TREATIES AND CONVENTIONS ON THE RIGHTS OF WOMEN
Compiled by:
Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader Law Offices
http://attylaserna.blogspot.com
lcmlaw@gmail.com
1993 UN Declaration on the Elimination of Violence against Women
Article 1
For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
Article 2
Violence against women shall be understood to encompass, but not be limited to, the following:
(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
Article 3
Women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter alia:
(a) The right to life; 6/
(b) The right to equality; 7/
Article 4
States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women and, to this end, should:
(a) Consider, where they have not yet done so, ratifying or acceding to the Convention on the Elimination of All Forms of Discrimination against Women or withdrawing reservations to that Convention;
(b) Refrain from engaging in violence against women;
(c) Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons;
Article 5
The organs and specialized agencies of the United Nations system should, within their respective fields of competence, contribute to the recognition and realization of the rights and the principles set forth in the present Declaration and, to this end, should, inter alia:
(a) Foster international and regional cooperation with a view to defining regional strategies for combating violence, exchanging experiences and financing programmes relating to the elimination of violence against women;
(b) Promote meetings and seminars with the aim of creating and raising awareness among all persons of the issue of the elimination of violence against women;
(c) Foster coordination and exchange within the United Nations system between human rights treaty bodies to address the issue of violence against women effectively;
(d) Include in analyses prepared by organizations and bodies of the United Nations system of social trends and problems, such as the periodic reports on the world social situation, examination of trends in violence against women;
(e) Encourage coordination between organizations and bodies of the United Nations system to incorporate the issue of violence against women into ongoing programmes, especially with reference to groups of women particularly vulnerable to violence;
(f) Promote the formulation of guidelines or manuals relating to violence against women, taking into account the measures referred to in the present Declaration;
(g) Consider the issue of the elimination of violence against women, as appropriate, in fulfilling their mandates with respect to the implementation of human rights instruments;
(h) Cooperate with non-governmental organizations in addressing the issue of violence against women.
Article 6
Nothing in the present Declaration shall affect any provision that is more conducive to the elimination of violence against women that may be contained in the legislation of a State or in any international convention, treaty or other instrument in force in a State.
1999 Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women
Article 1
A State Party to the present Protocol (“State Party”) recognizes the competence of the Committee on the Elimination of Discrimination against Women (“the Committee”) to receive and consider communications submitted in accordance with article 2.
Article 2
Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this
shall be with their consent unless the author can justify acting on their behalf without such consent.
Article 3
Communications shall be in writing and shall not be anonymous. No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol.
Article 4
1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.
2. The Committee shall declare a communication inadmissible where:
(a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;
(b) It is incompatible with the provisions of the Convention;
(c) It is manifestly ill-founded or not sufficiently substantiated;
(d) It is an abuse of the right to submit a communication;
(e) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date.
Article 5
1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the
victim or victims of the alleged violation.
2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.
Article 6
1. Unless the Committee considers a communication inadmissible without reference to the State Party concerned, and provided that the individual or individuals consent to the disclosure of their identity to that State Party, the Committee shall bring any communication submitted to it under the present Protocol confidentially
to the attention of the State Party concerned.
2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.
Article 7
1. The Committee shall consider communications received under the present Protocol in the light of all information made available to it by or on behalf of individuals or groups of individuals and by the State Party concerned, provided that this information is transmitted to the parties concerned.
2. The Committee shall hold closed meetings when examining communications under the present Protocol.
3. After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned.
4. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.
5. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 18 of the Convention.
Article 8
1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.
2. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.
3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.
4. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.
5. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.
Article 9
1. The Committee may invite the State Party concerned to include in its report under article 18 of the Convention details of any measures taken in response to an inquiry conducted under article 8 of the present Protocol.
2. The Committee may, if necessary, after the end of the period of six months referred to in article 8.4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.
Article 10
1. Each State Party may, at the time of signature or ratification of the present Protocol or accession thereto, declare that it does not recognize the competence of the Committee provided for in articles 8 and 9.
2. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at
any time, withdraw this declaration by notification to the Secretary-General.
Article 11
A State Party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.
Article 12
The Committee shall include in its annual report under article 21 of the Convention a summary of its activities under the present Protocol.
Article 13
Each State Party undertakes to make widely known and to give publicity to the Convention and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party.
Article 14
The Committee shall develop its own rules of procedure to be followed when exercising the functions conferred on it by the present Protocol.
Article 15
1. The present Protocol shall be open for signature by any State that has signed, ratified or acceded to the Convention.
2. The present Protocol shall be subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.
3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.
4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article 16
1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it after its entry into force, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.
Article 17
No reservations to the present Protocol shall be permitted.
Article 18
1. Any State Party may propose an amendment to the present Protocol and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties with a request that they notify her or him whether they favour a conference of States Parties for the purpose of considering and voting on the proposal. In the event that at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United
Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments that they have accepted.
Article 19
1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the Secretary-General.
2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 or any inquiry initiated under article 8 before the effective date of denunciation.
Article 20
The Secretary-General of the United Nations shall inform all States of:
(a) Signatures, ratifications and accessions under the present Protocol;
(b) The date of entry into force of the present Protocol and of any amendment under article 18;
(c) Any denunciation under article 19.
Article 21
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 25 of the Convention.
1967 Declaration on the Elimination of Discrimination against Women
Article 1
Discrimination against women, denying or limiting as it does their equality of rights with men, is fundamentally unjust and constitutes an offence against human dignity.
Article 2
All appropriate measures shall be taken to abolish existing laws, customs, regulations and practices which are discriminatory against women, and to establish adequate legal protection for equal rights of men and women, in particular:
(a) The principle of equality of rights shall be embodied in the constitution or otherwise guaranteed by law;
(b) The international instruments of the United Nations and the specialized agencies relating to the elimination of discrimination against women shall be ratified or acceded to and fully implemented as soon as practicable.
Article 3
All appropriate measures shall be taken to educate public opinion and to direct national aspirations towards the eradication of prejudice and the abolition of customary and all other practices which are based on the idea of the inferiority of women.
Article 4
All appropriate measures shall be taken to ensure to women on equal terms with men, without any discrimination:
(a) The right to vote in all elections and be eligible for election to all publicly elected bodies;
(b) The right to vote in all public referenda;
(c) The right to hold public office and to exercise all public functions.
Such rights shall be guaranteed by legislation.
Article 5
Women shall have the same rights as men to acquire, change or retain their nationality. Marriage to an alien shall not automatically affect the nationality of the wife either by rendering her stateless or by forcing upon her the nationality of her husband.
Article 6
1. Without prejudice to the safeguarding of the unity and the harmony of the family, which remains the basic unit of any society, all appropriate measures, particularly legislative measures, shall be taken to ensure to women, married or unmarried, equal rights with men in the field of civil law, and in particular:
(a) The right to acquire, administer, enjoy, dispose of and inherit property, including property acquired during marriage;
(b) The right to equality in legal capacity and the exercise thereof;
(c) The same rights as men with regard to the law on the movement of persons.
2. All appropriate measures shall be taken to ensure the principle of equality of status of the husband and wife, and in particular:
(a) Women shall have the same right as men to free choice of a spouse and to enter into marriage only with their free and full consent;
(b) Women shall have equal rights with men during marriage and at its dissolution. In all cases the interest of the children shall be paramount;
(c) Parents shall have equal rights and duties in matters relating to their children. In all cases the interest of the children shall be paramount.
3. Child marriage and the betrothal of young girls before puberty shall be prohibited, and effective action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
Article 7
All provisions of penal codes which constitute discrimination against women shall be repealed.
Article 8
All appropriate measures, including legislation, shall be taken to combat all forms of traffic in women and exploitation of prostitution of women.
Article 9
All appropriate measures shall be taken to ensure to girls and women, married or unmarried, equal rights with men in education at all levels, and in particular:
(a) Equal conditions of access to, and study in, educational institutions of all types, including universities and vocational, technical and professional schools;
(b) The same choice of curricula, the same examinations, teaching staff with qualifications of the same standard, and school premises and equipment of the same quality, whether the institutions are co-educational or not;
(c) Equal opportunities to benefit from scholarships and other study grants;
(d) Equal opportunities for access to programmes of continuing education, including adult literacy programmes;
(e) Access to educational information to help in ensuring the health and well-being of families.
Article 10
1. All appropriate measures shall be taken to ensure to women, married or unmarried, equal rights with men in the field of economic and social life, and in particular:
(a) The right, without discrimination on grounds of marital status or any other grounds, to receive vocational training, to work, to free choice of profession and employment, and to professional and vocational advancement;
(b) The right to equal remuneration with men and to equality of treatment in respect of work of equal value;
(c) The right to leave with pay, retirement privileges and provision for security in respect of unemployment, sickness, old age or other incapacity to work;
(d) The right to receive family allowances on equal terms with men.
2. In order to prevent discrimination against women on account of marriage or maternity and to ensure their effective right to work, measures shall be taken to prevent their dismissal in the event of marriage or maternity and to provide paid maternity leave, with the guarantee of returning to former employment, and to provide the necessary social services, including child-care facilities.
3. Measures taken to protect women in certain types of work, for reasons inherent in their physical nature, shall not be regarded as discriminatory.
Article 11
1. The principle of equality of rights of men and women demands implementation in all States in accordance with the principles of the Charter of the United Nations and of the Universal Declaration of Human Rights.
2. Governments, non-governmental organizations and individuals are urged, therefore, to do all in their power to promote the implementation of the principles contained in this Declaration.
1954 Convention on the Political Rights of Women
Article I
Women shall be entitled to vote in all elections on equal terms with men, without any discrimination.
Article II
Women shall be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination.
Article III
Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men, without any discrimination.
Article IV
1. This Convention shall be open for signature on behalf of any Member of the United Nations and also on behalf of any other State to which an invitation has been addressed by the General Assembly.
2. This Convention shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article V
1. This Convention shall be open for accession to all States referred to in paragraph 1 of article IV.
2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article VI
1. This Convention shall come into force on the ninetieth day following the date of deposit of the sixth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of ratification or accession the Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.
Article VII
In the event that any State submits a reservation to any of the articles of this Convention at the time of signature, ratification or accession, the Secretary-General shall communicate the text of the reservation to all States which are or may become Parties to this Convention. Any State which objects to the reservation may, within a period of ninety days from the date of the said communication (or upon the date of its becoming a Party to the Convention), notify the Secretary-General that it does not accept it. In such case, the Convention shall not enter into force as between such State and the State making the reservation.
Article VIII
1. Any State may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
2. This Convention shall cease to be in force as from the date when the denunciation which reduces the number of Parties to less than six becomes effective.
Article IX
Any dispute which may arise between any two or more Contracting States concerning the interpretation or application of this Convention, which is not settled by negotiation, shall at the request of any one of the parties to the dispute be referred to the International Court of Justice for decision, unless they agree to another mode of settlement.
Article X
The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in paragraph 1 of article IV of this Convention of the following:
(a) Signatures and instruments of ratification received in accordance with article IV;
(b) Instruments of accession received in accordance with article V;
(c) The date upon which this Convention enters into force in accordance with article VI;
(d) Communications and notifications received in accordance with article VII;
(e) Notifications of denunciation received in accordance with paragraph 1 of article VIII;
(f) Abrogation in accordance with paragraph 2 of article VIII.
Article XI
1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified copy to all Members of the United Nations and to the non-member States contemplated in paragraph 1 of article IV.
1974 Declaration on the Protection of Women and Children
in Emergency and Armed Conflict
X x x.
Solemnly proclaims this Declaration on the Protection of Women and Children in Emergency and Armed Conflict and calls for the strict observance of the Declaration by all Member States:
1. Attacks and bombings on the civilian population, inflicting incalculable suffering, especially on women and children, who are the most vulnerable members of the population, shall be prohibited, and such acts shall be condemned.
2. The use of chemical and bacteriological weapons in the course of military operations constitutes one of the most flagrant violations of the Geneva Protocol of 1925, the Geneva Conventions of 1949 and the principles of international humanitarian law and inflicts heavy losses on civilian populations, including defenceless women and children, and shall be severely condemned.
3. All States shall abide fully by their obligations under the Geneva Protocol of 1925 and the Geneva Conventions of 1949, as well as other instruments of international law relative to respect for human rights in armed conflicts, which offer important guarantees for the protection of women and children.
4. All efforts shall be made by States involved in armed conflicts, military operations in foreign territories or military operations in territories still under colonial domination to spare women and children from the ravages of war. All the necessary steps shall be taken to ensure the prohibition of measures such as persecution, torture, punitive measures, degrading treatment and violence, particularly against that part of the civilian population that consists of women and children.
5. All forms of repression and cruel and inhuman treatment of women and children, including imprisonment, torture, shooting, mass arrests, collective punishment, destruction of dwellings and forcible eviction, committed by belligerents in the course of military operations or in occupied territories shall be considered criminal.
6. Women and children belonging to the civilian population and finding themselves in circumstances of emergency and armed conflict in the struggle for peace, self-determination, national liberation and independence, or who live in occupied territories, shall not be deprived of shelter, food, medical aid or other inalienable rights, in accordance with the provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of the Rights of the Child or other instruments of international law.
1966 International Covenant on Economic, Social and Cultural Rights
PART I
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
Article 4
The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.
2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
PART III
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice,
subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
Article 9
The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded
paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
Article 13
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational
secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary
education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
Article 14
Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.
Article 15
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
PART IV
Article 16
1. The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein.
2. (a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant;
(b) The Secretary-General of the United Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialized agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.
Article 17
1. The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned.
2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant.
3. Where relevant information has previously been furnished to the United Nations or to any specialized agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice.
Article 18
Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities. These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs.
Article 19
The Economic and Social Council may transmit to the Commission on Human Rights for study and general recommendation or, as appropriate, for information the reports concerning human rights submitted by States in accordance with articles 16 and 17, and those concerning human rights submitted by the specialized agencies in accordance with article 18.
Article 20
The States Parties to the present Covenant and the specialized agencies concerned may submit comments to the Economic and Social Council on any general recommendation under article 19 or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein.
Article 21
The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant.
Article 22
The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.
Article 23
The States Parties to the present Covenant agree that international
action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned.
Article 24
Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.
Article 25
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.
PART V
Article 26
1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant.
2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article.
4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession.
Article 27
1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.
2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.
Article 28
The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.
Article 29
1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes.
3. When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.
Article 30
Irrespective of the notifications made under article 26, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph I of the same article of the following particulars:
(a) Signatures, ratifications and accessions under article 26;
(b) The date of the entry into force of the present Covenant under article 27 and the date of the entry into force of any amendments under article 29.
Article 31
1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 26.
1948 UNIVERSAL DXECLARATION OF HUMAN RIGHTS
Article 1.
All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3.
Everyone has the right to life, liberty and security of person.
Article 4.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6.
Everyone has the right to recognition everywhere as a person before the law.
Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9.
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Tuesday, July 7, 2009
Human rights in the Philippines
In the early part of this year the Philippine media carried reports stating that the Philippine Supreme Court had admitted the slow pace of the country’s judicial system as alleged in a US State Department report on the state of human rights in the Philippines.
The Court’s spokesman said the problem was due to lack of resources and the judicial structure itself.
However, the Court had responded to these concerns via new judicial remedies like the writ of amparo and writ of habeas data to protect the people’s civil and political rights.
Further, in a period of eight months, some 1,000 inmates had been released after their cases were heard in the Expanded Justice on Wheels program, while another 5,000 had been settled.
Moreover, the Court had issued the new rule of procedure on small claims cases and the new rule on mandatory legal aid service to empower the poor.
The Court had also been vigilant and strict against corrupt members of the judiciary and the bar.
In contrast, the reaction of the Executive Branch, through Justice Secretary Raul Gonzalez, was acerbic and arrogant. He dared the US State Department to show proof of alleged widespread corruption and inefficiency in the Philippine judicial system.
A usual escape route of corrupt, lazy and complacent government officials suffering from the grave mental disease called denial syndrome.
The justice secretary alleged that the US State Department was obviously trying to besmirch the image of the Philippines.
He urged the Department of Foreign Affairs to protest the US report.
He stated that US State Department should not compare the pace of legal processes in the Philippines with those of the United States because the US was using the jury system where evidence was no longer examined by the judge.
He blamed foreign and domestic media for the very poor image of the Philippine Government.
(See: http://www.philstar.com/Article.aspx?articleid=444209).
For legal research purposes of the visitors of this blog, and to let the general public decide for itself the truth on the matter, may I reproduce verbatim hereinbelow the US State Department’s controversial 2008 Report on the State of Human Rights in the Philippines.
For the record, may I vehemently state that as far as I am concerned, notwithstanding the so-called representative democratic system of the Philippines (which, by the way, is a huge hypocritical and fraudulent political racket), the state of human rights in the Philippines is extremely dismal and patently shameful, at best, if we contrast the same with the letter and spirit of the 1948 United Nations declaration on human rights and the 1966 international conventions on civil and political rights and on economic, social, and cultural rights.
Anyway, read the verbatim report below. And let your conscience decide.
2008 Human Rights Report: Philippines
Bureau of Democracy, Human Rights, and Labor
2008 Country Reports on Human Rights Practices
February 25, 2009
The Philippines, with a population of 89 million, is a multiparty republic with an elected president and bicameral legislature. In May 2007 approximately 73 percent of registered citizens voted in mid-term elections for both houses of congress and provincial and local governments. The election generally was free and fair but was marred by violence and allegations of vote buying and electoral fraud. Long-running Communist and Muslim insurgencies affected the country. Civilian authorities generally maintained effective control of the security forces; however, there were some instances in which elements of the security forces acted independently.
Arbitrary, unlawful, and extrajudicial killings by elements of the security services and political killings, including killings of journalists, by a variety of actors continued to be major problems. In recent years, following increased domestic and international scrutiny, reforms were undertaken and the number of killings and disappearances dropped dramatically. Concerns about impunity persisted. Members of the security services committed acts of physical and psychological abuse on suspects and detainees, and there were instances of torture. Prisoners awaiting trial and those already convicted were often held under primitive conditions. Disappearances occurred, and arbitrary or warrantless arrests and detentions were common. Trials were delayed, and procedures were prolonged. Corruption was a problem throughout the criminal justice system. Leftwing and human rights activists often were subject to harassment by local security forces. Problems such as violence against women, abuse of children, child prostitution, trafficking in persons, child labor, and ineffective enforcement of worker rights were common.
In addition to killing soldiers and police officers in armed encounters, the New People's Army (NPA)--the military wing of the Communist Party (CPP)--killed local government officials and ordinary civilians. There were reports that the Moro Islamic Liberation Front (MILF) and the terrorist groups NPA and Abu Sayyaf Group (ASG) used child soldiers in combat or auxiliary roles. Terrorist groups committed bombings that caused civilian casualties.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
Security forces and antigovernment insurgents committed a number of arbitrary and unlawful killings. The Commission on Human Rights (CHR), an independent government agency, investigated 173 new complaints of killings that occurred during the year; 67 of these cases were classified as politically motivated. The CHR suspected personnel from the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) in a number of the killings of leftist activists operating in rural areas. Allegations of summary executions by government security forces were referred to the nongovernmental organization (NGO) Task Force Detainees of the Philippines (TFDP). The TFDP was unable to investigate all of these allegations, but it alleged the summary execution of four individuals by government forces.
Through year's end, the PNP Task Force Usig recorded 146 cases of killings since 2001, six of which occurred during the year; 90 cases were filed in court, with one conviction during the year. At least one human rights organization, Karapatan, claimed that there have been more than 900 killings since 2001, with both state actors and nonstate actors as suspects. It recorded 69 victims of killings during the year.
During the year the PNP expanded human rights training and possessed a network of 1,636 human rights desk officers at the national, regional, provincial, and municipal levels. The chief justice noted that the writ of "amparo," which provides citizens with the court's protection, contributed to a reduction in killings.
However, human rights groups and the CHR noted little progress in implementing and enforcing some reforms. For example, cooperation and coordination between police and prosecutors continued to be a problem. Funding for the CHR and the government witness protection programs was considered inadequate.
Arbitrary and unlawful killings through August included:
• On January 23, two unidentified men shot and killed United Church of Christ Pastor Felomino Catambis in Abuyog, Leyte. The CHR was investigating the case at year's end.
• On February 4, seven civilians and an off-duty soldier were killed in an AFP raid on alleged ASG forces in Maimbung, Sulu. Following an investigation, the CHR in Western Mindanao filed a case against the soldiers with the Deputy Ombudsman for the
Military, which was pending at year's end.
• On March 10, unidentified assailants shot and killed Solidarity of Cavite Workers' official Gerry Cristobal in Imus, Cavite. Cristobal was a former union president and a critic of provincial policies that were viewed by unions as limiting the right of workers to organize and strike. The case remained under investigation at year's end.
• On May 15, three unidentified suspects shot and killed the secretary general of Davao City Farmers Association, Celso Pojas. The CHR provisionally dismissed the case due to insufficient evidence.
A prosecutor dismissed the case against the suspects in the January 2007 killing of university professor and human rights advocate Jose Maria Cui for insufficient evidence. The case was re-filed on May 19.
Investigations of cases from 2006 and 2007 were ongoing.
On May 21, the AFP surrendered one of its members to the National Bureau of Investigation (NBI) in connection with the 2005 killing of union leader Ricardo Ramos. The suspect pleaded not guilty during his August 6 arraignment.
On June 12, a regional trial court judge sentenced a member of the AFP, Joel Flores, to 41 years' imprisonment for his involvement in the 2006 killing of community leader Jose Doton. At year's end Flores was appealing his conviction.
Government forces killed a number of civilians during clashes with armed groups. Terrorist groups killed and kidnapped NGO workers and other civilians. Communist insurgents, mainly from the NPA, continued to kill political figures, military and police officers, and civilians, including suspected military and police informers. Extortion groups associated with the ASG killed persons in bombings (see section 1.g.).
Ruben Omar Pestano Lavilla, Jr., a leader of the terrorist Rajah Solaiman Movement wanted in connection with 2004 Superferry bombing and the 2005 Valentine's Day bombings, was deported from Bahrain to the Philippines on August 30.
Vigilante groups were suspected of conducting summary killings of adult criminals and children involved in petty crime in five major cities. The TFDP recorded 80 apparent vigilante killings in Davao City through 2007, and confirmed at least one such killing during the year. Another human rights group noted that local activists in Davao City counted more than 100 summary killings from January through November. Vigilante killings also allegedly occurred in Cebu City, Cagayan de Oro, Tagum City, and General Santos City. The victims were suspected of involvement in criminal activities, and the killings appeared to have popular support. Authorities made no arrests in these cases.
In April UN Special Rapporteur Philip Alston issued a report based on his February 2007 mission. Among other findings, the report noted that the government's counterinsurgency strategy presumed some civil society groups had ties to the CPP or the NPA and led security forces to treat leftist leaders and community organizers as legitimate targets.
b. Disappearance
According to local human rights NGOs, government forces were responsible for disappearances. By year's end the CHR investigated 20 new cases of enforced disappearances, abductions, and kidnappings involving 27 victims, some of whom were found to have been detained without a warrant (see section 1.d.). Of the 20 cases, one was referred to the deputy ombudsman for the military, 16 were still under investigation, and three were either dismissed or closed. The NPA was implicated in two cases, members of the military and police were implicated in nine cases, and unidentified suspects were involved in the others. The NGO Families of Victims of Involuntary Disappearances (FIND) was monitoring four reported disappearance cases, whose victims had not been found, and those investigations continued.
On September 17, indigenous rights activist and Cordillera People's Alliance (CPA) founding member James Balao was abducted while in transit between Baguio City and La Trinidad in Benguet Province. Balao's family and members of the CPA claimed he was being held captive by members of the military. At year's end a court had not yet issued a decision on the writ of amparo petition filed in October.
On October 7, the Supreme Court upheld the writ of amparo granted to Raymond and Reynaldo Manalo by a court of appeals in December 2007. The Manalo brothers testified that beginning in 2006 they were held incommunicado and at times tortured by members of the AFP until they finally escaped in August 2007. During their detention their family filed a number of habeas corpus petitions in courts, but responsible AFP officers denied any involvement in their disappearance. The Manalos further testified that at times they shared detention with other persons who had disappeared, notably University of the Philippines students Sherlyn Cadapan and Karen Empeno and their companion, Manuel Marino. Raymond Manalo testified that he witnessed the killing of Marino and the subsequent burning of his body. The Manalos' testimony implicated members of a division and battalion of the AFP, a sergeant, and a major general, among others.
On July 17, a court of appeals dismissed a petition for a writ of amparo in the April 2007 abduction of activist Jonas Burgos. During the year courts also dismissed other petitions for protective writs. On September 17, a court of appeals granted petitions for writs of amparo and habeas corpus filed against the military for the June 2006 abduction case of the University of the Philippines students and their associate.
Some victims' families complained that the courts and police failed to address adequately their complaints concerning disappearances in which security forces were suspected. Evidence of a kidnapping or killing is required to file charges. FIND and other NGOs continued to support the efforts of victims' families to press charges. In most cases, evidence and documentation were unavailable, and convictions were rare. Out of 16 court cases related to disappearances of concern to FIND, only one case was resolved during the year. On July 18, a regional trial court in Agusan del Sur convicted AFP Corporal Rodrigo Billones for his role in the October 2000 abduction and illegal detention of six workers of Paper Industries Corporation of the Philippines. The judge sentenced the defendant to a minimum of 54 years in prison and fined him for moral damages.
Judicial inaction on the vast majority of disappearances contributed to a climate of impunity and undermined public confidence in the justice system.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The constitution prohibits torture, and evidence obtained through its use is inadmissible in court; however, members of the security forces and police were alleged to have routinely abused and sometimes tortured suspects and detainees. The CHR provided the police with mandatory human rights training. The CHR noted that senior PNP officials appeared receptive to respecting the human rights of detainees, but rank-and-file awareness of the rights of detainees remained inadequate.
Human rights groups, including the CHR, noted that excessive force and torture remained an ingrained part of the arrest and detention process. Common forms of abuse during arrest and interrogation reportedly included electric shock, cigarette burns, or suffocation.
Through year's end the TFDP documented 12 cases of torture involving 16 victims. For the same period, the CHR investigated 23 cases of alleged torture. Most of the suspects in these cases were members of the AFP.
The CHR continued to observe greater sensitivity within the AFP to the need to prevent human rights violations. The CHR is required to determine whether an AFP officer or a PNP officer at the senior superintendent level being considered for promotion had a history of human rights violations; however, a negative CHR finding does not preclude promotion. In some instances promotions were withheld indefinitely when the CHR uncovered a record of human rights abuses. The AFP stated that it withheld some promotions on human rights grounds during the year.
On May 2, members of the military allegedly harassed and tortured four indigenous farmers, including one minor, in Compostella Valley Province. The case remained under investigation by the CHR.
On August 31, provincial police and the Regional Special Operations Group allegedly abducted, harassed, and tortured nine members of the Cavite Farmers' Confederation.
The farmers were charged with illegal possession of firearms but were released on September 2 for lack of evidence.
There were reports that prison guards physically abused inmates. The CHR and TFDP reported that abuse by prison guards and other inmates was common, but prisoners, fearing retaliation, refused to lodge formal complaints. Women in police custody were particularly vulnerable to sexual and physical assault by police and prison officials. Human rights activists believed suspected ASG and NPA members in captivity were particular targets for abuse.
Prison and Detention Center Conditions
Prison conditions were rudimentary and sometimes harsh. Provincial jails and prisons were overcrowded, lacked basic infrastructure, and provided prisoners with an inadequate diet. Jails managed by the Bureau of Jail Management and Penology (BJMP) operated at an average of 191 percent of designed capacity, an improvement over the previous year owing to prison decongestion efforts. Prison administrators allotted a daily subsistence allowance of 50 pesos (approximately $1.12) per prisoner. Lack of potable water, poor sanitation, and poor ventilation continued to cause health problems. Some prisoners, including women and children, were abused by other prisoners and prison personnel. The slow judicial process exacerbated overcrowding.
There were reports of widespread corruption among prison guards and, to some extent, at higher levels of authority within the prison system.
According to BJMP regulations, male and female inmates are to be held in separate facilities and, in national prisons, overseen by guards of the same sex. Anecdotal reports suggested that these regulations were not uniformly enforced. In provincial and municipal prisons, male guards sometimes supervised female prisoners directly or indirectly. Although prison authorities attempted to segregate children or to place them in youth detention centers, in some instances children were held in facilities not fully segregated from adult male inmates. Girls were sometimes held in the same cells as boys. During the year as part of reform and budget reduction efforts, the government consolidated women and minors into fewer jails, including some that contained separate facilities for those groups. Out of 1,075 jails managed by the BJMP and PNP, 205 had separate cells for minors, while 353 jails had separate cells for adult females. Lack of adequate food for minors in prisons was a concern (see section 5, children).
In July 2007 President Gloria Macapagal-Arroyo directed the immediate release of all minor prisoners who were age 15 years and below at the time they committed the crime. From January to November, the BJMP released 298 minor inmates, usually in response to a court order following a petition by the public attorney's office or the inmate's private lawyer or through the appeals of NGOs.
International monitoring groups, including the International Committee of the Red Cross, were allowed free access to jails and prisons. However, a local NGO reported difficulty accessing jails or detentions centers where children were held.
d. Arbitrary Arrest or Detention
The law requires a judicial determination of probable cause before issuance of an arrest warrant and prohibits holding prisoners incommunicado or in secret places of detention; however, in a number of cases, police and the AFP arrested and detained citizens arbitrarily. From January to December, the TFDP documented 55 cases of illegal arrest and detention involving 93 victims. The CHR tracked one case of abduction during the year that resulted in the release of the victim. During the year, the NGO FIND counted 16 abduction victims who were later found alive.
Arbitrary detentions through August included the January 25 abduction of Flaviano Arante, a council member of the peasant group United Farmers of Santa Catalina in Negros Oriental. Two weeks later, a military officer reportedly said that Arante was in the custody of the AFP's 61st battalion. In February his family petitioned for a writ of amparo, but a court of appeals dismissed the petition on April 30. A petition for review of that decision was filed in the Supreme Court.
On March 15, Mel Abesamis, a United Methodist Church pastor and former secretary general of the provincial Karapatan office, was abducted in Mindoro Occidental. Abesamis was missing for two days and then was found to be in a provincial jail. The government linked Abesamis to a May 2007 encounter between the PNP and the NPA and filed four counts of murder and theft against him.
On May 15, Randy Felix Malayao, a consultant for the peace process of the CPP-affiliated National Democratic Front of the Philippines, was abducted in Metro Manila. Malayao was missing for five days before he was found in the Cagayan provincial jail facing murder charges.
On May 18, three unidentified men abducted peasant leader Bernadith Dignos. Dignos was missing for four days before she appeared in police custody. She was charged with multiple counts of murder in a regional trial court in Misamis Occidental.
There were also reports that many children detained in jails were arrested without warrants.
Role of the Police and Security Apparatus
The Department of National Defense directs the AFP, which shares responsibility for counterterrorism and counterinsurgency operations with the PNP. The Department of Interior and Local Government directs the PNP, which is responsible for enforcement of law and order and urban counterterrorism; however, governors, mayors, and other local officials have considerable influence. The 115,000-member PNP has deep-rooted institutional deficiencies and suffered from a widely held and accurate public perception that corruption remained a problem. PNP's Internal Affairs Service remained largely ineffective. Members of the PNP were regularly accused of torture, soliciting bribes, and other illegal acts. Efforts were underway to reform the institution in part to counter a widespread impression of official impunity. By year's end the PNP dismissed 84 members of the police force, including administrative officials and police officers, for various reasons that may have involved corruption. Of the 2,786 administrative cases filed against PNP officers and personnel, 589 were resolved, 349 were dropped and closed, 157 remained under preliminary investigation, and 1,691 underwent summary proceedings. The deputy ombudsman for the military received 2,205 cases for the period January through August, of which 8 percent were cases filed against high ranking police and military officials.
As of August the AFP Human Rights Office monitored no new cases of killings, disappearances, or torture during the year. In August 2007 the AFP created five general courts-martial to hear administrative cases of officers and soldiers accused of human rights violations. As of December, two members of the army who were allegedly involved in killings were undergoing court martial proceedings, and one was on trial for murder in a civilian criminal court.
Government-armed civilian militias supplemented the AFP and the PNP.
Arrest and Detention
Citizens are apprehended openly with warrants based on sufficient evidence and issued by a duly authorized official and are brought before an independent judiciary. However, there were some reports during the year of citizens picked up by security forces without a warrant and detained arbitrarily. Detainees have the right to a judicial review of the legality of their detention and, except for offenses punishable by a life sentence, the right to bail. During the year a greater number of offenses were made eligible for bail and, according to government figures, 12,328 or 22 percent of detainees were able to post bail, compared with the 2 percent of detainees who posted bail in 2007. The law provides that an accused or detained person has the right to a lawyer of his choice and that the state must provide one when the accused cannot afford one. Authorities are required to file charges within 12 to 36 hours of arrests made without warrants, with the time given to file charges increasing with the seriousness of the crime. Lengthy pretrial detention remained a problem. The BJMP did not provide data about the number of detainees released during the year as part of jail decongestion programs, including the number of detainees who were released because they had been jailed for periods equal to or longer than the maximum prison terms they would have served if convicted. However, the BJMP acknowledged that 19,063 detainees were released from jail because they were acquitted or because their cases were dismissed for lack of witnesses or evidence.
Human rights and labor groups expressed concern about criminal charges filed in September against 72 labor activists, some of whom were arrested, including labor attorney Remigio Saladero, in connection with a 2006 NPA ambush on military forces.
The NPA, as well as some Islamic separatist groups, were responsible for a number of arbitrary detentions.
e. Denial of Fair Public Trial
The law provides for an independent judiciary; however, the judicial system suffered from corruption and inefficiency. Personal ties and sometimes bribery resulted in impunity for some wealthy or influential offenders and contributed to widespread skepticism that the judicial process could ensure due process and equal justice. The Supreme Court continued efforts to ensure speedier trials, sanction judicial malfeasance, increase judicial branch efficiency, and raise public confidence in the judiciary. In September the Supreme Court dismissed one justice at a court of appeals and disciplined four others for their roles in a bribery scandal. In October the high court denied the motions for reconsideration filed by these justices.
The national court system consists of four levels: local and regional trial courts, a national court of appeals divided into 17 divisions, a 15-member Supreme Court, and an informal local system for arbitrating or mediating certain disputes outside the formal court system. The Sandiganbayan, the government's anticorruption court, hears criminal cases brought against senior officials. A Shari'a (Islamic law) court system, with jurisdiction over domestic and contractual relations among Muslim citizens, operated in some Mindanao provinces. The courts-martial, each composed of at least five active-duty military officers, hear cases against military personnel accused of violating the Philippine Articles of War. The president, the chief of staff of the armed forces, or a military unit commander may appoint the members of a court-martial. Military or security tribunals cannot try civilians.
On January 14, Judge Roberto Navidad was shot and killed in Calbayog City, Samar. The police arrested a suspect, and the case was under investigation at year's end.
A decision was pending in the trial for the January 2007 killing of Judge Nathaniel Pattugalan. The police identified a suspect in the July 2007 killing of Judge Orlando Velasco, and a case against him was filed in court.
Trial Procedures
The law provides that all persons accused of crimes be informed of the charges against them, have the right to counsel, and be provided a speedy and public trial before a judge. Defendants are presumed innocent and have the right to confront witnesses against them, to present evidence, and to appeal convictions. The authorities respected the right of defendants to be represented by a lawyer, but poverty often inhibited a defendant's access to effective legal representation. Skilled defense lawyers staffed the Public Attorney's Office (PAO), but their workload was large and resources were scarce. The PAO provided legal representation for all indigent litigants at trial; however, during arraignment, courts may at their option appoint any lawyer present in the courtroom to provide counsel to the accused.
The law provides that cases should be resolved within set time limits once submitted for decision: 24 months for the Supreme Court; 12 months for a court of appeals; and three months for lower courts. However, these time limits were not mandatory, and, in effect, there were no time limits for trials.
Lengthy pretrial detention remained a problem. Anecdotal evidence suggested that, in practice, trials can take six years or more. Trials take place in short sessions over time and as witnesses become available; these noncontinuous sessions created lengthy delays. Furthermore, there was a widely recognized need for more prosecutors, judges, and courtrooms. Judgeship vacancy rates were high; of the total 2,182 trial court judgeships (including Shari'a courts), 509 (23 percent) were vacant. Courts in Mindanao and poorer provinces had higher vacancy rates than the national average. Shari'a court positions were particularly difficult to fill because of the requirement that applicants be members of both the Shari'a Bar and the Integrated Bar. All five Shari'a district court judgeships and 36 percent of circuit court judgeships remained vacant. Shari'a courts do not have criminal jurisdiction.
Political Prisoners and Detainees
Various human rights NGOs maintained lists of incarcerated persons they considered to be political prisoners. From January to June, the TFDP reported that there were 231 political prisoners. Typically, there was no distinction in these lists between detainees and prisoners, and the majority of persons listed had not been convicted. Some NGOs asserted that it was frequent practice to make politically motivated arrests of persons for common crimes and to continue to detain them after their sentences expired. The government used NGO lists as one source of information in the conduct of its pardon, parole, and amnesty programs, but it did not consider the persons listed to be political detainees or prisoners.
From January to June, the government released 22 persons whom NGOs claimed were political prisoners. The TFDP recorded 41 new political prisoners incarcerated through June.
The government permitted access to alleged political prisoners by international humanitarian organizations.
Civil Judicial Procedures and Remedies
The judiciary is independent and impartial in civil matters. There are administrative remedies as well as judicial remedies for alleged wrongs; however, corruption was widespread in the judiciary, and cases often were dismissed. Complainants have access to local trial courts to seek damages for, or cessation of, human rights abuses.
From January to December, human rights lawyers filed 13 writ of amparo petitions, all against the military, of which nine were resolved and four were pending hearings. Five of the resolved cases were dismissed, closed, or terminated; two were pending review by the Supreme Court; one was pending motion for reconsideration by the petitioners; and one was settled.
During the year the warden of the Davao Penal Colony reportedly refused to release journalist Alexander Adonis despite his having been paroled by the Department of Justice (DOJ) Board of Pardon and Paroles in a libel case. Adonis was released from prison in December.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law provides that a judge may issue search warrants on a finding of probable cause; however, while the government generally respected restrictions on search and seizure within private homes, searches without warrants occurred. Judges declared evidence obtained illegally to be inadmissible.
The government generally respected the privacy of its citizens; however, leaders of communist organizations and rural-based NGOs complained of what they described as a pattern of surveillance and harassment. The Human Security Act of 2007 allows law enforcement authorities, with a written order from a court of appeals, to intercept and record conversations and any other form of communication between members of terrorist organizations or any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Forced resettlement of urban squatters, who made up at least 30 percent of the urban population, continued during the year. The law provides certain protections for squatters; eviction was often difficult, especially because politicians recognized squatters' voting power. Government relocation efforts were constrained by budget problems, and the issuance of land titles to squatters was limited.
g. Use of Excessive Force and Other Abuses in Internal Conflicts
The government was engaged in combat with antigovernment forces and terrorists who actively sought to destabilize the country. Government forces killed a number of civilians during clashes with antigovernment forces. Some citizens' groups complained that the AFP, in confronting the ASG and NPA, illegally detained citizens, destroyed houses, displaced residents, and shelled villages. In August after the Supreme Court issued a temporary restraining order that halted the August 5 signing of a government-MILF territorial agreement, some MILF military commanders, allegedly acting without MILF authorization, attacked villages in central Mindanao, killing civilians.
Killings
Government forces acknowledged the deaths of civilians in the course of military operations against the MILF. A National Disaster Coordinating Council report indicated that 163 persons were confirmed killed in the Mindanao conflict by either government or rebel MILF forces between August 10 and September 1, including 78 civilians, six law enforcement officials, and two MILF rebels. Unconfirmed numbers of AFP soldiers and other MILF rebels also were killed in the conflict.
Communist insurgents, mainly from the NPA, continued to kill political figures, military and police officers, and civilians, including suspected military and police informers. The NPA and other extortion groups also harassed businesses and burned buses and private communication facilities to enforce the collection of "revolutionary taxes."
At year's end, according to military and police sources, 209 members of the AFP were killed in action during encounters with rebel and terrorist groups: 140 by the NPA, 56 by the ASG, and 13 by the MILF. During the same period, AFP operations resulted in 340 insurgents killed: 166 NPA, 27 ASG, 146 MILF, and one from the Moro National Liberation Front. The PNP recorded 82 of its personnel killed from January to November and claimed 91 insurgents killed in operations around the country, including 67 NPA, two ASG, and 22 MILF.
On April 4, NPA forces in Tineg, Abra, fired at a truck carrying 14 civilians, killing four. On June 28, NPA forces killed four government forces members in two attacks on Siargao Island, Surigao del Norte; two civilians were killed in the crossfire. On August 5 and 13, NPA rebels killed two rebel returnees. On August 17, MILF rebels killed 28 civilians and 14 soldiers in attacks in Mulondo, Lanao del Sur. On August 18, MILF rebels killed 14 civilians in an attack on a passenger bus in Lanao del Norte.
On January 15, gunmen believed to be members of the ASG abducted a Catholic priest, Father Roda, and a teacher in Tawi-tawi. They subsequently killed Father Roda.
The police believed that extortion groups allegedly linked with the ASG and the Jemaah Islamiyah were responsible for a series of bomb attacks against three bus companies in Mindanao. On May 28, suspected terrorists killed three civilians in a bomb attack outside an airbase in Zamboanga City. On July 24, a bomb inside a bus in Digos, Davao del Sur, killed three passengers. A September 1 bomb also in Digos killed seven persons. No group claimed responsibility for the attacks.
Abductions
There were numerous kidnappings throughout the year in Mindanao and the Sulu Archipelago by various armed groups, including the ASG. Victims often were released in exchange for payments.
On April 30, MILF rebels took over a village in Kalamansig, Sultan Kudarat, and held the residents hostage. On August 11, MILF forces took two civilians hostage in Pigcawayan, North Cotabato. On August 18, dozens of civilians in Kolambugan and Kauswagan, Lanao del Norte, reportedly were used as human shields by retreating MILF fighters. Some of the hostages later were reported killed.
Child Soldiers
During the year the NPA and the ASG targeted children for recruitment as combatants and noncombatants. The NPA claimed that it assigned persons 15 to 18 years of age to self defense and noncombatant duties; however, there were reports that the NPA continued to use minors in combat. A local NGO reported that 100 children were used as NPA soldiers in Eastern Samar.
The ASG recruited teenagers to fight and participate in its activities. The two purported ASG suspects in the June 8 kidnapping of Filipino newscaster Ces Drilon were reported to be minors. The AFP stated that some Islamic schools in Mindanao served as fronts to indoctrinate children. The AFP also alleged that the ASG used children as couriers and spies, but NGOs were unable to verify that claim.
A 2007 study commissioned by the UN Children's Fund (UNICEF) found that children as young as 10 years were used as soldiers or recruited by the MILF. Most of the children were volunteers often with the support of their families, serving in noncombat roles. In December during the visit of the Special Representative of the UN Secretary General, the MILF agreed to stop the recruitment and use of children in its ranks. At year's end a plan to implement this was not yet in place.
A human rights group documented one case of an indigenous child in Luzon being recruited by a paramilitary organization in 2007. The NGO also reported three cases of child soldiers being rescued by or surrendered to the government, while government sources reported one case. Government reporting mechanisms for children in armed conflict were inconsistent between agencies and regions, making it difficult to evaluate the scope of the problem.
Other Conflict-related Abuses
MILF attacks and subsequent clashes with the AFP increased the number of internally displaced persons (IDPs). Most IDPs were in the central Mindanao provinces of Lanao del Norte, North Cotabato, and Maguindanao (see section 2.d.).
The NPA continued to subject military personnel, police, local politicians, and other persons to its so-called courts for "crimes against the people." The NPA executed some of these "defendants." The MILF also maintained similar "people's courts."
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The constitution provides for freedom of speech and of the press, and the government generally respected these rights in practice.
The government owned several television and radio stations; however, most print and electronic media were privately owned. The media were active and expressed a wide variety of views without restriction. Broadcast and print media were freewheeling and often criticized for lacking rigorous journalistic ethics. They tended to reflect the particular political or economic orientations of owners, publishers, or patrons, some of whom were close associates of present or past high-level officials. Special interests often used bribes and other inducements to solicit one-sided and erroneous reports and commentaries that supported their positions. Journalists continued to face harassment and threats of violence from individuals critical of their reporting.
Journalists continued to be killed. The Center for Media Freedom and Responsibility reported six journalists killed during the year. The Task Force Usig classified four of these cases as work-related killings. There was also one reported abduction of a journalist.
On April 7, an unidentified assailant killed Benefredo Acabal, a publisher and writer for a local Cavite newspaper, The Filipino Newsmen. The case remained under investigation.
On April 27, two men killed former Iglesia ni Cristo religious sect minister and Pampanga television host Marcos Mataro at a North Luzon Expressway toll gate in San Simon, Pampanga. A case was filed against suspects in a local trial court.
Task Force Usig considered the Acabal and Mataro cases not work related.
On June 7, alleged ASG rebels abducted television reporter and anchorwoman Ces Drilon and two of her colleagues on the island of Sulu. The group was later released, and a Jolo mayor was implicated in the abduction and detained. A case was pending against the mayor.
On June 30, unidentified assailants killed Fausto Bert Sison, a local radio program host and columnist of a weekly regional bulletin in Sariaya, Quezon. Three suspects were apprehended and the case was under preliminary investigation by the DOJ. The motive for the killing was unknown.
On August 4, unidentified assailants shot radio journalist Dennis Cuesta, a program director and anchor of a local radio station in General Santos City, affiliated with the Radio Mindanao Network. Cuesta's reporting covered local political issues. He later died from the injuries he sustained. The NBI filed a case against a police officer suspect, and the case was under preliminary investigation by the DOJ.
On August 7, Martin Roxas, an anchorman for a Radio Mindanao Network affiliate who covered local political issues, was killed in Roxas City, Capiz, by persons who were apprehended following the attack. A case was filed against the suspects, who remained in police custody.
On November 17, two men killed radio host and columnist Aresio Padrigao. At year's end the suspects remained at large, and the case was under investigation.
The April 2007 case of Carmelo Palacios, a police-beat reporter for a government-run radio station, remained under investigation.
On May 28, a suspect in the December 2007 killing of radio broadcaster Fernando Lintuan voluntarily surrendered and was detained by authorities in Davao City.
On February 19, a regional trial court sentenced Roberto Cabal Lopez to life in prison for the 2006 slaying of photojournalist Prudencio Melendres in Metro Manila.
On October 20, charges were filed against the alleged planners of the 2005 killing of journalist Marlene Esperat; the gunmen and other parties to the killing were convicted in 2006.
On March 21, the Cebu Regional Trial Court sentenced John Lloyd Ortiz to up to 12 years' imprisonment for the 2004 attempted murder of journalist Cirse Torralba.
On March 5, a suspect in the 2004 killing of broadcaster Herson Hinolan surrendered to the court, although this occurred after a key witness withdrew his testimony.
On May 9, a trial began in the 2001 killing of radio journalist Rolando Ureta.
Human rights NGOs frequently criticized the government for failing to protect journalists. The National Union of Journalists of the Philippines accused the police and the government of failing adequately to investigate these killings and of subjecting journalists to harassment and surveillance. In some situations it was difficult to discern if violence against journalists was carried out in retribution for their profession or if these journalists were the victims of random crime.
On January 25, the Supreme Court chief justice advised judges to fine rather than imprison journalists found guilty of criminal defamation, although the judge's circular did not preclude imprisonment, and judges retained discretion in sentencing.
On June 5, a Makati City court judge found the publisher of The Daily Tribune newspaper guilty of libel in a 2003 series of articles criticizing a law firm over alleged irregularities in the contract for the new international terminal at Ninoy Aquino International Airport. The judge sentenced the publisher to six months to two years in prison and ordered her to pay a fine for moral damages.
On June 27, a Makati City court dismissed the charges filed by journalists and media organizations against government officials and the police over the arrests of media professionals during the November 2007 attempted takeover by rebel soldiers at the Manila Peninsula Hotel. On September 1, the CHR issued a resolution that the government violated the journalists' liberty, personal security, and freedom from arbitrary arrest. The CHR referred the case to the PNP, the DOJ, and the Department of Interior and Local Government for further investigation.
On August 28, a court of appeals reversed its March 18 decision that upheld a verdict of libel against staff members of a defunct newspaper.
Internet Freedom
There were no government restrictions on access to the Internet or reports that the government monitored e-mail or Internet chat rooms. Individuals and groups could engage in peaceful expressions of views via the Internet, including by e-mail. Internet access was available widely.
Academic Freedom and Cultural Events
In his April report on extrajudicial killings, UN Special Rapporteur Philip Alston noted the existence of the AFP intelligence service's 2005 presentation, "Know Your Enemy," which listed some press unions and student organizations as "enemies of the state" or communist fronts. There were no reports that the military used the presentation in its training curriculum during the year.
The government did not otherwise interfere with academic freedom. There were no government restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law provides for freedom of assembly, and the government generally respected this right in practice. Although the law requires that groups request a permit to hold a rally, the government at times followed an unwritten policy of allowing rallies to occur without the filing of a request. The police exhibited professionalism and restraint in dealing with demonstrators, with few exceptions. An NGO reported that 37 protesters were injured by police in March during the dispersal of a protest outside the Department of Labor and Employment (DOLE) offices in central Manila.
Freedom of Association
The law provides for freedom of association, and the government generally respected this right in practice.
c. Freedom of Religion
The law provides for freedom of religion, and the government generally respected this right in practice.
The government's campaign against terrorist groups led some human rights NGOs to accuse the police and military of acting with bias in their treatment of Muslims.
Intermittent government efforts to integrate Muslims into political and economic society achieved only limited success. Many Muslims claimed that they continued to be underrepresented in senior civilian and military positions and cited the lack of proportional Muslim representation in national government institutions.
Predominantly Muslim provinces in Mindanao lagged far behind the rest of the country in most aspects of socioeconomic development. The percentage of the population under the poverty level in the Autonomous Region of Muslim Mindanao (ARMM) was almost twice as high as the national average, with per capita income of 15,760 pesos (approximately $354) per year.
Societal Abuses and Discrimination
Historically, the Christian majority has marginalized Muslims. The national culture, with its emphasis on familial, tribal, and regional loyalties, created informal barriers whereby access to jobs or resources is provided first to those of one's own family or group network. Muslims reported difficulty renting rooms or being hired for retail work if they used their real names or wore distinctive Muslim dress. As a result, some Muslims used Christian pseudonyms and did not wear distinctive dress when applying for housing or jobs.
An estimated 400 to 1,000 mostly foreign nationals of Jewish heritage lived in the country. There were no reports of anti Semitic acts.
For a more detailed discussion, see the 2008 International Religious Freedom Report at www.state.gov/g/drl/irf/rpt.
d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and
Stateless Persons
The constitution provides for freedom of movement within the country, foreign travel, emigration, and repatriation, and the government generally respected these rights in practice. The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.
Foreign travel was limited only in rare circumstances, such as when a citizen has a pending court case. Government authorities discouraged travel by vulnerable workers to areas in which they face personal risk.
The government retained its formal ban on travel to Iraq for the purposes of employment, but the Department of Foreign Affairs estimated 6,000 Filipinos worked there. The travel ban also included Afghanistan, Nigeria, and Lebanon. The Philippine Overseas Employment Administration (POEA) sought to limit departures for work abroad to persons the POEA certified as qualified for the jobs. Millions of citizens worked overseas and remitted money home. In the first nine months of the year, such remittances accounted for approximately 11 percent of the gross domestic product.
Forced exile is illegal, and the government did not use it.
Internally Displaced Persons
Clashes between the AFP and the MILF increased the number of IDPs. Most IDPs were in the central Mindanao provinces of Lanao del Norte, North Cotabato, and Maguindanao. At the height of the clashes from August to September, the National Disaster Coordinating Council estimated there were 110,517 IDP families or 528,693 IDP individuals in Mindanao, which had been reduced to 62,849 families or 308,175 persons by December 29. Other agencies, including the UN Development Program, the Mindanao Emergency Relief Network, and the Red Cross provided food and essential items such as medicine, blankets, water containers, and mosquito nets.
Protection of Refugees
The country is a party to the 1951 UN Convention relating to the Status of Refugees and its 1967 protocol; however, there is no comprehensive legislation that provides for granting refugee status or asylum. In practice the government provided protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened. The refugee unit in the DOJ determined which asylum seekers qualify as refugees; such determinations in practice implemented many of the basic provisions of the 1951 convention. The government also provided temporary protection to individuals who may not qualify as refugees under the 1951 convention or its 1967 protocol. As of August there were no reports of the government extending such protections.
The government cooperated with the UNHCR and other humanitarian organizations in assisting refugees. The UNHCR recorded 107 refugees in 2007.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The law provides citizens with the right to change their government peacefully, and citizens exercised this right through periodic elections that largely were free and fair and held on the basis of universal suffrage.
Elections and Political Participation
On August 11, more than 1.31 million of the 1.52 million registered voters from the six provinces that make up the ARMM elected a regional governor, a regional vice governor, and regional legislative district assemblymen. The Asian Network for Free Elections Foundation (ANFREL) noted the government's commitment to make the elections as free and fair as possible. However, there were allegations of fraud in some localities. ANFREL and other NGO monitors noted such irregularities as phantom and multiple voting, inadequate neutrality of voting staff, and vote buying. Monitors also claimed that many voters did not have sufficient education about the electronic voting machines used for the first time in this election.
The PNP and AFP recorded four election-related combat incidents during the ARMM elections, including a bomb explosion and three armed encounters with alleged MILF members. PNP personnel were under investigation in a ballot-theft incident in Shariff Kabunsuan, Maguindanao. MILF rebels were suspected as perpetrators in another ballot-theft incident in Sumisip, Basilan.
In May 2007 midterm elections were held for senators, representatives, provincial governors, and local government officials. Voter turnout was high; however, incidents of violence and allegations of fraud marred the generally free and fair conduct of elections.
In general political parties could operate without restriction.
There were no restrictions in law or practice on participation by women and members of minorities in politics. Many women, including the president, held positions of leadership and authority. There were four women in the 24-seat Senate and 51 women in the 240-seat House of Representatives. There were two women in the 22-member cabinet, six female associate justices on the 15 member Supreme Court, and 17 women among the 80 governors.
Along with many other citizens, Muslims argued that electing senators from a nationwide list favored established political figures from the Manila area, to the disadvantage of Muslims. Election of senators by region would require a constitutional amendment, which many Muslims and members of other groups underrepresented in the national legislature favored. There were no Muslim senators and no Muslim cabinet members. There were 11 Muslim members in the House of Representatives, mostly elected from Muslim-majority provinces.
Government Corruption and Transparency
The law provides criminal penalties for official corruption; however, the government did not implement the law effectively, and officials often engaged in corrupt practices with impunity. Both the government and the private sector have established a number of anticorruption bodies, including an ombudsman's office and an anticorruption court, and public officials were subject to financial disclosure laws. The government prosecuted 168 officials in 276 corruption cases from January to November. Convictions included the July 17 conviction of the governor of Samar Province and several provincial board members; the September 10 conviction of two Mindoro Oriental district representatives, a former vice governor, and former provincial board members; the September 11 conviction of a former mayor and former municipal treasurer in Kalinga Province; and the October 29 conviction of a former ARMM regional governor and two of his staff. The government pursued cases against high-ranking officials at the Government Service Insurance System and the Department of Environment and Natural Resources.
The law provides for the right to information on matters of public concern. However, denial of such information often occurred when the information related to an anomaly or irregularity in government transactions. Much government information was not available electronically and was difficult to retrieve.
Section 4 Governmental Attitude Regarding International and Nongovernmental
Investigation of Alleged Violations of Human Rights
A number of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were somewhat cooperative and responsive to their views. The CHR and, to some extent, the PNP responded to and investigated cases of human rights abuses, as requested by NGOs. Human rights activists continued to encounter occasional harassment, mainly from security forces or local officials from the area in which incidents under investigation took place. The Presidential Human Rights Committee did not include representation from NGOs, which some groups claimed reduced their ability to participate in the government's human rights initiatives.
The CHR is mandated to protect and promote human rights. It is empowered to investigate all human rights violations and to monitor the government's compliance with international human rights treaty obligations. The CHR has authority to make recommendations regarding military and higher-level police promotions. The commission has a chairperson and four members. CHR monitoring and investigating continued to be hamstrung by insufficient resources. Approximately one-third of the country's 42,000 barangays (villages) had human rights action centers, which coordinated with CHR regional offices; however, the CHR's regional and subregional offices remained understaffed and underfunded. The CHR nationwide budget for the year was 214.27 million pesos (approximately $4.82 million).
The CHR reported that armed men fired on CHR investigators in July during a field investigation in Linawan, Basilan. The CHR was pursuing an inquiry with the AFP, which denied its members were responsible for the incident. The CHR faced difficulty accessing military sites to conduct its searches for missing or detained persons. On September 16, the AFP refused entry to a joint CHR congressional delegation intending to visit prisoners at Fort Bonifacio near Manila.
The government cooperated with international organizations.
Section 5 Discrimination, Societal Abuses, and Trafficking in Persons
The law prohibits discrimination against women, children, and minorities; however, vague regulations and budgetary constraints hindered implementation of these protections.
Women
Rape, including spousal rape, is illegal, but enforcement was ineffective. Rape continued to be a problem, with most cases unreported. At year's end the PNP reported 3,549 rape cases, more than four times the 2007 figure. The increase may be attributable to improved reporting capability through women's and children's desks at police stations. There were reports of rape and sexual abuse of women in police or protective custody--often women from marginalized groups, such as suspected prostitutes, drug users, and lower-income individuals arrested for minor crimes.
Violence against women remained a serious problem. The law criminalizes physical, sexual, and psychological harm or abuse to women and their children committed by their spouses or partners. As of December the PNP reported 706 cases of wife battering and physical injuries. This number likely underreported significantly the level of violence against women.
A local women's support group noted that, in smaller localities, perpetrators of abuse sometimes used personal relationships with local authorities to avoid prosecution. On other occasions women who sought to file complaints through the police were told to pay special fees before their complaints could be registered.
The PNP and the Department of Social Welfare and Development (DSWD) both maintained help desks to assist victims of violence against women and to encourage the reporting of crimes. With the assistance of NGOs, officers received gender sensitivity training to deal with victims of sexual crimes and domestic violence. Approximately 9 percent of PNP officers were women. The PNP has a Women and Children's Unit to deal with these issues.
Prostitution is illegal but was a widespread problem. Many women suffered exposure to violence through their recruitment, often through deception, into prostitution. Penalties for prostitution are light, but detained prostitutes were sometimes subjected to administrative indignities and extortion. The DSWD continued to provide temporary shelter and counseling to women engaged in prostitution. Through year's end, DSWD provided temporary shelter and counseling to 103 women who were victims of involuntary prostitution. Some local officials discouraged the prosecution of those who exploited prostitutes. There were no convictions under the provision of the law criminalizing the act of engaging the services of a prostitute.
Sex tourism and trafficking in persons for sexual exploitation and forced labor were serious problems.
The law prohibits sexual harassment. However, sexual harassment in the workplace was widespread and underreported due to victims' fear of losing their jobs. Sexual harassment at a shoe factory in Muntinlupa City spurred unionization and a strike in July; in November management reinstated dismissed employees and recognized the workers' union.
Female employees in special economic zones were particularly at risk; most were economic migrants who had no independent workers' organization to assist with filing complaints. Women in the retail industry worked on three- to five month contracts and were often reluctant to report sexual harassment for fear their contracts would not be renewed. There were reports that some firms took action against female employees who became pregnant.
The law does not provide for divorce, although courts generally recognize the legality of divorces obtained in other countries if one of the parties is a foreign national. The government recognizes religious annulment, but the process can be costly, which precludes annulment as an option for many women. Many lower-income couples simply separated informally without severing their marital ties. The family code provides that in child custody cases resulting from annulment, illegitimacy, or divorce in another country, children under the age of seven are placed in the care of the mother unless there is a court order to the contrary. Children over the age of seven normally also remained with the mother, although the father could dispute custody through the courts.
In law, but not always in practice, women have most of the rights and protections accorded to men. Although they faced workplace discrimination, women continued to occupy senior positions in the workforce. In a January labor force survey, 57 percent of government officials, corporate executives, managers, and supervisors were women. The unemployment rate for women was 6.7 percent, while the rate for men was 7.8 percent.
The National Commission on the Role of Filipino Women, composed of 10 government officials and 11 NGO leaders appointed by the president, acted as an oversight body whose goal is to press for effective implementation of programs benefiting women.
Children
The government devoted considerable resources to the education, welfare, and development of children. The Department of Education's (DepEd) 12 percent share of the national budget was the largest of any cabinet department. Nevertheless, children faced serious problems.
Elementary and secondary education is free and compulsory through age 11, but the quality of education remained poor. During the year according to DepEd figures, the estimated annual per pupil expenditure for basic education was 7,789 pesos (approximately $175). The public school enrollment rate was 76 percent. According to the 2007 UNICEF Mid-Term Review, boys were more likely than girls to drop out of school.
Child abuse remained a problem. Through year's end, DSWD offices served 5,663 victims of child abuse, of whom 70 percent were girls. Approximately 50 percent of the girls were victims of sexual abuse, while 3 percent were victims of sexual exploitation. Several cities ran crisis centers for abused women and children. The problem of foreign pedophiles continued, and the government continued to prosecute accused pedophiles vigorously. Some children also were victims of police abuse while in detention for committing minor crimes.
Child prostitution continued to be a serious problem. During the year, the DOLE ordered the closure of two establishments in the cities of Cebu and Lapu-Lapu for allegedly prostituting minors. Trials in these cases continued at year's end. One NGO reported that pornographers forced some children to engage in pornographic activity.
The NPA and ASG continued to recruit minors both as combatants and noncombatants (see section 1.g.).
The government estimated that there were at least 22,000 street children nationwide, while UNICEF estimated that there were approximately 250,000 street children. Many street children appeared to be abandoned and engaged in scavenging or begging. At year's end DSWD provided services to 238 street children nationwide. NGOs reported that some children engaged in petty crime were targets of vigilante groups (see section 1.a.).
A variety of national executive orders and laws provide for the welfare and protection of children. Police stations have child and youth relations officers to ensure that child suspects are treated appropriately. However, procedural safeguards were often ignored in practice. The BJMP stated that 4,213 minors were held on "preventive detention" while their trials were underway, and an additional 130 children, convicted from January to November, were serving sentences. Many child suspects were detained for extended periods without access to social workers and lawyers and were not segregated from adult criminals. NGOs believed that children held in integrated conditions with adults were highly vulnerable to sexual abuse, recruitment into gangs, forced labor, torture, and other ill treatment. There were also reports that many children detained in jails appeared to have been arrested without warrants.
During the year government agencies and NGOs transferred 69 minor prisoners to DSWD rehabilitation centers and continued to work to secure the release of minors wrongfully imprisoned and of those below 15 years of age. DSWD ran 11 regional youth rehabilitation centers for juvenile offenders. There were three detention centers for children in Manila.
Trafficking in Persons
Trafficking in persons is prohibited under the law, which defines several activities related to trafficking in persons as illegal and imposes stiff penalties--up to life imprisonment--for convicted offenders. Nonetheless, trafficking remained a serious problem. The country was a source, transit point, and destination for men, women, and children trafficked for the purposes of sexual exploitation and forced labor. A significant number of men and women who migrated abroad for work were subjected to conditions of involuntary servitude in the Middle East, North America, and other parts of Asia. Women were trafficked abroad for commercial sexual exploitation, primarily to Japan, Malaysia, Singapore, Hong Kong, South Korea, and countries in the Middle East and Western Europe. Women and children were also trafficked within the country, primarily from rural areas to urban areas for forced labor as domestic workers and factory workers and for sexual exploitation. A smaller number of women were occasionally trafficked from China, South Korea, Japan, and Russia to the country for sexual exploitation. Child sex tourism continued to be a serious problem, with sex tourists coming from Northeast Asia, Europe, and North America to engage in sexual activity with minors.
Both adults and children were trafficked domestically from poor, rural areas in the southern and central parts of the country to major urban centers, especially Metro Manila and Cebu, but also increasingly to cities in Mindanao. A significant percentage of the victims of internal trafficking were from Mindanao and were fleeing the poverty and violence in their home areas. Approximately 75 percent of the trafficking victims provided with temporary shelter and counseling by the NGO Visayan Forum Foundation were from Mindanao. The Visayan region was also a source of trafficking victims. Women and girls were far more at risk of becoming victims of trafficking than men and boys.
Traffickers targeted persons seeking overseas employment. An estimated eight million Filipinos worked overseas, approximately 10 percent of the population and 20 percent of the workforce. Most recruits were females ages 13 to 30 from poor farming families. The traffickers generally were private employment recruiters and their partners in organized crime. Many recruiters targeted persons from their own hometowns, promising respectable and lucrative jobs.
Although the government pursued trafficking cases under the antitrafficking law as well as other related laws, its efforts were hampered by slowness of the courts, resource constraints within law enforcement agencies, corruption, and general inefficiency of the judicial system.
The DOJ assigned responsibility to 20 prosecutors who, in addition to their regular workloads, also handled the preliminary investigation and prosecution of trafficking cases at the national level. There were 95 prosecutors at the regional, provincial, and municipal levels with similar responsibilities for trafficking. The principal investigative agencies were the National Bureau of Investigation, the Bureau of Immigration, the Philippine Center for Transnational Crimes, and the PNP's Criminal Investigation and Detection Group, with the participation of other members of the Interagency Council Against Trafficking. The government cooperated with international investigations of trafficking. The ombudsman created a task force for trafficking-related corruption cases. Corruption among law enforcement agents remained a particular obstacle to better antitrafficking performance. It was widely believed that some government officials were involved in, or at least permit, trafficking operations within the country.
On June 30, a woman was convicted and sentenced to life imprisonment for trafficking seven minors for sexual exploitation. On October 10, a Zamboanga City court sentenced a human trafficker to 30 years in prison for the 2004 illegal recruitment and trafficking of two women to Malaysia. On November 28, the Paranaque regional trial court fined and sentenced two traffickers to 20 years in prison for trafficking four minors in Albay Province. On December 4, a court acquitted an accused trafficker charged with transporting minors with the intent of forcing them into prostitution because the minors were rescued before they were actually forced into prostitution. From January to November, 162 new cases of trafficking were filed for prosecution, of which 37 were pending trial. A high vacancy rate among judges, among other factors, significantly slowed trial times.
Victims faced exposure to sexually transmitted or other infectious diseases and were vulnerable to beatings, sexual abuse, and humiliation.
There was anecdotal evidence that some lower-level officials such as customs officers, border guards, immigration officials, local police, or others received bribes from traffickers or otherwise facilitated trafficking. On September 17, an officer of the Bureau of Immigration at Ninoy Aquino International Airport was apprehended for her alleged role in aiding the trafficking of 17 Mindanao minors to Syria and Jordan. On October 22, a city prosecutor dismissed the charge against the officer for insufficient evidence, but filed trafficking charges against two accomplices. The government expanded trafficking awareness training to include officials at international ports of entry and developed standard operating procedures for trafficking task forces at these entry points.
The government increased efforts to protect victims of trafficking, although it continued to rely on NGOs and international organizations to provide services to victims. Victims were not penalized for any crimes committed as a direct result of being trafficked. The government, in conjunction with NGO partners, assisted victims by providing temporary residency status and relief from deportation; shelter; and access to legal, medical, and psychological services. Through December DSWD provided temporary shelter and social services to 153 women and 153 juvenile victims of trafficking. Additional protective services included hot lines for reporting cases and the operation of 24 hour halfway houses in 13 regions of the country to assist victims.
The government rarely deported or charged victims of trafficking with crimes; however, police sometimes charged women in prostitution with vagrancy. There were no reliable statistics indicating whether these individuals were victims of trafficking.
Victims may file civil suits or seek legal action against traffickers. Most victims who chose to do so filed charges of illegal recruitment. The government actively encouraged victims to assist in the investigation and prosecution of trafficking and related crimes. The NGO International Justice Mission (IJM), employing private investigators and lawyers, coordinated with the government in an effort to increase the number of prosecutions on behalf of victims of trafficking and commercial sexual exploitation. Cases were prosecuted in coordination with DOJ prosecutors. IJM initiated 41 cases under the antitrafficking in persons law, and 18 of these cases were pending.
Numerous government agencies and officials, as well as NGOs and international organizations, continued to support public information campaigns against trafficking. The government supported programs to prevent trafficking, such as the promotion of women's participation in economic decision making and efforts to keep children in school. The government provided skills training to women, lessening the need for them to go to urban centers or overseas for employment. However, funding remained limited.
Persons with Disabilities
The constitution prohibits discrimination against persons with disabilities in employment, education, access to health care, and other social services. The law provides for equal physical access for persons with both physical and mental disabilities to all public buildings and establishments. The National Council for the Welfare of Disabled Persons formulates policies and coordinates the activities of all government agencies for the rehabilitation, self-development, and self-reliance of persons with disabilities and their integration into the mainstream of society. The DOLE's Bureau of Local Employment (BLE) maintained registers of persons with disabilities indicating their skills and abilities. BLE monitored private and public places of employment for violations of labor standards regarding persons with disabilities and also promoted the establishment of cooperatives and self-employment projects for persons with disabilities. One NGO reported that the government had limited means to assist persons with disabilities in finding employment, and such persons had limited recourse when their rights were violated because of the financial barriers to filing a lawsuit.
DSWD operated two assisted living centers in Metro Manila, and five community based vocational centers for persons with disabilities nationwide. Assisted-living centers were understaffed and underfunded. At year's end the DSWD provided services to 1,869 persons with disabilities.
Advocates for persons with disabilities contended that equal access laws were ineffective because implementing regulations were weak, funding was insufficient, and government programs were inadequately focused on integration. Many public buildings, particularly older ones, lacked functioning elevators. Many schools had architectural barriers that made attendance difficult for persons with disabilities.
Government efforts to improve access to transportation for persons with disabilities were limited. Two of Manila's three light-rail lines were wheelchair accessible; however, many stops had unrepaired, out-of-service elevators. Buses lacked wheelchair lifts, and there were reports of taxi drivers who failed to stop for passengers in wheelchairs. A small number of sidewalks had wheelchair ramps, which were often blocked, crumbling, or too steep. The situation was worse in many smaller cities and towns. One NGO claimed that private transportation providers, such as taxis, often overcharged persons with disabilities or refused service.
The constitution provides for the right of persons with physical disabilities to vote; however, persons with mental disabilities are disqualified from voting. Persons with physical disabilities are allowed to vote with the assistance of a person of their choice. In practice many persons with disabilities did not vote because of the above barriers.
Indigenous People
Indigenous people lived throughout the country but primarily in the mountainous areas of northern and central Luzon and in Mindanao. They accounted for approximately 14 million or 16 percent of the national population, with over 34 percent of the total in Mindanao. Although no specific laws discriminate against indigenous people, the remoteness of the areas that many inhabit as well as cultural bias prevented their full integration into society. Indigenous children suffered from lack of health, education, and other basic services. NGOs estimated that up to 70 percent of indigenous youth left or never attended school because of the discrimination they experienced.
Indigenous people suffered disproportionately from armed conflict, including displacement from their homes, because they often inhabited mountainous areas favored by guerrillas. Their lands were often the sites of armed encounters, and various parties to the fighting recruited many indigenous people.
A National Commission on Indigenous People (NCIP), staffed by tribal members, implemented constitutional provisions to protect indigenous people. During the year NCIP had a budget of 587 million pesos (approximately $13.2 million). At year's end the NCIP had awarded Certificates of Ancestral Land and Ancestral Domain Titles covering over 2.67 million acres of land claimed by indigenous people. It awarded such "ancestral domain lands" on the basis of communal ownership, stopping sale of the lands by tribal leaders. The law requires a process of informed consultation and written consent by the indigenous group to allow mining on tribal lands and assigns indigenous groups the responsibility to preserve their domains from environmentally inappropriate development. Some NGOs expressed concern that the law was not adequately enforced and that the rights of indigenous communities, including the right to prior consent, were not always protected.
Other Societal Abuses and Discrimination
There was some societal discrimination based on sexual orientation, including in employment and education.
The law prohibits all forms of discrimination against persons with HIV/AIDS and provides basic health and social services for these persons. However, there was some evidence of discrimination against HIV/AIDS patients in the provision of health care, housing, and insurance services. The rate of HIV/AIDS remained low, although the rate of infection was believed to be underreported. Overseas workers were required to participate in an HIV/AIDS class as part of a predeparture orientation seminar.
Section 6 Worker Rights
a. The Right of Association
The law provides for the right of workers, including most public employees, with the exception of the military and the police, to form and join trade unions. Trade unions are independent of the government. Unions have the right to form or join federations or other labor groups.
At year's end the Bureau of Labor Relations reported 141 registered labor federations and 15,537 private sector unions. The 1.9 million union members represented approximately 5 percent of the total workforce of 36.45 million. The number of firms using contractual labor, primarily large employers, continued to grow. There were 1,693 public sector unions, with a total membership of 352,182 or approximately 20 percent of the total employed persons in the public sector.
In May 2007 a new labor law lowered the requirements for union registration. On November 8, the DOLE issued the implementing rules and regulations for this law.
The International Trade Union Confederation (ITUC) and other labor rights advocacy groups expressed concern at killings, abductions, and other attacks on labor leaders and supporters and urged the government to increase efforts in investigating these attacks. Through December, the Center for Trade Union and Human Rights (CTUHR) documented three cases of killings, including the March 10 killing of labor leader Gerry Cristobal in Cavite (see section 1.a.), the July 19 killing of former chairperson of the Compostela Workers Association, Maximo Baranda, and the November 10 killing of worker's advocate and Bayan Muna coordinator Rolando Antolihao in Compostela. Apart from this, the CTUHR documented 32 cases of threats, harassment, and intimidation affecting 479 workers and labor advocates, 11 cases of physical assault, and five cases of violent dispersal of protests.
During the year the International Labor Organization (ILO) Committee on Freedom of Association (CFA) issued decisions on two cases and pursued investigations in three other cases, including a 2006 complaint by a labor federation alleging human rights violations, for which a government response to the ILO inquiry was still pending.
Subject to procedural restrictions, strikes in the private sector are legal; however, unions are required to provide strike notice, respect mandatory cooling-off periods, and obtain majority member approval before calling a strike. By law, the reason for striking must be relevant to the labor contract or the law, and all means of reconciliation must have been exhausted. The DOLE secretary may intervene in some labor disputes by assuming jurisdiction and mandating a settlement if the secretary decides that the company affected by the strike is vital to the national interest. Labor rights advocates criticized the government for intervening in labor disputes in sectors that were not vital to the national economy. In August the National Labor Relations Commission (NLRC) issued a temporary restraining order against striking workers and members of the Associated Labor Union-Trade Union Congress of the Philippines who were protesting against Gaisano Capital South and Gaisano Capital Mactan the day after the management asked the agency to intervene. In November, citing the company's contribution to the national economy, the secretary of labor intervened to prevent workers at garment maker and exporter Triumph International from going on strike.
Government workers are prohibited from joining strikes under threat of automatic dismissal. Government workers may file complaints with the Civil Service Commission, which handles administrative cases and arbitrates disputes between workers and their employers. In August the Pampanga governor dismissed some 40 workers at a government-owned quarry after they staged a second strike over alleged administrative irregularities. At year's end the workers had not been reinstated.
The DOLE reported five strikes involving 1,115 workers from January to September. The American Center for International Labor Solidarity reported four strikes involving 910 workers.
In June at least 13 workers at Hanjin Garments Inc; a Korean owned firm located in Cabuyao, Laguna, were injured and four others arrested following dispersal by local authorities. Workers sought to regularize the employment status of contractual workers who had worked at the company for several years.
Although the labor code provides that union officers who knowingly participate in an illegal strike may be dismissed and, if convicted, imprisoned for up to three years, there has never been a conviction under this provision.
b. The Right to Organize and Bargain Collectively
The law provides for the right to organize and bargain collectively. The labor code provides for this right for employees both in the private sector and in corporations owned or controlled by the government. A similar right is afforded to most government workers. Collective bargaining was practiced; however, it was subject to hindrance and union leaders may be subject to reprisal. International labor organizations noted that collective bargaining in the public sector was limited. Through year's end the total number of private- and public sector workers covered by collective bargaining agreements was recorded at 282,683 (approximately 14.5 percent of union members and less than 1 percent of the total workforce).
Allegations of intimidation and discrimination in connection with union activities are grounds for review before the quasi judicial NLRC as possible unfair labor practices. Before disputes reach the NLRC, the DOLE provides the services of a mediation board, which settles most of the unfair labor practice disputes raised as grounds for strikes before the strikes may be declared. The DOLE, through the mediation board, also worked to improve the functioning of labor-management councils in companies that already had unions.
Management dismissal or threatened dismissal of union members was common. In September approximately 65 union executive officers and members working through a contractor for a gold mining company were dismissed a few days before a DOLE-scheduled union certification election. In August the contractor allegedly forced members of the union to sign a termination letter although they had a contract to work through October.
In March the CFA responded to a 2007 complaint by several union members at the Technical Education Services and Development Authority (TESDA) regarding the members' work-transfer orders and their subsequent dismissal from TESDA. The committee requested the government to reinstate the workers and provide compensation. Conflicting decisions in 2007 from the Civil Service Commission called for the reinstatement of the workers but also approved TESDA's decision to dismiss them. In December a court of appeals ruled in favor of TESDA management. A union representative said the organization would appeal that decision to the Supreme Court.
Labor groups alleged that companies in Special Economic Zones (SEZs) used frivolous lawsuits as a means of harassing union leaders. Labor groups reported that firms used bankruptcy as a reason for closing and dismissing workers.
Labor law applies uniformly throughout the country, including in SEZs; however,
local political leaders and officials who governed the SEZs attempted to frustrate union organizing efforts by maintaining union-free or strike-free policies. The ITUC in its 2007 Annual Survey maintained that the DOLE was unable or unwilling to enforce labor law in the SEZs. A conflict over interpretation of the SEZ law's provisions for labor inspection further obstructed the enforcement of workers' rights to organize. The DOLE can conduct inspections of SEZs and establishments located there, although local zone directors claimed authority to conduct their own inspections as part of the zones' privileges intended by congress. Hiring often was controlled tightly through SEZ labor centers. Union successes in organizing in the SEZs have been few and marginal in part due to organizers' restricted access to the closely guarded zones and the propensity among zone establishments to adopt fixed-term, casual, temporary, or seasonal employment contracts.
Labor groups claimed that government security forces stationed near industrial areas were intended to intimidate workers attempting to organize.
c. Prohibition of Forced or Compulsory Labor
The law prohibits forced labor, including forced and compulsory labor by children; however, there were some reports of forced and compulsory labor, particularly by children, mainly in prostitution, drug trafficking, domestic service, and other areas of the informal sector (see sections 5 and 6.d.).
d. Prohibition of Child Labor and Minimum Age for Employment
The law prohibits the employment of children under the age of 15, except under the direct and sole responsibility of parents or guardians or in cases in which employment in cinema, theater, radio, or television is essential to the integrity of the production. The law allows employment of those between the ages of 15 and 18 for such hours and periods of the day as are determined by the DOLE secretary but forbids the employment of persons less than 18 years of age in hazardous or dangerous work. However, child labor remained a common problem, and a significant number of children were employed in the informal sector of the urban economy as domestic workers or as unpaid family workers in rural agricultural areas--some as bonded laborers. The government estimated that there were approximately four million working children, an estimated half of whom were exposed to hazardous working environments, in industries such as quarrying, mining, deep sea fishing, pyrotechnic production, and agriculture, especially sugar cane plantations.
Most child labor occurred in the informal economy, often in family settings. The government, in coordination with a number of domestic NGOs and international organizations, implemented programs to develop safer options for children, return them to school, and offer families viable economic alternatives to child labor. Although the government made attempts to devote more resources to child labor programs during the year, resources remained inadequate.
The government and NGOs implemented programs to prevent the engagement of children in exploitive child labor; they educated communities on child labor and provided counseling and other activities for children. The DOLE and the DepEd worked with NGOs to assist children to return to school, and UNICEF and the ILO continued to work with the government on programs for the reduction of child labor. The government also imposed fines and instituted criminal prosecutions for child labor violations in the formal sector, such as in manufacturing. The trial continued for a Metro Manila garment factory that employed 10 child laborers. The DOLE continued its efforts to remove child workers from hazardous situations. From January to June, the DOLE conducted 16 rescue operations, removing 59 minors.
e. Acceptable Conditions of Work
The national minimum wage did not provide a decent standard of living for a worker and family. Tripartite regional wage boards set minimum wages, and they increased minimum wages slightly during the year. Under a new law, minimum wage earners are exempt from paying income tax. The highest minimum wage rates were in the National Capital Region, where the minimum daily wage for nonagricultural workers was 382 pesos ($8.59). The lowest minimum wage rates were in the Southern Tagalog Region, where daily agricultural wages were 187 pesos ($4.20). The regional wage board orders covered all private sector workers except domestic servants and others employed in the service of another person. Boards exempted some newly established companies and other employers from the rules because of factors such as business size, industry sector, export intensity, financial distress, and level of capitalization. These exemptions excluded substantial numbers of workers from coverage under the law. Through year's end the regional wage boards granted minimum wage exemption applications to 256 establishments, a 48 percent increase over 2007. Unions have filed complaints about the minimum wage exemption policies.
Violation of minimum wage standards and the use of contract employees to avoid the payment of required benefits were common, including in the government-designated SEZs, where tax benefits were used to encourage the growth of export industries. According to a year-end Bureau of Working Conditions report, 11,531 of 26,169 inspected firms were found to have violated labor or occupational safety and health standards. Many firms hired employees for less than the minimum apprentice rates, even if there was no approved training in their production-line work. The DOLE inspects establishments that employ 10 to 199 workers to determine compliance with national labor laws and international core labor standards. Establishments employing 200 or more persons and unionized establishments with collective bargaining agreements are subject to a self-assessment of compliance with labor standards. The DOLE provided training and advisory services to enterprises with less than 10 workers to help them comply with national labor laws and core labor standards. At year's end, 18 percent (4,664 out of 26,169) of commercial establishments inspected by the DOLE were not in compliance with the prevailing minimum wage. The DOLE acknowledged that the shortage of inspectors made it difficult to enforce the law. In addition to fines, the government also used administrative procedures and moral suasion to encourage employers to rectify violations voluntarily. Complaints about nonpayment of social security contributions, bonuses, and overtime were particularly common with regard to companies in SEZs.
By law the standard legal workweek is 48 hours for most categories of industrial workers and 40 hours for government workers, with an eight-hour per day limit. The government mandates an overtime rate of 125 percent of the hourly rate on ordinary days and 130 percent on rest days and holidays. The law mandates one day of rest each week. However, there is no legal limit on the number of overtime hours that an employer may require. The DOLE conducted only sporadic inspections to enforce limits on workweek hours. From January to December, 153 DOLE labor inspectors made 26,169 inspections to check on companies' compliance with general labor and working standards. Labor groups maintained that forced overtime was common.
On January 22, the DOLE in the Southern Tagalog region ordered a Korean-owned garment factory to pay back wages, but, by May 1, only a portion of the workers had been paid.
The law provides for a comprehensive set of occupational safety and health standards. The DOLE has responsibility for policy formulation and review of these standards, but with too few inspectors nationwide, local authorities often must carry out enforcement. The DOLE continued a campaign to promote safer work environments in small enterprises. Statistics on actual work related accidents and illnesses were incomplete, as incidents (especially in agriculture) were underreported. At year's end the DOLE conducted inspections of 7,129 establishments on occupational safety standards compliance, 6,353 or 80 percent of which were able to comply upon inspection. Workers do not have a legally protected right to remove themselves from dangerous work situations without risking loss of employment.
There were work-related deaths and injuries during the year, including the death of five employees and injury of eight others at Hanjin Heavy Industries, a shipbuilding firm in Subic Bay. An investigation by the Subic Bay Metropolitan Authority revealed several safety lapses.
The government and several NGOs worked to protect the rights of the country's overseas citizens, most of whom were temporary or contract workers. The government placed financial sanctions on and criminal charges against domestic recruiting agencies found guilty of unfair labor practices. Although the POEA registered and supervised domestic recruiters' practices successfully, the authorities sometimes lacked sufficient resources to ensure workers' protection overseas. It sought cooperation from receiving countries and proposed migrant worker rights conventions in international forums. The government also provided assistance through its diplomatic missions in countries with substantial numbers of migrant workers.
In November trade unions called on the POEA to eliminate a provision in POEA's sample contract that lists involvement in trade union activities as a valid reason for terminating employment. The POEA subsequently removed the sample contract from its Web site.
The labor laws protect foreign workers in the country. Foreign workers must obtain work permits and may not engage in certain occupations. Typically their work conditions were better than those faced by citizens. They are not allowed to join or form unions.
See: http://www.state.gov/g/drl/rls/hrrpt/2008/eap/119054.htm)
The Court’s spokesman said the problem was due to lack of resources and the judicial structure itself.
However, the Court had responded to these concerns via new judicial remedies like the writ of amparo and writ of habeas data to protect the people’s civil and political rights.
Further, in a period of eight months, some 1,000 inmates had been released after their cases were heard in the Expanded Justice on Wheels program, while another 5,000 had been settled.
Moreover, the Court had issued the new rule of procedure on small claims cases and the new rule on mandatory legal aid service to empower the poor.
The Court had also been vigilant and strict against corrupt members of the judiciary and the bar.
In contrast, the reaction of the Executive Branch, through Justice Secretary Raul Gonzalez, was acerbic and arrogant. He dared the US State Department to show proof of alleged widespread corruption and inefficiency in the Philippine judicial system.
A usual escape route of corrupt, lazy and complacent government officials suffering from the grave mental disease called denial syndrome.
The justice secretary alleged that the US State Department was obviously trying to besmirch the image of the Philippines.
He urged the Department of Foreign Affairs to protest the US report.
He stated that US State Department should not compare the pace of legal processes in the Philippines with those of the United States because the US was using the jury system where evidence was no longer examined by the judge.
He blamed foreign and domestic media for the very poor image of the Philippine Government.
(See: http://www.philstar.com/Article.aspx?articleid=444209).
For legal research purposes of the visitors of this blog, and to let the general public decide for itself the truth on the matter, may I reproduce verbatim hereinbelow the US State Department’s controversial 2008 Report on the State of Human Rights in the Philippines.
For the record, may I vehemently state that as far as I am concerned, notwithstanding the so-called representative democratic system of the Philippines (which, by the way, is a huge hypocritical and fraudulent political racket), the state of human rights in the Philippines is extremely dismal and patently shameful, at best, if we contrast the same with the letter and spirit of the 1948 United Nations declaration on human rights and the 1966 international conventions on civil and political rights and on economic, social, and cultural rights.
Anyway, read the verbatim report below. And let your conscience decide.
2008 Human Rights Report: Philippines
Bureau of Democracy, Human Rights, and Labor
2008 Country Reports on Human Rights Practices
February 25, 2009
The Philippines, with a population of 89 million, is a multiparty republic with an elected president and bicameral legislature. In May 2007 approximately 73 percent of registered citizens voted in mid-term elections for both houses of congress and provincial and local governments. The election generally was free and fair but was marred by violence and allegations of vote buying and electoral fraud. Long-running Communist and Muslim insurgencies affected the country. Civilian authorities generally maintained effective control of the security forces; however, there were some instances in which elements of the security forces acted independently.
Arbitrary, unlawful, and extrajudicial killings by elements of the security services and political killings, including killings of journalists, by a variety of actors continued to be major problems. In recent years, following increased domestic and international scrutiny, reforms were undertaken and the number of killings and disappearances dropped dramatically. Concerns about impunity persisted. Members of the security services committed acts of physical and psychological abuse on suspects and detainees, and there were instances of torture. Prisoners awaiting trial and those already convicted were often held under primitive conditions. Disappearances occurred, and arbitrary or warrantless arrests and detentions were common. Trials were delayed, and procedures were prolonged. Corruption was a problem throughout the criminal justice system. Leftwing and human rights activists often were subject to harassment by local security forces. Problems such as violence against women, abuse of children, child prostitution, trafficking in persons, child labor, and ineffective enforcement of worker rights were common.
In addition to killing soldiers and police officers in armed encounters, the New People's Army (NPA)--the military wing of the Communist Party (CPP)--killed local government officials and ordinary civilians. There were reports that the Moro Islamic Liberation Front (MILF) and the terrorist groups NPA and Abu Sayyaf Group (ASG) used child soldiers in combat or auxiliary roles. Terrorist groups committed bombings that caused civilian casualties.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
Security forces and antigovernment insurgents committed a number of arbitrary and unlawful killings. The Commission on Human Rights (CHR), an independent government agency, investigated 173 new complaints of killings that occurred during the year; 67 of these cases were classified as politically motivated. The CHR suspected personnel from the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) in a number of the killings of leftist activists operating in rural areas. Allegations of summary executions by government security forces were referred to the nongovernmental organization (NGO) Task Force Detainees of the Philippines (TFDP). The TFDP was unable to investigate all of these allegations, but it alleged the summary execution of four individuals by government forces.
Through year's end, the PNP Task Force Usig recorded 146 cases of killings since 2001, six of which occurred during the year; 90 cases were filed in court, with one conviction during the year. At least one human rights organization, Karapatan, claimed that there have been more than 900 killings since 2001, with both state actors and nonstate actors as suspects. It recorded 69 victims of killings during the year.
During the year the PNP expanded human rights training and possessed a network of 1,636 human rights desk officers at the national, regional, provincial, and municipal levels. The chief justice noted that the writ of "amparo," which provides citizens with the court's protection, contributed to a reduction in killings.
However, human rights groups and the CHR noted little progress in implementing and enforcing some reforms. For example, cooperation and coordination between police and prosecutors continued to be a problem. Funding for the CHR and the government witness protection programs was considered inadequate.
Arbitrary and unlawful killings through August included:
• On January 23, two unidentified men shot and killed United Church of Christ Pastor Felomino Catambis in Abuyog, Leyte. The CHR was investigating the case at year's end.
• On February 4, seven civilians and an off-duty soldier were killed in an AFP raid on alleged ASG forces in Maimbung, Sulu. Following an investigation, the CHR in Western Mindanao filed a case against the soldiers with the Deputy Ombudsman for the
Military, which was pending at year's end.
• On March 10, unidentified assailants shot and killed Solidarity of Cavite Workers' official Gerry Cristobal in Imus, Cavite. Cristobal was a former union president and a critic of provincial policies that were viewed by unions as limiting the right of workers to organize and strike. The case remained under investigation at year's end.
• On May 15, three unidentified suspects shot and killed the secretary general of Davao City Farmers Association, Celso Pojas. The CHR provisionally dismissed the case due to insufficient evidence.
A prosecutor dismissed the case against the suspects in the January 2007 killing of university professor and human rights advocate Jose Maria Cui for insufficient evidence. The case was re-filed on May 19.
Investigations of cases from 2006 and 2007 were ongoing.
On May 21, the AFP surrendered one of its members to the National Bureau of Investigation (NBI) in connection with the 2005 killing of union leader Ricardo Ramos. The suspect pleaded not guilty during his August 6 arraignment.
On June 12, a regional trial court judge sentenced a member of the AFP, Joel Flores, to 41 years' imprisonment for his involvement in the 2006 killing of community leader Jose Doton. At year's end Flores was appealing his conviction.
Government forces killed a number of civilians during clashes with armed groups. Terrorist groups killed and kidnapped NGO workers and other civilians. Communist insurgents, mainly from the NPA, continued to kill political figures, military and police officers, and civilians, including suspected military and police informers. Extortion groups associated with the ASG killed persons in bombings (see section 1.g.).
Ruben Omar Pestano Lavilla, Jr., a leader of the terrorist Rajah Solaiman Movement wanted in connection with 2004 Superferry bombing and the 2005 Valentine's Day bombings, was deported from Bahrain to the Philippines on August 30.
Vigilante groups were suspected of conducting summary killings of adult criminals and children involved in petty crime in five major cities. The TFDP recorded 80 apparent vigilante killings in Davao City through 2007, and confirmed at least one such killing during the year. Another human rights group noted that local activists in Davao City counted more than 100 summary killings from January through November. Vigilante killings also allegedly occurred in Cebu City, Cagayan de Oro, Tagum City, and General Santos City. The victims were suspected of involvement in criminal activities, and the killings appeared to have popular support. Authorities made no arrests in these cases.
In April UN Special Rapporteur Philip Alston issued a report based on his February 2007 mission. Among other findings, the report noted that the government's counterinsurgency strategy presumed some civil society groups had ties to the CPP or the NPA and led security forces to treat leftist leaders and community organizers as legitimate targets.
b. Disappearance
According to local human rights NGOs, government forces were responsible for disappearances. By year's end the CHR investigated 20 new cases of enforced disappearances, abductions, and kidnappings involving 27 victims, some of whom were found to have been detained without a warrant (see section 1.d.). Of the 20 cases, one was referred to the deputy ombudsman for the military, 16 were still under investigation, and three were either dismissed or closed. The NPA was implicated in two cases, members of the military and police were implicated in nine cases, and unidentified suspects were involved in the others. The NGO Families of Victims of Involuntary Disappearances (FIND) was monitoring four reported disappearance cases, whose victims had not been found, and those investigations continued.
On September 17, indigenous rights activist and Cordillera People's Alliance (CPA) founding member James Balao was abducted while in transit between Baguio City and La Trinidad in Benguet Province. Balao's family and members of the CPA claimed he was being held captive by members of the military. At year's end a court had not yet issued a decision on the writ of amparo petition filed in October.
On October 7, the Supreme Court upheld the writ of amparo granted to Raymond and Reynaldo Manalo by a court of appeals in December 2007. The Manalo brothers testified that beginning in 2006 they were held incommunicado and at times tortured by members of the AFP until they finally escaped in August 2007. During their detention their family filed a number of habeas corpus petitions in courts, but responsible AFP officers denied any involvement in their disappearance. The Manalos further testified that at times they shared detention with other persons who had disappeared, notably University of the Philippines students Sherlyn Cadapan and Karen Empeno and their companion, Manuel Marino. Raymond Manalo testified that he witnessed the killing of Marino and the subsequent burning of his body. The Manalos' testimony implicated members of a division and battalion of the AFP, a sergeant, and a major general, among others.
On July 17, a court of appeals dismissed a petition for a writ of amparo in the April 2007 abduction of activist Jonas Burgos. During the year courts also dismissed other petitions for protective writs. On September 17, a court of appeals granted petitions for writs of amparo and habeas corpus filed against the military for the June 2006 abduction case of the University of the Philippines students and their associate.
Some victims' families complained that the courts and police failed to address adequately their complaints concerning disappearances in which security forces were suspected. Evidence of a kidnapping or killing is required to file charges. FIND and other NGOs continued to support the efforts of victims' families to press charges. In most cases, evidence and documentation were unavailable, and convictions were rare. Out of 16 court cases related to disappearances of concern to FIND, only one case was resolved during the year. On July 18, a regional trial court in Agusan del Sur convicted AFP Corporal Rodrigo Billones for his role in the October 2000 abduction and illegal detention of six workers of Paper Industries Corporation of the Philippines. The judge sentenced the defendant to a minimum of 54 years in prison and fined him for moral damages.
Judicial inaction on the vast majority of disappearances contributed to a climate of impunity and undermined public confidence in the justice system.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The constitution prohibits torture, and evidence obtained through its use is inadmissible in court; however, members of the security forces and police were alleged to have routinely abused and sometimes tortured suspects and detainees. The CHR provided the police with mandatory human rights training. The CHR noted that senior PNP officials appeared receptive to respecting the human rights of detainees, but rank-and-file awareness of the rights of detainees remained inadequate.
Human rights groups, including the CHR, noted that excessive force and torture remained an ingrained part of the arrest and detention process. Common forms of abuse during arrest and interrogation reportedly included electric shock, cigarette burns, or suffocation.
Through year's end the TFDP documented 12 cases of torture involving 16 victims. For the same period, the CHR investigated 23 cases of alleged torture. Most of the suspects in these cases were members of the AFP.
The CHR continued to observe greater sensitivity within the AFP to the need to prevent human rights violations. The CHR is required to determine whether an AFP officer or a PNP officer at the senior superintendent level being considered for promotion had a history of human rights violations; however, a negative CHR finding does not preclude promotion. In some instances promotions were withheld indefinitely when the CHR uncovered a record of human rights abuses. The AFP stated that it withheld some promotions on human rights grounds during the year.
On May 2, members of the military allegedly harassed and tortured four indigenous farmers, including one minor, in Compostella Valley Province. The case remained under investigation by the CHR.
On August 31, provincial police and the Regional Special Operations Group allegedly abducted, harassed, and tortured nine members of the Cavite Farmers' Confederation.
The farmers were charged with illegal possession of firearms but were released on September 2 for lack of evidence.
There were reports that prison guards physically abused inmates. The CHR and TFDP reported that abuse by prison guards and other inmates was common, but prisoners, fearing retaliation, refused to lodge formal complaints. Women in police custody were particularly vulnerable to sexual and physical assault by police and prison officials. Human rights activists believed suspected ASG and NPA members in captivity were particular targets for abuse.
Prison and Detention Center Conditions
Prison conditions were rudimentary and sometimes harsh. Provincial jails and prisons were overcrowded, lacked basic infrastructure, and provided prisoners with an inadequate diet. Jails managed by the Bureau of Jail Management and Penology (BJMP) operated at an average of 191 percent of designed capacity, an improvement over the previous year owing to prison decongestion efforts. Prison administrators allotted a daily subsistence allowance of 50 pesos (approximately $1.12) per prisoner. Lack of potable water, poor sanitation, and poor ventilation continued to cause health problems. Some prisoners, including women and children, were abused by other prisoners and prison personnel. The slow judicial process exacerbated overcrowding.
There were reports of widespread corruption among prison guards and, to some extent, at higher levels of authority within the prison system.
According to BJMP regulations, male and female inmates are to be held in separate facilities and, in national prisons, overseen by guards of the same sex. Anecdotal reports suggested that these regulations were not uniformly enforced. In provincial and municipal prisons, male guards sometimes supervised female prisoners directly or indirectly. Although prison authorities attempted to segregate children or to place them in youth detention centers, in some instances children were held in facilities not fully segregated from adult male inmates. Girls were sometimes held in the same cells as boys. During the year as part of reform and budget reduction efforts, the government consolidated women and minors into fewer jails, including some that contained separate facilities for those groups. Out of 1,075 jails managed by the BJMP and PNP, 205 had separate cells for minors, while 353 jails had separate cells for adult females. Lack of adequate food for minors in prisons was a concern (see section 5, children).
In July 2007 President Gloria Macapagal-Arroyo directed the immediate release of all minor prisoners who were age 15 years and below at the time they committed the crime. From January to November, the BJMP released 298 minor inmates, usually in response to a court order following a petition by the public attorney's office or the inmate's private lawyer or through the appeals of NGOs.
International monitoring groups, including the International Committee of the Red Cross, were allowed free access to jails and prisons. However, a local NGO reported difficulty accessing jails or detentions centers where children were held.
d. Arbitrary Arrest or Detention
The law requires a judicial determination of probable cause before issuance of an arrest warrant and prohibits holding prisoners incommunicado or in secret places of detention; however, in a number of cases, police and the AFP arrested and detained citizens arbitrarily. From January to December, the TFDP documented 55 cases of illegal arrest and detention involving 93 victims. The CHR tracked one case of abduction during the year that resulted in the release of the victim. During the year, the NGO FIND counted 16 abduction victims who were later found alive.
Arbitrary detentions through August included the January 25 abduction of Flaviano Arante, a council member of the peasant group United Farmers of Santa Catalina in Negros Oriental. Two weeks later, a military officer reportedly said that Arante was in the custody of the AFP's 61st battalion. In February his family petitioned for a writ of amparo, but a court of appeals dismissed the petition on April 30. A petition for review of that decision was filed in the Supreme Court.
On March 15, Mel Abesamis, a United Methodist Church pastor and former secretary general of the provincial Karapatan office, was abducted in Mindoro Occidental. Abesamis was missing for two days and then was found to be in a provincial jail. The government linked Abesamis to a May 2007 encounter between the PNP and the NPA and filed four counts of murder and theft against him.
On May 15, Randy Felix Malayao, a consultant for the peace process of the CPP-affiliated National Democratic Front of the Philippines, was abducted in Metro Manila. Malayao was missing for five days before he was found in the Cagayan provincial jail facing murder charges.
On May 18, three unidentified men abducted peasant leader Bernadith Dignos. Dignos was missing for four days before she appeared in police custody. She was charged with multiple counts of murder in a regional trial court in Misamis Occidental.
There were also reports that many children detained in jails were arrested without warrants.
Role of the Police and Security Apparatus
The Department of National Defense directs the AFP, which shares responsibility for counterterrorism and counterinsurgency operations with the PNP. The Department of Interior and Local Government directs the PNP, which is responsible for enforcement of law and order and urban counterterrorism; however, governors, mayors, and other local officials have considerable influence. The 115,000-member PNP has deep-rooted institutional deficiencies and suffered from a widely held and accurate public perception that corruption remained a problem. PNP's Internal Affairs Service remained largely ineffective. Members of the PNP were regularly accused of torture, soliciting bribes, and other illegal acts. Efforts were underway to reform the institution in part to counter a widespread impression of official impunity. By year's end the PNP dismissed 84 members of the police force, including administrative officials and police officers, for various reasons that may have involved corruption. Of the 2,786 administrative cases filed against PNP officers and personnel, 589 were resolved, 349 were dropped and closed, 157 remained under preliminary investigation, and 1,691 underwent summary proceedings. The deputy ombudsman for the military received 2,205 cases for the period January through August, of which 8 percent were cases filed against high ranking police and military officials.
As of August the AFP Human Rights Office monitored no new cases of killings, disappearances, or torture during the year. In August 2007 the AFP created five general courts-martial to hear administrative cases of officers and soldiers accused of human rights violations. As of December, two members of the army who were allegedly involved in killings were undergoing court martial proceedings, and one was on trial for murder in a civilian criminal court.
Government-armed civilian militias supplemented the AFP and the PNP.
Arrest and Detention
Citizens are apprehended openly with warrants based on sufficient evidence and issued by a duly authorized official and are brought before an independent judiciary. However, there were some reports during the year of citizens picked up by security forces without a warrant and detained arbitrarily. Detainees have the right to a judicial review of the legality of their detention and, except for offenses punishable by a life sentence, the right to bail. During the year a greater number of offenses were made eligible for bail and, according to government figures, 12,328 or 22 percent of detainees were able to post bail, compared with the 2 percent of detainees who posted bail in 2007. The law provides that an accused or detained person has the right to a lawyer of his choice and that the state must provide one when the accused cannot afford one. Authorities are required to file charges within 12 to 36 hours of arrests made without warrants, with the time given to file charges increasing with the seriousness of the crime. Lengthy pretrial detention remained a problem. The BJMP did not provide data about the number of detainees released during the year as part of jail decongestion programs, including the number of detainees who were released because they had been jailed for periods equal to or longer than the maximum prison terms they would have served if convicted. However, the BJMP acknowledged that 19,063 detainees were released from jail because they were acquitted or because their cases were dismissed for lack of witnesses or evidence.
Human rights and labor groups expressed concern about criminal charges filed in September against 72 labor activists, some of whom were arrested, including labor attorney Remigio Saladero, in connection with a 2006 NPA ambush on military forces.
The NPA, as well as some Islamic separatist groups, were responsible for a number of arbitrary detentions.
e. Denial of Fair Public Trial
The law provides for an independent judiciary; however, the judicial system suffered from corruption and inefficiency. Personal ties and sometimes bribery resulted in impunity for some wealthy or influential offenders and contributed to widespread skepticism that the judicial process could ensure due process and equal justice. The Supreme Court continued efforts to ensure speedier trials, sanction judicial malfeasance, increase judicial branch efficiency, and raise public confidence in the judiciary. In September the Supreme Court dismissed one justice at a court of appeals and disciplined four others for their roles in a bribery scandal. In October the high court denied the motions for reconsideration filed by these justices.
The national court system consists of four levels: local and regional trial courts, a national court of appeals divided into 17 divisions, a 15-member Supreme Court, and an informal local system for arbitrating or mediating certain disputes outside the formal court system. The Sandiganbayan, the government's anticorruption court, hears criminal cases brought against senior officials. A Shari'a (Islamic law) court system, with jurisdiction over domestic and contractual relations among Muslim citizens, operated in some Mindanao provinces. The courts-martial, each composed of at least five active-duty military officers, hear cases against military personnel accused of violating the Philippine Articles of War. The president, the chief of staff of the armed forces, or a military unit commander may appoint the members of a court-martial. Military or security tribunals cannot try civilians.
On January 14, Judge Roberto Navidad was shot and killed in Calbayog City, Samar. The police arrested a suspect, and the case was under investigation at year's end.
A decision was pending in the trial for the January 2007 killing of Judge Nathaniel Pattugalan. The police identified a suspect in the July 2007 killing of Judge Orlando Velasco, and a case against him was filed in court.
Trial Procedures
The law provides that all persons accused of crimes be informed of the charges against them, have the right to counsel, and be provided a speedy and public trial before a judge. Defendants are presumed innocent and have the right to confront witnesses against them, to present evidence, and to appeal convictions. The authorities respected the right of defendants to be represented by a lawyer, but poverty often inhibited a defendant's access to effective legal representation. Skilled defense lawyers staffed the Public Attorney's Office (PAO), but their workload was large and resources were scarce. The PAO provided legal representation for all indigent litigants at trial; however, during arraignment, courts may at their option appoint any lawyer present in the courtroom to provide counsel to the accused.
The law provides that cases should be resolved within set time limits once submitted for decision: 24 months for the Supreme Court; 12 months for a court of appeals; and three months for lower courts. However, these time limits were not mandatory, and, in effect, there were no time limits for trials.
Lengthy pretrial detention remained a problem. Anecdotal evidence suggested that, in practice, trials can take six years or more. Trials take place in short sessions over time and as witnesses become available; these noncontinuous sessions created lengthy delays. Furthermore, there was a widely recognized need for more prosecutors, judges, and courtrooms. Judgeship vacancy rates were high; of the total 2,182 trial court judgeships (including Shari'a courts), 509 (23 percent) were vacant. Courts in Mindanao and poorer provinces had higher vacancy rates than the national average. Shari'a court positions were particularly difficult to fill because of the requirement that applicants be members of both the Shari'a Bar and the Integrated Bar. All five Shari'a district court judgeships and 36 percent of circuit court judgeships remained vacant. Shari'a courts do not have criminal jurisdiction.
Political Prisoners and Detainees
Various human rights NGOs maintained lists of incarcerated persons they considered to be political prisoners. From January to June, the TFDP reported that there were 231 political prisoners. Typically, there was no distinction in these lists between detainees and prisoners, and the majority of persons listed had not been convicted. Some NGOs asserted that it was frequent practice to make politically motivated arrests of persons for common crimes and to continue to detain them after their sentences expired. The government used NGO lists as one source of information in the conduct of its pardon, parole, and amnesty programs, but it did not consider the persons listed to be political detainees or prisoners.
From January to June, the government released 22 persons whom NGOs claimed were political prisoners. The TFDP recorded 41 new political prisoners incarcerated through June.
The government permitted access to alleged political prisoners by international humanitarian organizations.
Civil Judicial Procedures and Remedies
The judiciary is independent and impartial in civil matters. There are administrative remedies as well as judicial remedies for alleged wrongs; however, corruption was widespread in the judiciary, and cases often were dismissed. Complainants have access to local trial courts to seek damages for, or cessation of, human rights abuses.
From January to December, human rights lawyers filed 13 writ of amparo petitions, all against the military, of which nine were resolved and four were pending hearings. Five of the resolved cases were dismissed, closed, or terminated; two were pending review by the Supreme Court; one was pending motion for reconsideration by the petitioners; and one was settled.
During the year the warden of the Davao Penal Colony reportedly refused to release journalist Alexander Adonis despite his having been paroled by the Department of Justice (DOJ) Board of Pardon and Paroles in a libel case. Adonis was released from prison in December.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law provides that a judge may issue search warrants on a finding of probable cause; however, while the government generally respected restrictions on search and seizure within private homes, searches without warrants occurred. Judges declared evidence obtained illegally to be inadmissible.
The government generally respected the privacy of its citizens; however, leaders of communist organizations and rural-based NGOs complained of what they described as a pattern of surveillance and harassment. The Human Security Act of 2007 allows law enforcement authorities, with a written order from a court of appeals, to intercept and record conversations and any other form of communication between members of terrorist organizations or any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Forced resettlement of urban squatters, who made up at least 30 percent of the urban population, continued during the year. The law provides certain protections for squatters; eviction was often difficult, especially because politicians recognized squatters' voting power. Government relocation efforts were constrained by budget problems, and the issuance of land titles to squatters was limited.
g. Use of Excessive Force and Other Abuses in Internal Conflicts
The government was engaged in combat with antigovernment forces and terrorists who actively sought to destabilize the country. Government forces killed a number of civilians during clashes with antigovernment forces. Some citizens' groups complained that the AFP, in confronting the ASG and NPA, illegally detained citizens, destroyed houses, displaced residents, and shelled villages. In August after the Supreme Court issued a temporary restraining order that halted the August 5 signing of a government-MILF territorial agreement, some MILF military commanders, allegedly acting without MILF authorization, attacked villages in central Mindanao, killing civilians.
Killings
Government forces acknowledged the deaths of civilians in the course of military operations against the MILF. A National Disaster Coordinating Council report indicated that 163 persons were confirmed killed in the Mindanao conflict by either government or rebel MILF forces between August 10 and September 1, including 78 civilians, six law enforcement officials, and two MILF rebels. Unconfirmed numbers of AFP soldiers and other MILF rebels also were killed in the conflict.
Communist insurgents, mainly from the NPA, continued to kill political figures, military and police officers, and civilians, including suspected military and police informers. The NPA and other extortion groups also harassed businesses and burned buses and private communication facilities to enforce the collection of "revolutionary taxes."
At year's end, according to military and police sources, 209 members of the AFP were killed in action during encounters with rebel and terrorist groups: 140 by the NPA, 56 by the ASG, and 13 by the MILF. During the same period, AFP operations resulted in 340 insurgents killed: 166 NPA, 27 ASG, 146 MILF, and one from the Moro National Liberation Front. The PNP recorded 82 of its personnel killed from January to November and claimed 91 insurgents killed in operations around the country, including 67 NPA, two ASG, and 22 MILF.
On April 4, NPA forces in Tineg, Abra, fired at a truck carrying 14 civilians, killing four. On June 28, NPA forces killed four government forces members in two attacks on Siargao Island, Surigao del Norte; two civilians were killed in the crossfire. On August 5 and 13, NPA rebels killed two rebel returnees. On August 17, MILF rebels killed 28 civilians and 14 soldiers in attacks in Mulondo, Lanao del Sur. On August 18, MILF rebels killed 14 civilians in an attack on a passenger bus in Lanao del Norte.
On January 15, gunmen believed to be members of the ASG abducted a Catholic priest, Father Roda, and a teacher in Tawi-tawi. They subsequently killed Father Roda.
The police believed that extortion groups allegedly linked with the ASG and the Jemaah Islamiyah were responsible for a series of bomb attacks against three bus companies in Mindanao. On May 28, suspected terrorists killed three civilians in a bomb attack outside an airbase in Zamboanga City. On July 24, a bomb inside a bus in Digos, Davao del Sur, killed three passengers. A September 1 bomb also in Digos killed seven persons. No group claimed responsibility for the attacks.
Abductions
There were numerous kidnappings throughout the year in Mindanao and the Sulu Archipelago by various armed groups, including the ASG. Victims often were released in exchange for payments.
On April 30, MILF rebels took over a village in Kalamansig, Sultan Kudarat, and held the residents hostage. On August 11, MILF forces took two civilians hostage in Pigcawayan, North Cotabato. On August 18, dozens of civilians in Kolambugan and Kauswagan, Lanao del Norte, reportedly were used as human shields by retreating MILF fighters. Some of the hostages later were reported killed.
Child Soldiers
During the year the NPA and the ASG targeted children for recruitment as combatants and noncombatants. The NPA claimed that it assigned persons 15 to 18 years of age to self defense and noncombatant duties; however, there were reports that the NPA continued to use minors in combat. A local NGO reported that 100 children were used as NPA soldiers in Eastern Samar.
The ASG recruited teenagers to fight and participate in its activities. The two purported ASG suspects in the June 8 kidnapping of Filipino newscaster Ces Drilon were reported to be minors. The AFP stated that some Islamic schools in Mindanao served as fronts to indoctrinate children. The AFP also alleged that the ASG used children as couriers and spies, but NGOs were unable to verify that claim.
A 2007 study commissioned by the UN Children's Fund (UNICEF) found that children as young as 10 years were used as soldiers or recruited by the MILF. Most of the children were volunteers often with the support of their families, serving in noncombat roles. In December during the visit of the Special Representative of the UN Secretary General, the MILF agreed to stop the recruitment and use of children in its ranks. At year's end a plan to implement this was not yet in place.
A human rights group documented one case of an indigenous child in Luzon being recruited by a paramilitary organization in 2007. The NGO also reported three cases of child soldiers being rescued by or surrendered to the government, while government sources reported one case. Government reporting mechanisms for children in armed conflict were inconsistent between agencies and regions, making it difficult to evaluate the scope of the problem.
Other Conflict-related Abuses
MILF attacks and subsequent clashes with the AFP increased the number of internally displaced persons (IDPs). Most IDPs were in the central Mindanao provinces of Lanao del Norte, North Cotabato, and Maguindanao (see section 2.d.).
The NPA continued to subject military personnel, police, local politicians, and other persons to its so-called courts for "crimes against the people." The NPA executed some of these "defendants." The MILF also maintained similar "people's courts."
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The constitution provides for freedom of speech and of the press, and the government generally respected these rights in practice.
The government owned several television and radio stations; however, most print and electronic media were privately owned. The media were active and expressed a wide variety of views without restriction. Broadcast and print media were freewheeling and often criticized for lacking rigorous journalistic ethics. They tended to reflect the particular political or economic orientations of owners, publishers, or patrons, some of whom were close associates of present or past high-level officials. Special interests often used bribes and other inducements to solicit one-sided and erroneous reports and commentaries that supported their positions. Journalists continued to face harassment and threats of violence from individuals critical of their reporting.
Journalists continued to be killed. The Center for Media Freedom and Responsibility reported six journalists killed during the year. The Task Force Usig classified four of these cases as work-related killings. There was also one reported abduction of a journalist.
On April 7, an unidentified assailant killed Benefredo Acabal, a publisher and writer for a local Cavite newspaper, The Filipino Newsmen. The case remained under investigation.
On April 27, two men killed former Iglesia ni Cristo religious sect minister and Pampanga television host Marcos Mataro at a North Luzon Expressway toll gate in San Simon, Pampanga. A case was filed against suspects in a local trial court.
Task Force Usig considered the Acabal and Mataro cases not work related.
On June 7, alleged ASG rebels abducted television reporter and anchorwoman Ces Drilon and two of her colleagues on the island of Sulu. The group was later released, and a Jolo mayor was implicated in the abduction and detained. A case was pending against the mayor.
On June 30, unidentified assailants killed Fausto Bert Sison, a local radio program host and columnist of a weekly regional bulletin in Sariaya, Quezon. Three suspects were apprehended and the case was under preliminary investigation by the DOJ. The motive for the killing was unknown.
On August 4, unidentified assailants shot radio journalist Dennis Cuesta, a program director and anchor of a local radio station in General Santos City, affiliated with the Radio Mindanao Network. Cuesta's reporting covered local political issues. He later died from the injuries he sustained. The NBI filed a case against a police officer suspect, and the case was under preliminary investigation by the DOJ.
On August 7, Martin Roxas, an anchorman for a Radio Mindanao Network affiliate who covered local political issues, was killed in Roxas City, Capiz, by persons who were apprehended following the attack. A case was filed against the suspects, who remained in police custody.
On November 17, two men killed radio host and columnist Aresio Padrigao. At year's end the suspects remained at large, and the case was under investigation.
The April 2007 case of Carmelo Palacios, a police-beat reporter for a government-run radio station, remained under investigation.
On May 28, a suspect in the December 2007 killing of radio broadcaster Fernando Lintuan voluntarily surrendered and was detained by authorities in Davao City.
On February 19, a regional trial court sentenced Roberto Cabal Lopez to life in prison for the 2006 slaying of photojournalist Prudencio Melendres in Metro Manila.
On October 20, charges were filed against the alleged planners of the 2005 killing of journalist Marlene Esperat; the gunmen and other parties to the killing were convicted in 2006.
On March 21, the Cebu Regional Trial Court sentenced John Lloyd Ortiz to up to 12 years' imprisonment for the 2004 attempted murder of journalist Cirse Torralba.
On March 5, a suspect in the 2004 killing of broadcaster Herson Hinolan surrendered to the court, although this occurred after a key witness withdrew his testimony.
On May 9, a trial began in the 2001 killing of radio journalist Rolando Ureta.
Human rights NGOs frequently criticized the government for failing to protect journalists. The National Union of Journalists of the Philippines accused the police and the government of failing adequately to investigate these killings and of subjecting journalists to harassment and surveillance. In some situations it was difficult to discern if violence against journalists was carried out in retribution for their profession or if these journalists were the victims of random crime.
On January 25, the Supreme Court chief justice advised judges to fine rather than imprison journalists found guilty of criminal defamation, although the judge's circular did not preclude imprisonment, and judges retained discretion in sentencing.
On June 5, a Makati City court judge found the publisher of The Daily Tribune newspaper guilty of libel in a 2003 series of articles criticizing a law firm over alleged irregularities in the contract for the new international terminal at Ninoy Aquino International Airport. The judge sentenced the publisher to six months to two years in prison and ordered her to pay a fine for moral damages.
On June 27, a Makati City court dismissed the charges filed by journalists and media organizations against government officials and the police over the arrests of media professionals during the November 2007 attempted takeover by rebel soldiers at the Manila Peninsula Hotel. On September 1, the CHR issued a resolution that the government violated the journalists' liberty, personal security, and freedom from arbitrary arrest. The CHR referred the case to the PNP, the DOJ, and the Department of Interior and Local Government for further investigation.
On August 28, a court of appeals reversed its March 18 decision that upheld a verdict of libel against staff members of a defunct newspaper.
Internet Freedom
There were no government restrictions on access to the Internet or reports that the government monitored e-mail or Internet chat rooms. Individuals and groups could engage in peaceful expressions of views via the Internet, including by e-mail. Internet access was available widely.
Academic Freedom and Cultural Events
In his April report on extrajudicial killings, UN Special Rapporteur Philip Alston noted the existence of the AFP intelligence service's 2005 presentation, "Know Your Enemy," which listed some press unions and student organizations as "enemies of the state" or communist fronts. There were no reports that the military used the presentation in its training curriculum during the year.
The government did not otherwise interfere with academic freedom. There were no government restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law provides for freedom of assembly, and the government generally respected this right in practice. Although the law requires that groups request a permit to hold a rally, the government at times followed an unwritten policy of allowing rallies to occur without the filing of a request. The police exhibited professionalism and restraint in dealing with demonstrators, with few exceptions. An NGO reported that 37 protesters were injured by police in March during the dispersal of a protest outside the Department of Labor and Employment (DOLE) offices in central Manila.
Freedom of Association
The law provides for freedom of association, and the government generally respected this right in practice.
c. Freedom of Religion
The law provides for freedom of religion, and the government generally respected this right in practice.
The government's campaign against terrorist groups led some human rights NGOs to accuse the police and military of acting with bias in their treatment of Muslims.
Intermittent government efforts to integrate Muslims into political and economic society achieved only limited success. Many Muslims claimed that they continued to be underrepresented in senior civilian and military positions and cited the lack of proportional Muslim representation in national government institutions.
Predominantly Muslim provinces in Mindanao lagged far behind the rest of the country in most aspects of socioeconomic development. The percentage of the population under the poverty level in the Autonomous Region of Muslim Mindanao (ARMM) was almost twice as high as the national average, with per capita income of 15,760 pesos (approximately $354) per year.
Societal Abuses and Discrimination
Historically, the Christian majority has marginalized Muslims. The national culture, with its emphasis on familial, tribal, and regional loyalties, created informal barriers whereby access to jobs or resources is provided first to those of one's own family or group network. Muslims reported difficulty renting rooms or being hired for retail work if they used their real names or wore distinctive Muslim dress. As a result, some Muslims used Christian pseudonyms and did not wear distinctive dress when applying for housing or jobs.
An estimated 400 to 1,000 mostly foreign nationals of Jewish heritage lived in the country. There were no reports of anti Semitic acts.
For a more detailed discussion, see the 2008 International Religious Freedom Report at www.state.gov/g/drl/irf/rpt.
d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and
Stateless Persons
The constitution provides for freedom of movement within the country, foreign travel, emigration, and repatriation, and the government generally respected these rights in practice. The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.
Foreign travel was limited only in rare circumstances, such as when a citizen has a pending court case. Government authorities discouraged travel by vulnerable workers to areas in which they face personal risk.
The government retained its formal ban on travel to Iraq for the purposes of employment, but the Department of Foreign Affairs estimated 6,000 Filipinos worked there. The travel ban also included Afghanistan, Nigeria, and Lebanon. The Philippine Overseas Employment Administration (POEA) sought to limit departures for work abroad to persons the POEA certified as qualified for the jobs. Millions of citizens worked overseas and remitted money home. In the first nine months of the year, such remittances accounted for approximately 11 percent of the gross domestic product.
Forced exile is illegal, and the government did not use it.
Internally Displaced Persons
Clashes between the AFP and the MILF increased the number of IDPs. Most IDPs were in the central Mindanao provinces of Lanao del Norte, North Cotabato, and Maguindanao. At the height of the clashes from August to September, the National Disaster Coordinating Council estimated there were 110,517 IDP families or 528,693 IDP individuals in Mindanao, which had been reduced to 62,849 families or 308,175 persons by December 29. Other agencies, including the UN Development Program, the Mindanao Emergency Relief Network, and the Red Cross provided food and essential items such as medicine, blankets, water containers, and mosquito nets.
Protection of Refugees
The country is a party to the 1951 UN Convention relating to the Status of Refugees and its 1967 protocol; however, there is no comprehensive legislation that provides for granting refugee status or asylum. In practice the government provided protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened. The refugee unit in the DOJ determined which asylum seekers qualify as refugees; such determinations in practice implemented many of the basic provisions of the 1951 convention. The government also provided temporary protection to individuals who may not qualify as refugees under the 1951 convention or its 1967 protocol. As of August there were no reports of the government extending such protections.
The government cooperated with the UNHCR and other humanitarian organizations in assisting refugees. The UNHCR recorded 107 refugees in 2007.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The law provides citizens with the right to change their government peacefully, and citizens exercised this right through periodic elections that largely were free and fair and held on the basis of universal suffrage.
Elections and Political Participation
On August 11, more than 1.31 million of the 1.52 million registered voters from the six provinces that make up the ARMM elected a regional governor, a regional vice governor, and regional legislative district assemblymen. The Asian Network for Free Elections Foundation (ANFREL) noted the government's commitment to make the elections as free and fair as possible. However, there were allegations of fraud in some localities. ANFREL and other NGO monitors noted such irregularities as phantom and multiple voting, inadequate neutrality of voting staff, and vote buying. Monitors also claimed that many voters did not have sufficient education about the electronic voting machines used for the first time in this election.
The PNP and AFP recorded four election-related combat incidents during the ARMM elections, including a bomb explosion and three armed encounters with alleged MILF members. PNP personnel were under investigation in a ballot-theft incident in Shariff Kabunsuan, Maguindanao. MILF rebels were suspected as perpetrators in another ballot-theft incident in Sumisip, Basilan.
In May 2007 midterm elections were held for senators, representatives, provincial governors, and local government officials. Voter turnout was high; however, incidents of violence and allegations of fraud marred the generally free and fair conduct of elections.
In general political parties could operate without restriction.
There were no restrictions in law or practice on participation by women and members of minorities in politics. Many women, including the president, held positions of leadership and authority. There were four women in the 24-seat Senate and 51 women in the 240-seat House of Representatives. There were two women in the 22-member cabinet, six female associate justices on the 15 member Supreme Court, and 17 women among the 80 governors.
Along with many other citizens, Muslims argued that electing senators from a nationwide list favored established political figures from the Manila area, to the disadvantage of Muslims. Election of senators by region would require a constitutional amendment, which many Muslims and members of other groups underrepresented in the national legislature favored. There were no Muslim senators and no Muslim cabinet members. There were 11 Muslim members in the House of Representatives, mostly elected from Muslim-majority provinces.
Government Corruption and Transparency
The law provides criminal penalties for official corruption; however, the government did not implement the law effectively, and officials often engaged in corrupt practices with impunity. Both the government and the private sector have established a number of anticorruption bodies, including an ombudsman's office and an anticorruption court, and public officials were subject to financial disclosure laws. The government prosecuted 168 officials in 276 corruption cases from January to November. Convictions included the July 17 conviction of the governor of Samar Province and several provincial board members; the September 10 conviction of two Mindoro Oriental district representatives, a former vice governor, and former provincial board members; the September 11 conviction of a former mayor and former municipal treasurer in Kalinga Province; and the October 29 conviction of a former ARMM regional governor and two of his staff. The government pursued cases against high-ranking officials at the Government Service Insurance System and the Department of Environment and Natural Resources.
The law provides for the right to information on matters of public concern. However, denial of such information often occurred when the information related to an anomaly or irregularity in government transactions. Much government information was not available electronically and was difficult to retrieve.
Section 4 Governmental Attitude Regarding International and Nongovernmental
Investigation of Alleged Violations of Human Rights
A number of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were somewhat cooperative and responsive to their views. The CHR and, to some extent, the PNP responded to and investigated cases of human rights abuses, as requested by NGOs. Human rights activists continued to encounter occasional harassment, mainly from security forces or local officials from the area in which incidents under investigation took place. The Presidential Human Rights Committee did not include representation from NGOs, which some groups claimed reduced their ability to participate in the government's human rights initiatives.
The CHR is mandated to protect and promote human rights. It is empowered to investigate all human rights violations and to monitor the government's compliance with international human rights treaty obligations. The CHR has authority to make recommendations regarding military and higher-level police promotions. The commission has a chairperson and four members. CHR monitoring and investigating continued to be hamstrung by insufficient resources. Approximately one-third of the country's 42,000 barangays (villages) had human rights action centers, which coordinated with CHR regional offices; however, the CHR's regional and subregional offices remained understaffed and underfunded. The CHR nationwide budget for the year was 214.27 million pesos (approximately $4.82 million).
The CHR reported that armed men fired on CHR investigators in July during a field investigation in Linawan, Basilan. The CHR was pursuing an inquiry with the AFP, which denied its members were responsible for the incident. The CHR faced difficulty accessing military sites to conduct its searches for missing or detained persons. On September 16, the AFP refused entry to a joint CHR congressional delegation intending to visit prisoners at Fort Bonifacio near Manila.
The government cooperated with international organizations.
Section 5 Discrimination, Societal Abuses, and Trafficking in Persons
The law prohibits discrimination against women, children, and minorities; however, vague regulations and budgetary constraints hindered implementation of these protections.
Women
Rape, including spousal rape, is illegal, but enforcement was ineffective. Rape continued to be a problem, with most cases unreported. At year's end the PNP reported 3,549 rape cases, more than four times the 2007 figure. The increase may be attributable to improved reporting capability through women's and children's desks at police stations. There were reports of rape and sexual abuse of women in police or protective custody--often women from marginalized groups, such as suspected prostitutes, drug users, and lower-income individuals arrested for minor crimes.
Violence against women remained a serious problem. The law criminalizes physical, sexual, and psychological harm or abuse to women and their children committed by their spouses or partners. As of December the PNP reported 706 cases of wife battering and physical injuries. This number likely underreported significantly the level of violence against women.
A local women's support group noted that, in smaller localities, perpetrators of abuse sometimes used personal relationships with local authorities to avoid prosecution. On other occasions women who sought to file complaints through the police were told to pay special fees before their complaints could be registered.
The PNP and the Department of Social Welfare and Development (DSWD) both maintained help desks to assist victims of violence against women and to encourage the reporting of crimes. With the assistance of NGOs, officers received gender sensitivity training to deal with victims of sexual crimes and domestic violence. Approximately 9 percent of PNP officers were women. The PNP has a Women and Children's Unit to deal with these issues.
Prostitution is illegal but was a widespread problem. Many women suffered exposure to violence through their recruitment, often through deception, into prostitution. Penalties for prostitution are light, but detained prostitutes were sometimes subjected to administrative indignities and extortion. The DSWD continued to provide temporary shelter and counseling to women engaged in prostitution. Through year's end, DSWD provided temporary shelter and counseling to 103 women who were victims of involuntary prostitution. Some local officials discouraged the prosecution of those who exploited prostitutes. There were no convictions under the provision of the law criminalizing the act of engaging the services of a prostitute.
Sex tourism and trafficking in persons for sexual exploitation and forced labor were serious problems.
The law prohibits sexual harassment. However, sexual harassment in the workplace was widespread and underreported due to victims' fear of losing their jobs. Sexual harassment at a shoe factory in Muntinlupa City spurred unionization and a strike in July; in November management reinstated dismissed employees and recognized the workers' union.
Female employees in special economic zones were particularly at risk; most were economic migrants who had no independent workers' organization to assist with filing complaints. Women in the retail industry worked on three- to five month contracts and were often reluctant to report sexual harassment for fear their contracts would not be renewed. There were reports that some firms took action against female employees who became pregnant.
The law does not provide for divorce, although courts generally recognize the legality of divorces obtained in other countries if one of the parties is a foreign national. The government recognizes religious annulment, but the process can be costly, which precludes annulment as an option for many women. Many lower-income couples simply separated informally without severing their marital ties. The family code provides that in child custody cases resulting from annulment, illegitimacy, or divorce in another country, children under the age of seven are placed in the care of the mother unless there is a court order to the contrary. Children over the age of seven normally also remained with the mother, although the father could dispute custody through the courts.
In law, but not always in practice, women have most of the rights and protections accorded to men. Although they faced workplace discrimination, women continued to occupy senior positions in the workforce. In a January labor force survey, 57 percent of government officials, corporate executives, managers, and supervisors were women. The unemployment rate for women was 6.7 percent, while the rate for men was 7.8 percent.
The National Commission on the Role of Filipino Women, composed of 10 government officials and 11 NGO leaders appointed by the president, acted as an oversight body whose goal is to press for effective implementation of programs benefiting women.
Children
The government devoted considerable resources to the education, welfare, and development of children. The Department of Education's (DepEd) 12 percent share of the national budget was the largest of any cabinet department. Nevertheless, children faced serious problems.
Elementary and secondary education is free and compulsory through age 11, but the quality of education remained poor. During the year according to DepEd figures, the estimated annual per pupil expenditure for basic education was 7,789 pesos (approximately $175). The public school enrollment rate was 76 percent. According to the 2007 UNICEF Mid-Term Review, boys were more likely than girls to drop out of school.
Child abuse remained a problem. Through year's end, DSWD offices served 5,663 victims of child abuse, of whom 70 percent were girls. Approximately 50 percent of the girls were victims of sexual abuse, while 3 percent were victims of sexual exploitation. Several cities ran crisis centers for abused women and children. The problem of foreign pedophiles continued, and the government continued to prosecute accused pedophiles vigorously. Some children also were victims of police abuse while in detention for committing minor crimes.
Child prostitution continued to be a serious problem. During the year, the DOLE ordered the closure of two establishments in the cities of Cebu and Lapu-Lapu for allegedly prostituting minors. Trials in these cases continued at year's end. One NGO reported that pornographers forced some children to engage in pornographic activity.
The NPA and ASG continued to recruit minors both as combatants and noncombatants (see section 1.g.).
The government estimated that there were at least 22,000 street children nationwide, while UNICEF estimated that there were approximately 250,000 street children. Many street children appeared to be abandoned and engaged in scavenging or begging. At year's end DSWD provided services to 238 street children nationwide. NGOs reported that some children engaged in petty crime were targets of vigilante groups (see section 1.a.).
A variety of national executive orders and laws provide for the welfare and protection of children. Police stations have child and youth relations officers to ensure that child suspects are treated appropriately. However, procedural safeguards were often ignored in practice. The BJMP stated that 4,213 minors were held on "preventive detention" while their trials were underway, and an additional 130 children, convicted from January to November, were serving sentences. Many child suspects were detained for extended periods without access to social workers and lawyers and were not segregated from adult criminals. NGOs believed that children held in integrated conditions with adults were highly vulnerable to sexual abuse, recruitment into gangs, forced labor, torture, and other ill treatment. There were also reports that many children detained in jails appeared to have been arrested without warrants.
During the year government agencies and NGOs transferred 69 minor prisoners to DSWD rehabilitation centers and continued to work to secure the release of minors wrongfully imprisoned and of those below 15 years of age. DSWD ran 11 regional youth rehabilitation centers for juvenile offenders. There were three detention centers for children in Manila.
Trafficking in Persons
Trafficking in persons is prohibited under the law, which defines several activities related to trafficking in persons as illegal and imposes stiff penalties--up to life imprisonment--for convicted offenders. Nonetheless, trafficking remained a serious problem. The country was a source, transit point, and destination for men, women, and children trafficked for the purposes of sexual exploitation and forced labor. A significant number of men and women who migrated abroad for work were subjected to conditions of involuntary servitude in the Middle East, North America, and other parts of Asia. Women were trafficked abroad for commercial sexual exploitation, primarily to Japan, Malaysia, Singapore, Hong Kong, South Korea, and countries in the Middle East and Western Europe. Women and children were also trafficked within the country, primarily from rural areas to urban areas for forced labor as domestic workers and factory workers and for sexual exploitation. A smaller number of women were occasionally trafficked from China, South Korea, Japan, and Russia to the country for sexual exploitation. Child sex tourism continued to be a serious problem, with sex tourists coming from Northeast Asia, Europe, and North America to engage in sexual activity with minors.
Both adults and children were trafficked domestically from poor, rural areas in the southern and central parts of the country to major urban centers, especially Metro Manila and Cebu, but also increasingly to cities in Mindanao. A significant percentage of the victims of internal trafficking were from Mindanao and were fleeing the poverty and violence in their home areas. Approximately 75 percent of the trafficking victims provided with temporary shelter and counseling by the NGO Visayan Forum Foundation were from Mindanao. The Visayan region was also a source of trafficking victims. Women and girls were far more at risk of becoming victims of trafficking than men and boys.
Traffickers targeted persons seeking overseas employment. An estimated eight million Filipinos worked overseas, approximately 10 percent of the population and 20 percent of the workforce. Most recruits were females ages 13 to 30 from poor farming families. The traffickers generally were private employment recruiters and their partners in organized crime. Many recruiters targeted persons from their own hometowns, promising respectable and lucrative jobs.
Although the government pursued trafficking cases under the antitrafficking law as well as other related laws, its efforts were hampered by slowness of the courts, resource constraints within law enforcement agencies, corruption, and general inefficiency of the judicial system.
The DOJ assigned responsibility to 20 prosecutors who, in addition to their regular workloads, also handled the preliminary investigation and prosecution of trafficking cases at the national level. There were 95 prosecutors at the regional, provincial, and municipal levels with similar responsibilities for trafficking. The principal investigative agencies were the National Bureau of Investigation, the Bureau of Immigration, the Philippine Center for Transnational Crimes, and the PNP's Criminal Investigation and Detection Group, with the participation of other members of the Interagency Council Against Trafficking. The government cooperated with international investigations of trafficking. The ombudsman created a task force for trafficking-related corruption cases. Corruption among law enforcement agents remained a particular obstacle to better antitrafficking performance. It was widely believed that some government officials were involved in, or at least permit, trafficking operations within the country.
On June 30, a woman was convicted and sentenced to life imprisonment for trafficking seven minors for sexual exploitation. On October 10, a Zamboanga City court sentenced a human trafficker to 30 years in prison for the 2004 illegal recruitment and trafficking of two women to Malaysia. On November 28, the Paranaque regional trial court fined and sentenced two traffickers to 20 years in prison for trafficking four minors in Albay Province. On December 4, a court acquitted an accused trafficker charged with transporting minors with the intent of forcing them into prostitution because the minors were rescued before they were actually forced into prostitution. From January to November, 162 new cases of trafficking were filed for prosecution, of which 37 were pending trial. A high vacancy rate among judges, among other factors, significantly slowed trial times.
Victims faced exposure to sexually transmitted or other infectious diseases and were vulnerable to beatings, sexual abuse, and humiliation.
There was anecdotal evidence that some lower-level officials such as customs officers, border guards, immigration officials, local police, or others received bribes from traffickers or otherwise facilitated trafficking. On September 17, an officer of the Bureau of Immigration at Ninoy Aquino International Airport was apprehended for her alleged role in aiding the trafficking of 17 Mindanao minors to Syria and Jordan. On October 22, a city prosecutor dismissed the charge against the officer for insufficient evidence, but filed trafficking charges against two accomplices. The government expanded trafficking awareness training to include officials at international ports of entry and developed standard operating procedures for trafficking task forces at these entry points.
The government increased efforts to protect victims of trafficking, although it continued to rely on NGOs and international organizations to provide services to victims. Victims were not penalized for any crimes committed as a direct result of being trafficked. The government, in conjunction with NGO partners, assisted victims by providing temporary residency status and relief from deportation; shelter; and access to legal, medical, and psychological services. Through December DSWD provided temporary shelter and social services to 153 women and 153 juvenile victims of trafficking. Additional protective services included hot lines for reporting cases and the operation of 24 hour halfway houses in 13 regions of the country to assist victims.
The government rarely deported or charged victims of trafficking with crimes; however, police sometimes charged women in prostitution with vagrancy. There were no reliable statistics indicating whether these individuals were victims of trafficking.
Victims may file civil suits or seek legal action against traffickers. Most victims who chose to do so filed charges of illegal recruitment. The government actively encouraged victims to assist in the investigation and prosecution of trafficking and related crimes. The NGO International Justice Mission (IJM), employing private investigators and lawyers, coordinated with the government in an effort to increase the number of prosecutions on behalf of victims of trafficking and commercial sexual exploitation. Cases were prosecuted in coordination with DOJ prosecutors. IJM initiated 41 cases under the antitrafficking in persons law, and 18 of these cases were pending.
Numerous government agencies and officials, as well as NGOs and international organizations, continued to support public information campaigns against trafficking. The government supported programs to prevent trafficking, such as the promotion of women's participation in economic decision making and efforts to keep children in school. The government provided skills training to women, lessening the need for them to go to urban centers or overseas for employment. However, funding remained limited.
Persons with Disabilities
The constitution prohibits discrimination against persons with disabilities in employment, education, access to health care, and other social services. The law provides for equal physical access for persons with both physical and mental disabilities to all public buildings and establishments. The National Council for the Welfare of Disabled Persons formulates policies and coordinates the activities of all government agencies for the rehabilitation, self-development, and self-reliance of persons with disabilities and their integration into the mainstream of society. The DOLE's Bureau of Local Employment (BLE) maintained registers of persons with disabilities indicating their skills and abilities. BLE monitored private and public places of employment for violations of labor standards regarding persons with disabilities and also promoted the establishment of cooperatives and self-employment projects for persons with disabilities. One NGO reported that the government had limited means to assist persons with disabilities in finding employment, and such persons had limited recourse when their rights were violated because of the financial barriers to filing a lawsuit.
DSWD operated two assisted living centers in Metro Manila, and five community based vocational centers for persons with disabilities nationwide. Assisted-living centers were understaffed and underfunded. At year's end the DSWD provided services to 1,869 persons with disabilities.
Advocates for persons with disabilities contended that equal access laws were ineffective because implementing regulations were weak, funding was insufficient, and government programs were inadequately focused on integration. Many public buildings, particularly older ones, lacked functioning elevators. Many schools had architectural barriers that made attendance difficult for persons with disabilities.
Government efforts to improve access to transportation for persons with disabilities were limited. Two of Manila's three light-rail lines were wheelchair accessible; however, many stops had unrepaired, out-of-service elevators. Buses lacked wheelchair lifts, and there were reports of taxi drivers who failed to stop for passengers in wheelchairs. A small number of sidewalks had wheelchair ramps, which were often blocked, crumbling, or too steep. The situation was worse in many smaller cities and towns. One NGO claimed that private transportation providers, such as taxis, often overcharged persons with disabilities or refused service.
The constitution provides for the right of persons with physical disabilities to vote; however, persons with mental disabilities are disqualified from voting. Persons with physical disabilities are allowed to vote with the assistance of a person of their choice. In practice many persons with disabilities did not vote because of the above barriers.
Indigenous People
Indigenous people lived throughout the country but primarily in the mountainous areas of northern and central Luzon and in Mindanao. They accounted for approximately 14 million or 16 percent of the national population, with over 34 percent of the total in Mindanao. Although no specific laws discriminate against indigenous people, the remoteness of the areas that many inhabit as well as cultural bias prevented their full integration into society. Indigenous children suffered from lack of health, education, and other basic services. NGOs estimated that up to 70 percent of indigenous youth left or never attended school because of the discrimination they experienced.
Indigenous people suffered disproportionately from armed conflict, including displacement from their homes, because they often inhabited mountainous areas favored by guerrillas. Their lands were often the sites of armed encounters, and various parties to the fighting recruited many indigenous people.
A National Commission on Indigenous People (NCIP), staffed by tribal members, implemented constitutional provisions to protect indigenous people. During the year NCIP had a budget of 587 million pesos (approximately $13.2 million). At year's end the NCIP had awarded Certificates of Ancestral Land and Ancestral Domain Titles covering over 2.67 million acres of land claimed by indigenous people. It awarded such "ancestral domain lands" on the basis of communal ownership, stopping sale of the lands by tribal leaders. The law requires a process of informed consultation and written consent by the indigenous group to allow mining on tribal lands and assigns indigenous groups the responsibility to preserve their domains from environmentally inappropriate development. Some NGOs expressed concern that the law was not adequately enforced and that the rights of indigenous communities, including the right to prior consent, were not always protected.
Other Societal Abuses and Discrimination
There was some societal discrimination based on sexual orientation, including in employment and education.
The law prohibits all forms of discrimination against persons with HIV/AIDS and provides basic health and social services for these persons. However, there was some evidence of discrimination against HIV/AIDS patients in the provision of health care, housing, and insurance services. The rate of HIV/AIDS remained low, although the rate of infection was believed to be underreported. Overseas workers were required to participate in an HIV/AIDS class as part of a predeparture orientation seminar.
Section 6 Worker Rights
a. The Right of Association
The law provides for the right of workers, including most public employees, with the exception of the military and the police, to form and join trade unions. Trade unions are independent of the government. Unions have the right to form or join federations or other labor groups.
At year's end the Bureau of Labor Relations reported 141 registered labor federations and 15,537 private sector unions. The 1.9 million union members represented approximately 5 percent of the total workforce of 36.45 million. The number of firms using contractual labor, primarily large employers, continued to grow. There were 1,693 public sector unions, with a total membership of 352,182 or approximately 20 percent of the total employed persons in the public sector.
In May 2007 a new labor law lowered the requirements for union registration. On November 8, the DOLE issued the implementing rules and regulations for this law.
The International Trade Union Confederation (ITUC) and other labor rights advocacy groups expressed concern at killings, abductions, and other attacks on labor leaders and supporters and urged the government to increase efforts in investigating these attacks. Through December, the Center for Trade Union and Human Rights (CTUHR) documented three cases of killings, including the March 10 killing of labor leader Gerry Cristobal in Cavite (see section 1.a.), the July 19 killing of former chairperson of the Compostela Workers Association, Maximo Baranda, and the November 10 killing of worker's advocate and Bayan Muna coordinator Rolando Antolihao in Compostela. Apart from this, the CTUHR documented 32 cases of threats, harassment, and intimidation affecting 479 workers and labor advocates, 11 cases of physical assault, and five cases of violent dispersal of protests.
During the year the International Labor Organization (ILO) Committee on Freedom of Association (CFA) issued decisions on two cases and pursued investigations in three other cases, including a 2006 complaint by a labor federation alleging human rights violations, for which a government response to the ILO inquiry was still pending.
Subject to procedural restrictions, strikes in the private sector are legal; however, unions are required to provide strike notice, respect mandatory cooling-off periods, and obtain majority member approval before calling a strike. By law, the reason for striking must be relevant to the labor contract or the law, and all means of reconciliation must have been exhausted. The DOLE secretary may intervene in some labor disputes by assuming jurisdiction and mandating a settlement if the secretary decides that the company affected by the strike is vital to the national interest. Labor rights advocates criticized the government for intervening in labor disputes in sectors that were not vital to the national economy. In August the National Labor Relations Commission (NLRC) issued a temporary restraining order against striking workers and members of the Associated Labor Union-Trade Union Congress of the Philippines who were protesting against Gaisano Capital South and Gaisano Capital Mactan the day after the management asked the agency to intervene. In November, citing the company's contribution to the national economy, the secretary of labor intervened to prevent workers at garment maker and exporter Triumph International from going on strike.
Government workers are prohibited from joining strikes under threat of automatic dismissal. Government workers may file complaints with the Civil Service Commission, which handles administrative cases and arbitrates disputes between workers and their employers. In August the Pampanga governor dismissed some 40 workers at a government-owned quarry after they staged a second strike over alleged administrative irregularities. At year's end the workers had not been reinstated.
The DOLE reported five strikes involving 1,115 workers from January to September. The American Center for International Labor Solidarity reported four strikes involving 910 workers.
In June at least 13 workers at Hanjin Garments Inc; a Korean owned firm located in Cabuyao, Laguna, were injured and four others arrested following dispersal by local authorities. Workers sought to regularize the employment status of contractual workers who had worked at the company for several years.
Although the labor code provides that union officers who knowingly participate in an illegal strike may be dismissed and, if convicted, imprisoned for up to three years, there has never been a conviction under this provision.
b. The Right to Organize and Bargain Collectively
The law provides for the right to organize and bargain collectively. The labor code provides for this right for employees both in the private sector and in corporations owned or controlled by the government. A similar right is afforded to most government workers. Collective bargaining was practiced; however, it was subject to hindrance and union leaders may be subject to reprisal. International labor organizations noted that collective bargaining in the public sector was limited. Through year's end the total number of private- and public sector workers covered by collective bargaining agreements was recorded at 282,683 (approximately 14.5 percent of union members and less than 1 percent of the total workforce).
Allegations of intimidation and discrimination in connection with union activities are grounds for review before the quasi judicial NLRC as possible unfair labor practices. Before disputes reach the NLRC, the DOLE provides the services of a mediation board, which settles most of the unfair labor practice disputes raised as grounds for strikes before the strikes may be declared. The DOLE, through the mediation board, also worked to improve the functioning of labor-management councils in companies that already had unions.
Management dismissal or threatened dismissal of union members was common. In September approximately 65 union executive officers and members working through a contractor for a gold mining company were dismissed a few days before a DOLE-scheduled union certification election. In August the contractor allegedly forced members of the union to sign a termination letter although they had a contract to work through October.
In March the CFA responded to a 2007 complaint by several union members at the Technical Education Services and Development Authority (TESDA) regarding the members' work-transfer orders and their subsequent dismissal from TESDA. The committee requested the government to reinstate the workers and provide compensation. Conflicting decisions in 2007 from the Civil Service Commission called for the reinstatement of the workers but also approved TESDA's decision to dismiss them. In December a court of appeals ruled in favor of TESDA management. A union representative said the organization would appeal that decision to the Supreme Court.
Labor groups alleged that companies in Special Economic Zones (SEZs) used frivolous lawsuits as a means of harassing union leaders. Labor groups reported that firms used bankruptcy as a reason for closing and dismissing workers.
Labor law applies uniformly throughout the country, including in SEZs; however,
local political leaders and officials who governed the SEZs attempted to frustrate union organizing efforts by maintaining union-free or strike-free policies. The ITUC in its 2007 Annual Survey maintained that the DOLE was unable or unwilling to enforce labor law in the SEZs. A conflict over interpretation of the SEZ law's provisions for labor inspection further obstructed the enforcement of workers' rights to organize. The DOLE can conduct inspections of SEZs and establishments located there, although local zone directors claimed authority to conduct their own inspections as part of the zones' privileges intended by congress. Hiring often was controlled tightly through SEZ labor centers. Union successes in organizing in the SEZs have been few and marginal in part due to organizers' restricted access to the closely guarded zones and the propensity among zone establishments to adopt fixed-term, casual, temporary, or seasonal employment contracts.
Labor groups claimed that government security forces stationed near industrial areas were intended to intimidate workers attempting to organize.
c. Prohibition of Forced or Compulsory Labor
The law prohibits forced labor, including forced and compulsory labor by children; however, there were some reports of forced and compulsory labor, particularly by children, mainly in prostitution, drug trafficking, domestic service, and other areas of the informal sector (see sections 5 and 6.d.).
d. Prohibition of Child Labor and Minimum Age for Employment
The law prohibits the employment of children under the age of 15, except under the direct and sole responsibility of parents or guardians or in cases in which employment in cinema, theater, radio, or television is essential to the integrity of the production. The law allows employment of those between the ages of 15 and 18 for such hours and periods of the day as are determined by the DOLE secretary but forbids the employment of persons less than 18 years of age in hazardous or dangerous work. However, child labor remained a common problem, and a significant number of children were employed in the informal sector of the urban economy as domestic workers or as unpaid family workers in rural agricultural areas--some as bonded laborers. The government estimated that there were approximately four million working children, an estimated half of whom were exposed to hazardous working environments, in industries such as quarrying, mining, deep sea fishing, pyrotechnic production, and agriculture, especially sugar cane plantations.
Most child labor occurred in the informal economy, often in family settings. The government, in coordination with a number of domestic NGOs and international organizations, implemented programs to develop safer options for children, return them to school, and offer families viable economic alternatives to child labor. Although the government made attempts to devote more resources to child labor programs during the year, resources remained inadequate.
The government and NGOs implemented programs to prevent the engagement of children in exploitive child labor; they educated communities on child labor and provided counseling and other activities for children. The DOLE and the DepEd worked with NGOs to assist children to return to school, and UNICEF and the ILO continued to work with the government on programs for the reduction of child labor. The government also imposed fines and instituted criminal prosecutions for child labor violations in the formal sector, such as in manufacturing. The trial continued for a Metro Manila garment factory that employed 10 child laborers. The DOLE continued its efforts to remove child workers from hazardous situations. From January to June, the DOLE conducted 16 rescue operations, removing 59 minors.
e. Acceptable Conditions of Work
The national minimum wage did not provide a decent standard of living for a worker and family. Tripartite regional wage boards set minimum wages, and they increased minimum wages slightly during the year. Under a new law, minimum wage earners are exempt from paying income tax. The highest minimum wage rates were in the National Capital Region, where the minimum daily wage for nonagricultural workers was 382 pesos ($8.59). The lowest minimum wage rates were in the Southern Tagalog Region, where daily agricultural wages were 187 pesos ($4.20). The regional wage board orders covered all private sector workers except domestic servants and others employed in the service of another person. Boards exempted some newly established companies and other employers from the rules because of factors such as business size, industry sector, export intensity, financial distress, and level of capitalization. These exemptions excluded substantial numbers of workers from coverage under the law. Through year's end the regional wage boards granted minimum wage exemption applications to 256 establishments, a 48 percent increase over 2007. Unions have filed complaints about the minimum wage exemption policies.
Violation of minimum wage standards and the use of contract employees to avoid the payment of required benefits were common, including in the government-designated SEZs, where tax benefits were used to encourage the growth of export industries. According to a year-end Bureau of Working Conditions report, 11,531 of 26,169 inspected firms were found to have violated labor or occupational safety and health standards. Many firms hired employees for less than the minimum apprentice rates, even if there was no approved training in their production-line work. The DOLE inspects establishments that employ 10 to 199 workers to determine compliance with national labor laws and international core labor standards. Establishments employing 200 or more persons and unionized establishments with collective bargaining agreements are subject to a self-assessment of compliance with labor standards. The DOLE provided training and advisory services to enterprises with less than 10 workers to help them comply with national labor laws and core labor standards. At year's end, 18 percent (4,664 out of 26,169) of commercial establishments inspected by the DOLE were not in compliance with the prevailing minimum wage. The DOLE acknowledged that the shortage of inspectors made it difficult to enforce the law. In addition to fines, the government also used administrative procedures and moral suasion to encourage employers to rectify violations voluntarily. Complaints about nonpayment of social security contributions, bonuses, and overtime were particularly common with regard to companies in SEZs.
By law the standard legal workweek is 48 hours for most categories of industrial workers and 40 hours for government workers, with an eight-hour per day limit. The government mandates an overtime rate of 125 percent of the hourly rate on ordinary days and 130 percent on rest days and holidays. The law mandates one day of rest each week. However, there is no legal limit on the number of overtime hours that an employer may require. The DOLE conducted only sporadic inspections to enforce limits on workweek hours. From January to December, 153 DOLE labor inspectors made 26,169 inspections to check on companies' compliance with general labor and working standards. Labor groups maintained that forced overtime was common.
On January 22, the DOLE in the Southern Tagalog region ordered a Korean-owned garment factory to pay back wages, but, by May 1, only a portion of the workers had been paid.
The law provides for a comprehensive set of occupational safety and health standards. The DOLE has responsibility for policy formulation and review of these standards, but with too few inspectors nationwide, local authorities often must carry out enforcement. The DOLE continued a campaign to promote safer work environments in small enterprises. Statistics on actual work related accidents and illnesses were incomplete, as incidents (especially in agriculture) were underreported. At year's end the DOLE conducted inspections of 7,129 establishments on occupational safety standards compliance, 6,353 or 80 percent of which were able to comply upon inspection. Workers do not have a legally protected right to remove themselves from dangerous work situations without risking loss of employment.
There were work-related deaths and injuries during the year, including the death of five employees and injury of eight others at Hanjin Heavy Industries, a shipbuilding firm in Subic Bay. An investigation by the Subic Bay Metropolitan Authority revealed several safety lapses.
The government and several NGOs worked to protect the rights of the country's overseas citizens, most of whom were temporary or contract workers. The government placed financial sanctions on and criminal charges against domestic recruiting agencies found guilty of unfair labor practices. Although the POEA registered and supervised domestic recruiters' practices successfully, the authorities sometimes lacked sufficient resources to ensure workers' protection overseas. It sought cooperation from receiving countries and proposed migrant worker rights conventions in international forums. The government also provided assistance through its diplomatic missions in countries with substantial numbers of migrant workers.
In November trade unions called on the POEA to eliminate a provision in POEA's sample contract that lists involvement in trade union activities as a valid reason for terminating employment. The POEA subsequently removed the sample contract from its Web site.
The labor laws protect foreign workers in the country. Foreign workers must obtain work permits and may not engage in certain occupations. Typically their work conditions were better than those faced by citizens. They are not allowed to join or form unions.
See: http://www.state.gov/g/drl/rls/hrrpt/2008/eap/119054.htm)
International conventions
For legal research purposes of the visitors of this blog, my list so far of the international treaties and conventions involving the administration of justice is composed of the following:
Human Rights in the Administration of Justice: Protection of Persons subjected to Detention or Imprisonment
(1955) Standard Minimum Rules for the Treatment of Prisoners
(1990) Basic Principles for the Treatment of Prisoners
(1988) Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
(1990) United Nations Rules for the Protection of Juveniles Deprived of their Liberty
(1975) Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1985) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1982) Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984) Safeguards guaranteeing protection of the rights of those facing the death penalty
(1979) Code of Conduct for Law Enforcement Officials
(1990) Basic Principles on the Use of the Force and Firearms by Law Enforcement Officials
(1990) Basic Principles on the Role of Lawyers
(1990) Guidelines on the Role of Prosecutors
(1990) United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)
(1990) United Nations Guidelines for the Prevention of Juvenile Delinquency (The Ridyadh Guidelines)
(1985) United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")
(1985) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
(1985) Basic Principles on the Independence of the Judiciary
Model Treaty on the Transfer of Proceedings in Criminal Matters
Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released
(1992) Declaration on the Protection of All Persons from Enforced Disappearance
(1989) Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
Acknowledgement:
The Lawphil Project - Arellano Law Foundation (www.lawphil.net)
Human Rights in the Administration of Justice: Protection of Persons subjected to Detention or Imprisonment
(1955) Standard Minimum Rules for the Treatment of Prisoners
(1990) Basic Principles for the Treatment of Prisoners
(1988) Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
(1990) United Nations Rules for the Protection of Juveniles Deprived of their Liberty
(1975) Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1985) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1982) Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984) Safeguards guaranteeing protection of the rights of those facing the death penalty
(1979) Code of Conduct for Law Enforcement Officials
(1990) Basic Principles on the Use of the Force and Firearms by Law Enforcement Officials
(1990) Basic Principles on the Role of Lawyers
(1990) Guidelines on the Role of Prosecutors
(1990) United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)
(1990) United Nations Guidelines for the Prevention of Juvenile Delinquency (The Ridyadh Guidelines)
(1985) United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")
(1985) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
(1985) Basic Principles on the Independence of the Judiciary
Model Treaty on the Transfer of Proceedings in Criminal Matters
Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released
(1992) Declaration on the Protection of All Persons from Enforced Disappearance
(1989) Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
Acknowledgement:
The Lawphil Project - Arellano Law Foundation (www.lawphil.net)
Monday, July 6, 2009
Abusive
Despite all the faults and weaknesses of the Philippine justice system, e.g., delay and perceived corruption, incompetence, and laziness among judicial officers and personnel, the Filipinos should at least credit the Philippine Supreme Court for doing its very best in disciplining the abusive and oppressive among the ranks of its trial judges as shown in a recent press statement issued by its central information office involving now retired Regional Trial Court Judge Francisco Ibay of the prime Makati City, to wit:
Court News Flash July 2009
SC Fines Judge with Penchant for Citing Persons in Contempt without Basis
Posted: July 3, 2009
By Jay B. Rempillo
See: http://sc.judiciary.gov.ph
A judge shalt not cite a person in contempt sans any basis or be sanctioned.
The Supreme Court has fined PhP40,000 a Makati City Regional Trial Court judge who, sans any basis, cited in contempt a driver who had inadvertently occupied the parking space reserved for the judge at the basement of the Makati City Hall in 2005.
In a 14-page decision penned by Justice Diosdado M. Peralta, the Court found guilty of abuse of authority Makati City Regional Trial Court (RTC), Branch 135 Judge Francisco B. Ibay, who had availed of optional retirement on August 18, 2007, for citing complainant Valeriano F. Nuñez for contempt without legal basis. The fine shall be deducted from the PhP400,000 withheld from his retirement benefits per a 2007 Court resolution.
On April 4, 2005, Judge Ibay summoned Nuñez, a driver at the Engineering Department of the Makati City Hall, to explain why he had occupied the parking space allotted him at the Makati City Hall. Nuñez apologized to the judge and explained that it was an inadvertence and that he was not aware that the space, where he had parked three days earlier the government vehicle he was driving, was allotted to the judge. However, Judge Ibay refused to accept Nuñez’s apology and found him guilty of direct contempt and sentenced him to five days in jail and fined him PhP1,000.
In his defense, Judge Ibay said he has already placed a marker with his name at the space allotted to him and that he reports to work early in the morning to accomplish many tasks expected of him being the third-ranking judge for the year 2004 among the Makati City RTC judges. He claimed that there have been similar incidents in the past, i.e., three persons had caused an overflow of water into his chambers which resulted in the damage of his computer system; another driver who had also occupied his parking slot, and an electrician who had erroneously switched off the electrical outlets in his sala. All have been cited in contempt by Judge Ibay on the ground that they had disrupted his performance of official duties. Judge Ibay has already been sanctioned by the High Court in the complaints filed by these people whom he had earlier cited in contempt.
The High Court reiterated its ruling in Sison v. Caoibes, Jr. that the power to declare a person in contempt of court must be exercised judiciously and sparingly, adding that a judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance of his duties
It noted that by the time Nuñez filed his complaint, Judge Ibay has already cited six persons for contempt, including Nuñez, who was ordered immediately detained thus preventing him from resorting to remedies provided for in the Rules of Court.
“Such abusive behavior on the part of the respondent Judge fails to show his integrity,” the Court said.
See: AM No. RTJ-06-1984, June __, 2009, Nuñez v. Judge Ibay)
Court News Flash July 2009
SC Fines Judge with Penchant for Citing Persons in Contempt without Basis
Posted: July 3, 2009
By Jay B. Rempillo
See: http://sc.judiciary.gov.ph
A judge shalt not cite a person in contempt sans any basis or be sanctioned.
The Supreme Court has fined PhP40,000 a Makati City Regional Trial Court judge who, sans any basis, cited in contempt a driver who had inadvertently occupied the parking space reserved for the judge at the basement of the Makati City Hall in 2005.
In a 14-page decision penned by Justice Diosdado M. Peralta, the Court found guilty of abuse of authority Makati City Regional Trial Court (RTC), Branch 135 Judge Francisco B. Ibay, who had availed of optional retirement on August 18, 2007, for citing complainant Valeriano F. Nuñez for contempt without legal basis. The fine shall be deducted from the PhP400,000 withheld from his retirement benefits per a 2007 Court resolution.
On April 4, 2005, Judge Ibay summoned Nuñez, a driver at the Engineering Department of the Makati City Hall, to explain why he had occupied the parking space allotted him at the Makati City Hall. Nuñez apologized to the judge and explained that it was an inadvertence and that he was not aware that the space, where he had parked three days earlier the government vehicle he was driving, was allotted to the judge. However, Judge Ibay refused to accept Nuñez’s apology and found him guilty of direct contempt and sentenced him to five days in jail and fined him PhP1,000.
In his defense, Judge Ibay said he has already placed a marker with his name at the space allotted to him and that he reports to work early in the morning to accomplish many tasks expected of him being the third-ranking judge for the year 2004 among the Makati City RTC judges. He claimed that there have been similar incidents in the past, i.e., three persons had caused an overflow of water into his chambers which resulted in the damage of his computer system; another driver who had also occupied his parking slot, and an electrician who had erroneously switched off the electrical outlets in his sala. All have been cited in contempt by Judge Ibay on the ground that they had disrupted his performance of official duties. Judge Ibay has already been sanctioned by the High Court in the complaints filed by these people whom he had earlier cited in contempt.
The High Court reiterated its ruling in Sison v. Caoibes, Jr. that the power to declare a person in contempt of court must be exercised judiciously and sparingly, adding that a judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance of his duties
It noted that by the time Nuñez filed his complaint, Judge Ibay has already cited six persons for contempt, including Nuñez, who was ordered immediately detained thus preventing him from resorting to remedies provided for in the Rules of Court.
“Such abusive behavior on the part of the respondent Judge fails to show his integrity,” the Court said.
See: AM No. RTJ-06-1984, June __, 2009, Nuñez v. Judge Ibay)
Lecture
This month I was invited by the Las Pinas City Judges Association (LPCJA), led by Judge Joselito Vibandor, and the Las Pinas City Bar Association (LPBA), Inc., led by Atty. Melvyn Lagasca and Atty. Hilda Clave, to deliver a series of brief legal lectures on the new 2008 Supreme Court “rule on small claims cases” before the councilmen and youth leaders of two barangays in Las Pinas City, Philippines. For purposes of legal research of the visitors of this blog, may I reproduce below my lecture material.
Lecture Material:
2008 RULE OF PROCEDURE FOR SMALL CLAIMS CASES
(A.M. No. 08-8-7-SC, October 1, 2008, “Rule of Procedure for Small Claims Cases”)
Introduction
The “2008 Rule of Procedure for Small Claims Cases” is a special rule of procedure adopted by the Supreme Court to govern small claims cases. It is now being piloted in designated first level courts (Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts). The Rule allows a plaintiff to sue a defendant without the need of a lawyer.
Purpose
The purpose of a small claims process is to provide a simpler and a more inexpensive and expeditious means of settling disputes involving purely money claims. The plaintiff is allowed to handle his case from start to finish quickly and inexpensively. There are ready-made forms available. Strict court procedures, including the rules of evidence, do not apply. There is no need for a lawyer.
Small Claims
Small claims are exclusively for the payment or reimbursement of a sum of money not exceeding P100,000.00.
Pilot Small Claims Courts
These are first level courts (Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts). The Supreme Court has issued A.O. No. 141-2008 designating 22 first level courts all over the country as pilot courts to hear and decide small claims cases. The pilot courts shall be regularly assessed prior to national application of the Rule by all first-level courts.
Claims Covered
Typical claims include actual damages caused to vehicles, other personal property, real property or person. Money owed under a contract of lease, contract of loan, contract of services, contract of sale, or contract of mortgage, may also be demanded. It also includes purely civil actions for payment of money covered by a bounced or stopped check. An amicable settlement reached in the barangay or an arbitration award involving a money claim may also be enforced under this rule.
Combination of Small Claims
The plaintiff may combine in a single statement of claim one or more separate small claims against the same defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed P100,000.00.
Excluded Claims
Criminal actions are excluded because under the 1987 Constitution (Sec. 14(2) of Article III, Bill of Rights) the accused in all criminal prosecutions has “the right to be heard by himself and counsel.” However, the civil aspect of a criminal action which seeks recovery of money as damages may be heard as a small claim if reserved or instituted separately prior to the filing of the criminal case (Rule 111, Rules of Criminal Procedure). A claim which is not purely for money is not covered by the Rule.
How To Start
The plaintiff must first accomplish a verified Statement of Claim (Form 1-SCC) and certify the information provided, stating that he has not filed any action involving the very same issue in any other court, tribunal or agency through a Verification and Certification of Non-Forum Shopping (Form 1-A-SCC). The Statement of Claim must be accompanied by certified duplicate photocopies of all supporting documents (i.e. contract, promissory note, affidavit/sworn statement of witnesses, pictures, receipts, etc.). The plaintiff then files the Statement of Claim with its accompanying documents with the small claims court, personally or through mail, and pays the correct docket and filing fees. (Sec. 5)
Filing Fees
The plaintiff shall pay the docket and other legal fees prescribed under Rule 141 of the Revised Rules of Court at the time of the filing of the Statement of the Claim with the Office of the Clerk of Court. If you do not have money to pay the fees because of your financial status, you may apply to the small claims court to qualify as an indigent, and once you qualify as an indigent you are exempt from payment of such fees. (Sec. 8). If declared as an indigent, a person is not exempt from payment of the P1,000.00 fee for service of summons and processes in civil cases. (Sec. 8).
Court Action
The court may dismiss the case outright when any grounds for the dismissal of a civil case is apparent or obvious from the Statement of Claim and supporting documents. (Sec. 9). If not dismissed outright, the court informs the defendant that a case has been filed against him through the issuance of Summons (Form 2-SCC) on the day of the receipt of the Statement of the Claim and accompanying documents. Through the Summons, the court directs the defendant to file his verified Response (Form 3-SCC) as well as other supporting documents or evidence, within a non-extendible period of ten (10) days from its receipt. The court also serves a Notice of Hearing (Form 4-SCC) to both parties, directing them to appear before it on a specific date and time, with a warning that no unjustified postponement shall be allowed. (Sec. 10). The Summons and Notice of Hearing must be accompanied by a copy of the Statement of Claim and documents submitted by plaintiff, and a copy of the Response to be accomplished by the defendant. (Sec. 10).
Defendant’s Action
The defendant shall file with the court a duly-accomplished and verified Response together with proof that he has served such Response to plaintiff within the prescribed period. The Response shall also be accompanied by certified copies of documents and the affidavits of witnesses and other evidence in support thereof. (Sec. 11). If he defaults, the court decides the case based on the facts alleged in the Statement of Claim and the supporting documents attached to it. (Sec. 12). The filing of a motion to dismiss instead of a response is prohibited under the rule, except on ground of lack of jurisdiction. (Sec. 14). The defendant may include in his Response a counterclaim. It is a claim which he files against plaintiff to seek the recovery of money only. If the counterclaim is compulsory in nature, it must be raised in the Response; otherwise, it is barred.
Hearing
The parties shall appear at the hearing personally or through a representative they may authorize under a Special Power of Attorney (Form 5-SCC) to enter into an amicable settlement, to submit to Judicial Dispute Resolution (JDR) and to enter into stipulations or admissions of facts and of documentary exhibits. (Sec. 16). Lawyers are not allowed at the hearing unless they are plaintiffs or defendants in the case. However, the parties can still consult with a lawyer to assist them to prepare for the hearing or for other matters outside the hearing. (Sec. 17). If party cannot properly present his claim or defense, the court, in its discretion, may allow another individual who is not a lawyer to assist him. (Sec. 17). If the plaintiff does not appear during the hearing, the claim shall be dismissed without prejudice. If the defendant does not appear, the effect will be the same as failure to file a Response, i.e., the court may decide the case based on the complaint alone. If both parties do not appear, the claim and counterclaim shall be dismissed with prejudice. (Sec. 18). Postponement may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only one (1) postponement. (Sec. 19).
To stress: If the defendant files a Response to the claim, the court shall schedule only one (1) hearing for the purpose of encouraging the parties to settle without the appearance of lawyers, to hear the statement of the parties under oath, and to consider all documentary evidence of the parties. After such hearing, the court will also issue the decision on the same day.
Role of the Judge: Decision or Compromise.
In small claims cases, the role of the judge is to ascertain the factual matters at issue and to elicit the evidence –– all in one hearing, and render a decision thereafter.
The judge shall encourage the parties to settle by employing the different modes of Judicial Dispute Resolution (JDR). The judge who employs JDR – as understood within the context of the rule of procedure for small claims cases – should be confined to exerting efforts in helping the parties arrive at an amicable settlement through mediation, conciliation, early neutral evaluation, or any other mode of JDR. This means the judge shall use any mode to try and bring about an amicable settlement between the parties. Any settlement or resolution of the dispute, shall be reduced into writing, signed by the parties, and submitted to the court for approval. (Sec. 21).
When JDR fails, the parties may agree in writing that the JDR judge shall hear and decide the case. The JDR judge shall proceed with the hearing in an informal and expeditious manner, which shall be terminated within one (1) day. However, if the parties do not agree, the JDR judge shall refer the case to the pairing judge for hearing and decision. (Sec. 22). The pairing judge shall hear and decide the case within five (5) working days from referral.
Appeal
A decision in small claims cases is final and unappealable. (Sec. 23). However, the Rule does not preclude a party from filing a petition for certiorari under Rule 65 of the Rules of Court when there is grave abuse of discretion amounting to lack or excess of jurisdiction in relation to a judgment in a small claims action (Note: Such a petition is prohibited with regard to interlocutory orders). Further, the aggrieved party can also file an action for annulment of judgment when the requirements under the Rules of Civil Procedure are complied with.
Prepared by:
MANUEL J. LASERNA JR., AB, LL.B., LL.M.
Partner, Laserna Cueva-Mercader Law Offices (LCM Law)
Founder, Las Pinas City Bar Association (LPBA), Inc.
Professor of Law, FEU (retired)
Contact:
Laserna Cueva-Mercader Law Offices (LCM Law)
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City
Tel/Fax 8742539; 8725443 (look for staff Prime Cueva)
Mobile: 09267192859.
Email: lcmlaw@gmail.com
Websites: http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
Acknowledgment:
Supreme Court FAQ on the 2008 Rule on Small Claims Cases.
(Visit: http://sc.judiciary.gov.ph).
Lecture Material:
2008 RULE OF PROCEDURE FOR SMALL CLAIMS CASES
(A.M. No. 08-8-7-SC, October 1, 2008, “Rule of Procedure for Small Claims Cases”)
Introduction
The “2008 Rule of Procedure for Small Claims Cases” is a special rule of procedure adopted by the Supreme Court to govern small claims cases. It is now being piloted in designated first level courts (Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts). The Rule allows a plaintiff to sue a defendant without the need of a lawyer.
Purpose
The purpose of a small claims process is to provide a simpler and a more inexpensive and expeditious means of settling disputes involving purely money claims. The plaintiff is allowed to handle his case from start to finish quickly and inexpensively. There are ready-made forms available. Strict court procedures, including the rules of evidence, do not apply. There is no need for a lawyer.
Small Claims
Small claims are exclusively for the payment or reimbursement of a sum of money not exceeding P100,000.00.
Pilot Small Claims Courts
These are first level courts (Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts). The Supreme Court has issued A.O. No. 141-2008 designating 22 first level courts all over the country as pilot courts to hear and decide small claims cases. The pilot courts shall be regularly assessed prior to national application of the Rule by all first-level courts.
Claims Covered
Typical claims include actual damages caused to vehicles, other personal property, real property or person. Money owed under a contract of lease, contract of loan, contract of services, contract of sale, or contract of mortgage, may also be demanded. It also includes purely civil actions for payment of money covered by a bounced or stopped check. An amicable settlement reached in the barangay or an arbitration award involving a money claim may also be enforced under this rule.
Combination of Small Claims
The plaintiff may combine in a single statement of claim one or more separate small claims against the same defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed P100,000.00.
Excluded Claims
Criminal actions are excluded because under the 1987 Constitution (Sec. 14(2) of Article III, Bill of Rights) the accused in all criminal prosecutions has “the right to be heard by himself and counsel.” However, the civil aspect of a criminal action which seeks recovery of money as damages may be heard as a small claim if reserved or instituted separately prior to the filing of the criminal case (Rule 111, Rules of Criminal Procedure). A claim which is not purely for money is not covered by the Rule.
How To Start
The plaintiff must first accomplish a verified Statement of Claim (Form 1-SCC) and certify the information provided, stating that he has not filed any action involving the very same issue in any other court, tribunal or agency through a Verification and Certification of Non-Forum Shopping (Form 1-A-SCC). The Statement of Claim must be accompanied by certified duplicate photocopies of all supporting documents (i.e. contract, promissory note, affidavit/sworn statement of witnesses, pictures, receipts, etc.). The plaintiff then files the Statement of Claim with its accompanying documents with the small claims court, personally or through mail, and pays the correct docket and filing fees. (Sec. 5)
Filing Fees
The plaintiff shall pay the docket and other legal fees prescribed under Rule 141 of the Revised Rules of Court at the time of the filing of the Statement of the Claim with the Office of the Clerk of Court. If you do not have money to pay the fees because of your financial status, you may apply to the small claims court to qualify as an indigent, and once you qualify as an indigent you are exempt from payment of such fees. (Sec. 8). If declared as an indigent, a person is not exempt from payment of the P1,000.00 fee for service of summons and processes in civil cases. (Sec. 8).
Court Action
The court may dismiss the case outright when any grounds for the dismissal of a civil case is apparent or obvious from the Statement of Claim and supporting documents. (Sec. 9). If not dismissed outright, the court informs the defendant that a case has been filed against him through the issuance of Summons (Form 2-SCC) on the day of the receipt of the Statement of the Claim and accompanying documents. Through the Summons, the court directs the defendant to file his verified Response (Form 3-SCC) as well as other supporting documents or evidence, within a non-extendible period of ten (10) days from its receipt. The court also serves a Notice of Hearing (Form 4-SCC) to both parties, directing them to appear before it on a specific date and time, with a warning that no unjustified postponement shall be allowed. (Sec. 10). The Summons and Notice of Hearing must be accompanied by a copy of the Statement of Claim and documents submitted by plaintiff, and a copy of the Response to be accomplished by the defendant. (Sec. 10).
Defendant’s Action
The defendant shall file with the court a duly-accomplished and verified Response together with proof that he has served such Response to plaintiff within the prescribed period. The Response shall also be accompanied by certified copies of documents and the affidavits of witnesses and other evidence in support thereof. (Sec. 11). If he defaults, the court decides the case based on the facts alleged in the Statement of Claim and the supporting documents attached to it. (Sec. 12). The filing of a motion to dismiss instead of a response is prohibited under the rule, except on ground of lack of jurisdiction. (Sec. 14). The defendant may include in his Response a counterclaim. It is a claim which he files against plaintiff to seek the recovery of money only. If the counterclaim is compulsory in nature, it must be raised in the Response; otherwise, it is barred.
Hearing
The parties shall appear at the hearing personally or through a representative they may authorize under a Special Power of Attorney (Form 5-SCC) to enter into an amicable settlement, to submit to Judicial Dispute Resolution (JDR) and to enter into stipulations or admissions of facts and of documentary exhibits. (Sec. 16). Lawyers are not allowed at the hearing unless they are plaintiffs or defendants in the case. However, the parties can still consult with a lawyer to assist them to prepare for the hearing or for other matters outside the hearing. (Sec. 17). If party cannot properly present his claim or defense, the court, in its discretion, may allow another individual who is not a lawyer to assist him. (Sec. 17). If the plaintiff does not appear during the hearing, the claim shall be dismissed without prejudice. If the defendant does not appear, the effect will be the same as failure to file a Response, i.e., the court may decide the case based on the complaint alone. If both parties do not appear, the claim and counterclaim shall be dismissed with prejudice. (Sec. 18). Postponement may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only one (1) postponement. (Sec. 19).
To stress: If the defendant files a Response to the claim, the court shall schedule only one (1) hearing for the purpose of encouraging the parties to settle without the appearance of lawyers, to hear the statement of the parties under oath, and to consider all documentary evidence of the parties. After such hearing, the court will also issue the decision on the same day.
Role of the Judge: Decision or Compromise.
In small claims cases, the role of the judge is to ascertain the factual matters at issue and to elicit the evidence –– all in one hearing, and render a decision thereafter.
The judge shall encourage the parties to settle by employing the different modes of Judicial Dispute Resolution (JDR). The judge who employs JDR – as understood within the context of the rule of procedure for small claims cases – should be confined to exerting efforts in helping the parties arrive at an amicable settlement through mediation, conciliation, early neutral evaluation, or any other mode of JDR. This means the judge shall use any mode to try and bring about an amicable settlement between the parties. Any settlement or resolution of the dispute, shall be reduced into writing, signed by the parties, and submitted to the court for approval. (Sec. 21).
When JDR fails, the parties may agree in writing that the JDR judge shall hear and decide the case. The JDR judge shall proceed with the hearing in an informal and expeditious manner, which shall be terminated within one (1) day. However, if the parties do not agree, the JDR judge shall refer the case to the pairing judge for hearing and decision. (Sec. 22). The pairing judge shall hear and decide the case within five (5) working days from referral.
Appeal
A decision in small claims cases is final and unappealable. (Sec. 23). However, the Rule does not preclude a party from filing a petition for certiorari under Rule 65 of the Rules of Court when there is grave abuse of discretion amounting to lack or excess of jurisdiction in relation to a judgment in a small claims action (Note: Such a petition is prohibited with regard to interlocutory orders). Further, the aggrieved party can also file an action for annulment of judgment when the requirements under the Rules of Civil Procedure are complied with.
Prepared by:
MANUEL J. LASERNA JR., AB, LL.B., LL.M.
Partner, Laserna Cueva-Mercader Law Offices (LCM Law)
Founder, Las Pinas City Bar Association (LPBA), Inc.
Professor of Law, FEU (retired)
Contact:
Laserna Cueva-Mercader Law Offices (LCM Law)
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City
Tel/Fax 8742539; 8725443 (look for staff Prime Cueva)
Mobile: 09267192859.
Email: lcmlaw@gmail.com
Websites: http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
Acknowledgment:
Supreme Court FAQ on the 2008 Rule on Small Claims Cases.
(Visit: http://sc.judiciary.gov.ph).
Tuesday, June 30, 2009
Legal education
NOTES ON LEGAL EDUCATION
IN THE PHILIPPINES
BY
Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader Law Offices
Las Pinas City Bar Association (LPBA), Inc.
http://attylaserna.blogspot.com
R.A. No. 7662
In 1993, the Philippine Congress passed Republic Act No. 7662, entitled the "Legal Education Reform Act of 1993."
Based on the declared the policies of the Philippines as a state to uplift the standards of legal education in order to prepare law students for advocacy, counseling, problem-solving, and decision-making, to infuse in them the ethics of the legal profession; and to impress on them the importance, nobility and dignity of the legal profession as an equal and indispensable partner of the Bench in the administration of justice and to develop social competence, the Legal Education Board created by the law was tasked to undertake appropriate reforms in the legal education system, require proper selection of law students, maintain quality among law schools, and require legal apprenticeship and continuing legal education.
(Note: It is the Supreme Court and not the Legal Education Board that prepares, adopts, approves and implements the rule on mandatory continuing legal education (MCLE), pursuant to the constitutional powers of the Supreme Court under Article VIII of the 1987 Philippine Constitution).
The law enumerates the specific objectives of legal education as follows:
(1) to impart among law students a broad knowledge of law and its various fields and of legal institutions;
(2) to enhance their legal research abilities to enable them to analyze, articulate and apply the law effectively, as well as to allow them to have a holistic approach to legal problems and issues;
(3) to prepare law students for advocacy, counseling, problem-solving and decision-making, and to develop their ability to deal with recognized legal problems of the present and the future;
(4) to develop competence in any field of law as is necessary for gainful employment or sufficient as a foundation for future training beyond the basic professional degree, and to develop in them the desire and capacity for continuing study and self-improvement;
(5) to inculcate in them the ethics and responsibilities of the legal profession; and
(6) to produce lawyers who conscientiously pursue the lofty goals of their profession and to fully adhere to its ethical norms.
Under the law, the Legal Education Board is attached solely for budgetary purposes and administrative support to the Department of Education. It is composed of a Chairman, who is preferably a former justice of the Supreme Court or Court of Appeals, and the following as regular members: a representative of the Integrated Bar of the Philippines (IBP); a representative of the Philippine Association of Law Schools (PALS); a representative from the ranks of active law practitioners; and, a representative from the law students' sector. The Secretary of the Department of Education, Culture and Sports, or his representative, is an ex officio member of the Board. The Chairman and regular members of the Board are appointed by the President for a term of five (5) years without reappointment from a list of at least three (3) nominees prepared, with prior authorization from the Supreme Court, by the Judicial and Bar Council, for every position or vacancy, and no such appointment needs confirmation by the Commission on Appointments. Of those first appointed, the Chairman and the representative of the IBP shall hold office for five (5) years, the representatives of the PALS and the PALP, for three (3) years; and the representative from the ranks of active law practitioners and the representative of the law students' sector, for one (1) year, without reappointment. The Chairman and regular members of the Board have the same salary and rank as the Chairman and members, respectively, of the Constitutional Commissions.
The law enumerates the powers and functions of the Board as follows:
(a) to administer the legal education system in the country in a manner consistent with the provisions of this Act;
(b) to supervise the law schools in the country, consistent with its powers and functions as herein enumerated;
(c) to set the standards of accreditation for law schools taking into account, among others, the size of enrollment, the qualifications of the members of the faculty, the library and other facilities, without encroaching upon the academic freedom of institutions of higher learning;
(d) to accredit law schools that meet the standards of accreditation;
(e) to prescribe minimum standards for law admission and minimum qualifications and compensation of faculty members;
(f) to prescribe the basic curricula for the course of study aligned to the requirements for admission to the Bar, law practice and social consciousness, and such other courses of study as may be prescribed by the law schools and colleges under the different levels of accreditation status;
(g) to establish a law practice internship as a requirement for taking the Bar which a law student shall undergo with any duly accredited private or public law office or firm or legal assistance group anytime during the law course for a specific period that the Board may decide, but not to exceed a total of twelve (12) months. For this purpose, the Board shall prescribe the necessary guidelines for such accreditation and the specifications of such internship which shall include the actual work of a new member of the Bar.
(h) to adopt a system of continuing legal education. For this purpose, the Board may provide for the mandatory attendance of practicing lawyers in such courses and for such duration as the Board may deem necessary; and
(i) to perform such other functions and prescribe such rules and regulations necessary for the attainment of the policies and objectives of this Act.
Educational institutions may not operate a law school unless accredited by the Board. Accreditation of law schools may be granted only to educational institutions recognized by the Government. The Board may withdraw or downgrade the accreditation status of a law school if it fails to maintain the standards set for its accreditation status.
(Note: In the USA, it is the American Bar Association that accredits and rates American law schools).
The law created a special endowment fund, known as the Legal Education Fund, which is under the control of the Board, and administered as a separate fund by the Social Security System (SSS) which invests the same with due and prudent regard to its solvency, safety and liquidity. To form part of the Legal Education Fund, the amount of Ten Million Pesos (P10,000,000.00) was appropriated annually for a period of ten (10) years (1994-2004). Further, the Fund is supported by sixty percent (60%) of the privilege tax paid by every lawyer effective Fiscal Year 1994; and from such donations, legacies, grant-in-aid and other forms of contributions received by the Board for the purposes of the law. Being a special endowment fund, only the interests earned on the Legal Education Fund is used exclusively for the purposes of the law, including support for faculty development grants, professorial chairs, library improvements and similar programs for the advancement of law teaching and education in accredited law schools. The Fund is also used for the operation of the Board. For this purpose, an amount not exceeding ten percent (10%) of the interest on the Fund is utilized.
Rule 138: Admission to the Philippine Bar
Rule 138 of the Rules of court provides that “every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.” (Sec. 2).
All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law ,school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accom¬panied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. (Sec. 5).
No applicant shall be admitted to the bar examination unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics. (Id.).
No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, English, Spanish, history and economics. (Sec. 6).
Bar examinees shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation: Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).
The bar examinations shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners (now held on the four [4] Sundays of November of each year). The subject shall be distributed as follows: First day: Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day: Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon). (Sec. 11).
Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. (Sec. 12).
In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law, 10 per cent: Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent. (Sec. 14).
Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.
The professors of the individual review subjects attended by the candidates under this rule certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject. (Sec.16).
(Note: Under B.M. No. 1161, June 8, 2004, Re: Reform in the Bar Examinations, a candidate who has failed three (3) examinations may take a fourth and a fifth examinations if he successfully completes a one (1) year refresher course for each examination. Under the new rule, a candidate who has already failed in five (5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course. If he again fails that final chance, he must take the entire law course all over again).
Rule 138 enumerates the duties of an attorney as follows:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law;
(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;
(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law. (Sec. 20).
The foregoing duties must be correlated to the lawyer’s oath, thus:
"I,_____________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God." (Sec. 3).
Rule 138-A: Clinical Legal Education Program
Under Rule 138-A of the Rules of Court, the Supreme Court approves the clinical legal education programs of Philippine law schools, subject to the following adjustments/requirements:
1. Only students who have passed Civil Procedure, Criminal Procedure, Evidence, Special Proceedings, Legal Forms, and Legal Ethics may be enrolled in the program, subject to the requirements set forth in Rule 138-A of the Rules of Court;
2. Only students who have completed the 3rd year of the regular four-year prescribed law curriculum may be enrolled in the program; and
3. The amount of the allowance given to students should be minimal in compliance with the provision of the law that students should appear without any compensation. (For example, see: B.M. No. 1489 , November 15, 2005, RE: CLINICAL LEGAL EDUCATION PROGRAM OF THE MARCELO H. DEL PILAR, COLLEGE OF LAW, BULACAN STATE UNIVERSITY).
Rule 138-A provides that a law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in “any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients” accepted by the legal clinic of the law school.
The appearance of the law student shall be under, the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. All pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervening attorney for and in behalf of the legal clinic.
The rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic.
The law student shall comply with the standards of professional conduct governing members of the Bar.
Failure of a supervising attorney to provide adequate supervision to the law students enrolled in the program may be a ground for disciplinary action. (SC Circular No. 19, prom. Dec. 19, 1986.)
Corollary to this, Sec. 34, Rule 138, provides that in the court of a municipality a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
Under Sec. 31, Rule 138, a court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138).
Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. But the amounts thereof as provided in sec. 31, Rule 138, are embarrassingly impoverished, thus: “Whenever such compensation is allowed, it shall not be less than thirty pesos (P30) in any case, nor more than the following amounts: (1) Fifty pesos (P50) in light felonies; (2) One hundred pesos (P100) in less grave felonies; (3) Two hundred pesos (P200) in grave felonies other than capital offenses; (4) Five hundred pesos (P500) in capital offenses.” (Sec. 31, Id.).
B.M. No. 1161 (2004): Bar Examinations Reform
Since 2004, the Supreme Court has attempted to reform the bar examinations. The reforms stated in B.M. No. 1161, June 8, 2004 are enumerated hereinbelow.
For implementation within one (1) up to two (2) years:
1. Initial determination by the Chairman of admission to the bar examinations of candidates (on the merits of the each case) to be passed upon by the Court en banc.
2. Submission by law deans of a certification that a candidate has no derogatory record in school and, if any, the details and status thereof.
3. Disqualification of a candidate after failing in three (3) examinations, provided, that he may take a fourth and fifth examination if he successful completes a one (1) year refresher course for each examination; provided, further, that upon the effectivity of this Resolution, those who have already failed in five(5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course.
4. Promulgation of disciplinary measures for those involved in (a) attempts to violate or vitiate the integrity and confidentiality of the bar examination process; (b) improper conduct during the bar examination; and (c) improper conduct of "bar examinations."
5. Disqualification of a Bar Examination Chairperson:
5.1. kinship with an examinee who if his or her spouse or relative within the third civil degree of consanguinity;
5.2. having a member of his or her office staff as an examinee, or when the spouse or child of such staff member is an examinee; and
5.3. being a member of the governing board, faculty or administration of a law school.
6. Desirable qualifications of Examiners:
6.1. membership in good standing in the Philippine Bar;
6.2. competence in the assigned subject;
6.3. a teacher of the subject or familiarity with the principles of test construction; and
6.4. commitment to check test papers personally and promptly pending the creation and organization of the readership panels provided for in item B(6) below
7. Disqualifications of Examiners:
7.1. kinship with an examinee who is his or her spouse or relative within the third civil degree of consanguinity or affinity;
7.2. having a member of his or her office staff as an examinee; or when the spouse or child of such staff member is an examinee;
7.3. being a member of the governing board, faculty or administration of a law school;
7.4. teaching or lecturing in any law school, institution or review center during the particular semester following the bar examinations;
7.5. having any interest or involvement in any law school, bar review center or group; and
7.6. suspension or disbarment from the practice of law or the imposition of any other serious disciplinary sanction.
8. Personal preparation, by handwriting or using a typewriter, of fifty (50) main questions, excluding subdivisions, and their submission to the Chairperson in sealed envelope at least forty-five (45) days before the schedule examination on any particular subject; examiners should not use computers in preparing questions;
9. Apportionment of examination questions among the various topics covered by the subject;
10. Burning and shredding of rough drafts and carbon papers used in the preparation of questions or in any other act connected with such preparation;
11. Publication of names candidates admitted to take the bar examinations;
12. Disqualification of a candidate who obtains a grade below 50% in any subject;
13. Fixing at June 30 of the immediately preceding year as the cut-off date for laws and Supreme Court decisions and resolutions to be included in the bar examinations; and
14. Consideration of suggested answers to bar examinations questions prepared by the U.P. Law Center and submitted to the Chairperson.
For implementation within two (2) years up to five (5) years:
1. Adoption of objective multiple-choice questions for 30% to 40% of the total number of questions;
2. Formulation of essay test questions and "model answers" as part of the calibration of test papers;
3. Introduction of performance testing by way of revising and improving the essay examination;
4. Designation of two (2) examiners per subject depending on the number of examinees ;
5. Appointment of a tenured Board of Examiners with an incumbent Supreme Court Justice as Chairperson;
6. Creation and organization of readership panels for each subject area to address the issue of bias or subjectivity and facilitate the formulation of test questions and the correction of examination booklets; and
7. Adoption of the calibration method in the corrections of essay questions to correct variations in the level of test standards.
For implementation within five (5) years and beyond is the further computerization or automation of the bar examinations to facilitate application, testing, and reporting procedures.
Items not covered by the resolution, such as those that pertain to a possible review of the coverage and relative weights of the subjects of the bar examinations, are maintained.
For referral to the Legal Education Board:
1. Accreditation and supervision of law schools.
2. Inclusion of a subject on clinical legal education in the law curriculum, including an apprenticeship program in the Judiciary, prosecution service, and law offices.
3. Imposition of sanctions on law schools that fail to meet the standards as may be prescribed by the Legal Education Board.
4. Mandatory Law School Admission Test.
University of the East vs. Romeo A. Jader,
G.R. No. 132344, February 17, 2000.
May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case? The Supreme Court answered the question in the affirmative.
The Court held that when a student is enrolled in any educational or learning institution, a “contract of education” is entered into between said institution and the student. The professors, teachers or instructors hired by the school are considered “merely as agents and administrators tasked to perform the school’s commitment under the contract”. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with the former’s agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information.
Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, could not be said to have acted in good faith. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious. It was the school that had access to those information and it was only the school that could compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students did not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the school’s rules and orders. Being the party that hired them, it was the school that exercised general supervision and exclusive control over the professors with respect to the submission of reports involving the students’ standing. Exclusive control means that no other person or entity had any control over the instrumentality which caused the damage or injury.
The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services. He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a student’s grade, is not only imputable to the professor but is an act of the school, being his employer.
The Court cited Articles 19 and 20 of the Civil Code:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.
Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. In civilized society, men must be able to assume that others will do them no intended injury – that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Jksm â Ó
Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages. Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable. Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student’s grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner’s liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course.
Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it. The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit. If mere fault or negligence in one’s acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse.
However, the Court stated that while petitioner was guilty of negligence and thus liable to respondent for the latter’s actual damages, it held that respondent should not have been awarded moral damages by the lower courts. The Court did not agree with the Court of Appeals’ findings that respondent suffered shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, were in order. Given these considerations, the Court failed to see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he had satisfied all the requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of requirements which the prospective examinee must meet, the Court added.
FERDINAND A. CRUZ vs. JUDGE PRISCILLA MIJARES, et. al.,
G.R. No. 154464, September 11, 2008.
In the case of Cruz vs. Judge Mijares, G.R. No. 154464, September 11, 2008, the Supreme Court held that under Bar Matter 730, in relation to Section 34 of Rule 138, “a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts”. The Court recognized the right of an individual to represent himself in any case to which he is a party. Sec. 34 of Rule 138 states that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, he runs the risk of falling into the snares and hazards of his own ignorance. In the case at bar, the petitioner Cruz was the plaintiff, at his own instance, in Civil Case No. 01-0410 before the Regional Trial Court of Pasay City. He would then be acting not as a counsel or lawyer, “but as a party exercising his right to represent himself”.
On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally.
Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. – A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.
Sec. 2. Appearance. – The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.
The respondent court held that the petitioner could not appear for himself and on his behalf because of his failure to comply with Rule 138-A. In denying petitioner’s appearance, the court a quo tersely found refuge in the fact that, on December 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he was enrolled in a recognized school’s clinical legal education program and was under supervision of an attorney duly accredited by the law school.
However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138, which provides:
Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
and is a rule distinct from Rule 138-A.
From the clear language of this provision of the Rules, the Court conceded that the contention of the petitioner had merit. The Court recognized the right of an individual to represent himself in any case to which he was a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, he, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. In the case at bar, Cruz who was the plaintiff, at his own instance, in Civil Case No. 01-0410 before the Regional Trial Court of Pasay City was “acting not as a counsel or lawyer, but as a party exercising his right to represent himself”.
The trial court must have been misled by the fact that the petitioner was a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of the petitioner’s claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party representing himself.
The Court held that the conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 was misplaced. The Court never intended to repeal Rule 138 when it released the guidelines for limited law student practice. In fact, it was intended as an addendum to the instances when a non-lawyer may appear in courts and was incorporated to the Rules of Court through Rule 138-A.
It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by himself and counsel, the Court has held that during the trial, the right to counsel cannot be waived. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.
The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the Constitution accords the accused in a criminal prosecution obviously did not obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a lawyer’s assistance, effectively undertake the successful pursuit of his claim, may be given the chance to do so. In this case, petitioner alleges that he was a law student and impliedly asserted that he had the competence to litigate the case himself. Evidently, he was aware of the perils incident to this decision.
In addition, it was subsequently clarified that under Bar Matter 730, in relation to Section 34, Rule 138, “a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts”. In the case at bar, petitioner Cruz “was a law student who, as party litigant, wished to represent himself in court”. The Court said it should grant his wish.
June 30, 2009
IN THE PHILIPPINES
BY
Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader Law Offices
Las Pinas City Bar Association (LPBA), Inc.
http://attylaserna.blogspot.com
R.A. No. 7662
In 1993, the Philippine Congress passed Republic Act No. 7662, entitled the "Legal Education Reform Act of 1993."
Based on the declared the policies of the Philippines as a state to uplift the standards of legal education in order to prepare law students for advocacy, counseling, problem-solving, and decision-making, to infuse in them the ethics of the legal profession; and to impress on them the importance, nobility and dignity of the legal profession as an equal and indispensable partner of the Bench in the administration of justice and to develop social competence, the Legal Education Board created by the law was tasked to undertake appropriate reforms in the legal education system, require proper selection of law students, maintain quality among law schools, and require legal apprenticeship and continuing legal education.
(Note: It is the Supreme Court and not the Legal Education Board that prepares, adopts, approves and implements the rule on mandatory continuing legal education (MCLE), pursuant to the constitutional powers of the Supreme Court under Article VIII of the 1987 Philippine Constitution).
The law enumerates the specific objectives of legal education as follows:
(1) to impart among law students a broad knowledge of law and its various fields and of legal institutions;
(2) to enhance their legal research abilities to enable them to analyze, articulate and apply the law effectively, as well as to allow them to have a holistic approach to legal problems and issues;
(3) to prepare law students for advocacy, counseling, problem-solving and decision-making, and to develop their ability to deal with recognized legal problems of the present and the future;
(4) to develop competence in any field of law as is necessary for gainful employment or sufficient as a foundation for future training beyond the basic professional degree, and to develop in them the desire and capacity for continuing study and self-improvement;
(5) to inculcate in them the ethics and responsibilities of the legal profession; and
(6) to produce lawyers who conscientiously pursue the lofty goals of their profession and to fully adhere to its ethical norms.
Under the law, the Legal Education Board is attached solely for budgetary purposes and administrative support to the Department of Education. It is composed of a Chairman, who is preferably a former justice of the Supreme Court or Court of Appeals, and the following as regular members: a representative of the Integrated Bar of the Philippines (IBP); a representative of the Philippine Association of Law Schools (PALS); a representative from the ranks of active law practitioners; and, a representative from the law students' sector. The Secretary of the Department of Education, Culture and Sports, or his representative, is an ex officio member of the Board. The Chairman and regular members of the Board are appointed by the President for a term of five (5) years without reappointment from a list of at least three (3) nominees prepared, with prior authorization from the Supreme Court, by the Judicial and Bar Council, for every position or vacancy, and no such appointment needs confirmation by the Commission on Appointments. Of those first appointed, the Chairman and the representative of the IBP shall hold office for five (5) years, the representatives of the PALS and the PALP, for three (3) years; and the representative from the ranks of active law practitioners and the representative of the law students' sector, for one (1) year, without reappointment. The Chairman and regular members of the Board have the same salary and rank as the Chairman and members, respectively, of the Constitutional Commissions.
The law enumerates the powers and functions of the Board as follows:
(a) to administer the legal education system in the country in a manner consistent with the provisions of this Act;
(b) to supervise the law schools in the country, consistent with its powers and functions as herein enumerated;
(c) to set the standards of accreditation for law schools taking into account, among others, the size of enrollment, the qualifications of the members of the faculty, the library and other facilities, without encroaching upon the academic freedom of institutions of higher learning;
(d) to accredit law schools that meet the standards of accreditation;
(e) to prescribe minimum standards for law admission and minimum qualifications and compensation of faculty members;
(f) to prescribe the basic curricula for the course of study aligned to the requirements for admission to the Bar, law practice and social consciousness, and such other courses of study as may be prescribed by the law schools and colleges under the different levels of accreditation status;
(g) to establish a law practice internship as a requirement for taking the Bar which a law student shall undergo with any duly accredited private or public law office or firm or legal assistance group anytime during the law course for a specific period that the Board may decide, but not to exceed a total of twelve (12) months. For this purpose, the Board shall prescribe the necessary guidelines for such accreditation and the specifications of such internship which shall include the actual work of a new member of the Bar.
(h) to adopt a system of continuing legal education. For this purpose, the Board may provide for the mandatory attendance of practicing lawyers in such courses and for such duration as the Board may deem necessary; and
(i) to perform such other functions and prescribe such rules and regulations necessary for the attainment of the policies and objectives of this Act.
Educational institutions may not operate a law school unless accredited by the Board. Accreditation of law schools may be granted only to educational institutions recognized by the Government. The Board may withdraw or downgrade the accreditation status of a law school if it fails to maintain the standards set for its accreditation status.
(Note: In the USA, it is the American Bar Association that accredits and rates American law schools).
The law created a special endowment fund, known as the Legal Education Fund, which is under the control of the Board, and administered as a separate fund by the Social Security System (SSS) which invests the same with due and prudent regard to its solvency, safety and liquidity. To form part of the Legal Education Fund, the amount of Ten Million Pesos (P10,000,000.00) was appropriated annually for a period of ten (10) years (1994-2004). Further, the Fund is supported by sixty percent (60%) of the privilege tax paid by every lawyer effective Fiscal Year 1994; and from such donations, legacies, grant-in-aid and other forms of contributions received by the Board for the purposes of the law. Being a special endowment fund, only the interests earned on the Legal Education Fund is used exclusively for the purposes of the law, including support for faculty development grants, professorial chairs, library improvements and similar programs for the advancement of law teaching and education in accredited law schools. The Fund is also used for the operation of the Board. For this purpose, an amount not exceeding ten percent (10%) of the interest on the Fund is utilized.
Rule 138: Admission to the Philippine Bar
Rule 138 of the Rules of court provides that “every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.” (Sec. 2).
All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law ,school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accom¬panied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. (Sec. 5).
No applicant shall be admitted to the bar examination unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics. (Id.).
No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, English, Spanish, history and economics. (Sec. 6).
Bar examinees shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation: Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).
The bar examinations shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners (now held on the four [4] Sundays of November of each year). The subject shall be distributed as follows: First day: Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day: Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon). (Sec. 11).
Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. (Sec. 12).
In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law, 10 per cent: Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent. (Sec. 14).
Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.
The professors of the individual review subjects attended by the candidates under this rule certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject. (Sec.16).
(Note: Under B.M. No. 1161, June 8, 2004, Re: Reform in the Bar Examinations, a candidate who has failed three (3) examinations may take a fourth and a fifth examinations if he successfully completes a one (1) year refresher course for each examination. Under the new rule, a candidate who has already failed in five (5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course. If he again fails that final chance, he must take the entire law course all over again).
Rule 138 enumerates the duties of an attorney as follows:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law;
(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;
(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law. (Sec. 20).
The foregoing duties must be correlated to the lawyer’s oath, thus:
"I,_____________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God." (Sec. 3).
Rule 138-A: Clinical Legal Education Program
Under Rule 138-A of the Rules of Court, the Supreme Court approves the clinical legal education programs of Philippine law schools, subject to the following adjustments/requirements:
1. Only students who have passed Civil Procedure, Criminal Procedure, Evidence, Special Proceedings, Legal Forms, and Legal Ethics may be enrolled in the program, subject to the requirements set forth in Rule 138-A of the Rules of Court;
2. Only students who have completed the 3rd year of the regular four-year prescribed law curriculum may be enrolled in the program; and
3. The amount of the allowance given to students should be minimal in compliance with the provision of the law that students should appear without any compensation. (For example, see: B.M. No. 1489 , November 15, 2005, RE: CLINICAL LEGAL EDUCATION PROGRAM OF THE MARCELO H. DEL PILAR, COLLEGE OF LAW, BULACAN STATE UNIVERSITY).
Rule 138-A provides that a law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in “any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients” accepted by the legal clinic of the law school.
The appearance of the law student shall be under, the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. All pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervening attorney for and in behalf of the legal clinic.
The rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic.
The law student shall comply with the standards of professional conduct governing members of the Bar.
Failure of a supervising attorney to provide adequate supervision to the law students enrolled in the program may be a ground for disciplinary action. (SC Circular No. 19, prom. Dec. 19, 1986.)
Corollary to this, Sec. 34, Rule 138, provides that in the court of a municipality a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
Under Sec. 31, Rule 138, a court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138).
Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. But the amounts thereof as provided in sec. 31, Rule 138, are embarrassingly impoverished, thus: “Whenever such compensation is allowed, it shall not be less than thirty pesos (P30) in any case, nor more than the following amounts: (1) Fifty pesos (P50) in light felonies; (2) One hundred pesos (P100) in less grave felonies; (3) Two hundred pesos (P200) in grave felonies other than capital offenses; (4) Five hundred pesos (P500) in capital offenses.” (Sec. 31, Id.).
B.M. No. 1161 (2004): Bar Examinations Reform
Since 2004, the Supreme Court has attempted to reform the bar examinations. The reforms stated in B.M. No. 1161, June 8, 2004 are enumerated hereinbelow.
For implementation within one (1) up to two (2) years:
1. Initial determination by the Chairman of admission to the bar examinations of candidates (on the merits of the each case) to be passed upon by the Court en banc.
2. Submission by law deans of a certification that a candidate has no derogatory record in school and, if any, the details and status thereof.
3. Disqualification of a candidate after failing in three (3) examinations, provided, that he may take a fourth and fifth examination if he successful completes a one (1) year refresher course for each examination; provided, further, that upon the effectivity of this Resolution, those who have already failed in five(5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course.
4. Promulgation of disciplinary measures for those involved in (a) attempts to violate or vitiate the integrity and confidentiality of the bar examination process; (b) improper conduct during the bar examination; and (c) improper conduct of "bar examinations."
5. Disqualification of a Bar Examination Chairperson:
5.1. kinship with an examinee who if his or her spouse or relative within the third civil degree of consanguinity;
5.2. having a member of his or her office staff as an examinee, or when the spouse or child of such staff member is an examinee; and
5.3. being a member of the governing board, faculty or administration of a law school.
6. Desirable qualifications of Examiners:
6.1. membership in good standing in the Philippine Bar;
6.2. competence in the assigned subject;
6.3. a teacher of the subject or familiarity with the principles of test construction; and
6.4. commitment to check test papers personally and promptly pending the creation and organization of the readership panels provided for in item B(6) below
7. Disqualifications of Examiners:
7.1. kinship with an examinee who is his or her spouse or relative within the third civil degree of consanguinity or affinity;
7.2. having a member of his or her office staff as an examinee; or when the spouse or child of such staff member is an examinee;
7.3. being a member of the governing board, faculty or administration of a law school;
7.4. teaching or lecturing in any law school, institution or review center during the particular semester following the bar examinations;
7.5. having any interest or involvement in any law school, bar review center or group; and
7.6. suspension or disbarment from the practice of law or the imposition of any other serious disciplinary sanction.
8. Personal preparation, by handwriting or using a typewriter, of fifty (50) main questions, excluding subdivisions, and their submission to the Chairperson in sealed envelope at least forty-five (45) days before the schedule examination on any particular subject; examiners should not use computers in preparing questions;
9. Apportionment of examination questions among the various topics covered by the subject;
10. Burning and shredding of rough drafts and carbon papers used in the preparation of questions or in any other act connected with such preparation;
11. Publication of names candidates admitted to take the bar examinations;
12. Disqualification of a candidate who obtains a grade below 50% in any subject;
13. Fixing at June 30 of the immediately preceding year as the cut-off date for laws and Supreme Court decisions and resolutions to be included in the bar examinations; and
14. Consideration of suggested answers to bar examinations questions prepared by the U.P. Law Center and submitted to the Chairperson.
For implementation within two (2) years up to five (5) years:
1. Adoption of objective multiple-choice questions for 30% to 40% of the total number of questions;
2. Formulation of essay test questions and "model answers" as part of the calibration of test papers;
3. Introduction of performance testing by way of revising and improving the essay examination;
4. Designation of two (2) examiners per subject depending on the number of examinees ;
5. Appointment of a tenured Board of Examiners with an incumbent Supreme Court Justice as Chairperson;
6. Creation and organization of readership panels for each subject area to address the issue of bias or subjectivity and facilitate the formulation of test questions and the correction of examination booklets; and
7. Adoption of the calibration method in the corrections of essay questions to correct variations in the level of test standards.
For implementation within five (5) years and beyond is the further computerization or automation of the bar examinations to facilitate application, testing, and reporting procedures.
Items not covered by the resolution, such as those that pertain to a possible review of the coverage and relative weights of the subjects of the bar examinations, are maintained.
For referral to the Legal Education Board:
1. Accreditation and supervision of law schools.
2. Inclusion of a subject on clinical legal education in the law curriculum, including an apprenticeship program in the Judiciary, prosecution service, and law offices.
3. Imposition of sanctions on law schools that fail to meet the standards as may be prescribed by the Legal Education Board.
4. Mandatory Law School Admission Test.
University of the East vs. Romeo A. Jader,
G.R. No. 132344, February 17, 2000.
May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case? The Supreme Court answered the question in the affirmative.
The Court held that when a student is enrolled in any educational or learning institution, a “contract of education” is entered into between said institution and the student. The professors, teachers or instructors hired by the school are considered “merely as agents and administrators tasked to perform the school’s commitment under the contract”. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with the former’s agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information.
Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, could not be said to have acted in good faith. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious. It was the school that had access to those information and it was only the school that could compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students did not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the school’s rules and orders. Being the party that hired them, it was the school that exercised general supervision and exclusive control over the professors with respect to the submission of reports involving the students’ standing. Exclusive control means that no other person or entity had any control over the instrumentality which caused the damage or injury.
The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services. He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a student’s grade, is not only imputable to the professor but is an act of the school, being his employer.
The Court cited Articles 19 and 20 of the Civil Code:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.
Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. In civilized society, men must be able to assume that others will do them no intended injury – that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Jksm â Ó
Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages. Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable. Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student’s grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner’s liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course.
Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it. The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit. If mere fault or negligence in one’s acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse.
However, the Court stated that while petitioner was guilty of negligence and thus liable to respondent for the latter’s actual damages, it held that respondent should not have been awarded moral damages by the lower courts. The Court did not agree with the Court of Appeals’ findings that respondent suffered shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, were in order. Given these considerations, the Court failed to see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he had satisfied all the requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of requirements which the prospective examinee must meet, the Court added.
FERDINAND A. CRUZ vs. JUDGE PRISCILLA MIJARES, et. al.,
G.R. No. 154464, September 11, 2008.
In the case of Cruz vs. Judge Mijares, G.R. No. 154464, September 11, 2008, the Supreme Court held that under Bar Matter 730, in relation to Section 34 of Rule 138, “a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts”. The Court recognized the right of an individual to represent himself in any case to which he is a party. Sec. 34 of Rule 138 states that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, he runs the risk of falling into the snares and hazards of his own ignorance. In the case at bar, the petitioner Cruz was the plaintiff, at his own instance, in Civil Case No. 01-0410 before the Regional Trial Court of Pasay City. He would then be acting not as a counsel or lawyer, “but as a party exercising his right to represent himself”.
On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally.
Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. – A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.
Sec. 2. Appearance. – The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.
The respondent court held that the petitioner could not appear for himself and on his behalf because of his failure to comply with Rule 138-A. In denying petitioner’s appearance, the court a quo tersely found refuge in the fact that, on December 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he was enrolled in a recognized school’s clinical legal education program and was under supervision of an attorney duly accredited by the law school.
However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138, which provides:
Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
and is a rule distinct from Rule 138-A.
From the clear language of this provision of the Rules, the Court conceded that the contention of the petitioner had merit. The Court recognized the right of an individual to represent himself in any case to which he was a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, he, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. In the case at bar, Cruz who was the plaintiff, at his own instance, in Civil Case No. 01-0410 before the Regional Trial Court of Pasay City was “acting not as a counsel or lawyer, but as a party exercising his right to represent himself”.
The trial court must have been misled by the fact that the petitioner was a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of the petitioner’s claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party representing himself.
The Court held that the conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 was misplaced. The Court never intended to repeal Rule 138 when it released the guidelines for limited law student practice. In fact, it was intended as an addendum to the instances when a non-lawyer may appear in courts and was incorporated to the Rules of Court through Rule 138-A.
It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by himself and counsel, the Court has held that during the trial, the right to counsel cannot be waived. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.
The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the Constitution accords the accused in a criminal prosecution obviously did not obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a lawyer’s assistance, effectively undertake the successful pursuit of his claim, may be given the chance to do so. In this case, petitioner alleges that he was a law student and impliedly asserted that he had the competence to litigate the case himself. Evidently, he was aware of the perils incident to this decision.
In addition, it was subsequently clarified that under Bar Matter 730, in relation to Section 34, Rule 138, “a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts”. In the case at bar, petitioner Cruz “was a law student who, as party litigant, wished to represent himself in court”. The Court said it should grant his wish.
June 30, 2009
Monday, June 29, 2009
Legal aid
Good news for Filipino lawyers. The Supreme Court deferred until December 31, 2009 the implementation of the Rule on Mandatory Legal Aid Service, which should have taken effect on July 1. Instead, the Rule will take effect on January 1, 2010 provided its implementing regulations have been published prior to the said date.
In an En Banc resolution, the Court directed the Integrated Bar of the Philippines (IBP) Board of Governors to finalize and submit the draft implementing regulations for the final approval of this Court as soon as possible. Likewise, it directed the IBP to submit its comment on the Rule itself, particularly on the concerns that rendition of free legal aid service should be voluntary and that the Rule will spawn litigations and clog court dockets and other related concerns.
Under the Rule, every practicing lawyer will be mandated to render a minimum of 60 hours of free legal aid services to indigent litigants yearly, among others.
The Rule is aimed at enhancing “the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them.”
In an En Banc resolution, the Court directed the Integrated Bar of the Philippines (IBP) Board of Governors to finalize and submit the draft implementing regulations for the final approval of this Court as soon as possible. Likewise, it directed the IBP to submit its comment on the Rule itself, particularly on the concerns that rendition of free legal aid service should be voluntary and that the Rule will spawn litigations and clog court dockets and other related concerns.
Under the Rule, every practicing lawyer will be mandated to render a minimum of 60 hours of free legal aid services to indigent litigants yearly, among others.
The Rule is aimed at enhancing “the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them.”
Notarial violations
In the very recent case of AC No. 7036, Judge Laquindanum v. Atty. Quintana, June 26, 2009, which is summarized in the Philippine Supreme Court website (www.sc.judiciary.gov.ph), the Court revoked the notarial commission of Atty. Nestor Q. Quintana and disqualified him from being commissioned as notary public for a period of two years. Likewise, he was suspended from the practice of law for six months effectively immediately and was warned that a repetition of the same would be dealt more severely.
Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he has notarized documents outside the area of his commission as notary public, performed notarial acts with an expired commission, allowed his wife to notarize documents in his absence, and notarized a document where one of the signatories there was already dead at that time.
The High Court also said that Atty. Quintana “fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.”
Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he has notarized documents outside the area of his commission as notary public, performed notarial acts with an expired commission, allowed his wife to notarize documents in his absence, and notarized a document where one of the signatories there was already dead at that time.
The High Court also said that Atty. Quintana “fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.”
Ignorance
In the very fresh cases of AM No. RTJ-07-2063, Republic v. Judge Caguioa; AM No. RTJ-07-2064, CIR v. Judge Caguioa; and AM No. RTJ-07-2066, Burns Jr. v. Judge Caguioa, June 2009, the Philippine Supreme Court dismissed veteran trial judge Ramon S. Caguioa whose sala is located in the lucrative city of Olongapo, the site of the rich Subic Freeport where multi-billion companies do business.
According to an item in the Supreme Court website, the Court has dismissed the Judge Ramon S. Caguioa, presiding judge of the Olongapo City RTC, Branch 74, for gross ignorance of the law and conduct prejudicial to the best interest of the service.
In a 31-page per curiam consolidated decision, the Court ordered the forfeiture of Judge Caguioa’s retirement benefits, except accrued leave credits. Judge Caguioa was faulted for his erroneous issuances of writ of preliminary injunctions in cases pending before his sala.
“Ignorance of the law is the mainspring of injustice. Judges are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. Basic rules should be at the palm of their hands their inexcusable failure to observe basic laws and rules will render them administratively liable,” the Court said.
The first administrative case stemmed from the civil case Indigo Distribution Corp. Inc v. Secretary of Finance filed before Judge Caguioa’s court. Indigo, et al., importers and traders licensed to operate inside the Subic Bay Freeport Zone, have been granted by Subic Bay Metropolitan Authority (SBMA) certificates of registration and tax exemptions.
Indigo, et al. filed a case before Judge Caguioa’s sala when SBMA, pursuant to RA 7227 (An Act Accelerating the Conversion of Military Reservations into Other Public uses, Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other Purposes), subsequently required them to pay corresponding duties and taxes on their importation of cigars, cigarettes, liquors and wines
Judge Caguioa granted Indigo’s petition for the issuance of writ of preliminary injunction and approved the injunction bond amounting to PhP1 million for all petitioners. During the pendency of Republic’s appeal before the High Court, Judge Caguioa granted various ex parte motions for interventions of different corporations claiming to be similarly situation with Indigo and allowed them to ride on the injunctive bond posted by Indigo. The High Court subsequently declared the assailed order of judge null and void citing for grave abuse of discretion.
The High Court ruled that taxes are the lifeblood of the government and it is of public interest that the collection of which should not be restrained. It held that the applicants for the writ showed no clear and unmistakable right that was material and substantial to warrant the issuance of writ, nor the urgency and necessity of such. Worst, Judge Caguioa, in his issuance of the said writ, had failed to observe due process when the Office of the Solicitor General (OSG), representing the Republic, was not served copies of the motions for intervention.
In a similar case, Judge Caguioa erroneously issued a temporary restraining order and writ of preliminary injunction in the petition for mandamus filed by District Collector of Customs in the Port of Subic Andres D. Salvacion, Jr. against his then would-be replacement Gracia Z Caringal, et al. Subsequently, he enjoined the CIR and the Finance Secretary to observe and respect his issuances.
On appeal, the CA ruled that Judge Caguioa should have dismissed the case for improper venue. The CA said that the petition for mandamus, which relates to the acts of officers, must be filed in the RTC exercising jurisdiction over the territorial area covering said officers, which in this case was Manila because the main office of Commission was in Manila.
The High Court said that Judge Caguioa’s issuance of the writ in the above case did not satisfy the legal requisite for its issuances and was enforced outside his territorial jurisdiction. It upheld the CA ruling that the applicant had failed to establish that he has a clear and unmistakable right that was violated so as to warrant the issuance of an injunction.
Judge Caguioa was also found guilty of simple misconduct and ordered suspended from office without pay for three months in a third administrative case which stemmed from another civil case. The case against his co-respondent Sheriff Christopher T. Perez, however, was dismissed for lack of merit. The Court said Sheriff Perez cannot be faulted for implementing a writ of execution pursuant to Judge Caguioa’s order.
The High Court held that Judge Caguioa did not adjudicate any rights of the parties and resolved no other matter except the dismissal of the case on the ground of prescription. Thus, his order to place private respondents in possession of the disputed property is not necessarily included in or necessary to the judgment of the dismissal of the case on the ground of “prescription.”
The High Court said that the execution was highly improper because of the fact that Judge Caguioa has been apprised of the pendency of the reversion suits filed by the Republic involving the same parcels of land in another Olongapo RTC.
According to an item in the Supreme Court website, the Court has dismissed the Judge Ramon S. Caguioa, presiding judge of the Olongapo City RTC, Branch 74, for gross ignorance of the law and conduct prejudicial to the best interest of the service.
In a 31-page per curiam consolidated decision, the Court ordered the forfeiture of Judge Caguioa’s retirement benefits, except accrued leave credits. Judge Caguioa was faulted for his erroneous issuances of writ of preliminary injunctions in cases pending before his sala.
“Ignorance of the law is the mainspring of injustice. Judges are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. Basic rules should be at the palm of their hands their inexcusable failure to observe basic laws and rules will render them administratively liable,” the Court said.
The first administrative case stemmed from the civil case Indigo Distribution Corp. Inc v. Secretary of Finance filed before Judge Caguioa’s court. Indigo, et al., importers and traders licensed to operate inside the Subic Bay Freeport Zone, have been granted by Subic Bay Metropolitan Authority (SBMA) certificates of registration and tax exemptions.
Indigo, et al. filed a case before Judge Caguioa’s sala when SBMA, pursuant to RA 7227 (An Act Accelerating the Conversion of Military Reservations into Other Public uses, Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other Purposes), subsequently required them to pay corresponding duties and taxes on their importation of cigars, cigarettes, liquors and wines
Judge Caguioa granted Indigo’s petition for the issuance of writ of preliminary injunction and approved the injunction bond amounting to PhP1 million for all petitioners. During the pendency of Republic’s appeal before the High Court, Judge Caguioa granted various ex parte motions for interventions of different corporations claiming to be similarly situation with Indigo and allowed them to ride on the injunctive bond posted by Indigo. The High Court subsequently declared the assailed order of judge null and void citing for grave abuse of discretion.
The High Court ruled that taxes are the lifeblood of the government and it is of public interest that the collection of which should not be restrained. It held that the applicants for the writ showed no clear and unmistakable right that was material and substantial to warrant the issuance of writ, nor the urgency and necessity of such. Worst, Judge Caguioa, in his issuance of the said writ, had failed to observe due process when the Office of the Solicitor General (OSG), representing the Republic, was not served copies of the motions for intervention.
In a similar case, Judge Caguioa erroneously issued a temporary restraining order and writ of preliminary injunction in the petition for mandamus filed by District Collector of Customs in the Port of Subic Andres D. Salvacion, Jr. against his then would-be replacement Gracia Z Caringal, et al. Subsequently, he enjoined the CIR and the Finance Secretary to observe and respect his issuances.
On appeal, the CA ruled that Judge Caguioa should have dismissed the case for improper venue. The CA said that the petition for mandamus, which relates to the acts of officers, must be filed in the RTC exercising jurisdiction over the territorial area covering said officers, which in this case was Manila because the main office of Commission was in Manila.
The High Court said that Judge Caguioa’s issuance of the writ in the above case did not satisfy the legal requisite for its issuances and was enforced outside his territorial jurisdiction. It upheld the CA ruling that the applicant had failed to establish that he has a clear and unmistakable right that was violated so as to warrant the issuance of an injunction.
Judge Caguioa was also found guilty of simple misconduct and ordered suspended from office without pay for three months in a third administrative case which stemmed from another civil case. The case against his co-respondent Sheriff Christopher T. Perez, however, was dismissed for lack of merit. The Court said Sheriff Perez cannot be faulted for implementing a writ of execution pursuant to Judge Caguioa’s order.
The High Court held that Judge Caguioa did not adjudicate any rights of the parties and resolved no other matter except the dismissal of the case on the ground of prescription. Thus, his order to place private respondents in possession of the disputed property is not necessarily included in or necessary to the judgment of the dismissal of the case on the ground of “prescription.”
The High Court said that the execution was highly improper because of the fact that Judge Caguioa has been apprised of the pendency of the reversion suits filed by the Republic involving the same parcels of land in another Olongapo RTC.
Inner sanctum
Former Philippine Supreme Court Chief Justice Artemio Panganiban was the first Chief Justice produced by my high school and law alma mater, the Far Eastern University (Manila).
A self-made man, who worked while learning law, Chief Justice Panganiban had served for many years in various NGOs under the umbrella of the Business Sector and the Catholic Church to help promote the rule of law in the Philippines.
I had an opportunity to serve with him a few years ago when I was invited to be one of the resource persons in a forum on Judicial Appointments held at the FEU Graduate School auditorium under the joint auspices of the prominent law and justice NGO Kilosbayan, led by former Senate President and former FEU Law Dean Jovito Salonga, and the FEU Administration.
I found Chief Justice Panganiban to be a jolly, cheerful, warm and unassuming man, who loved his alma mater, who knew how to show his respect and debt of gratitude to his former law mentor, Sen. Salonga, and who knew how to adjust the presentation of his lecture to accommodate the level of knowledge of the participating FEU students.
I wish to reproduce in full below the two recent columns of Chief Justice Panganiban which were published in the prominent Philippine Daily Inquirer re: the inner workings of the Philippine Supreme Court, for the information of the foreign lawyers, law students and legal researchers visiting this blog.
Atty. Manuel J. Laserna Jr.
High School, FEU, Valedictorian, 1971
Bachelor of Laws, FEU, cum laude, 1984.
How the SC decides cases (Part 1)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 04:20:00 06/21/2009
WITHOUT asking for comment, the Supreme Court correctly threw out the petitions assailing the validity of House Resolution 1109. However, the Court still gave them special treatment by issuing a signed resolution extensively explaining its action. Normally, to show its disdain for utterly unmeritorious and “cerebrally deficient” petitions, it simply dismisses them via one-sentence resolutions. To explain, let me write a primer on how the Court decides cases in the normal course.
Review court
As a rule, the Supreme Court does not take initial cognizance of controversies. It merely reviews decisions of other tribunals; its work consists mainly of affirming, modifying or reversing decisions or orders of lower courts; and of determining whether a lower court, or an agency of the government (including the president and Congress) acted without or in excess of its jurisdiction or committed grave abuse of discretion.
On its own, the Supreme Court does not initiate such review. Its authority must be triggered by the filing of a petition by a proper party. In this sense, the Court (and the entire judiciary) is a “passive branch” of the government. It cannot act on a controversy unless asked to do so.
In trial courts, the proceedings are open to the public. But in the Supreme Court the internal deliberations are confidential; only their net results, written in the form of decisions, resolutions, orders and opinions (concurring, dissenting and separate), are released to the public. Emphasizing the sacredness of collegial deliberations, retired Justice Florenz D. Regalado said, “In trial courts, the rule is transparency; but in the Supreme Court, it is confidentiality.”
Collegial decisions
The justices debate and vote independently of each other but they decide collegially. Thus, all court actions are determined during sessions. Except in emergencies, no justice can act individually to bind the Court. Even simple motions for extension of time are calendared and acted upon by the Court as a collegial body.
The agenda of the Court (whether en banc or in division) usually consists of about 150 to 250 items per session. The Court disposes each of them speedily, but the backbreaking job is done in chambers and at home, when the justices study, read, reflect, pray, and write on the matters assigned to them.
Of course, prior to the session, they also need to study the reports of their fellow justices, so they can express concurrence or dissent to, or at least intelligently discuss, the items in the agenda. Nothing is more embarrassing than to be caught unprepared or to be unable to answer questions on matters being reported on.
Verbal discussions are very limited. Contrary to popular misimpressions, justices do not talk too much. Rather, they write a lot. Arguments, reflections and position papers are exchanged every day. When the verbal discussion of a case exceeds five minutes, the chief justice normally postpones further discussions, with the suggestion that members write their opinions, pro and contra, to be distributed a few days prior to the next calendar.
Oral arguments are usually held in the cavernous and rather intimidating hearing hall of the Court in Padre Faura Street. Oral arguments, which are rare, are usually held only in cases involving difficult and complicated questions.
The Court delineates the issues; and the lawyers for each side, who are expected to come extensively prepared, dwell on these issues within the allotted time, normally 20 minutes each. However, the justices may, and usually do, ask questions on any topic or issue. Hence, the allotted time is usually extended.
During oral arguments, the Court sometimes appoints amici curiae (friends of the court) to assist the justices in resolving difficult questions. An invitation to act as amicus curiae is a rare privilege granted only to lawyers of unquestioned stature, competence and lucidity. After the oral arguments, the lawyers are usually required to file written memoranda.
En banc or in division
The Court regularly sits en banc (all members of the Court) and in division (five members each). To grant a motion or petition and to approve a decision or resolution, the concurrence of a majority of those taking part is sufficient. The distribution of the justices to the three divisions is determined by the chief justice, who usually spreads the senior and the junior justices more or less evenly among the three groups.
Seniority based on the date of appointment is strictly observed in seating arrangements. En banc, the chief justice sits at the head of the table, with the most senior justice on his right and the next most senior on his left. The third most senior sits next to the first, the fourth most senior sits next to the second, and so on down to the fifteenth who sits at the foot of the table on the chief justice’s left. The seniority rule is observed also in the divisions, with the chairman sitting at the head of the table.
The foregoing seating arrangement is followed also during oral arguments, except that instead of sitting around a table, the justices sit on an elevated crescent-shaped rostrum facing the audience.
The most senior member usually chairs each division. Although the chief justice is also a division chairman, his functions as chair are actually performed by the “working chairman,” who is the next most senior in the division. To be continued next week to show the special treatment to Resolution 1109.
With Due Respect
How the SC decides cases (Part 2)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:57:00 06/27/2009
THIS IS a continuation of last week’s primer on how the Supreme Court decides litigations.
Sessions and titles. During their internal sessions – those held among themselves
only – the justices wear either business suits or barong Filipino. But they don their all-black working robes during oral arguments, whether en banc or in division, and their maroon-stripped ceremonial robes during official functions other than oral arguments.
The Court sits en banc on Tuesdays, and in division on Mondays and Wednesdays. The justices take turns in leading the opening prayer. Sometimes, the justice who is scheduled to report on the first item in the agenda leads the prayer.
The members of the Court are formally addressed as “Your Honor” or “Mr. Justice” or “Madam Justice” or simply “Justice.” The head is addressed as “Mr. Chief Justice,” or fondly – by the members of the Court – as “Chief” or “CJ.” Various formal resolutions of the Court restrict the use of these titles to current and retired members of the Supreme Court (and the three appellate courts).
Trial magistrates are called “judges.” Only officials belonging to the judiciary are allowed to use the titles “Chief justice,” “Justice” or “Judge.” Hence, officials to whom the law grants judicial ranks and privileges, like the solicitor general and the government corporate counsel, are prohibited from using these appellations.
Three rounds. There are “three rounds” in the Supreme Court. The first usually begins upon the filing of a petition, or a motion for extension of time to file a petition, or a notice of appeal.
The acceptance of any appeal or petition is addressed to the sound discretion of the Supreme Court. With few exceptions, like appeals of decisions imposing life imprisonment, it may summarily dismiss motu proprio worthless petitions. In this way, the Court saves its time and resources for more important cases that are ripe for resolution.
Although the Court has the discretion to deny or dismiss a petition during the “First Round,” in general it does so for (1) procedural errors, like violations of the Rules of Court or Supreme Court circulars; or (2) failure of the petition to demonstrate prima facie a “reversible” error or a grave abuse of discretion, or (3) prematurity. Orders dismissing petitions based on these grounds are known as minute resolutions and are normally couched in standard forms.
Second round. Once a petition passes these procedural and substantive tests, the first round ends. The “Second Round” begins when the Court requires the respondents to file their “comment.” After receipt of the comment, the Court may direct the petitioner(s) to file their “reply.” No pleading may be filed at this stage, unless ordered by the Court.
After this exchange, the Court may grant due course to the petition and ask the parties to file their memoranda. Alternatively, it may issue a resolution denying or dismissing the petition, usually unsigned by the justices but certified by the clerk of court (or deputy clerk of court).
Only the justices are present during the sessions. The minutes of the session are prepared by the division chairman or, in case of en banc sessions, by the chief justice. Some lawyers and litigants wrongly believe that the clerk of court or his/her deputies compose the unsigned resolutions. No, the justices themselves prepare them. They are included in the minutes of the sessions, from which they are excerpted and then sent to the parties.
Third round. If the Court believes that, on the basis of the comment and/or reply, the questions raised in the petition deserve a full-length decision, the second round ends and the Court generally issues a resolution, giving due course to the petition and requiring the parties to submit their respective memoranda.
On rare occasions, oral arguments are held after the Court grants due course to the petition. At the end of the oral arguments, the Court usually requires the parties to submit written memoranda to summarize their arguments or to answer questions raised during the hearing.
After the memoranda are received, the Court deliberates on the report of the justice to whom the petition had been earlier raffled. Once signed by the justices, the decision is promulgated by the clerk of court and then made public. Copies are sent to the parties. The parties have 15 days – with no extension allowed – from receipt of the decision or resolution, within which to file a motion for reconsideration. If no such motion is filed within the prescribed period, the decision becomes final.
Undeserved treatment. Had the Court followed normal procedure, it could have “short shrifted” the plainly unmeritorious petitions against House Resolution 1109 by dismissing them at sight through its usual one-sentence minute resolution saying that they were premature, that the petitioners lacked legal standing and that, in any event, they failed to show – at that point – any grave abuse of discretion.
In other words, it could have simply declined to review them. By showing off a full-length ponencia that is normally issued only after the “three rounds” described above are undertaken, the Court accorded what it said “cerebral deficits” did not deserve: its valuable time and attention. Worse, it may have cornered itself to a precedent that can be invoked by similarly worthless petitions in the future.
In damning the petitions garrulously, the Court relished the gallery more than its own time-tested profundity.
(end)
A self-made man, who worked while learning law, Chief Justice Panganiban had served for many years in various NGOs under the umbrella of the Business Sector and the Catholic Church to help promote the rule of law in the Philippines.
I had an opportunity to serve with him a few years ago when I was invited to be one of the resource persons in a forum on Judicial Appointments held at the FEU Graduate School auditorium under the joint auspices of the prominent law and justice NGO Kilosbayan, led by former Senate President and former FEU Law Dean Jovito Salonga, and the FEU Administration.
I found Chief Justice Panganiban to be a jolly, cheerful, warm and unassuming man, who loved his alma mater, who knew how to show his respect and debt of gratitude to his former law mentor, Sen. Salonga, and who knew how to adjust the presentation of his lecture to accommodate the level of knowledge of the participating FEU students.
I wish to reproduce in full below the two recent columns of Chief Justice Panganiban which were published in the prominent Philippine Daily Inquirer re: the inner workings of the Philippine Supreme Court, for the information of the foreign lawyers, law students and legal researchers visiting this blog.
Atty. Manuel J. Laserna Jr.
High School, FEU, Valedictorian, 1971
Bachelor of Laws, FEU, cum laude, 1984.
How the SC decides cases (Part 1)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 04:20:00 06/21/2009
WITHOUT asking for comment, the Supreme Court correctly threw out the petitions assailing the validity of House Resolution 1109. However, the Court still gave them special treatment by issuing a signed resolution extensively explaining its action. Normally, to show its disdain for utterly unmeritorious and “cerebrally deficient” petitions, it simply dismisses them via one-sentence resolutions. To explain, let me write a primer on how the Court decides cases in the normal course.
Review court
As a rule, the Supreme Court does not take initial cognizance of controversies. It merely reviews decisions of other tribunals; its work consists mainly of affirming, modifying or reversing decisions or orders of lower courts; and of determining whether a lower court, or an agency of the government (including the president and Congress) acted without or in excess of its jurisdiction or committed grave abuse of discretion.
On its own, the Supreme Court does not initiate such review. Its authority must be triggered by the filing of a petition by a proper party. In this sense, the Court (and the entire judiciary) is a “passive branch” of the government. It cannot act on a controversy unless asked to do so.
In trial courts, the proceedings are open to the public. But in the Supreme Court the internal deliberations are confidential; only their net results, written in the form of decisions, resolutions, orders and opinions (concurring, dissenting and separate), are released to the public. Emphasizing the sacredness of collegial deliberations, retired Justice Florenz D. Regalado said, “In trial courts, the rule is transparency; but in the Supreme Court, it is confidentiality.”
Collegial decisions
The justices debate and vote independently of each other but they decide collegially. Thus, all court actions are determined during sessions. Except in emergencies, no justice can act individually to bind the Court. Even simple motions for extension of time are calendared and acted upon by the Court as a collegial body.
The agenda of the Court (whether en banc or in division) usually consists of about 150 to 250 items per session. The Court disposes each of them speedily, but the backbreaking job is done in chambers and at home, when the justices study, read, reflect, pray, and write on the matters assigned to them.
Of course, prior to the session, they also need to study the reports of their fellow justices, so they can express concurrence or dissent to, or at least intelligently discuss, the items in the agenda. Nothing is more embarrassing than to be caught unprepared or to be unable to answer questions on matters being reported on.
Verbal discussions are very limited. Contrary to popular misimpressions, justices do not talk too much. Rather, they write a lot. Arguments, reflections and position papers are exchanged every day. When the verbal discussion of a case exceeds five minutes, the chief justice normally postpones further discussions, with the suggestion that members write their opinions, pro and contra, to be distributed a few days prior to the next calendar.
Oral arguments are usually held in the cavernous and rather intimidating hearing hall of the Court in Padre Faura Street. Oral arguments, which are rare, are usually held only in cases involving difficult and complicated questions.
The Court delineates the issues; and the lawyers for each side, who are expected to come extensively prepared, dwell on these issues within the allotted time, normally 20 minutes each. However, the justices may, and usually do, ask questions on any topic or issue. Hence, the allotted time is usually extended.
During oral arguments, the Court sometimes appoints amici curiae (friends of the court) to assist the justices in resolving difficult questions. An invitation to act as amicus curiae is a rare privilege granted only to lawyers of unquestioned stature, competence and lucidity. After the oral arguments, the lawyers are usually required to file written memoranda.
En banc or in division
The Court regularly sits en banc (all members of the Court) and in division (five members each). To grant a motion or petition and to approve a decision or resolution, the concurrence of a majority of those taking part is sufficient. The distribution of the justices to the three divisions is determined by the chief justice, who usually spreads the senior and the junior justices more or less evenly among the three groups.
Seniority based on the date of appointment is strictly observed in seating arrangements. En banc, the chief justice sits at the head of the table, with the most senior justice on his right and the next most senior on his left. The third most senior sits next to the first, the fourth most senior sits next to the second, and so on down to the fifteenth who sits at the foot of the table on the chief justice’s left. The seniority rule is observed also in the divisions, with the chairman sitting at the head of the table.
The foregoing seating arrangement is followed also during oral arguments, except that instead of sitting around a table, the justices sit on an elevated crescent-shaped rostrum facing the audience.
The most senior member usually chairs each division. Although the chief justice is also a division chairman, his functions as chair are actually performed by the “working chairman,” who is the next most senior in the division. To be continued next week to show the special treatment to Resolution 1109.
With Due Respect
How the SC decides cases (Part 2)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:57:00 06/27/2009
THIS IS a continuation of last week’s primer on how the Supreme Court decides litigations.
Sessions and titles. During their internal sessions – those held among themselves
only – the justices wear either business suits or barong Filipino. But they don their all-black working robes during oral arguments, whether en banc or in division, and their maroon-stripped ceremonial robes during official functions other than oral arguments.
The Court sits en banc on Tuesdays, and in division on Mondays and Wednesdays. The justices take turns in leading the opening prayer. Sometimes, the justice who is scheduled to report on the first item in the agenda leads the prayer.
The members of the Court are formally addressed as “Your Honor” or “Mr. Justice” or “Madam Justice” or simply “Justice.” The head is addressed as “Mr. Chief Justice,” or fondly – by the members of the Court – as “Chief” or “CJ.” Various formal resolutions of the Court restrict the use of these titles to current and retired members of the Supreme Court (and the three appellate courts).
Trial magistrates are called “judges.” Only officials belonging to the judiciary are allowed to use the titles “Chief justice,” “Justice” or “Judge.” Hence, officials to whom the law grants judicial ranks and privileges, like the solicitor general and the government corporate counsel, are prohibited from using these appellations.
Three rounds. There are “three rounds” in the Supreme Court. The first usually begins upon the filing of a petition, or a motion for extension of time to file a petition, or a notice of appeal.
The acceptance of any appeal or petition is addressed to the sound discretion of the Supreme Court. With few exceptions, like appeals of decisions imposing life imprisonment, it may summarily dismiss motu proprio worthless petitions. In this way, the Court saves its time and resources for more important cases that are ripe for resolution.
Although the Court has the discretion to deny or dismiss a petition during the “First Round,” in general it does so for (1) procedural errors, like violations of the Rules of Court or Supreme Court circulars; or (2) failure of the petition to demonstrate prima facie a “reversible” error or a grave abuse of discretion, or (3) prematurity. Orders dismissing petitions based on these grounds are known as minute resolutions and are normally couched in standard forms.
Second round. Once a petition passes these procedural and substantive tests, the first round ends. The “Second Round” begins when the Court requires the respondents to file their “comment.” After receipt of the comment, the Court may direct the petitioner(s) to file their “reply.” No pleading may be filed at this stage, unless ordered by the Court.
After this exchange, the Court may grant due course to the petition and ask the parties to file their memoranda. Alternatively, it may issue a resolution denying or dismissing the petition, usually unsigned by the justices but certified by the clerk of court (or deputy clerk of court).
Only the justices are present during the sessions. The minutes of the session are prepared by the division chairman or, in case of en banc sessions, by the chief justice. Some lawyers and litigants wrongly believe that the clerk of court or his/her deputies compose the unsigned resolutions. No, the justices themselves prepare them. They are included in the minutes of the sessions, from which they are excerpted and then sent to the parties.
Third round. If the Court believes that, on the basis of the comment and/or reply, the questions raised in the petition deserve a full-length decision, the second round ends and the Court generally issues a resolution, giving due course to the petition and requiring the parties to submit their respective memoranda.
On rare occasions, oral arguments are held after the Court grants due course to the petition. At the end of the oral arguments, the Court usually requires the parties to submit written memoranda to summarize their arguments or to answer questions raised during the hearing.
After the memoranda are received, the Court deliberates on the report of the justice to whom the petition had been earlier raffled. Once signed by the justices, the decision is promulgated by the clerk of court and then made public. Copies are sent to the parties. The parties have 15 days – with no extension allowed – from receipt of the decision or resolution, within which to file a motion for reconsideration. If no such motion is filed within the prescribed period, the decision becomes final.
Undeserved treatment. Had the Court followed normal procedure, it could have “short shrifted” the plainly unmeritorious petitions against House Resolution 1109 by dismissing them at sight through its usual one-sentence minute resolution saying that they were premature, that the petitioners lacked legal standing and that, in any event, they failed to show – at that point – any grave abuse of discretion.
In other words, it could have simply declined to review them. By showing off a full-length ponencia that is normally issued only after the “three rounds” described above are undertaken, the Court accorded what it said “cerebral deficits” did not deserve: its valuable time and attention. Worse, it may have cornered itself to a precedent that can be invoked by similarly worthless petitions in the future.
In damning the petitions garrulously, the Court relished the gallery more than its own time-tested profundity.
(end)
Monday, June 22, 2009
Cerebral deficit
Sometimes, the justices of the Philippine Supreme Court can be very insulting and impatient in their relationship with their brothers and sisters in the Bar.
For instance, take the fresh public-interest case of “ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009”, with companion case, which involved the controversial House Resolution No. 1109 (re: Con-Ass charter change attempt).
The lawyer petitioner Atty. Oliver Lozano is identified by many Filipinos as an alleged legal mercenary of the administration of Pres. Gloria Arroyo. He reportedly has the penchant for the very speedy filing of certiorari and prohibition petitions allegedly to entrap the Supreme Court to issue pronouncements that may be exploited by Pres. Arroyo’s political henchmen to perpetuate themselves in power.
In the abovecited case, Atty. Lozano was hit by the Supreme Court with stinging and harsh words which pictured him as a man suffering from “cerebral deficit”. Well, with due respect to Atty. Lozana, I think he deserves the apt description hurled by the highest tribunal of the land. Unfortunately for Atty. Lozano, his shameful tag will forever be recorded in the annals of Philippine legal history, courtesy of the Supreme Court Reports Annotated (SCRA) and the Philippine Reports (Phil.). Thus:
“Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.”
Below is the full text of the strongly worded decision, for legal research purposes of the visitors of this blog.
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009, with companion case.
This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government." [1] Be that as it may, no amount of exigency can make this Court exercise a power where it is not proper.
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress.” In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners’ supplications. While some may interpret petitioners’ moves as vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume jurisdiction over cases involving constitutional disputes.
It is well settled that it is the duty of the judiciary to say what the law is. [2] The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its “solemn and sacred obligation” under the Constitution. [3] This Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. [4] The “case-or-controversy” requirement bans this court from deciding “abstract, hypothetical or contingent questions,” [5] lest the court give opinions in the nature of advice concerning legislative or executive action. [6] In the illuminating words of the learned Justice Laurel in Angara v. Electoral Commission [7]:
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.
An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. [8] Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. [9] In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. [10] An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in. [11]
In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court.
Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The court resolved the issue thus:
More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. It is implicit in the rule of law. [12]
Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought. [13] In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions. [14] The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s three-page petition that is devoid of any legal or jurisprudential basis.
Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation. [15] It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public interest is involved. [16] While the Court recognizes the potential far-reaching implications of the issue at hand, the possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under the “transcendental importance” doctrine.
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr., [17] viz.:
x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." It thus goes to the very essence of representative democracies.
x x x x
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.
In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury. [18] When warranted by the presence of indispensable minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it.
IN VIEW WHEREOF, the petitions are dismissed.
SO ORDERED.
For instance, take the fresh public-interest case of “ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009”, with companion case, which involved the controversial House Resolution No. 1109 (re: Con-Ass charter change attempt).
The lawyer petitioner Atty. Oliver Lozano is identified by many Filipinos as an alleged legal mercenary of the administration of Pres. Gloria Arroyo. He reportedly has the penchant for the very speedy filing of certiorari and prohibition petitions allegedly to entrap the Supreme Court to issue pronouncements that may be exploited by Pres. Arroyo’s political henchmen to perpetuate themselves in power.
In the abovecited case, Atty. Lozano was hit by the Supreme Court with stinging and harsh words which pictured him as a man suffering from “cerebral deficit”. Well, with due respect to Atty. Lozana, I think he deserves the apt description hurled by the highest tribunal of the land. Unfortunately for Atty. Lozano, his shameful tag will forever be recorded in the annals of Philippine legal history, courtesy of the Supreme Court Reports Annotated (SCRA) and the Philippine Reports (Phil.). Thus:
“Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.”
Below is the full text of the strongly worded decision, for legal research purposes of the visitors of this blog.
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009, with companion case.
This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government." [1] Be that as it may, no amount of exigency can make this Court exercise a power where it is not proper.
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress.” In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners’ supplications. While some may interpret petitioners’ moves as vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume jurisdiction over cases involving constitutional disputes.
It is well settled that it is the duty of the judiciary to say what the law is. [2] The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its “solemn and sacred obligation” under the Constitution. [3] This Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. [4] The “case-or-controversy” requirement bans this court from deciding “abstract, hypothetical or contingent questions,” [5] lest the court give opinions in the nature of advice concerning legislative or executive action. [6] In the illuminating words of the learned Justice Laurel in Angara v. Electoral Commission [7]:
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.
An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. [8] Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. [9] In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. [10] An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in. [11]
In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court.
Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The court resolved the issue thus:
More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. It is implicit in the rule of law. [12]
Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought. [13] In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions. [14] The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s three-page petition that is devoid of any legal or jurisprudential basis.
Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation. [15] It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public interest is involved. [16] While the Court recognizes the potential far-reaching implications of the issue at hand, the possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under the “transcendental importance” doctrine.
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr., [17] viz.:
x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." It thus goes to the very essence of representative democracies.
x x x x
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.
In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury. [18] When warranted by the presence of indispensable minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it.
IN VIEW WHEREOF, the petitions are dismissed.
SO ORDERED.
Monday, June 15, 2009
Judicial elections
One of the main weaknesses of the American justice system lies in the fact that at the state level the trial judges and appellate justices are all elected, thus, exposing the justice system to real possibilities and risks of judicial corruption, partisan politics, and influence peddling.
There seems to be the wrong notion that elections are the sole criterion or prerequisite for democratic governance and for a free and fair justice system.
A clear example of the dangers of partisan judicial elections, especially with respect to the spirit and substance of the code of ethics of judges and justices, is the very recent case of CAPERTON et al. v. A. T. MASSEY COAL CO., INC., et al., certiorari to the Supreme Court of Appeals of West Virginia, No. 08-22, which was argued before the US Supreme Court on March 3, 2009 and decided by it on June 8, 2009 (see: www.findlaw.com):
After a West Virginia jury found respondents (Massey, et. al.) liable for fraudulent misrepresentation, concealment, and tortuous interference with existing contractual relations and awarded petitioners (Caperton, et. al.) $50 million in damages, West Virginia held its 2004 judicial elections.
Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey's chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin's own committee. Benjamin won by fewer than 50,000 votes.
Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State's Code of Judicial Conduct, based on the conflict caused by Blankenship's campaign involvement.
Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant.
The court then reversed the $50 million verdict.
During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict.
Four months later, Justice Benjamin filed a concurring opinion, defending the court's opinion and his recusal decision.
On certiorari, the US Supreme Court held that in all the circumstances of the case, due process required recusal.
The salient parts of the ratiocination of the Court are digested hereinbelow, for legal research purpose of the visitors of this blog. I wish to acknowledge the leading US law website, www.findlaw.com, for the summary of the case. Thus:
(a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has "a direct, personal, substantial, pecuniary interest" in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter, require recusal where "the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable," Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context.
(1) The first involved local tribunals in which a judge had a financial interest in a case's outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village's general treasury fund for village improvements and repairs. Disqualification was required under the principle that "[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." 273 U. S., at 532. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor's court was invalidated even though the fines assessed went only to the town's general fisc, because the mayor faced a " ' possible temptation' " created by his "executive responsibilities for village finances." Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama's lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not "whether in fact [the justice] was influenced," id., at 825, but "whether sitting on [that] case ... ' "would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true," ' " ibid. While the "degree or kind of interest ... sufficient to disqualify a judge ... '[could not] be defined with precision, ' " id., at 822, the test did have an objective component.
(2) The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that "no man can be a judge in his own case," and "no man is permitted to try cases where he has an interest in the outcome," id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge's prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating that the rule that "a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor," Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likely to be neutral or there is an unconstitutional " 'potential for bias,' "
(b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin's subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The proper inquiry centers on the contribution's relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin's victory. In an election decided by fewer than 50,000 votes, Blankenship's campaign contributions--compared to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the outcome. And the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented." Ibid. The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the other parties' consent--a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal.
(c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard's application rare.
There seems to be the wrong notion that elections are the sole criterion or prerequisite for democratic governance and for a free and fair justice system.
A clear example of the dangers of partisan judicial elections, especially with respect to the spirit and substance of the code of ethics of judges and justices, is the very recent case of CAPERTON et al. v. A. T. MASSEY COAL CO., INC., et al., certiorari to the Supreme Court of Appeals of West Virginia, No. 08-22, which was argued before the US Supreme Court on March 3, 2009 and decided by it on June 8, 2009 (see: www.findlaw.com):
After a West Virginia jury found respondents (Massey, et. al.) liable for fraudulent misrepresentation, concealment, and tortuous interference with existing contractual relations and awarded petitioners (Caperton, et. al.) $50 million in damages, West Virginia held its 2004 judicial elections.
Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey's chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin's own committee. Benjamin won by fewer than 50,000 votes.
Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State's Code of Judicial Conduct, based on the conflict caused by Blankenship's campaign involvement.
Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant.
The court then reversed the $50 million verdict.
During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict.
Four months later, Justice Benjamin filed a concurring opinion, defending the court's opinion and his recusal decision.
On certiorari, the US Supreme Court held that in all the circumstances of the case, due process required recusal.
The salient parts of the ratiocination of the Court are digested hereinbelow, for legal research purpose of the visitors of this blog. I wish to acknowledge the leading US law website, www.findlaw.com, for the summary of the case. Thus:
(a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has "a direct, personal, substantial, pecuniary interest" in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter, require recusal where "the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable," Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context.
(1) The first involved local tribunals in which a judge had a financial interest in a case's outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village's general treasury fund for village improvements and repairs. Disqualification was required under the principle that "[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." 273 U. S., at 532. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor's court was invalidated even though the fines assessed went only to the town's general fisc, because the mayor faced a " ' possible temptation' " created by his "executive responsibilities for village finances." Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama's lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not "whether in fact [the justice] was influenced," id., at 825, but "whether sitting on [that] case ... ' "would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true," ' " ibid. While the "degree or kind of interest ... sufficient to disqualify a judge ... '[could not] be defined with precision, ' " id., at 822, the test did have an objective component.
(2) The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that "no man can be a judge in his own case," and "no man is permitted to try cases where he has an interest in the outcome," id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge's prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating that the rule that "a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor," Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likely to be neutral or there is an unconstitutional " 'potential for bias,' "
(b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin's subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The proper inquiry centers on the contribution's relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin's victory. In an election decided by fewer than 50,000 votes, Blankenship's campaign contributions--compared to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the outcome. And the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented." Ibid. The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the other parties' consent--a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal.
(c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard's application rare.
Saturday, June 13, 2009
Despicable stupidity
Article VI of the 1987 Philippine Constitution provides for a bicameral Congress. Legislative power is vested “in the Congress of the Philippines which consists of a Senate and a House of Representatives”. (Sec. 1).
Article XVII of the 1987 Philippine Constitution provides that any amendment to, or revision of, the Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. (Sec. 1). Amendments may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. (Sec. 2). The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. (Sec. 3). Any amendment to, or revision of, the Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite. (Sec. 4).
The recent midnight railroading by the House of Representatives of the notorious and obnoxious H.R. No. 1109, which seeks to amend the Constitution without the participation of the independent-minded Philippine Senate, has sparked justified indignation and condemnation by the Filipino people. Many see the resolution as a blatant and ugly attempt of Pres. Gloria Arroyo and her political clique of feudal lords and cronies to perpetuate themselves in power beyond the forthcoming 2010 national elections.
Below are news items detailing the unconscionable birth and railroading of the resolution and showing the despicable stupidity of the legal theory of the Arroyo party and henchmen.
House rams through Con-ass resolution
Nograles: Arroyo told allies to push HR 1109
By Gil C. Cabacungan Jr., Leila Salaverria, Lira Dalangin-Fernandez
Philippine Daily Inquirer, INQUIRER.net
First Posted 02:36:00 06/03/2009
MANILA, Philippines—Using their massive numbers, President Gloria Macapagal-Arroyo’s allies in the House of Representatives Tuesday night crushed all objections and passed a resolution setting up a constituent assembly (Con-ass) amid opposition warnings it would allow Ms Arroyo to stay in power beyond 2010.
In a marathon session that dragged toward midnight, a former administration stalwart, ousted Speaker Jose de Venecia Jr., lambasted the majority vote as “a charade.”
“We oppose this, this charade… Let us amend the Constitution after the term of President Arroyo. That is the time to amend the Constitution of the Philippines. The best way to amend the Constitution is by constitutional convention,” said de Venecia.
Other opposition lawmakers accused the majority of railroading the resolution, which was approved by acclamation at about 11:20 p.m.
Approval of House Resolution No. 1109 empowered Congress to convene itself into a Con-ass in which members of the House and the Senate would vote jointly—not separately—to amend the 1987 Constitution.
Senators have said this would render the upper chamber inutile because the larger House membership could override any Senate objections to proposed amendments.
“This means that under 1109, we are opening the entire Constitution to amendments .... This is where Malacañang’s agenda to keep President Arroyo in power will come in,” Bayan Muna party-list Rep. Teodoro Casiño warned the chamber before the House leadership pushed through with the vote.
“This will allow our politicians to keep themselves in power,” Casiño added.
He said that with the majority’s insistence on such an “unconstitutional move, we are putting our democracy in danger.”
He said the members of the majority voted for HR 1109 on pain of losing their pork barrel.
He said one of the sponsors of the resolution had admitted on the floor that the "whereas clause" in the resolution that prohibits the term extension of the incumbent president and vice president, senators, congressmen, mayors and other elected officials whose term will expire in 2010, and that there would be elections in 2010 was "not binding."
Parañaque Rep. Roilo Golez said the majority pledged to have an exhaustive discussion of the resolution in plenary.
"If we cannot trust them [majority] on this very small pledge, how can the people trust the members of this Congress as a constituent assembly," Golez said.
Gabriela party-list Rep. Luzviminda Ilagan called the proceedings a "night of ignominy" where the administration allies once again used their numbers to push their agenda.
“Tonight we witnessed a railroading,” Ilagan declared on the floor.
Nueva Vizcaya Rep. Carlos Padilla, said the one-sided vote showed the “tyranny of the majority.”
“I believe in democracy, but this tyranny,” South Cotabato Rep. Darlene Antonino-Custodio said.
Quezon Rep. Lorenzo Tañada III said he voted against the resolution because Congress does not need to pass one in its use of its inherent legislative powers. He added he is also against the "crass" manifestation that the House alone can act in amending the Constitution without engaging the Senate.
“This is a massive deception of the Filipino people,” Anak Pawis party-list Rep. Rafael Mariano said. Akbayan lawmaker Walden Bello said the vote was in effect an extension of Ms Arroyo’s term beyond 2010.
"Have we no shame? Let us stop this farce immediately," Bukidnon Rep. Teofisto Guingona III said.
With the resolution’s passage, Nueva Ecija Rep. Eduardo Nonato Joson likened the country to a woman fighting off a rapist, saying “Huwag po kuya [Please don’t, sir].”
“Let us not gang rape our Constitution,” he said.
The House plenary will have to decide on when to convene the Con-ass, as well as the next steps to be taken, according to La Union Rep. Victor Ortega, chair of the committee on constitutional amendments.
To speed up passage of the resolution, the House leadership cut short the interpellation period and limited to 5 minutes the speeches of lawmakers opposing the voting.
At 9:30 p.m., Shariff Kabunsuan Rep. Didagen Dilangalen suddenly moved to close the debate after only five of the 13 representatives lined up— Minority Leader Ronaldo Zamora, Bayan Muna party-list Rep. Satur Ocampo, Guingona, Maza and Golez—were able to speak out against HR 1109.
Dilangalen claimed that the arguments raised against HR 1109 were repetitive.
At 9:53 p.m., the majority voted to shut down the debate and, after a 20-minute break, the minority resumed their opposition against what they called the majority’s “railroading” of the Con-ass.
Padilla said the mad rush to approve HR 1109 had made “this Congress the worst in the annals of history.”
Zamora questioned the haste with which it was being discussed in plenary, with only two session days left and with other key legislation pending for passage.
“Why the short cut? Why not go for the long haul, for the harder route? Why not eschew the easy path and make the amendments to the Constitution as important as the role of the committee on constitutional amendments?” Zamora said.
Gabriela party-list Rep. Liza Maza asked one of the sponsors, Cavite Rep. Elpidio Barzaga Jr., if it was possible under the resolution to postpone the 2010 elections.
"Everything is possible, but it depends on the sound judgment of our colleagues," Barzaga said.
Ortega also echoed the same view, saying that they would rely on "trust" basis in implementing the “whereas clause.”
After an early afternoon caucus, the majority decided to tackle HR 1109 ahead of the other contentious measures pending on the floor, such as the bills on the right of reply and on the extension of the Comprehensive Agrarian Reform Program (CARP).
Speaker Prospero Nograles then announced that the Tuesday plenary session would be devoted to HR 1109. As of 4:30 p.m., 211 lawmakers were present.
Critics have also warned that HR 1109 is a veiled attempt to stop the May 2010 elections and lift term limits on elected officials, including Ms Arroyo.
The original author of the measure, Camarines Sur Rep. Luis Villafuerte, had withdrawn support for it. He said he expected the resolution to be challenged in the Supreme Court.
Those pushing HR 1109 have said that they merely wanted to force the Supreme Court to rule on whether Charter change (Cha-cha) required the vote of three-fourths of all members of Congress, or three-fourths of the House and three-fourths of the Senate.
Arroyo’s tacit approval
The President herself gave tacit approval for Lakas-Kampi-CMD allies in the House to push for the passage of HR 1109, according to Nograles.
He said the decision to push for HR 1109 over his own HR 737—which seeks to lift constitutional limits on foreign investments through regular legislation, or the “fourth mode” of Charter change—was reached during the official merger on Thursday of the ruling parties Lakas-Christian Muslim Democrats and Kabalikat ng Malayang Pilipino (Kampi).
“The leaders of Lakas and Kampi decided in that meeting that this is one of the things that we will push for. I will not deny that she (the President) was present when we decided on that, but she did not say anything,” Nograles said in an interview.
HR 1109 was aggressively promoted for signatures in the House by the President’s elder son, Pampanga Rep. Juan Miguel Arroyo.
Although Villafuerte, the president of Kampi, decided to drop the resolution, Ms Arroyo’s allies in the House committee on constitutional amendments voted to have it debated on the floor ahead of HR 737, which has been pending for more than a month.
Nograles said HR 1109 was easier to pass in the House because it only required a simple majority vote (136) compared to his own resolution, which proposed a specific amendment and, therefore, needed three-fourths of the vote (199).
The latter is more difficult to muster.
“If I do not get three-fourths for 737 after nominal voting, the resolution is lost. It will never see the light of day, it will be buried. So we will not force a vote on 737 if we are not sure we can get three-fourths of the House,” Nograles said.
He added that his resolution would be tackled after HR 1109.
Congress is to adjourn on June 5.
‘That’s nothing’
Informed late Tuesday of the House plenary discussions on HR 1109, Senate President Juan Ponce Enrile responded with a shrug.
“Wala yun (That’s nothing). How can they do it?” he told reporters.
Enrile reiterated the senators’ position that the House move to amend the Constitution without Senate participation was “an exercise in futility.”
“They need the Senate,” he said. “It’s impossible for them to accomplish that. Huwag ninyo nang pag-abalahan yan (Don’t bother with it).”
Said Sen. Francis Escudero: “It is only the President now who can stop the Cha-cha train in the lower house. She is, after all, the head of the newly merged Lakas-Kampi-CMD.”
But in a report, Reuters quoted Interior Secretary Ronaldo Puno as saying: “Nobody believes there will be a constituent assembly in Congress. Nobody, not even the sponsors of the resolution.”
Gabriel Claudio, Ms Arroyo’s political adviser, said he doubted that the House plenary debate on HR 1109 would affect the “certainty and inevitability” of the May 2010 elections.
“I think the leaders of the House and the proponents of Charter change are just being consistent. They have said that as far as the proposal for Con-ass is concerned, they are just after a trigger mechanism for a case to be filed before the Supreme Court so there could be a final interpretation on the manner of voting by Congress in a constituent assembly,” Claudio said at a briefing.
“[The lawmakers] are very consistent about their observation that there is really no more time for actual changes in the Constitution to take place before the elections. So nobody is disputing the certainty of the elections in 2010,” Claudio said.
He added: “This is all the more bolstered by the successful merger of the two administration parties.”
‘Easy’ resolution
Nograles told reporters that HR 1109 was put on the table first because the right of reply and CARP extension bills had been discussed extensively.
HR 1109 needs only a majority vote of the House members to be approved because it does not propose any specific amendment to the Constitution.
“It’s a resolution that’s easy to get the majority [to vote for], as long as they’re all present. We won’t have a hard time getting that,” Nograles said.
“It’s not that we want to put it first. Let’s give it a startup … It’s very simple.
It’s just a resolution. It only needs a majority vote. It does not need three-fourths,” he said.
Asked if the constituent assembly would be convened after the approval of HR 1109, Nograles said he did not think so.
“Maybe after we come back [at the resumption of the session]. Maybe after the SONA (State of the Nation Address),” he said.
If HR 1109 is approved, Nograles will call for a leadership meeting to discuss the next steps.
“It would have to be implemented. How, I don’t know,” he said.
Interior Secretary Puno said the Philippines would “completely lose its credibility” before the international community if it flip-flopped on its assurance on the holding of elections next year.
At a forum organized by the Foreign Correspondents Association of the Philippines (Focap), Puno said his decision to seek the ruling coalition’s nomination as its vice presidential candidate was proof that the polls would push through as scheduled.
According to Puno, amending the Constitution before the 2010 elections was now virtually impossible. With reports from TJ Burgonio and Christine O. Avendaño
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090603-208528/House-rams-through-Con-ass-resolution
Palace soothes no-el fears; Senate shrugs
By Christian V. Esguerra, Leila Salaverria, Christine Avendaño
Philippine Daily Inquirer
Posted date: June 04, 2009
Enter Lozanos
As it happened, Oliver Lozano and his daughter Evangeline Lozano-Endriano, both lawyers, outdid everyone else in filing a petition at the Supreme Court asking that HR 1109 be nullified “in the interest of public welfare” and naming Nograles and the House of Representatives as respondents.
In the five-page petition, Lozano said: “The railroaded HR No. 1109 is unconstitutional or bogus for deviation from the prescribed procedures to amend the Constitution by excluding the Senate … from the complete process of proposing amendments to the Constitution and for lack of thorough debates.”
The high court, through its spokesperson Jose Midas Marquez, said it was prepared to address the issue.
“This is not something new for the court,” Marquez said. “The court is prepared for that. We will deal with that as it comes.”
Lozano said the resolution’s hidden agenda was to extend Ms Arroyo’s term.
He said it was not a proposal by Congress “but allegedly a dictation of the presidency in order to extend the term of the President.”
Told that Lozano had asked the Supreme Court to nullify HR 1109, Senate Minority Leader Aquilino Pimentel said he hoped Lozano “means it sincerely.”
“[But] whatever his petition is, it does not foreclose the right of other parties to bring proper suits before the Supreme Court when needed,” Pimentel said.
As for the senators, he said: “Why should we bother [to take the House to court] with such a patently irregular, unconstitutional act? What a waste of time that will be.”
Sen. Francis Pangilinan said the Lozano petition should be dismissed for being premature.
See:
http://services.inquirer.net/print/print.php?article_id=20090604-208702
Article XVII of the 1987 Philippine Constitution provides that any amendment to, or revision of, the Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. (Sec. 1). Amendments may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. (Sec. 2). The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. (Sec. 3). Any amendment to, or revision of, the Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite. (Sec. 4).
The recent midnight railroading by the House of Representatives of the notorious and obnoxious H.R. No. 1109, which seeks to amend the Constitution without the participation of the independent-minded Philippine Senate, has sparked justified indignation and condemnation by the Filipino people. Many see the resolution as a blatant and ugly attempt of Pres. Gloria Arroyo and her political clique of feudal lords and cronies to perpetuate themselves in power beyond the forthcoming 2010 national elections.
Below are news items detailing the unconscionable birth and railroading of the resolution and showing the despicable stupidity of the legal theory of the Arroyo party and henchmen.
House rams through Con-ass resolution
Nograles: Arroyo told allies to push HR 1109
By Gil C. Cabacungan Jr., Leila Salaverria, Lira Dalangin-Fernandez
Philippine Daily Inquirer, INQUIRER.net
First Posted 02:36:00 06/03/2009
MANILA, Philippines—Using their massive numbers, President Gloria Macapagal-Arroyo’s allies in the House of Representatives Tuesday night crushed all objections and passed a resolution setting up a constituent assembly (Con-ass) amid opposition warnings it would allow Ms Arroyo to stay in power beyond 2010.
In a marathon session that dragged toward midnight, a former administration stalwart, ousted Speaker Jose de Venecia Jr., lambasted the majority vote as “a charade.”
“We oppose this, this charade… Let us amend the Constitution after the term of President Arroyo. That is the time to amend the Constitution of the Philippines. The best way to amend the Constitution is by constitutional convention,” said de Venecia.
Other opposition lawmakers accused the majority of railroading the resolution, which was approved by acclamation at about 11:20 p.m.
Approval of House Resolution No. 1109 empowered Congress to convene itself into a Con-ass in which members of the House and the Senate would vote jointly—not separately—to amend the 1987 Constitution.
Senators have said this would render the upper chamber inutile because the larger House membership could override any Senate objections to proposed amendments.
“This means that under 1109, we are opening the entire Constitution to amendments .... This is where Malacañang’s agenda to keep President Arroyo in power will come in,” Bayan Muna party-list Rep. Teodoro Casiño warned the chamber before the House leadership pushed through with the vote.
“This will allow our politicians to keep themselves in power,” Casiño added.
He said that with the majority’s insistence on such an “unconstitutional move, we are putting our democracy in danger.”
He said the members of the majority voted for HR 1109 on pain of losing their pork barrel.
He said one of the sponsors of the resolution had admitted on the floor that the "whereas clause" in the resolution that prohibits the term extension of the incumbent president and vice president, senators, congressmen, mayors and other elected officials whose term will expire in 2010, and that there would be elections in 2010 was "not binding."
Parañaque Rep. Roilo Golez said the majority pledged to have an exhaustive discussion of the resolution in plenary.
"If we cannot trust them [majority] on this very small pledge, how can the people trust the members of this Congress as a constituent assembly," Golez said.
Gabriela party-list Rep. Luzviminda Ilagan called the proceedings a "night of ignominy" where the administration allies once again used their numbers to push their agenda.
“Tonight we witnessed a railroading,” Ilagan declared on the floor.
Nueva Vizcaya Rep. Carlos Padilla, said the one-sided vote showed the “tyranny of the majority.”
“I believe in democracy, but this tyranny,” South Cotabato Rep. Darlene Antonino-Custodio said.
Quezon Rep. Lorenzo Tañada III said he voted against the resolution because Congress does not need to pass one in its use of its inherent legislative powers. He added he is also against the "crass" manifestation that the House alone can act in amending the Constitution without engaging the Senate.
“This is a massive deception of the Filipino people,” Anak Pawis party-list Rep. Rafael Mariano said. Akbayan lawmaker Walden Bello said the vote was in effect an extension of Ms Arroyo’s term beyond 2010.
"Have we no shame? Let us stop this farce immediately," Bukidnon Rep. Teofisto Guingona III said.
With the resolution’s passage, Nueva Ecija Rep. Eduardo Nonato Joson likened the country to a woman fighting off a rapist, saying “Huwag po kuya [Please don’t, sir].”
“Let us not gang rape our Constitution,” he said.
The House plenary will have to decide on when to convene the Con-ass, as well as the next steps to be taken, according to La Union Rep. Victor Ortega, chair of the committee on constitutional amendments.
To speed up passage of the resolution, the House leadership cut short the interpellation period and limited to 5 minutes the speeches of lawmakers opposing the voting.
At 9:30 p.m., Shariff Kabunsuan Rep. Didagen Dilangalen suddenly moved to close the debate after only five of the 13 representatives lined up— Minority Leader Ronaldo Zamora, Bayan Muna party-list Rep. Satur Ocampo, Guingona, Maza and Golez—were able to speak out against HR 1109.
Dilangalen claimed that the arguments raised against HR 1109 were repetitive.
At 9:53 p.m., the majority voted to shut down the debate and, after a 20-minute break, the minority resumed their opposition against what they called the majority’s “railroading” of the Con-ass.
Padilla said the mad rush to approve HR 1109 had made “this Congress the worst in the annals of history.”
Zamora questioned the haste with which it was being discussed in plenary, with only two session days left and with other key legislation pending for passage.
“Why the short cut? Why not go for the long haul, for the harder route? Why not eschew the easy path and make the amendments to the Constitution as important as the role of the committee on constitutional amendments?” Zamora said.
Gabriela party-list Rep. Liza Maza asked one of the sponsors, Cavite Rep. Elpidio Barzaga Jr., if it was possible under the resolution to postpone the 2010 elections.
"Everything is possible, but it depends on the sound judgment of our colleagues," Barzaga said.
Ortega also echoed the same view, saying that they would rely on "trust" basis in implementing the “whereas clause.”
After an early afternoon caucus, the majority decided to tackle HR 1109 ahead of the other contentious measures pending on the floor, such as the bills on the right of reply and on the extension of the Comprehensive Agrarian Reform Program (CARP).
Speaker Prospero Nograles then announced that the Tuesday plenary session would be devoted to HR 1109. As of 4:30 p.m., 211 lawmakers were present.
Critics have also warned that HR 1109 is a veiled attempt to stop the May 2010 elections and lift term limits on elected officials, including Ms Arroyo.
The original author of the measure, Camarines Sur Rep. Luis Villafuerte, had withdrawn support for it. He said he expected the resolution to be challenged in the Supreme Court.
Those pushing HR 1109 have said that they merely wanted to force the Supreme Court to rule on whether Charter change (Cha-cha) required the vote of three-fourths of all members of Congress, or three-fourths of the House and three-fourths of the Senate.
Arroyo’s tacit approval
The President herself gave tacit approval for Lakas-Kampi-CMD allies in the House to push for the passage of HR 1109, according to Nograles.
He said the decision to push for HR 1109 over his own HR 737—which seeks to lift constitutional limits on foreign investments through regular legislation, or the “fourth mode” of Charter change—was reached during the official merger on Thursday of the ruling parties Lakas-Christian Muslim Democrats and Kabalikat ng Malayang Pilipino (Kampi).
“The leaders of Lakas and Kampi decided in that meeting that this is one of the things that we will push for. I will not deny that she (the President) was present when we decided on that, but she did not say anything,” Nograles said in an interview.
HR 1109 was aggressively promoted for signatures in the House by the President’s elder son, Pampanga Rep. Juan Miguel Arroyo.
Although Villafuerte, the president of Kampi, decided to drop the resolution, Ms Arroyo’s allies in the House committee on constitutional amendments voted to have it debated on the floor ahead of HR 737, which has been pending for more than a month.
Nograles said HR 1109 was easier to pass in the House because it only required a simple majority vote (136) compared to his own resolution, which proposed a specific amendment and, therefore, needed three-fourths of the vote (199).
The latter is more difficult to muster.
“If I do not get three-fourths for 737 after nominal voting, the resolution is lost. It will never see the light of day, it will be buried. So we will not force a vote on 737 if we are not sure we can get three-fourths of the House,” Nograles said.
He added that his resolution would be tackled after HR 1109.
Congress is to adjourn on June 5.
‘That’s nothing’
Informed late Tuesday of the House plenary discussions on HR 1109, Senate President Juan Ponce Enrile responded with a shrug.
“Wala yun (That’s nothing). How can they do it?” he told reporters.
Enrile reiterated the senators’ position that the House move to amend the Constitution without Senate participation was “an exercise in futility.”
“They need the Senate,” he said. “It’s impossible for them to accomplish that. Huwag ninyo nang pag-abalahan yan (Don’t bother with it).”
Said Sen. Francis Escudero: “It is only the President now who can stop the Cha-cha train in the lower house. She is, after all, the head of the newly merged Lakas-Kampi-CMD.”
But in a report, Reuters quoted Interior Secretary Ronaldo Puno as saying: “Nobody believes there will be a constituent assembly in Congress. Nobody, not even the sponsors of the resolution.”
Gabriel Claudio, Ms Arroyo’s political adviser, said he doubted that the House plenary debate on HR 1109 would affect the “certainty and inevitability” of the May 2010 elections.
“I think the leaders of the House and the proponents of Charter change are just being consistent. They have said that as far as the proposal for Con-ass is concerned, they are just after a trigger mechanism for a case to be filed before the Supreme Court so there could be a final interpretation on the manner of voting by Congress in a constituent assembly,” Claudio said at a briefing.
“[The lawmakers] are very consistent about their observation that there is really no more time for actual changes in the Constitution to take place before the elections. So nobody is disputing the certainty of the elections in 2010,” Claudio said.
He added: “This is all the more bolstered by the successful merger of the two administration parties.”
‘Easy’ resolution
Nograles told reporters that HR 1109 was put on the table first because the right of reply and CARP extension bills had been discussed extensively.
HR 1109 needs only a majority vote of the House members to be approved because it does not propose any specific amendment to the Constitution.
“It’s a resolution that’s easy to get the majority [to vote for], as long as they’re all present. We won’t have a hard time getting that,” Nograles said.
“It’s not that we want to put it first. Let’s give it a startup … It’s very simple.
It’s just a resolution. It only needs a majority vote. It does not need three-fourths,” he said.
Asked if the constituent assembly would be convened after the approval of HR 1109, Nograles said he did not think so.
“Maybe after we come back [at the resumption of the session]. Maybe after the SONA (State of the Nation Address),” he said.
If HR 1109 is approved, Nograles will call for a leadership meeting to discuss the next steps.
“It would have to be implemented. How, I don’t know,” he said.
Interior Secretary Puno said the Philippines would “completely lose its credibility” before the international community if it flip-flopped on its assurance on the holding of elections next year.
At a forum organized by the Foreign Correspondents Association of the Philippines (Focap), Puno said his decision to seek the ruling coalition’s nomination as its vice presidential candidate was proof that the polls would push through as scheduled.
According to Puno, amending the Constitution before the 2010 elections was now virtually impossible. With reports from TJ Burgonio and Christine O. Avendaño
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090603-208528/House-rams-through-Con-ass-resolution
Palace soothes no-el fears; Senate shrugs
By Christian V. Esguerra, Leila Salaverria, Christine Avendaño
Philippine Daily Inquirer
Posted date: June 04, 2009
Enter Lozanos
As it happened, Oliver Lozano and his daughter Evangeline Lozano-Endriano, both lawyers, outdid everyone else in filing a petition at the Supreme Court asking that HR 1109 be nullified “in the interest of public welfare” and naming Nograles and the House of Representatives as respondents.
In the five-page petition, Lozano said: “The railroaded HR No. 1109 is unconstitutional or bogus for deviation from the prescribed procedures to amend the Constitution by excluding the Senate … from the complete process of proposing amendments to the Constitution and for lack of thorough debates.”
The high court, through its spokesperson Jose Midas Marquez, said it was prepared to address the issue.
“This is not something new for the court,” Marquez said. “The court is prepared for that. We will deal with that as it comes.”
Lozano said the resolution’s hidden agenda was to extend Ms Arroyo’s term.
He said it was not a proposal by Congress “but allegedly a dictation of the presidency in order to extend the term of the President.”
Told that Lozano had asked the Supreme Court to nullify HR 1109, Senate Minority Leader Aquilino Pimentel said he hoped Lozano “means it sincerely.”
“[But] whatever his petition is, it does not foreclose the right of other parties to bring proper suits before the Supreme Court when needed,” Pimentel said.
As for the senators, he said: “Why should we bother [to take the House to court] with such a patently irregular, unconstitutional act? What a waste of time that will be.”
Sen. Francis Pangilinan said the Lozano petition should be dismissed for being premature.
See:
http://services.inquirer.net/print/print.php?article_id=20090604-208702
Friday, June 12, 2009
Indigent
In the late 1960s, certain laws, which are digested hereinbelow, were passed by the Philippine Congress to alleviate the financial burdens of poor litigants. Sadly, these laws seem to have been mooted by gross inaction on the part of the pillars and administrators of the Justice System. There seem to be no annual performance or status reports from the concerned government bodies that describe the implementation of the said laws. These laws seemed to have died by reason of financial anemia and neglect.
Under R.A. No. 6033 (August 4, 1969), with the exception of habeas corpus and election cases and cases involving detention prisoners, and persons covered by R.A. No. 4908, all courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either as the offended party or accused. The trial in these cases shall commence within three days from date of arraignment and no postponement of the hearings shall be granted except on the ground of illness of the accused or other similar justifiable grounds. City and provincial fiscals and courts shall forthwith conduct the preliminary investigation of a criminal case involving an indigent within three days after its filing and shall terminate the same within two weeks. (Sec. 1).
The term "indigent" shall refer to a person who has no visible means of income or whose income is insufficient for the subsistence of his family, to be determined by the fiscal or judge, taking into account the members of his family dependent upon him for subsistence. (Sec. 2).
An indigent who is the offended party, respondent or an accused in a criminal case and who desires to avail of the preference granted under the act shall file a sworn statement of the fact of his being indigent and the said sworn statement shall be sufficient basis for the court or fiscal to give preference to the trial and disposition of such criminal case.
Under R.A. No. 6034 (August 4, 1969), any indigent litigant may, upon motion, ask the Court for adequate travel allowance to enable him and his indigent witnesses to attendant the hearing of a criminal case commenced by his complaint or filed against him. The allowance shall cover actual transportation expenses by the cheapest means from his place of residence to the court and back. When the hearing of the case requires the presence of the indigent litigant and/or his indigent witnesses in court the whole day or for two or more consecutive days, allowances may, in the discretion of the Court, also cover reasonable expenses for meal and lodging.
Indigent litigants shall include anyone who has no visible means of income or whose income is insufficient for his family.
If the court determines that the petition for transportation allowance is meritorious, said court shall immediately issue an order directing the provincial, city or municipal treasurer to pay the indigent litigant the travel allowance out of any funds in his possession and proceed without delay to the trial of the case. The provincial, city or municipal treasurer shall hold any such payments as cash items until reimbursed by the national government. (Sec. 2).
All payments of travel allowances made by provincial, city and municipal treasurer under the act as of October 31 each year, shall be transmitted to the Commissioner of the Budget not later than November 30 each year for inclusion in the annual General Appropriations Act. The necessary sum was authorized to be appropriated out of the funds in the National Treasury not otherwise appropriated. (Sec. 3).
Under R.A. No. 6035 (August 4, 1969), a stenographer who has attended a hearing before an investigating fiscal or trial judge or hearing commissioner of any quasi-judicial body or administrative tribunal and has officially taken notes of the proceeding thereof shall, upon written request of an indigent or low income litigant, his counsel or duly authorized representative in the case concerned, give within a reasonable period to be determined by the fiscal, judge, commissioner or tribunal hearing the case, a free certified transcript of notes take by him on the case. (Sec.1).
A litigant who desires to avail himself of the privilege granted under Section one hereof shall, at the investigation, hearing, or trial, establish his status as an indigent or low income litigant and the investigating fiscal or judge or commissioner or tribunal hearing the case shall resolve the same in the same proceeding. (Sec. 2).
The 1969 definition of an "indigent or low income litigant" shall include anyone who has no visible means of support or whose income does not exceed P300 per month or whose income even in excess of P300 per month is insufficient for the subsistence of his family, which fact shall be determined by the investigating fiscal or trial judge or commissioner or tribunal hearing the case taking into account the number of the members of his family dependent upon him for subsistence. (id.).
Any stenographer who, after due hearing in accordance with the pertinent provisions of Republic Act No. 2260, as amended, has been found to have violated the provisions of Section one of this Act or has unreasonable delayed the giving of a free certified transcript of notes to an indigent or low income litigant shall be subject to the following disciplinary actions:
(a) suspension from office for a period not exceeding thirty (30) days upon finding of guilt for the first time;
(b) suspension from office for not less than thirty (30) days and not more than sixty (60) days upon finding of guilt for the second time; and
(c) removal from office upon finding of guilt for the third time. (Sec. 3).
The Department of Justice shall prescribe such rules and regulations as may be necessary to carry out the purposes of the law, and the department head concerned shall provide the necessary supplies and authorize the use of government equipment by the stenographers concerned.
Under R.A. No. 6036 (August 4, 1969), bail shall not be required of a person charged with violation of a municipal or city ordinance, a light felony and/or a criminal offense the prescribed penalty for which is not higher than six months imprisonment and/or a fine of two thousand pesos, or both, where said person has established to the satisfaction of the court or any other appropriate authority hearing his case that he is unable to post the required cash or bail bond. (Sec. 1).
The exceptions are the following:
(a) When he is caught committing the offense in flagranti;
(b) When he confesses to the commission of the offense unless the confession is later repudiated by him in a sworn statement or in open court as having been extracted through force or intimidation;
(c) When he is found to have previously escaped from legal confinement, evaded sentence, or jumped bail;
(d) When he is found to have previously violated the provisions of Section 2 hereof;
(e) When he is found to be a recidivist or a habitual delinquent or has been previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for two or more offenses to which it attaches a lighter penalty;
(f) When he commits the offense while on parole or under conditional pardon; and
(g) When the accused has previously been pardoned by the municipal or city mayor for violation of municipal or city ordinance for at least two times. (id.).
Section 2 of the law provides that instead of bail, the person charged with any offense contemplated by Section 1 shall be required to sign in the presence of two witnesses of good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of the Court hearing his case periodically every two weeks. The Court may, in its discretion and with the consent of the person charged, require further that he be placed under the custody and subject to the authority of a responsible citizen in the community who may be willing to accept the responsibility. In such a case the affidavit herein mentioned shall include a statement of the person charged that he binds himself to accept the authority of the citizen so appointed by the Court. The Clerk of Court shall immediately report the presence of the accused person to the Court. This is RECOGNIZANCE.
Except when his failure to report is for justifiable reasons including circumstances beyond his control to be determined by the Court, any violation of this sworn statement shall justify the Court to order his immediate arrest unless he files bail in the amount forthwith fixed by the Court.
Under R.A. No. 6033 (August 4, 1969), with the exception of habeas corpus and election cases and cases involving detention prisoners, and persons covered by R.A. No. 4908, all courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either as the offended party or accused. The trial in these cases shall commence within three days from date of arraignment and no postponement of the hearings shall be granted except on the ground of illness of the accused or other similar justifiable grounds. City and provincial fiscals and courts shall forthwith conduct the preliminary investigation of a criminal case involving an indigent within three days after its filing and shall terminate the same within two weeks. (Sec. 1).
The term "indigent" shall refer to a person who has no visible means of income or whose income is insufficient for the subsistence of his family, to be determined by the fiscal or judge, taking into account the members of his family dependent upon him for subsistence. (Sec. 2).
An indigent who is the offended party, respondent or an accused in a criminal case and who desires to avail of the preference granted under the act shall file a sworn statement of the fact of his being indigent and the said sworn statement shall be sufficient basis for the court or fiscal to give preference to the trial and disposition of such criminal case.
Under R.A. No. 6034 (August 4, 1969), any indigent litigant may, upon motion, ask the Court for adequate travel allowance to enable him and his indigent witnesses to attendant the hearing of a criminal case commenced by his complaint or filed against him. The allowance shall cover actual transportation expenses by the cheapest means from his place of residence to the court and back. When the hearing of the case requires the presence of the indigent litigant and/or his indigent witnesses in court the whole day or for two or more consecutive days, allowances may, in the discretion of the Court, also cover reasonable expenses for meal and lodging.
Indigent litigants shall include anyone who has no visible means of income or whose income is insufficient for his family.
If the court determines that the petition for transportation allowance is meritorious, said court shall immediately issue an order directing the provincial, city or municipal treasurer to pay the indigent litigant the travel allowance out of any funds in his possession and proceed without delay to the trial of the case. The provincial, city or municipal treasurer shall hold any such payments as cash items until reimbursed by the national government. (Sec. 2).
All payments of travel allowances made by provincial, city and municipal treasurer under the act as of October 31 each year, shall be transmitted to the Commissioner of the Budget not later than November 30 each year for inclusion in the annual General Appropriations Act. The necessary sum was authorized to be appropriated out of the funds in the National Treasury not otherwise appropriated. (Sec. 3).
Under R.A. No. 6035 (August 4, 1969), a stenographer who has attended a hearing before an investigating fiscal or trial judge or hearing commissioner of any quasi-judicial body or administrative tribunal and has officially taken notes of the proceeding thereof shall, upon written request of an indigent or low income litigant, his counsel or duly authorized representative in the case concerned, give within a reasonable period to be determined by the fiscal, judge, commissioner or tribunal hearing the case, a free certified transcript of notes take by him on the case. (Sec.1).
A litigant who desires to avail himself of the privilege granted under Section one hereof shall, at the investigation, hearing, or trial, establish his status as an indigent or low income litigant and the investigating fiscal or judge or commissioner or tribunal hearing the case shall resolve the same in the same proceeding. (Sec. 2).
The 1969 definition of an "indigent or low income litigant" shall include anyone who has no visible means of support or whose income does not exceed P300 per month or whose income even in excess of P300 per month is insufficient for the subsistence of his family, which fact shall be determined by the investigating fiscal or trial judge or commissioner or tribunal hearing the case taking into account the number of the members of his family dependent upon him for subsistence. (id.).
Any stenographer who, after due hearing in accordance with the pertinent provisions of Republic Act No. 2260, as amended, has been found to have violated the provisions of Section one of this Act or has unreasonable delayed the giving of a free certified transcript of notes to an indigent or low income litigant shall be subject to the following disciplinary actions:
(a) suspension from office for a period not exceeding thirty (30) days upon finding of guilt for the first time;
(b) suspension from office for not less than thirty (30) days and not more than sixty (60) days upon finding of guilt for the second time; and
(c) removal from office upon finding of guilt for the third time. (Sec. 3).
The Department of Justice shall prescribe such rules and regulations as may be necessary to carry out the purposes of the law, and the department head concerned shall provide the necessary supplies and authorize the use of government equipment by the stenographers concerned.
Under R.A. No. 6036 (August 4, 1969), bail shall not be required of a person charged with violation of a municipal or city ordinance, a light felony and/or a criminal offense the prescribed penalty for which is not higher than six months imprisonment and/or a fine of two thousand pesos, or both, where said person has established to the satisfaction of the court or any other appropriate authority hearing his case that he is unable to post the required cash or bail bond. (Sec. 1).
The exceptions are the following:
(a) When he is caught committing the offense in flagranti;
(b) When he confesses to the commission of the offense unless the confession is later repudiated by him in a sworn statement or in open court as having been extracted through force or intimidation;
(c) When he is found to have previously escaped from legal confinement, evaded sentence, or jumped bail;
(d) When he is found to have previously violated the provisions of Section 2 hereof;
(e) When he is found to be a recidivist or a habitual delinquent or has been previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for two or more offenses to which it attaches a lighter penalty;
(f) When he commits the offense while on parole or under conditional pardon; and
(g) When the accused has previously been pardoned by the municipal or city mayor for violation of municipal or city ordinance for at least two times. (id.).
Section 2 of the law provides that instead of bail, the person charged with any offense contemplated by Section 1 shall be required to sign in the presence of two witnesses of good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of the Court hearing his case periodically every two weeks. The Court may, in its discretion and with the consent of the person charged, require further that he be placed under the custody and subject to the authority of a responsible citizen in the community who may be willing to accept the responsibility. In such a case the affidavit herein mentioned shall include a statement of the person charged that he binds himself to accept the authority of the citizen so appointed by the Court. The Clerk of Court shall immediately report the presence of the accused person to the Court. This is RECOGNIZANCE.
Except when his failure to report is for justifiable reasons including circumstances beyond his control to be determined by the Court, any violation of this sworn statement shall justify the Court to order his immediate arrest unless he files bail in the amount forthwith fixed by the Court.
Speedy trial; double jeopardy
The recent case of DANTE T. TAN vs. PEOPLE OF THE PHILIPPINES, G.R. No. 173637, April 21, 2009, deals with the issues of speedy trial and double jeopardy. Although the doctrinal pronouncements therein are not novel, I deem it useful to digest the case, as a refresher material for the legal researchers visiting this law blog.
(Note: As widely known in Philippine business circles, the criminal cases involving the petitioner Dante Tan, who was a crony of past Philippine president Joseph Estrada, were somehow related to the murder of publicist Bubby Dacer some years back. The recent reopening of the preliminary investigation of the Dacer murder case by Justice Secretary Raul Gonzalez, now the Chief Presidential Legal Counsel, will surely drag the names of Estrada and his former national police chief and now Sen. Panfilo Lacson into the proceedings).
A digest of the abovementioned Supreme Court decision follows hereinbelow.
On 19 December 2000, a Panel of Prosecutors of the Department of Justice (DOJ), on behalf of the People of the Philippines (People), filed three Informations against Dante T. Tan the Regional Trial Court (RTC) of Pasig City. The cases pertained to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares and the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares. In two other related cases, two Informations were filed against a certain Jimmy Juan and Eduardo G. Lim for violation of the Revised Securities Act involving BW shares of stock. On the same day, the DOJ, through Assistant Chief State Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that the cases be consolidated together which the trial court granted. Petitioner was arraigned on 16 January 2001, and pleaded not guilty to the charges. On 6 February 2001, the pre-trial was concluded, and a pre-trial order set, among other things, the first date of trial on 27 February 2001.
At the crux of the controversy was the issue of whether there was a violation of petitioner Dante Tan’s right to speedy trial.
Petitioner assailed the decision and resolution of the Court of Appeals which determined that he “impliedly agreed” that his case would not be tried until after termination of the other related cases.
Offhand, the Court stated that an accused’s right to “have a speedy, impartial, and public trial” is guaranteed in criminal cases by Section 14(2) of Article III of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its “salutary objective” being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. The oft-repeated adage “justice delayed is justice denied” requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.
The Court added that following the policies incorporated under the 1987 Constitution, Republic Act No. 8493, otherwise known as “The Speedy Trial Act of 1998,” was enacted, with Section 6 of said act limiting the trial period to 180 days from the first day of trial. Aware of problems resulting in the clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.
The Court emphasized qualified that a balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State.
In the case at bar, it was established that from the initial hearing on 27 February 2001 until the time the prosecution filed its formal offer of evidence for Criminal Cases No. 119831-119832 on 25 November 2003, both prosecution and defense admitted that no evidence was presented for Criminal Case No. 119830. Hence, for a period of almost two years and eight months, the prosecution did not present a single evidence for Criminal Case No. 119830. The question was whether there was vexatious, capricious, and oppressive delay. To this, the Court applied the four-factor test previously mentioned. It stated that in determining the right of an accused to speedy trial, courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. A mere mathematical reckoning of the time involved is clearly insufficient, and particular regard must be given to the facts and circumstances peculiar to each case.
In previous cases the Court ruled that there was no violation of the right to speedy trial and speedy disposition where the delay was attended by the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court also considered the failure of the accused to assert such right, the complexity of the issues, the conduct of the lawyers of the accused, and the lack of prejudice caused by the delay to the accused.
Petitioner’s objection to the prosecution’s stand that he gave an implied consent to the separate trial of Criminal Case No. 119830 is belied by the records of the case. No objection was interposed by his defense counsel when this matter was discussed during the initial hearing. Petitioner’s conformity thereto can be deduced from his non-objection at the preliminary hearing when the prosecution manifested that the evidence to be presented would be only for Criminal Cases No. 119831-119832. His failure to object to the prosecution’s manifestation that the cases be tried separately is fatal to his case. The acts, mistakes and negligence of counsel bind his client, except only when such mistakes would result in serious injustice. In fact, petitioner’s acquiescence is evident from the transcript of stenographic notes during the initial presentation of the People’s evidence in the five BW cases on 27 February 2001, which the Court quoted extensively.
The Court stressed that although periods for trial have been stipulated, these periods were not absolute. Where periods had been set, certain exclusions were allowed by law. After all, the Court and the law recognize the fact that judicial proceedings did not exist in a vacuum and had to contend with the realities of everyday life. In spite of the prescribed time limits, jurisprudence continued to adopt the view that the fundamentally recognized principle was that the concept of speedy trial was a relative term and must necessarily be a flexible concept.
As to the assertion that delay in the presentation of evidence for Criminal Case No. 119830 has prejudiced petitioner because the witnesses for the defense may no longer be available at this time, the Court stated that suffice it to say that the burden of proving his guilt rests upon the prosecution. Should the prosecution fail for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, petitioner would be acquitted. Unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.
On a related issue, the Court stated that there was no merit to petitioner’s claim that a reversal of the RTC’s Order dismissing Criminal Case No. 119830 was a violation of his constitutional right against double jeopardy which dismissal was founded on an alleged violation of his right to speedy trial.
The constitutional protection against double jeopardy shields one from a second or later prosecution for the same offense. Article III, Section 21 of the 1987 Constitution declares that no person shall be twice put in jeopardy of punishment for the same offense, providing further that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Following the above constitutional provision, Section 7, Rule 117 of the Revised Rules of Court found it apt to stipulate:
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.
For double jeopardy to attach then, the following elements in the first criminal case must be present:
(a) The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction;
(b) The court had jurisdiction;
(c) The accused had been arraigned and had pleaded; and
(d) He was convicted or acquitted or the case was dismissed or otherwise terminated without the express consent of the accused.
In the case at bar, the Court held that double jeopardy had not attached, considering that the dismissal of Criminal Case No. 119830 on the ground of violation of his right to speedy trial was without basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. Although it was true that in an unbroken line of cases, the Court had held that dismissal of cases on the ground of failure to prosecute was equivalent to an acquittal that would bar further prosecution of the accused for the same offense, it stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. Double jeopardy did not apply to this case, considering that there was no violation of petitioner’s right to speedy trial.
Indeed, the Court held that for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone. Evidently, the task of the pillars of the criminal justice system was to preserve our democratic society under the rule of law, ensuring that all those who appeared before or were brought to the bar of justice were afforded a fair opportunity to present their side. The State, like any other litigant, was entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal, instead of unclogging dockets, had actually increased the workload of the justice system and unwittingly prolonged the litigation.
Finally, the Court reiterated that the rights given to the accused by the Constitution and the Rules of Court were shields, not weapons. Courts were tasked to give meaning to that intent. There being no capricious, vexatious, oppressive delay in the proceedings, and no postponements unjustifiably sought, it dismissed the petition.
(Note: As widely known in Philippine business circles, the criminal cases involving the petitioner Dante Tan, who was a crony of past Philippine president Joseph Estrada, were somehow related to the murder of publicist Bubby Dacer some years back. The recent reopening of the preliminary investigation of the Dacer murder case by Justice Secretary Raul Gonzalez, now the Chief Presidential Legal Counsel, will surely drag the names of Estrada and his former national police chief and now Sen. Panfilo Lacson into the proceedings).
A digest of the abovementioned Supreme Court decision follows hereinbelow.
On 19 December 2000, a Panel of Prosecutors of the Department of Justice (DOJ), on behalf of the People of the Philippines (People), filed three Informations against Dante T. Tan the Regional Trial Court (RTC) of Pasig City. The cases pertained to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares and the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares. In two other related cases, two Informations were filed against a certain Jimmy Juan and Eduardo G. Lim for violation of the Revised Securities Act involving BW shares of stock. On the same day, the DOJ, through Assistant Chief State Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that the cases be consolidated together which the trial court granted. Petitioner was arraigned on 16 January 2001, and pleaded not guilty to the charges. On 6 February 2001, the pre-trial was concluded, and a pre-trial order set, among other things, the first date of trial on 27 February 2001.
At the crux of the controversy was the issue of whether there was a violation of petitioner Dante Tan’s right to speedy trial.
Petitioner assailed the decision and resolution of the Court of Appeals which determined that he “impliedly agreed” that his case would not be tried until after termination of the other related cases.
Offhand, the Court stated that an accused’s right to “have a speedy, impartial, and public trial” is guaranteed in criminal cases by Section 14(2) of Article III of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its “salutary objective” being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. The oft-repeated adage “justice delayed is justice denied” requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.
The Court added that following the policies incorporated under the 1987 Constitution, Republic Act No. 8493, otherwise known as “The Speedy Trial Act of 1998,” was enacted, with Section 6 of said act limiting the trial period to 180 days from the first day of trial. Aware of problems resulting in the clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.
The Court emphasized qualified that a balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State.
In the case at bar, it was established that from the initial hearing on 27 February 2001 until the time the prosecution filed its formal offer of evidence for Criminal Cases No. 119831-119832 on 25 November 2003, both prosecution and defense admitted that no evidence was presented for Criminal Case No. 119830. Hence, for a period of almost two years and eight months, the prosecution did not present a single evidence for Criminal Case No. 119830. The question was whether there was vexatious, capricious, and oppressive delay. To this, the Court applied the four-factor test previously mentioned. It stated that in determining the right of an accused to speedy trial, courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. A mere mathematical reckoning of the time involved is clearly insufficient, and particular regard must be given to the facts and circumstances peculiar to each case.
In previous cases the Court ruled that there was no violation of the right to speedy trial and speedy disposition where the delay was attended by the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court also considered the failure of the accused to assert such right, the complexity of the issues, the conduct of the lawyers of the accused, and the lack of prejudice caused by the delay to the accused.
Petitioner’s objection to the prosecution’s stand that he gave an implied consent to the separate trial of Criminal Case No. 119830 is belied by the records of the case. No objection was interposed by his defense counsel when this matter was discussed during the initial hearing. Petitioner’s conformity thereto can be deduced from his non-objection at the preliminary hearing when the prosecution manifested that the evidence to be presented would be only for Criminal Cases No. 119831-119832. His failure to object to the prosecution’s manifestation that the cases be tried separately is fatal to his case. The acts, mistakes and negligence of counsel bind his client, except only when such mistakes would result in serious injustice. In fact, petitioner’s acquiescence is evident from the transcript of stenographic notes during the initial presentation of the People’s evidence in the five BW cases on 27 February 2001, which the Court quoted extensively.
The Court stressed that although periods for trial have been stipulated, these periods were not absolute. Where periods had been set, certain exclusions were allowed by law. After all, the Court and the law recognize the fact that judicial proceedings did not exist in a vacuum and had to contend with the realities of everyday life. In spite of the prescribed time limits, jurisprudence continued to adopt the view that the fundamentally recognized principle was that the concept of speedy trial was a relative term and must necessarily be a flexible concept.
As to the assertion that delay in the presentation of evidence for Criminal Case No. 119830 has prejudiced petitioner because the witnesses for the defense may no longer be available at this time, the Court stated that suffice it to say that the burden of proving his guilt rests upon the prosecution. Should the prosecution fail for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, petitioner would be acquitted. Unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.
On a related issue, the Court stated that there was no merit to petitioner’s claim that a reversal of the RTC’s Order dismissing Criminal Case No. 119830 was a violation of his constitutional right against double jeopardy which dismissal was founded on an alleged violation of his right to speedy trial.
The constitutional protection against double jeopardy shields one from a second or later prosecution for the same offense. Article III, Section 21 of the 1987 Constitution declares that no person shall be twice put in jeopardy of punishment for the same offense, providing further that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Following the above constitutional provision, Section 7, Rule 117 of the Revised Rules of Court found it apt to stipulate:
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.
For double jeopardy to attach then, the following elements in the first criminal case must be present:
(a) The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction;
(b) The court had jurisdiction;
(c) The accused had been arraigned and had pleaded; and
(d) He was convicted or acquitted or the case was dismissed or otherwise terminated without the express consent of the accused.
In the case at bar, the Court held that double jeopardy had not attached, considering that the dismissal of Criminal Case No. 119830 on the ground of violation of his right to speedy trial was without basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. Although it was true that in an unbroken line of cases, the Court had held that dismissal of cases on the ground of failure to prosecute was equivalent to an acquittal that would bar further prosecution of the accused for the same offense, it stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. Double jeopardy did not apply to this case, considering that there was no violation of petitioner’s right to speedy trial.
Indeed, the Court held that for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone. Evidently, the task of the pillars of the criminal justice system was to preserve our democratic society under the rule of law, ensuring that all those who appeared before or were brought to the bar of justice were afforded a fair opportunity to present their side. The State, like any other litigant, was entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal, instead of unclogging dockets, had actually increased the workload of the justice system and unwittingly prolonged the litigation.
Finally, the Court reiterated that the rights given to the accused by the Constitution and the Rules of Court were shields, not weapons. Courts were tasked to give meaning to that intent. There being no capricious, vexatious, oppressive delay in the proceedings, and no postponements unjustifiably sought, it dismissed the petition.
Manny Villar
Past Philippine Senate President (and hopefully the next Philippine President) Manny Villar -- who, like his supportive wife Rep. Cynthia Villar, is a friend of the Las Pinas City Bar Association (LPBA), Inc. -- is now in New York to attend the 111th Philippine Independence Day celebration there.
My long-time friend Manny Caballero, a columnist of New York-based THE FILIPINO REPORTER, in his latest column, wrote the following about our common tukayo Manny Villar, to wit:
“Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.”
Below is the full text of Manny Caballero’s column.
ON MY WATCH
By Manuel L. Caballero
THE FILIPINO REPORTER
New Jersey and New York, USA
June 12, 2009
The day-long Philippine Independence Day Parade & Festival held in New York City over the weekend was orderly and successful.
Let’s congratulate the organizers this year, under the leadership of Philippine Independence Day Council, Inc. (PIDCI) president Gerry M. Austria of Jersey City, NJ. It seems to me that the glamour and excitement of this celebration had gone back to its old glory since Filipinos from New Jersey started to get elected to lead PIDCI. (This is only a big joke because I know New York Pinoys will disagree).
Seriously, kudos to the hard work of Gerry, the famed American Pinoy, and his colleagues in the PIDCI Board.
* * *
Two serious and leading contenders for the presidency of the Philippines in 2010 and probably one in 2016 were at the New York parade last Sunday. They are Vice President Noli de Castro and former Senate president Manny Villar. The 2016 guy who looked more of an Italian to me than a Filipino is Sen. Alan Peter Cayetano.
History proves that marching in the New York Philippine parade brings good luck to Filipino presidential candidates. In the past, as candidates, former presidents Fidel V. Ramos and Joseph Estrada joined the NY parade. Both won in subsequent elections.
President Gloria M. Arroyo, when she was still vice president, also marched in this parade. Later on, she became president, and is still the president. It seems, she wants to cling to power even after the expiration of her term next year. I will discuss this subject below.
If you were at the festival site last Sunday, where at around 4:30 p.m., a group of 12 young protesters suddenly appeared, each demonstrating a specific issue, you’d know what I mean. One of the placards read “NO TO GMA’S CON-ASS!” Con-Ass means Constituent Assembly, not the usual ass word. If you were a GMA critic, I guess you could use the word any way you wish.
Let’s get back to business. I had a chance to speak with the two senators separately on some Philippine- related issues in the corner of Park Avenue South and 23rd Street after the parade. Let me share some of our topics.
(I did not seek an interview with Vice President de Castro because I will have the opportunity to talk to him next week as he keynotes the GK 2024 Global Summit in Boston).
Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.
In the same interview, Senator Villar categorically denied that he committed wrongdoing on a government road project in the Paranaque area which is now under investigation by his fellow senators for allegedly benefiting his real estate business.
“The worst punishment for the offense they are investigating me for is reprimand,” said the former senate president. The senator seemed to say that his colleagues were merely wasting time. “It’s all politics,” added Sen. Villar.
The senator also told me he was a Couples for Christ member and that he was a supporter of Gawad Kalinga.
Senator Cayetano, on the other hand, said he was in New York, not as a candidate. He told me he would just campaign in 2010. Evidently, for Sen. Villar. He could also be the vice presidential team mate of Mr. Villar. The two are traveling together.
The youthful senator, who chairs the Senate Blue Ribbon Committee, wanted to send a message to Filipinos in America. He spoke of a “new independence.” The senator spoke of independence of Filipinos from poverty, unemployment, hunger and other social ills. “We should strive to achieve this ‘new independence’ for the Filipino people,” Sen. Cayetano also said.
* * *
In the U.S.A., according to a published report from the Associated Press, President Obama's disapproval rating on the economy has risen from 30 percent in February to 42 percent according to a Gallup poll completed May 31.
The president’s critics are quick to seize the moment by renewing their criticisms that the stimulus plan has not shown results, only mounting debt.
"This is President Obama's economy, and his administration must provide results and specifics rather than vague descriptions of success that seem to change by the week," said House Republican Whip Eric Cantor of Virginia.
The President answered back his critics during Monday's Cabinet meeting.
"Now, I know that there's some who, despite all evidence to the contrary, still don't believe in the necessity and promise of this recovery act," he said.
"And I would suggest to them that they talk to the companies who, because of this plan, scrapped the idea of laying off employees and, in fact, decided to hire employees. Tell that to the Americans who received that unexpected call saying, 'Come back to work.'"
Although, the President admitted in the same cabinet meeting he was not satisfied with how the economic stimulus was working.
My long-time friend Manny Caballero, a columnist of New York-based THE FILIPINO REPORTER, in his latest column, wrote the following about our common tukayo Manny Villar, to wit:
“Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.”
Below is the full text of Manny Caballero’s column.
ON MY WATCH
By Manuel L. Caballero
THE FILIPINO REPORTER
New Jersey and New York, USA
June 12, 2009
The day-long Philippine Independence Day Parade & Festival held in New York City over the weekend was orderly and successful.
Let’s congratulate the organizers this year, under the leadership of Philippine Independence Day Council, Inc. (PIDCI) president Gerry M. Austria of Jersey City, NJ. It seems to me that the glamour and excitement of this celebration had gone back to its old glory since Filipinos from New Jersey started to get elected to lead PIDCI. (This is only a big joke because I know New York Pinoys will disagree).
Seriously, kudos to the hard work of Gerry, the famed American Pinoy, and his colleagues in the PIDCI Board.
* * *
Two serious and leading contenders for the presidency of the Philippines in 2010 and probably one in 2016 were at the New York parade last Sunday. They are Vice President Noli de Castro and former Senate president Manny Villar. The 2016 guy who looked more of an Italian to me than a Filipino is Sen. Alan Peter Cayetano.
History proves that marching in the New York Philippine parade brings good luck to Filipino presidential candidates. In the past, as candidates, former presidents Fidel V. Ramos and Joseph Estrada joined the NY parade. Both won in subsequent elections.
President Gloria M. Arroyo, when she was still vice president, also marched in this parade. Later on, she became president, and is still the president. It seems, she wants to cling to power even after the expiration of her term next year. I will discuss this subject below.
If you were at the festival site last Sunday, where at around 4:30 p.m., a group of 12 young protesters suddenly appeared, each demonstrating a specific issue, you’d know what I mean. One of the placards read “NO TO GMA’S CON-ASS!” Con-Ass means Constituent Assembly, not the usual ass word. If you were a GMA critic, I guess you could use the word any way you wish.
Let’s get back to business. I had a chance to speak with the two senators separately on some Philippine- related issues in the corner of Park Avenue South and 23rd Street after the parade. Let me share some of our topics.
(I did not seek an interview with Vice President de Castro because I will have the opportunity to talk to him next week as he keynotes the GK 2024 Global Summit in Boston).
Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.
In the same interview, Senator Villar categorically denied that he committed wrongdoing on a government road project in the Paranaque area which is now under investigation by his fellow senators for allegedly benefiting his real estate business.
“The worst punishment for the offense they are investigating me for is reprimand,” said the former senate president. The senator seemed to say that his colleagues were merely wasting time. “It’s all politics,” added Sen. Villar.
The senator also told me he was a Couples for Christ member and that he was a supporter of Gawad Kalinga.
Senator Cayetano, on the other hand, said he was in New York, not as a candidate. He told me he would just campaign in 2010. Evidently, for Sen. Villar. He could also be the vice presidential team mate of Mr. Villar. The two are traveling together.
The youthful senator, who chairs the Senate Blue Ribbon Committee, wanted to send a message to Filipinos in America. He spoke of a “new independence.” The senator spoke of independence of Filipinos from poverty, unemployment, hunger and other social ills. “We should strive to achieve this ‘new independence’ for the Filipino people,” Sen. Cayetano also said.
* * *
In the U.S.A., according to a published report from the Associated Press, President Obama's disapproval rating on the economy has risen from 30 percent in February to 42 percent according to a Gallup poll completed May 31.
The president’s critics are quick to seize the moment by renewing their criticisms that the stimulus plan has not shown results, only mounting debt.
"This is President Obama's economy, and his administration must provide results and specifics rather than vague descriptions of success that seem to change by the week," said House Republican Whip Eric Cantor of Virginia.
The President answered back his critics during Monday's Cabinet meeting.
"Now, I know that there's some who, despite all evidence to the contrary, still don't believe in the necessity and promise of this recovery act," he said.
"And I would suggest to them that they talk to the companies who, because of this plan, scrapped the idea of laying off employees and, in fact, decided to hire employees. Tell that to the Americans who received that unexpected call saying, 'Come back to work.'"
Although, the President admitted in the same cabinet meeting he was not satisfied with how the economic stimulus was working.
Wednesday, June 10, 2009
Pampilo N. Encarnacion
EULOGY DELIVERED DURING THE FUNERAL VIGIL FOR THE LATE ATTY. PAMPILO N. ENCARNACION HELD ON JUNE 9, 2009 AT 8:00 PM AT PHILAMLIFE VILLAGE PARISH CHURH, LAS PINAS CITY.
With deep sorrow, may I extend my deepest condolences to the bereaved family of our beloved and well respected brother in the legal profession, Atty. Pampilo N. Encarnacion, who had lived a full and happy life as a family man and as an officer of the court, a life filled with the selfless spirit of enlightened public service to the Bar and the community.
Pampi, as we in the Bar fondly call Atty. Encarnacion, was a Founding Member and a Founding Director of the Las Pinas City Bar Association (LPBA), Inc. in March 2001.
Since 2001, prior to his death, Pampi had served our local voluntary Bar Association in various official capacities, such as Treasurer, Auditor, and Vice President.
Prior to his involvement in the local Bar of Las Pinas City in 2001, Pampi had served with dedication as a Director of the Cavite Chapter of the Integrated bar of the Philippines.
Last year, due to his poor health, Pampi begged off when invited to serve as the next Chairman of the Las Pinas City Bar Association.
As we all know, our local Bar Association is currently headed and managed by equally competent and dedicated Bar leaders, Atty. Melvyn Lagasca, as chairman, and Atty. Hilda Clave, as president.
A native of the historical and beautiful town of Kawit, Cavite, Pampi was a respected and honored son of the province of Cavite which he had selflessly served for many years as an advocate of law and justice.
Born in 1937, Pampi first worked for many years as a management executive in a private corporation in Makati before be studied law at the college of law of the prestigious Lyceum of the Philippines, the academic legacy of the Laurel Family to the Filipino nation.
Pampi was admitted to the Bar in 1973 at the age of 36, developed by many years of experience as a businessman, management executive and consultant, and thinker.
At the time of the death of Pampi, our respective law offices were adverse lawyers in major civil cases pending with the Regional Trial Courts of Pasay City and Makati City involving big and prime real properties located on the Zapote-Alabang Road, Las Piñas City.
My law partner, Atty. Myrna Mercader, represented our office in the said cases. Pampi represented the plaintiffs. From time to time, I would read the legal pleadings of Pampi.
I respect Pampi as a member of the Bar, as a legal advocate and litigator, and as a legal writer and thinker.
For one, I was impressed by the elegance, maturity, clarity, and scholarship of the language and written presentations of his court pleadings and the enlightened and comprehensive arguments and citations that supported them.
His mind was always clear and focused when he researched, prepared and wrote his legal pleadings.
His untimely death will deprive our office of the precious opportunity to continue to learn from him.
In the morning of June 2, 2009 last week, which was the day before Pampi was confined, Pampi and I were together at the Hall of Justice of Makati City to attend our separate court hearings. We talked about his health. His 13-year old grandson was with him. If there was one thing that Pampi and I shared as our common denominator, aside from our common love of the law and justice, it is our COPD, or our “chronic obstructive pulmonary disease”, a common disease among overworked trial lawyers that is associated with many years of stress and anxiety.
While waiting for the elevator at the Makati hall of justice, Pampi told me that he was retiring from law practice and that he was just finishing all his pending cases out of a sense of duty and responsibility to his clients who were relying on his wisdom, zeal and loyalty as a litigator to protect their rights and property.
Pampi stated that he needed more private and quality time to rest and recuperate, to smell the flowers, so to speak, and to enjoy the company of his beloved family and grandchildren.
Being a grandfather myself, I felt in my heart the subtle spiritual meanings of his personal nostalgic longings.
The next day, I received a message from Atty. Melvyn Lagasca informing the local Bar of the sudden confinement of Pampi at the intensive care unit of the University of Perpetual Help Rizal Medical Center, Las Pinas City and asking the local Bar to pray for Pampi’s recovery.
Pampi’s death is a great loss to the Philippine Bar.
We, whom Pampi has left behind, need not worry for him.
In the light of the selfless love, unconditional charity and dedicated service that Pampi had shown to his family and his fellowmen while he was still alive, God and Nature will reward and bless him with divine happiness and true liberation from suffering.
Thank you.
Atty. Manuel J. Laserna Jr.
Founder and Consultant
Las Pinas City Bar Association
lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
With deep sorrow, may I extend my deepest condolences to the bereaved family of our beloved and well respected brother in the legal profession, Atty. Pampilo N. Encarnacion, who had lived a full and happy life as a family man and as an officer of the court, a life filled with the selfless spirit of enlightened public service to the Bar and the community.
Pampi, as we in the Bar fondly call Atty. Encarnacion, was a Founding Member and a Founding Director of the Las Pinas City Bar Association (LPBA), Inc. in March 2001.
Since 2001, prior to his death, Pampi had served our local voluntary Bar Association in various official capacities, such as Treasurer, Auditor, and Vice President.
Prior to his involvement in the local Bar of Las Pinas City in 2001, Pampi had served with dedication as a Director of the Cavite Chapter of the Integrated bar of the Philippines.
Last year, due to his poor health, Pampi begged off when invited to serve as the next Chairman of the Las Pinas City Bar Association.
As we all know, our local Bar Association is currently headed and managed by equally competent and dedicated Bar leaders, Atty. Melvyn Lagasca, as chairman, and Atty. Hilda Clave, as president.
A native of the historical and beautiful town of Kawit, Cavite, Pampi was a respected and honored son of the province of Cavite which he had selflessly served for many years as an advocate of law and justice.
Born in 1937, Pampi first worked for many years as a management executive in a private corporation in Makati before be studied law at the college of law of the prestigious Lyceum of the Philippines, the academic legacy of the Laurel Family to the Filipino nation.
Pampi was admitted to the Bar in 1973 at the age of 36, developed by many years of experience as a businessman, management executive and consultant, and thinker.
At the time of the death of Pampi, our respective law offices were adverse lawyers in major civil cases pending with the Regional Trial Courts of Pasay City and Makati City involving big and prime real properties located on the Zapote-Alabang Road, Las Piñas City.
My law partner, Atty. Myrna Mercader, represented our office in the said cases. Pampi represented the plaintiffs. From time to time, I would read the legal pleadings of Pampi.
I respect Pampi as a member of the Bar, as a legal advocate and litigator, and as a legal writer and thinker.
For one, I was impressed by the elegance, maturity, clarity, and scholarship of the language and written presentations of his court pleadings and the enlightened and comprehensive arguments and citations that supported them.
His mind was always clear and focused when he researched, prepared and wrote his legal pleadings.
His untimely death will deprive our office of the precious opportunity to continue to learn from him.
In the morning of June 2, 2009 last week, which was the day before Pampi was confined, Pampi and I were together at the Hall of Justice of Makati City to attend our separate court hearings. We talked about his health. His 13-year old grandson was with him. If there was one thing that Pampi and I shared as our common denominator, aside from our common love of the law and justice, it is our COPD, or our “chronic obstructive pulmonary disease”, a common disease among overworked trial lawyers that is associated with many years of stress and anxiety.
While waiting for the elevator at the Makati hall of justice, Pampi told me that he was retiring from law practice and that he was just finishing all his pending cases out of a sense of duty and responsibility to his clients who were relying on his wisdom, zeal and loyalty as a litigator to protect their rights and property.
Pampi stated that he needed more private and quality time to rest and recuperate, to smell the flowers, so to speak, and to enjoy the company of his beloved family and grandchildren.
Being a grandfather myself, I felt in my heart the subtle spiritual meanings of his personal nostalgic longings.
The next day, I received a message from Atty. Melvyn Lagasca informing the local Bar of the sudden confinement of Pampi at the intensive care unit of the University of Perpetual Help Rizal Medical Center, Las Pinas City and asking the local Bar to pray for Pampi’s recovery.
Pampi’s death is a great loss to the Philippine Bar.
We, whom Pampi has left behind, need not worry for him.
In the light of the selfless love, unconditional charity and dedicated service that Pampi had shown to his family and his fellowmen while he was still alive, God and Nature will reward and bless him with divine happiness and true liberation from suffering.
Thank you.
Atty. Manuel J. Laserna Jr.
Founder and Consultant
Las Pinas City Bar Association
lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
Tuesday, June 9, 2009
Impunity
In a previous blog, I condemned Davao City Mayor Rodrigo Duterte for the continuing extrajudicial killings and disappearances in his city, which has been perceived for some years now as a de facto cemetery for innocent victims of state-supported terrorism, violence, and crimes of impunity.
I have read the exhaustive 2009 report of the New York-based Human Rights Watch on the death squads of Davao City, Philippines, entitled “’You Can Die Any Time’- Death Squad Killings in Mindanao”.
It deserves serious consideration by Filipino lawyers and jurists if the Philippines is to maintain the stability and relevance of its fragile democratic institutions, downtrodden Constitution, corrupt republican Government, and gasping Justice System.
I wish to digest below the salient parts of the HRW Report.
The notorious and cowboy-type Davao City Mayor Rodrigo Duterte is quoted to have said during an interview with the press in February 2009:
“If you are doing an illegal activity in my city, if you are a criminal or part of a syndicate that preys on the innocent people of the city, for as long as I am the mayor, you are a legitimate target of assassination.”
Although reports of targeted killings in the Philippines, particularly in Mindanao, are not new, the number of victims has seen a steady rise over many years. In Davao City, the number has risen from two in 1998 to 98 in 2003 to 124 in 2008. In 2009, 33 killings were reported in January alone. In recent years the geographical scope of such killings has expanded far beyond Davao City and other cities on the southern island of Mindanao to Cebu City, the Philippines’ second largest metropolis.
The HRW stated that in researching the report, it found evidence of complicity and at times direct involvement of government officials and members of the police in killings by the so-called Davao Death Squad (DDS). It obtained detailed and consistent information on the DDS from relatives and friends of death squad members with direct knowledge of death squad operations, as well as journalists, community activists, and government officials who provided detailed corroborating evidence.
According to these “insiders,” most members of the DDS are either former communist New People’s Army insurgents who surrendered to the government or young men who themselves were death squad targets and joined the group to avoid being killed. Most can make far more money with the DDS than in other available occupations. Their handlers, called amo (boss), are usually police officers or ex-police officers. They provide them with training, weapons and ammunition, motorcycles, and information on the targets. Death squad members often use .45-caliber handguns, a weapon commonly used by the police but normally prohibitively expensive for gang members and common criminals.
The insiders told Human Rights Watch that the amo obtain information about targets from police or barangay (village or city district) officials, who compile lists of targets. The amo provides members of a death squad team with as little as the name of the target, and sometimes an address and a photograph. Police stations are then notified to ensure that police officers are slow to respond, enabling the death squad members to escape the crime scene, even when they commit killings near a police station.
The consistent failure of the Philippine National Police to seriously investigate apparent targeted killings is striking. Witnesses to killings told Human Rights Watch that the police routinely arrived at the scene long after the assailants leave, even if the nearest police station is minutes away. Police often fail to collect obvious evidence such as spent bullet casings, or question witnesses or suspects, but instead pressure the families of victims to identify the killers.
The killings follow a pattern. The assailants usually arrive in twos or
threes on a motorcycle without a license plate. They wear baseball caps and buttoned shirts or jackets, apparently to conceal their weapons underneath. They shoot or, increasingly, stab their victim without warning, often in broad daylight and in presence of multiple eyewitnesses, for whom they show little regard. And as quickly as they arrive, they ride off — but almost always before the police appear.
The killings probably have not generated the public outrage that would be expected because most of the victims have been young men known in their neighborhood for involvement in small-scale drug dealing or minor crimes such as petty theft and drug use. Other victims have been gang members and street children. Frequently, the victims had earlier been warned that their names were on a “list” of people to be killed unless they stopped engaging in criminal activities. The warnings were delivered by barangay officials, police officers, and sometimes even city government officials. In other cases, the victims were killed immediately after their release from police custody or prison, or shortly after they returned from hiding.
Human Rights Watch also investigated a number of cases in which those killed were seemingly unintended targets – victims of mistaken identity, unfortunate bystanders, and relatives and friends of the apparent target. Death squad members also have been victims of death squad killings, possibly because they “knew too much,” failed to perform their tasks, or became too exposed. Some Davao City residents also expressed the belief that some death squad members have become guns-for-hire.
Witnesses and family members who provide information to police on the killings, including the names of suspects, say that police either fail to follow up on the leads, whether they have started a criminal investigation, or if they have made any progress in their investigation. In many cases, witnesses are too afraid to come forward with information, as they believe they could become death squad targets by doing so.
The words and actions of long-time Davao City Mayor Rodrigo Duterte indicate his support for targeted killings of criminal suspects. Over the years, he has made numerous statements attempting to justify the killing of suspected criminals. In 2001-2002, Duterte would announce the names of “criminals” on local television and radio—and some of those he named would later become victims of death squad killings. Duterte claims that Davao City has achieved peace and order under his rule. But with killers roaming the streets with the comfort of state-protected impunity, the city remains a very unsafe place. Duterte and other local officials continue to deny the existence of any death squad. But in recent years, mayors and officials of other cities have made statements attempting to justify similar killings in their own cities. Sadly, Davao City is seen by some as a model for fighting crime. Just as disappointing, there is an almost complete lack of political will by the government at both local and national levels to address targeted killings and take action against the perpetrators.
The failure to dismantle the Davao Death Squad and other similar groups, prosecute those responsible, and bring justice to the families of victims lies not only with local authorities. The administration of Philippine President Gloria Macapagal Arroyo has largely turned a blind eye to the killing spree in Davao City and elsewhere. The Philippine National Police have not sought to confront the problem. And the inaction of the national institutions responsible for accountability, namely the Department of Justice, the Ombudsman’s Office, and the Commission on Human Rights, has fueled widespread impunity.
The continued death squad operation reflects an official mindset in which the ends are seen as justifying the means. The motive appears to be simple expedience: courts are viewed as slow or inept. The murder of criminal suspects is seen as easier as and faster than proper law enforcement. Official tolerance and support of targeted killing of suspected criminals promotes rather than curbs the culture of violence that has long plagued Davao City and other places where such killings occur.
Until national authorities take decisive action to disband the Davao Death Squad and all other similar groups that may be operating in other cities, and prosecute perpetrators and complicit officials, the pledges of President Arroyo and other government officials to respect basic human rights and uphold the rule of law will remain hollow.
Key Recommendations
The Philippine government and local authorities in Davao City, General Santos City, Digos City, and Tagum City, as well as other cities believed to be using or tolerating death squads, should urgently take measures to stop the killings and hold perpetrators accountable.
More specifically, Human Rights Watch urges that:
• President Arroyo should publicly denounce extrajudicial killings and local anti-crime campaigns that promote or encourage the unlawful use of force. She should order the Philippines National Police, the Ombudsman’s Office, and the National Bureau of Investigation to investigate the targeted killings of alleged drug dealers, petty criminals, and street children, and pledge that state employees who are found to be involved or complicit in such killings will be prosecuted in accordance with the law.
• The Philippine National Police should conduct thorough investigations into targeted killings of alleged drug dealers, petty criminals, and street children in Davao City, General Santos City, Digos City, Tagum City and investigate the alleged involvement and complicity of police officers in such killings, including their failure to investigate the killings rigorously and prepare cases for prosecution.
• The Commission on Human Rights should investigate and report publicly and promptly on the Davao Death Squad and other similar groups and the involvement of the PNP and city governments in Davao City and other cities where death squad activity has been reported.
• As part of its inquiry into the targeted killings of alleged drug dealers, petty criminals, and street children, the Commission on Human Rights should investigate whether Rodrigo Duterte, Mayor of Davao City, and other mayors and governors in the Philippines have been involved or complicit in death squad killings, or whether statements by government officials may have incited violence.
• The mayor of Davao City and other local officials should cease all support, verbal or otherwise, for anti-crime campaigns that entail violation of the law, including targeted killings of alleged drug dealers, petty criminals, and street children. They should arrest and prosecute perpetrators of the killings and state employees, including law enforcement officers, who are found to be involved or complicit in death squad operations.
• The Philippine Congress should conduct hearings on the Davao Death Squad and other similar groups in the Philippines, with special attention paid to whether local officials and police officers are involved or complicit in such killings.
• The United States, European Union, Japan, the World Bank and the Asian Development Bank should keep their pledges on human rights, the rule of law, and good governance, press the Philippine government to initiate investigations into alleged targeted killings in cities, and to publicize the results of its investigations and plans to dismantle the Davao Death Squad and other similar groups.
I have read the exhaustive 2009 report of the New York-based Human Rights Watch on the death squads of Davao City, Philippines, entitled “’You Can Die Any Time’- Death Squad Killings in Mindanao”.
It deserves serious consideration by Filipino lawyers and jurists if the Philippines is to maintain the stability and relevance of its fragile democratic institutions, downtrodden Constitution, corrupt republican Government, and gasping Justice System.
I wish to digest below the salient parts of the HRW Report.
The notorious and cowboy-type Davao City Mayor Rodrigo Duterte is quoted to have said during an interview with the press in February 2009:
“If you are doing an illegal activity in my city, if you are a criminal or part of a syndicate that preys on the innocent people of the city, for as long as I am the mayor, you are a legitimate target of assassination.”
Although reports of targeted killings in the Philippines, particularly in Mindanao, are not new, the number of victims has seen a steady rise over many years. In Davao City, the number has risen from two in 1998 to 98 in 2003 to 124 in 2008. In 2009, 33 killings were reported in January alone. In recent years the geographical scope of such killings has expanded far beyond Davao City and other cities on the southern island of Mindanao to Cebu City, the Philippines’ second largest metropolis.
The HRW stated that in researching the report, it found evidence of complicity and at times direct involvement of government officials and members of the police in killings by the so-called Davao Death Squad (DDS). It obtained detailed and consistent information on the DDS from relatives and friends of death squad members with direct knowledge of death squad operations, as well as journalists, community activists, and government officials who provided detailed corroborating evidence.
According to these “insiders,” most members of the DDS are either former communist New People’s Army insurgents who surrendered to the government or young men who themselves were death squad targets and joined the group to avoid being killed. Most can make far more money with the DDS than in other available occupations. Their handlers, called amo (boss), are usually police officers or ex-police officers. They provide them with training, weapons and ammunition, motorcycles, and information on the targets. Death squad members often use .45-caliber handguns, a weapon commonly used by the police but normally prohibitively expensive for gang members and common criminals.
The insiders told Human Rights Watch that the amo obtain information about targets from police or barangay (village or city district) officials, who compile lists of targets. The amo provides members of a death squad team with as little as the name of the target, and sometimes an address and a photograph. Police stations are then notified to ensure that police officers are slow to respond, enabling the death squad members to escape the crime scene, even when they commit killings near a police station.
The consistent failure of the Philippine National Police to seriously investigate apparent targeted killings is striking. Witnesses to killings told Human Rights Watch that the police routinely arrived at the scene long after the assailants leave, even if the nearest police station is minutes away. Police often fail to collect obvious evidence such as spent bullet casings, or question witnesses or suspects, but instead pressure the families of victims to identify the killers.
The killings follow a pattern. The assailants usually arrive in twos or
threes on a motorcycle without a license plate. They wear baseball caps and buttoned shirts or jackets, apparently to conceal their weapons underneath. They shoot or, increasingly, stab their victim without warning, often in broad daylight and in presence of multiple eyewitnesses, for whom they show little regard. And as quickly as they arrive, they ride off — but almost always before the police appear.
The killings probably have not generated the public outrage that would be expected because most of the victims have been young men known in their neighborhood for involvement in small-scale drug dealing or minor crimes such as petty theft and drug use. Other victims have been gang members and street children. Frequently, the victims had earlier been warned that their names were on a “list” of people to be killed unless they stopped engaging in criminal activities. The warnings were delivered by barangay officials, police officers, and sometimes even city government officials. In other cases, the victims were killed immediately after their release from police custody or prison, or shortly after they returned from hiding.
Human Rights Watch also investigated a number of cases in which those killed were seemingly unintended targets – victims of mistaken identity, unfortunate bystanders, and relatives and friends of the apparent target. Death squad members also have been victims of death squad killings, possibly because they “knew too much,” failed to perform their tasks, or became too exposed. Some Davao City residents also expressed the belief that some death squad members have become guns-for-hire.
Witnesses and family members who provide information to police on the killings, including the names of suspects, say that police either fail to follow up on the leads, whether they have started a criminal investigation, or if they have made any progress in their investigation. In many cases, witnesses are too afraid to come forward with information, as they believe they could become death squad targets by doing so.
The words and actions of long-time Davao City Mayor Rodrigo Duterte indicate his support for targeted killings of criminal suspects. Over the years, he has made numerous statements attempting to justify the killing of suspected criminals. In 2001-2002, Duterte would announce the names of “criminals” on local television and radio—and some of those he named would later become victims of death squad killings. Duterte claims that Davao City has achieved peace and order under his rule. But with killers roaming the streets with the comfort of state-protected impunity, the city remains a very unsafe place. Duterte and other local officials continue to deny the existence of any death squad. But in recent years, mayors and officials of other cities have made statements attempting to justify similar killings in their own cities. Sadly, Davao City is seen by some as a model for fighting crime. Just as disappointing, there is an almost complete lack of political will by the government at both local and national levels to address targeted killings and take action against the perpetrators.
The failure to dismantle the Davao Death Squad and other similar groups, prosecute those responsible, and bring justice to the families of victims lies not only with local authorities. The administration of Philippine President Gloria Macapagal Arroyo has largely turned a blind eye to the killing spree in Davao City and elsewhere. The Philippine National Police have not sought to confront the problem. And the inaction of the national institutions responsible for accountability, namely the Department of Justice, the Ombudsman’s Office, and the Commission on Human Rights, has fueled widespread impunity.
The continued death squad operation reflects an official mindset in which the ends are seen as justifying the means. The motive appears to be simple expedience: courts are viewed as slow or inept. The murder of criminal suspects is seen as easier as and faster than proper law enforcement. Official tolerance and support of targeted killing of suspected criminals promotes rather than curbs the culture of violence that has long plagued Davao City and other places where such killings occur.
Until national authorities take decisive action to disband the Davao Death Squad and all other similar groups that may be operating in other cities, and prosecute perpetrators and complicit officials, the pledges of President Arroyo and other government officials to respect basic human rights and uphold the rule of law will remain hollow.
Key Recommendations
The Philippine government and local authorities in Davao City, General Santos City, Digos City, and Tagum City, as well as other cities believed to be using or tolerating death squads, should urgently take measures to stop the killings and hold perpetrators accountable.
More specifically, Human Rights Watch urges that:
• President Arroyo should publicly denounce extrajudicial killings and local anti-crime campaigns that promote or encourage the unlawful use of force. She should order the Philippines National Police, the Ombudsman’s Office, and the National Bureau of Investigation to investigate the targeted killings of alleged drug dealers, petty criminals, and street children, and pledge that state employees who are found to be involved or complicit in such killings will be prosecuted in accordance with the law.
• The Philippine National Police should conduct thorough investigations into targeted killings of alleged drug dealers, petty criminals, and street children in Davao City, General Santos City, Digos City, Tagum City and investigate the alleged involvement and complicity of police officers in such killings, including their failure to investigate the killings rigorously and prepare cases for prosecution.
• The Commission on Human Rights should investigate and report publicly and promptly on the Davao Death Squad and other similar groups and the involvement of the PNP and city governments in Davao City and other cities where death squad activity has been reported.
• As part of its inquiry into the targeted killings of alleged drug dealers, petty criminals, and street children, the Commission on Human Rights should investigate whether Rodrigo Duterte, Mayor of Davao City, and other mayors and governors in the Philippines have been involved or complicit in death squad killings, or whether statements by government officials may have incited violence.
• The mayor of Davao City and other local officials should cease all support, verbal or otherwise, for anti-crime campaigns that entail violation of the law, including targeted killings of alleged drug dealers, petty criminals, and street children. They should arrest and prosecute perpetrators of the killings and state employees, including law enforcement officers, who are found to be involved or complicit in death squad operations.
• The Philippine Congress should conduct hearings on the Davao Death Squad and other similar groups in the Philippines, with special attention paid to whether local officials and police officers are involved or complicit in such killings.
• The United States, European Union, Japan, the World Bank and the Asian Development Bank should keep their pledges on human rights, the rule of law, and good governance, press the Philippine government to initiate investigations into alleged targeted killings in cities, and to publicize the results of its investigations and plans to dismantle the Davao Death Squad and other similar groups.
Saturday, June 6, 2009
Women
In April 1985, right after my admission to the Philippine Bar, I was invited by Dean Neptali A. Gonzalez (deceased) of the Institute of Law of Far Eastern University in Manila -- my high school and law alma mater - to teach various law subjects thereat. (Dean Gonzalez, who was like a father to me, later became the President of the Philippine Senate in the late 1980s).
When I started teaching law from 1985, I noticed that the percentage of female law students in my classes was an insignificant 15% to 20%.
However, from 1995 onwards, the percentage of my female law students increased to about 40% to 50%.
It showed the escalating interest of Filipinas to study the law and to be part of the justice system. A law degree is also a sure step towards socio-economic progress and recognition.
This phenomenon is a happy development, as far as I am concerned.
[My oldest daughter herself, Machelle Laserna-Adricula, is an active law student and an editor of the student organ of the College of Law of the University of Perpetual Help Rizal (UPHR) in Las Pinas City under tutelage of retired Supreme Court Associate Justice Isagani Cruz, a hard-hitting political columnist of the respected Philippine Daly Inquirer].
According to a report issued by the Office of the Bar Confidant of the Philippine Supreme Court covering the period 2004-2006, the number of female bar examinees from 2004 to 2006 was as follows: 2,437 for 2004; 2,536 for 2005; and 2,882 for 2006.
On average, the number of male bar applicants was only 9% higher that female bar applicants. Not bad.
About 40% of successful bar examinees are females while 60% are male.
The trend seems to be increasing.
In the 2003, the number of females admitted to the Bar increased by 5%.
In the same year, the number of males admitted to the Bar comprised about 56%.
From 2004-2005, the number of females admitted to the Bar increased by 4% from 44% in 2003.
From 2003 to 2005, the annual increased in the number of females admitted to the Bar was very steady, according to the report.
When I started teaching law from 1985, I noticed that the percentage of female law students in my classes was an insignificant 15% to 20%.
However, from 1995 onwards, the percentage of my female law students increased to about 40% to 50%.
It showed the escalating interest of Filipinas to study the law and to be part of the justice system. A law degree is also a sure step towards socio-economic progress and recognition.
This phenomenon is a happy development, as far as I am concerned.
[My oldest daughter herself, Machelle Laserna-Adricula, is an active law student and an editor of the student organ of the College of Law of the University of Perpetual Help Rizal (UPHR) in Las Pinas City under tutelage of retired Supreme Court Associate Justice Isagani Cruz, a hard-hitting political columnist of the respected Philippine Daly Inquirer].
According to a report issued by the Office of the Bar Confidant of the Philippine Supreme Court covering the period 2004-2006, the number of female bar examinees from 2004 to 2006 was as follows: 2,437 for 2004; 2,536 for 2005; and 2,882 for 2006.
On average, the number of male bar applicants was only 9% higher that female bar applicants. Not bad.
About 40% of successful bar examinees are females while 60% are male.
The trend seems to be increasing.
In the 2003, the number of females admitted to the Bar increased by 5%.
In the same year, the number of males admitted to the Bar comprised about 56%.
From 2004-2005, the number of females admitted to the Bar increased by 4% from 44% in 2003.
From 2003 to 2005, the annual increased in the number of females admitted to the Bar was very steady, according to the report.
Automatic
In 2002 the Philippine Supreme Court issued a Resolution providing that in administrative cases against justices of the Court of Appeals and the Sandiganbayan, Judges of regular and special courts, and court officials who are lawyers which are based on grounds that are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers, such administrative cases shall also be considered disciplinary actions against the respondent justices, judges or court officials concerned as members of the Philippine Bar.
The respondents may be required to comment on the complaints and show cause why they should not also be suspended, disbarred or otherwise disciplinary sanctioned as members of the Philippine Bar.
Judgments may be incorporated in one decision or resolution.
I wonder why the Supreme Court has not issued annual statistical reports showing the status of the implementation of the abovecited Resolution.
At least, none that I know of.
En Banc, A.M. No. 02-9-02-SC, September 17, 2002.
Re:Automatic Conversion of Some Administrative Cases Against justices of the Court of Appeals and the Sandiganbayan; judges of Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar.
Some administrative cases against justices of the Court of Appeals and the Sandiganbayan, Judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinary sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one decision or resolution.
This Resolution shall supplement Rule 140 of the Rules of Court and shall take effect on the first day of October 2002. It shall apply to administrative cases already filed where the respondents have not yet been required to comment on the complaints.
The respondents may be required to comment on the complaints and show cause why they should not also be suspended, disbarred or otherwise disciplinary sanctioned as members of the Philippine Bar.
Judgments may be incorporated in one decision or resolution.
I wonder why the Supreme Court has not issued annual statistical reports showing the status of the implementation of the abovecited Resolution.
At least, none that I know of.
En Banc, A.M. No. 02-9-02-SC, September 17, 2002.
Re:Automatic Conversion of Some Administrative Cases Against justices of the Court of Appeals and the Sandiganbayan; judges of Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar.
Some administrative cases against justices of the Court of Appeals and the Sandiganbayan, Judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinary sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one decision or resolution.
This Resolution shall supplement Rule 140 of the Rules of Court and shall take effect on the first day of October 2002. It shall apply to administrative cases already filed where the respondents have not yet been required to comment on the complaints.
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