The never-ending saga of Hacienda Luisita

During the tumult of 1984, Benigno “Ninoy” Aquino Jr.’s widow, Corazon Cojuangco-Aquino, rose to the occasion and emerged as the anointed leader of a peaceful revolution that would topple the despotic Marcos regime. Ferdinand Marcos, the country’s dictator for almost twenty years, fled to Hawaii after his downfall where he eventually died in exile. Cory Aquino became the reluctant president who would restore the democratic institutions which were destroyed by the strongman Marcos.

Twenty-eight years later to 2012, Cory Aquino’s son, now President Benigno “Noynoy” Aquino III is dangerously pushing the country to the cusp of yet another upheaval. But this time, there would be no deliverance from an oppressive regime where his mother Cory was the symbolic leader of the first EDSA People Power Revolution. Instead, Noynoy Aquino could be the one to blame for starting an agrarian revolt right in his own family’s backyard, an uprising that could virtually spread throughout the country.

An unclassified but sensitive US diplomatic cable published by anti-secrecy group Wikileaks has said that the implications of the Hacienda Luisita case to the landholdings of other wealthy families in the Philippines who have avoided land reform would be far ranging and would have a deep social impact.

Peasant revolution under Noynoy Aquino? Photo courtesy of Michael Wailes.

After the Supreme Court made its decision last November 22, 2011, to redistribute the lands of Hacienda Luisita to its farm workers in accordance with the terms and conditions of the loan that enabled the Cojuangco family to purchase the Hacienda in 1957, Noynoy Aquino’s spokesperson assured that there was no reason why Hacienda Luisita would not comply with the court’s ruling if it became final and executory. On December 12, 2011, the management of Hacienda Luisita filed a motion for reconsideration before the Supreme Court appealing its decision ordering the distribution of Hacienda Luisita to its farm workers, yet ensuring another chapter in the enduring saga of Hacienda Luisita and the continuing doggedness of the Cojuangco family to hold on to their last vestige of feudal possession.

Through various legal manoeuvres, Hacienda Luisita has avoided compliance with the original condition of their loan in 1957 to transfer ownership to the farmers 10 years after the loan matured in 1967. When Cory Aquino assumed the presidency in 1986, she exempted Hacienda Luisita from the government’s land reform program she herself initiated. Three more presidents came to power but Hacienda Luisita remained in the hands of the Cojuangco family, which includes the late president Cory Aquino and her son, the current president.

In July 2011, after a series of motions for reconsideration, including a restraining order to stay the Supreme Court’s decision scrapping the stock distribution option (SDO) proposed by the management of Hacienda Luisita, the Supreme Court revoked the SDO but allowed individual farmers to choose between owning the land or remaining as a stockholder of the Hacienda. The government appealed the Court’s ruling and asked the high court for the full distribution of the land to the farmer beneficiaries, which would lead to the November 22nd ruling in favour of the farmers.

Hacienda Luisita farmers' misery and the SDO. Photo courtesy of Jes Aznar/Bulatlat.
Click link http://www.youtube.com/watch?v=ebetyUHC9hE to view "Sa Ngalan ng
Tubo: A Documentary on Hacienda Luisita, Parts 1-4."

It would now appear that the Supreme Court decision to redistribute the lands would never be final and executory. The new motion for reconsideration by the management of Hacienda Luisita has reassured that the issue would never die unless the Supreme Court decision is reversed or Supreme Court Chief Justice Corona is impeached, whichever comes first.

On close examination, the Supreme Court decision of November 22nd is in itself flawed and self-defeating. In ruling that the Hacienda lands be distributed to its farm workers, the high court also ordered that owners of the Hacienda be paid just compensation to be calculated from November 21, 1989, the date the Presidential Agrarian Reform Council (PARC) revoked the stock distribution plan of Hacienda Luisita. The Department of Agrarian Reform and the Land Bank of the Philippines were ordered to determine the compensation due to Hacienda Luisita management.

At issue before the Supreme Court then was who had control over agricultural lands if the stock distribution plan of Hacienda Luisita were to be operational. The court found that the farmers would never gain control of the lands if they remained as stockholders because the management of Hacienda Luisita would always have the greater proportion of shareholdings. Thus, to place control in the hands of the farmers, the lands should be distributed to the farmers instead of allowing them to remain as stockholders in a minority position.

Having said that, the issue of ownership and control over the lands has been settled in favour of the farmers. Why then should Hacienda Luisita management be compensated? They have never been the rightful and legal owners of the lands. The fact is the management of Hacienda Luisita has benefited from these lands since 1957 and from the sale and conversion of some of the lands which they never owned. It is therefore ludicrous to order the farmers who are now the legitimate owners of the lands to pay the management of Hacienda Luisita. The Cojuangco family never owned the lands in the first place, and if they were, their ownership would be limited to 10 years from the time they obtained the lands in 1957 through a government loan. In failing to transfer the lands to the farmers in 1967 and continuing to benefit from the use of the lands up to the present time, the Cojuangcos have no legal and moral obligation to demand compensation. By right, the farmers should be asking for recompense from the Cojuangcos instead.

The Department of Agrarian Reform (DAR) is trying to implement compensation for Hacienda Luisita under the land reform law which arguably does not cover the lands of the Hacienda. Even if Hacienda Luisita should now be embraced by the comprehensive agrarian reform law, the DAR should take into account that the Cojuangcos have been well compensated over the years for the use of lands they never owned.

Hacienda Luisita implemented its stock distribution option when Cory Aquino was president and as a way of evading land distribution under comprehensive land reform law. When PARC revoked the SDO, the Cojuangco-Aquino family went to the Supreme Court and filed a petition for a temporary restraining order. This temporary order lasted for six years until the Supreme Court’s decision of November 22.

The DAR is relying on a lame and absurd policy that it does not distribute lands for free, that beneficiaries ought to pay. Ownership of the lands has now been settled. Hacienda Luisita is simply being transferred to its rightful owners, not under land reform but under the original condition of the loan that enabled the Cojuangcos to use the lands for ten years and more because of the family’s political influence and economic clout.

Now that the DAR and the farmers are at odds on the issue of compensation, this would probably put the burden on the Supreme Court again to reconsider its decision or clarify the matter of compensation. Either way, the case enters a stage of limbo where it may not be settled beyond the years remaining in the Aquino presidency just as the restraining order took a toll of six long years, despite being temporary in nature.

Or the justices of the Supreme Court, being chastened by the ongoing impeachment proceeding before the Senate and fearful of their own job security, may decide to reverse their decision. Naturally, the farmers will request the high court to reconsider. If they win again, then its Hacienda Luisita’s turn to ask for reconsideration. So it goes on and on. It has become an endless and ridiculous cycle where no acceptable solution seems possible. All along the general idea is that the Supreme Court has the last and final say on the matter. But simply not in the case of Hacienda Luisita where a sitting president and a powerfully entrenched political family are involved in threatening to destroy the entire judicial system.

Or, the farmers might take the matter into their own hands, which is not highly improbable because the government’s comprehensive land reform program has become an abject failure. With recent events unfolding, there seems to be no other viable alternative.

Immigration fees: ‘Grossly unfair’

 

Can a department of the federal government be allowed to profit from its fees?

This issue is at the centre of a class action filed by Alan Hinton of Coquitlam, British Columbia, when he paid Canada Immigration a $75-fee to sponsor his Russian wife to immigrate to Canada in 2003. Based on information obtained through Access to Information request, Canada Immigration’s own documents show that the actual unit cost of Hinton’s application was only $36.69, resulting in a $38.31 profit for the department.

On January 4, 2008, the Federal Court of Canada has allowed the national class-action lawsuit to proceed which alleges that the Department of Citizenship and Immigration profits from its visa application fees and has illegally raked in more than $700 million over the past decade from new immigrants.

Number of Immigrants and Immigration Rate in Canada, 1900 to 2006.

Under Canada’s Financial Administration Act, the federal government is allowed to charge fees for services, but these fees must not exceed the cost of the service. In other words, a federal government department is not allowed to make a profit from its fees.

Not many are aware of this landmark class-action which is now pending trial before the Federal Court. Who would imagine that a $75-fee to sponsor a wife could spark a multi-million dollar lawsuit against Canada Immigration for charging and profiting from its cost recovery fees for over a decade?

Two Canadian lawyers, Richard Kurland of British Columbia and his colleague Lorne Waldman of Toronto, are spearheading the national class-action suit. The lawsuit all began when Alan Hinton, a software technician from Coquitlam, B.C., met his future wife Irena in Moscow seven years ago. He was in Russia to attend a friend’s wedding, and met Irena through the bride. A few days of visiting Moscow turned to love and Mr. Hinton later returned to Russia, this time to marry Irena. After taking their vows, the pair returned to Canada, with Mr. Hinton sponsoring his wife's permanent residence visa at a cost of $75.

When Hinton was approached by Mr. Kurland, a Vancouver-based immigration lawyer who had been investigating visa fees for years, Hinton realized that he may have paid more than he should. It took Mr. Kurland 13 years of Access to Information requests to collect enough information to bring this case forward.

Six years and one baby later, the Hintons say they are standing up for much more than the $38.31 they stand to be refunded.

“I felt very passionately about it,” says Mr. Hinton. “I thought the government shouldn’t be charging more money for services that they are supposed to be offering at a break-even cost,” he added.

According to Mr. Kurland, families who have filed numerous applications over the past few years to sponsor relatives to Canada could be owed hundreds if not thousands of dollars by the government. If the case is successful, it could have an impact on governments of all levels across the country.

It is the first time in the history of the Federal Court that a contested class action has been certified—or allowed as a class claim. The lawsuit alleges that since 1998, the government has been overcharging on fees it collects from people applying for immigration visas, whether they are visitors to Canada, foreign workers or students, or people seeking permanent residency.

“The principle involved here is an extremely important one,” Mr. Kurland says. “All governments charge fees for various services. The question this case raises is how responsible those governments should be in how they cost out these things.”

The Financial Administration Act forbids federal departments to charge any more in fees than the amount they need to recoup the cost of their services. The Act also requires departments to have mechanisms in place to ensure that profits aren’t made off public services.

Mr. Kurland says the Immigration Department has been “systematically violating” the law for years, in many cases charging more than double what it costs to process visa applications. The total cost of refunding visa applicants within the April 1, 1994 to March 31, 2004 period being examined is roughly $700 million, Mr. Kurland says. He adds that if the years from 2005 to 2007 are included, the bill could rise to nearly $1 billion.

In one of a number of defences made in response to the lawsuit, federal lawyers have argued that the Financial Administration Act does not apply to the department.

Mr. Kurland however argues that government agencies, such as the Passport Office, are allowed to make profits because they have been granted special exemptions. However, such exemptions have not been granted to Citizenship and Immigration Canada, Mr. Kurland says.

The largest class action suit in Canada was brought by Nora Bernard, a Canadian Mi’kmaq activist, who led an estimated 79,000 survivors of Canada’s residential school system in suing the Canadian government for compensation. When she was nine years old, Bernard was forced to attend a residential school in Shubenacadie, Nova Scotia, for five years where she suffered sexual and other forms of physical abuse. The Canadian government settled the lawsuit in 2005 for more than $5 billion dollars.

Peter Showler, a law professor at the University of Ottawa and specialist in immigration and refugee law, observes that by becoming a class action, this present lawsuit against Canada Immigration “has just exploded into an enormously huge case from the point of view of the government. If this case wins, it would also reflect badly on the government, which will have been overcharging refugees as well,” Mr. Showler says.

“It proves that on top of that the government is actually reaping a profit, that would just be extraordinarily offensive...and morally objectionable,” Mr. Showler adds.

This class-action lawsuit against Canada Immigration has serious ramifications to the present Conservative government’s efforts in reducing intake of new immigrants, especially family members for the purpose of reunification. Canada Immigration Minister Jason Kenney has always maintained that Canada faces a big backlog of applications every year.

Canada Minister of Citizenship and Immigration Jason Kenney. Click link,
http://www.youtube.com/watch?v=nAOZVFaAzjg, to view Minister Jason
Kenney before the Standing Committee on Citizenship and Immigration.

According to Minister Kenney, Canada gets about 420,000 applications every year and refuses about 10 per cent of those. Based on these new applications every year, Canada Immigration would net close to $230 million in processing fees (not including the $75 sponsorship application fee per person upon which the class-action suit was calculated) which are not refundable. Over ten years, these fees could go upwards to over $2 billion.

In 2011, Canada Immigration targeted a total of 265,000 new immigrants from all streams—economic, family class, refugees and humanitarian applicants. Computing processing fees, Canada Immigration would collect close to $145 million annually. Thus, the $75-sponsorship application fee appears unnecessary, considering that only half of it is really imputed as an actual cost. Maybe the class action suit filed by the Hintons is right after all.

It’s not a simple math problem as Minister Kenny would always like us to believe. For one thing, the immigration backlog should be determined by comparing the actual number of applications processed (not received) with the number of actual approvals. And if you add in the total fees harvested from the total applications received, Canada Immigration could end up netting a profit from these fees, which is not supposed to happen under the Financial Administration Act. Hence, we have a policy problem, more than the numbers would seem to indicate.

People who come to Canada do not only pay the high cost of immigration but in many instances have to spend all their lifetime savings, incur heavy debts and may have mortgaged their future for the opportunity of a better life. In addition, they also have to pay exorbitant legal and consulting fees, so the cost recovery fees imposed by Canada Immigration have become an unfair burden to them.

The class-action suit against Canada Immigration for overcharging its fees and raking profits as a consequence is one case we should all be monitoring. We don’t know how the Federal Court would decide, but if the case wins, this would have long-lasting implications on how Canada Immigration and other departments of the federal government run its business.

As Olivia Chow of the NDP says, “even if there are user fees, they should not be overcharged as it is now. It’s grossly unfair.”