Titling of public lands

For purposes of legal research of foreign readers visiting this blog, on the subject of the legal system involving the titling of public lands in the Philippines, may I share some basic readings thereon as published in the website of the Department of Environment and Natural Resources (www.lmb.denr.gov.ph). I have also added a relevant 1999 Supreme Court decision on the same subject matter.

Frequently Asked Questions

How can one acquire TITLE?

For original registration, when no title has yet been issued over a parcel
of land, it can be acquired either by:

1. Judicial proceedings - by filing petition for registration in Court.

2. Administrative proceedings - filing an appropriate application for
patent (e.g. homestead) in the Administrative body (DENR) and
registration of this patent becomes the basis for issuance of the
Original Certificate of Title by the Register of Deeds.

What are the main classification of lands as to ownership?

1. Private properties - those which are titled.

2. Public lands - those which have not been titled as
well as those public dominion or outside the commerce
of man such as road, public plaza and rivers.

What are Public Lands?

All Lands that are not acquired by private person or corporation, either by grant or purchase are public lands. The common understanding therefore, is that all lands which have no title or not registered to private individual are public land. These are
grouped into:

1. Alienable or disposable (A & D Lands) - those that can be acquired or issued title. Our constitution provides that only agricultural lands can be disposed of to private citizens.

2. Non-alienable lands - includes timber or forest lands, mineral lands, national parks. No title can be issued over any portion within this area.

What are the modes of disposition or how can one acquire title over A&D lands? The modes are:

1. by Homestead Patent

2. by Sales Patent

3. by Lease

4. By Free Patent or Administrative legalization

What are the evidence or proof of ownership over a parcel of land?

The best evidence of ownership is the certificate of title duly issued by the Register of Deeds concerned. However, in the absence of a title, tax
declaration coupled by actual possession and existence of improvement also substantiate claim for ownership.

What is a TITLE?

A title refers to the legal right to own a property and the certificate of title is the document which confers such right of ownership to an individual, association or corporation.

How can one acquire TITLE?

For original registration, when no title has yet been issued over a parcel of land, it can be acquired either by:

1. Judicial proceedings - by filing petition for registration in Court.

2. Administrative proceedings - filing an appropriate application for patent (e.g. homestead) in the Administrative body (DENR) and registration of this patent becomes the basis for issuance of the Original Certificate of Title by the Register of Deeds.

In subsequent registration of Title, what are necessary to effect the same?

Transfer of title is effected by executing a document such as deed of sale wherein the registered owner (seller) transfer the ownership to a buyer. The capital gains tax and other taxes must be paid before clearance can be secured from the BIR. This will be submitted to the Register of Deeds concerned, together with the title which will be surrendered for issuance of a new title in the name of the buyer.

Subsequent registration of title is a function and jurisdiction of the Register of Deeds under the LRA as the land involved is already a private property outside the jurisdiction of the DENR.

In case the registered owner dies, how can ownership be transferred to the heirs?

When a registered owner died without leaving a last will and testament, the heirs can transfer the title to themselves by executing an extra-judicial settlement of the estate, on condition that the heirs are in agreement of how to
dispose the properties. If there is conflict and heirs can not agree, they should
bring a case before the court which will make a decision for them.

Is possession the same as ownership? Who are informal settlers??

No. Possession means actual and exclusive control of property by physical occupation and this could be in good faith or in bad faith. On the other hand, ownership implies the legal right of possession, control and enjoyment by the owner who has established evidence that he owns the property.

Informal settlers are those in possession of land without the benefit of a title and without consent of the owner. Their possession is not permanent and has no legal basis for occupation. The possessor must strive to acquire title to the land before his possession can become permanent.

In cases where there are conflicting claims, who shall have a better right?

In cases where both claimants have no title, there are many factors to consider
like actual possession. The one who occupies the land especially in good faith has
better right as against someone with doubtful documents or has recently acquired
rights without knowledge of the one in possession. However, all factors must be
fully evaluated to determine preferential rights.

Foreshore

Q. What are the accepted definitions for Foreshore areas?

A string of land margining a body of water, the part of a seashore between the low-water line usually at the seaward margin of a low tide terrace and the upper limit wave wash at high tide usually marked by a beach scarp or berm. (1998 Fisheries Code of the Philippines)

Foreshore land is a part of the shore, which is alternately covered and uncovered by the ebb and flow of the tide. (DAO 99-34, series 1999)

That part of the land adjacent to the sea, which is alternately covered and left dry by the ordinary flow of the tides. (The Law on Public Land Conflicts in the Philippines by Alfonso S. Borja)

That part of the shore, which is between high and low watermarks and alternately covered with water and left by the flux and reflux of the tides. It is indicated by the middle line between the highest and lowest tide. (Bouvier's Law dictionary, page 825)

Foreshore Lease Application

Q: What is a Foreshore Lease Application (FLA)?

A type of application covering foreshore lands, marshy lands and other lands bordering bodies of water for commercial, industrial or other productive purposes other than agriculture.

Q: Are mangrove areas/timberland covered by this type of application?

No, all mangrove areas are excluded from the coverage of this application.

Q: What is the maximum allowable area that may be leased?

Under DENR Administrative Order (DAO) No. 34, series of 1999, any person, corporation, association or partnership may lease not more than 144 hectares.

Q: Who are eligible to apply for an FLA?

Any Filipino citizen of lawful age can apply for this application. Furthermore, corporations, associations or partnerships with at least 60% of the capital being owned by Filipino citizens are eligible to apply for an FLA.

Q: Where should one file a Foreshore Lease Application (FLA)?

The FLA or renewal shall be filed with the Community Environment and Natural Resources Office (CENRO), which has jurisdiction over the area.

Q: How much does an application fee cost?

An application fee cost Php100.00 plus documentary stamp, which is non-refundable. This is necessary for both new application and renewal.

Q: Who has the authority to collect user’s fee due on foreshore leases?

The DENR Field Office (PENRO/CENRO) may be authorized to collect user’s fee due on leases of foreshore lands and whatever fees accruing in the usage of such areas.

Q: For how long can one lease the foreshore area (FLA term)?

The term of the Foreshore lease Contract shall be for a period of twenty-five (25) years and renewable for another 25 years, at the option of the lessor (DENR).

Q: When should one apply for a renewal of the FLA?

Application for renewal shall be filed sixty (60) days prior to its expiration.

Q: What are the preparatory requirements for the Foreshore Lease Application?

The application shall contain particulars of the following:

1. Nature of the proposed utilization/feasibility study;

2. Nature of development or activity;

3. Location and size of the area;

4. Sketch of the area; boundaries and description of said area;

5. Other information that the DENR may require.

An application shall only be accepted if properly subscribed and sworn to by the applicant, or in the case of juridical person, by its president, general manager or duly authorized agent, and accompanied by the following documents.

1. If the applicant is a government employee, a written permission from the department head or head of the agency concerned

2., If the applicant is a naturalized Filipino citizen, a copy of the following is necessary:

3. Certificate of naturalization;

4. Certification by the Office of the Solicitor General that it has not filed or taken any action for his denaturalization, or any action that may effect his citizenship.

5. If the applicant is a corporation, association or cooperative, 3 copies of the following must be submitted:

6. Articles of incorporation;

7. By-Laws;

8. Minutes of the latest organizational meeting of its stockholders/general assembly, electing the present members of the Board of Directors certified by its Secretary;

9. Minutes of the latest organizational meeting of the Board of Directors, electing the present officers of the corporation, association, or cooperative, certified by its Secretary;

10. Minutes of the latest organizational meeting of the Board of Directors indicating the authority of the officer to file the application in behalf of the corporation.

If the applicant uses a name, style or trade name, 3 copies of the following must be submitted:

1. Certificate of registration of such name, style, or trade name with the Department of Trade and Industry (DTI) certified by the officer of the said Department;

2. Income tax return for the preceding years, if the applicant was already in existence at the time and required to file said return.

3. Boundaries and description of said area.

4. Other information that the DENR may require.

FREE PATENT

A free patent is a mode of acquiring a parcel of alienable and disposable public land which is suitable for agricultural purposes, thru the administrative confirmation of imperfect and incomplete title. Agricultural public lands classified as alienable and disposable are subject for disposition under Free Patent.

The applicant for a free patent must comply with the following qualifications:

1. He must be a natural born citizen of the Philippines.

2. He must not be the owner of more than twelve (12) hectares of land.

3. The land must have been occupied and cultivated for at least thirty (30) years prior to April 16, 1990 by the applicant or his predecessors-in-interest and shall have paid the real estate tax thereon.

4. A minor can apply for a free patent, provided he is duly represented by his natural parents or legal guardian and has been occupying and cultivating the area applied for either by himself or his predecessor-in-interest

The following are the steps leading to the approval and issuance of a free patent:

1. Filing of application;

2. Investigation;

3. Posting of notice for two (2) consecutive weeks in the provincial capitol or municipal building and barangay hall concerned;

4. Order of approval of application and issuance of patent;

5. Preparation of Patent in Judicial Form 54 and 54-D and the technical description duly transcribed at the back thereof;

6. Transmittal of the Free Patent to the Register of Deeds concerned for the issuance of the corresponding Original Certificate of Title.

The following officials of the Department of Environment and Natural Resources (DENR) are authorized to approve applications for homestead and free patents:

1. Up to 5 hectares – Provincial Environment and Natural Resources Officer (PENRO)

2. More than 5 Ha. to 10 Ha. – Regional Executive Director of the DENR.

(See: http://lmb.denr.gov.ph/free.html).

HOMESTEAD PATENT

Homestead Patent is a mode of acquiring alienable and disposable lands of the public domain for agricultural purposes conditioned upon actual cultivation and residence.

Where should Homestead Application be filed?

A Homestead application like any other public land applications should be filed at the DENR-Community Environment and Natural Resources Office where the land being applied for is located.

Who are qualified to apply

1. Citizens of the Philippines.
2. Over 18 years old or head of the family.
3. Not the owner of more than 12 hectares of land pursuant to the 1987 constitution

Can a married woman make a Homestead entry?

A married woman can now apply for a patent application under DAO-2002-13 dated June 24, 2002 issued by the then Secretary of the Department of Environment and Natural Resources Heherzon T. Alvarez. This is in accordance with Article II, Section 14 of the Constitution and Republic Act No. 7192 otherwise known as the "Women in Development and Nation Building Act" as implemented by DAO No. 98-15 of May 27, 1998 on "Revised Guidelines on the Implementation of Gender and Development (GAD) Activities in the DENR". This Administrative Order gives women, equal right as men in filing, acceptance, processing and approval of public land applications.

Legal Requirements

1. Application fee of P50.00;
2. Entry fee of P5.00;
3. Final fee of P5.00;
4. Approved plan and technical description of the land applied for;
5. Actual occupation and residence by the applicant;

Steps leading to the issuance of a Homestead patent

1. Filing of application;
2. Preliminary Investigation;
3. Approval of application;
4. Filing of final proof which consists of two (2) parts;
1. Notice of intention to make Final Proof which is posted for 30 days.
2. Testimony of the homesteader corroborated by two (2) witnesses mentioned in the notice. The Final Proof is filed not earlier than 1 year after the approval of the application but within 5 years from the said date.
5. Confirmatory Final Investigation;
6. Order of Issuance of Patent;
7. Preparation of patent using Judicial Form No. 67 and 67-D and the technical description duly inscribed at the back thereof;
8. Transmittal of the Homestead patent to the Register of Deeds concerned.

Signing and Approving Authority For Homestead and Free Patents:

1. Up to 5 hectares (has.) - PENRO
2. More than 5 Has. to 10 Has. - RED
3. More than 10 Has. - DENR Secretary

MISCELLANEOUS SALES PATENT

REPUBLIC ACT NO. 730 is an act permitting sale without public auction of alienable and disposable lands of the public domain for residential purpose.

The application to purchase the land is called the Miscellaneous Sales Application and the corresponding patent is called the Miscellaneous Sales Patent.

Who are Qualified to Apply?

1. A Filipino citizen of lawful age, married; if single, applicant must be the head or bread winner of the family;
2. He is not the owner of a home lot in the municipality/city where the land applied for is located;
3. He must have occupied in good faith the land applied for and constructed a house thereon where he/she and family is actually residing.

Requirements in the filing of a Miscellaneous Sales Application under R. A. No. 730

1. Application Filing fee of P50.00;
2. Approved plan and technical description of the land applied for;
3. Affidavit of the applicant stating that:
1. He is not the owner of any other home lot in the municipality/city where he resides.
2. He is requesting that the land be sold to him under the provision of R. A. No. 730.
4. If the applicant is single, he must submit an affidavit stating that he is the head or bread winner of the family;
5. The land is not needed for public use.

Maximum area that may be granted to an applicant

The applicant can only be granted a maximum area of 1,000 square meters.

Presidential Decree No. 2004 dated December 30, 1985 amended Section 2 of Republic Act 730 thus, lands acquired under this Act before and after the issuance of patent thereon are no longer subject to any restriction.

Steps in Acquiring a Miscellaneous Sales Patent

1. Filing of application at the CENRO;
2. investigation and appraisal of the land applied for;
3. Survey of the land if not yet surveyed;
4. Investigation report whether the applicant possesses the qualification for direct sales;
5. Comment and recommendation of the District/City engineer with the concurrence of the Regional Director, Department of Public works and Highways;
6. Recommendation to the PENRO for approval of appraisal and request for authority to sell without public auction;
7. Approval of appraisal and grant of authority to sell by the PENRO;
8. Posting of notice of sale without public auction for thirty (30) consecutive days in the following places:
1. CENRO Bulletin board
2. Municipal building bulletin board
3. Barangay Hall bulletin board
4. On the land itself
9. Submission of the proofs of posting and payment of at least 10% of the appraised value of the land;
10. Order of Award;
11. Proof of full payment of the purchase price of the land;
12. Order issuance of Miscellaneous Sales Patent in Judicial Form No. 167 with the technical description duly inscribed at the back thereof;
13. Approval and signature of the Miscellaneous Sales Patent by the official concerned;
14. Transmittal of the Miscellaneous Sales Patent to the Register of Deeds concerned for the issuance of the corresponding Original Certificate of the Title to the applicant.

Supreme Court Decision

Excerpts from:

HEIRS OF MARIANO, JUAN, TARCELA and JOSEFA, all surnamed BRUSAS, petitioners, vs. COURT OF APPEALS and HEIRS OF SPOUSES INES BRUSAS and CLETO REBOSA, respondents. [G.R. No. 126875. August 26, 1999]

X x x.

The pivotal issues to be resolved are: first, who are the rightful owners of the disputed property - is it the heirs of Mariano, Juan, Josefa and Tarcela Brusas, whose claim of ownership is evidenced by a survey and subdivision plan; or, is it the heirs of spouses Ines Brusas and Cleto Rebosa, whose claim of ownership flows from an original certificate of title in the name of their parents, and covering the litigated property? And second, was there fraud on the part of Ines Brusas in causing the registration of the disputed land under her name thus entitling petitioners to the reconveyance of their shares therein?

It is a fundamental principle in land registration that the certificate of title serves as evidence of an indefeasible and incontrovertible title to the property in favor of the person whose name appears therein. A title once registered under the Torrens System cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription. It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of the registration.

The real purpose of the Torrens System of land registration is to quiet title to land and stop forever any question as to its legality. Once a title is registered the owner may rest secure without the necessity of waiting in the portals of the court, or sitting on the mirador de su casa, to avoid the possibility of losing his land. Indeed, titles over lands under the Torrens system should be given stability for on it greatly depends the stability of the country's economy. Interest reipublicae ut sit finis litium.

This does not mean, however, that the landowner whose property has been wrongfully or erroneously registered in another’s name is without remedy in law. When a person obtains a certificate of title to a land belonging to another and he has full knowledge of the rights of the true owner, he is considered guilty of fraud. He may then be compelled to transfer the land to the defrauded owner so long as the property has not passed to the hands of an innocent purchaser for value.

In the instant case, the litigated property is still registered in the name of Ines Brusas, so that insofar as procedure is concerned, petitioners were correct in availing of the remedy of reconveyance. However, an action for reconveyance presupposes the existence of a defrauded party who is the lawful owner of the disputed property. It is thus essential for petitioners to prove by clear and convincing evidence their title to the property, and the fact of fraud committed by Ines Brusas in registering their property in her name, which they miserably failed to do so.

Primarily, the survey and subdivision plan submitted in evidence by petitioners are inferior proofs of ownership and cannot prevail against the original certificate of title in the name of Ines Brusas who remains and is recognized as the registered owner of the disputed property.

The survey of the land in the name of the five (5) children of Sixto Brusas is only an indication that each has an interest over the property, but it does not define the nature and extent of those interests, nor the particular portions of the property to which those interests appertain. The subdivision plan, on the other hand, is of doubtful evidentiary value and can hardly be the basis of a claim of ownership. A careful examination thereof shows that it is nothing but a sketch of the land purportedly prepared by a private land surveyor. It is not apparent therein when and where the partition was made, or who caused the property to be subdivided. Worse, this document was not even signed by any of the parties to the supposed partition to show their conformity thereto, nor acknowledged in writing by any of them or their heirs.

Even petitioners’ tax declarations and tax receipts are unavailing. It is well-settled that they are not conclusive evidence of ownership or of the right to possess land, in the absence of any other strong evidence to support them. The fact that the disputed property may have been declared for taxation purposes in the names of the brothers and sisters of Ines Brusas does not necessarily prove their ownership thereof. The tax receipts and tax declarations are merely indicia of a claim of ownership.

What perhaps militates heavily against petitioners is the Affidavit (of waiver) marked Exh. "4" executed sometime in 1960 by Mariano, Tarcela, Juan and Josefa, whereby they relinquished, ceded and transferred to Ines Brusas their rights and interests over the controversial property, and recognized her as the absolute owner thereof, thus –

WE, MARIANO BRUSAS, JUAN BRUSAS, TARCELA BRUSAS and JOSEFA BRUSAS, all of legal age, married except the last who is a widow, residence (sic) and with postal address at Baao, Camarines Sur, after having been duly sworn to according to law, state the following, to wit –

That we are the brothers and sisters of Ines Brusas, applicant of Free Patent Application No. 10-4375 covering Lots 1 and 2, Psu-116520, situated in Baao, Camarines Sur;

That by virtue of this instrument, we relinquish, cede and transfer whatever rights and interests we might have over Lots 1 and 2, Psu-116520 in favor of our sister, Ines Brusas;

That we do not have any opposition to Ines Brusas acquiring title to said Lots 1 and 2, Psu-116520 by virtue of her Free Patent Application No. 10-4375;

That we recognize our sister, Ines Brusas as the legal and absolute owner of Lots 1 and 2, Psu-116520 as covered by her Free Patent Application No. 10-4375;

WHEREFORE, we sign this instrument of our own will and voluntary act and after the same has been translated in our own native dialect and understood fully its contents, this April 20, 1960 at Naga City.

(SGD) MARIANO BRUSAS (SGD) JUAN BRUSAS

(SGD) TARCELA BRUSAS (SGD) JOSEFA BRUSAS

On the basis of the foregoing reasons alone the instant case should immediately be dismissed. Having failed to show any valid title to the land involved petitioners are not the proper parties who can rightfully claim to have been fraudulently deprived thereof. Nonetheless, for the satisfaction of all and sundry, we shall proceed to refute their accusation of fraud.

First, Ines Brusas allegedly misrepresented in her application for free patent that she was the only claimant of the disputed property, without disclosing that her other brothers and sisters were claiming portions that supposedly belonged to them. It is worthy to emphasize, to the point of being repetitious, that Juan, Tarcela, Mariano and Josefa executed an affidavit of waiver recognizing Ines Brusas as the legal and absolute owner of Lots 1 and 2, and manifesting that they have no opposition to Ines Brusas’ acquiring certificates of title over those lots. It was on the basis of this affidavit of waiver that Ines stated in her application for free patent that she was the sole claimant of Lots 1 and 2. Certainly this is not fraud. At any rate, it appears from the records that Juan, Tarcela, Mariano and Josefa were notified of the application for free patent of Ines Brusas and duly afforded the opportunity to object to the registration and to substantiate their claims, which they failed to do. Hence their opposition was accordingly disregarded and Ines Brusas’ application was given due course. Petitioners cannot thus feign ignorance of the registration. Moreover, it is significant that petitioners never contested the order of the Bureau of Lands disregarding their claims, i.e., by filing a motion for reconsideration, or an appeal, for that purpose. This could only mean that they either agreed with the order or decided to abandon their claims.

Petitioners next assailed the genuineness of Exh. "4" asserting that the signatures therein were forged. However, no evidence was adduced by them to substantiate their allegation. It appears that they submitted for examination by the NBI eighteen (18) specimen signatures of Juan, Tarcela, Mariano and Josefa. Unfortunately, no standard signature could be found for the year 1960 when Exh. "4" was executed. Petitioners admitted that they were unable to produce what was required by the NBI, hence, they “just had to give up.”

Furthermore, there was another Affidavit (Exh. "11") signed in the same year by the Brusases, Ines included, recognizing Mariano Brusas as the sole claimant of Lots 3 and 4 and waiving their interests therein in his favor. This fact all the more confirms that the affidavit of waiver in favor of Ines Brusas was authentic. As correctly observed by the appellate court –

It is significant to note that aside from the supposedly falsified affidavit, Exhibit 4, another affidavit, was executed by Ines, together with Tarcela, Juan and Josefa, all surnamed Brusas, renouncing their rights to Lots 3 and 4 in favor of Mariano Brusas (Exhibit 11). Both appear to have been notarized by the same Notary Public on April 22, 1960. The existence of the two affidavits, Exhibits 4 and 11, strongly suggests that the Brusas[es] recognized Ines Brusas as the sole claimant of Lots 1 and 2 and Mariano Brusas, the sole claimant of Lots 3 and 4.

It is not for private respondents to deny forgery. The burden of proof that the affidavit of waiver is indeed spurious rests on petitioners. Yet, significantly, even as they insist on forgery they never really took serious efforts in establishing such allegation by preponderant evidence. It must be stressed that mere allegations of fraud are not enough. Intentional acts to deceive and deprive another of his right, or in some manner injure him, must be specifically alleged and proved.

The affidavit of waiver in favor of Ines, being a public document duly acknowledged before a notary public, under his hand and seal, with his certificate thereto attached, is prima facie evidence of the facts stated therein. Petitioners cannot impugn its validity by mere self-serving allegations. There must be evidence of the clearest and most satisfactory character. Correlatively, in granting the application of Ines Brusas for free patent, the Bureau of Lands enjoyed the presumption of regularity in the performance of its official duties. This presumption has not been rebutted by petitioners as there was likewise no evidence of any anomaly or irregularity in the proceedings which led to the registration of the land.

Finally, as we are not trier of facts, we generally rely upon and are bound by the conclusions of the lower courts, which are better equipped and have better opportunity to assess the evidence first-hand, including the testimony of witnesses. We have consistently adhered to the rule that findings of the Court of Appeals are final and conclusive, and cannot ordinarily be reviewed by this Court as long as they are based on substantial evidence. Among the exceptions to this rule are: (a) when the conclusion is grounded entirely on speculations, surmises or conjectures; (b) when the inference made is manifestly mistaken, absurd or impossible; (c) where there is grave abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e) when the findings of facts are conflicting; and, (f) when the Court of Appeals, in making its findings, goes beyond the issues of the case and the same is contrary to the admissions of both the appellant and appellee. We emphasize that none of these exceptions is present in this case.

WHEREFORE, the petition is DENIED. The 16 July 1996 Decision of the Court of Appeals ordering petitioners to vacate the disputed property and restore respondents in possession thereof, as well as its 30 September 1996 Resolution denying reconsideration, is AFFIRMED. Costs against petitioners.

SO ORDERED.

X x x. (end of quote)

Prepared by:

Atty. Manuel J. Laserna Jr.

Universal human rights

I wish to summarize, for legal research purposes of the readers, the salient parts of the following three major universal human rights instruments intended to support the 1947 UN Universal Declaration on Human Rights: (a) International Covenant on Civil and Political Rights, 1966, and its two Protocols, 1966 and 1989; (b) International Covenant on Economic, Social and Cultural Rights, 1966; and © Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

International Covenant on Civil and Political Rights, 1966,

and its two Protocols, 1966 and 1989

The International Covenant on Civil and Political Rights and the Optional Protocol recognizing “the competence of the Committee to receive and consider communications from individuals” were adopted by the General Assembly in 1966.

The Covenant established a Human Rights Committee, which has authority: (1) to review reports from the States parties; (2) to adopt General Comments on the meaning of the provisions of the Covenant; (3) under certain conditions to deal with inter-State communications; and lastly (4), to receive individual communications under the Optional Protocol.

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Under article 2 of the Covenant, each State party “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the ... Covenant, 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”.

The legal duty to ensure their enjoyment implies an obligation to take positive steps to see to it that domestic laws are modified when necessary in order to comply with the State’s international legal obligations; and that these laws are effectively implemented in practice by all public organs and officials. States have a legal duty to modify their legislation so as to have it conform to their new international obligations. States have also to continue to ensure that their legal obligations are effectively implemented by all relevant organs, including all courts of law.

The Covenant and the International Covenant on Economic, Social and Cultural Rights proclaim the right of all peoples to self-determination, by virtue of which they “freely determine their political status and freely pursue their economic, social and
cultural development”.

The two Covenants provide that “all peoples may, for their own ends, freely dispose of their natural wealth and resources” and that “in no case may a people be deprived of its own means of subsistence”.

This provision on the right to self-determination should be read in the light of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which was adopted by the United Nations General Assembly in 1960 and which equated “the subjection of peoples to alien subjugation, domination and exploitation” to a denial of human rights and a violation of the Charter of the United Nations (paragraph 1).

The following is a list of the rights guaranteed by the International Covenant on Civil and Political Rights:

1. the right to life – art. 6;
2. the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, including a prohibition on being subjected to medical or scientific experimentation without one’s free consent – art. 7;
3. the right to freedom from slavery, the slave-trade and servitude – art. 8(1) and (2);
4. the right to freedom from forced and compulsory labour – art. 8(3);
5. the right to liberty and security of person, including freedom from arbitrary arrest and detention – art 9;
6. the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person – art. 10;
7. prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation – art. 11;
8. liberty of movement and freedom to choose one’s residence – art. 12(1);
9. the right to be free to leave any country, including one’s own – art. 12(2);
10. the right not to be arbitrarily deprived of the right to enter one’s own country – art. 12(4);
11. certain legal safeguards against unlawful expulsions of aliens lawfully in the territory of a State party – art. 13;
12. the right to a fair hearing in criminal and civil cases by an independent and impartial tribunal – art. 14;
13. freedom from ex post facto laws and the retroactive application of heavier penalties than those that could be imposed when the crime was committed – art. 15;
14. the right to recognition as a person before the law – art. 16;
15. the right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence or to unlawful attacks on one’s honour and reputation – art. 17;
16. the right to freedom of thought, conscience and religion – art. 18;
17. the right to freedom of opinion and of expression – art. 19;
18. prohibition of war propaganda and of advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility or violence – art. 20;
19. the right to peaceful assembly – art. 21;
20. the right to freedom of association – art. 22;
21, the right to marry freely, to found a family and to equal rights and responsibilities of spouses as to marriage, during marriage and at its dissolution – art. 23;
22. the right of the child to special protection without discrimination; the right to be registered upon birth and the right to a nationality – art. 24;
23. the right to popular participation in public affairs; the right to vote in periodic elections by universal and equal suffrage and secret ballot, as well as the right to have access to public service – art. 25;
24. the right to equality before the law and the equal protection of the law – art. 26;
25. the right of minorities to enjoy their own culture, religion and language – art. 27.

Some of the rights listed above, such as the right to freedom of movement (art. 12(3)), the right to manifest one’s religion or beliefs (art. 18(3)), the exercise of the rights to freedom of expression (art. 19(3)), to peaceful assembly (art. 21), and to freedom of association (art. 22(2)), can be limited for certain specifically defined objectives, such as national security, public order, public health and morals, or respect for the fundamental rights of others.

The limitations can only be lawfully imposed if they are provided or prescribed by law and are also necessary in a democratic society.

The criteria to determine whether the exercise of a right has been lawfully limited are:

1. the principle of legality, in that the restrictive measure must be based in law;
2. the principle of a legitimate aim in a democratic society;

3. the principle of proportionality, in that the interference with the exercise of the individual’s right must be necessary for the legitimate purpose or purposes.

It is not sufficient that the measure is simply reasonable or possibly advisable: it must be necessary.

The strict conditions that govern the right of the States parties to resort to derogations from their legal obligations under article 4 of the Covenant are:

1. The condition of a “public emergency which threatens the life of the nation”.

The State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation’s life, thus excluding minor or even more serious disturbances that do not affect the functioning of the State’s democratic institutions or people’s lives in general;

2. The condition of official proclamation.

The existence of a public emergency which threatens the life of the nation must be “officially proclaimed” (art. 4(1)).

The purpose is to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events;

3. The condition of non-derogability of certain obligations.

Article 4 (2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations.

These rights are: the right to life (art. 6), the right to freedom from torture or cruel, inhuman or degrading treatment or punishment (art. 7), the right to freedom from slavery, the slave-trade and servitude (art. 8(1) and (2)), the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. 11), the prohibition of ex post facto laws (art. 15), the right to legal personality (art. 16) and, lastly, the right to freedom of thought, conscience and religion (art. 18).

Some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”, e.g., the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4), the right to a fair trial for persons.

The Committee has further held under the Optional Protocol that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”;

4. The condition of strict necessity.

The State party can only take measures derogating from its “obligations under the ... Covenant to the extent strictly required by the exigencies of the situation”.

The legislative measures taken must as such be strictly required by the exigencies of the emergency situation.

Any individual measure taken on the basis of that legislation must likewise be strictly proportionate.

In general, “measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened”.

5. The condition of consistency with other international legal obligations.

The Human Rights Committee is authorized to examine whether measures of derogation might be unlawful as being inconsistent with other international treaties or even international humanitarian law or customary international law.

6. The condition of non-discrimination.

The measures of derogation may not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (art. 4(1) in fine).

7. The condition of international notification.

A State party must fulfil the conditions set out in article 4(3) of the Covenant, by immediately submitting a notification of derogation to the other States parties through the Secretary-General.

In this notification it must describe “the provisions from which it has derogated and ... the reasons by which it was actuated”.

A second notification must be submitted “on the date on which it terminates such derogation”.

The implementation of the Covenant is monitored by the Human Rights Committee, which consists of eighteen members serving in their individual capacity (art. 28).

The monitoring takes three forms, namely, the submission of periodic reports, inter-State communications, and individual communications.

According to article 40 of the Covenant, the States parties “undertake to submit reports on the measures they have adopted which give effect to the rights” recognized therein and “on the progress made in the enjoyment of those rights” every five years.

Under article 1 of the Optional Protocol, a State Party thereto “recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant”.

However, according to article 2 of the Optional Protocol, individuals claiming violations of their rights must first exhaust all remedies available to them at the domestic level.

The Committee shall consider inadmissible any communication which is anonymous, or which it considers to amount to an abuse of the right of submission of communications or to be incompatible with the provisions of the Covenant (art. 3).

If the communication raises a serious issue under the Covenant, the Committee submits it to the State party concerned, which has the possibility to submit its written explanations within a period of six months.

The procedure before the Committee is therefore exclusively written and the discussions in the Committee on the communications take place behind closed doors (arts. 4-5).

At the end of its consideration of a communication, the Committee adopts its “Views” thereon, which are sent both to the State party and to the individual concerned (art. 5(4)).

In fine, the implementation mechanisms of the International Covenant on Civil and Political Rights are: (a) the reporting procedure (art. 40); (b) inter-State communications (art. 41); and
(c) individual communications (art. 1, Optional Protocol).

International Covenant on Economic, Social

and Cultural Rights, 1966

The International Covenant on Economic, Social and Cultural Rights was adopted by the United Nations General Assembly in 1966.

The Covenant establishes a reporting procedure on the measures the States parties have adopted and the progress made in achieving the observance of the rights contained in the Covenant (art. 16).

The United Nations Economic and Social Council is entrusted under the Covenant with the task of monitoring compliance by the States parties with their legal obligations under the Covenant.

Since 1987 this task has been carried out by the Committee on Economic, Social and Cultural Rights, which is not a treaty organ like the Human Rights Committee.

Each State party to the International Covenant on Economic, Social and Cultural Rights “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 ... Covenant by all appropriate means, including particularly the adoption of legislative measures” (art. 2(1)).

The International Covenant on Economic, Social and Cultural Rights recognizes the following rights:

1. the right to work, including the right to gain one’s living by work freely chosen or accepted – art. 6;
2. the right to enjoy just and favourable conditions of work, including fair remuneration for work of equal value without distinction of any kind – art. 7;
3. the right to form trade unions and join the trade union of one’s choice – art. 8;
4. the right to social security, including social insurance – art. 9;
5. protection and assistance to the family; marriage to be freely entered into; maternity protection; protection and assistance to children and young persons – art. 10;
6. right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions – art. 11;
7. the right to the highest attainable standard of physical and mental health – art. 12;
8. the right to education – art. 13;
9. the undertaking to develop detailed plans of action where compulsory primary education is not yet secured – art. 14;
10. the right to take part in cultural life, to enjoy the benefits of scientific progress and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author – art. 15.

The International Covenant on Economic, Social and Cultural Rights contains a general limitation in article 4, whereby the State may subject the enjoyment of the rights guaranteed by the Covenant “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”.

Furthermore, limitations relating to the exercise of specific rights are also contained in article 8(1)(a) and (c), where the exercise of the right to form and join trade unions, as well as the right of trade unions to function freely, may be subjected to no restrictions 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”.

The enjoyment of the rights guaranteed by the International Covenant on Economic, Social and Cultural Rights may be subjected only to such limitations as are: (a) determined by law; (b) compatible with the nature of these rights; and (c) aimed at promoting the general welfare in a democratic society.

Under article 16 of the Covenant, the States parties undertake to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” therein, and it is the United Nations Economic and Social Council that is formally entrusted with monitoring compliance with the terms thereof (art. 16(2)(a)).

The reports submitted by the States parties are considered in public meetings and in the presence of representatives of the State party concerned. The discussion “is designed to achieve a constructive and mutually rewarding dialogue” so that the Committee members can get a fuller picture of the situation prevailing in the country concerned, thereby enabling them to make “the comments they believe most appropriate for the most effective implementation of the obligations contained in the Covenant”.

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, 1984

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly on 10 December 1984. It entered into force on 26 June 1987. It created the Committee Against Torture, to supervise the implementation of the obligations of the States parties.

According to the Convention, “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

The Convention requires that “each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” (art. 2(1); emphasis added). It further specifies that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (art. 2(2)).

This is a restatement of already existing international human rights law.

The convention provides that “an order from a superior officer or a public authority may not be invoked as a justification of torture” (art. 2(3)). In other words, the principle of individual responsibility for acts of torture is clearly established.

The following provisions of the Convention detail the responsibilities of the States parties to prevent, punish, and remedy acts of torture:

1. “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” – art. 3(1);

2. “each State Party shall ensure that all acts of torture are offences under its criminal law” and the same shall apply to attempts to commit torture and acts that constitute “complicity or participation in torture”. It shall, moreover, “make these offences punishable by appropriate penalties which take into account their grave nature” – art. 4(1) and (2);

3. the States parties shall take the measures necessary to exercise their jurisdiction over the preceding offences and to submit the person alleged to have committed acts contrary to article 4 of the Convention to the “competent authorities for the purpose of prosecution” (arts. 5-7) and they shall moreover “afford one another the greatest measure of assistance in connection with criminal proceedings brought” in respect of any of these offences -art. 9;

4. “the offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties”, which also
“undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them” – art. 8;

5. the States parties shall further “ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement
personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment” – art. 10(1);

6. for purposes of prevention of torture, the States parties “shall keep under systematic review interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of persons subjected to any form” of deprivation of liberty – art. 11;

7. “each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed ... ” – art. 12;

8. each State party shall further ensure that any alleged victim of torture “has the right to complain to, and to have his case promptly and impartially examined by, its
competent authorities” – art. 13;

9. “each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible” – art. 14;

10. “each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made” – art. 15; and finally,

11. each State party also undertakes “to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1” of the Convention – art. 16. As is clear from this general description of the legal obligations incurred under this Convention, the question of torture and other cruel, inhuman or degrading treatment or punishment and the State’s actual response thereto is highly relevant to judges, prosecutors and lawyers, who must at all times be prepared to look for signs of the existence of such unlawful acts.

Prepared by:

Atty. Manuel J. Laserna Jr.

Laserna Cueva-Mercader Law Offices

Las Pinas City, Philippines

Independent justice system

In the manual entitled HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE prepared by the UN Commissioner on Human Rights in cooperation with ther International Bar Association, the matter of INDEPENDENCE AND IMPARTIALITY OF JUDGES, PROSECUTORS and LAWYERS in the administration of the human rights justice system in the world was discussed, the salient parts of which I wish to summarize in this paper for legal research purposes of the readers, to wit:

The relevant Universal Instruments on human rights are as follows:

_ The International Covenant on Civil and Political Rights, 1966
_ Basic Principles on the Independence of the Judiciary, 1985
_ Guidelines on the Role of Prosecutors, 1990
_ Basic Principles on the Role of Lawyers, 1990 Regional Instruments
_ The African Charter on Human and Peoples’ Rights, 1981
_ The American Convention on Human Rights, 1969
_ The European Convention on Human Rights, 1950
_ Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the independence, efficiency and role of judges.

In the modern constitutional State, the principle of an independent Judiciary has its origin in the theory of separation of powers, whereby the Executive, Legislature and Judiciary form three separate branches of government, which, in particular, constitute a system of mutual checks and balances aimed at preventing abuses of power to the detriment of a free society.

This independence means that both the Judiciary as an institution and also the individual judges deciding particular cases must be able to exercise their professional responsibilities without being influenced by the Executive, the Legislature or any other inappropriate sources.

Only an independent Judiciary is able to render justice impartially on the basis of law, thereby also protecting the human rights and fundamental freedoms of the individual.

For this essential task to be fulfilled efficiently, the public must have full confidence in the ability of the Judiciary to carry out its functions in this independent and impartial manner. Whenever this confidence begins to be eroded, neither the Judiciary as an institution nor individual judges will be able fully to perform this important task, or at least will not easily be seen to do so.

A legal system based on respect for the rule of law also needs strong, independent and impartial prosecutors willing resolutely to investigate and prosecute suspected crimes committed against human beings even if these crimes have been committed by persons acting in an official capacity.

Unless judges and prosecutors play their respective key roles to the full in maintaining justice in society, there is a serious risk that a culture of impunity will take root, thereby widening the gap between the population in general and the authorities.

If people encounter problems in securing justice for themselves, they may be driven to take the law into their own hands, resulting in a further deterioration in the administration of justice and, possibly, new outbreaks of violence.

Lastly, this legal system would not be complete without independent lawyers who are able to pursue their work freely and without fear of reprisals. Indeed, independent lawyers play a key role in defending human rights and fundamental freedoms at all times, a role which, together with that played by independent and impartial judges and prosecutors, is indispensable for ensuring that the rule of law prevails, and that individual rights are protected effectively.

In spite of the need for judges, prosecutors and lawyers to exercise their professional responsibilities in true independence, experience shows that they are often subjected to pressures of various kinds aimed at compromising their ability to do so.

For instance, although the way in which judges are appointed varies from country to country, there may be a danger to their independence where they are appointed exclusively by the Executive or Legislature, or even where they are elected.

A further threat to their independence is posed by lack of security of tenure, as arises in countries where judges are generally employed on temporary contracts. Such insecurity may make judges more susceptible to inappropriate outside pressure.

Inadequate remuneration may also constitute a threat to the independence of judges in that it may for instance make them more amenable to corruption.

Furthermore, the independence of judges, prosecutors and lawyers is frequently threatened by the refusal of the Executive to allow them to organize freely in professional associations.

For instance, where the Executive issues licences to lawyers and obliges them to exercise their profession as members of State-run professional organizations, they cannot carry out their work independently.

However, judges, prosecutors and lawyers are frequently also subjected to other kinds of persecution aimed at intimidating the legal professions, which may take the forms of arbitrary detentions, direct threats to their lives, killings and disappearances, which are not only perpetrated by State authorities, but are frequently also carried out by private individuals, either independently or in connivance with bodies such as criminal organizations and drugs cartels.

The International Covenant on Civil and Political Rights states in its article 14(1) that “all persons shall be equal before the courts and tribunals” and further, that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.

The Human Rights Committee has unambiguously held that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”. It is thus a right that is applicable in all circumstances and to all courts, whether ordinary or special.

Article 7(1) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right that comprises, in particular, “(b) the right to be presumed innocent until proved guilty by a competent court or tribunal”, as well as “(d) the right to be tried within a reasonable time by an impartial court or tribunal” (emphasis added). According to article 26 of the said Charter, the States parties “shall have the duty to guarantee the independence of the Courts”. It is the view of the African Commission on Human and Peoples’ Rights that article 7 “should be considered non-derogable” since it provides “minimum protection to citizens”.

Article 8(1) of the American Convention on Human Rights provides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature”.

Article 6(1) of the European Convention on Human Rights specifies that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” (emphasis added).

Although some countries may not yet have ratified or acceded to any of these human rights treaties, they are still bound by customary rules of international law, as well as by general principles of law, of which the principle of an independent and impartial judiciary is generally considered to form part.

They are thus also bound by the fundamental principles laid down in the Universal Declaration of Human Rights, which provides in its article 10 that “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”.

In 1985, the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary, which were subsequently unanimously endorsed by the General Assembly.

The notion of institutional independence means that the Judiciary has to be independent of the other branches of government, namely the Executive and Parliament.

According to Principle 1 of the Basic Principles on the Independence of the Judiciary: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”

Furthermore, according to Principle 7 of the Basic Principles, “It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”

In order to secure true independence of the Judiciary from the other two branches of government, it is necessary for this independence to be guaranteed, preferably by the Constitution; or, failing this, by other legal provisions.

The Judiciary must be able to handle its own administration and matters that concern its operation in general. This includes “the assignment of cases to judges within the court to which they belong”, a matter which, as stated in Principle 14 of the Basic Principles, “is an internal matter of judicial administration”.

As supported by Principle 7 of the Basic Principles, the Judiciary must further be granted sufficient funds to properly perform its functions. Without adequate funds, the Judiciary will not only be unable to perform its functions efficiently, but may also become vulnarable to undue outside pressures and corruption.

Moreover, there must logically be some kind of judicial involvement in the preparation of court budgets.

However, when it comes to administrative and financial issues, independence may not always be total, given that the three branches of government, although in principle independent of each other, are also by nature in some respects dependent on each other, for instance with respect to the appropriation of resources.

While this inherent tension is probably inevitable in a system based on the separation of powers, it is essential that in situations where, for instance, Parliament controls the budget of the Judiciary, this power is not used to undermine the efficient working of the latter.

Next, as follows from Principle 1 of the Basic Principles, the other branches of government, including “other institutions”, have the duty “to respect and observe the independence of the judiciary”.

This means, more importantly, that the Executive, the Legislature, as well as other authorities, such as the police, prison, social and educational authorities, must respect and abide by the judgements and decisions of the Judiciary, even when they do not agree with them.

Such respect for the judicial authority is indispensable for the maintenance of the rule of law, including respect for human rights standards, and all branches of Government and all State institutions have a duty to prevent any erosion of this independent decision-making authority of the Judiciary.

The condition of the Judiciary’s independence as to decision-making is further supported by Principle 4 of the Basic Principles, according to which: “There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.”

It is not clear whether executive amnesties and pardons would be contrary to Principle 4, but Governments must in any event always exercise considerable care in resorting to such measures, so that any measures of clemency do not subvert the independent decision-making power of the Judiciary, thereby undermining the rule of law and true respect for human rights standards.

According to Principle 3 of the Basic Principles, the independent decision-making power of the Judiciary also comprises “jurisdiction over all issues of a judicial nature and ... exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law”.

It is not only the Judiciary per se, as a branch of government, that must be independent of the Executive and Parliament; the individual judges, too, have a right to enjoy independence in carrying out their professional duties. This independence does not mean, of course, that the judges can decide cases on the basis of their own whims or preferences: it means, as will be shown below, that they have both a right and a duty to decide the cases before them according to the law, free from fear of personal criticism or reprisals of any kind, even in situations where they are obliged to render judgements in difficult and sensitive cases.

Unfortunately, judges are not always allowed to carry out their work in this spirit of true independence, but in many countries have to suffer undue pressure ranging from inappropriate personal criticism and transfer or dismissal to violent and even fatal attacks on their person.

International law does not provide any details as to how judges should be appointed, and the Basic Principles are neutral with regard to the appointment or election of judges.

However, according to Principle 10 of the Basic Principles: “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”

This principle means that, irrespective of the method of selection of judges, candidates’ professional qualifications and their personal integrity must constitute the sole criteria for selection.

Consequently, judges cannot lawfully be appointed or elected because of the political views they hold or because, for instance, they profess certain religious beliefs. Such appointments would seriously undermine the independence both of the individual judge and of the Judiciary as such, thereby also undermining public confidence in the administration of justice.

As to the election of certain judges in the United States of America, the Human Rights Committee noted that it was “concerned about the impact which the current system of election of judges may, in a few states, have on the implementation of the rights” guaranteed by article 14, and it welcomed “the efforts of a number of states in the adoption of a merit-selection system”.

It also recommended that the system of “appointment of judges through elections be reconsidered with a view to its replacement by a system of appointment on merit by an independent body”.

Accordingly, the election of judges would not seem to be compatible with the notion of independence as set forth in article 14.

Unless judges have some long-term security of tenure, there is a serious risk that their independence will be compromised, since they may be more vulnerable to inappropriate influence in their decision-making.

Principle 11 of the Basic Principles therefore provides that “The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.”

Principle 12 further specifies that “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”

It would consequently be contrary to Principles 11 and 12 to appoint or elect judges with no guarantee of tenure at all or only a brief period of guaranteed term of office.

It is by providing judges with a permanent mandate that their independence will be maximized, as will public confidence in the Judiciary.

The international and regional treaties do not expressly deal with the question of financial security for the Judiciary and individual judges, but Principle 11 of the Basic Principles provides that judges shall have adequate remuneration and also pensions.

The question of fair and adequate remuneration is important since it may help attract qualified persons to the bench and may also make judges less likely to yield to the temptation of corruption and political or other undue influences. In some countries judges’ salaries are protected against decreases, although pay increases may depend on the Executive and Legislature.

Where the Executive and Legislature control the budgets of the Judiciary, there may be a potential threat to the latter’s independence.

Principle 13 of the Basic Principles provides that “promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience”.

Improper factors not linked to the professional merits of the judges concerned are thus not to be considered for purposes of promotion. Such improper factors might, for instance, include attitudes of discrimination based on gender, race or ethnicity.

While there is no disagreement about the need for judicial discipline among judges, the question arises as to how to decide on possible sanctions in cases of misconduct, who should decide, and what the sanctions should be. It is also imperative that judges not be subjected to disciplinary action because of opposition to the merits of the case or cases decided by the judge in question.

It would thus appear clear that the Human Rights Committee considers that the term “independent” in article 14(1) of the Covenant requires that unethical professional behaviour be dealt with by an organ fully independent of government influence.

The matter of discipline, suspension and removal of judges is also dealt with in Principles 17-20 of the United Nations Basic Principles, which read as follows: “17. A charge or complaint made against a judge in his/her judicial and
professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to decisions of the highest court and those of the legislature in impeachment or similar proceedings.”

To sum up, the general assertion can be made that, under international law, judges subjected to disciplinary proceedings must be granted due process before a competent, independent and impartial organ which must be – or must be controlled by – an authority independent of the Executive.

It would however seem that, at least under the American Convention on Human Rights, disciplinary proceedings may be brought against judges of constitutional courts by the Legislature, provided that the organ determining the charges strictly respects the principles of independence and impartiality and that the relevant proceedings comply with the due process guarantees laid down in article 8 of the Convention.

The independence of a tribunal is indispensable to fair court proceedings, be they criminal or civil. As laid down in Principle 6 of the Basic Principles: “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”

As previously noted, the concept of impartiality is closely linked to that of independence and sometimes the two notions are considered together. The requirement of impartiality is contained in article 14(1) of the International Covenant on Civil and Political Rights, article 7(1) of the African Charter of Human and Peoples’ Rights, article 8(1) of the American Convention on Human Rights and article 6(1) of the European Convention on Human Rights. Principle 2 of the Basic Principles also specifies that “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

The creation in special situations of military courts or other courts of special jurisdiction such as State Security Courts is commonplace and often gives rise to violations of the right to due process of law. While the international treaties examined in this Manual do not draw any express distinction between ordinary and special, including military, tribunals, the Human Rights Committee made it clear in its General Comment No. 13 that the provisions of article 14 of the Covenant “apply to all courts and tribunals within the scope of that article whether ordinary or specialized”.

This means, for instance, that likewise, military or other special tribunals which try civilians must comply with the condition of independence and impartiality. The Committee admitted that this could cause a problem, since “quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice”.

Yet, “while the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14”.

The need for strong, independent and impartial prosecutorial authorities for the effective maintenance of the rule of law and human rights standards has already been emphasized in this chapter. This matter is covered by the Guidelines on the Role of Prosecutors, which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990 “to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings”.

This document provides 24 Guidelines covering the following questions: qualifications, selection and training; status and conditions of service; freedom of expression and association; role in criminal proceedings; discretionary functions; alternatives to prosecution; relations with other government agencies or institutions; disciplinary proceedings; and observance of the Guidelines.

As noted in the fifth preambular paragraph of the Guidelines as read in conjunction with the second preambular paragraph, “prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect and compliance with ... the principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal...” for the purpose of “contributing to fair and equitable criminal justice and the effective protection of citizens against crime”.

Guidelines 1 and 2 provide respectively that “persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications”, and that States shall ensure that “selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice” on various stated grounds, “except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned”.

Further, according to Guideline 2(b), States shall ensure that “prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law”.

While prosecutors, “as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession” (Guideline 3), States shall, for their part, “ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability” (Guideline 4).

Furthermore, “prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as a result of the discharge of prosecutorial functions” (Guideline 5).

The law or published regulations shall, inter alia, set out “reasonable conditions of service of prosecutors, adequate remuneration”, and, wherever a system of promotion exists, it “shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures” (Guidelines 6 and 7).

As to its role in criminal proceedings, “the office of prosecutors shall be strictly separated from judicial functions” (Guideline 10).

Furthermore, prosecutors “shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation or crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest” (Guideline 11).

Like judges, prosecutors cannot act according to their own preferences but are duty-bound to act “in accordance with the law” and to “perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system” (Guideline 12).

In performing their duties, prosecutors shall, inter alia, “carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination”, and “shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences” (Guideline 15).

Prosecutors have a special obligation with regard to “evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights”.

In situations of this kind they shall either “refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice” (Guideline 16).

In addition to independent and impartial judges and prosecutors, lawyers constitute the third fundamental pillar for maintaining the rule of law in a democratic society and ensuring the efficient protection of human rights. As stated in the ninth preambular paragraph of the Basic Principles on the Role of Lawyers, which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990: “... adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession”.

In order to be able to carry out their professional duties effectively, lawyers must not only be granted all the due process guarantees afforded by domestic and international law, but must also be free from pressures of the kind previously described with regard to judges and prosecutors: in other words, a just and efficient administration of justice requires that lawyers too should be allowed to work without being subjected to physical attacks, harassment, corruption, and other kinds of intimidation.

Principle 12 of the Basic Principles provides that “lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice”, and, according to Principle 13, their duties “shall include: (a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate”.

In “protecting the rights of their clients and in promoting the cause of justice”, lawyers shall also “seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession” (Principle 14).

Lastly, “lawyers shall always loyally respect the interests of their clients” (Principle 15).

According to Principle 16 of the Basic Principle on the Role of Lawyers, “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”

Furthermore, “where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities” (Principle 17).

Every year many lawyers are killed, threatened, intimidated or harassed in various ways in order to prevail upon them to relinquish the defence of clients seeking to claim their rights and freedoms. It is therefore essential that Governments do their utmost to protect lawyers against this kind of interference in the exercise of their professional duties.

Another important rule is laid down in Principle 18, according to which “lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”.

The question of lawyers’ identification with their clients has been dealt with by the Special Rapporteur on the independence of judges and lawyers, who in 1998 for instance stated that he viewed “with some concern the increased number of complaints concerning Governments’ identification of lawyers with their clients’ cause”, adding that lawyers “representing accused persons in politically sensitive cases are often subjected to such accusations”.

Identifying lawyers with their clients’ causes, unless there is evidence to that effect, could be construed as intimidating and harassing the lawyers concerned.

According to the Special Rapporteur, “Governments have an obligation to protect such lawyers from intimidation and harassment”.

If Governments have evidence to the effect that lawyers identify themselves with their clients’ cause, it is, as stressed by the Special Rapporteur, “incumbent on [them] to refer the complaints to the appropriate disciplinary bodies of the legal profession”, where, as described below, they will be dealt with in accordance with due process of law.

The question of identification of lawyers with their clients is particularly relevant when they are called upon to represent human rights defenders.

However, here too lawyers must be given the same guarantees of security enabling them to carry out their professional duties independently and efficiently without governmental or other undue interference. Again, any alleged professional misconduct should be referred to the established independent organs.

With regard to guarantees for the functioning of lawyers, Principle 19 of the Basic Principles also provides that “No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.”

Principle 20 adds that “Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.”

Principle 23 of the Basic Principles on the Role of Lawyers provides that “Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.

In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with
the law and the recognized standards and ethics of the legal profession.”

Principle 24 further states that lawyers “shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity”.

Moreover, according to this principle “the executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference”. It follows from this principle that these associations shall aim at safeguarding the professional interests of the lawyers and strengthening the independence of the legal
profession. Bar Associations shall not, consequently, be used “to indulge in partisan politics” whereby they would compromise “the independence of the legal profession”.

With regard to professional discipline, Principle 26 of the Basic Principles provides that “Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.”

Complaints against lawyers “shall be processed expeditiously and fairly under appropriate procedures”, and lawyers “shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice” (Principle 27).

Furthermore, “disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review” (Principle 28).

Finally, all such proceedings “shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles” (Principle 29).

It follows from these principles that any disciplinary proceedings against lawyers who are accused of having failed to conduct themselves in accordance with the recognized standards and ethics of their profession must be truly independent of the Executive and guarantee due process in the course of the proceedings.

Lawyers constitute a fundamental pillar for maintaining the rule of law and ensuring the effective protection of human rights. In order to be able to fulfil their professional duties, lawyers must, in particular:

_ be able to work in true independence, free from external political or other pressure, threats and harassment; e.g., they shall not have to obtain Executive permission to exercise their professional duties;
_ be ensured due process guarantees, which include the legal right and duty to advise and assist their clients in every appropriate way in order to protect their interests;
_ be able to act to uphold nationally and internationally recognized human rights;
_ be allowed to answer for violations of rules of professional conduct before an independent disciplinary board respecting due process guarantees. Lawyers also enjoy the fundamental freedoms of association, assembly and expression.

Prepared by:

Atty. Manuel J. Laserna Jr.