Non-custodial measures in criminal law

Queston: IS THE USE OF NON-CUSTODIAL MEASURES IN THE ADMINISTRATION OF JUSTICE A HUMAN RIGHT?

We should take a look at the following international instrumens: United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985; and Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.

The modern belief is that while imprisonment is necessary in many cases involving violent offenders, it does not constitute a panacea with regard either to crime prevention or to the social reintegration of offenders.

Moreover, in many countries prisons are overcrowded and outdated, with the result that prisoners often find themselves in deplorable conditions that can have adverse effects on their physical and mental health and impede their educational and vocational training, thereby affecting their chances of future adjustment to an ordinary life in the community.

The United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) emphasizes the importance of non-ustodial measures. It is also the spirit of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

The purpose of non-custodial measures is to find effective alternatives to imprisonment for offenders and to enable the authorities to adjust penal sanctions to the needs of the individual offender in a manner proportionate to the offence committed. The advantages of individualizing sentencing in this way are evident, given that it permits the offender to remain at liberty, thereby also enabling him or her to continue work, studies and family life.

Non-custodial measures can, however, be subjected to conditions and restrictions, the violation of which may in serious cases lead to imprisonment.

The Tokyo Rules encourage recourse to non-custodial measures and aim at guaranteeing a just application thereof based on respect for the human rights of the offenders. Non-custodial measures are of considerable potential value for offenders, as well as for the community, and can be an appropriate sanction for a whole range of offences and many types of offenders, and in particular for those who are not likely to repeat offences, those convicted of minor crimes and those needing medical, psychiatric or social help. In these cases, imprisonment cannot be considered an appropriate sanction, since it severs community ties and hinders reintegration into society and thereby also reduces offenders’ sense of responsibility and their ability to make their own decisions. On the other hand, non-custodial measures have the unique characteristic of making it possible to exercise control over an offender’s behaviour while allowing it to evolve under natural circumstances .

Rule 1.2 describes the further aim of promoting both “greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as ... a sense of responsibility towards society” among offenders. Involvement of the community is essential in reintegrating the offender into society and may reduce the risk of stigmatization.

Mindful of the objectives of a criminal justice system and the balance that has to be struck between the different individual interests, Rule 1.4 provides that “when implementing the Rules, Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention”.

While emphasizing the promotion of non-custodial measures and the application of individualized penal sanctions, the Tokyo Rules consequently also fully support the general aim of the criminal justice system, which is to reduce crime and the need to recognize the important role of the victims of crime.

Lastly, according to Rule 1.5, “Member States shall develop non-custodial measures within their legal
systems to provide other options, thus reducing the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.”

The primary purpose of non-custodial alternatives to imprisonment is to enable penal sanctions to be individualized to the needs of the offender, thereby making the sanctions more effective. Non-custodial measures are also less expensive for society in general than deprivation of liberty. Individualized penal sanctions involving non-custodial measures must be considered in the light of the general aim of the criminal justice system, which is to reduce crime, and the need to recognize the needs and interests of the victims of crime.

As noted in subsection 2.2 above, the Tokyo Rules are applicable to “all persons subject to prosecution, trial or the execution of a sentence” (Rule 2.1). They can thus apply either to measures imposed on a convicted person as a penalty for an offence, or to suspects and defendants before their trial. Lastly, they cover measures which allow some part of a prison sentence to be served in the community and measures that reduce the length of imprisonment and substitute for it some form of supervision. The use of non-custodial measures instead of pre-trial detention is particularly to be encouraged, since pre-trial custody should be an exceptional measure in view of the suspect’s right to be presumed innocent.

According to Rule 2.2, the Tokyo Rules “shall be applied without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status”.

While emphasizing the importance of “consistent sentencing”, Rule 2.3 promotes considerable flexibility in the development and use of non-custodial measures based on the following four criteria:

1. “the nature and gravity of the offence”;
2. “the personality and background of the offender”;
3. “the protection of society”; and
4. the avoidance of “unnecessary use of imprisonment”.

Rule 2.4 provides that “the development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated”. The need for regular monitoring and systematic evaluation is particularly important given the flexibility inherent in non-custodial measures and in order to ascertain whether the objectives laid down in Rule 2.3 are met. From the viewpoint of a rational criminal justice policy, new non-custodial measures should be added only if accompanied by systematic evaluation enabling the authorities to measure their operational effectiveness. According to Rule 2.5, furthermore, “consideration shall be given to dealing with offenders in the community avoiding as far as possible resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of law.” This rule is consistent with Rule 2.6 of the Tokyo Rules which provides that “non-custodial measures should be used in accordance with the principle of minimum intervention”. Whenever feasible, a trial should be avoided, both because it spares the suspect and his or her family from the negative consequences of formal sanctioning and because it eases the economic burden on society. The flexibility inherent in non-custodial measures implies that they can be used at any stage of the proceedings.

Non-custodial measures must be applied fairly and objectively; they must not involve discrimination. Differences in treatment are lawful only if they have a reasonable and objective justification. Authorities must ensure consistent sentencing when resorting to non-custodial measures. Non-custodial measures should be used in accordance with the principle of minimum intervention; all excessive measures must be avoided. When resorting to non-custodial measures, the competent authorities must consider:

1. the nature and gravity of the offence;
2. the personality and background of the offender;
3. the protection of society (the prevention of crime); and
4. the avoidance of unnecessary use of imprisonment.

The requirement of consent of the offender to the imposition of non-custodial measures is an important precondition for its success, and, according to Rule 3.4, such consent is obligatory with regard to non-custodial measures “applied before or instead of formal proceedings or trial”. Consequently, the requirement of consent is a particular safeguard relating to persons accused but not yet tried or convicted.

Furthermore, the accused should be informed about the potential consequences of refusing to consent to non-custodial measures, and any indirect pressure on the accused to consent to the measures should be avoided.

Lastly, a refusal to consent to the imposition of a non-custodial measure should not adversely affect the accused’s position in any way. The requirement of consent to diversionary measures is also contained in Rule 11.3 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). In that context, it is either “the juvenile, or her or his parents or guardian” who must give consent to the recommended diversionary measure.

Rule 3.5 stipulates that “decisions on the imposition of non-custodial measures shall be subject to review by a judicial or other competent independent authority, upon application by the offender”. This right of appeal is an additional safeguard against arbitrary decisions. In order for this safeguard to be truly effective, the offender must be informed of this right.

Rule 3.8 prohibits non-custodial measures involving “medical or psychological experimentation on, or undue risk of physical or mental injury to, the offender”. In any event, non-custodial measures may not, of course, violate the legally binding rules existing in international human rights law, such as the right to freedom from inhuman or degrading treatment or punishment (cf. inter alia art. 7 of the International Covenant on Civil and Political Rights and the saving clause contained in Rule 4.1 of the Tokyo Rules).

In the implementation of non-custodial measures, the offender’s rights shall not be restricted further than was authorized by the competent authority that rendered the original decision (Rule 3.10). This is a rule based on the principle of legality: any interference with a person’s rights must be based on law, and no further restrictions can be imposed without a decision taken by a duly authorized authority acting in accordance with the law.

In the application of non-custodial measures, the offender’s right to privacy shall be respected, as shall be the right to privacy of the offender’s family” (Rule 3.11).

Lastly, the right to dignity and the right to respect for the offender’s privacy are also protected by Rule 3.12, according to which “the offender’s personal records shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the offender’s case or to other duly authorized persons.”

Offenders and their families are entitled to know that personal information about them will not be made public and will not be used to hinder their chances of social reintegration. It is therefore also important to keep the records in a safe place, and consideration should be given to the desirability of destroying them after a reasonable period.

Non-custodial measures can be resorted to at any stage of the judicial proceedings, whether at the pre-trial, trial and sentencing or post-sentencing stages. They therefore constitute important and flexible tools in choosing the sanctions most likely to have a beneficial impact on the offender in the form of his or her reintegration into the community as a law-abiding citizen.

The possibility of resorting to non-custodial measures at the pre-trial stage is regulated in the following terms by Rule 5.1 of the Tokyo Rules:

“Where appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. For the purpose of deciding upon the appropriateness of discharge or determination of proceedings, a set of established criteria shall be developed within each legal system. For minor cases the prosecutor may impose suitable non-custodial measures, as appropriate.”

Discharging the offender even before formal action has been taken is the earliest possible non-custodial measure in the pre-trial stage, but it is conditioned by the protection of society; crime prevention; the promotion of respect for the law; and the rights of victims.

As to the sentencing stage, the Tokyo Rules provide for a range of non-custodial measures which the judicial authorities “may” use, although in doing so, they “should take into consideration ... the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate” (Rules 8.1 and 8.2).

According to Rule 8.2 (a) to (m), the sentencing authorities may dispose of cases in the following ways: verbal sanctions, such as admonition, reprimand and warning; conditional discharge; status penalties; economic sanctions and monetary penalties, such as fines and day-fines; confiscation or an expropriation order; restitution to the victim or a compensation order; suspended or deferred sentence; probation and judicial supervision; a community service order; referral to an attendance centre; house arrest; any other mode of non-institutional treatment; or, some combination of these measures.

Just as the offender’s personal needs and interests have to be weighed against society’s interests at the pre-trial stage, so the offender’s “rehabilitative needs” at thesentencing stage must be balanced against the need to protect society and “the interests of the victim”.

The participation of the victim in the proceedings is also encouraged by Principle 6(b) of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which was adopted by the United Nations General Assembly in 1985.

According to this principle, “the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by ... allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.”

Rule 9.1 of the Tokyo Rules provides that “the competent authority shall have at its disposal a wide range of post-sentencing alternatives in order to avoid institutionalization and to assist offenders in their early reintegration into society.” This rule is based on the principle that reducing the length of imprisonment can reduce the risk of offenders becoming institutionalized and thus unable to cope with society once they have been released. Consequently, it can be of advantage to grant offenders early release, while subjecting them, if necessary, to supervision. Rule 9.4 also promotes the idea of releasing offenders from an institution to a non-custodial programme at the earliest possible stage. Rule 9.2 enumerates the following post-sentencing dispositions: furlough and half-way houses; work or education release; various forms of parole; remission; pardon.

Some of these measures are substitutes for imprisonment. The offender is still under the authority of the prison administration but spends his or her days outside the prison working or undergoing training. The advantage of such an arrangement is that he or she can earn money that can be used to help meet family commitments, or saved to assist with reintegration upon release. In a half-way house, the offender is still technically under the supervision of the prison authorities but lives in “semi-freedom”, readjusting to life in the community.

In fine, non-custodial measures are a legal field that is far from having been fully explored, but which has important potential from which both the community and offenders could benefit.

Source: Univ. of Minnesota Human Rights Library

Digested by:

Atty. Manuel J. Laserna Jr.

Ecosoc rights: role of courts

Without necessarily promoting judicial activism, it is worthwile to ask: WHAT IS THE ROLE OF THE COURTS IN PROTECTING ECONOMIC, SOCIAL AND CULTURAL (ECOSOC) RIGHTS OF THE PEOPLE?

The two basic relevant international covenants on the topic are the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 UN Universal Declaration of Human Rights.

Parenthetically, UN General Assembly Resolution No. 41/128 dated 4 December 1986 contains the Declaration on the Right to Development. Article 6 of the Declaration states:

“1. All States should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion.
2. All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.
3. States should take steps to eliminate obstacles to development resulting from failure to observe civil and political rights, as well as economic, social and cultural rights.”

The 1966 International Covenant on Economic, Social and Cultural Rights guarantees, in particular, the following rights:

1. the right to equality and non-discrimination in the enjoyment of rights – article 2(2) (non-discrimination in general) and article 3 (between men and women);

2. the right to work, including the right to gain one’s living by work freely chosen or accepted – article 6;

3. the right to enjoy just and favourable conditions of work, including fair wages and equal remuneration for work of equal value without distinction of any kind; a decent living for workers and their families; safe and healthy working conditions; equal opportunity to be promoted; rest, leisure and reasonable limitation of working hours and periodic holidays with pay – article 7;

4. the right to form trade unions and join the trade union of one’s choice, including the right to establish national federations or confederations – article 8(1)(a) and (b);

5. the right to strike – article 8(1)(d);

6. the right to social security, including social insurance – article 9;

7. the right to protection and assistance for the family; entry into marriage with free consent, maternity protection; protection and assistance for children and young
persons – article 10(1)-(3);

8. the right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions – article 11(1);

9. the right to the highest attainable standard of physical and mental health – article 12;

10. the right to education – article 13;

11. 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 – article 15(1).

The general legal duties of States parties to give effect to their obligations under the International Covenant on Economic, Social and Cultural Rights are laid down in 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.”

A question arises: Are Economic, Social and Cultural Rights Justiciable?

The UN Committee on ECOSOC has made clear “that it considers many of the provisions in the Covenant to be capable of immediate implementation,” for instance articles 3, 7(a)(i), 8, 10(3), 13(2)(a), 13(3), 13(4) and 15(3). These provisions, which the Committee cites by way of example, contain the following rights:


1, the right to equality between men and women in the enjoyment of rights – article 3;
2. the right to fair wages and equal remuneration for work of equal value – article 7(a)(i);
3. the right to form trade unions that can function freely; the right to strike – article 8;
4. the right of children and young people to special measures of protection and assistance, to be taken without discrimination – article 10(3);
5. the right to free compulsory primary education for all – article 13(2)(a);
6. the right of parents or legal guardians to choose for their children schools other than public schools to ensure religious and moral education in conformity with their convictions – article 13(3);
7. the right of individuals and bodies to establish and direct educational institutions in conformity with legal standards – article 13(4);
8. the freedom indispensable for scientific research and creative activity – article 15(3).

On the issue of justiciability of the rights contained in the International Covenant on Economic, Social and Cultural Rights, the Committee has noted that in most States, the determination of whether or not a treaty provision is self-executing will be a matter for the courts, not the executive or the legislature. In order to perform that function effectively, the relevant
courts and tribunals must be made aware of the nature and implications of the Covenant and of the important role of judicial remedies in its implementation. Thus, for example, when Governments are involved in court proceedings, they should promote interpretations of domestic laws which give effect to their Covenant obligations.

Another question is: What must be the Role of Judges, Prosecutors and Lawyers in the Protection of Economic, Social and Cultural Rights?

The legal professions have an essential role to play in promoting the protection of economic, social and cultural rights, a role that is particularly important for the most vulnerable groups in society. The modern view of alternative and developmental law groups and cause-oriented or basic sectors-focused public interest centers is that although the judiciary is reluctant to adjudicate alleged violations of these rights on the grounds that such issues fall within the power of the executive, such a reduced role for the judiciary in respect of societal problems appears anachronistic and difficult to sustain in law.

Source: Univ. of Minnsota Human Righs Library

Digested by:

Atty. Manuel J. Laserna Jr.

Protection of persons deprived of liberty

On the topic of INTERNATIONAL LEGAL STANDARDS FOR THE PROTECTION OF PERSONS DEPRIVED OF THEIR LIBERTY, there are 12 basic international covenants that a legal researcher must read, to wit:

1.

In 1. International Covenant on Civil and Political Rights, 1966

2. 2. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

3. 3. 1949 Geneva Conventions and its Protocols of 1977

4. 4. Statute of the International Criminal Court, 1998

5. 5. Universal Declaration of Human Rights, 1948

6. 6. Standard Minimum Rules for the Treatment of Prisoners, 1955

7. 7. Basic Principles for the Treatment of Prisoners, 1990

8. 8. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988

9. 9. 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, 1982

10. 10. Code of Conduct for Law Enforcement Officials, 1979

11. 11. Declaration on the Protection of All Persons from Enforced Disappearance, 1992

12. 12. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, 1989.

The Philippines has no special law against torture, although in the past and present Congresses many cause-oriented party-list or sectoral representatives in the House of Representatives have filed various bills to puruse the matter.

Article 3(I)(a) to the 1949 Geneva Conventions, which concerns armed conflicts not of an international character, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” shall remain prohibited at any time and in any place whatsoever with respect to “persons taking no active part in the hostilities”.

Article 75(2)(a) of Protocol Additional I and article 4(2)(a) of Protocol Additional II to the Geneva Conventions, which respectively relate to international and non-international armed conflicts, similarly proscribe “violence to the life, health and physical or mental well-being of persons”, and, in particular, murder, torture, corporal punishment and mutilation.

The peremptory nature both of the right to life and of the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment is moreover underlined by the fact that these rights cannot be derogated from under international human rights law even in the gravest of crisis situations, per Article 4(2) of the International Covenant on Civil and Political Rights.

Article 2(2) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides 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”.

Article 7 of the Rome Statute of the International Criminal Court provides that torture constitutes a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. “Torture or inhuman treatment, including biological experiments” also constitute war crimes and grave breaches of the 1949 Geneva Conventions for the purpose of the same Statute (art. 8(2)(a)(ii)).

Under exisitng international covenants, what are the legal responsibilities of the Philippines as a state?

Article 7 of the International Covenant on Civil and Political Rights provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment”, and, in particular, that “no one shall be subjected without his free consent to medical or scientific experimentation”. The UN Human Rights Committee has stated that “it is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity”. The prohibition in article 7 “is complemented by the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’.”

Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that “each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. According to article 12 of the Convention, each State party shall moreover “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 in any territory under its jurisdiction”. The State should “ensure vigorous investigation and, where appropriate, the prosecution of all reported instances of alleged torture and ill-treatment” by their authorities, “whether civil or military”. It should “ensure that amnesty laws exclude torture from their reach”. States parties to the Convention against Torture should repeal laws which may undermine the independence of the Judiciary, and, with regard more particularly to the problem of limited-term appointments, bring their legislation into line with the 1985 Basic Principles on the Independence of the Judiciary and the 1990 Guidelines on the Role of Prosecutors.

The UN Human Rights Committee has pointed out that article 7 of the International Covenant on Civil and Political Rights should be read in conjunction with article 2(3) thereof concerning the obligation of the States parties to provide effective remedies to persons whose rights and freedoms are violated. This means, in particular, that “the right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law” and that “complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective”. The Committee against Torture has also emphasized the importance of introducing “an effective and reliable complaint system that will allow the victims of torture and other forms of cruel, inhuman or degrading treatment or punishment to file complaints”.

The Human Rights Committee has stated that “amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future” and that “States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.”

In order to protect the personal security of persons deprived of their liberty, they must be held exclusively in officially recognized places of detention. The obligation of States to comply with this legal duty is recognized both by the international monitoring organs and in various legal instruments. See article 7 of the International Covenant on Civil and Political Rights: To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends.

In addition to the requirement that persons deprived of their liberty must be held in officially recognized places of detention, the Human Rights Committee has held that provision must also be made for “their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends”. (Rule 7(1) of the Standard Minimum Rules forthe Treatment of Prisoners; Article 10 of the Declaration on the Protection of All Persons from EnforcedDisappearance).

While the general human rights conventions contain no details of the requirements with regard to the accommodation of detainees and prisoners, Rules 9-14of the Standard Minimum Rules for the Treatment of Prisoners regulate, in particular, sleeping, working and sanitary conditions.

Rule 9(1) thereof provides that “where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If, for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room”. Where dormitories are used, they shall only be occupied by prisoners “suitable to associate with one another in those conditions” (Rule 9(2)). All prison accommodation of persons deprived of their liberty, including in particular the sleeping accommodation, “shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation” (Rule 10). In all living and working places within places of detention, “the windows shall be large enough to enable the prisoners to read or work by natural light, and shall ... allow the entrance of fresh air whether or not there is artificial ventilation” (Rule 11(a)). “Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight” (Rule 11(b)). Lastly, “the sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner” (Rule 12).

The following main principles contained in the United Nations Standard Minimum Rules for the Treatment of Prisoners should be emphasized:

1. As to personal hygiene: “prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness” (Rule 15).

2. As to clothing: “every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating” (Rule 17(1)). “All clothing shall be clean and kept in proper condition” (Rule 17(2)); “whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing” (Rule 17(3)).

3. As to bedding: “Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness” (Rule 19).

4. As to food: “Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served”; “drinking water shall be available to every prisoner whenever he needs it” (Rule 20(1) and (2)).

5. As to health and medical services: there shall be “at least one qualified medical officer who should have some knowledge of psychiatry” at every place of detention and the medical services “should be organized in close relationship to the general health administration of the community or nation” (Rule 22(1)); “sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals”, and where hospital facilities exist in the institution concerned, they shall have the equipment and supplies “proper for the medical care and treatment of sick prisoners and ... a staff of suitable trained officers” (Rule 22(2)); every prisoner shall also have at his or her disposal “the services of a qualified dental officer” (Rule 22(3)).

As to recreational activitries, according to Rule 21(1) of the Standard Minimum Rules, “every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits”. Principle 6 of the Basic Principles further provides that “all prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.” According to Principle 28 of the Body of Principles, “a detained or imprisoned person shall have the right to obtain within the limits of available resources, if from public sources, reasonable quantities of educational, cultural and informational material, subject to reasonable conditions to ensure security and good order in the place of detention or imprisonment.”

As to solitary confinement, although it does not per se violate international human rights law, such as articles 7 and 10(1) of the International Covenant, its lawfulness will depend on the aim, length and conditions of the confinement in each particular case. The Human Rights Committee has stated “prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7” of the Covenant. It is noteworthy that Principle 7 of the Basic Principles for the Treatment of Prisoners provides, furthermore, that “efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged”.

A fundamental premiss when dealing with the right of detainees and prisoners to maintain contact with the world outside the institutions where they are held is that, like free persons, those deprived of their liberty enjoy all the human rights guaranteed by international law, subject of course to those restrictions that are an unavoidable consequence of the confinement. This means, inter alia, that no detainee or prisoner “shall ... be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” (art. 17 of the International Covenant on Civil and Political Rights).

Rule 37 of the Standard Minimum Rules provides that “prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.” Prisoners who are foreign nationals “shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong”, or “with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons” (Rule 38(1) and (2)). According to Rule 92: “ An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.”

Contacts between a lawyer and his clients are privileged and confidential and this basic rule also continues to apply when the clients are deprived of their liberty. Rule 93 of the Standard Minimum Rules stipulates in this respect that: “93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.” (Principle 18 of the Body of Principles).

As pointed in various United Nations special reports on the question of torture, “regular inspection of places of detention, especially when carried out as part of a system of periodic visits, constitutes one of the most effective preventive measures against torture. Inspections of all places of detention, including police lock-ups, pre-trial detention centres, security service premises, administrative detention areas and prisons, should be conducted by teams of independent experts”, whose members “should be afforded an opportunity to speak privately with detainees” and should also report publicly on their findings. The UN Human Rights Committee has expressed concern “at the lack of an independent system of supervision of: (a) abuses of human rights by police officers; (b) the conditions in penal institutions, including those for juvenile offenders; and (c) complaints of violence or other abuse by members of the Prison Service”.

The Committee against Torture has also recommended that “independent governmental bodies consisting of persons of high moral standing should be appointedto take over the inspection of detention centres and places of imprisonment.”

What must be the role of judges, prosecutors and lawyers in preventing and remedying Unlawful treatment of persons deprived of their liberty?

The role of judges, prosecutors and lawyers in ensuring both the true enjoyment of these rights and the effective functioning of the complaints system is indispensable and multifaceted. Lawyers will at all times have to protect and defend their clients’ interests, and must remain vigilant to any signs of torture or other forms of ill-treatment and vigorously pursue any avenues open to them to complain against such treatment. If the domestic avenues of appeal are not functioning, a remedy of last resort may be to pursue the complaints before a competent body at the international level. Prosecutors have a special obligation to take all necessary steps to bring to justice those who are suspected of having committed human rights violations such as torture or cruel, inhuman or degrading treatment. Their work is a key both to the remedying of past human rights violations and to the prevention of future violations. The effective work of prosecutors does of course presuppose that they are able to work in an independent and impartial manner, without interference by the Executive. Prosecutors are not allowed to rely on evidence obtained by unlawful means involving human rights violations. Judges must be able to decide independently and impartially all cases of alleged human rights violations. They must at all times refuse to accept confessions that have been obtained from suspects by means of torture or any form of duress.

Source: Univ. of Minnesota Human Rights Library

Digested by:

Atty. Manuel J. Laserna Jr.

Warrantless arrest and search: “peeping” vs. “plain view”

In the old case of PEOPLE OF THE PHILIPPINES, vs. ZENAIDA BOLASA Y NAKOBOAN and ROBERTO DELOS REYES, G.R. No. 125754, December 22, 1999, the Supreme Court sustained the appeal and stated that the case clearly illustrated “how constitutional guarantees against illegal arrests and seizures could be violated by overzealous police officers in the arrest of suspected drug offenders”.

An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon in the early evening of 11 September 1995 that a man and a woman were repacking prohibited drugs at a certain house in Sta. Brigida St., Karuhatan, Valenzuela, Metro Manila. PO3 Salonga and PO3 Carizon together with SPO1 Fernando Arenas immediately proceeded to the house of the suspects and parked their car some three hundred (300) meters away. They walked towards their quarry's lair accompanied this time by their unnamed informer. When they reached the house they "peeped (inside) through a small window and x x x saw one man and a woman repacking suspected marijuana." They entered the house and introduced themselves as police officers to the occupants and thereupon confiscated the tea bags and some drug paraphernalia. They arrested the two (2) who turned out to be the accused Zenaida Bolasa y Nakoboan and Roberto delos Reyes. Subsequent examination of the tea bags by NBI Forensic Chemist Rubie Calalo confirmed the suspicion that the tea bags contained marijuana.

According to the Court, the tea bags containing marijuana “were not seized in plain view or inadvertently discovered”. There was “no valid intrusion” and the accused were “illegally arrested”. The police officers “intentionally peeped first through the window before they saw and ascertained the activities of accused inside the room”.

The Court held that the apprehending officers “should have conducted first a surveillance” considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and “determining the existence of probable cause” for arresting accused, they should have “secured a search warrant prior to effecting a valid arrest and seizure”. The Court stated that “the arrest being illegal ab initio, the accompanying search was likewise illegal”. Every evidence thus obtained during the illegal search cannot be used against accused.

The Court cited Section 2, Art. III, of the 1987 Constitution:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The Court held that the State “cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects”. The constitutional provision “protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint”.

The Court enumeraed the exceptions as follows:

1. Warrantless search incidental to a lawful arrest;

2. Search of evidence in “plain view.”

The elements of the plain view doctrine are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search.

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.

Citing the Rules of Criminal Procedure on lawful warrantless arrest, the Court stated that an arrest is lawful even “in the absence of a warrant”:

(a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

(b) when an offense has in fact been committed and he has reasonable ground to believe that the person to be arrested has committed it; and,

(c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense).

by:

Atty. Manuel J. Laserna Jr.

Access to justice

The resolution of the Philippine Supreme Court in EN BANC A.M. No. 05-2-01-SC, February 15, 2005, “RE: SC PROJECT: ACCESS TO JUSTICE FOR THE POOR PROJECT”, is worth discussing because of its implications to the administration of justice and the over-all directions of the justice system reform programs in the Philippines and for legal research purposes of the readers.

Parenthetically, I am also digesting this particular resolution of the Court for another reason -- to prove my position that the controversial participation of the Chief Justice in the newly formed Judicial, Executive and Legislative Advisory and Consultative Council (JELAC) runs counter to the Constitution and existing jurisprudence.

In early 2001, the Supreme Court and the European Commission (EC) delegation to the Philippines initially discussed the possibility of an EC grant to fund activities in line with the Action Program for Judicial Reform (APJR).

By the end of 2002, the EC commissioned a team of experts as a Scoping Mission to look at the feasibility of an EC funded project for the Supreme Court that would cover the APJR components "Access to Justice for the Poor" and "Reforms Support System."

By the end of the second quarter of 2003, the Scoping Mission, after consultations with various national agencies, local governments and non­governmental institutions (NGOs) proposed the creation of a network of information and dissemination systems interconnecting the "pillars of justice" in order to enhance accessibility of the justice system for the poor and disadvantaged (especially women and children).

In 2003, the SC Project: Access to Justice for the Poor Project (the Project) was approved by the EC and the Government of the Philippines with the Financing Agreement being signed on August 10, 2004. The Project was scheduled to commence in 2005 and was to be implemented over a 4-year period ending in 2009.

The Technical and Administrative Provisions (the TAPs) of the Project's Financing Agreement designate the Supreme Court as the Executing Authority and the Implementing Agency for the Project.

The purpose of the Project was: To enable the poor in general and poor women and children in particular in selected project areas (approximately 100 municipalities and 3000 barangays) to pursue justice through their increased knowledge about basic rights and the judicial system and to create an enabling, supportive environment to this effect within the judiciary and the institution[s] of law enforcement as well as an overall legal framework amended to ensure the rights of poor women and children in particular.

The project will expand the Information, Education and Communication infrastructure of the Court system by delegating one Clerk of Court as Municipal Court Information Officer (MCIO) at each of the approximately 100 Municipal Courts (out of 1124 in total) to be covered by the project. In approximately 3000 barangays under their jurisdiction, legal information desks will be established in co-operation with the Barangay Council and Captain and capacity building will take place for those involved in the Barangay Justice System, paralegals, women and children. An effort will be made to enhance the sensitivity of particularly those working in law enforcement and the judiciary to the problems of the poor.

On January 7, 2005, as directed by the Supreme Court Committee on Public Information chaired by Justice Artemio V. Panganiban, the Project Management Office (PMO) submitted a draft Memorandum of Agreement (MOA) among the Supreme Court, the Department of Justice (DOJ), the Department of the Interior and Local Government (DILG), the Department of Social Welfare and Development (DSWD), and the Commission on Human Rights (CHR).

The draft MOA was then referred to the Office of the Chief Attorney (OCAt) for review. In its Memorandum dated January 19, 2005, the OCAt recommended the withdrawal of the Court from participation as Executing Agency of the Project for the following reasons:

(1) the participation of the Court in the Project was of doubtful constitutionality, as the component activities to be undertaken were within the competence and authority of the executive branch of government to undertake, and

(2) the Project activities were either functions of the executive departments or were already being undertaken in the Court through other Projects managed by the PMO.

The issues for resolution by the Supreme Court were the following:

Whether the program to inform, educate and communicate with the public in order to promote access to justice by the poor is within the constitutional mandate of the Supreme Court.

Whether the Court's participation in the Project as defined in the MOA violates the separation of powers.

A PROGRAM TO INFORM, EDUCATE AND

COMMUNICATE WITH THE PUBLIC IN

ORDER TO PROMOTE ACCESS TO JUSTICE

BY THE POOR DOES NOT PER SE GO

BEYOND THE CONSTITUTIONAL

MANDATE OF THE SUPREME COURT

In its Memorandum, the OCAt opined that the judicial power as defined in Section 1, Article VIII of the Constitution "is clear enough to exclude dissemination of ‘legal information’”. While acknowledging that the term "legal information" is not defined in the MOA or the TAPs, the OCAt speculates that "because the Project is about access to justice by the poor, the implication is that the poor would be informed and educated on how to file a case or to seek recourse before the courts." To this, the OCAt adds the warning that '"legal information' may in fact include advisory opinion on legal matters such as the proper procedure to avail of by the person seeking such information."

Moreover, the OCAt theorized that "legal information" was synonymous to "legal education" in the APJR, which it defined as referring to education and training in college for the purpose of obtaining a law degree in preparation to admission to the Bar. Thus, the OCAt concluded that '"[l]egal education' may not encompass educating the people, especially the disadvantaged, on how to have access to the justice system." And further that "[p]roviding 'legal information' to the masses, which is the principal activity under the Project, is within the competence of the executive department of government, not the Judiciary, to undertake.

The Court heldtaht it was undisputed that under the fifth paragraph of Section 5, Article VIII of the Constitution, the Court was vested with rule-making power, to wit:

Sec. 5. The Supreme Court shall have the following powers:

xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

Concomitant to the power to promulgate rules is the duty to publish the same. As discussed at length in the landmark case of Tanada v. Tuvera, publication is an essential element of due process:

X x x.

Publication is indispensable in every case . . .

It is not correct to say that . . . publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. ...

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

xxx

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.

xxx

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos administration. The evident purpose was to withhold rather than disclose information on this vital law.

xxx

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn.

X x x.

The Tañada case specifies publication in the Official Gazette or in newspapers of general circulation as the absolute minimum compliance with the requirement of due process. However, there is nothing in the Constitution or in existing jurisprudence which prohibits the Court from undertaking further efforts to ensure that judicial rules and procedures are understood by the general public - including the poor and uneducated - for whose benefit they were promulgated.

In fact, as pointed out by the PIO, the Court has already undertaken additional efforts to further explain court procedures to the public at large, including the publication of various information materials such as brochures, flyers and the Benchmark, as well as the broadcast of the radio program Usapang Korte Suprema. Thus, the 2002 Revised Manual for Clerks of Court expressly includes among the non-adjudicative functions of a first-level clerk of court the responsibility to "[p]rovide information services to the public and private agencies including bar associations." Furthermore, Section 12 of the Rule on Violence against Women and Children which took effect November 15, 2004 enumerates specific pieces of information which, in the proper cases, a clerk of court is required to communicate to the offended party, to wit:

X x x.

Sec. 12. Duties of the clerk of court. - The clerk of court shall assist the petitioner or the offended party by:

(a) Communicating in a language understood by the petitioner;

(b) Providing the petitioner with a standard petition form written in English with translation into the major local dialects, including the instructions for its accomplishment;

(c) Ensuring the privacy of the offended party to the extent practicable while the form is being accomplished;

(d) Advising the petitioner on the availability of legal assistance from the Public Attorney's Office of the Department of justice or any public legal assistance office;

(e) Advising of the petitioner on entitlement of support services from the DSWD and LGUs;

(f) Advising the petitioner on the availability of an affidavit of indigency in lieu of payment of the filing fee;

(g) Providing the offended party with a certified copy of the protection order as well as giving the necessary information regarding the process for its service and enforcement;

(h) Making available informative materials on violence against women and their children including their rights as victims; and

(i) Informing the offended party that compensation is available from the Department of Justice Board of Claims in accordance with the provisions of R.A. No. 7309 (1992), otherwise known as "An Act Creating a Board of Claims Under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crime and For Other Purposes.

X x x.

Thus, the Court concluded that clearly, there was no constitutional prohibition against this Court "educating the people, especially the disadvantaged, on how to have access to the justice system."

"LEGAL INFORMATION" PROVIDED BY THE

COURT OR ITS OFFICERS SHOULD NOT

AMOUNT TO THE RENDERING OF

ADVISORY OPINIONS, LEGAL ADVICE OR

LEGAL ADVOCACY

According to the Court, as correctly pointed out by the OCAt, the confusion regarding the proposed
decentralization of the Information, Education and Communication (IEC) function to the municipal clerks of court stems from the failure of the MOA or the TAPs to adequately define the "legal information" which is supposed to be communicated.

In particular, the OCAt's concern that such "legal information" may amount to advisory opinions or the rendition of legal advice on the merits of a prospective litigant's case is well taken. In undertaking to provide "legal information" a clerk of court walks a fine line between the communication of basic court procedures and legal advocacy, which, if overstepped, opens the judiciary to accusations of bias and impropriety and threatens its impartiality and independence.

In Alfonso v. Juanson,[6] where a judge was charged with immorality and violation of the Code of Judicial Ethics, the Court speaking through Justice (now Chief Justice) Hilario G. Davide, Jr., held:

X x x.

. . . However, considering their prior special relationship, the respondent and Sol's meetings could reasonably incite suspicion of either its continuance or revival and the concomitant intimacies expressive of such relationship. In short, the respondent suddenly became indiscreet; he encumbered to the sweet memories of the past and he was unable to disappoint Sol who asked for his legal advice on a matter which involved her employment. Such indiscretions indubitably cast upon his conduct an appearance of impropriety. He thus violated Canon 3 of the Canons of Judicial Ethics which mandates that "[a] judge should avoid impropriety and the appearance of impropriety in all activities." It has been said that a magistrate of the law must comport himself at all times in such manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice. (Dia-Añonuevo vs. Bercacio, 68 SCRA 81 [1975]). The ethical principles and sense of propriety of a judge are essential to the preservation of the faith of the people in the judiciary. (Candia vs. Tagabucba, 79 SCRA 51 [1977]).

X x x.

As it stands, while the MOA and TAPs speak of decentralizing the Information Education and Communication function of the judiciary, they provide neither clear guidelines on the nature of the "legal information" to be communicated to the public nor a procedure or process for the formulation of such guidelines.

As pointed out by the PIO, it is necessary that the Court provide specific standards of conduct with regard to the disclosure and publication of "legal information" in order to avoid even the appearance of impropriety and maintain the integrity of the judicial branch. Verily, the conduct required of court personnel must be beyond reproach and must always be free from suspicion that may taint the judiciary.

THE ROLE OF THE COURT AS THE

PROJECT’S EXECUTING AUTHORITY

AND IMPLEMENTING AGENCY, IN SO FAR

AS IT VESTS IT WITH ADMINISTRATIVE

SUPERVISION OVER OTHER

ADMINISTRATIVE OR QUASI-JUDICIAL

AGENCIES, VIOLATES SECTION 12, ARTICLE

VIII OF THE CONSTITUTION

However, per the Court, even if the "legal information" to be provided by the municipal clerks of court were adequately defined, the Project still suffered from a fatal constitutional defect insofar as the Court was designated as the Executing Authority and Implementing Agency for the Project.

It is readily apparent from the Project description and the end results envisioned that the Project did not merely involve the decentralization of the IEC function of the judiciary, but also involved several concurrent undertakings on the part of the DOJ the DILG the DSWD, and the CHR. Consequently, the problem arose whether the Court's participation violated the constitutional principle of separation of powers.

The PMO had apparently become aware of this problem, because in its Memorandum dated February 25, 2005 it proffered the clarification that the implementation of the Project would adhere to the constitutional parameters, respecting domains of the Executive and Legislative branch of the government, nonetheless, without compromising the integrity and independence of the Judiciary.

Unfortunately, per the Court, the provisions of the MOA and the TAPs belie the "clarification" of the PMO.

Under No. 3, Article II of the MOA, while the Partner Agencies (PAs) have "control over the production of outputs," the Court, as Executing Agency (EA) has the authority to withhold or order the suspension of payments to the PAs or "undertake proper and immediate steps to aptly resolve the subject matter" if it is not satisfied with the quality and progress of their work:

Further, Article III of the MOA provided that the Court as the EA shall have supervision and oversight over the PAs, and shall be accountable for the overall success of the Project to the EC.

Moreover, the TAPs contained other provisions imposing administrative duties on the Court.

The foregoing unquestionably vests the Court with administrative supervision, even control, over the other government agencies with respect to their undertakings under the Project. As such, they run afoul of Section 12, Article VIII of the Constitution:

X x x.

Sec. 12. The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

In Manila Electric Co. v. Pasay Transportation Co., where the constitutionality of a statute requiring the members of the Supreme Court to sit as a board of arbitrators was assailed, this Court held:

X x x.

The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions.

X x x.

In the last judicial paper from the pen of Chief Justice Taney, it was said:

"The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. ... Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress. . . . And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. . . ." (Gordon vs. United States [1864], 2 Wall., 561; 117 U.S., 697, Appendix.).

X x x.

Similarly, in In Re: Rodolfo U. Manzano, the Court held:

X x x.

Under the Constitution, the members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution).

Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request.

X x x.

Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106 [1971]) ably sets forth:

X x x.

"2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less."

X x x.

In like manner, per the Court, the Project, as structured, did not pass the test of constitutionality.

PROVISION OF ADDITIONAL SALARY

COMPLEMENT TO THE MCIOs FOR THE

DURATION OF THE PROJECT VIOLATES

SECTION 8, ARTICLE IX OF THE

CONSTITUTION

The total cost of the Project is estimated at 3,472,324 euro, of which the European Commission had committed to contribute 2,731,920 euro while the Philippine Government obligated itself to contribute 740,404 euro (364,900 euro in cash and 375,504 euro in kind).

An examination of the Project budget revealed that 103,500 euro (31,050 euro to come from the European Commission and 72,450 euro to come from the Philippine Government) had been allotted for the salaries of the municipal court information officers who are all Municipal Trial Court clerks of court. Hence, aside fromtheir regular salaries which they were receiving as clerks of court, those chosen to become information officers of the Project were also entitled to receive an additional salary. Furthermore, part of their additional compensation is funded by a foreign entity. This arrangement was clearly in violation of Section 8 of Article IX-B of the 1987 Constitution which provides:

X x x.

Sec. 8. No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall be considered as additional, double or indirect compensation.

Moreover, as observed by the PIO, clerks of court are already duty-bound to "provide information services to the public and private agencies including bar associations" as part of their non-adjudicative functions.

Thus, effectively, the Government of the Philippines will be wasting precious resources, paying additionalfor services which are already compensation included as part of the duties of the municipal trial court clerks of court.

TRAINING AND EMPLOYMENT OF

PARALEGALS IN VARIOUS ASPECTS

OF THE PROJECT VIOLATES EXISTING

JURISPRUDENCE

According to the Court, the implementation of the Project relied heavily on paralegals as an essential component of the Project. Necessarily, these paralegals would engage in the practice of law which this Court in Cayetano v. Monsod, defined as "any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience." But the use of paralegals may be improper since under Philippine law, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. As the OCAt astutely points out:

X x x.

The TAPS mentions the training of paralegals that shall be fielded in the implementation of the Project. Paralegals are not a common breed in this country. Although the Court has supported approval by the Commission on Higher Education of the proposal of the Manuel L. Quezon University to offer the course of Bachelor of Science in Paralegals, such support is circumscribed by the requirement that the course shall be a pre-law course. Authorizing the practice of paralegals in the country is still being studied by the Committee on Legal Education and Bar Matters because of the need to regulate their practice in much the same way that the practice of the members of the Integrated Bar of the Philippines is subject to the Court's rule-making authority.Parenthetically, if the Project were to be properly implemented, the participation of the IBP is necessary.

X x x.

In fine, the Court resolved to request the Department of Foreign Affairs to renegotiate the Financing Agreement signed between the European Commission and the Republic of the Philippines on "Improving the Governance to Reduce Poverty: Access to Justice for the Poor," particularly the "Technical and Administrative Provisions" or TAPS thereof, to limit the Supreme Court's participation in the Project, keep the same within the bounds of the Constitution and take into consideration existing laws, jurisprudence and issuances of the Court, including the New Code of Judicial Conduct for the Philippine Judiciary, the Code of Conduct for Personnel and the 2002 Revised Manual for Clerks of Court, specifically:

1. To relieve the Supreme Court of its responsibility as Executive or Implementing Agency for the entire Project,particularly of the provisions in the TAPs vesting the Court with administrative control or supervision over other government agencies with respect to the latter's undertakings under the Project; the functions and responsibilities of the Supreme Court being limited only to that which directly involve the Judicial Department of the government and its personnel.

2. To define the parameters and limitations of the "legal information" that may be disseminated by the municipal court information officers.

3. To delete provisions of the TAPs allotting or granting additional salary or compensation to the municipal court information officers.

4. To define the functions of the paralegals to prevent them from performing any activity which “requires the application law, of legal procedure, knowledge, training and experience” and which only attorneys-at-law may do.”

Digested By:

Atty. Manuel J. Laserna Jr.

Laserna Cueva Mercader Law Offices

Las Pinas City, Philippines

May 28, 2008