Thursday, March 10, 2011

RIGHTS OF OFWs in Extremis

By Atty. Elpidio Peria

The past few weeks should bring home the realization to all of us that we have become an OFW nation, as indeed we already are, many years back, what with US$18.763 billion remittances in 2010, exceeding even the Bangko Sentral ng Pilipinas (BSP) forecast of US$18 billion.

The Asian Development Bank did a study in 2008 and found out that OFW remittances in that year constituted around 12% of the country's GDP, making foreign remittances the “single most important source of foreign exchange to the economy and a significant source of income for recipient families.”

Looking at the haggard faces of newly-arrived OFWs from Libya and the distressed faces of relatives of Pinay nurses apparently already considered dead by the authorities in Christchurch, New Zealand, one is never surprised with comments from these faces : “where is the Government of the Philippines in these times of distress of the supposed “Bagong Bayani” ?

Of course, as a show of high-profile political action, the newly-appointed DFA Secretary Rodolfo del Rosario, “aging” as described by an equally high-profile columnist in a well-known newsdaily, went to Libya and back, apparently leaving the rest of the DFA contingent there to help our countrymen find their way back home, amidst an emerging or perhaps already a full-blown humanitarian crisis in the Libyan borders, with all other OFWs of other countries (Egypt, Bangladesh, etc.) all wanting to get out, with estimates of around 70,000 individuals and steadily rising by the hour, even as of this writing.

The Government of Pnoy is trying all its might to do all it can, but perhaps it may also be useful for OFW families to know their rights under international conventions or our national laws, to push into action our already harassed, underpaid and undermanned DFA or Labor attache personnel in the countries where OFWs are deployed.

First thing to be realized is that these OFWs have the right to leave their country of employment anytime, and they should not be subjected to any form of restriction to exercise this right, though, of course, in these dire circumstances, the stampede and the political turmoil adds to the difficulty of exiting wtihout any impediment.

This right is in Article 8 of an international human rights instrument called the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families adopted by UN General Assemby Resolution 45/158 of 18 December 1990, which entered into force, meaning it is already with legal effect to those countries which have ratified it, last 1 July 2003, with the Philippines ratifying it 5 July 1995 and the Libyan ArabJamahiriya (this is the name of Libya in the UN website of ratifications of this instrument) acceded to this instrument 18 June 2004.

Scrutinizing this international treaty further, it does not however contain any other provision in these dire circumstances, like, perhaps, the countries with planes and ships, should help those countries without those planes and ships, to also carry on board the nationals of all those who want to get out.

Looking at BBC and CNN newscasts, however, some UK and French frigates have been helping out other nationals not their own, though of course, not with extreme urgency and dispatch, as they would treat their own nationals.

Where, o where, are the mighty US ships and planes? Are we not supposed to be helped by the US in these types of circumstances to carry our own nationals to safety?

The International Convention does not state so and even if may have such provisions, too bad, the US is not a signatory to this Convention. Perhaps we should just invoke our “special relationship” with the US, to persuade them to lend their planes and ships in these emergencies.

Another relevant right that is guaranteed by this Convention is the right in Article 16, the liberty and security of person in par. 1 and in par. 2 of that same provision, “ Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.”

This obligation applies to State agents but also to private groups, like what has proliferated in the liberated Eastern part of Libya where there is no functioning government or some emergent political infrastructure at the moment, not to harm the person of our OFWs, like intimidating them or confiscating what is in their person, though many OFWs report their passports as having been confiscated from them, which is a violation of this international right.

Should our OFWs be invoking these rights? Yes, but more forcefully, this is what should come out from our diplomats presumably still based in the capital in Tripoli,Libya, as it does not seem politically wise to sever our diplomatic relations with Libya at this severely trying phase.

Looking at our national legislation, one other thing that should come to the forefront now is this thing called “Filipinos Resource Center”, established by the Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042), whenever there are at least 20,000 migrant workers in a country, and established within the premises of the Embassy.

Under the Omnibus Rules and Regulations of RA 8042, this Resource Center should be able to, among other services, provide counseling and legal services, welfare assistance including the procurement of medical and hospitalization services, and more importantly, the monitoring of daily situation, circumstances and activities affecting migrant workers and other overseas Filipinos.

In this chaotic situation,however, one is never sure if this entity under the law is still functioning, but this should be asked by responsible news agencies and NGOs. The problem actually now are those OFWs that are outside the capital and working in the desert of Libya with no communications to the Embassy. No wonder the DFA people will always say they are still monitoring the situation of these people who are incommunicado.

The other relevant provision of the rules under RA 8042 are :

sec. 56. Emergency Repatriation. - The OWWA, in coordination with DFA, and in appropriate situations, with international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency within sixty (60) days of notice. In such case, POEA will simultaneously identify and give notice to the agencies concerned.

Sec. 58. Other Cases of Repatriation. - In all cases where the principal or agency of the worker cannot be identified, cannot be located or had ceased operations, and the worker is in need and without means, the OWWA personnel at jobsite, in coordination with the DFA, shall cause the repatriation. All costs attendant to repatriation borne by the OWWA are chargeable to the Emergency Repatriation Fund provided in the Act, without prejudice to the OWWA requiring the agency/employer or the worker to reimburse the cost of repatriation, in appropriate cases.

It is but proper that the OWWA has been announcing there is something like Php 100 million to put into effect this repatriation as soon as possible.

Summing up the situation, it is clear we need to beef up our DFA and Labor attache personnel not only during times of crisis but to regularly administer support to our OFWs.

Perhaps all this is just practice for bigger poltiical conflagrations ahead, what with Saudia Arabia where there is an estimated 1.3 million Filipinos, also up and agog, with an announcement in March 11 of their own Day of Rage against their political leaders.

We should be more ready this time. Hopefully.
oOo

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