[91] G.R. No. 148407, November 12, 2003, 415 SCRA 720.

[92] G.R. No. 156381, October 14, 2005, 473 SCRA 120.

[93] G.R. No. 157373, July 27, 2004, 435 SCRA 342.

[94] G.R. No. 144786, April 15, 2004, 427 SCRA 732.

[95] G.R. No. 177948, March 14, 2008, 548 SCRA 712.

[96] G.R. No. 151303, April 15, 2005, 456 SCRA 313.

[97] Asian Center v. National Labor Relations Commission, supra note 81.

[98] G.R. No. 143949, August 9, 2001, 362 SCRA 571.

[99] G.R. No. 123354, November 19, 1996, 264 SCRA 418.

[100] G.R. No. 109390, March 7, 1996, 254 SCRA 457.

[101] G.R. No. 112096, January 30, 1996, 252 SCRA 588.

[102] G.R. No. 145587, October 26, 2007, 537 SCRA 409.

[103] G.R. No. 123901, September 22, 1999, 315 SCRA 23.

[104] G.R. No. 157975, June 26, 2007, 525 SCRA 586.

[105] www.merriam-webster.com/dictionary visited on November 22, 2008 at

3:09.

[106] See also Flourish, supra note 95; and Athena, supra note 96.

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 [107] It is noted that both petitioner and the OSG drew comparisons between
OFWs in general and local workers in general. However, the Court finds that
the more relevant comparison is between OFWs whose employment is
necessarily subject to a fixed term and local workers whose employment is also
subject to a fixed term.

[108] Promulgated on August 6, 1888 by Queen Maria Cristina of Spain and

extended to the Philippines by Royal Decree of August 8, 1888. It took effect
on December 1, 1888.

[109] No. 1133, March 29, 1904, 3 SCRA 519.

[110] No. L-8431, October 30, 1958, 104 SCRA 748.

[111] See also Wallem Philippines Shipping, Inc. v. Hon. Minister of Labor, No.
L-50734-37, February 20, 1981, 102 scra 835, where Madrigal Shipping
Company, Inc. v. Ogilvie is cited.

[112] No. L-10422, January 11, 1916, 33 SCRA 162.

[113] No. L-15878, January 11, 1922, 42 SCRA 660.

[114] 7 Phil. 268 (1907).

[115] See also Knust v. Morse, 41 Phil 184 (1920).

[116] Brent School, Inc. v. Zamora, No. L-48494, February 5, 1990, 181 SCRA
702.

[117] No. L-22608, June 30, 1969, 28 SCRA 699.

[118] The Labor Code itself does not contain a specific provision for local
workers with fixed-term employment contracts. As the Court observed in Brent
School, Inc., the concept of fixed-term employment has slowly faded away
from our labor laws, such that reference to our labor laws is of limited use in
determining the monetary benefits to be awarded to fixed-term workers who are
illegally dismissed.

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 [119] No. L-65545, July 9, 1986., 142 SCRA 542.

[120] G.R. No. 100399, August 4, 1992, 212 SCRA 132.

[121] G.R. No. 111212, January 22, 1996, 252 SCRA 116.

[122] G.R. No. 113363, August 24, 1999, 313 SCRA 1.

[123] G.R. No. 113911, January 23, 1998, 284 SCRA 656.

[124] See Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003, 408 SCRA
1.

[125] Id.

[126] Roe v. Wade, 410 U.S. 113 (1971); see also Carey v. Population Service
International, 431 U.S. 678 (1977).

[127] Sabio v. Gordon, G.R. Nos. 174340, 174318, 174177, October 16, 2006,
504 SCRA 704.

[128] Comment, rollo, p. 555.

[129] Memorandum of the Solicitor General, id. at 682-683

[130] Id. at p. 693.

[131] Section 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective

bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their rights and

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 benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers
and employers and the preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual compliance therewith to
foster industrial peace.

The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the
right of enterprises to reasonable returns to investments, and to expansion and
growth.

[132] Manila Prince Hotel v. Government Service Insurance System, G.R. No.
122156, February 3, 1997, 267 SCRA 408.

[133] Basco v. Philippine Amusement and Gaming Corporation, G.R. No.

91649, May 14, 1991, 197 SCRA 52.

[134] G.R. No. 158693, November 17, 2004, 442 SCRA 573.

[135] Agabon v. National Labor Relations Commission, supra note 134, at 686.

[136] Associated Communications and Wireless Services, Ltd. v. Dumlao, G. R.

No. 136762, November 21, 2002, 392 SCRA 269.

[137] Section 1. No person shall be deprived of life, liberty, or property without

due process of law, nor shall any person be denied the equal protection of the
laws.

[138] G.R. No. 180719, August 22, 2008. See also PCL Shipping Philippines,
Inc. v. National Labor Relations Commission. G.R. No. 153031, December 14,
2006, 511 SCRA 44.

SEPARATE CONCURRING OPINION

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 CARPIO, J.:

I concur that the provision "or for three (3) months for every year of the
unexpired term, whichever is less" in Section 10, paragraph 5,[1] of Republic
Act (RA) No. 8042[2] is unconstitutional, but on a different ground. The
provision violates the prohibition against deprivation of property without due
process of law. It is an invalid exercise of police power.

Section 1, Article III, of the Constitution states that no person shall be

deprived of property without due process of law. Protected property includes
the right to work and the right to earn a living. In JMM Promotion and
Management, Inc. v. Court of Appeals,[3] the Court held that:

A profession, trade or calling is a property right within the

meaning of our constitutional guarantees. One cannot be
deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an actionable
wrong. (Emphasis supplied)

The right to work and the right to earn a living necessarily includes the right to
bargain for better terms in an employment contract and the right to enforce
those terms. If protected property does not include these rights, then the right to
work and the right to earn a living would become empty civil liberties -- the
State can deprive persons of their right to work and their right to earn a living
by depriving them of the right to negotiate for better terms and the right to
enforce those terms.

The assailed provision prevents the OFWs from bargaining for payment of
more than three months' salary in case the employer wrongfully terminates the
employment. The law may set a minimum amount that the employee can
recover, but it cannot set a ceiling because this unreasonably curtails the
employee's right to bargain for better terms of employment. The right to bargain
for better terms of employment is a constitutional right that cannot be
unreasonably curtailed by the State. Here, no compelling State interest has been
advanced why the employee's right to bargain should be curtailed. The claim
that that the three-month salary cap provides an incentive to service contractors
and manning agencies is specious because such incentive is at the expense of a
protected and disadvantaged class -- the OFWs.

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 The right to property is not absolute -- the prohibition against deprivation of
property is qualified by the phrase "without due process of law." Thus, the State
may deprive persons of property through the exercise of police power.[4]
However, the deprivation must be done with due process. Substantive due
process requires that the means employed in depriving persons of property
must not be unduly oppressive. In Social Justice Society v. Atienza, Jr.,[5] the
Court held that:

[T]he State x x x may be considered as having properly

exercised [its] police power only if the following requisites are
met: (1) the interests of the public generally, as distinguished from
those of a particular class, require its exercise and (2) the means
employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. In short,
there must be a concurrence of a lawful subject and a lawful
method. (Emphasis supplied)

Moreover, the exercise of police power, to be valid, must be reasonable and not
repugnant to the Constitution.[6] In Philippine Association of Service Exporters,
Inc. v. Drilon,[7] the Court held that:

Notwithstanding its extensive sweep, police power is not without its

own limitations. For all its awesome consequences, it may not be
exercised arbitrarily or unreasonably. Otherwise, and in that
event, it defeats the purpose for which it is exercised, that is, to
advance the public good. (Emphasis supplied)

The assailed provision is unduly oppressive, unreasonable, and repugnant

to the Constitution. It undermines the mandate of the Constitution to protect
the rights of overseas workers and to promote their welfare. Section 3, Article
XIII, of the Constitution states that the State shall (1) afford full protection to
overseas labor, (2) promote full employment and equality of employment
opportunities for all, and (3) guarantee the rights of all workers to security of
tenure, humane conditions of work, and a living wage. Section 18, Article II, of
the Constitution states that, "The State affirms labor as a primary social
economic force. It shall protect the rights of workers and promote their
welfare."

The assailed provision also undermines the declared policies of RA No. 8042.

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 Section 2 of RA No. 8042 states that (1) the State shall, at all times, uphold the
dignity of Filipino migrant workers; (2) the State shall afford full protection to
overseas labor and promote full employment opportunities for all; (3) the
existence of overseas employment program rests solely on the assurance that
the dignity and fundamental human rights and freedoms of Filipinos shall not,
at any time, be compromised or violated; and (4) it is imperative that an
effective mechanism be instituted to ensure that the rights and interest of
distressed Filipino migrant workers are adequately protected and safeguarded.

The assailed provision is the reverse of the constitutional mandate and the
declared policies of RA No. 8042: (1) instead of protecting the rights and
promoting the welfare of OFWs, it unreasonably curtails their freedom to enter
into employment contracts; (2) instead of empowering OFWs, it prevents them
from bargaining for better terms; (3) instead of setting the minimum amount
that OFWs are entitled to in case they are terminated without just, valid or
authorized cause, it provides a ceiling; (4) instead of allowing OFWs who have
been terminated without just, valid or authorized cause to recover what is
rightfully due, it arbitrarily sets the recoverable amount to their three-month
salary.

OFWs belong to a disadvantaged class, are oppressed, and need protection. In

Olarte v. Nayona,[8] the Court held that:

Our overseas workers belong to a disadvantaged class. Most of

them come from the poorest sector of our society. Their profile
shows they live in suffocating slums, trapped in an environment of
crimes. Hardly literate and in ill health, their only hope lies in jobs
they find with difficulty in our country. Their unfortunate
circumstance makes them easy prey to avaricious employers.
They will climb mountains, cross the seas, endure slave treatment in
foreign lands just to survive. Out of despondence, they will work
under sub-human conditions and accept salaries below the
minimum. The least we can do is to protect them in our laws.
(Emphasis supplied)

In Philippine Association of Service Exporters, Inc.,[9] the Court held that:

What concerns the Constitution more paramountly is that x x x

employment be above all, decent, just, and humane. It is bad
enough that the country has to send its sons and daughters to

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 strange lands because it cannot satisfy their employment needs
at home. Under these circumstances, the Government is duty-
bound to insure that our toiling expatriates have adequate
protection, personally and economically, while away from home.
(Emphasis supplied)

With the inclusion of the assailed provision in RA No. 8042, the OFWs, whom
the Constitution and the law particularly seek to protect, end up even more
oppressed.

In her ponencia, Justice Ma. Alicia Austria-Martinez held that the assailed
provision violated the equal protection clause. The application of the equal
protection clause is improper because local workers and OFWs are
differently situated. Local workers who perform activities which are usually
necessary or desirable in the usual business or trade of the employer are deemed
regular after six months of service. This is true even if the workers are for a
fixed term. In Glory Philippines, Inc. v. Vergara,[10] the Court held that:

[W]e cannot give credence to petitioner's claim that respondents

were fixed term employees. x x x In the instant case, respondents'
original employment contracts were renewed four times. x x x

In Philips Semiconductors (Phils.), Inc. v. Fadriquela, we held that

such a continuing need for respondents' services is sufficient
evidence of the necessity and indispensability of their services to
petitioner's business. Consequently, we find that respondents
were regular employees defined under Article 280 of the Labor
Code as those who have been engaged to perform activities which
are usually necessary or desirable in the usual business or trade of
petitioner. (Emphasis supplied)

On the other hand, OFWs are never deemed regular. In Brent School, Inc. v.
Zamora,[11] the Court held that:

Some familiar examples may be cited of employment contracts

which may be neither for seasonal work nor for specific projects, but
to which a fixed term is an essential and natural appurtenance:
overseas employment contracts, for one, to which, whatever the
nature of the engagement, the concept of regular employment
with all that it implies does not appear ever to have been

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 applied, Article 280 of the Labor Code notwithstanding. (Emphasis
supplied)

Accordingly, I vote to declare the provision "or for three (3) months for every
year of the unexpired term, whichever is less" in Section 10, paragraph 5, of
Republic Act No. 8042 as unconstitutional for violation of the due process
clause.

[1] Section 10, paragraph 5, of RA No. 8042 provides:

In case of termination of overseas employment without just, valid or authorized

cause as defined by law or contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest at twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract
or for three (3) months for every year of the unexpired term, whichever is less.

[2] Otherwise known as "Migrant Workers and Overseas Filipinos Act of 1995."

[3] G.R. No. 120095, 5 August 1996, 260 SCRA 319, 330.

[4] Philippine Association of Service Exporters, Inc. v. Drilon, No. L-81958, 30

June 1988, 163 SCRA 386, 390.

[5] G.R. No. 156052, 13 February 2008, 545 SCRA 92, 138.

[6] Metropolitan Manila Development Authority v. Viron Transportation Co.,

Inc., G.R. No. 170656, 15 August 2007, 530 SCRA 341, 362.

[7] Supra note 4 at 391.

[8] 461 Phil. 429, 431 (2003).

[9] Supra note 4 at 397.

[10] G.R. No. 176627, 24 August 2007, 531 SCRA 253, 262.

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 [11] G.R. No. 48494, 5 February 1990, 181 SCRA 702, 714.

CONCURRING OPINION

BRION, J.:

I concur with the ponencia's conclusion that Section 10 of Republic Act No.
8042, or the Migrant Workers and Overseas Filipinos Act (R.A. No. 8042), is
unconstitutional insofar as it provides that —

In case of termination of overseas employment without just,

valid or authorized cause as defined by law or contract, the
worker shall be entitled to the full reimbursement of his placement
fee with interest at twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or
for three (3) months for every year of the unexpired term,
whichever is less.

My conclusion, however, proceeds from a different reason and constitutional

basis. I believe that this provision should be struck down for violations of the
constitutional provisions in favor of labor[1] and of the substantive aspect of the
due process clause.[2] Given these bases, I see no necessity in invoking the
equal protection clause. Underlying this restraint in invoking the equal
protection clause is my hesitation to join the ponencia in declaring a
classification as "suspect" and in using the strict scrutiny standard without
clearly defined parameters on when this approach applies.

I begin by reading the assailed provision - Section 10, R.A. No. 8042 - in its
constitutional context. Section 18, Article II of the Constitution declares it a
state policy to affirm labor as a primary social economic force and to protect the
rights of workers and promote their welfare. This policy is emphatically given
more life and vitality under Article XIII, Section 3 of the Constitution which
reads:

Section 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full employment

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 and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization,

collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They
shall be entitled to security of tenure, humane conditions of work,
and a living wage. They shall also participate in policy and decision-
making processes affecting their rights and benefits as may be
provided by law.

The State shall promote the principle of shared responsibility

between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation, and
shall enforce their mutual compliance therewith to foster industrial
peace.

The State shall regulate the relations between workers and

employers, recognizing the right of labor to its just share in the fruits
of production and the right of enterprises to reasonable returns to
investments, and to expansion and growth.

On June 7, 1995, Congress enacted R.A. No. 8042 "to establish a higher
standard of protection and promotion of the welfare of migrant workers,
their families and of overseas Filipinos in distress."[3] The express policy
declarations of R.A. No. 8042 show that its purposes are reiterations of the very
same policies enshrined in the Constitution. R.A. No. 8042, among others,
recites that:

(b) The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and
equality of employment opportunities for all. Towards this end, the
State shall provide adequate and timely social, economic and legal
services to Filipino migrant workers.[4]

xxx

(e) Free access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of
poverty. In this regard, it is imperative that an effective mechanism

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 be instituted to ensure that the rights and interests of distressed
overseas Filipinos, in general, and Filipino migrant workers, in
particular, documented or undocumented, are adequately protected
and safeguarded.

These declared purposes patently characterize R.A. No. 8042 as a direct

implementation of the constitutional objectives on Filipino overseas work so
that it must be read and understood in terms of these policy objectives. Under
this interpretative guide, any provision in R.A. No. 8042 inimical to the interest
of an overseas Filipino worker (OFW) cannot have any place in the law.

Further examination of the law shows that while it acknowledges that the State
shall "promote full employment," it states at the same time that "the State does
not promote overseas employment as a means to sustain economic growth and
national development. The existence of overseas employment program rests
solely on the assurance that the dignity and fundamental human rights and
freedoms of Filipino citizens shall not, at any time, be compromised or
violated." In blunter terms, the overseas employment program exists only for
OFW protection.

Having said all these, the law concludes its Declaration of Policies with a
statement the lawmakers may have perceived as an exception to the law's
previously declared policies, by stating - "[n]onetheless, the deployment of
Filipino overseas workers, whether land-based or sea-based, by local service
contractors and manning agencies employing them shall be encouraged.
Appropriate incentives may be extended to them." Thus, in express terms, the
law recognizes that there can be "incentives" to service contractors and
manning agencies in the spirit of encouraging greater deployment efforts. No
mention at all, however, was made of incentives to the contractors' and
agencies' principals, i.e., the foreign employers in whose behalf the contractors
and agencies recruit OFWs.

The matter of money claims - the immediate subject of the present case - is
governed by Section 10 of the law. This section grants the National Labor
Relations Commission (NLRC) jurisdiction over OFW money claims. On
liability for money claims, the sections states:

SECTION 10. Money Claims. -- Notwithstanding any provision of

law to the contrary, the Labor Arbiters of the National Labor
Relations Commission (NLRC) shall have the original and exclusive
jurisdiction to hear and decide, within ninety (90) calendar days

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 after the filing of the complaint, the claims arising out of an
employer-employee relationship or by virtue of any law or contract
involving Filipino workers for overseas deployment including
claims for actual, moral, exemplary and other forms of damages.

The liability of the principal/employer and the

recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a
condition precedent for its approval. The performance bond to be
filed by the recruitment/placement agency, as provided by law, shall
be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a
juridical being, the corporate officers and directors and partners as
the case may be, shall themselves be jointly and solidarily liable
with the corporation or partnership for the aforesaid claims and
damages.

Such liabilities shall continue during the entire period or duration of

the employment contract and shall not be affected by any
substitution, amendment or modification made locally or in a
foreign country of the said contract.

Any compromise/amicable settlement or voluntary agreement on

money claims inclusive of damages under this section shall be paid
within four (4) months from the approval of the settlement by the
appropriate authority.

In case of termination of overseas employment without just, valid or

authorized cause as defined by law or contract, the worker shall be
entitled to the full reimbursement of his placement fee with interest
at twelve percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less.

Under these terms, the law protects the OFW as against the employer and the
recruitment agency in case of illegal termination of service, but limits this
liability to the reimbursement of the placement fee and interest, and the
payment of "his salaries for the unexpired portion of his employment contract
or for three (3) months for every year of the unexpired term, whichever is less."
After earlier declaring the principal/employer and the contractor/recruitment

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 agency jointly and solidarily liable, the limitation of liability appears to be a
step backward that can only be justified, under the terms of the law, if it is an
"appropriate incentive." To be "appropriate," the incentive must necessarily
relate to the law's purpose with reasonable expectation that it would serve this
purpose; it must also accrue to its intended beneficiaries (the
recruitment/placement agencies), and not to parties to whom the reason for the
grant does not apply.

These considerations bring us to the question - can the disputed portion of

Section 10 stand constitutional scrutiny?

I submit that it cannot as it violates the constitutional provisions in favor of

labor, as well as the requirements of substantive due process.

The best indicator of the effect of the disputed portion of Section 10 on OFWs
can be seen from the results of the pre-R.A. No. 8042 rulings of this Court that
the ponencia painstakingly arranged in tabular form. The ponencia's table
shows that by our own past rulings, before R.A. No. 8042, all illegal dismissals
merited the payment of the salaries that the OFWs would have received for the
unexpired portion of their contracts.[5] After R.A. No. 8042, our rulings vary
on the computation of what should be paid to illegally dismissed OFWs, but in
all cases the principal's/agency's adjudged liability was for less than the
unexpired portion of the OFW's contract.[6]

Anyway viewed, the situation of illegally dismissed OFWs changed for the
worse after R.A. No. 8042. In this sense, the disputed portion of Section 10 is
one that goes against the interests of labor, based on R.A. No. 8042's own
declared purposes and, more importantly, on constitutional standards. Section
10 diminished rather than enhanced the protection the Constitution
envisions for OFWs.

The more significant violation, however, that the disputed portion of Section 10
spawns relates to its character as a police power measure, and its failure to meet
the substantive due process requirements of Article III, Section 1 of the
Constitution.

By the Office of the Solicitor General's (OSG) own representations, the

disputed Section 10 is a police power measure adopted to mitigate the solidary
liability of placement agencies. It "redounds to the benefit of the migrant
workers whose welfare the government seeks to promote. The survival of

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 legitimate placement agencies helps [assure] the government that migrant
workers are properly deployed and are employed under decent and humane
conditions."[7] To constitutionally test the validity of this measure, substantive
due process requires that there be: (1) a lawful purpose; and (2) lawful means or
method to achieve the lawful purpose.[8]

I see nothing inherently unconstitutional in providing incentives to local service

contractors and manning agencies; they are significant stakeholders in the
overseas employment program and providing them with encouragement - as
R.A. No. 8042 apparently envisions in its Declaration of Policies - will
ultimately redound to the benefit of the OFWs they recruit and deploy for
overseas work. The Constitution itself also expressly recognizes "the right of
labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth."[9] As entities
acting for the principals/employers in the overseas employment program, the
recruitment/manning agencies deserve no less. Viewed from this perspective,
the purpose of encouraging greater efforts at securing work for OFWs cannot
but be constitutionally valid. Thus, the issue before us in considering
substantive due process is reduced to whether the means taken to achieve the
purpose of encouraging recruitment efforts (i.e., the incentive granted limiting
the liability of recruitment/manning agencies for illegal dismissals) is
reasonable.

The first significant consideration in examining this issue is the question of

liability - who is liable when a foreign principal/employer illegally terminates
the services of an OFW? Under Philippine law, the employer, as the contracting
party who violated the terms of the contract, is primarily liable.[10] In the
overseas employment situation, the protective measures adopted under the law
and the Philippine Overseas Employment Administration (POEA) rules to
protect the OFW in his or her overseas contract best tell us how we regard
liability under this contract.

First, POEA Rules require, as a condition precedent to an OFW deployment,

the execution of a master contract signed by a foreign principal/employer
before it can be accredited by the POEA as an entity who can source its
manpower needs from the Philippines under its overseas employment program.
[11] The master contract contains the terms and conditions the foreign
principal/employer binds itself to in its employment relationship with the
OFWs it will employ. Second, signed individual contracts of employment

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 between the foreign principal/employer or its agent and the OFW, drawn in
accordance with the master contract, are required as well.[12] Third, the foreign
aspects or incidents of these contracts are submitted to the Philippine labor
attachés for verification at site.[13] This is a protective measure to ensure the
existence and financial capability of the foreign principal/employer. Labor
attaches verify as well the individual employment contracts signed by foreign
principals/employers overseas. Fourth, the POEA Rules require the issuance by
the foreign principal-employer of a special power of attorney authorizing the
recruitment/manning agency to sign for and its behalf, and allowing itself to sue
or be sued on the employment contracts in the Philippines through its
authorized recruitment/manning agency.[14] Fifth, R.A. No. 8042 itself and its
predecessor laws have always provided that the liability between the principal
and its agent (the recruitment/manning agency) is joint and solidary,[15] thus
ensuring that either the principal or the agent can be held liable for obligations
due to OFWs. Finally, OFWs themselves can sue at the host countries with the
assistance of Philippine embassies and labor offices.[16]

These measures collectively protect OFWs by ensuring the integrity of their

contracts; by establishing the responsible parties; and by providing the
mechanisms for their enforcement. In all these, the primary recourse is with the
foreign principal employer who has direct and primary responsibility under the
employment contract.

Section 10 of R.A. No. 8042 affects these well-laid rules and measures, and in
fact provides a hidden twist affecting the principal/employer's liability. While
intended as an incentive accruing to recruitment/manning agencies, the law, as
worded, simply limits the OFWs' recovery in wrongful dismissal situations.
Thus, it redounds to the benefit of whoever may be liable, including the
principal/employer - the direct employer primarily liable for the wrongful
dismissal. In this sense, Section 10 - read as a grant of incentives to
recruitment/manning agencies - oversteps what it aims to do by effectively
limiting what is otherwise the full liability of the foreign principals/employers.
Section 10, in short, really operates to benefit the wrong party and allows that
party, without justifiable reason, to mitigate its liability for wrongful dismissals.
Because of this hidden twist, the limitation of liability under Section 10 cannot
be an "appropriate" incentive, to borrow the term that R.A. No. 8042 itself uses
to describe the incentive it envisions under its purpose clause.

What worsens the situation is the chosen mode of granting the incentive:

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 instead of a grant that, to encourage greater efforts at recruitment, is directly
related to extra efforts undertaken, the law simply limits their liability for the
wrongful dismissals of already deployed OFWs. This is effectively a legally-
imposed partial condonation of their liability to OFWs, justified solely by the
law's intent to encourage greater deployment efforts. Thus, the incentive, from a
more practical and realistic view, is really part of a scheme to sell Filipino
overseas labor at a bargain for purposes solely of attracting the market.
Ironically, the OSG unabashedly confirmed this view in its Comment when it
represented that "[b]y limiting the liability to three months, Filipino seafarers
have better chance of getting hired by foreign employees."[17]

The so-called incentive is rendered particularly odious by its effect on the

OFWs - the benefits accruing to the recruitment/manning agencies and their
principals are taken from the pockets of the OFWs to whom the full salaries for
the unexpired portion of the contract rightfully belong. Thus, the
principals/employers and the recruitment/manning agencies even profit from
their violation of the security of tenure that an employment contract embodies.
Conversely, lesser protection is afforded the OFW, not only because of the
lessened recovery afforded him or her by operation of law, but also because this
same lessened recovery renders a wrongful dismissal easier and less onerous to
undertake; the lesser cost of dismissing a Filipino will always be a
consideration a foreign employer will take into account in termination of
employment decisions. This reality, unfortunately, is one that we cannot simply
wish away with the disputed Section 10 in place. Thus, this inherently
oppressive, arbitrary, confiscatory and inimical provision should be struck
down for its conflict with the substantive aspect of the constitutional due
process guarantee. Specifically, the phrase "for three (3) months for every
year of the unexpired terms, whichever is less" in the fifth and final
paragraph of Section 10 of R.A. 8042 should be declared unconstitutional.

With these conclusions, I see no need to further test the validity of the assailed
clause under the equal protection guarantee. My restraint in this regard rests on
two reasons.

First, I believe that the ponencia's use of the strict scrutiny standard of review -
on the premise that the assailed clause established a suspect classification - is
misplaced. Second, I do not see the present case as an occasion to further
expand the use of the strict scrutiny standard which the Court first expanded in
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[18]

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 A suspect classification is one where distinctions are made based on the most
invidious bases for classification that violate the most basic human rights, i.e.,
on the basis of race, national origin, alien status, religious affiliation, and to a
certain extent, sex and sexual orientation.[19] With a suspect classification, the
scrutiny of the classification is raised to its highest level: the ordinary
presumption of constitutionality is reversed and government carries the burden
of proving that its challenged policy is constitutional. To withstand strict
scrutiny, the government must show that its policy is necessary to achieve a
compelling state interest; if this is proven, the state must then demonstrate that
the legislation is narrowly tailored to achieve the intended result.[20]

In the present case, I do not see the slightest indication that Congress actually
intended to classify OFWs - between and among themselves, and in relation
with local workers - when it adopted the disputed portion of Section 10. The
congressional intent was to merely grant recruitment and manning agencies an
incentive and thereby encourage them into greater deployment efforts,
although, as discussed above, the incentive really works for the foreign
principals' benefit at the expense of the OFWs.

Even assuming that a classification resulted from the law, the classification
should not immediately be characterized as a suspect classification that would
invite the application of the strict scrutiny standard. The disputed portion of
Section 10 does not, on its face, restrict or curtail the civil and human rights of
any single group of OFWs. At best, the disputed portion limits the monetary
award for wrongful termination of employment - a tort situation affecting an
OFW's economic interest. This characterization and the unintended
classification that unwittingly results from the incentive scheme under Section
10, to my mind, render a strict scrutiny disproportionate to the circumstances to
which it is applied.

I believe, too, that we should tread lightly in further expanding the concept of
suspect classification after we have done so in Central Bank,[21] where we held
that classifications that result in prejudice to persons accorded special
protection by the Constitution[22] requires a stricter judicial scrutiny. The use
of a suspect classification label cannot depend solely on whether the
Constitution has accorded special protection to a specified sector. While the
Constitution specially mentions labor as a sector that needs special protection,
the involvement of or relationship to labor, by itself, cannot automatically
trigger a suspect classification and the accompanying strict scrutiny; much

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 should depend on the circumstances of the case, on the impact of the illegal
differential treatment on the sector involved, on the needed protection, and on
the impact of recognizing a suspect classification on future situations. In other
words, we should carefully calibrate our moves when faced with an equal
protection situation so that we do not misappreciate the essence of what a
suspect classification is, and thereby lessen its jurisprudential impact and value.
Reserving this approach to the worst cases of unacceptable classification and
discrimination highlights the importance of striking at these types of unequal
treatment and is a lesson that will not be lost on all concerned, particularly the
larger public. There is the added reason, too, that the reverse onus that a strict
scrutiny brings directly strikes, in the most glaring manner, at the regularity of
the performance of functions of a co-equal branch of government; inter-
government harmony and courtesy demand that we reserve this type of
treatment to the worst violations of the Constitution.

Incidentally, I believe that we can arrive at the same conclusion and similarly
strike down the disputed Section 10 by using the lowest level of scrutiny,
thereby rendering the use of the strict scrutiny unnecessary. Given the OSG's
positions, the resulting differential treatment the law fosters between
Philippine-based workers and OFWs in illegal dismissal situations does not rest
on substantial distinctions that are germane to the purpose of the law. No
reasonable basis for classification exists since the distinctions the OSG pointed
out do not justify the different treatment of OFWs and Philippine-based
workers, specifically, why one class should be excepted from the consequences
of illegal termination under the Labor Code, while the other is not.

To be sure, the difference in work locations and working conditions that the
OSG pointed out are not valid grounds for distinctions that should matter in the
enforcement of employment contracts. Whether in the Philippines or elsewhere,
the integrity of contracts - be they labor, commercial or political - is a zealously
guarded value that we in the Philippines should not demean by allowing a
breach of OFW contracts easy to undertake. This is true whatever may be the
duration or character of employment; employment contracts, whatever their
term and conditions may be subject only to their consistency with the law, must
be respected during the whole contracted term and under the conditions agreed
upon.

Significantly, the OSG could not even point to any reason other than the
protection of recruitment agencies and the expansion of the Philippine overseas
program as justification for the limitation of liability that has effectively

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 distinguished OFWs from locally-based workers. These reasons, unfortunately,
are not on the same plane as protection to labor in our constitutional hierarchy
of values. Even RA 8042 repeats that "the State does not promote overseas
employment as a means to sustain economic growth and national development."
Under RA 8042's own terms, the overseas employment program exists only for
OFW protection. Thus viewed, the expansion of the Philippine overseas
deployment program and the need for incentives to achieve results are simply
not valid reasons to justify a classification, particularly when the incentive is in
the form of oppressive and confiscatory limitation of liability detrimental to
labor. No valid basis for classification thus exists to justify the differential
treatment that resulted from the disputed Section 10.

In light of all these, I vote to strike down the disputed portion of Section 10 of
R.A. No. 8042.

[1] CONSTITUTION, Article II, Section 18 and Article XIII, Section 3; see p. 2
of this Concurring opinion.

[2] Id.; Article III, Section 1 contains both the due process and equal protection
clauses of the Constitution, as follows: Section 1. No person shall be deprived
of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

[3] Long title of R.A. No. 8042. Its short title is "Migrant Workers and Overseas
Filipinos Act of 1995." The law came soon after the Gancayco Commission
rendered its report on the situation of overseas Filipino workers. The
Commission was convened following the execution of Flor Contemplacion, a
Filipino domestic helper executed in Singapore on March 17, 1995.

[4] See and compare with Section 3, Article XIII of the Constituion

[5] See: Ponencia, p. 23.

[6] Ibid., pp. 21-22.

[7] OSG Memorandum, rollo, pp. 668-678; cited in the ponencia, p. 11.

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 [8] See: City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455
SCRA 308; Planters Committee v. Arroyo, G.R. Nos. 79310 and 79744, July 14,
1989, 175 SCRA 343; Balacuit v. CFI of Agusan del Norte, G.R. No. L-38429,
June 30, 1998, 163 SCRA 182.

[9] CONSTITUTION, Article XIII, Section 3.

[10] LABOR CODE, Article 279; Vinta Maritime Co., Inc and Elkano Ship
Management, Inc. v. NLRC, et al., G.R. No. 113911, January 23, 1998; Tierra
International Construction, et al., v. NLRC, G.R. No. 101825, April 2, 1996.

[11] POEA Rules and Regulations Governing the Recruitment and Employment
of Land-Based Workers (POEA Rules for Land-Based Workers), Part III, Rule
1, Sections 1 to 4; Rule 2, Section 2.

[12] POEA Rules for Land-Based Workers, Part V, Rile I, Sections 1 to 4; POEA
Rules and Regulations Governing Recruitment and Employment of Seafarers
(POEA Rules for Seafarers), Part IV, Rule I, Sections 1 and 2.

[13] POEA Rules for Land-Based Workers, Part III, Rule 1, Section 1; POEA
Rules for Seafarers, Part III, Rule 1, Sections 1 to 4

[14] POEA Rules for Land-Based Workers, Part III, Rule 1, Sections 2 (a) to 3,
and Rule 2, Section 2 (a); POEA Rules for Seafarers, Part III, Rule 1, Sections 2
(b) and 4, and Rule 2, Section 2(a).

[15] POEA Rules for Land-Based Workers, Part II, Rule 2, Section 1 (f) (3);
POEA Rules for Seafarers, Part II, Rule 2, Section 1 (e) (8); Datuman v. First
Cosmopolitan Manpower and Promotion Services, G.R. No. 156029, November
14, 2008; See: Implementing Rules and Regulations of the Labor Code (1976),
Book I, Rule V, Section 10; See also: Catan v. NLRC, G.R. No. 77279, April
15, 1988, 160 SCRA 691, and Royal Crown International v. NLRC, G.R. No.
78085, October 16, 1989, 178 SCRA 569.

[16] Assistance is provided by Labor Attaches who report to the DOLE

functionally and to the Philippine Ambassador at the foreign post. Assisting
him are welfare officers of the Overseas Workers Welfare Administration

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 (OWWA) and the POEA representatives, all of them functionally reporting to
the DOLE.

[17] OSG Comment; rollo, p. 555.

[18] G.R. No. 148208, December 15, 2004, 446 SCRA 299.

[19] City of Cleburn, Texas v. Cleburne Living Center, 413 U.S. 432 (1985);
Loving v. Commonwealth of Virginia, 388 U.S. 1 (1967).

[20] Grutter v. Bollinger, 539 U.S. 306 (2003).

[21] Supra note 18.

[22] In the Central Bank case, the classification was based on salary grade or
officer-employee status. In the words of the decision, "It is akin to a distinction
based on economic class and status, with the higher grades as recipients of a
benefit specifically withheld from the lower grades."

Source: Supreme Court E-Library

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