Re: "nope sorry try again" [Re: Slavery]



Regarding the details of the bill and the question of whether or not
it is coercive, I haven't been able to find an online copy to read. If
you have read it, I would appreciate a pointer to the text.

I am presuming, though, that the text is similar to sections 31 and
35d of RA9173. Section 31 says that beneficiaries of the government-
funded Comprehensive Nursing Specialty Program are obliged to serve in
any Philippine hospital for a period of at least two (2) years of
continuous service, and section 35d says that any person or the chief
executive officer of a juridical entity violating any provision of
this Act and its rules and regulations is subject to a fine of not
less than Fifty thousand pesos (P50,000,00) nor more than One hundred
thousand pesos (P100,000.00) or imprisonment of not less than one (1)
year nor more than six (6) years, or both.

The proposed House Bill, as I understand it from newspaper accounts
would impose similar service requirements not just on persons who had
availed of a particular government-funded program but on "health
workers and other professionals" in general.

On Aug 23, 10:46 pm, Dirty Sick Pig <herd_boar@xxxxxxxxxxxxxxxx>
wrote:
The main point is there is no coercion.  The described period of
"servitude" does not have to be performed at all.  The law does not
create a rigid obligation such as in mandatory National Service, merely
hoops to jump through if a certain group wants to avail of privileges
and services, in must the same way a period of internship is required in
many professions prior to certification or licensure.  People have a
choice to do or not to do what is prescribed and there are no
punishments for non-compliance.  Non-grant of privileges and withholding
of consular services are not forms of coercion or sanction.

As a matter of fact, in this proposed law I perceive one of the largest
loopholes I have ever seen in my life.  It has no teeth and is
non-punitive.  More like it was drafted to satisfy one of the many
noisy, active sectors who just want to make their mark and then retreat
in the background.  What a waste.

Boracay Bill wrote:
DSP, I am currently busy with other things but I did read and think
about your response. My followup, however, was hurried and wasn't
focused on your main point as it probably should have been.

That point, as I take it, was that most legal definitions exclude
governments from the constitutional proscription. The definition at
http://www.lectlaw.com/def/i071.htmis "INVOLUNTARY SERVITUDE &
PEONAGE - a condition of compulsory service or labor performed by one
person, against his will, for the benefit of another person due to
force, threats, intimidation or other similar means of coercion and
compulsion directed against him.", and the condition that the service
be performed "for the benefit of another person" would exempt service
forced by the government.

The U.S. Selective Service Act is a good example of legislatively
mandated coerced servitude by government (Yes, it is still in effect,
though conscription hasn't been practiced in the U.S. for some
years).

SCOTUS concluded in Arver v. United States that that the limited
powers of the federal government included conscription, Chief Justice
White writing, "Finally, as we are unable to conceive upon what theory
the exaction by government from the citizen of the performance of his
supreme and noble duty of contributing to the defense of the rights
and honor of the nation as the result of a war declared by the great
representative body of the people can be said to be the imposition of
involuntary servitude in violation of the prohibitions of the
Thirteenth Amendment, we are constrained to the conclusion that the
contention to that effect is refuted by its mere statement." (see
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&;...)
I suspect, though, that a U.S. law along the lines described for
HB04580 would not pass a strict scrutiny test.

HB04580 (as I understand it from news accounts - see
http://www.manilastandardtoday.com/?page=news5_aug21_2008, I posted
the wrong URL earlier) has another wrinkle in that it would limit the
servitude to "health workers and other professionals", raising an
Equal Protection question. My guess is that the reasoning in the
SCOTUS ruling in Rostker v. Goldberg (which I take to be that the
authority to compel servitude for a particular purpose implies the
authority to exempt persons who are not fit to render the required
service) could be stretched to apply here. (see
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&;...)

That is US jurisprudence, of course, with which RP jurisprudence may
or may not agree. My guess, though, is that there would be plenty of
philosophical wiggle room for SCOTRP to hold that a law along the
lines of HB04580 is constitutional.

Another wrinkle is RP9208, the Anti-Trafficking in Persons Act of
2003. This act defines Trafficking in Persons as "... the recruitment,
transportation, transfer or harboring, or receipt of persons with or
without the victim's consent or knowledge, within or across national
borders by means of threat or use of force, or other forms of
coercion, [...] for the purpose of exploitation", and says that
"exploitation" includes, among other things, forced labor or services.
Is the RP government bound by its own law here? (maybe not - the law
applies to "any person, natural or judicial".  That probably exempts
the government as an institution, but might not exempt individual
persons acting under color of government).

Legal nitpicking aside, though, this seems like it would be yet
another infringement on human rights. Article 8(3a) of the ICCPR says,
"No one shall be required to perform forced or compulsory labour;".
(seehttp://www2.ohchr.org/english/law/ccpr.htm) (see also
http://www.humanrights.gov.ph/docs/iccpr.pdf-- an RP Government web
page) The Human Rights Pledge of the RP Government (see
http://www.humanrights.gov.ph/index.php?categoryid=12) may or may not
be relevant here, I can't read Filipino so I don''t know.)

On Aug 23, 7:27 am, Dirty Sick Pig <drtysicpig@xxxxxxxxxxxxxxxx>
wrote:
Boracay Bill wrote:
OK. Excuse my apparent misuse of the technical term "slavery".
I wasn't harping on that.

Instead, let's use the term used in the RP Constitution: "involuntary
servitude".
Bill, I have a feeling you're on the move or busy and haven't digested
my initial response properly.

Quoting article III, section 18(2)s: " No involuntary servitude in any
from shall exist except as punishment for a crime whereof the party
shall be duly convicted."
Bill, I have a feeling you're on the move or quite busy and haven't
digested my initial response properly.

I have not read HB04580 because I cannot find a means of displaying
the text of House Bills onhttp://www.congress.gov.ph.  I do see that
its title is "AN ACT REQUIRING ALL FILIPINO REGISTERED PROFESSIONALS
TO RENDER AT LEAST TWO (2) YEARS SERVICE WITHIN THE COUNTRY PRIOR TO
ANY EMPLOYMENT ABROAD".
I haven't either, but I have enough materials from you to formulate a
mini-response.

Would a legal requirement that Filipino registered professionals
render at least two (2) years service within the country prior to any
employment abroad be considered a requirement that they render
involuntary servitude?  Would such required servitude be  involuntary?
Bill, I have a feeling you're on the move or quite busy and haven't
digested my initial response properly.

On Aug 23, 12:44 am, Dirty Sick Pig <drtysicpig@xxxxxxxxxxxxxxxx>
wrote:
Boracay Bill wrote:
An Op-Ed piece in the 21 August Manila Standard headed "Imposing
Nationalism" opens:
Have the sorry effects of brain drain seeped into the halls of
Congress?
Not this time.  Manila Standard should have referred the draft of the
article to their legal beagles prior to publication.  Bat ob korz, it
was just an op-ed piece with the usual chestnut and not a genuine
reporting-of-facts story kinda thang.
House Bill 4580 seeks to require health workers (doctors, nurses,
pharmacists, midwives, physical therapists, nutritionists) as well as
other professionals (engineers, teachers, sailors, accountants,
interior designers, criminologists, librarians, guidance counselors
and even master plumbers) to render their services in the Philippines
for two years before exploring opportunities abroad. <remainder
snipped>
seehttp://www.manilastandardtoday.com/?page=news5_aug21_2008)
Article III, Section 18(2) of the RP Constitution reads: " No
involuntary servitude in any from shall exist except as punishment for
a crime whereof the party shall be duly convicted."
"Involuntary servitude" refers to services a person is forced to
provide to another person under conditions that may be said as not
quite chattelslavery(absoluteslavery, e.g., Leebat Industries'
basement zombies) or peonage (servitude to pay for a debt or other
obligation, e.g., DSP Pigpens' bond slaves).
However, most legal definitions, whether by courts or by legislatures,
specifically exclude governments from the constitutional proscription.
This is why there are perfectly legal gizmos such as involuntary
civilian service and involuntary military service in many countries,
usually coated in more palatable descriptive words.
Exempted involuntary servitude is most prevalent in the armed forces..
But is is purrfectlee legal when an enlisted member's obligated service
is extended for receiving advanced technical training and privileges
(usually a promotion or choice of assignments upon graduation).
Ringknockers from military glamor schools also incur obligated
commissioned service upon graduation in exchange for that fancy bachelor
of science degree; U.S. ROTC (the real ROTC paid for by taxpayers) grads
who refuse commissions after using up all that rot-c scholarship wampum
to get their degrees also find themselves in the active enlisted
ranks.....without having to go through boot camps.  B.F.D.!
The Pinoy professionals and other skilled workers listed in HB-4580 DO
NOT HAVE TO provide their services, such servitude merely being
requirements for the granting of certain privileges of citizenship and
obtaining certain personally-desirable government services.
[The college student Mr. M. G. Masana is invited to provide his college
junior level input to this thread, just for the simple reason that,
having ran out of words, I quoted his nugget of wisdom on the subject line.]

.



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