philippine democracy

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Philippine DemocracyAssessment

Rule of Law andAccess to Justice

Philippine DemocracyAssessmentRule of Law andAccess to Justice

AUTHORS

Edna E.A. CoNepomuceno MalaluanArthur NeameMarlon ManuelMiguel Rafael V. Musngi

© 2010 by Action for Economic Reforms 2010© 2010 by International Institute for Democracy and Electoral Assistance

(International IDEA)

This report was developed by Action for Economic Reform as part of aproject entitled Philippine Democracy Assessment: Rule of Law and Accessto Justice. Views expressed in this publication do not necessarily representthe views of International IDEA, its Board or its Council members.

Applications for permission to reproduce or translate all or any part of thispublication should be made to:

Action for Economic ReformsUnit 1403, 14th Floor, West Trade Center132 West Avenue, Quezon CityTelefax: (632) 4265626E-mail: [email protected] / Website: www.aer.ph International Institute for Democracy and Electoral Assistance(International IDEA)SE-103 34 Stockholm, SwedenPhone + 46 8 6983700 / Fax + 46 8 202422E-mail : [email protected] / Website: http://www.idea.int Book design: Ariel ManuelCover art and design: Joanna Ruiz The National Library of the Philippines CIP Data Recommended entry: Philippine democracy assessment : rule of

law and access to justice / authors, EdnaE. A. Co . . . [et al.] — Quezon City : Action for Economic Reforms, Inc.and International Institute for Democracy and Electoral Assistance(IDEA), 2010.

p. ; cm.

ISBN 978-971-92014-7-2

1. Rule of law—Philippines. 2. Justice,Administration of—Philippines. 3. Politicalquestions and judicial power—Philippines.4. Judicial review—Philippines. I. Co, Edna E. A. KPM1726 340.11 2010 P102010815

Contents

Acronyms and Abbreviations vi

Foreword viii

Preface xi

1. Introduction and Framework 1

2. Institutions 19

3. Access to Justice 77

4. Emerging Challenges Facing the Rule of Law:

From the Global to the Local 115

5. Public Perception 173

6. Concluding Statements 211

Appendix 219

Index 222

Contributors 231

Acronyms and Abbreviations

ADR Alternative Dispute ResolutionAFP Armed Forces of the Philippines

AHJAG Ad-Hoc Joint Action GroupALG Alternative Law Groups, Inc.

APJR Action Program for Judicial ReformARMM Autonomous Region of Muslim Mindanao

ASG Abu Sayyaf GroupBJE Bangsa Moro Juridical Entity

CEDAW Convention on the Elimination of All Forms ofDiscrimination Against Women

CHR Commission on Human RightsCJ Chief Justice of the Supreme Court

CPJ Committee to Protect JournalistsCPR calibrated pre-emptive responseCPP Communist Party of the PhilippinesCSC Civil Service CommissionDFA Department of Foreign Affairs

DILG Department of the Interior and Local GovernmentDOJ Department of JusticeEJK extrajudicial killing

FLAG Free Legal Assistance GroupFPIC free, prior and informed consent

GOCC Government-Owned and Controlled CorporationGRP Government of the Republic of the PhilippinesHiiL Hague Institute for the Internationalisation of LawHSA Human Security Act

IALAG Interagency Legal Action Group

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IBP Integrated Bar of the PhilippinesICC International Criminal CourtICC Indigenous Cultural CommunityICG International Crisis GroupICJ International Commission of Jurists

IDMC Internal Displacement Monitoring CentreIDP internally displaced people/personIHL International Humanitarian LawILO International Labour Organization

IP Indigenous PeopleIPRA Indigenous Peoples Rights Act

JBC Judicial and Bar CouncilJI Jemaah Islamyah

JMC Joint Monitoring CommitteeLibertas Lawyers League for Liberty

MDG Millennium Development GoalsMILF Moro Islamic Liberation Front

MNLF Moro National Liberation FrontMOA-AD Memorandum of Agreement on Ancestral Domain

NCIP National Commission on Indigenous PeoplesNCRFW National Commission on the Role

of Filipino WomenNDF National Democratic FrontNGO non-governmental organisationNPA New People’s ArmyOSG Office of the Solicitor GeneralPAO Public Attorney’s OfficePCIJ Philippine Center for Investigative Journalism

PLEB People’s Law Enforcement BoardPNP Philippine National Police

RP Republic of the PhilippinesSCAW Supreme Court Appointments Watch

SWS Social Weather StationsUN CEDAW Committee on the Elimination of Discrimination

Against WomenUN CERD UN Committee on the Elimination

of Racial DiscriminationUN CRC UN Committee on the Rights of the ChildUN ODC United Nations Office on Drugs and Crime

Acronyms and Abbreviations

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Foreword

The rule of law is critical for democracy’s sustenance andsurvival. In a democracy, those who govern not onlyreceive their mandate from the people but also govern onbehalf of the people. Control lies with the people, andcitizens should enjoy political equality in exercising thatcontrol over decisions and decision makers. It is with thispromise of collective control, equality, freedom, justice andpeace that democracy has witnessed unparalled supportand growth in the last few decades. In countries ruled byauthoritarian regimes, this promise remains a motivatingforce for political change. Democracy needs institutionsand laws: to define and regulate the actions and powersof both citizens and rulers; to define and protect the rightsof citizens; to determine ways and means through whichcitizens will elect and effectively control their government;to ensure political equality; and to create an environmentof freedom and security.

While democratic transitions may have their foundingevents, the building and consolidation of democracy is along term process that takes years, if not decades.Typically, the consolidation of the rule of law, as a keyingredient of democracy, is one of those processes thatrequire time, persistence and patience. It involves thedevelopment of knowledge, capacity and expertise, theestablishment of functional institutions and the deepeningof a legal democratic practice and culture. It requires a

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strong commitment to integrity as the rule of law is alsoa very fragile dimension of democracy, which requiresconstant citizen scrutiny and is exceptionally sensitive toperceptions of fraud or corruption.

Democracy’s future, however, is increasingly perceived asnot only depending on democratic institutions andprocesses but also on capacity to deliver on its promises:to deliver freedom, equality, peace, security, prosperity anda better quality of life for all citizens. This quality of lifeembodied in the idea of democracy is inseparable fromthe rule of law, including access to justice and human rights.As credibility of democracy in many countries isincreasingly undermined by unlawful behaviour of thosein charge of protecting the rule of law - by incumbentswho manipulate constitutions and electoral laws to extendtheir hold on power, by the lack of transparency in therelations between politicians and influential businessentrepreneurs, etc. - respect for the rule of law isincreasingly perceived as an area in which democracyneeds to improve its functioning and delivery.

Beyond formal institutions and processes, democracy’sdelivery and credibility also depends on an activeengagement of citizens. Active citizenship has to benurtured and supported by an institutional frameworkthat facilitates a culture of openness for plural andcontradictory discourses where reform priorities aredebated and defined. Those who experience democracy ona daily basis, citizens, have to be at the forefront ofevaluating its performance and articulating reformpriorities.

In pursuing its democracy building mandate, theInternational Institute for Democracy & Electoral Assistance(International IDEA), has used approaches that not only seekto strengthen democratic institutions and processes but alsosupport active citizenship. It is against this background that,in 2000, International IDEA developed a reform orientedand context sensitive State of Democracy assessmentmethodology (SoD) for citizens to evaluate the quality andperformance of their democracies. It is in this context that

Foreword

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International IDEA is proud to have partnered with Actionfor Economic Reforms in support of the Rule of Law & Accessto Justice assessment conducted by the Philippine DemocracyAssessment team. This is the fourth assessment in six yearsin which Philippine citizens, ably led by Professor Edna Co,have contextualized and applied International IDEA’s SoDassessment methodology to assess a dimension of Philippinedemocracy. Other assessments are Free & Fair Elections andthe Democratic Role of Political Parties (2004); MinimisingCorruption (2007) and Economic & Social Rights (2007).

Martin Van Weerdenburg Acting Secretary General International IDEA

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Preface

An assessment on the rule of law and access to justicebecomes timely when citizens and citizen groups raisequestions on the extent to which the Philippines observeand uphold the rule of law and whether these rules doindeed enable people an access to justice. This is especiallyimportant for those who seek and need justice more.

Not a few sectors and citizens, including political observers,have noted a general weakening of public institutions. Thisassessment serves to validate such observation and to raisedeeper questions on the state of the country’s rule of law,justice and human rights. Whilst the assessment examinesthe rule of law as exemplified in institutions and the variouspillars of justice, it also unravels the political and culturaltexture of the rule of law, and brings up the complexityof upholding it and attaining justice and human rights,all of which intertwine in the equation of democracy. Theassessors also see the importance of looking at terrorism,at human trafficking, at drug trafficking and so on as theseseem to be an overlay in the complex structure of the ruleof law, justice and human rights. The assessment on therule of law and access to justice does not only look at thepresence of laws and institutions but also examines theso-called sociology of the law. By doing so, the assessmentconnects the form of the rule of law to its substance. Theassessment attempts to answer questions beyond theexistence of the institutions of the rule of law, and goeson to examine whether these institutions do function to

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achieve citizens’ access to justice and to promote theirrights.

It is equally interesting that the assessment uses a set ofquestions to examine the form and substance of the ruleof law and access to justice. Its methodology sets it apartfrom the rating and ranking of democracy, and insteadallows a discourse on the quality of the rule of law fromthe citizens’ perspective.

This assessment on the rule of law and access to justicecomes just at the time when a new administration thatpromises to restore the people’s trust in institutions andto move democracy in the Philippines forward is installed.

Edna E. A. CoPhilippine Democracy Assessment Team

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1

Introduction and Framework

1.1 Framework on the Rule of Law andAccess to Justice

A n i nvent o r y o f the rule o f law by academ i a andpract itioners produced by the Hague Inst itute for theInternationalisation of Law (H iiL) in 2007 represents aremarkable piece of literature. The result of a high leveldiscussion among experts, it is an interesting approach tothe rule of law and offers an attractive framework for anassessment of democracy in the Philippines.

The inventory makes it clear that the rule of law is notonly anchored on the orthodox notion of the rule of lawas identified with a particular set of institutions, such asthe judiciary, but also involves the values and ends thatthis institutional set serves. The rule of law is a complexconcept —mo re compl i ca t ed than the no t i on o fconst itut ional state in which the relat ions def ined arebetween the state and the citizens. The rule of law pointstoward the ‘relation among citizens’, or what KleinfeldBelton distinguishes as ‘end-based definitions of the ruleof law and institution-based definitions’ (H iiL 2007: 14).For such a definition, some guiding principles on how topromote the rule of law are in order, these being: (a) forany rule of law end, all institutions must be reformed; (b)achieving rule of law ends requires political and cultural,not only institutional, change; (c) not all work to reformlegal institutions is rule of law reform; and (d) rule of law

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Ph il ippin e Dem o cra cy Assessm en t: Rul e o f L a w a nd Acc ess t o Just ic e

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Intro duc t io n a nd F r am e wor k

ends are in tension, particularly in poor societies or societieswith a weak rule of law. Following these principles, whatthen should be examined are the ends of the rule of lawrather than the institutions per se (Kleinfeld Belton 2005:22). Thus, there are competing definitions of the rule oflaw.

This assessment points out the complexity of the definitionof the rule of law and the need for a framework w ithwhich to evaluate it. On the one hand, the audit hopes tofocus on the rule o f law as embodied in inst i tut ions;however, it also has to deal with the political and culturalt e x ture o f the r ule o f law. T hese are cruci a l i nunderstanding why the public’s conf idence and trust ininst itutions are important, and why the ends of theseinstitutions, such as the promotion of human rights andequa l i t y, and the f ight aga inst ter ror ism or humantraff ick ing or drug traff ick ing are equal ly signif icant .M oreover, while the rule of law, just like democracy,travels and has a universal principle, it has a specific locusand context . In the Phi l ippines, a developing society,institut ions are formal ly present yet are substant ial lyweak and sometimes dysfunctional. Previously completedassessments on Philippine democracy (that is, on electionsand po l i t ical par t ies, on cor rupt ion, and on cit izens’economic and social rights) bear this out. It is thereforeimportant that this assessment takes into account bothinstitutions (and their performance) and citizens’ accessto their rights to the rule of law and justice. This allowsthe assessors to capture both the form and the substanceof the rule of law and its essence, which is democracy.F ur the rmo re , i t should be no t ed that pre-co lon i a lPhilippine society left as a legacy an indigenous systemthat allows communities to gain access to justice basedon customary laws and tradition. Such a system continuesin the communities of indigenous peoples, and the modernjustice system and the rule of law should reckon with theindigenous practice.

The International Commission of Jurists (ICJ) probablyholds the most popular formulation of the rule of law, aspointed out by Dworkin. Dworkin refers to the 1959 ICJconference in which the commission stated that the

“. . . function of the legislature in a free society underthe Rule of Law is to create and maintain the conditionswhich will uphold the dignity of man as an individual.T his dignity requires not only the recognition of hiscivil and political rights but also the establishment ofthe social, economic, educational and cultural conditionswhich are essent ial to the full development of hispersonality” (Raz, 1979). T his conception . . . does notdistinguish . . . between the rule of law and substantivejustice; on the contrary it requires, as part of the idealof law, that the rules in the book capture and enforcemoral rights. (Dworkin 1985: 11-12)

The discourse on the rule of law continues. On the onehand, Hayek and Raz contend that the rule of law ‘meansthat government in all its actions is bound by rules fixedand announced beforehand—rules which make it possibleto foresee with fair certainty how the authority will useits coercive powers in g iven circumstances, and to planone’s indiv idual affairs on the basis of this knowledge.(And that) . . . the rule of law means literally what it says:the rule of laws. Taken in its broadest sense, this meansthat people should obey the law and be ruled by it.’ (Raz1979: 210) On the other hand, while the existence of therule of law is ideal, it is important to highlight the contentof the laws that rule. The ideal of the rule of law is notnecessarily the same as the ideal of substantive justice.

The connection between these two ideals is recognized byhighl ighting the rule of law and the extent to whichcitizens obtain access to justice within such rule of law.Indeed it is commonsensical that the rule of law is assessedside by side with substantive justice or access to justice.

T amanaha (2006) , i n the H ague I ns t i tut e f o r theInternal isation of Law (H i iL) inventory of the rule oflaw, articulates the so-called thin and thick complexionsof the rule of law in which the conceptions of the rule oflaw range according to categories, generally from theformal version to the substant ive one. T he argumentcont inues as to which one is better. T ake note of theconception as stated in table 1.1.


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Table 1.1 Te xture of the rule of law and democracy

Formalversions T h in T hi ck

1. Rule by law 2. Formal legal ity 3. Democracy +- law as instrument - general prospective, lega l i tyof government clear, cer tain - consentac t i on determ ines

content of law

Substantive 4. Indiv idual rights 5. Right of d ign ity 6. Social welfareversions - proper ty, contract , and / or just ice - substant ive

pr ivacy, autonomy equal i ty, welfarepreservat ion ofcommun i t y

Source: Adapted from Walter Bryce Gal lie, ‘ Essent ially ContestedConcepts’, Proceedings of the Aristotelian Soc iety, 56 (1956) , pp. 167-98

Going by this reasoning, there is a caveat to the rule oflaw: it may ex ist where human r ights—civ il , pol it ical ,economic, social or cultural—are not necessarily respected.Furthermore, it may also exist in an undemocratic system.In an assessment of democracy using the lens of the ruleof law, it is being sensitive (and sensible) to examine thepr inciple of democracy, and par t icularly the access ofcitizens to justice, within the rule of law. In other words,it is important that in a democracy assessment of therule of law, everyone—institutions, agencies, rule makers,decision makers, and citizens—agree on the definition ofthe rule of law. Moreover, it is important that values suchas legal certainty, formal equality and prevention of theuse of arbitrary power are upheld through the laws thatrule. It is also understood that in the Philippine context,as i n o the r soci e t i es, the commun i cat i on and theconversation on these values and the rule of law continueas democracy is constantly in the process of building andstrengthening. The ‘thick’ conception of democracy andhuman r i ght s i s by i t se l f comple x and could beconceptually contested.

O n the one hand , the rule o f law undersco res thepredictability of rules and procedures, the independenceof procedures, the accountabilities of office and of the

persons holding such office, the boundaries and limits ofpower and discretion, and the consistency in the provisionsof the constitution and statutes, among others. On theother, access to justice underlines the accessibility of justiceto the citizen on the street. Accessibility is measured by anumber of benchmarks, including: (a) the affordabil ityof the judicial proceedings, the cost of bringing a case tocourt, and the efficiency of the court so that the proceedingsdo not wear out those involved and drain their resources;(b) the use of an intelligible language in court and judicialproceed ings; (c) the use o f su f f ici ent and e f fec t i vemechanisms of information for the citizens; (d) the showingof respect for an indigenous justice system consider ingethnicity, religion, gender, and class; and (e) the provisiono f mechan i sms f o r redress o f g r i e vance andmaladministration of just ice.

The rule of law and access to justice go hand in hand. Ifnot , the essence of democracy in the judicial arena isdoubtful. In a developing society such as the Philippines,access to justice revolves around and involves especiallythe basic sectors (Buendia 2001). In some cases, wherethe bas ic sec tors fa i l to access just ice through theappropriate institutions, they, alongside non-governmentalorganisations and the media, resort to moral and politicalpressures and similar modes of articulation for justice ino ther venues includ ing inter nat iona l channels. Sucharticulation is also a means to access justice.

This assessment assumes that the baseline conception ofthe rule of law, which is the ‘thin’ conception, essentiallyrefers to predictability, formal equality and the preventionof the use of arbitrary power. This has value in itself,especially where the society and government do not meetall the requirements of democracy and human rights. Thisis not to say, however, that the rule of law is confined tothe ‘thin’ conception. It is critical to examine the widerva lues o f r i ght s, such as the r i ght t o par t i c ipat e(democracy) , and human r i ght s as enshr i ned i ninternational instruments and to which the Philippinesformally subscribes. Shuttling between the ‘thin’ and the‘thick ’ conceptions of the rule of law and considering



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access to justice should allow this assessment to establishthe performance of democracy—both its gains and itsdeficits. And given such, the assessment hopes to promoteadherence t o human r i ghts and democracy and t ostrengthen the rule of law.

Overall, this assessment emphasizes the need to adopt anends-based approach and not just an inst itut ion-basedapproach to the examinat ion of the rule of law. T hisassessment assumes the presence of:

1. Laws. That there are publicly promulgated laws, thatthe laws are consistent (not conflicting, or in case ofconfl icts, to discover the cause and extent of suchconflicts), practicable, intelligible (accessible to enforcersand to those affected), well publicized and widely known,and no t t oo f requent l y changeable o r w ide l ydiscret ionary. F innis (1980: 270) enumerates eightprinciples of laws: (a) rules are prospective, (b) possibleto comply with, (c) promulgated, (d) clear, (e) coherentwith one another, (f) sufficiently stable, (g) the makingof decrees is limited, and (h) officials are accountablefor compliance with the rules, government sub lege.

John Rawls in his A T heory of Justice (1993) says thatlaws have the following requirements: ought implies can,similar cases are to be treated similarly, the principal oflegality in criminal law, and fair trial.

The overlap in these principles of laws is further stated byRaz (1979) namely, that laws should be prospective, openand clear, and relat ively stable; that there must be anindependent judiciary; that a fair trial must be guaranteed;that courts must be accessible; that courts must have thepower to review the implementation of other principles;and that the discretion of crime-preventing agencies shouldnot be allowed to pervert the law.

Thus, if the laws are meant to rule, then they must besuch that it should not be impossible to oblige people toobey them. Further, laws should be clear and determinatein meaning , must be adequately publ ished and madeaccessible to all they address; that once laws are made

and implemented, they cannot be changed too often; andthat laws have to be applicable to all classes of persons,acts, and circumstances, rather than take the form ofspecific decrees aimed at particular persons and situations.

2. Judiciary. The judiciary interprets and resolves disputesnot only among citizens but also between governmentand citizens. Thus, it is essential that the judiciary ispolitically independent. Further, a fair trial means thatthere must be a fair and open hearing, an absence ofbias, and a reasonable per iod within which a case isheard and decided. T his also entails an independentlegal profession that is empowered and w i l l ing toprov ide lega l ser v ice. Last ly, the cour ts must beaccessible, which means that the financial costs (in termsof court fees and lawyer fees) must be within the reacho f o rd i nar y people . P rosecut o rs mus t a lso beindependent of the government apparatus.

One may say that these principles are Western and thatthe ‘thin’ conception of the rule of law is not sufficient,especially in a developing country. For example, a non-Western form of dispute resolut ion may ex ist that ispossibly better or equally qualified to resolve disputes inan independent and impartial manner. Nevertheless, this‘thin’ conception of the rule of law is a good starting point.T he extensive and substant ive ideals have to do withhuman rights. A lso, the assumption of the ‘thin’ conceptionis that it entails access to justice. If people do not havethe means t o in i t i at e lega l proceed i ngs o r de f endthemselves in court, then the rule of law is problematicas the law does not offer equal protection to everyone.

3. Conditions of the rule of law. These pertain to thenature of the rules, to the institutions that create andapply the rules, and to the economic, cultural , andpolitical context of these rules. It is therefore importantthat the condit ions of the rule of law examine theeconomic, pol it ical and cultural condit ions that mayaffect its promotion. The conditions have to do withthe shared va lues and bel ie fs, includ ing habi t andcommitment, as to how rules and institutions function.Carothers (2006: 20) says that ‘law is not just the sum



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of courts, legislatures, pol ice, prosecutors, and otherformal institutions with some direct connection to thelaw. Law is a normative system that resides in the mindsof the citizens of a society.’ In some instances, and thismay hold true in the Phi l ippines, cul ture is moreimportant than institutions—when social and politicalcultures put a premium on the rule of law, the ends ofthe rule o f law may be uphe ld even i f there areweaknesses in the institutional arrangements. On theo ther hand, an obst inate cul ture and po l i t ics canundermine the best crafted and most articulate rules,and the rules merely become window dressing.

Condit ions of the rule of law also include the people’strust, or the lack of it, in the courts or, more generally, inthe whole legal system. It is easier to forge informal dealswith fr iends who trust each other than go through anuntrustworthy formal process. Certainly the relationshipand interaction between rules and culture are complex;nevertheless, the assessment cannot dismiss the importanceand effect of conditions of the rule on law on institutions,or vice versa. T rust, confidence and the perceptions whichreflect the people’s trust and confidence in the rule of lawand inst i tut ions are thus g iven pr ime importance bycountries that assess democracy based on the rule of law.One example is Ecuador. In its assessment of the rule oflaw and jus t ice , E cuado r put s emphas i s on publ i cpercept ions about the pi l lar o f just ice and the pol ice(Seligson 2004). T he presumpt ion here is that people’sperceptions and their trust in the institutions of law andjustice are at the core of how these institutions are expectedto per f orm . O ne may say that percept i ons are no tnecessar ily true because they (the percept ions) are thesub ject ive v iews o f people about thei r inst i tut ions.Never theless, these images and perceptions are facts—realit ies that ex ist in people’s minds, products of theirobservat ions, exper iences (albeit l im ited), hopes andexpectations. Thus, perceptions are important in that theydo reflect a slice of reality.

The relat ionship between a country’s level of economicdevelopment and the rule of law is also an issue. Does the

rule of law cost money and does it presuppose a certaindegree of economic development? Is the rule of law aprerequisite to economic development or does the rule oflaw contr ibute to deve lopment? Some inter nat iona lorganisations believe that the rule of law contributes toeconomic development but there is no clear consensus onthis. T he United N at ions O ff ice on D rugs and Cr ime(U N O D C), one o f the U N ’s impor tant commissions,emphasizes the significance of the rule of law—that it iscrucial to the attainment of the M illennium DevelopmentGoals (M D G). Antonio Maria Costa (2008), head of theU N O DC , claims that the rule of law should, in fact, beone of the goals of the M D G and should be a means toachieve them. He says that justice and stability, otherwiseknown as the rule of law, is a foundat ion upon whichother development goals can be built, and that there is acorrelation between rule of law performance and socio-economic performance. In countries where there is crimeand corruption, and where government cannot take controlof the land, either the poor cannot get access to servicesor serv ices get delayed. Costa further says, ‘(P)oorlygoverned countries are the most vulnerable to crime, andpay the highest pr ice in terms of erosion of social andhuman capital , loss of domest ic sav ings, reduct ion offo re ign investment , wh i te-co l lar e xodus, increasedinstability, and faltering democracy’ (Costa 2008: http: // www.unodc.org / unodc / en / frontpage / rule-o f-law-a-missing-mil lennium-development-goal .html). A lthoughthere appears to be an open-ended discussion on the ruleof law and development within the circle of internationalorganisations, there is a strong inclination toward the viewthat the rule of law is complex and that there is a causalrelationship between justice, stability and social-economicdevelopment.

This assessment recognizes the importance of traversingthrough international legal instruments, including specificmeasures such as human rights institutions, investigationprog rams, fact-f ind ing comm iss ions and reparat ionprograms, and examining the practices related to these.T he accountabi l ity of var ious inst itut ions and bodiesrelated to these instruments is quite important to the rule



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of law. It is also crucial to strengthening and restoringpeople ’s conf idence in the r ule o f law. A ga i n , thedispensation of justice is both an institutional as well asan end goal of the rule of law. Accountability is also amatter of governance in which institutions, agencies andpersons are expected to explain their actions relative topromulgated laws and human rights norms. In this regard,it may be necessary to br ing into the assessment thecont r ibut i ons o f non-s t a t e ac t o rs such as non-governmental organisations, media, citizens’ groups andacademe to the strengthening of the rule of law, eitherthrough the institutions of law and judiciary, or throughthe ‘thick’ conception of human r ights and democraticvalues.

There seems to be only a limited number of studies onhow international instruments contribute to or constrainthe rule of law at the national level.

I t is a lso impor tant to ask i f there is an emerg ingconsensus on the nat ion’s def init ion of the rule of lawamong researchers, practitioners and the public at large.Such a consensus is essential in the pursuit of the rule oflaw.

The assessment asks questions regarding the pursuit ofan i nc lus i ve democr acy, as : A re st at e and soci e t yconsistently subject to the law? The assessment al lowsfor the relative degree to which the values of democracyare realized and to which institutions contribute. Theseare handled by questions that ask: To what extent is therule of law operat ionalized? What measures have beentaken to remedy the problems of the rule of law and accessto justice?

1.1.1 More about the Conditions of the Rule of LawAs earlier stated, people’s perceptions about the rule oflaw, specifically about the institutions of justice and thosei nvo l ved i n the jus t i ce sys t em , cont r ibut e t o anunderstanding of the condit ions of the rule of law. In2008, the A lternative Law Groups (A LG) and the pollingagency Social Weather Stations (SWS) conducted a survey

on access to justice by the poor. It was also intended tomeasure the extent to which a non-governmental groupsuch as the A LG makes a difference in the advocacy forjustice reform. In the survey, a wide range of questionswere asked regarding marginalized groups’ perceptionsabout the justice system; whether they had knowledge ofthe law, of justice, and of the procedural aspects of thecour t s ; and whe the r the y pe rce i ved a s i gn i f i cantimprovement in the performance of the justice systemover the past five years. The responses to these questionsare interesting in that they reflect the level of people’sconfidence in the justice institutions, their expectations ofaccess to justice and their hope of gaining various otherrights in a democracy. The survey results were validatedby several focus group discussions held later. The detailsof this study are d iscussed in chapter f ive on publ icperceptions on the judicial and other justice institutions.

Var ious other surveys were conducted by SW S in the1990s (variably from 1991 to 1996) regarding people’sperceptions on the police, on civil servants and the civilserv ice, on the judiciary and on conf idence in publ icinst i tut i ons, wh i ch enabled the compar ison o f ne tconfidence in institutions in the Philippines with similardata from other countries. Follow up surveys were doneon an irregular basis depending on the interest of agenciesto commission these surveys. The latest survey on people’strust and confidence in governance institutions, includingthe courts, the Ombudsman, and other pillars of justice,was conducted in 2008.

For this assessment, SWS was asked to run a small surveyon people’s perceptions on the rule of law and access tojustice. The quest ions asked were focused on people’spercept ions and exper ience in the performance of thejustice institutions, the accessibility of people to justice,and what measures might be needed to strengthen judicialreforms.

The schema for the assessment framework of the rule oflaw and access to justice conception is presented in figure1.1 below.



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Figure 1.1 Framework of the assessment on the rule of law,access to justice, and democracy

1.2 Parameters of the Assessment and MethodologyThe assessment ’s reference period is 1986, or since thetime of the people power revolution that toppled FerdinandMarcos and brought Corazon Aquino to the presidency.Aquino restored the institutions of democracy, such asCongress, the Supreme Court and the Commission onElections, which Marcos had closed down during his reign.A qu i no appo i nt ed a mul t i-sec t o ra l cons t i tut i ona lconvention that drafted the 1987 Philippine constitution,wh ich rede f i ned the pr i nciples and parame t e rs o fdemocracy.

This assessment examines the rule of law and access tojust ice based upon the democratic inst itut ions def inedunder the 1987 constitution. It then focuses on the Arroyoadministrat ion as the pr incipal agency that const itutesthe so-called condition of the rule of law.

Gloria Macapagal Arroyo assumed the presidency whenanother people power revolt instigated by some urban,reform-or iented F il ipinos forced then President JosephEstrada to step down in 2001 on allegations of corruptionand a failure to lead. As Estrada’s vice president, Arroyosucceeded the toppled leader. T he pol it ical and legalci rcumstances o f that leadersh ip change have beenquestioned by not a few F ilipinos, including scholars ofdemocracy. While people power may be considered a formof direct democracy, this manner of leadership changeoutside of the prescr ibed electoral process ref lects anaberration in the functioning of the institutions and therule of law. Such an aberration is even more disturbingwhen one th i nks about the absence o f a prope rimpeachment procedure—ac tua l l y, a un i f i edunde rs t and i ng among the membe rs o f the Sena t eregarding the proper impeachment procedure during theEstrada administrat ion—a precondition for leadershipchange under the constitution.

As if such a pol it ical cr isis were not enough, Arroyo’ssubsequent victory in the 2004 elections was allegedlyaccomplished through the manipulation and influencingof the electoral exercise. A rroyo’s reign has also beencharacter ized as being high-handed, what w i th herdeclaration of a calibrated pre-emptive response (CPR)in 2005 and later with the issuance of Executive OrderNo. 464, both instruments designed to quash protests thatthe President said were part of attempts to oust her. Theexecutive order was trashed by the Supreme Court whichjudged it to be def icient . A rroyo continuously rates, inmany surveys and publ ic op inion pol ls, as the mostunpopular president the Phi l ippines have ever had. Inthe last two years, this unpopularity has been stoked bya l legat ions o f cor rupt ion and a t t empt s t o co r ruptinstitutions such as the Commission on E lections and the

END GOALSof

LAW

END GOALS ofHuman Rights

Democracy

Framework

MediatingValues

- Representation- Responsiveness- Participation- Accessibility- Equal Treatment to all

1. Rule of Law(Presence of Institutions)- Laws- Judiciary- Conditions of Rule of Law

(normative system)- Politics- Culture and Education- Habit and Commitment- Economics- People’s Perceptions- Human Security

- Transparency andAccountabilty

2. Access to Justice(Basic Sectors)- Affordability of court proceedings- Efficiency- Responsiveness- Intelligibility of proceedings

(Language used in courtproceedings)

- Mechanisms of information forcitizens

- Respect for and recognition ofindigenous justice system (ethnicity,religion, gender, class, etc.)

- Predictability of rules- Clarity- Not frequently

changed- Limits of power &

discretion- Accountability and

Transparency- Independence



14 15

Supreme Court, bodies that are supposedly independentfrom the executive branch. Congress’ autonomy has alsobeen compromised with the executive branch using itspower to release funds to leverage the adoption of favouredand favourable legislation, including a charter change billthat, many suspect, is part of Arroyo’s plan to stay on aspres ident . T hese impropr iet ies have caused many toquest ion the legit imacy of the A rroyo administrat ion.These perceptions, whether right or wrong, constitute areality that reflects people’s level of trust and confidencein the leadership and in government institutions.

The assessment heavily relies on documentary review andanalysis of histor ical notes and various agency recordson inst itutional performance related to the rule of lawand access to justice. The opinions of experts, these beingpeople who have a track record in the practice of law andjustice, including legal experts, justices, law enforcers aswell as legal advocates from the non governmental sector,are other sources of data and information. Case studiesshowcase the performance o f these pr inciples in thePhi lippine context. Init ial findings were val idated in aseries of focus group discussions among expert actors andrepresent a t i ves o f o rgan i sa t i ons and ne t wo r ksknowledgeable of the rule of law and access to justice.

Publ i c pe rcept i on and con f idence i n i ns t i tut i ons,authorities and personnel, as well as in the justice systemwere gauged through surveys. A compar ison o f theperceptions of legal experts and of ordinary people wasmade in order to show the extent of progress achieved inrealizing the rule of law and access to justice. People’sperception of the accountability of public institutions andauthorities and the equal application of the laws was alsoinvestigated.

Indicative benchmarks of the rule of law and access tojust ice were adopted by pos ing the fol low ing searchquestions:

1. To what extent are public officials subject to the ruleof law and to transparent rules in the performanceof their functions?

2. Is there a system of checks and balance among thebranches of government?

3. Are there rules, institutions and mechanisms to makepublic officials accountable in the exercise of theirfunctions?

4. How effective are the checks and balance andaccountability mechanisms in practice?

5. How independent are the courts and the judiciaryfrom the executive, and how free are they from allkinds of interference?

6. How equal and secure is the access of citizens tojustice, to due process and to redress in the event ofmaladministration? Are there laws guaranteeingequal treatment of citizens in the justice system?

7. Are there laws providing special protection forvulnerable groups?

8. Are there laws and rules providing legal remediesand procedures equally applicable to all citizens? Arethere laws that discriminate, directly or indirectly,against vulnerable groups?

9. Is the justice system in general accessible to allcitizens, and especially to vulnerable groups needingprotection?

10. How far do the criminal justice and penal systemsobserve due process in their operations? How far dothe criminal justice and penal systems provide rulesof impartial and equitable treatment? Is the criminaljustice system working equally for both poor andrich litigants?

11. How is local counter-terrorism and anti-insurgencypractice conditioning the rule of law and to whatextent has the global war on terror influenced locallaws and practices?

12. Are the same laws applied to both counter-terrorismand insurgency, or are there different laws associatedwith each or is existing criminal legislation simplyappl ied?

13. What are the implications of terrorism andinsurgency for territorial coverage of the law?

14. What are the implications of the active presence ofactive armed/ violent groups for local officials andtheir accountabilities to citizens?



16 17

15. What are the implications for the protection ofcitizens’ rights to life, property, basic needs and socialservices using the rule of law?

16. What are the implications of terrorism andinsurgency for the conduct of judicial processes?

17. What role do international rules on the conduct ofwar play in the conduct of counter-insurgency andcounter-terrorism operations? Are such rules legallyenforced and consistently applied? What mechanismsexist for their application?

18. What international instruments have the Philippinessigned up to that uphold the rule of law andguarantee citizens’ access to justice?

19. Does the Philippines adhere to these obligations inpractice in terms of: 1) processes and proceduresapplicable to citizens, 2) reporting requirements and3) monitoring by government of compliance withthese agreements?

20. What is the public perception on the judicial andother institutions? To what extent do the people trustthe judicial and other institutions such as the courts,the police and other judicial authorities?

References and further readingAlternative Law Groups, Inc. ‘Research on the Poor Accessing

Justice and the A LG as Justice Reform Advocate’, Inroads A L GStudy Series 4 (Quezon C ity: A lternative Law Groups, Inc. andSocial Weather Stations, 2008)

Arroyo, Dennis, ‘Confidence in Public Inst itutions: A Cross-Sectional Reading and a Compar ison with European Data’,Social Weather Bulletin, 92 /2 (1992)

Arroyo, Dennis, ‘Perceptions on the Judiciary: Slow Moving andCorrupt’, Social Weather Stations Bulletin, 93/13 (1993)

Buend ia, E mmanue l , ‘ D emocr at iz ing G over nance in thePhilippines: Redefining and Measur ing the State of People’sPar ticipation in Governance’, Doctoral disser tation submittedto the University of the Philippines National College of PublicAdministration and Governance, May 2001 (unpublished)

Carothers, Thomas, ‘ The Problem of Knowledge’, in ThomasCarothers (ed), Promoting the Rule of L aw Abroad: In Search ofKnow ledge ( Washington D.C .: Car neg ie E ndowment forInternational Peace, 2006), pp. 15-28

Costa, Antonio Mar ia, ‘Rule of Law : A “M issing” M illenniumDevelopment Goal’, speech at the 17th session of the UnitedNations Commission on Crime Prevention and Criminal Justicein Vienna, 15 Apr il 2008, available at <http: / /www.unodc.org /unodc / en / frontpage / ru le-of-law-a-missing-mi l lennium-development-goal.html> , accessed on 12 February 2009

Dworkin, Ronald, A Matter of Principle (Cambr idge, M A: HarvardUniversity Press, 1985)

F innis, John, N atural L aw and N atural Rights (Oxford: OxfordUniversity Press, 1980)

Gallie, Walter Bryce, ‘Essentially Contested Concepts’, Proceedingsof the Aristotelian Society, 56 (1956), pp. 167-98

Hague Institute for the Internationalisation of Law, ‘Rule of LawInventory Report’, D iscussion paper for the high level expertmeeting on the rule of law, 20 Apr il 2007, available at < http: // www.h i i l .org / assets / 287 / 1-8641-h i i l_n835_v2_ru le_of_law_inventory_report_2007.pdf > , accessed on 19 March2009

Kleinfeld Belton, Rachel, ‘Competing Definitions of the Rule ofLaw: Implications for Practitioners’, Democracy and Rule of L awProject, Carnegie Endowment for International Peace, 55 (January2005), avai lable at <http: / / www.carnegieendowment .org /files / cp55.belton.final.pdf > , accessed on 26 October 2009

Lopez, Ma. G lenda S., ‘Public Opinion of the Police: Only a FewGood Men’, Social Weather Bulletin, 93/22 (1993)

Rawls, John, A Theory of Justice, (Oxford: Oxford University Press,1999)

Raz, Joseph, T he Authority of L aw: Essays on L aw and Morality(Oxford: Oxford University Press, 1979)



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Institutions

2.1 Public Officials and the Rule of LawTo what extent are public officials subject to the ruleof law and to transparent rules in the performance oftheir functions?

The latest inventory of government personnel conductedby the C iv il Serv ice Commission (2004) reports a totalof 1,313,538 officials and employees deployed across thecountry ’s central and local governments as well as atgovernment-owned and controlled corporations (GOCCs).The central government accounts for 832,676 of the totalpersonnel , the local governments for 381,502; and theG OCCs for the remaining 99,360.

T hese publ ic off icials and employees are by def init ionsubject to the rule of law. They hold public office thatexists by virtue of a constitutional or statutory provisioncreating or authorizing it. Such constitutional or statutorysource fixes the public official’s right, authority and dutyto perform a defined governmental function. The real testof the operation of the rule of law, however, is whetherthere are mechanisms meant to check excesses and to exactaccountability in the exercise of such function, and whetherthese are effective in practice.

2

Seligson, M itchell, Democracy Audit: Ecuador 2001 (Pittsburgh, PA:U nivers ity of P it tsburgh, 2004) , avai lable at < ht tp: / /sitemason.vanderbilt.edu / files / gzE IaQ / Democracy%20Audit%20Ecuador%202004.pdf > , accessed on 26 October 2009

Social Weather Stations, ‘Marginal Results: Public Opinion Surveyon Courts’, in SWS May 28-June 4, 2003 N ationa l Survey(pamphlet)

Tamanaha, Br ian Z ., On the Rule of L aw: H istory, Politics, T heory(Cambr idge: Cambr idge University Press, 2006)


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2.1.1 Mutual Checks and BalanceIs there a system of checks and balance among thebranches of government?

The structure of the Philippine government is based onthe principles of separation of powers and of checks andbalances. By separation of powers is meant the powers ofgovernment are allocated among three branches, namely,the executive, the legislature, and the judiciary. The aimis to de-concentrate governmental power from any singleentity or branch as a mechanism to prevent the abuse ofgovernmental powers and author it y. In the words ofSupreme Court Justice Jose P. Laurel in the 1940 case ofPangasinan T ransportation vs. Public Service Commission(Supreme Court 1940), ‘( T )he theory of the separationof powers is designed by its originators to secure actionand at the same t ime to foresta l l over act ion whichnecessarily results from undue concentration of powers,and thereby obtain eff iciency and prevent despot ism.Thereby, the “rule of law” was established which narrowsthe range of governmental action and makes it subject tocontrol by certain legal devices.’

The 1987 constitution allocates the legislative power, orthe authority to make laws and to alter and repeal them,to the Congress of the Philippines. Congress consists of aSenate and a House of Representat ives. The executivepower, or the power to execute or enforce laws, is vestedin a president. In the exercise of this power, the presidentis assisted by, or acts through, the extensive executivebureaucracy under his or her control . F inal ly, judicialpower, or the authority to settle disputes involving legalrights, is vested in one Supreme Court and in the lowercourts established by law.

While supreme in the exercise of their respective powers,these branches must conform to a system of checks andbalances as provided by the const itution. T his systemprov ides points of contact between branches throughwhich one branch can check the others in the exercise ofthei r al located powers. Among the major checks andbalances provided by the constitution are the following:

T he pres ident ’s ve to pow er. T he cons t i tut i on ves tedleg islat ive power in Congress in a very genera l way.Article V I, section 1 of the 1987 constitution states: ‘ Thelegislative power shall be vested in the Congress of thePhilippines, which shall consist of a Senate and a Houseof Representatives, except to the extent reserved to thepeople by the prov ision on init iat ive and referendum.’Jurisprudence has given this power a very wide scope, sothat any power deemed to be leg islat ive by usage ort rad i t ion is comprehended w i thin leg is lat ive power,subject only to limitations provided by the constitutionitself.

But for al l the plenary leg islat ive power of Congress,principally the power to enact laws and to alter or repealthem, its exercise is subject to check by the executive.Every bill passed by Congress needs to be presented tothe president for his or her approval before it becomeslaw. If the president does not approve, he or she shallveto the bill and return it to Congress along with his orher objections. The president’s veto may be overturnedonly by a vote of two-thirds of all the members of theHouse of Representatives as well as of the Senate, votingseparately.

Checks on martial law powers. The 1987 constitution waswritten right after the successful people power revolutionthat ousted the dictatorship of Ferdinand Marcos. Whatfacilitated the dictatorship was the proclamation in 1972of mar t ial law, which concentrated in then PresidentMarcos vast military, legislative and even judicial powers.T wo paragraphs of the proclamat ion embody ing thesweeping arrogation of such powers are worth quoting:

N OW, T H ERE F ORE , I , F ERDI NA N D E . M ARCOS,President of the Philippines, by virtue of the powersvested upon me by Article V I I , Section 10, Paragraph(2) of the Const itut ion, do hereby place the entirePhil ippines as defined in Article I , Section 1 of theConstitution under martial law and, in my capacity astheir commander-in-chief, do hereby command thearmed forces of the Philippines, to maintain law and

I ns t i t u t i o ns


22 23

order throughout the Philippines, prevent or suppressal l forms of lawless v io lence as wel l as any act ofinsurrection or rebellion and to enforce obedience to allthe law s and decrees, o rder s and regulat i onspromulgated by me personally or upon my direction.

In addition, I do hereby order that all persons presentlydetained, as well as all others who may hereafter besimilarly detained for the crimes of insurrection orrebellion, and all other crimes and offences committedin furtherance or on the occasion thereof, or incidentthereto, or in connection therewith, for crimes againstnational security and the law of nations, crimes againstpublic order, crimes involving usurpation of authority,rank, title and improper use of names, uniforms andinsignia, crimes committed by public officers, and forsuch other crimes as will be enumerated in Orders thatI shall subsequently promulgate, as well as crimes as aconsequence of any violation of any decree, order orregula t i on promulgated by me persona l l y o rpromulgated upon my direction shall be kept underdetention until otherwise ordered released by me or bymy duly designated representative. (Marcos 1972)

The source of the authority to declare martial law wasfound in article V I I, section 10 (2) of the 1935 constitution.This states in part that ‘(I)n case of invasion, insurrection,or rebellion, or imminent danger thereof, when the publicsafety requires it, he may suspend the privi lege of thewrit of habeas corpus, or place the Philippines or any partthereof under martial law.’

The 1987 constitution introduced a number of significantchecks on the exercise of this power. F irst, the groundsfor the suspension of the writ or the declaration of martiallaw are now l imited to actual invasion and rebel l ionthrough the removal of the phrase ‘or imminent dangerthereof ’. Second, the init ial suspension or declarat ioncannot exceed a period of 60 days. In addition, Congressmay revoke a suspension or declaration by a vote of atleast a major i ty o f bo th houses vo t ing joint ly. T h isrevocat ion by Cong ress canno t be se t as ide by the

pres ident . T h i rd , onl y C ongress may e x t end theproclamat ion or suspension beyond the init ial 60 daysperiod upon a similar vote of at least a majority of bothhouses voting jointly, upon the initiative of the president.Fourth, the Supreme Court may review the sufficiency ofthe factual basis of the proclamation or suspension in anappropriate proceeding filed by any citizen, which mustbe decided w ithin thirty days from its f iling . F ifth, theconstitution now expressly provides that a state of martiallaw does not suspend the operat ion of the const itut ionnor supplant the funct ion i ng o f the civ i l courts orleg islat ive assemblies nor authorize the conferment ofjurisdiction on military courts and agencies over civilianswhere civil courts are able to function nor automaticallysuspend the privilege of the writ. F inally, the suspensionof the privi lege of the writ shall apply only to personsjudicially charged for rebellion or offences inherent in ordirectly connected with invasion. Any person detained orarrested for these offences must be judicial ly chargedwithin three days; otherwise he or she must be released.

Budget proposal, appropriation and execution. Every year thegovernment manages a huge amount of financial resourcesfor the implementation of its projects, the provision ofservices, and the operation of the bureaucracy. Because ofthe magnitude of such financial resources, of the impact oftheir allocation on economic performance and on equityand quality of services, and of the constant dangers ofunwise or irregular use, the constitution tries to providelimitations and checks and balances throughout the budgetprocess. Thus, while the executive, in the execution of laws,is inevitably given authority to disburse or to pay out thebiggest proportion of the government budget, it can onlydo so if supported by an appropriation made by Congress.But this power of Congress to appropr iate the ent iregover nment budge t by law (ca l led the G ene ra lA ppropr ia t i ons A ct ) is i t se l f sub ject to numerouslimitations, including checks-and-balance by the president.For one, Congress may not increase the appropriationsrecommended by the president as specified in the budget.For another, the president has the power to veto anypart icular item or items in an appropr iat ion. Should



24 25

Congress fail to pass the general appropriations bill for theincoming fiscal year, the general appropriations law for thepreceding fiscal year is deemed re-enacted and shall remainin force until the new bill is passed.

As an additional safeguard, the constitution also createdthe Commission on Audit, an independent body with thepower and duty to examine and audit all revenue andexpenditure accounts of the government. Part of its auditpower is the authority to promulgate regulations for theprevention and disal lowance of irregular, unnecessary,excessive, extravagant or unconscionable expenditures oruses of government funds and property.

Senate concurrence on treaties and international agreements.T he pres ident exercises a very w ide d iscre t ion andauthority over the conduct of the country’s foreign affairs.The Supreme Court (2000) opines that, ‘by constitutionalfiat and by the intrinsic nature of his office, the President,as head of State, is the sole organ and author ity in theexternal affairs of the country’ and that ‘his dominancein the field of foreign relat ions is conceded.’ Sti l l, theconstitution provides some checks in the exercise of thepresident’s prerogatives over foreign affairs. For one, notreat y or inter nat ional ag reement sha l l be va l id andeffective unless concurred in by at least two-thirds of allthe members of the Senate. The Supreme Court also hasthe power to declare a treaty and international or executiveagreement unconstitutional.

Checks on presidential power to appoint. The president’s powerto appoint a person to public office is in itself a check onthe legislature’s power to create such publ ic office. Increat ing a public office, Congress can only go as far asprescribing the powers of the office and the qualificationsfor the position, but not identify the person to be appointedor to make the appointment itself. That power, the SupremeCourt holds, is ‘the exclusive prerogative of the President,upon which no limitations may be imposed by Congress’,although the constitution allows Congress to vest, by law,the appointment of officers lower in rank not just uponthe president alone, but also in the courts, or in the headsof departments, agencies, commissions or boards.

However, the constitution has provided for a congressionalcheck on appointments of officials at the highest levels ofgover nment . T he appo intment o f the heads o f thee xecut i ve depar tment s, ambassado r s, o the r publ i cministers and consuls, officers of the armed forces fromthe rank of colonel or naval captain, and officers whoseappointment is vested in the president by the constitution(such as the commissioners of constitutional commissions),require the consent of a Commission on Appointments.The Commission on Appointments consists of the SenatePresident, twelve senators and twelve members of theHouse of Representat ives. T he conf i rmat ion processprovides Congress the opportunity to examine the merit,fitness and qualifications of nominees for key executiveand military positions.

For appointments to the judiciary, while the constitutionexpressly vests upon the president the power to appoint,it instituted the check of requir ing the appointment toonly come from a list of at least three nominees preparedby a Judicial and Bar Council to fill every vacancy. TheJudicial and Bar Council is under the supervision of theSupreme Court, and is composed of the Chief Justice ase x o f f icio cha i rman, the Secre tar y o f Just ice and arepresentat ive o f Cong ress as ex off icio members, arepresentative of the Integrated Bar, a professor of law, are t i red membe r o f the Supreme C our t , and arepresentative of the private sector.

L egislative inquiry and question hour. The Senate or the Houseof Representatives or any of its committees may conductinquiries in aid of legislation. They may also request theheads of departments to appear before them and be heardon any matter pertaining to their departments. However,being the h ighest o f f icia l o f a co-equa l branch , thepresident is by long-standing custom beyond the reachof this power and prerogative. The check is not availabled irect ly, but only indi rect ly through the pres ident ’ssubordinates.

The prerogative to request the heads of departments toappear in order to e l ici t informat ion const i tutes anovers ight funct ion o f Congress w i th respect to the



26 27

executive. But in keeping with the system of separationof powers, Congress may only ‘request’, and appearanceis discret ionary on the par t of depar tment heads. Incont rast , when the inqui ry is ‘ in aid of leg is lat ion ’ ,appearance is compulsory w ith an at tendant power topunish for contempt for non-appearance. To be ‘in aid oflegislation’, the inquiry must be material or necessary tothe exercise of a power vested by the const itut ion inCongress, such as to legislate.

Judicial review. The judiciary has the power to check theother departments through the exercise of its power ofjudicial review.

2.1.2 Accountability of Public OfficialsAre there rules, institutions and mechanisms to makepublic officials accountable in the exercise of theirfunctions?

The system of checks and balance are meant to confinepublic officials in one branch of government to the limitsof their rights, duties, power and authority through theactions of the other branches of government. It is alsomeant to cor rect actions inconsistent with such rights,duties, power and authority. What about the public officer’saccount ab i l i t y, that i s, h i s o r he r respons ib i l i t y,answerability or liability for wrongful action?

Constitutional Mechanisms for AccountabilityThe 1987 constitution is replete with provisions dealingwith government accountability. It devotes article X I tothe Accountability of Public O fficers, which enshrines theprinciple that public office is a public trust.

Impeachment . O ne mechanism under ar t icle X I is theremoval of certain high rank ing publ ic off icials—thepresident, vice-president, members of the Supreme Court,membe r s o f cons t i tut i ona l comm i ss i ons, and theOmbudsman—through the process of impeachment. Thegrounds for impeachment are culpable violation of theconstitution, treason, bribery, graft and corruption, otherhigh crimes, or betrayal of public t rust. The exclusive

power to initiate all cases of impeachment is lodged in theHouse of Representatives. The Senate, on the other hand,has the so le powe r t o t r y and decide a l l cases o fimpeachment. When it is the president on trial, the ChiefJustice of the Supreme Court presides but does not vote.

Office of the Ombudsman. Article X I also created the powerfuland independent O ffice of the Ombudsman, composed ofthe Ombudsman, one overall deputy, at least one deputyeach for Luzon, V isayas and M indanao, and such officialsappointed by the Ombudsman according to the civil servicelaw. T he O ff ice of the Ombudsman has the power toinvestigate on its own, or on complaint by any person,any act or omission by any public official, employee, officeor agency that appears to be illegal, unjust, improper orinefficient. Should it find a public official to be at fault, ithas the power to direct the taking of appropriate actionand recommend removal , suspension, demot ion, f ine,censure or prosecution.

T he Sandiganbayan. A r t icle X I , Sect ion 4 of the 1987constitution retained the then already existing anti-graftcourt known as the Sandiganbayan. It is a special courtthat has jurisdiction over criminal and civil cases involvinggraft and corrupt practices and other offences committedby publ ic o f f icers and employees, includ ing those ingovernment-owned or controlled corporations, in relationto their office.

T he Civi l Service Commission. Among the independentcommissions created by the 1987 constitution under articleI X is the C ivil Service Commission (CSC). The CSC is thecentral personnel agency of the government , w ith themandate to ensure a career service based on mer it andfitness from first level positions (clerical, trades, crafts, andcus t od i a l se r v i ce pos i t i ons) , t o second le ve lpositions(professional, technical, and scientific positions upto the level of D ivision Chief) and to third level positions(Career E xecut ive Serv ice compr ising the posit ions ofUndersecretary, A ssistant Secre tary, Bureau D irector,Assistant Bureau D irector, Regional D irector, AssistantRegional D irector, Chief of Department Service, and otherofficers of equivalent rank).



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In addit ion to the constitut ional responsibil ity for theprofessionalization of the bureaucracy, the AdministrativeCode of the Philippines (Republic of the Philippines 1987)conferred on the CSC the jurisdiction to administrativelyd iscipl ine gover nment per sonne l . I t has appe l lat ejur isdict ion over al l adm inist rat ive discipl inary casesinvolving the penalty of suspension for more than 30 days,fine in an amount exceeding thirty days’ salary, demotionin rank or salary, and transfer, removal, or dismissal fromoffice. A complaint may also be filed directly with the CSC .

T he Commission on Human R ights. Article X I II (Social Justiceand Human Rights), section 17 of the 1987 constitutioncreated an independent office called the Commission onHuman Rights (CHR). The power of the CHR is principallyinvestigatory. It may investigate, on its own or on complaintby any party, all forms of human rights violations involvingcivil and political rights. In this function the constitutionhas conferred on the C HR the power to cite for contemptanyone in violation of its operational guidelines and rulesof procedure. It may grant immunity from prosecution toany person whose test imony or whose possession ofdocuments or other evidence is necessary or convenient todetermine the truth in any investigation conducted by it orunder its authority. Where human rights are threatened orviolated, it may provide appropriate legal measures for theprotect ion of human r ights of al l persons w ithin thePhi l ippines, as wel l as F i l ipinos resid ing abroad, andprovide preventive measures and legal aid services to theunderprivileged whose human rights have been violatedor need protection. It may request the assistance of anygovernment department, bureau, office or agency in theperformance of its functions.

In addition to these basic powers, the C HR has visitorialpowers over jails, prisons, or detention facilities. It is alsomandated to mon i t or the Ph i l ipp i ne gover nment ’scompliance with international treaty obligations on humanrights.

In terms of promoting human rights, the C HR is taskedw i th establ ish ing a cont inu ing program of research,

educat ion and informat ion to enhance respect for theprimacy of human rights. It may recommend to Congresseffective measures to promote human rights and to providefor compensation to victims of violations of human rightsor their families.

Dealing with Crimes Committed by Public OfficersThere are numerous laws that define certain acts of publicofficials and employees as criminal, and prescribe penaltiesfor them. The Revised Penal Code, the principal codificationof penal laws in the country, has been in force, w ithamendments, since 1 January 1932. Under Book I I (Crimesand Penalties) of this code, two titles specifically deal withcrimes relating to acts by public officials. T itle I I definescrimes against the fundamental laws of the state. Theseinclude cr imes const i tut ing arb i t rary de tent ion andexpulsion, violation of domicile, the prohibition, interruptionand dissolution of peaceful meetings, and crimes againstreligious worship. What this title penalizes are acts of publicoff icers or employees that const itute v iolat ions of keyguarantees in the Bill of Rights. T itle V II refers specificallyto crimes committed by public officers in the performanceof their duties. These include various malfeasance andmisfeasance in office such as dereliction of duty, bribery,frauds and illegal exactions and transactions, malversationof public funds or property, and infidelity of public officersin the custody of prisoners and documents.

In addition to the provisions found in the Revised PenalCode , there are numerous specia l laws de f in ing andpena l iz ing o ffences commi t ted by publ ic of f icers andemployees. One major law is Republic Act No. 3019, orthe Anti-Graft and Corrupt Practices Act. A 1960 law, itdeclares additional acts as constituting corrupt practicesby public officers. Among these practices are: requestingor recei v ing g i f ts or bene f i ts in connec t ion w i th agovernment transact ion or contract in which the publicoff icer has to intervene in an official capacity; causinginjury or giving advantage or preference in the dischargeof a publ ic off icer ’s administrat ive or off icia l funct ionthrough manifest par tiality, ev ident bad faith, or gross



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inexcusable negligence; entering on behalf of governmentinto a contract or transact ion manifest ly and grosslydisadvantageous to the government; and having financialor pecun iar y i nterest in any bus i ness, cont ract , ortransaction in which the public officer intervenes or takespart in an official capacity.

Another important law is Republic Act No. 6713, or theCode o f Conduct and E th i ca l Standards for Publ icO fficials and Employees, approved on 20 February 1989.It spells out the norms of conduct of public officials andemployees as wel l as their general obl igat ions in theper fo rmance o f thei r dut ies. Sect ion 7 o f th i s lawenumerates prohibited acts and transactions in additionto those al ready ex isting, relating to their f inancial ormater ial interests in t ransact ions as we l l as outs ideemployment. V iolations of certain obligations under theact, such as on the disclosure of assets and liabilities ofpublic officials, or the required resignation or divestmentsin private enterprise, are declared punishable.

Accountability in Local Government and the PoliceThe government agencies most proximate to the peopleare arguably the local government and the police. T helocal government units, div ided into 81 provinces, 136cit ies, 1,495 municipal it ies and 42,000 baranga y (thesmal lest administrative units) as of end 2008, prov idethe most basic governmental services at the communitylevel. These services include public health, environmentalservices and sanitation, local infrastructure, public markets,social welfare, public cemeteries, sites for police and firestations, public parks, and livelihood support services.

The 1987 constitution devotes its article X to the subjectof local government. While the president exercises generalsuperv is ion o ver i t , the const i tut ion mandated theenactment by Congress of a local government code thatprovides a decentralized local government structure. Itwas granted by the constitution the power to create itsown sources of revenues and to levy taxes, fees andcharges. I t e xercises not only e xecut ive powers butlegislative as well through local legislative bodies.

As mandated by the const itut ion, Congress passed theLocal G overnment Code (Republ ic A ct N o. 7160) inSeptember 1991. I t was signed into law the follow ingmonth. It spells out the local government structure andprovides for the qualifications, election, appointment andremoval of local government officials, as wel l as theirpowers, functions and duties. The law devolves to localgovernment units the responsibi l it ies of the nat ionalgovernment for key public goods and services, particularlyhealth, agriculture, social services and environment. Thelaw increases the f iscal powers and resources of localgove r nment s by i ncreas i ng the i r int e r na l re venueal lo tments and by expanding their tax ing powers. I tprovides for participatory planning mechanisms throughthe creation of the local health board, the local school board,and the local development council.

T he nat ional accountab i l it y mechan isms, such as theOmbudsman, the Sandiganbayan, and the various criminallaws governing public officers and employees apply equallyat the loca l gover nment leve ls. T he publ ic r ight togove r nment i n fo rmat i on a lso appl i es t o a l l loca lgovernment units.

In addit ion, the Local Government Code prov ides foradministrative disciplinary actions against elective officials.Sec t ion 60 enume rat es g rounds fo r the d iscipl i ne ,suspension or removal of elective officials.

The present Philippine National Police (PNP) is governedprincipally by a constitutional provision, as well as twolegislative acts, Republic Act Nos. 6975 and 8551. ArticleX V I (General Prov isions), section 6 of the constitutionstates that ‘(T )he State shal l establish and maintain onepolice force, which shall be national in scope and civilianin character, to be administered and control led by ana t iona l po l ice comm iss ion . T he author i t y o f loca lexecutives over the police units in their jurisdiction shallbe provided by law.’

The emphasis on a civi lian police force responds to thecountry’s experience over the mil itary character of thepol ice before the 1987 const itut ion. A t that t ime the



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national police force was the Philippine Constabulary. Ithad operational control over local police forces and wasone of the services of the Armed Forces of the Philippinesunder the supervision of the M inistry of National Defense.The Philippine Constabulary, particularly its Manila unit,the M e t ropo l i t an C ommand (popular l y known asM E T ROCO M), became notorious for its crackdown onthe pol it ical opposit ion dur ing the mar t ial law years,characterized by grave violations of human rights.

To implement the const itut ional prov ision, Congressenacted Republic Act No. 6975 (approved on 13 December1990) es t abl i sh i ng the P N P unde r a reo rgan i z edD epar tment o f the Inter ior and Loca l Gover nment(D IL G). Its declaration of policy states in part that thenational scope and civil ian character of the police forceshall be paramount , and that no element of the pol iceforce shall be military nor shall any position be occupiedby ac t i ve membe r s o f the A rmed Fo rces o f thePh i l ipp ines. T h i s law was lat e r supplemented andamended by RA 8551, or the Philippine National Policeand Reorganization Act of 1998.

Under these two laws administrative control over the PNPis lodged in a National Police Commission that is attachedto the D ILG. It is composed of a chairman, occupied exofficio by the D ILG Secretary, and four regular members,three of whom come from the civilian sector and the fourthfrom the law enforcement sector. The Chief of the PNPalso serves as ex officio member.

RA 6975 enumerates the following powers and functionsof the PNP:

1. Enforce all laws and ordinances relative to theprotection of lives and properties.

2. Maintain peace and order and take all necessarysteps to ensure public safety.

3. Investigate and prevent crimes, effect the arrest ofcriminal offenders, bring offenders to justice andassist in their prosecution.

4. Exercise the general powers to make arrest, searchand seizure in accordance with the constitution andpertinent laws.

5. Detain an arrested person for a period not beyondwhat is prescribed by law, informing the person sodetained of all his rights under the constitution.

6. Issue licenses for the possession of firearms andexplosives in accordance with law.

7. Supervise and control the training and operations ofsecurity agencies and issue licenses to operatesecurity agencies, and to security guards and privatedetectives, for the practice of their professions.

Also under RA 6975, the D ILG, through the PNP, assumedthe primary role over internal security, leaving to the ArmedForces of the Philippines (A FP) only the role of preservingexternal security except in areas where insurgents havegained a considerable foothold. Under RA 8551, however,the D IL G was relieved of the primary responsibility overinsurgency and other serious threats to national security,which reverted back to the A F P. The PNP was given only asupporting role through information gather ing and theperformance of ordinary policy functions.

In the performance of its powers and functions, the PNPis in constant contact with the people. W ith a personnelforce of 124,988 in 2007, the nat ional pol ice presencerepresents a manpower-to-population ratio of about 1:700.While tasked with enforcing all laws for the protection ofl ives and properties and the maintenance of peace andpublic order, what happens when members of the PNPthemselves commit crimes or administrative wrongdoing?

T he discussion earl ier on cr imes commit ted by publ ico f f i ce r s, and the ro le o f the O mbudsman , theSandiganbayan and the regular courts for the dispositionof such cases, apply to the PNP. Upon the f i ling of acomplaint or information against a member of the PNPfor grave felonies where the penalty is six years and oneday or more, the court shal l immediately suspend theaccused from office until the case is terminated. For theprotection of PNP personnel, government lawyers maybe authorized to provide legal assistance to a member ofthe PNP who is facing a charge arising from an incidentrelated to the performance of his or her official duty. Shoulda PNP personnel who has been suspended or terminated



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by reason of a criminal charge be acquitted, he or she isent itled to reinstatement and to payment of salary andother benefits withheld from him or her.

For administrative cases, RA 6975 as amended by RA8551, provides the basic rules. C itizens, whether naturalor juridical, may bring their complaints before the chiefsof police, city or municipal mayors or the People’s LawEnforcement Board (PL EB), depending on the gravity ofthe imposable administrative penalty as provided in theimplementing rules promulgated by the National PoliceC omm i ss i on . Fo r breaches o f i nt e r na l d i scipl i ne ,complaints shall be brought before the chiefs of police ofcit ies and municipal it ies, prov incial directors, reg ionaldirectors, or the chief of the PNP, again depending on thegravity of the imposable administrative penalties. Whenthe charge is serious and the evidence of guilt is strongor when the respondent is a recidiv ist or when therespondent is guilty of conduct unbecoming of a policeofficer, the chief of the PNP, as well as regional directors,are given authority to immediately dismiss a member ofthe PNP after due notice and summary hearings.

The People’s Law Enforcement Boards are constituted byloca l leg is lat ive bod ies to hear and decide ci t izens’complaints or cases filed before it against erring officersand members of the PNP. It serves as the central receivingent ity for any administrative complaint against officersand members of the PNP, and either hears the complaintor refers it to the proper discipl inary or adjudicatoryauthority. The law mandates a minimum of one PL EBfor every five hundred city or municipal police personneland for each of the legislative districts in a city. A PL EBis composed o f a member o f the ci t y o r mun icipa lleg islat ive body, a barangay captain, and three othermembers chosen by the local peace and order council frommembers of the community. D isciplinary actions imposedupon members of PNP are final, except when the penaltyinvolves demot ion or dismissal . W hen such penalty isimposed by the PL EB, it may be appealed to the RegionalAppellate Board of the Nat ional Police Commission ineach administrative region. When the penalty is imposed

by the chief of the PNP, it is appealed to the NationalAppellate Board of the National Police Commission.

In addition, RA 8551 created an Internal A ffairs Service,with inspection, audit, and investigatory powers over PNPpersonnel and units. It may file criminal cases against PNPmembers before the courts as ev idence war rants, andprovide assistance in the prosecution of PNP personnel,including by the O ffice of the Ombudsman.

Accountability in the MilitaryThe Armed Forces of the Philippines (A FP) is a citizen armedforce tasked with securing the sovereignty of the state andthe integrity of the national territory. It comprises of threemajor services: the Philippine Army with a total workforceof 141,261 in 2007; the Philippine A ir Force with a manpowercomplement of 17,919 in the same year; and the PhilippineNavy, with total personnel of 21,259, also for 2007.

C ivilian authority is supreme over the military, primarilyexpressed through the president as commander-in-chiefof all armed forces. The constitution also provides thateven under a state of martial law, the constitution is notsuspended, the functioning of legislative assembl ies andciv i l courts is not supplanted and mi l itary courts andagencies do not acquire jurisdiction over civilians wherecivil courts are able to function.

While intended primarily for external defence, the A F Phas retained a role in internal security w ith respect todeal ing with the insurgency and the Musl im separatiststruggle. Thus, the A F P remains present in the countryside,unde r t ak i ng co ve r t and o ve r t count e r- i nsurgencyoperations as well as civil works in communities.

In terms of accountability mechanisms, the A FP has its ownmilitary justice system under Commonwealth Act No. 408,commonly known as the Articles of War. A ll officers andsoldiers in active service are governed by such military law.While historically the civil courts have concurrent jurisdictionover A FP personnel for offences punishable under the RevisedPenal Code and special laws. President M arcos (1982)



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declared under Presidential Decree 1850 that all personssubject to military law, including members of the nationalpolice, shall be tried exclusively by courts-martial and theircases disposed of under the Articles of War.

On 20 June 1991 Republic Act No. 7055 was signed intolaw. This law strengthened civilian supremacy over themilitary by returning to the civil courts the jurisdictionover offences involving members of the A F P and otherpersons subject to military law. Under this act, membersof the A F P who commit crimes or offences penalized underthe Revised Penal Code, other special penal laws, or localgovernment ordinances shall be tried by the proper civilcourt , except when the offence, as determined beforearraignment by the civ il court, is service-connected, inwhich case the offence shall be t ried by court-martial .Service-connected crimes or offences were limited by thelaw to those defined in articles 54 to 70, articles 70 to 92and articles 95 to 97 of the Articles of War as amended.

In January 1990 the A F P created the O ffice of E thicalStandards and Public Accountability (O ESPA) as an anti-graft unit headed by the A F P vice-chief of staff. The O ESPAassumes exclusive investigative jurisdiction over activemilitary personnel and regular civilian employees of theA FP who are involved in graft cases. Its functions include:ensuring the implementation of the A FP code of ethics;collecting, analyzing, and compiling all sworn statementsof assets and liabilities of military personnel and permanentcivilian employees; receiving complaints, inquiring into andconducting overt and covert investigation on violations bymilitary and civilian personnel of the various anti-graftlaws; and evaluat ing, prosecuting, and monitoring civil,criminal, and administrative cases related to acts in violationof such laws.

For administrative discipline, the principle of commandrespons ib i l i t y appl i es. M i l i t ar y commande r s areaccountable for acts of subordinates, as he or she has theauthority to order, direct, prevent or control the acts ofsubordinates. A commander is duty bound to monitor,supervise and control the overall activities of subordinates

within his or her area of operation and is administrativelyliable for failure to take appropriate action to disciplinesubordinates. Included in the discipl inary powers of acommanding officer are the following: to take custody ofmilitary personnel who is the subject of an adverse reportindicating commission of a serious offence, and to orderan investigation of such report; to immediately order thearrest and confinement of military personnel who commit,is actually omitting or has been charged of committing agrave offence; and to promptly initiate the conduct of aninvestigation to determine the administrative liability ofpersonnel involved in illegal activities.

2.1.3 People’s Right to InformationPeople’s access to government information is an importantmechan ism for accountab i l i t y. Recogn iz ing this, theconst itut ion includes in the B i l l o f R ights a d ist inctguarantee for people to have access to gover nmentinformation. Section 7 of the Bill of Rights reads:

T he right of the people to information on matters ofpublic concern shall be recognized. Access to officialrecords, and to documents and papers per taining toofficial acts, transactions, or decisions, as well as togovernment research data used as basis for po l icydevelopment, shall be afforded the citizen, subject tolimitations as may be provided by law.

The constitution also declares that the state adopts andimplements a pol icy of full publ ic disclosure of al l itstransact ions invol v ing the publ ic interest . A r t icle I I(Declaration of Principles and State Policies), section 28 states:

Subject to reasonable conditions prescribed by law, theState adopts and implements a po licy of full publicdisclosure of all its transactions involving public interest.

The Supreme Court (2002) pointed out the link betweenthe constitutional provisions on access to information andaccountabi lity:

T hese twin provisions are also essential to hold publicofficials “at all times x x x accountable to the people,”



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for unless citizens have the proper information, theycannot hold public officials accountable for anything.A rmed w i th the r ight in format ion , ci t izens canpar t i cipate in publ ic d i scuss i ons lead ing to theformulation of government policies and their effectiveimplementation.

In addition to the twin provisions spelling out generalrights and dut ies on public access to information, thereare also specific classes of information that the constitutionrequires to be made public. Information on foreign loansobtained or guaranteed by the government shall be madeavai lable to the publ ic. T he declarat ion under oath ofassets, liabilities, and net worth by the president, the vice-president, the members of the cabinet, the Congress, theSupreme Court, the constitutional commissions and otherconstitutional offices, and officers of the armed forces withgeneral or flag rank shall be disclosed to the public in themanner prov ided by law. T he records and books o faccounts of Congress shall be preserved and be open tothe public in accordance with law.

T he Supreme Court (1987) laid down key pr inciplesgoverning the B i l l o f R ights prov ision on access toinformation. F irst, the court emphasized that the right isself-executing—it does not need legislation to be enforced.What may be provided by the legislature are reasonableconditions and limitations upon the access to be affordedwhich must be, in any case, consistent with the declaredstate policy of full public disclosure of all t ransact ionsinvolving public interest. Second, the court declared thatthe right to information is a public right. In order to bringa suit based on the right to informat ion, one need notshow a legal or special interest in the result; it is sufficientthat one is a citizen. Third, the court ruled that governmentofficials do not have the discretion to deny a request forinformat ion in the absence of a clear legal exemption.Every denial by a government agency of a request toinformation is subject to review by the courts, and in aproper case, access may be compelled by the court. Whilethe right speaks of public concern as scope of available

information, it is for the courts to decide on a case by casebasis what fal ls under it. In deciding, the Court notedthat the term ‘public concern’ embraces ‘a broad spectrumof subjects which the public may want to know, eitherbecause these directly affect their lives, or simply becausesuch matters naturally arouse the interest of an ordinarycitizen’ (Supreme Court 1987).

The Court (Supreme Court 2007) also gave an opinionon the meaning of the state policy of ‘full public disclosureof all its transact ions involv ing public interest.’ It saidthat under this policy, government agencies must discloseall steps and negotiations leading to the consummationof the transactions and contents of the perfected contract.It qualified, however, that such information must pertainto ‘definite propositions of the government,’ that is, officialrecommendations or final positions reached on the differentmatters that were the subject of negotiation.

Thus, in contrast to the provision under the Bill of Rightswhich requires that a request or demand for access todocuments and papers in a particular agency be first made,under the state policy provision there is no need to demanddisclosure as this is mandatory under the constitution.

2.2 Law Versus PracticeHow effec t ive are t he checks and balance andaccountability mechanisms in practice?

Overall, the rules defining the powers and duties of publicofficials and employees, the system of checks and balanceand the accountability mechanisms in the Philippines areable to secure a funct ioning gover nment . Subject toresource and institutional constraints as well as changingpolicy directions, there is delivery of an appreciable levelof public services and infrastructure, regulation of privateactivities, peace and security, a civil and criminal justicesystem, and basic democratic processes. However, thereare a number of negat ive outcomes that point to thecontinuing failure to effectively subject public officials tothe rule of law in the performance of their duties.



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Country’s Percentile Rank (0-100)

SINGAPORE

MALAYSIA

THAILAND

INDONESIA

PHILIPPINES

VIETNAM

0 25 50 75 100

2.2.1 Graft and CorruptionThe first glaring negative outcome is the persistence oflarge-scale graft and corruption in government. In theT ransparency Internat ional ’s Cor rupt ion Percept ionsIndex for 2009 ( T ransparency Internat ional 2009), thePhilippines scored 2.4 in degree of corruption as seen bybusiness people and country analysts, on a range fromzero (“highly corrupt”) to ten (“highly clean”). This placedthe country at 139th among all the 180 countries ranked.I ts AS E A N neighbours fared bet ter, w i th Singaporescoring 9.2 (rank 4), M alaysia 4.5 (rank 56), Thailand3.4 (rank 84), V ietnam 2.7 (rank 121), and Indonesia 2.8(rank 126).

A similar result can be gleaned from the World Bank’sControl of Corruption Indicator (World Bank 2009). Theindicator represents the percentile rank of each countryindicating the percentage of countries worldwide that ratebelow the selected country. H igher values indicate bettercontrol of corruption. T he Phil ippines registered a lowpercentile rank of 26.1 as shown in figure 2.1.

Figure 2.1 Control of corruption (2008)

Source : Char t reproduced from Wor ld Bank , G overnance M at ters 2009 :Worldwide Governance Ind icators, <http: / / info.worldbank .org / governance /wg i / sc_char t .asp >

The result of the Social Weather Stations 2008 survey ofenterpr ises on s incer i ty by gover nment agencies infighting corruption showed how dismal local perceptionson corruption were (Social Weather Stations 2008). Onlyseven agencies received ratings of moderate to good: theSoci a l Secur i t y Syst em , D epar tment o f T rade andIndus t r y, Supreme C our t , and C i t y and M un i cipa lGovernment , Depar tment of Heal th, Commission onAudit , and Department of F inance. Get t ing mediocreratings were the Department of Educat ion, the ArmedForces of the Philippines, Sandiganbayan, O ffice of theOmbudsman, T rial Courts, Senate, and the Departmentof Budget and Management. Those getting a rat ing ofpoor were the Government Serv ice Insurance System,D epar tment o f Ag r icul ture, D epar tment o f Just ice,Phil ippine N ational Police, Department of Interior andLocal Government, Phil ippine Ant i-Graft Commission,Depar tment of Env ironment and N at ional Resources,Commission on E lections, Department of T ransportationand Communications and the O ffice of the President. TheLand T ransportation O ffice, Presidential Commission onGood Government, and the House of Representatives allgot a rating of bad. F inally rounding the survey resultswere the agencies getting a rating of very bad: the Bureauof Internal Revenue, Department of Public Works andH ighways, and the Bureau of Customs.

A considerable number of survey respondents reportedhaving been asked by someone in government for a bribethe previous year on various listed transactions. As manyas 71 per cent reported having been asked for a bribe inany of the transactions listed in the survey. As to specifictransactions, 22 per cent reported having been asked fora bribe in availing of government incentives, 24 per centin collecting receivables from government, 29 per cent insupplying government with goods or services, 31 per centin complying with import regulations, including paymentof import duties, 46 percent in the assessment or paymento f i ncome t a xes, 47 pe r cent i n ge t t i ng nat i ona lgovernment permi ts and l icenses, and 49 per cent ingetting local government permits and licenses.



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Indicative of how much the country loses to corruptionare the findings by the Senate on the plunder of publicmoney through the Department of Agriculture’s programto distr ibute ferti l izers to farmers in 2004 (Phi l ippineSenate Committee on Accountabil ity of Public O ff icersand Investigations, 2009). It involved PHP728 million ingovernment funds purportedly intended to benefit farmersthrough the distribut ion of fer ti lizer, farm inputs, andfarm implements. One of the frauds that the Senate wasable to confirm in the investigation was the overpricingof liquid fertilizer. The supplier was being receipted bygovernment for PH P1,500 per bot t le when the actualsell ing pr ice was only PH P150 per bot t le. In al l , onesupplier appeared in the receipt as having sold PHP105million worth of fertilizer, when in fact the value of thesale was only about PHP12 mi llion to PHP13 mil lion.T hrough bank w ithdrawal schemes, the overpaymentwent to various entities, either personal ly pocketed bygovernment officials or fixers or used to support favouredcandidates in the elections.

In terms of procurement, the World Bank identified keycorruption risks in government procurement in the roadsector, as shown in table 2.1 (World Bank 2008).

T ABLE 2.1 Key corrupt ion r isks in government procurement

Risks Risk Description and E xamples Inherent Risk

Procurement

Col lusi on Bidders are manipulated by an ‘arranger’ Hunder the d irect ion of a patron, whofor large national or internationalcompet it ive bidd ing is typically a seniorpoli tician or el ite, and who for reg ionalor d istrict level b ids is typical ly alocal po l i t ician

B id-r igg ing Bid prices are established by the arranger, Hw ith a sufficient margin above the costestimate to pay k ickbacks to the patrons,car tel par ticipants and some off icials.

T he margin is often high, e.g., 15-36percent . T he patron often requ irespayment at the t ime of awardrecommendat ion ; other payments areusual ly made from the advance payment .

M isrepresentat ion F alsif icat ion of work history, Sof Bidder productiv i ty or f inancial records.Qual i f i cat ions

F raud F alsi f i cat ion of documents S

B id E valuat ion M an ipulat ion of b id evaluat ion is Srelat ively rare or minor under recentinternal controls, but could re-emerge;for consult ing serv ices, man ipulat ionseems common and high.

Bid Process Interference w ith bid subm ission , Ssubst i tut ion of documents orm is-reading of bid pr ices relat ivelyrare in foreign-assisted projects dueto observer controls, but may occurin locally-assisted projects & couldre-emerge.

Contract Processing Br ibes to facil i tate processing of Hcontract award and subsequentpayments are highly probable.T he approval process has mult iplelayers and extended delays occur inkey offices, e.g., legal serv ices,construct ion , execut ive, projectmanagemen t off ice.

Preferred Suppliers N om inat ion of preferred agents for Hkey contract serv ices such as bankguarantee, secur i ty, indemn ity insurance,who prov ide k ickback to project leveloff icials is common .

Contract Var iat ions T he size of some var iations is inflated Hthrough est imates of quant i t ies for payitems which are di fficult to conf irm oraudit, such as repairs, excavation,landsl ide removal, etc. U sual ly resultsfrom col lusion of contractor w i thoff icials, but may involve collusionof superv ising consultant also.



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Implementation

Qual i ty F alsi f icat ion of qual i ty control test Sresults, defect or repair inspect ions, etc.through col lusion between contractorand superv ising off icials or consultant.Incidence very dependent on par ticularindiv iduals and firms, ranging fromnegligible to modest in most foreignassisted projects, but m inor to ser iousin local ly-assisted projects.

Financial Management

Internal controls Internal control env ironment generally Sweak, e.g . cash advances not liquidated,false invoicing, double-bi ll ing, etc.

Payment Processing Cer t if icat ion of invoices for payment Mmay involve delays and br ibes to projectofficials or superv ising consultants,but this appears m inor and has notbeen reported to be a major problemin FAP.

Fund f low Weak controls on fund transfers, Hsub-al lotment adv ices, etc.

Note: H- H igh; S – Substantial; M – Moderate; N – NegligibleSource: Reproduced from World Bank, Project Appraisa l Document on aProposed L oan in the Amount of US$232 Mill ion to the Republ ic of thePhi lippines in Support of Phase 2 of the N ational Roads Improvement andManagement (A P L ) Program, Repor t No: 40764-P H , 15 April 2008, pp. 126-7

In local governments, the Local Government Academy,the training arm of the D ILG, lists the following areas tobe the most vulnerable to unethical practices by localofficials in addition to the procurement problems discussedabove (Sison 2001: 84-5):

Personnel hiring and appointments – Politicians yieldto pressure from relatives, friends, and supporters toappoint them or their protégés to governmentpositions. Some create special and confidentialpositions to circumvent the C ivil Service Law thatbans nepotism.

Enforcement of government rules and regulations –the following have been identified as the mostcommon violators of the law: businessmen, politicalleaders, and members of interest groups who areeither friends of the mayor or governor or whoeversupported his campaign. The mayor or governorcould turn a blind eye on offences committed byfriends while imposing unreasonable demands onpolitical opponents. Common violations involve:inspection of restaurants, beer gardens, hotels, saunabaths and massage parlours, food processingfactories, markets, and other establishments; issuanceof permits; enforcement of gambling laws;enforcement of laws against prostitution, child abuse,and hawking; and enforcement of zoning regulations.

Employee relations – Local officials abuse theirpower to seek personal favours from subordinates.

Personal use of government property Using inside information – Privileged access of

information, such as planned government purchasesof land, could be used for his own benefit, or that offriends, relatives, and associates.

Zoning and business direction – The exercise ofzoning authority can be used to favour certaingroups and individuals. The same is true for thegrant of incentives.

Awarding of concessions – The mayor or governorhas the authority to grant local concessions, whichcould be granted to undeserving groups andindiv iduals.

We no t e that loca l gove r nment anoma l i es i n theenforcement of rules and regulations are often done withthe participation of the police.

Corrupt ion in the mil itary was highlighted when morethan 300 junior officers and enlisted men from elite unitsof the A F P, denouncing such corruption, took-over theOakwood Premier Apartments in Ayala Center, MakatiC i ty on 27 July 2003. In its repor t , the fact f indingcommission created to investigate the incident noted thatthe event was not spontaneous and that it was part of a



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larger plan to achieve political change by military force.T he comm i ss i on acknowledged tha t some o f thegr ievances expressed by the rebel soldiers were ‘to asubstantial degree real, and not merely fictitious’ (Republicof the Phil ippines 2003: 33). Among the findings wereanomalies in the running of the Armed Forces Retirementand Separation Benefits System (RSBS or System) fundedby compulsory contributions of enlisted personnel, as wellas fraudulent practices in the A F P procurement system.These consisted of: conversion, that is, the transformingof allocated funds into cash alongside non-delivery orunder-delivery of procured goods; anomal ies in the useo f cont ingency or cent ra l l y-managed funds; r iggedbidding; purchase order splitting to fall within the signingauthority of the commander of the service unit doing theprocurement i n o rde r t o ci rcumvent procurementstandards; and leakages in the distribut ion of arms andammunition that could end up in enemy hands.

2.2.2 Human Rights ViolationsThe second negative outcome is the impunity with whichthe human rights of citizens continue to be violated bypeople in government. Everyone thought that this was ath ing o f the past af ter the toppl ing o f the M arcosdictatorship in 1986.

The increasing incidence of reported extrajudicial killingsin the country beginning in 2001 prompted the UnitedNations Special Rapporteur on extrajudicial, summary orarbitrary executions, Phillip A lston, to undertake a factfinding mission in the country in February 2007. One monthbefore the mission, an independent commission chaired byretired Supreme Court Justice Jose A . R. Melo and createdby the executive to address killings of media personnel andactivists, completed its work and submitted its report.

In its report, the Melo commission showed the followingundisputed facts (Republic of the Philippines 2007: 5-6):

An alarming rise in number of extralegal killings,and that the victims were almost entirely membersof activist groups or were media personnel.

The victims were generally unarmed, alone, or insmall groups, and were gunned down by two or moremasked or hooded assailants, oftentimes ridingmotorcycles. The assailants usually surprised thevictims in public places or their homes, and notduring any military engagements or fire fights.

C ircumstances clearly show that such killings ofactivists and media personnel were pursuant to anorchestrated plan by a group or sector with aninterest in eliminating the victims.

For the period 2001 to 2006 that the commission lookedinto, the pol ice put the figure at 111 kill ings. AmnestyInternat ional g ives a higher number at 244 whi le anact iv ist human r ights group (K arapatan) places thenumber at 724.

The A lston report (United Nations 2008) confirmed andeven expanded on the findings of the Melo commission.It categorized the extrajudicial ki llings into five k inds:killings of leftist activists, killings related to the armedconflict in M indanao, killings related to agrarian reformdisputes, killings of journalists, and killings by what hasbeen called the Davao death squads.

For the killings of activists, both the Melo commissionreport and the A lston report point to a role by the military.The Melo commission found that while the circumstantialev idence presented be fore i t was probably g ross l yinadequate to support a criminal conviction, it nonethelessemphasized that ‘it can proceed with a certain degree ofcertitude in stating that, in all probability, some elementsin the military could be responsible for the recent killingsof activists.’ The same conclusion was reached in the A lstonreport. I t related the counter-insurgency campaign tooperations that resulted in the extrajudicial execution ofleftist activists.

The Davao death squad targets a different set of victims:criminals, gang members, and street children. The A lstonreport pointed to strong indications that the practice waso ff icial ly sanct ioned. Wh i le the k i l l ing succeeded in



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limiting the presence of some kinds of criminal activities,Alston noted the high human cost of such an achievement,with, over 500 people shot or stabbed to death since 1998.

There has also been the persistence of high profile cases ofuse of excessive force by police in dealing with suspectedcr im inals. O n 17 February 2009, for instance, threesuspected car thieves were killed in an alleged shootoutwith members of the police force. A llegations of excessiveforce were made when news v ideo footage showed apol iceman in plainclothes shooting in close range whatappeared to be already motionless suspects. The incident isunder investigation by the Commission on Human Rights.

T his was not the f irst t ime that news v ideo footage hadprecipitated an inquiry by the Commission on HumanR ights on a pol ice operat ion . O n 7 N ovember 2005,three suspec ted car th ieves were a lso k i l led unders i m i l a r c i r cums t ance s. O n 26 M ay 2006 , t heCommission promulgated i ts resolut ion that forens icanalysis and f indings of fact point to the v ict ims hav ingbeen f lagged down by the pol ice, but upon stoppingwere suddenly f i red upon by the state agent s. T heC omm i ss ion conc luded tha t ‘ the ant i-car napp i ngoperat ions implemented by the pol ice operat ives on thee v e n i ng o f N o v embe r 7 , 2005 w a s f e i g ne d ,premeditated and treacherous’ (Commission on HumanR ights 2006: 35).

2.2.3 Abuse of PowersPresident Gloria Macapagal Arroyo’s presidency has beencharacterized by issuances of executive proclamations andorders containing provisions that are of highly doubtfulconstitutional or legal basis. Among these are: the policyo f ca l ibrated pre-empt ive response or CPR adoptedaround September 2005 to replace the statutory policyof max imum tolerance in handl ing publ ic assembl ies;E xecut ive O rder 464 issued on 28 September 2005prov id ing guidel ines for the appearance of execut iveofficials in legislat ive inquiries; and Proclamat ion 1017issued on 24 February 2006 declaring a state of nationalemergency.

Another area of abuse is the exercise of the president’sappoint ing powers. Kar ina Constant ino Dav id, formerchair of the C iv il Service Commission (CSC), assertedthat ‘the most impor tant reason why the governmentbureaucracy cannot funct ion professional ly is pol itics’(David 2008). The main culprit, she adds, ‘is the abuse ofpresidential discretion and the discret ionary exercise ofpresidential prerogative’ (David 2008).

Indeed at the highest level of non-career appoint ivepositions, considerations beyond fitness for the position,such as loyalty and political gratitude, generally comeinto play. But what the former CSC chief lamented wasthat such politicizing of appointments had infected eventhe top level career serv ice that should otherw ise begoverned by civil service eligibilities. The positions affectedwere those of the undersecretaries, assistant secretaries,directors, and managers that compr ise the manager ialpositions in government. O f the about 6,000 managerialpositions in government, some 3,500 were appointed bythe president. David pointed out that more than 50 percent of these presidential appointments as of 2008 werenot eligible, as table 2.2 shows.

In addition to lack of eligibility, David (2008) pointed totwo other abuses in presidential appointments—the fillingof positions in excess of the number required by law, andthe large number of retired military and police personnelappointed to government positions. She stated that therewe re mo re than s i x t y ass i s t ant secre t ar i es andundersecretaries in excess of what is provided for by law.In terms of retired mil itary and police personnel, therewere more than ninety that held key managerial positions.All of these deprived officials in the career service, whowere qualified and have been in service for most of theirprofess ional l ife, of oppor tunit ies to be promoted tomanager ia l pos i t ions. T he resul t o f these k inds o fpresidential appointments is demoral ization among thelower ranks and the intense politicization of the highestranks of the bureaucracy.



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2.2.4 Failure to Bring Wrongdoers to JusticeSt i l l ano ther negat ive outcome is the fa i lure o f theaccount ab i l i t y mechan i sms t o cons i s t ent l y br i ngperpetrators of corruption, human rights violations andother wrongdoing to justice.

For the extra-judicial killings, the Melo report noted thatthe PNP had not made much headway in solving them. It

f ound tha t out o f the 111 k i l l i ngs o f ac t i v i s t sacknowledged by the PNP for the period 2001 to 2006,only 37 had been forwarded to the proper prosecutor’soffice for preliminary investigation or filing in court.

In his follow-up report dated 29 April 2009, A lston notedthat he had seen no ev idence of a good faith effort bygovernment to address e x trajud icia l k i l l ings by themil itary (United Nat ions 2009). As of the date of thereport, there had not been a single conviction of militarypersonnel for those killings. The same failure to bring tojustice any of perpetrators of extrajudicial k ill ings wasalso true for the cases in Davao.

Specif ical ly on journal ists, the Commit tee to Pro tectJournalists (CPJ), an independent, non-profit organizationpromoting press freedom worldwide, recently released anImpunity Index (Committee to Protect Journalists 2009).Cover ing the period from 1 January 1999 through 31December 2008, the index calculated the number o funsolved journal ist murders as a percentage of eachcountry ’s populat ion. T he Phi l ippines ranked sixth inimpunity among fourteen countries that had five or moreunsolved cases, as table 2.3 shows.

O n prosecut ing cor rupt o f f icia ls, the O f f ice o f theOmbudsman has increased the conviction rate of its casesfiled with the Sandiganbayan for the period 2003 to 2007.I t a lso metes out administrat ive penal t ies, includingdemotion, reprimand, fine, suspension and dismissal fromservice. But what now undermines the credibility of theO f f i ce o f the O mbudsman i s i ts inac t i on ove r, o rmishandling of, high profile cases that could potentiallyimplicate officials at the highest levels.

2.3 Accounting for the Negative Outcomes

2.3.1 Congress Struggling with IndependenceA number of the check and balance mechanisms are lodgedin Congress. These congressional checks must be wieldedwith the requisite degree of independence for them to work.Unfortunately, the lack of mature political parties as well

Table 2.2 Top ten agencies w i th the biggest number of ineligibleundersecretar ies and assistant secretar ies according to the C iv ilServ ice Commission

AGENCY EL IG IBLE % INELIGIBLE % RA NK

D epar tment of E nergy 0 0 4 100 1

O ffice of the President 4 1 1 3 3 8 9 2

D epar tment of Just ice 1 1 3 7 8 8 3

D epar tment o f National Defense 2 2 2 7 7 8 4

D epar tment of Tour ism 2 2 9 5 7 1 5

D epar tment o f Agriculture 3 3 0 3 7 0 6

D epar tment o f Education 3 3 3 6 6 7 7

D epar tment o f Env ironment and Natural Resources 5 4 5 6 5 5 8

D epar tment of Labor and Employment 3 5 0 3 5 0 9

D epar tment of T rade and Industry 5 5 6 4 4 4 1 0

O ffice of the Press Secretary 0 0 4 100 1

Source: T able reproduced from Lorenzo, Issa and M alou Mangahas, ‘N ewCSC Chief F aces Pack of Inel ig ible Bureaucrats’ , Phil ippine Center forInvestigative Journal ism (PCIJ) Investigation, 24 Apr il 2008, accessedonl ine at < http: / / www.pci j .org / stor ies / 2008 / inel ig ible-bureaucra ts2.html >



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as the system of incentives within Congress makes it easyfor the president to capture the allegiance of a majorityof the members of Congress, particularly the lower house.

The influence starts with the determination of the Speakerof the House and the makeup of the majority. W ith amult i-party system and party-l ist representat ion, thecompos i t i on o f the ma j o r i t y i n the H ouse i s no timmediately apparent after elect ions, and requires theformat ion of all iances and coal itions. In building thismajority, the backing of the president becomes crucial asthe pres ident commands a sizeable fo l low ing among

members of Congress, not only from his or her own partybut also from new supporters looking to benef it fromenormous presidential powers. As observed by SenatorAquilino Pimentel:

Because the president is the dominant force in thenation’s political spectrum, he or she determines whichbloc or coalition of blocs becomes the majority partyin the legislature. Whoever is president, in fact, becomesa magnet that draws lawmakers from whatever partyto his or her po litical party or coal ition which thusbecomes the majority or the ruling party.

T he fact that the president has the power to create themajority in the legislature is bolstered mainly by his orher power over the purse. T his is true even if underour Const itution, it is the leg islature that enacts anational budget. T he moneys thus appropriated may,however, only be d isbursed by author i ty o f thepresident. (Pimentel 2008)

That hold by the president on Congress is sustained, ifnot even strengthened, throughout the congressional term.A Speaker of the House who cannot remain loyal to thepresident is highly likely to lose his position. That waswhat happened to Jose De Venecia when his son accusedthe president’s husband, M ike Arroyo, of involvement ina br ibery scandal over a government contract w ith aChinese firm. Soon after, in February 2008, De Veneciawas replaced as Speaker of the House. The two sons ofthe pres ident who are members of Congress f iguredprominently in the ouster.

What is at stake at being part of the majority does notconfine itself to congressional matters but in fact relatesto execut ive prerogat ives. Being par t of the major itybecomes a key to securing particular interests, includingprioritization of district projects in the executive budgetproposal, budget disbursements for these projects, andappointment of favoured nominees to various governmentposts. Members of the House of Representatives see thisas i nt egra l t o the i r po l i t i ca l surv i va l . A s f o rme rrepresentative Prospero Pichay said,

Table 2.3 Unsolved journalist murders per 1 mill ion inhabi tants for 1999-2008

Nation Unsolved PopulationCases (in millions) Calculation Rating

Iraq 8 8 29 .5* 88 / 29.5 = 2.983

Sierra Leone 9 5.8 9 / 5.8 = 1.552

Somalia 6 8.7 6 / 8.7 = 0.690

Sri Lanka 9 19.9 9 / 19.9 = 0.452

Colombia 1 6 46.1 16 / 46.1 = 0.347

Phi l ipp ines 2 4 87.9 24 / 87.9 = 0.273

Afghanistan 7 28 .2* 7 / 28.2 = 0.248

Nepal 5 28.1 5 / 28.1 = 0.178

Russia 1 5 141.6 15 / 141.6 = 0.106

Pakistan 1 0 162.4 10 / 162.4 = 0.062

Mexico 6 105.3 6 / 105.3 = 0.057

Bangladesh 7 158.6 7 / 158.6 = 0.044

Brazil 5 191.6 5 / 191.6 = 0.026

India 7 1,123.3 7 / 1123.3 = 0.006

Source: Reproduced from Comm it tee to Protect Journalists, G etting Awayw ith Murder 2009 (Specia l Reports) <http: / / cpj .org / reports / 2009 / 03 /get t ing-away-w i th-murder-2009.php >



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I t happens every day, it happens during deliberationson the budget. Every congressman would want to havea lot of allocations for his district. Because that is whythey are elected…so that we can represent them in theHouse of Representatives so we can bring in a lot ofprojects in our districts. T here’s nothing wrong withthat. (Pablico 2007)

But at what price?

One check mechanism that Congress has watered downis parliamentary immunity. Article V I, section 11 of theconstitution provides that no member of Congress shallbe questioned nor be held liable in any other place for anyspeech or deba te in the C ongress or i n any o f i tscommittees. This constitutional guarantee of free speechand debate, while it does not distinguish as to its object,is a powerful mechanism to check the other branches byallowing every member of Congress, even one from thesmal lest par ty or representat ion , to speak or debatew ithout fear of being visited w ith peri l except for thequestioning or response of colleagues in debate or similarspeech, the retort of the object of his or her speech, andultimately, public opinion.

But in 1960 the House of Representatives watered downthis check by its own precedent on an issue involving thepres ident . O n 23 June 1960, Represent at ive Serg ioOsmeña, Jr. delivered a privilege speech directed at thenPresident Carlos Garcia, calling his attention to reportsof bribery for exercising certain presidential prerogativessuch as the g r ant i ng o f pardons. T he H ouse o fRepresentatives created a special commit tee of f ifteenmembers appointed by the Speaker with the authority tosummon Representative Osmeña to appear before it andto force him to substant iate his charges. T he specialcommittee, in a resolution adopted on 8 July 1960, foundRepresentat ive Osmeña ‘gu i l t y of ser ious d isorderlybehavior for mak ing without basis in truth and in fact,scurrilous, mal icious, reckless, and irresponsible chargesagainst the President of the Philippines in his privilegespeech’ (Supreme Court 1960). Thus, while a member of

the House of Representatives may not be subject to civilor criminal liability for saying something in Congress, heor she could face the wrath of the president for criticalspeech through al lies who may constitute the majority.This precedent carries on to this day.

The other mechanism that has been diluted by the lackof Congressional independence is impeachment. Becauseof presidential influence over Congress, impeachment hasbeen regarded as an ineffective means for removing apresident.

F i na l l y, the cong ress i ona l check on pres ident i a lappointments has been greatly discredited by ev idenceof bribery and horse-trading between the members ofthe Comm iss i on on Appo intments and pres ident ia lnominees. In June 2007, for instance, Cong ressmanHerminio Teves publ icly stated that his son, F inanceSecretary M argarito Teves, was asked through him forPH P5 mi l l ion to be g iven to certain members of thecommission in exchange for his confirmation. Interviewedover the radio, Secretary Teves did not confirm nor denyhis father’s statement but did say that cabinet memberswere asked for favours such as projects or lower-levelappointments. The story received corroboration in the formof similar experiences by other nominees.

I t has been asserted that the const itut ional prov isionallowing the president to make effective appointments forpositions requir ing conf irmat ion when Congress is inrecess (referred to as ad interim appointments) underminesthe power of consent by the Commission on Appointments.However, a vigilant Commission on Appointments is notreal ly he lpless. I t can terminate the appointment bydisapproving it. However, not acting on the appointmentunt i l the next ad jour nment of Congress, which alsoterm inates the appo intment , is in ef fect g iv ing tacitconsent.

T he impac t o f a comprom i sed C omm i ss i on onA ppo i ntment s goes deep i nt o the pe r fo rmance o fimportant public offices and institutions. Under PresidentArroyo’s term, constitutional bodies have been damaged



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by serious breaches of independence in relation to thepresidency. T he Comm iss ion on E lect ions, the bodymandated to safeguard the integrity of elections, has beenracked by charges of election fraud with regard to the2004 elections. In 2005, recorded conversations betweenPres ident A r ro yo and C omm i ss i on on E lec t i onsCommissioner V irgilio Garcillano during the canvassingof the 2004 pol l resul ts surfaced. T he conversat ionsindicated the manipulation of votes and the process ofcanvassing in order to ensure the victory of Arroyo. On27 June 2005, Arroyo appeared on national television toadmit having called a Commission on E lect ion off icialbefore and during the canvassing of the results of the2004 elections. She apologized for her ‘lapse in judgment.’

2.3.2 Ombudsman: The Missing LinkThe O ffice of the Ombudsman plays a very central role insecuring the rule of law within government. It was grantedby the constitution the institutional independence as wellas roving powers to ensure government compliance withrules, and to secure accountability for breaches thereof. Ithas investigatory powers, w ith the attendant powers tocompel testimony and production of records. It has thepower to prosecute erring officials as well as to mete outadministrative penalties. It has the power to compel theperformance of legal duties. It has the duty to recommendpolicies for the elimination of government inefficiency andcor rupt ion. For performing these responsibi l it ies, theconstitution calls the Ombudsman and his deputies ‘theprotectors of the people.’

Former Ombudsman Simeon M arcelo (incumbent fromOctober 2002 to November 2005) cited a disabling lackof personnel as one of the key practical problems facingthe O ffice of the Ombudsman (Marcelo 2003). When heassumed his post in 2002, the office only had 32 full-timepubl ic prosecutors handl ing some 2,500 cases. T heprosecutors did not undergo any training program. Theresult was a very low conv ict ion rate for cases theyprosecuted at the anti-graft court (Sandiganbayan).

Through reassignments and new hires, Marcelo was ableto increase the number of full-time prosecutors to 47 byNovember 2003. He also increased the number of full-time investigators. In addition, he introduced training andde ve lopment programs as we l l as o rgan i sa t i ona lrestructuring to upgrade agency capacity. These effortsyielded improvements in the rate of conv iction by theO ffice of the Ombudsman in the succeeding years, spillingover to the present term of Ombudsman Ma. MerceditasN avarro-Gut ierrez .

However, as mentioned earlier, the credibility of the presentO ff ice of the Ombudsman has been undermined by itsinaction over, or mishandling of, high prof ile cases thatcould potentially implicate officials at the highest levels.This was the case, for example, with the fertilizer fundscam where two thorough Senate invest igat ions havealready been completed whereas the Ombudsman still hasto complete its own investigation into the matter. This isl ikew ise true for the Ombudsman’s resolution clear ingformer Commission on E lect ions (Comelec) ChairmanBenjamin Abalos, five other poll officials, and executiveso f the M ega Paci f ic eSolut ions Inc. ( M PE I) of anycr im inal and adm in istrat ive l iab i l it y for the PH P1.3bil lion pol l automation contract that was declared voidby the Supreme Court. This despite the directive of theSupreme Court for the Ombudsman to determine thecriminal l iabi lity of the publ ic off icials and conspir ingpr ivate indiv iduals involved in the contract . A Senateinvestigation had also found certain Comelec officials liablefor prosecution. In addition, a report by the Ombudsman’sown field investigation office recommended that all sittingComelec officers at the time the anomalous contract wassigned, a Department of Science and Technology official,and six Mega Pacific incorporators and stockholders, becriminally, administratively and civilly proceeded againstin connection with the contract.

Because o f these and other cr i t icisms, an al l iance ofbusiness, civ i l society, church and lawyer g roups (theCoal ition Against Corruption) issued an open letter toOmbudsman Gut ierrez in D ecember 2008 expressing



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d ismay o ver the pe r fo rmance o f the O f f i ce o f theOmbudsman under her leadership.

The negat ive feeling about the incumbent Ombudsmanis not confined to outsiders; it also permeates within theagency. O ne tho r ny i ssue has been the move byO mbudsman G ut i e r re z t o re ve rse the po l i cy o fdecentral izat ion by former Ombudsman M arcelo. Forinstance, she has centralized the author ity to approveresolutions in complaints involving high ranking officials,the reby c l ipp i ng the autho r i t y tha t the D eput yOmbudsmen used to have. She has also been at odds withthe Special Prosecutor, a fixed-term posit ion under hercont ro l and supe r v i s i on . T hese have causeddemoralization within the ranks.

O ther problems, not pecul iar to the incumbency o fOmbudsman Gutierrez, hamper the effectiveness of theO f f ice o f the Ombudsman. For one, wh i le there arecorruption prevention programs, the work of the O fficeof the Ombudsman remains largely complaints-based.This has relegated to the background the more pro-activepowers of the office, including is broad investigatory andpolicy recommending powers. A lso, the Ombudsman hasinordinately focused on anti-corruption work even as itsjurisdiction encompasses all illegal, unjust, improper orineff icient acts or omissions committed by any publ icofficial, employee, office, or agency.

2.3.3 Lack of Enabling Law on Right to InformationWhile the Supreme Court has upheld the enforceabilityof the right to information, its effective implementationhas, for the past two decades, suffered from the lack ofnecessary substant ive and procedural detai ls that onlyCongress can provide. The legal gaps that legislation mustaddress include:

1. The absence of uniform, simple, and speedyprocedure for access to information. Access toinformation is differently and inconsistently appliedacross government agencies. There is no uniformmanner of making and responding to requests for

information by the public. Agencies are thus able touse the absence of uniform procedures to frustratethe public’s exercise of this right.

2. The specification of the coverage of the guarantee,particularly the general rule on what informationmay be exempted, needs legislation. Theconstitutional provision states that access toinformation shall be afforded to citizens ‘subject to suchlimitations as may be provided by law.’ Congress has yetto fulfil this mandate. To address the gap, theSupreme Court has stepped in by enumerating anumber of exceptions through jurisprudence, but thelack of exactness in the absence of legislation opensthe enumeration to wide interpretation.

3. Because of these limitations, it is difficult to enforceany available administrative or penal sanctions forviolations of this right. There is no compellingdeterrent to the unlawful withholding of information.

4. The current judicial remedy of mandamus isinaccessible to the public. In a survey by the SocialWeather Stations, respondents were asked what themost l ikely act ion they would take if an agencywere to refuse them access to a document. Only 12.7per cent said they would file a case in court . A lmost40 per cent would look for help in another agency,while 36.7 per cent would report the case to themedia. To their credit, only 10.6 per cent of therespondents said that they would do nothing aboutthe refusal.

5. There is no enabling law that provides the mechanicsfor the implementation of the compulsory duty todisclose transactions of public interest withoutdemand as provided for by article I I, section 28 ofthe constitution.

The result of this lack of legislation is the routine violationby gove r nment agenci es o f the people ’ s r i ght t oinformat ion. The result ing overall lack of transparencyin government relates di rect ly to the persistence o frampant corrupt ion.



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There has been a long-running campaign by media andpublic interest organisations for the passage of a F reedomof Information Act which came within reach in the 14thCongress. On 20 January 2010, the measure passed thebicameral conference committee, the process under whichthe disagreeing provisions of the House version (HB 3732)and the Senate version (SB 3308) were reconciled. It hasbeen an arduous legislative process to reach this stage,from the first reading, committee hearings, submission ofcommittee reports for plenary debates and amendments,and approval on second and third readings in both housesof Congress.

Still, while the F reedom of Information Act has advancedsignificantly, it does not become law until the final act ofCongress on the measure is done and it is signed by thepresident. If Congress and President Macapagal Arroyowill it, the measure can become law before their term ends.

The proposed F reedom of Information Act will addressmany of the major legal loopholes that have made ther i ght to in format i on in the Ph i l ipp i nes pract i ca l l yinoperable . I t w i l l prov ide a standard and de f in i teprocedure in dealing with requests for information. It willclearly define a narrow list of exceptions, each specifyingthe legitimate public interest in keeping them secret. Itwil l secure for citizens concurrent remedies in cases ofdenial of access to information. In addition to remedies toreverse a denial or compel disclosure, where the denial isi l legal, the citizen concerned may f i le the appropr iatecr imina l or adm inistrat ive complaint . I t w i l l prov ideimplementing mechanics for the public disclosure, withoutneed of request from anyone, of important governmenttransactions. It will introduce numerous mechanisms forthe active promotion of openness in government.

If passed in its present form, the proposed F reedom ofInformation Act will be a robust legislation that will beinstrumental in addressing one source of failure of therule of law.

2.4 The Independence of the Courts and the JudiciaryHow independent are the courts and the judiciary fromthe executive, and how free are they from all kinds ofinterference?

The judiciary effectively checks the other departments inthe exercise of its power to determine the law, and todeclare executive and legislative acts void if they violatethe constitution. Such a power is directly implied by articleVII, section 4 (2) of the 1987 constitution which speaksof ‘cases invo lv ing the const itut ional it y o f a t reat y,i nt e r nat i ona l o r e xecut i ve ag reement , o r law ’ o r‘presidential decrees, proclamations, orders, instructions,ordinances, and other regulations.’ This has been part ofthe traditional power of the Supreme Court, with similarprovisions found in earlier constitutions (1973 and 1935).

Before the 1987 constitution, such power of judicial reviews t opped whe re the i ssue depar t ed f rom be i ng aconst itut ional controversy and instead treaded on thequestion of the wisdom of the act. However, in reactionto the avoidance by the Supreme Court to rule on majorcont rovers ies dur ing the M arcos mar t ia l law yearsthrough the ‘po l i t i ca l quest ion ’ doc t r ine , the 1987const itut ion expanded the scope of judicial rev iew toinclude even the exercise o f d iscre t ion o f the o therbranches of government. Judicial power now includes theauthority to determine whether or not there has been agrave abuse of discretion amounting to lack or excess ofjurisdiction on the part of any branch or instrumentalityof the government. There has therefore been a shift in theboundary of the allocation of powers with this expansionof judicial power.

In add i t i on t o e xpand i ng jud i ci a l powe r, the 1987constitut ion also introduced new mechanisms to bettersecure the independence of the judiciary.

F i rst , under the 1935 const i tut ion , members o f theSupreme Court and al l judges of infer ior courts wereappo inted by the president w ith the consent o f theComm iss ion on Appointments. T h is requ i rement o f



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consent by the Comm i ss i on on A ppo intments wasremoved in the 1973 constitution. The 1987 constitutionreturned a check on this appointment power by creatinga Judicial and Bar Council (JBC). The Council is composedof the Chief Justice as ex officio chairman, the Secretaryof Justice, and a representative of the Congress as exofficio members, a representative of the Integrated Bar, aprofessor of law, a retired member of the Supreme Court,and a representative of the private sector. The regularmembers of the Council are appointed by the presidentfor a term of four years with the consent of the Commissionon Appointments. The president appoints members of theSupreme Court and judges of the lower courts from a listof at least three nominees prepared by the JBC for eachvacancy. In addition to the nomination for appointmentsto the judiciary, the JBC also provides a list of nomineesfor appointments to the position of Ombudsman and ofhis deputies. The JBC comes under the supervision of theSupreme Court itself, which may assign it functions andduties aside from its principal function of recommendingappointees.

Second, in both the 1935 and the 1973 constitutions, whilethe Supreme Court had the power to promulgate rulesconcerning pleading, practice and procedure in all courts;the admission to the practice of law; and the integrationo f the bar, such rules may be repea led, a l tered orsupplemented by Congress. T he 1987 constitution notonly removed the authority of Congress to repeal, alteror supplement such rules, it also added to the SupremeCourt’s authority the promulgation of rules concerningthe protection and enforcement of constitutional rightsand of legal assistance to the underprivileged.

F inal ly, the 1987 const itut ion prov ided for the f iscalautonomy of the judiciary. Appropriations for the judiciarymay not be reduced by the legislature below the amountappropriated the previous year and, after approval, shallbe automatically and regularly released.

2.4.1 Overturning Unconstitutional ActionsOvera l l , the Supreme Court has prov ided a work ingmechanism for questioning the validity of actions by theother branches of government. Particularly with respectto the administrat ion o f President G lor ia M acapagalA r royo, the Supreme C our t has s t ruck down ke ypresident ia l issuances and execut ive pronouncementscont a i n i ng pro v i s i ons tha t had h i ghl y doubt fulconst itut ional or legal basis. T he Supreme Court haspassed upon some of these issuances and declared thempartly or entirely unconstitutional or illegal.

Some t ime in Septembe r 2005 E xecut ive Secre taryEduardo E rmita announced the adoption of the ‘calibratedpre-emptive response’ policy in lieu of the then maximumtolerance policy in the handling of public assemblies. TheSupreme Court (2006b) ruled the pol icy as ‘having noplace in our legal f irmament ’ and as ‘a darkness thatshrouds freedom’, adding that it ‘merely confuses ourpeople and is used by some police agents to justify abuses.’

On 28 September 2005 President M acapagal A rroyoissued Executive Order 464 providing guidelines for theappearance of executive officials in legislative inquiries.T he Supreme Court (2006a) he ld that the order wasinval id insofar as it severely frustrated the power ofinqu i ry o f Congress by a l low i ng o f f ic ia ls t o cla imexecutive privilege without stating any specific basis forsuch claim, and for allowing such officials to exercise aprivilege that was reserved only for the president withoutthe president’s explicit authority.

On 24 February 2006 President Macapagal Arroyo issuedProc lama t i on 1017 dec lar i ng a s t a t e o f na t i ona lemergency. Under the proclamation, President A rroyocommanded the A rmed Forces of the Phi l ippines ‘tomainta in law and order throughout the Ph i l ippines,prevent or suppress all forms of lawless violence as wellany act of insurrection or rebellion and to enforce obedienceto all the laws and to all decrees, orders and regulations’promulgated by her personally or upon her direction, anddeclared a state of national emergency.



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W h i le the Supreme C our t (2006c) sus t a i ned theproclamation with respect to the president’s exercise ofher calling-out power for the armed forces to assist her inprevent ing or suppressing lawless v iolence, it declaredthe proclamat i on uncons t i tut iona l i nso far as: a) i tcommanded the enforcement of all decrees, orders andregulations promulgated by her personally or upon herdirection; and b) it presumed presidential authority toexercise the emergency powers of taking over or directingthe operat ion of any pr ivately-owned publ ic uti l ity orbusiness affected with public interest. On the first pointthe Supreme Court said that the clause, which was liftedfrom President Marcos’ Proclamation 1081 declaring astate of mar tial law, was unconst itutional for grantingPresident Macapagal Arroyo the authority to promulgatedecrees, which was a legislative power peculiarly vestedwith the legislature. On the second point, the SupremeCourt emphasized that, under the constitution, the exerciseof emergency powers required a delegation from Congress.

2.4.2 Weakening Other ChecksStill there have been Supreme Court decisions that haveworked to weaken existing checks to presidential powers.One of these was its decision involv ing impeachment ,arguably with the intent to protect one of its own. On 2June 2003 former Pres ident Joseph Estrada f i led animpeachment complaint against Chief Just ice H i lar ioDavide and seven associate justices, a complaint that wasendorsed by some members of Congress. T he HouseCommittee on Justice found the complaint sufficient inform but on 22 October 2003 voted to dismiss it for beinginsufficient in substance. Before the committee report wassent to the plenary, a second impeachment complaint wasf i led w i th the secre tary genera l by Representat ivesG ilberto Teodoro and Felix Fuentebella, accompanied bya Resolut ion of Endorsement / Impeachment signed byat leas t one-th i rd o f a l l members o f the H ouse o fRepresentat ives. Under the const itut ion, such a f i l ingshould have constituted the articles of impeachment andtrial by the Senate should have forthwith proceeded.

A number of petitions were filed with the Supreme Courtquest ion ing the val id i ty o f the second impeachmentcomplaint for violating the constitution. A t issue was theinterpretat ion of the const itut ional prov ision that noimpeachment proceeding could be made against the sameofficial more than once within a period of one year. TheHouse of Representatives, through Speaker Jose De Veneciaand by way o f speci a l appearance , subm i t t ed amanifestation asserting that the Court had no jurisdictionto hear, much less proh ibi t or enjo in, the H ouse o fRepresentat ives, which is an independent and co-equalbranch of government, from the performance of its dutyto initiate impeachment cases. Senator Aquilino Pimentel,Jr., in his own behalf, fi led a comment questioning thejur i sd ict ion o f the C ourt over issues af fect i ng theimpeachment proceed ings. T he Senate, through i tspresident, F ranklin M . Drilon, filed a manifestation statingthat insofar as i t was concerned, the pe t i t ions werepremature.

Still the Supreme Court (2003) proceeded to rule on themat ter. I t struck down as unconstitutional sect ions 16and 17 o f the rules o f procedure i n impeachmentproceedings. The said sections embody the interpretationo f Congress o f when impeachment proceed ings aredeemed initiated, which then bars the initiation of anotherimpeachment within the same year. Under section 16, animpeachment proceeding is deemed init iated under thefollowing instances:

(1) In cases where a member of the House ofRepresentative files a verified complaint ofimpeachment or a citizen files a verified complaintthat is endorsed by a member through a resolutionof endorsement against an impeachable officer,impeachment proceedings against such official aredeemed initiated on the day the Committee on Justicefinds that the verified complaint and/ or resolutionagainst such official, as the case may be, is sufficientin substance.

(2) If the Committee on Justice finds the complaint notsufficient in substance, it is deemed initiated on the



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date the house votes to overturn or affirm the findingof the committee.

(3) In cases where a verified complaint or a resolution ofimpeachment is filed or endorsed, as the case may be,by at least one-third of the members, impeachmentproceedings are deemed initiated at the time of thefiling of such verified complaint or resolution ofimpeachment with the secretary general.

Under the above rules, no impeachment complaint hadye t been in i t iated that would have bar red a secondcomplaint. But the Supreme Court substituted its owninterpretat ion of when an impeachment proceeding isinit iated: it is when a ver if ied complained is f iled andreferred to the Committee on Justice for action. The effectwas t o weaken the power o f C ong ress t o in i t i at eimpeachments by allowing the filing of weak complaintswith the intent of providing impeachable officials, notablythe president, with protection from serious impeachmentcomplaints through the one-year ban. This was the casewith the filing by lawyers O liver Lozano and Ruel Pulidoof weak complaints against President Macapagal Arroyothat effectively protected her for at least a year from good-faith impeachment complaints.

Another Supreme Court rul ing that has weakened anexisting check is the case of Neri vs. the Senate (SupremeCourt 2008). The Court ruled as valid Secretary RomuloNeri’s invoking of executive privilege as the basis for hisrefusal to answer three questions by senators relating toh i s conve rsa t i ons w i th P res ident A r ro yo on thecont ro vers ia l N at iona l Broadband N e t work (N B N )project. The three questions were: a) whether the presidentfollowed up the NBN project; b) whether Neri was orderedto prioritize the bid of Z T E Corporation; and c) whetherthe president told Neri to go ahead and approve the projecteven after Neri had related that an attempt to bribe himhad been made.

In arriving at its decision, the Court examined whether theanswe rs sought were co vered by pres ident ia lcommunications privilege and whether the privilege was

properly invoked. In answering the first question, the Courtdeveloped the elements of presidential communicationspr iv ilege based on its reading of Amer ican cases. T heelements were as follows: a) the protected communicationmust re la te to a ‘qu intessent ia l and non-de legablepresidential power’; b) the communication must be authoredor solicited and received by a close advisor of the presidentor the president himse l f , w i th the adv isor being inoperat ional prox imi ty w ith the president ; and c) thepres ident ia l commun icat ions pr iv i lege is a qua l i f iedprivilege that may be overcome by a showing of adequateneed, such that the information likely contains importantevidence that is unavailable elsewhere.

Looking closer at the ruling, we raise issue with the Court’sf inding that the record was bereft of any categor icalexplanation from the respondent committees to show acompelling or crit ical need to acquire answers to theirthree questions with respect to the enactment of a law,and that the questions veered more toward the exerciseof oversight function than on legislation. On the contrary,the Senate on record pleaded the materiality and pertinenceof N er i ’s test imony to leg islat ion. In i ts comment , itenumerated the bills that had been filed and to which theinquiry was related. T hese included: Senate B i l l 1793which sought to amend Republic Act No. 9184 (2003) orthe procurement law; Senate Bill 1794 which sought toamend Republ ic Act N o. 8182 (1996) or the O ff icialDevelopment Assistance Act; and Senate Bil l No. 1317ent i t led ‘A n A c t M andat i ng the C oncur rence t oInternational Agreements and Executive Agreements’. Onthe materiality and importance of the testimony, the Senateemphasized that the refusal of Neri to answer effectivelydenies the Senate access to informat ion that may bema te r ia l to the cra f t i ng o f remed i a l leg is la t ion togovernment procurement procedures. A lso on record werethe answers of the Senate counsel to clarificatory questionspropounded by Chief Justice Puno on the importance ofthe questions to legislation.

At the very least, the Court should have passed upon andevaluated these categorical explanations. Such evaluation



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of the Senate’s showing of need was precisely what ChiefJustice Puno did in his dissenting opinion on the ruling.He arr ived at the conclusion that the quest ions werepertinent to pending legislation, that there was no effectivesubst itute for the informat ion sought , and that N er i’srefusal to answer the three quest ions would ser iouslyimpair the Senate’s function of crafting specific legislationpertaining to procurement and concurring in executiveagreements based on facts and not speculation. In contrast,the major ity of the just ices turned a blind eye to theSenate ’s asser t ion o f need by mak ing the sweep ingstatement that ‘the record is bereft of any categor icalexplanat ion from respondent Comm it tees to show acompelling or critical need for the answers to the three(3) questions in the enactment of a law’ (Supreme Court2008) .

By brush ing as ide , w i thout d iscuss ion , the Senate ’spleading of need for the information in aid of legislation,the Supreme Court decision in Neri vs. Senate of upholdingexecut ive pr iv i lege was able t o stand on the merepresumption of priv ilege with respect to the subject ofpresidential communications. The Court did not then haveto proceed to a proper balancing of the president’s interestin the expectation of confidentiality of her conversationsand correspondence, on the one hand, and the legislature’sinterest for the requisite informat ion to aid w ise andeffective legislation, on the other.

W h i le the C our t s t a t ed tha t the pres ident i a lcommunications privilege is a qualified privilege that maybe overcome by the demonstration of adequate need, theway the Court ruled in this case, it may have well declaredthat presidential communications privilege is absolute andconclusive upon Congress as well as upon the courts.

2.4.3 Strengthening the Judicial and Bar CouncilThe process of appointing judges to the Supreme Courtand the lower courts is critical to the independence of thejudiciary. As ment ioned earl ier, the 1987 const itut ioni nt roduced a ma j o r i nno va t i on t o the process o fappointing judges. Instead of having complete freedom

to appoint anyone to the judiciary, subject mere ly toconfirmation by the Commission on Appointments, thepresident’s choice is now restricted to the list of nomineesprepared by the Judicial and Bar Council. The compositionof the Judicial and Bar Counci l is also an impor tantinnovat ion . A l l three branches o f gover nment arerepresented in the Council.

Still, for all the checks to ensure non-dominance by anybranch in the appointing process, the Council is known tobe very much politicized. Candidates for vacant positionsin the judiciary and the O ffice of the Ombudsman vie forthe endorsement of influential politicians, with those closeto the president enjoy ing a premium. Indeed, w ith acompromised Commission on Appointments and Houseo f Representat i ves, the ba lance o f power ove r thecomposition of the Council tilts in favour of the president.

A development under the A rroyo administrat ion hasincreased concern over the performance of the Judicialand Bar Council. Because of the length of stay of PresidentMacapagal Arroyo in office and the timing of retirementof judges of the Supreme Court, the president stands tohave appointed all members of the Supreme Court beforeshe s teps down in 2010. T h is has t r iggered ac t ivemonitoring by public interest groups of the nominationprocess in the Council. Among these watch dog groupsare B ant a y K orte Supr e m a led by Sena t o r F ranci sPangilinan, former Senator Jovito Salonga, and Universityof the Philippines College of Law Dean Marvic Leonen.There is also the Supreme Court Appointments Watch(SC AW) convened by the Lawyers League for L iberty(L ibertas), A lternative Law G roups, T ransparency andAccountabil ity N etwork, Philippine Association of LawSchools and Newsbreak Online.

The vigilant monitoring by these groups could result inlong-lasting reforms for a better-functioning Judicial andBar Council. For instance, among the demands that SCAWhas been push i ng are : a) s t opp ing the prac t ice o freappointing regular members of the Council; b) limitingthe number of nominees for each vacant position to three;c) implementing a more t ransparent evaluat ion of the



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qual i f icat ions o f compe tence, integr i t y, probi t y andindependence of the applicants; d) an open voting policy;and e), the Council reject ing any l ists returned by thepresident. A lready the SCAW members have won on someof their demands. An open voting policy has already beenadopted by the Council. A lso, the Council stood its groundwhen the president returned its list of nominees for avacant pos i t ion in the Supreme Court , forcing thepresident to appoint from the Counci l’s or iginal list ofnominees.

On the other hand, the matter of appointing members ofthe judiciary has come under another public controversylately. A t issue are two const itutional prov isions—oneproviding that any vacancy in the Supreme Court shallbe filled within 90 days from its occurrence, and anotherprohibit ing the president from mak ing appo intmentsw i th i n two months immed i a t e l y be f o re upcom i ngpresidential elections and until the end of his or her termof office. In its decision, the Supreme Court held that theprohibition applies only to executive appointments, anddoes not extend to appointments to the judiciary (SupremeCourt 2010).

The issue has divided the legal community, with thosecritical of the ruling fearing that the decision underminesa constitutional check on the already extensive and oftenabused appoint ing power of the president . The case isyet to be resolved with finality as it remains under a motionfor recons iderat ion . I f the Supreme Court does no treconsider its ruling, the independence and transparencyof the Judicial and Bar Counci l all the more becomescritical. It is also a question how the ruling affects otherappointments outside the executive, such as those in theindependent constitutional bodies.

2.5 Recommendations As the country transitions into a new Congress,

riding on the expectations generated by the firstcredible elections in years, the House ofRepresentatives must seize the opportunity to regain

its independence and exercise its legislative andchecking powers with transparency andresponsiveness to the public interest. It mustreinstate the full privilege of free speech and debateinside the chamber by not subjecting its exercise tointernal discipline. It must recover the efficacy ofimpeachment by not allowing members to protectimpeachable officials with weak impeachmentcomplaints. It must regain the integrity of theCommission on Appointments in the confirmationprocess. This can only be done by electing asSpeaker of the House a person not steeped intraditional politics and committed to reform theHouse of Representatives and rebuild the institution.

The victory of Senator Noynoy Aquino in the recentelections on a good governance platform should bean opportunity to reverse the practice of abuse ofpowers by the executive. A good starting point is theexercise of the appointing powers of the president—there should be strict adherence to the eligibilityrequirements in the career service positions andgreater transparency in the selection of appointeesfor the non-career or political positions. The newgovernment should stop issuing constitutionallytenuous executive orders.

The choice for the next Ombudsman will be criticalin regaining the independence and effectiveness ofthis powerful office.

Despite reaching the final stages of the legislativeprocess, the passage of the F reedom of InformationAct was blocked by the leadership of the House ofRepresentatives. The resulting public outrage overthe unfair manner by which the measure wasblocked, however, has heightened the clamour for thepassage of the measure in the F ifteenth Congress.The Congress and the incoming president mustrespond positively by ensuring the quick passage ofthe F reedom of Information Act.

The independence and transparency of the Judicialand Bar Council must be secured. C ivil societymonitoring of its performance must be sustained.



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References and further reading1935 Constitution of the Republic of the Philippines

1973 Constitution of the Republic of the Philippines

1987 Constitution of the Republic of the Philippines

Civil Service Commission, 2004 Inventory of Government Personnel,ava i lable at <http: / / www.csc.gov.ph / cscweb / 2004I G P_stat.pdf >

Commission on Human Rights, ‘Resolution in the matter of theNovember 7, 2005 Ortigas Center shooting incident resultingin the death of Anton Cu-unjieng, F rancis Xavier Manzanoand Br ian Anthony Dulay involving the elements of PNP-T M G, Task Force L imbas’, CHR (NCR) Case No. PI-2005-01,26 May 2006, available at <http: / / www.newsbreak.com.ph /democracyandgovernance /downloads /ortigas_shootout.pdf >

Committee to Protect Journalists, Getting Away with Murder 2009(Special Reports), available at <http: / / cpj.org / repor ts /2009/03/ getting-away-with-murder-2009.php>

David, Kar ina Constantino, Speech at the Makati Business ClubGeneral Membership Meeting, 22 January 2008, available at< ht tp : / / www.pci j .or g / bl og / wp-docs / Kar i na_ D av id_speech.pdf > (unpublished)

Lorenzo, Issa and Malou Mangahas, ‘New CSC Chief Faces Packof Ineligible Bureaucrats’, Philippine Center for InvestigativeJournalism (PCIJ) Investigation, 24 Apr il 2008, available at< h t t p : / / w w w. p c i j . o r g / s t o r i e s / 2008 / i n e l i g i b l e -bureaucrats2.html>

Marcelo, Simeon V., ‘Combating Corruption in the Philippines’,in Controlling Corruption in Asia and the Pacific: Papers Presented atthe 4th Regional Anti-Corruption Conference of the A D B / O E CDAnti-Corruption Initiative for Asia and the Pacific. Kuala Lumpur,Malaysia, 3–5 December 2003, pp. 37-43, available at <http: // www.adb.org /documents /books / control ling-corrupt ion /controlling-corruption.pdf>

Marcos, Ferdinand E ., ‘Proclaiming a State of Mar tial Law in thePhi lippines’, Proclamat ion N o. 1081, 21 September 1972,ava i lable at < ht tp: / / www. lawph i l .ne t / e xecut ive / proc /proc_1081_1972.html>

Marcos, Ferdinand E ., ‘Providing for the T rial by Courts-Martial ofMembers of the Integrated National Police and Further Definingthe Jur isdiction of Courts-Martial over Members of the ArmedForces of the Philippines’, Presidential Decree No. 1850, 4October 1982, avai lable at <http: / / www.chanrobles.com /presidentialdecrees /presidentialdecreeno1850.html>

Pablico, A lecks J., ‘A “horse-trading agency”’, T he D aily PCIJ, 27June 2007, available at <http: / /www.pcij.org /blog / ?p=1800>

Philippine Center for Investigative Journalism, ‘Multiple requestsfor access to infomeet with flat denials’, Parts 1 and 2, 25 May2009, available online, part one at <http: / /pcij.org / stor ies /multiple-requests-for-access-to-info-meet-with-flat-denials / >and part two at < http: / /pcij.org / stor ies / execs-give-flimsy-inane-excuses-to-rebuff-access-to-info-requests / >

Philippine Senate Committee on Accountability of Public O fficersand Investigations, ‘Committee Repor t No. 254, Re: ProposedSenate Resolution No. 637, Proposed Senate Resolution No.702 and Pr ivilege Speech of Sen. Jinggoy E jercito Estradatitled, “A Clarion Call to Conscience” delivered on 10 November2008’, 2009

Pimentel, Aquilino, ‘ The Presidential Form of Government inthe Philippines: A Cr itique’, Statement at the seminar entitledMaking Presidentialism Work, Headquar ters of the Institutesfor Legal Research of the National Autonomous University ofMex ico, Mex ico C ity, 6 February 2008

Republic of the Phil ippines, ‘E xecutive O rder N o. 292 (T heAdministrative Code of 1987)’, 25 July 1987, available at <http: //www.chanrobles.com/administrativecodeofthephilippines.htm>

Republ ic of the Phi l ipp ines, ‘Repor t of the F act F indingCommission Pursuant to Administrative Order No. 78 of thePresident of the Republic of the Philippines



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Dated July 30, 2003’, 17 October 2003, available at <http: / /www.i-site.ph/ Record / F F F C-Repor t / Fact F inding%20AO78%20Report%20-%20Part%201.PD F >

Republ ic of the Phi l ippines, ‘Repor t of the IndependentCommission to Address Media and Activist K illings: Createdunder Administrative Order No. 157 (s. 2006)’, 22 January2007 (the Melo Repor t), available at <http: / / www.pinoyhr.net / reports /meloreport.pdf >

Sison, Mar ites N . Repor ting on the Governance of Communities.In Cecile C. A . Balgos, (ed), Investigating L ocal Governments: AManual for Reporters (Quezon C ity: Phil ippine Center forInvestigative Journalism, 2001), pp. 78-138

Social Weather Stat ions, ‘2008 Survey of E nterpr ises onCorruption: Anti-corruption sincerity ratings improved for only8 out of 30 agencies’, 21 November 2008, available at <http: // www.sws.org.ph /pr081121.htm>

Supreme Court, ‘Jose A . Angara vs. The E lectoral Commission etal.’, G.R. No. L-45081 15 July 1936, available at <http: / /w ww. l awph i l . n e t / jud ju r i s / j ur i 1936 / j u l 1936 / g r _ l -45081_1936.html>

Supreme Court, ‘Pangasinan T ranspor tation Company, Inc. versusThe Public Service Commission’, G.R. No. 47065, 26 June 1940,avai lable at <http: / / www.lawphi l.net / judjur is / jur i1940 /jun1940/ gr_l-47065_1940.html>

Supreme Court, ‘Sergio Osmeña, Jr. vs. Salipada K . Pendatun et al.in their capacity as members of the Special Committee createdby House Resolution No. 59’, G.R. No. L-17144, 28 October1960 , ava i lable at < ht tp: / / www. lawph i l .ne t / jud jur is /jur i1960/ oct1960/ gr_l-17144_1960.html>

Supreme Court, ‘Valentin L . Legaspi vs. Civil Service Commission’,G .R . N o. L-72119, 29 May 1987 , avai lable at <ht tp: / /w w w . l a w p h i l . n e t / j u d j u r i s / j u r i 1 9 87 / m a y 1 9 87 /gr_l_72119_1987.html>

Supreme Court, ‘Francisco I . Chavez vs. Presidential Commissionon Good Government (PCG G) and Magtanggol Gunigundo,(in his capacity as chairman of the PCG G), respondents, Glor iaA . Jopson, Celnan A . Jopson, Scarlet A . Jopson, and Teresa A .

Jopson’, G.R. No. 130716, 19 May 1999, available at <http: / /w w w . l a w p h i l . n e t / j u d j u r i s / j u r i 1 9 99 / m a y 1 9 99 /gr_130716_1999.html>

Supreme Court, ‘Bayan, et al. vs. E xecutive Secretary RonaldoZamora, et. al.’, G.R. No. 138570, 10 October 2000, availableat <http: / / sc.judiciary.gov.ph / jur isprudence /2000/ oct2000/138570.htm>

Supreme Court, ‘Francisco I. Chavez vs. Public Estates Author ityand Amar i Coastal Bay Development Corporation’, G.R. No.133250, 9 July 2002, available at <http: / / sc.judiciary.gov.ph /jur isprudence /2002/ jul2002/133250.htm>

Supreme Cour t , ‘ E r nesto B . F r ancisco, Jr. vs. H ouse o fRepresentat ives’ , G .R . N o. 160261, 10 N ovember 2003,available at <http: / / sc.judiciary.gov.ph / jur isprudence /2003/nov2003/160261.htm>

Supreme Court, ‘Senate of the Philippines et al. vs. EduardoErmita’, G.R. No. 169777, 20 April 2006 (a), available at <http: // w w w. l a w p h i l . n e t / j u d j u r i s / j u r i 200 6 / a p r 200 6 /gr_169777_2006.html >

Supreme Court, ‘Bayan et al. vs. Eduardo E rmita et al.’, G.R. No.169838 , 25 A pr i l 2006 (b) , ava i l abl e at < ht tp : / /w w w . l a w p h i l . n e t / j u d j u r i s / j u r i 2 0 0 6 / a p r 2 0 0 6 /gr_169838_2006.html>

Supreme Cour t , ‘ F r ancisco Chavez vs. N at iona l H ousingAuthor ity’, G.R. No. 164527, 15 August 2007, available at< h t t p : / / u s t l a w r e v i e w . c o m / pd f / v o l . L I I / C a s e s /Francisco_Chavez_v._National_Housing_Author ity.pdf >

Supreme Cour t , ‘Prof . Rando l f S. Dav id et al . vs. G lor iaMacapagal-Arroyo et al’, G.R. No. 171396, 3 May 2006 (c),avai lable at <http: / / www.lawphi l.net / judjur is / jur i2006 /may2006 / gr_171396_2006.html>

Supreme Cour t , ‘Romulo L . Ner i vs. Senate Committee onAccountability of Public O fficers and Investigations et al.’,G.R. No. 180643, 4 September 2008, available at <http: / /w w w . l a w p h i l . n e t / j u d j u r i s / j u r i 2 0 0 8 / s e p 2 0 0 8 /gr_180643_2008.html>



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Access to Justice

3.1 Laws on Due Process and Equal ProtectionHow equal and secure is the access of citizens to justice,t o due process and t o redress in t he event ofmaladministration? Are there laws guaranteeing equaltreatment of citizens in the justice system?

Equality is a revered principle in the 1987 constitution.‘Equality’ occupies a prominent position in the preambleas one of the core values of the desired independent anddemocratic government. The very first provision underthe constitution’s article I I I, Bill of Rights, is a categoricalstatement that ‘(n)o person shall be deprived of life, libertyor property without due process of law, nor shall anyperson be denied the equal protection of the laws’. Thisprov ision combines two important rights—the right todue process and the right to equal protection.

The first right (covered by the due process clause) is thecomprehensive protection of life, liberty and property thatis guaranteed to all persons within the country’s territorywithout regard to any differences as to race, colour ornationality. Even foreigners and juridical persons such ascorporations are within the ambit of the protection. Thesecond right (covered by the equal protection clause) hasa similar universal application and is usually understoodas the equality of all persons before the law and the legalsystem, that is, regardless of personal, social, economic,cultural and political differences. While the guarantee of

3

Supreme Court, ‘Arturo M . De Castro, et al. vs. Judicial and BarCouncil’, G. R. No. 191002, 17 March 2010, available at <http: // sc. jud iciar y.gov.ph / jur i sprudence / 2010 / march2010 /191002.htm>

T ransparency and Accountability Network, ‘ The Office of theOmbudsman : Is there inst itut ional weakness?’, HumanDevelopment N etwork (H D N) D iscussion Paper, P H D RTechnical / Issue Note No. 2, 15 January 2009, available at <http: // hdn.org.ph /wp-content /uploads /2008/10/ tin02_tan.pdf >

Transparency International, ‘Corruption Perception Index 2009’,available at <http: / / www.transparency.org /policy_research /surveys_indices / cpi / 2009/ cpi_2009_table>

United Nations, Report of the Special Rapporteur on E xtrajudicialSummary or Arbitrary E xecution: Mission to the Philippines, U Ndocument A / HRC/8/3/ Add.2, 16 April 2008 (the Alston report)

United Nations, Report of the Special Rapporteur on E xtrajudicial,Summa r y or A rb i tra r y E x ecut i ons: F o l low -up to Countr yRecommendations – Philippines, U N document A / HRC /11/2 /Add.8, 29 Apr il 2009 (the A lston report)

World Bank, Project Appraisal Document on a Proposed L oan in theAmount of US$232 Million to the Republic of the Philippines inSupport of Phase 2 of the N ationa l Roads Improvement andManagement (A P L ) Program, Repor t No: 40764-PH , 15 Apr il2008, available at <http: / / www-wds.worldbank.org /external /de faul t / W D SContentServer / W D SP / I B / 2008 / 04 / 28 /0 0 03 3 4 9 55 _ 2 0 0 80 4 2 8 08 2 0 1 9 / R e n d e r e d / P D F /407640PA D0R E VI17362B01off0use0only1.pdf >

World Bank, ‘Governance Matters 2009: Worldwide GovernanceIndicators 1996-2008’, available at <http: / / info.worldbank.org /governance / wgi / sc_country.asp>


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equal protection allows for reasonable classification basedon substant ial distinct ions, the due process clause is ageneral shield against discrimination. Moreover, the equalprotection clause is seen as a constitutional mandate forthe gover nment to t ake pos i t ive measures t owarderad icat i ng inequa l i t ies and ach iev ing a reasonablemeasure o f equa l i t y i n ce r t a i n areas. H ence , theconst i tut ion, in art icle X I I I , sect ion 1, mandates theCongress to ‘give highest priority to the enactment ofmeasures that protect and enhance the right of al l thepeople to human dignity, reduce social , economic, andpolitical inequalities, and remove cultural inequit ies byequitably diffusing wealth and pol it ical power for thecommon good’.

Pushing the concept of equality further, article I I, section14 mandates the state to ensure the fundamental equalitybefore the law of women and men . T his prov ision issignificant as a constitutionally enshrined affirmation ofgender equality.

3.2 Laws Providing Protection for Vulnerable GroupsAre there laws providing special prot ection forvulnerable groups?

Throughout the constitution, there are strong bases notonly for equal protection of citizens in general but alsofor special protection for vulnerable g roups. Art icle I I,Declaration of Principles and State Policies, contains aprovision that seeks to ‘promote a just and dynamic socialorder that will ensure the prosperity and independenceof the nation and free the people from poverty’ and onethat ensures the inclusion of ‘social justice in all phasesof national development’. Related to these provisions arethe special declarations concerning the rights of workersand indigenous peoples, and the promotion of agrarianreform.

The constitution devotes the entire article X I I I to SocialJus t i ce and H uman R i ght s. I t cont a i ns prov i s i onselaborat ing on art icle I I ’s declarat ions on labour and

agrarian reform, and special prov isions protect ing therights of fisher folk, the urban poor, disabled persons, andworking women.

The constitutional provisions on the identified vulnerablesectors are complemented by legislation applicable to thesespecial groups. Some notable laws are cited below.

3.2.1 LabourThe Labor Code, Presidential Decree No. 442 issued byPresident Marcos in 1974, is the primary legislation thatprotects the rights of workers. While the law predatesthe 1987 const i tut ion , subsequent amendments havegranted more rights to workers. The law provides for theminimum terms, conditions and benefits of employmentsuch as wages, hours of work, and other monetary andwelfare benef its. The law also governs the relationshipbetween individual workers and labour organisations, onthe one hand, and employers, on the other, with regard tocollective bargaining, strikes and concerted activities, andtermination of employment. In 2007, Republic Act No.9481 was passed s t rengthen i ng the r i ght t o se l f-organisation of workers by making it easier to form labourunions and start the process of collective bargaining.

W ith millions of F ilipinos working abroad, the Congresspassed a special law governing migrant workers in 1997.The M igrant Workers and Overseas F ilipino Act, RepublicAct N o. 8042, regulates the recruitment and placementof workers for overseas employment , and provides forthe rights of migrant workers and the remedies for theenforcement of such rights.

3.2.2 FarmersPursuant to the constitutional mandate on agrarian reform,the Congress passed the Comprehensive Agrarian ReformLaw, Republic Act No. 6657, in 1988. The agrarian reformprogram sought to distribute wealth and income in a moreequitable manner, to promo te economic g rowth thatbene f i t s everyone , and to ra ise product iv i t y as thefoundation for a improving the general welfare.

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3.2.3 FisherfolkT he primary law governing f isherfolk is the F isher iesCode, or Republic Act No. 8550, which was passed by theCongress in 1998. The law limits access to the country’saquatic and fishery resources to its citizens, protects ther ights of f isherfol k , especial ly the r ight of municipalfisherfolk to preferential use of municipal fishing watersand regulates commercial fishing.

3.2.4 Indigenous PeoplesThe Indigenous Peoples Rights Act of 1997, Republic ActNo. 8371, declares that it is state policy to recognize andpromote al l rights of indigenous cultural communit iesand indigenous peoples w i thin the framework of thecons t i tut i on . T he law recogn izes the r ights o f theindigenous peoples to their ancestral domains, and theirrights to self-governance and empowerment, protectionof cultural integrity, and promotion of social justice andhuman r ights. T he law outl ines the procedure for thedel ineat ion and recognit ion of ancestral doma ins andcreates the National Commission on Indigenous Peoplesas the pr imary government agency responsible for theformulat ion and implementat ion of pol icies, plans andprograms to promote and protect the r ights and wel l-being of the indigenous peoples.

3.2.5 Urban PoorIn 1992 Congress passed the U rban Development andHousing Act, Republic Act No. 7279. The law commitsthe state to a program that provides housing to the poorand homeless citizens in urban areas and in resettlementareas. The law provides, among others, mechanisms forsocia l ized hous ing , rese t t lement of people l iv ing indangerous areas such as esteros (estuaries), railroad tracks,garbage dumps, r iverbanks, shorelines, waterways, andother public places. It criminalizes professional squattingand squat t i ng synd i cat es. A commun i t y mo r t gageprogram assists legally organized associations of the poorto purchase and deve lop land under the concept o fcommunity ownership.

3.2.6 WomenA number of significant legislation concerning womenfollowed the ratification of the 1987 constitution. One ofthe first laws that gave effect to the constitutional provisionon fundamental equal ity before the law of women andmen is Republic Act No. 6725, which was passed in 1989,amending article 135 of the Labor Code. The amendmentintroduced by the law made it explicit ly unlawful foremployers to discriminate against women in the workplacedue solely to their gender. Under the amended provisionof the Labor Code, the fol low ing acts were declareddiscr iminatory:

(a) payment of a lesser compensation, including wage,salary or other form of remuneration and fringebenefits, to a female employee as against a maleemployee, for work of equal value; and

(b) favouring a male employee over a female employeewith respect to promotion, training opportunities,study and scholarship grants solely on account oftheir sexes.

In 1988 the Family Code, Executive Order No. 209, becameeffective and amended certain provisions of the New CivilCode that pertain to the rights of women. The Family Codeintroduced provisions that sought to recognize the equalrights of husband and wife in marital life as regards theadministration of the conjugal property, the selection ofthe family residence, and the management of householdaffairs, among others. The Family Code also provided forthe remedy of legal separation through court action onspecified grounds. More significantly, the law introduced anew provision allowing the declaration of a marriage asvoid if one of the spouses is found to be psychologicallyincapacitated to perform essential marital obligations.

A fter the Family Code and the Labor Code amendment,the Congress enacted other significant laws on women’srights, namely:

(a) Republic Act No. 7192 (Women in Nation-BuildingAct, 1992), which recognized the ‘equality in capacity



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to act’ and declared that women of legal age,regardless of civil status, shall have the capacity to actand enter into contracts which shall in every respectbe equal to that of men under similar circumstances.The law provides that in all contractual situationswhere married men have the capacity to act, marriedwomen shall have equal rights.

(b) Republic Act No. 7877 (Anti-Sexual Harassment Act,1995) which defines and criminal izes sexualharassment in the employment, education or trainingenvironment.

(c) Republic Act No. 8353 (Anti-Rape Law, 1997) whichexpanded the previously limited definition of rapeunder the Revised Penal Code, and changed itscategory from being a ‘crime against chastity’ to a‘crime against persons’.

(d) Republic Act No. 9208 (Anti-T rafficking in PersonsAct, 2003) which defines and penalizes the offence of‘trafficking in persons’. The law mandatesconfidentiality, and directs law enforcement officers,prosecutors, judges, court personnel and medicalpractitioners, as well as parties to the case, torecognize the right to privacy of the traffickedperson and the accused.

(e) Republic Act No. 9262 (‘Anti-Violence Against Womenand their Children Act’, 2004) which criminalizesviolence against women and their children as a specialoffence defined as ‘an act or a series of acts committedby any person against a woman who is his wife,former wife, or against a woman with whom theperson has or had a sexual or dating relationship, orwith whom he has a common child, or against herchild whether legitimate or illegitimate, within orwithout the family abode, which result in or is likely toresult in physical, sexual, psychological harm orsuffering, or economic abuse including threats of suchacts, battery, assault, coercion, harassment or arbitrarydeprivation of liberty’. The law provides formechanisms for the issuance of protection orders bythe courts or the barangay officials (to a limitedextent) in order to prevent further acts of violenceagainst a woman or her child.

T he mos t recent law enac t ed tha t promo t es andoperationalizes women’s rights is Republic Act No. 9710or the M agna Car ta of Women. Enacted into law lastAugust 2009, it expands the recognition of women’s rightsinside the home, in the workplace and in other fields ofsociety.

T he M agna Carta requires the at tainment of a ‘50-50gender balance’ in third-level government positions to beequally shared by men and women. A t the local level, thelaw mandates that members of local development councilsshould be at least 40 per cent women. Incentives are alsog iven toward the establ ishment and strengthening ofpolitical parties with a strong agenda on women.

The Magna Carta also provides secur ity for women inarmed conflict and restrains government from forciblyremov ing them from their land during periods of suchconflict. This is particularly true for indigenous or Lumadwomen who require protection when caught in the crossfireand are forced to abandon their lands.

3.2.7 ChildrenRepublic Act No. 9344, or the Juvenile Justice and WelfareAct of 2006, states that it is the pol icy of the state to‘protect the best interests of the child through measuresthat will ensure the observance of international standardso f ch i ld pro t ec t i on , especi a l l y those to wh i ch thePhi lippines is a party. Proceedings before any author ityshall be conducted in the best interest of the child and ina manner which al lows the chi ld to part icipate and toe xpress h imsel f / herse l f free ly. T he par t icipat ion o fchi ldren in the program and pol icy formulat ion andimplementation related to juvenile justice and welfare shallbe ensured by the concerned government agency.

The law provides for mechanisms for the implementationof a restorat ive juveni le justice and wel fare system. I t‘recognizes the right of every child alleged as, accused of,adjudged, or recognized as having infringed the penal lawto be treated in a manner consistent with the promotionof the ch i ld’s sense of dignity and worth, tak ing intoaccount the child’s age and desirability of promoting his /



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her reintegration’. Thus, it is declared as a policy that‘whenever appropriate and desirable, measures shall beadopted for dealing with such children without resortingto judicial proceedings, providing that human rights andlegal safeguards are fully respected’. T he law l ikew isedeclares that it is state policy ‘to ensure that children aredealt with in a manner appropriate to their well-being byprov iding for, among others, a var iety of disposit ionmeasures such as care, guidance and supervision orders,counse l l ing , probat i on , fos te r care , educa t i on andvocational t raining programs and other alternat ives toinstitutional care’.

The Juvenile Justice and Welfare Act enumerates the rightsof chi ldren in confl ict w ith the law, and increases theminimum age of criminal responsibility to 15 years fromthe previous nine. Chi ldren below 18 years of age arealso exempt unless they acted w ith what the law cal ls‘discernment ’.

The above discussion shows that there are a number ofconcrete substant ive po l icies, both const itut iona l andstatutory, guaranteeing equal protection and due processto all citizens (and even foreigners), and providing specialprotection for certain groups. These substantive policiesare complemented by procedural rules prov iding forremedies for violations of rights. This will be tackled next.

T he number of laws enacted for vulnerable groups isapparently regarded by the public as an improvement inaccessing justice. This is according to the survey resultsci ted at the lat ter par t of this study. However, suchperception is only noticeable in the National Capital Region.Furthermore, a dissonance is perceived between the lawsand their implementation. On that score, the focus groupd iscussion par t icipants for th is study observed thateducation on these laws is necessary to effectively improvethe system of justice in the country over the next five years.

During the focus group discussions, it was also pointed outthat certain groups seek access to justice by means otherthan mainstream channels. Lucy Rico, a member of a Lumad(indigenous) communi ty in M indanao, expla ined that

mainstream law enforcers know little of their customarylaws. Conflicts within the community are resolved throughthe med iat ion o f a counci l o f e lders w i th the wholecommunity participating to exhaust all remedies to settleconflicts. The families involved talk over their differencesfor two to three days or until they can agree on a resolution.Through mediation and consensus, a resolution is arrivedat that is acceptable to the opposing parties. There is noneed for payment of money for the faci l itat ion of theresolution since peace is its own reward. Ms. Rico said thatthe cost of br ing ing any dispute to mainstream legalchannels is huge both in terms of money and time.

On the implementation of the Indigenous Peoples RightsAct, Ms. R ico observed that certain sections of the lawfacilitate the establishment of mining operations withinancestral domains. She underscored the contradict ionbe t ween gove r nment ’ s po l i cy o f pro t ec t i ng I Pcommunities and the current drive to revitalize mineralresources extraction including those in ancestral domainlands.

Another participant, Sultan Maguid Maruhom, explainedthe dynamics between mainstream legal channels andM us l im customar y law. H e obse r ved a b ias aga i nstMuslims exhibited by the courts whenever the opposingparty is a Christian or a wealthy person. He also lamentedthe failure of the justice system to protect people againstthe rido, the violent feuds between warring clans. Becauseof rido, many Muslims are forced to flee their homes andleave families behind.

3.3 Laws and Rules Providing Legal Remediesto All Citizens

Are there laws and rules providing legal remedies andprocedures equally applicable to all citizens? Are therelaws that discriminate, directly or indirectly, againstvulnerable groups?

Section 8 of the Universal Declaration of Human Rightsstates: ‘Everyone has the right to an effective remedy bythe competent national t ribunals for acts violating the



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fundamental rights granted him by the constitution orby law’. This declaration has a parallel provision in the1987 constitution. A rticle I I I, section 11 says that freeaccess to the courts and quasi-judicial bodies and adequatelegal assistance shall not be denied to any person by reasonof poverty. A lthough the Philippine version differs fromthe U n i ve rsa l D ec lara t i on i n the sense tha t theconst itutional provision speaks of free access instead ofeffect ive remedy, and focuses on pover ty, the provisionremains a good foundation for the right to seek remedythrough judicia l and o ther ava i lable venues for theenforcement or vindication of rights.

A rt icle V I I I , sect ion 5 of the const itut ion grants theSupreme Court the power to:

Promulgate rules concern ing the protect ion andenforcement of constitutional rights, pleading, practice,and procedure in all courts, the admission to the practiceof law, the integrated bar and legal assistance to theunder-privileged. Such rules shall provide a simplifiedand inexpensive procedure for the speedy dispositionof cases, shall be uniform for all courts of the samegrade, and shal l not diminish, increase, or modifysubstantive rights. Rules of procedure of special courtsand quasi-judicial bodies shall remain effective unlessdisapproved by the Supreme Court.

Pur suant t o th i s powe r, the Supreme C our t haspromulgated the rules of court that are appl icable tojudicial proceedings for al l types of cases. T here aredifferent sets of rules that apply to civ i l cases and tocriminal cases. Rules of procedure of quasi-judicial andadministrative bodies are generally pat terned after therules of court.

T here are no specific rules that discr iminate outr ightagainst a part icular group of lit igants seeking redress.On the contrary, there are laws and rules that seek to givespecial treatment to poor litigants. Republic Act No. 6033(1969) requ ires al l courts to exped ite the hear ing ofcriminal cases involv ing indigents and their disposit ion

w ithin a period of two weeks. Republic Act No. 6034(1969) allows poor litigants to ask the court for allowancesfor to travel to hearings as well as to cover meal and lodgingexpenses should hearings be extended the whole day andfor several days at a stretch. In addition, stenographers’notes of hearings are required to be provided for free topoo r l i t i gant s by Republ i c A c t N o. 6035 (1969) .Furthermore, the rules of court (rule 141) exempt thepoor from having to pay legal fees.

The Supreme Court’s Administrative Matter No. 08-8-7-SC which took effect on 1 October 2008 (Supreme Court2008) provides for the rules of procedure on small claimscases. It was promulgated as a ‘significant step to increaseaccess to just ice’. The Supreme Court claims that thedesignation of the small claims courts has ‘shortened thedistance between [ the Court’s] dream of justice for thepoor and the cruel reality on the ground’. W ith 70 percent of the caseloads of the f irst-level courts in MetroManila consisting of small claims cases in which manyo f the l i t igants are poor, the rule now prov ides aninexpensive and expeditious means to settle actions beforefirst-level courts (excluding Shari’ah C ircuit Courts) formoney claims not exceeding PhP100,000.00. The Courtclaims that th is is actual ly the second step under itsIncreasing Access to Justice by the Poor Program to widenthe avenues to justice for the poor.

3.4 Access to the Justice SystemIs the justice system in general accessible to all citizens,and especially to vulnerable groups needing protection?

Before discussing the quest ion of whether the just icesystem is access ible to a l l ci t izens, and especial ly tovulnerable groups, it is essential to make a quick reviewof the Supreme Court ’s Act ion Program for JudicialRe form (A PJR) and o ther related documents whichendeavoured to look into the issue of access to just ice.T he Supreme C our t ’ s assessment o f the i ssue i sparticularly significant as a self-evaluation.



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3.4.1 Action Program for Judicial ReformThe APJR, a comprehensive package of reform projectsand activities, was initially presented in M ay 2001 as afour-pronged program of reforms on: (1) judicial systemsand procedures; (2) institutions development; (3) humanresource development ; and (4) reform support systems.The reform projects and activities were ‘aimed at enhancingjudicial condit ions and performance for the improveddel ivery of judicial serv ices’ (Supreme Court 2001a: i).The Supreme Court issued a supplement in August 2001to address two important issues: (1) institutional integritydevelopment and (2) access to justice by the poor (SupremeCourt 2001b: i i).

T he A PJR identif ied the fol lowing major pol icies andstrategies under the access to justice component:

Improvement in the overall institutional capacity ofthe Judiciary for improved efficiency

Reforms in judicial systems and procedures Improving public information for the poor Initiatives that encourage reforms in judicial systems

components outside of the Judiciary – studies insubstantive law, strengthening of the PublicAttorney’s O ffice (PAO), strengthening of alternativedispute resolution (A DR) mechanisms, strengtheningof the Barangay Justice System

Legal and judicial education Assessment of the impact of judicial reform program

on access to justice by the poor.

T he A PJR ident ified the factors that hinder access toqual ity judicial services by the basic sectors (SupremeCourt 2001b: 2-2 – 2-4). T hey are: de lays in judicialproceedings, erroneous decisions rendered by lower courts,prohibitive costs of l it igat ion and inadequacy and lackof information about the judicial system. The APJR alsotried to explain the reason for why these factors exist:

Delays can also occur because the poor do not haveadequate resources to hire lawyers. T his condit ion

pro t racts the l i t igat i on process as a hand ful o fgovernment defenders attempt to service the swellingranks of the poor requiring their assistance. Whilethere are several agencies in the national governmentproviding legal services to the poor, there is a need toconsolidate or closely coordinate their activities to avoidduplication and maximize the benefits of coordinationand complementation.

I t must be emphasized, however, that the costs of delayto the poor are many and profound. T hey translate toprolonged unemployment and income foregone due todetent ion, and to further erosion of the social andeconomic condition of the accused or aggrieved partyand his family.

Decisions rendered by the lower courts are not alwaysaccurate, and, therefore, not always just and fair. Uponrev iew on appeal, the Supreme Court has had theopportunity to correct inadequacies in lower courtdecisions. By this time, however, a poor party may havealready suffered from the penalties imposed by the lowercourts.

T he costs of litigation to the poor are many. L itigationinvolves the hiring of a competent lawyer who mustbe paid for every hearing attended. T he poor, on theother hand, will be deprived of income for each day ofhear ing . And poor persons accused of cr imes loseincome during their detention.

T he state of the basic sectors is aggravated by theirignorance of the law. This might be considered as a mixedresult of their deficient appreciation of the law, theireducational status which is oftentimes deplorable, and theinability of the judicial system, agencies of the governmentand even non-governmental organisations to provideinformation and improve the basic sectors’ levels ofunderstanding. (Supreme Court 2001b: 2-2 – 2-4)



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The observations in the APJR on the issue of access tojus t ice echoed the f ind ings cont a ined in an ear l ierdocument entitled B lueprint of Action for the Judiciary.

3.4.2 Blueprint of Action for the JudiciaryIn the Bluepr int of Act ion for the Judiciary (SupremeCourt no date), a document that is considered as theimmediate predecessor of the APJR, the Supreme Courtexplained the problem of access to justice as follows:

B asic Sector Access. T he courts are perceived to beinaccessible especially by the marginalized sectors. T heinaccessibility covers both the judicial processes andthe physical layout of the Halls of Justice. In general,the marginalized groups have the least awareness andunderstanding of laws. As opined by some human rightslawyers, perhaps this can be attributed to the natureof many of our laws which are not only archaic butalien in that they are loaded with values and culturealien to F ilipinos. Another constraint in communicatingwith the basic sectors is the issue of language. T hecommon tao does not fully understand the law and courtprocedures because the latter are written in Englishand proceed ings are in the same language . M osthearings are conducted in a language in which thelitigants are not familiar. Hence, questions and answershad to be translated. L itigants have no recourse but totrust what their lawyers say in court even if the latterare unable to adequately explain what is happening.

L itigation Cost. T he apparent rising cost of litigationhas reportedly prevented some individuals from seekingredress from the courts, and has dissuaded them frompursuing judicial action, or even worse has constrainedthem to seek alternative ways of obtaining justice. Forthe marginalized sector of the populace, filing a case incourt or being dragged into a court battle is not onlytime consuming but also a heavy burden on their meagrebudget . Any expense beyond their regular fam ilybudgets will be a serious blow to their present state.T heir physical presence in court hearings deprives them

of the time to work and earn a living. (Supreme Courtno date)

The Blueprint of Action highlighted two significant factorsthat adversely affect the poor’s access to justice: (1) thesubstance of laws that are ‘loaded’ with foreign valuesand culture, and (2) the use of a foreign language both inthe written law and in court proceedings. This finding isreinforced by the results of earlier surveys that revealedthat access to just ice is imp inged upon by severa lconsiderations including resource constraints, for example,in terms of costs incurred on the part of the litigant andthe over-a l l cost imposed on the jud icia l system inadminister ing just ice, and technical it ies including thelanguage employed by the system and its labyrinthinerules. In the 2009 survey, high cost sti l l ranks as theprimary hindrance to accessing justice across geographicg roupings, income classes and deg ree o f educat ionattained. This is followed by the difficulty in getting theservices of a lawyer. Even with the annual increase in thenumber of lawyers, the perception persists that there isgreat difficulty in avai ling of the services of one. Thismay indicate a problem of meeting the demand for legalservices even in the face of a seemingly abundant supplyof attorneys.

Comparing the results of the survey conducted in 2007and the more recent 2009 survey, the perception amongrespondents that it is difficult to fight for their rights incourt has increased. This result was consistent across theboard among all respondents regardless of geographicorigin and income. Interestingly, those who said that theywould have a hard time fighting for their rights were thosewho claimed very little knowledge about the justice system.

Attorney Arellano, one of the participants in the Davaofocus group, expla ined the resource requ irements indeveloping a case. In the case of a poor farmer being killed,evidence must be gathered and leads must be fol lowed.T he gover nment , he admi t ted, lacked the necessar yresources to conduct these activities. For example, DavaoOriental in Region 11 registers the second highest number



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of criminal cases but it has only one prosecutor and onepublic attorney to handle al l of them. To address thesi tuat ion, A re l lano proposed the establ ishment of aninstitute composed of the government, the private sectorand the different law schools that will handle case buildupfor litigants who lack resources.

One innovat ion that the Supreme Court is currentlyimplement ing is the Just ice on Wheels program. T hisinvolves putting judges and court staff in special busesthat roam the provinces to hear and resolve cases. JudgeParedes from Cebu said that there were 150 cases resolvedthrough the program in his province alone. However, somejudges see the program as mere palabas, that is, largelyfor show. The original concept of justice on wheels wasfor the buses to penetrate the remote areas of the provinces,go to areas where the dockets are severely clogged, orvisit those places where the litigants and their witnessesfind it difficult to travel due to the distance between theirresidences and the courts or due to threats to their lives.This concept, according to Judge Paredes, was not followed.Each bus costs around PHP8 million plus the expense forsecur ity, repairs and the driver, money that could havebeen used to appoint judges to empty salas (courts) andto provide better facilities in detention centres.

3.4.3 Diagnostic Report: Strengthening theOther Pillars of Justice through Reformsin the Department of Justice

In the Supreme Court’s June 2003 report, Strengtheningthe Other Pillars of Justice through Reforms in the Departmentof Justice, two major constraints to citizens’ access to justicewere identified. These were the high costs of litigationand legal services and the lack of adequate knowledgeabout the law and inst i tut ions of the just ice system(Supreme Court 2004a: 173).

The report devoted a significant portion to an assessmentof the Department of Justice’s legal assistance programthrough the Public A ttorney’s O ffice (PAO). The PAO ’stask is described in the report as enhancing access to legalservices and knowledge of indigent persons who have no

means of availing themselves of the serv ices of privatelaw practitioners. According to this report, the PAO has aclientele base equivalent to 34.9 per cent of the country’spopulation, consisting of those who are considered livingbelow the poverty threshold (Supreme Court 2004a: 173).

Interestingly, the report highlights the role of PAO in allfive pillars of the criminal justice system as follows:

PAO participates in the law enforcement pillar when itrepresents the suspect or respondent during custodialinvestigation, and assists the suspect or respondent inpreparing and filing legal pleadings. I t has a role in theprosecut ion p i l lar in represent ing the suspect orrespondent during inquest and preliminary investigation,and in assisting the suspect or respondent in preparing /filing petitions and in effecting compromise agreements.

Under the judiciary pillar, the PAO acts as defencecounsel for indigent litigants at all stages of case trial,sentencing and appeal. Under the correct ions pillar,PAO conducts visits to jails and prisons to determineinmates’ legal concerns, prov ides adv ice to inmatesregarding PAO serv ices and oppor tunit ies for earlyrelease through probation, parole and other schemes,and ass ists in prepar ing lega l plead ings. I n thecommunity pil lar, PAO prov ides / disseminates legalin fo rma t i on through campa igns and f ree lega lcounse l l ing , and establ ishes l inkages w i th non-governmental organizations and other governmentagencies on provision of legal serv ices to the poor.PAO ’s other services come in the form of notar ialservices and representation of clients in other quasi-judicial bodies. (Supreme Court 2004a: 174)

Despite the PAO ’s major role as a leading institution in theeffort to enhance the poor’s access to justice especially in thecriminal justice system, public information about the PAOand its services is still inadequate. The report states that:

Many qualified indigents do not avail of PAO servicesbecause they do not know that the PAO exists. Other



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clients who hear of PAO programs for indigents arenot, however, aware of the means through which theagency services could be provided. Some clients seekPAO ’s assistance already at a late stage; case handlingwould have been less taxing and complicated if issueshave been brought to PAO ’s attention at a much earliertime. More active and comprehensive involvement byPAO in community activities will help in this advocacyeffort, which is now limited to serving as guests in radioand television programs and attending community andbarangay assemblies. (Supreme Court 2004a: 186-187)

In summary, the diagnostic report makes the interestingfinding that the PAO prov ides essential services to thepoor but has not maximized its major role in enhancingthe poor’s access to justice. The reason seems to be simplybecause the public has very limited knowledge of the officeand its services.

3.4.4 2003 Assessment of the Public Attorney’s OfficeIn another Supreme Court report specifical ly assessingthe inst itut ional capacity of the PA O to provide legalass i s tance t o the poor, the conclus ion was r athe rambivalent. The report said:

The findings indicate that the PAO, perhaps contrary tocommon perception, is able to provide adequate andaffordable access to justice for its poor clients despiteimmense resource constraints. However, the PAO appearsto have reached its peak capacity, with the limited budgetconstraining it from further expanding its services. W iththe demand for its services expected to rise even more inthe coming years, the sustainability of its operations isseverely challenged. x x x (Supreme Court 2004b: 31-32)

Further emphasizing the institutional limitations of thePA O, the repor t also pointed out a major gap in theagency ’s programming.

Access to justice also evokes questions on the standardo f just ice being prov ided by the PA O. D o es an

aggrieved indigent seek the services of the PAO as acomplainant or an accused? Apparently, if an indigentaccused does not have a lawyer to represent him, thejudge provides him with a public attorney from the ranksof the PAO.

I f, on the other hand, the complainant is indigent, thecomplaint, if criminal in nature, is first lodged with thepolice authorities, who, in turn, bring it to the attentionof the Prosecutor’s O ffice. Seldom does an indigent seeka PAO lawyer to file a civ il case on his behalf. T hesecondary data analysis does not identify the numberof civil cases wherein the indigent is the complainant.Such data would have shown that the poor actually seekredress through the justice system, from which it couldbe deduced that the poor trust the system and areempowered to use it. (Supreme Court 2004b: 39-40)

It is interesting to note that the same report included adiscussion of empowerment of the poor and emphasizedthe need to develop tools and systems that will empowerthem to assert their r ights and gain access to just ice.Unfortunately, the suggestions for empowerment centredon es t abl i sh i ng an i nd i gent card sys t em w i thoutelaborating on its features; creating a feedback mechanismt o mon i t o r the pe r fo rmance o f PA O lawyer s ; anddeveloping information materials on PAO services. No clearexplanation, however, was given on how the recommendedmeasures would i ndeed br i ng about the des i redempowerment.

3.4.5 National Survey of Inmates andInstitutional Assessment

A study on access to justice by those detained in prisonconducted in 2003 for the Supreme Court found that poorpr isoners lacked access to legal services and assistance.W ithout such services, these inmates found it difficult todeal with the complex judicial system about which theyknew and understood little. The inevitable delays in theway their cases progressed led them to lose confidence inthe system of justice (CPRM Consultants, Inc. 2003: 5-1).



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These findings led the investigators of the study to identifypolicy implications that need consideration. These addressthe unlawful delays faced by poor prisoners who lack properinformation and knowledge regarding judicial processes,who do not understand their rights and entitlements, andwho do no t ge t proper ass is tance regard ing theseprocedures. The report cited the need for a program toincrease the awareness of law enforcers, jail guards andpubl ic lawyers of these fundamental just ice issues andbarriers to justice for the poor in order to regain the trustand confidence of those in pr ison in the justice system(CPRM Consultants 2003: 3-12). On the issues of lack ofknowledge and information on the justice system and legalprocesses as major barriers to justice, this report affirmsthe findings of the previous studies considered.

Participants in the V isayas focus group discussion notedthat judges, at least in Cebu, conducted monthly jail visitsas mandated by law. Judge Paredes, E xecutive Judge ofthe Regional T rial Court of Cebu, described prison cellsas general ly being small with only t iny openings, withinmates commonly get t ing sick . He said that regularreports were submit ted to the Supreme Court on thestatus of such facilities. It was pointed out that law schoolstudents could play a helpful role by gathering prison-related data such as the status of the cases of inmatesand the condition of the detention facilities.

F rom the studies considered above, it is evident that thedifferent factors that were identified as hindering accessto justice combine problems of the institutions and theadministrators of the system with the problems sufferedby the l it igants themselves, especial ly the poor amongthem. In summary, the follow ing may be considered asthe major obstacles to litigants’ access to justice:

Problems besetting judicial proceedings, includingdelays, complexity, and erroneous decisions

Prohibitive costs of litigation and scarcity ofaffordable or free legal services

Inadequacy of information about the justice system andlegal processes, compounded by the lack of familiarityin English, the language of the law and legal processes

These problems were confirmed by the results of a serieso f reg i ona l consul t a t i on con f e rences he ld w i threpresent a t i ves o f g rassroo t s o rgan i sa t i ons andcommunit ies as primary part icipants. The consultationconferences were conducted throughout the country in2003 by the A lternative Law Groups (A LG), a coalitionof legal resource N G Os that are engaged in grassrootsempowerment and judicial and policy reform.1 In theseregional consultation conferences, the A LG members metwith their partner organisations and communities as wellas other stakeholders. The consultation conferences wereintended to involve the poor and other marginalized groupsin discussions concerning the problems of the justicesystem and the efforts to reform it, to identify specif icproblems concerning the justice system that directly affectthe poor and other marg inal ized groups, and to offerconcre te po l icy recommendat ions t o address theseproblems and concerns.

The majority of the participants were representatives ofpeople ’s and non-gover nmenta l organ isat ions. O therparticipants included judges and government officials, laws tudent s, lawye r s, membe r s o f the academe andrepresentatives from mass media. They were asked aboutthe problems that they themselves personally experiencedin trying to access the justice system, in general, and thejudiciar y, in par t icular. T he A l ter nat ive Law G roupsrepor t on the consul tat ions gathered the problemsidentified into the following major areas:

Lack of access to legal education by the poor andmarginalized groups who are generally not aware oftheir rights and the procedure for remedyingviolations of such rights. The participants reported ageneral lack of knowledge among members ofcommunities about their rights, the laws governingtheir rights and the operation of the judicial system.

Lack of information on the part of judges and otheradministrators of the justice system (like prosecutorsand police officers) about the issues concerning thepoor and marginalized groups and the special lawsgoverning them. The regional consultations showed



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that the lack of information on the part of the poorand marginalized groups was compounded by asimilar lack of information on the part of theadministrators of justice on the special needs andconcerns of the poor and marginalized and the law’saffecting these needs and concerns.

Lack of adequate legal representation before thecourts and other tribunals. Concrete problems citedunder this general area included the limited numberof lawyers who are willing to handle cases for thepoor, the expensive fees for lawyers’ services, the non-recognition of paralegals from communities whowere not given the opportunity to assist in cases, andthe prohibitive costs of court litigation, includingdirect and indirect expenses.

Lack of support mechanisms for the poor andmembers of marginalized groups who are involvedin cases. The participants cited the absence ofsupport mechanisms such as an effective witnessprotection program and adequate financial support,which makes it difficult for members of poor andmarginalized groups and communities to sustain theprosecution or litigation of a case in court.

Issuance and implementation of anti-poor policies anddecisions. These policies and decisions were cited asviolative of the rights and detrimental to the interestsof the poor. T rial judges’ erroneous assumption ofjurisdiction over agrarian related cases, and conflictinglaws on the environment were cited as some of theconcrete examples of this problem.

General discrimination against the poor andmarginalized groups within the judiciary and thejustice system. Many participants cited examples ofinsensitivity of some judges and other officials to thesituation of the poor and marginalized groups andeven reported cases of abuse or discriminationagainst these vulnerable persons.

Structural and systemic problems within thejudiciary and the justice system that impedes thepoor and marginalized groups’ access to justice. Theuse of English instead of the local dialects in court

proceedings was identified as a major obstruction tothe poor and marginalized groups’ access to justice.

Gender insensitivity and bias of the courts and othergovernment offices involved in the administration ofjustice. Many participants complained about the lowlevel of gender sensitivity in the courts and in thejustice system, and the prevailing bias againstwomen. (A lternative Law G roups, Inc. 2004: 20-27)

T hree years af te r the reg i ona l consul t at ions we reconduc t ed , the same i ssues would be res t a t ed byrepresentatives of the poor and marginalized groups inanother gathering. In June 2006, the A LG organized aNational Paralegal Conference that gathered the biggestnumber of grassroots paralegals. These paralegals weremembers of people’s and non-governmental organisations,or leaders of local communities, who had been trainedunde r a capaci t y-bu i ld ing program i n wh ich the yacquired knowledge of laws and the legal system, andskills on how to address the legal issues of their respectiveorgan isat ions and commun i t ies through the just icesys t em . T he y are the f ront l ine rs o f the poo r andmarginalized groups in accessing the justice system.

More than 150 stakeholders of justice reform, including83 paralegals (47 males and 36 females) representing 57organisations from various parts of the country, attendedthe conference and discussed common issues in accessingthe justice system. One of the culminating activities ofthe conference was a visit to the Supreme Court. Duringthe visit, the paralegals presented a manifesto on accesst o jus t i ce i ssues (cont a i n i ng the para lega ls ’recommendat ions) to the Supreme Court through itsPublic Information O ffice.

T he para lega ls ’ man i f es t o cont a i ned an e loquentpresentation of the problems of the justice system, fromthe po int of v iew of the front-l iners of the poor andmarg inalized g roups and communit ies. The statementsare worth quoting:



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D iscrimination and marginalization of paralegals beforecourts and quasi judicial bodies. T here are not enoughalternative lawyers that have the heart to work withmarginalized groups and identities. We, paralegals, arethe ones that perform many of the legal work: conductof legal research, gathering of evidence, and communitystrategizing of legal angles. Unfortunately, amid ourefforts, we are not recognized when we go to courtsand wish to represent ourselves in litigations. More so,when we go to courts, we are discriminated just becausewe are not graduates of law, not wearing formal attire,and not speaking in the English language.

E xpensive justice and complex justice system. E xpensivecourt fees, docket fees, and other expenses that areneeded in filling cases often hinder us from seeking socialjustice. D istance of courts to our communities alsohampers our access to justice. Also, the use of legaleseand the English language during hearings and in thelegal documents alienates us from the law and the legalsystem. Beyond processes, disputes could be filed inmany quasi-judicial bodies and courts (multiple entrypoints).

D elayed administration of justice, leading to loss of interestof litigants. Our cases are long and overdue and as wehave experienced ourselves, justice delayed is justicedenied. Every day, month and year that we cannot tillour lands, gather our livelihood from forests, and secureour food from the oceans means every day, month, andyear that we are less in our lives and in the bar ofjust ice.

L ack, if not absence , of training of judges and courtpersonnel on laws addressing sectoral issues. We recognizethat our issues are not the subjects of law training. Inmany instances, issues concerning agrar ian reform,urban housing, coastal management, and indigenouspeople’s rights are not appreciated by judges and courtpersonnel.

L ack of designated courts. Amid the presence of ourMoro brothers and sisters in Manila like Taguig andQuiapo, we do not have Shari’a courts in these places.Environmental courts are sorely missing too.

L ack of court personnel and huge gender disparity amongcourt personnel. In many places, there are not enoughjudges that could attend to our cases. Women are alsonot sufficiently represented in our just ice system.(Alternative Law Groups, Inc. 2006)

The same litany of issues already discussed by the variousrepo r t s cons ide red ear l i e r was repea t ed a t theseconsultations and the paralegals’ conference. There aresignif icant addit ions, however, l ike the inadequacy ofcourts and court personnel , the issuance of ant i-poorpolicies and decisions, general discrimination against thepoor, and the marginalization of paralegals.

At the same time, significant points arose concerning thelack of information. F irst, it is interesting to note thatlack of information was identified not only as a problemof the poor but also as a problem of the administratorsof justice who lack information on the issues concerningthe poor and marginalized g roups, and the special lawsgoverning them. Second, it must likewise be pointed outthat the paralegals, who are knowledgeable about theirrights and about the operations of the legal system, stillexperience difficulties in accessing the justice system. Thisonly shows that while addressing the issue of the poor’slack of information about their rights and about the justicesystem is important in improving access to justice, thisalone w i l l no t be an adequate measure. In short , thecapacity problem includes the issue of information but isa lot more complex.

These problems still permeate the justice system in thecountry today. Data culled from relevant surveys showthat there has been no significant improvement in thepublic’s perception on matters concerning access to justiceby the poor and marg ina l ized. M ost o f the surveyrespondents believe that the rich and poor are not equally



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treated in court. A lthough more judges believe that thepoor have access to justice, lawyers believe that the paceby which the system delivers justice to the poor is veryslow. An even fundamental issue is that, from the viewpointof legal practitioners, the enforcement of laws at the levelof the police is very problematic.

Judge Paredes of Cebu lamented the inequality betweenthe rich and the poor in terms of accessing just ice fromthe courts. A lthough he admitted that the rules of thegame apply equally to both the r ich and the poor, and insome instances the poor are even favoured by the law,the just ice system is sti ll lopsided against the poor. Heat t r ibuted th is to the fact that Phi l ippine socie ty isdominated by the rich and powerful who wield pol it icalpower. E ven if the rules are the same for everybody, thest ructure o f socie t y perm i ts the r ich to accumulatepower.

The 2008 Statistical Indicators on Philippine Developmentnoted that:

In terms of achiev ing hol ist ic reforms in the cr iminaljust ice system, there is a need for a more v igorousimpl emen ta t i o n o f th e s t ra t eg i e s in te rms o fe xpedi t ing reso lut ion o f cases, const ruct ion andrepair of jail facilit ies and rehabil itat ion programsfor pr isoners. T here is also a need to improve on theprov is i on o f free lega l ser v ices, recru i tment o fqual ified prosecutors, advocacy on the a l ternat ived ispute reso lut ion , and fund ing for e ffect ive andefficient safekeeping and rehabil itat ion of pr isoners.(N at iona l S ta t i st ica l Co ord inat ing Board 2008:< h t t p : / / w w w . n s c b . g o v . p h / s t a t s / s t a t d e v /default .asp>)

T able 3.1 below reveals that the number of ind igentpersons served by PA O decreased from 2006 to 2007.This performance was rated as average.

Table 3.1 Number of indigent persons served by the Public A ttorney ’s O ffice

St rategy / T arget Ind icator A ccompl ishments vs. T argets Per formance

F ree legal Number Numberserv ices of ind igent of ind igentimproved persons persons

served by served bythe Publ ic PA OA t torneysO ff ice

Source: PA O decreased from 2006 to 2007Source: T able reproduced from N at ional Statist ical Coordinat ing Board, ‘2008Stat ist ical Ind icators on Phil ippine D evelopment’ , at < http: / /www.nscb.gov.ph / stats / statdev / 2008 / ruleoflaw / Chapter_ruleoflaw.asp >

L ikewise, table 3.2 reveals that the prosecutor to case ratiodecreased, showing a slight improvement in performance.However, the rate of disposition of cases investigated bythe prosecutors dropped from 86 per cent in 2004 to 80per cent in 2007.

Table 3.2 Prosecutor to case rat io and dispos it ion rate of cases invest igated


Recru i tmen t of Prosecutor Rat io ofquali f ied to case ratio prosecutorprosecutors Source: to casesintensif ied NA P ROS declined from

1:322 in 2004to 1:228 in2007

Reso lu t i on o f D isposi t ion D isposi t ioncases expedited rate of cases rate of cases

invest igated invest igatedSource: dropped fromNA P ROS 86 percent in

2004 to 76percent in2005 butstar ted torise in 2006

Source: T able reproduced from N at ional Stat ist ical Coord inating Board,‘2008 Stat ist ical Ind icators on Phi l ipp ine D evelopment’ , at < http: / /www.nscb.gov.ph / stats / statdev / 2008 / ruleoflaw / Chapter_ruleoflaw.asp >



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T able 3.3 shows the ever increasing congestion of jails inthe count ry. T h is i s a c lear ind i cato r o f the poorperformance of prison authorities.

Table 3.3 Congest ion rate of pr isons


Construction and Congest i on Congest i onrepair of jai l rate of rate offacilities pursued prisons prisons

Source: con t inuedBuCo r to r ise

Source: T able reproduced from N at ional Stat ist ical Coord inating Board,‘2008 Stat ist ical Ind icators on Phi l ipp ine D evelopment’ , at < http: / /www.nscb.gov.ph / stats / statdev / 2008 / ruleoflaw / Chapter_ruleoflaw.asp >

As regards the disposition of cases pending before thecourts, table 3.4 shows the increasing backlog in the ratethat courts are able to dispose of cases. The table illustratesthe disposition rate of cases in various lower level courtsin the country between 1999 and 2007:

Table 3.4 Court-case disposit ion rate by type of court, 1997-2007 (in per cent)

Court 1999 2000 2001 2002 2003 2004 2005 2006 2007

To ta l 0 .59 0 .63 0 .69 0 .70 0 .70 0 .74 0 .82 0 .85 0 .85

Supreme Court 1 .22 1 .10 1 .10 1 .00 0 .98 0 .97 ... ...

Court of Appeals 0 .77 0 .87 0 .99 0 .93 1 .00 0 .96 ... ... 1 .24

Sand iganbayan 0 .80 1 .46 1 .48 1 .28 3 .75 1 .98 0 .97 1 .17 2 .24

Court of T ax Appeals 0 .74 0 .78 1 .10 0 .84 0 .72 0 .73 0 .71 1 .21 1 .28

Reg ional T r ial Courts 0 .69 0 .71 0 .72 0 .68 0 .64 0 .69 0 .79 0 .79 0 .78

Court 1999 2000 2001 2002 2003 2004 2005 2006 2007

M e tropo l i tan T rial Courts 0 .43 0 .45 0 .49 0 .59 0 .60 0 .68 0 .76 0 .73 0 .75

Mun icipal T r ial Courts in C ities 0 .59 0 .64 0 .73 0 .79 0 .75 0 .87 0 .84 0 .88 0 .93

Mun icipal T r ial Courts 0 .61 0 .62 0 .80 0 .72 0 .79 0 .77 0 .89 1 .03 1 .03

Mun ic ipal C ircuit T rial Courts 0 .64 0 .67 0 .73 0 .75 0 .80 0 .76 0 .95 1 .12 1 .16

Shari ’a D istr ict Courts 1 .06 1 .03 0 .78 0 .81 2 .80 1.5 1 .17 0 .77 1 .65

Shar i’a C ircui t Courts 0 .97 0 .90 0 .98 0 .93 0 .66 0 .89 0 .90 1 .07 0 .82

Note: Court-case d isposi tion rate is the rat io of total cases in a year overtotal cases f iled. A ratio of less than 1 indicates an increasing back log;greater than 1, decreasing back log; and equal to 1 means that the back logis being maintained.Source: T able reproduced from N at ional Stat ist ical Coord inating Board,‘Statist ics: Publ ic Order, Safety and Just ice’ , available at < http: / /www.nscb.gov.ph / secstat / d_safety.asp > , accessed 9 Apr il 2009

In terms of actual number of cases disposed, theSupreme Court reported that:

At the end of 2006, our lower courts had a total of714,782 pending cases. By December 31, 2007, thatnumber stood at 675,368, a decrease of 39,414 pendingcases. T he decrease is significant consider ing that324,521 new cases were filed in 2007.

Despite the limitations brought about by the Judiciary’slimited physical, financial, and human resources, in 2007it disposed of 416,979 cases as follows: 273,299 caseswere decided or resolved; 119,790 were archived; and23,890 were transfer red to other courts. (SupremeCourt 2007: 31-34)

T ables 3.5 and 3.6 show the status of cases in the variouslower courts for the years 2006 and 2007, respectively.



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Table 3.5 D ispos it ion of cases, as of year end 2006

Courts Pending Cases Newly F iled Rev ived / Rcvd fromReopened Other Salas

R T Cs 358 ,495 184 ,908 11,893 10,635

M E T Cs 129 ,702 58,755 12,807 817

M T CCs 101 ,885 57,564 8,128 2,612

M T Cs 67,604 28,850 2,306 1,260

M C T Cs 58,695 18,178 1,941 614

SDCs 6 0 2 6 1 6 0

SCCs 341 240 7 8

T O T A L 714 ,782 324 ,521 37,098 15,946

Source: T able reproduced from Supreme Court, Annual Repor t 2007 (Mani la:Supreme Court, 2007) p. 33

Table 3.6 D ispos it ion of cases, as of year end 2007

Courts D ecided / A rchived T ransferred Pending CasesResolved to O ther Salas as of 12 / 31 / 07

R T Cs 128 ,522 44,714 12,432 360 ,263

M E T Cs 44,139 38,839 5,580 113 ,523

M T CCs 53,676 22,470 3,430 90,613

M T Cs 25,645 8,443 1,331 60,601

M C T Cs 21,073 5,227 1,117 50,011

SDCs 4 3 3 0 5 8

SCCs 201 9 4 0 301

T O T A L 273 ,299 119 ,790 23,890 675 ,368

Source: T able reproduced from Supreme Court, Annual Repor t 2007 (Mani la:Supreme Court, 2007) p. 33

T he repor t a lso said that the Court of Appeals, theSandiganbayan and the Court of Tax Appeals likewise wereburdened by many cases. In 2007, the Court of Appealshandled 30,867 cases, the Sandiganbayan 2,627 and theCourt of Tax Appeals, 1,198, as shown in table 3.7.

Table 3.7 Number of cases in three special courts and disposal rate

Case Case % of CaseInput O utput D isposal

Court of A ppea ls Judicial M at ters 30,867 13,245 42 .9%

Sand iganbayan Judicial M at ters 2,627 380 11 .72%

Court of T ax Appeals Judicial M at ters 1,198 405 33 .8%

Source: T able reproduced from Supreme Court, Annual Repor t 2007 (Man ila:Supreme Court, 2007) p. 34

T he Supreme Court was not excluded from this heavycase load. It had 16,188 cases in 2007 of which the Courtdisposed more than half––8,303 cases. This is shown intable 3.8 below.

Table 3.8 Number of cases brought before the Supreme Court and rate of disposal

Case Case % of CaseInput O utput D isposal

E N BA NC Judicial M at ters 752 311 41 %

Adm in istrat ive Matters 766 492 64 %

F irst D iv ision Judicial M at ters 3,223 1,865 58 %

Adm in istrat ive Matters 1,109 698 63 %

Second D iv ision Judicial M at ters 3,918 2,257 58 %


T hird D iv ision Judicial M at ters 3,726 1,318 35 %


Source: T able reproduced from Supreme Court, Annual Repor t 2007 (Man ila:Supreme Court, 2007) p. 34

Faced w ith these cha l lenges, the Supreme Court hasactively engaged in justice reform initiatives in order toimprove access to justice by the poor and other vulnerablegroups.



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3.5 Criminal Justice SystemHow far do the criminal justice and penal systemsobserve due process in their operations? How far dothe criminal justice and penal systems provide rules ofimpartial and equitable treatment? Is the criminaljustice system working equally for both poor and richlitigants?

The right of a person to due process and equal protectiono f the laws occup ies a pre-em inent pos i t ion i n theconstitution’s Bill of Rights. Section 1, article I I I statesthat ‘No person shall be deprived of life, liberty or propertywithout due process of law, nor shall any person be deniedthe equal protection of the laws.’ Section 14 provides inparticular that ‘No person shall be held to answer for acriminal offense without due process of law.’ In criminalcases, the requirement of due process of law ‘requires thatthe procedure establ ished by law be followed. I f thatprocedure fully protects life, liberty, and property of thecitizens in the State, then it will be held to be due processof the law.’

T he r ights of an accused in criminal prosecut ions arelikewise constitutionally guaranteed. Article I I, section 14(2) of constitution says:

In al l cr iminal prosecut ions, the accused sha l l bepresumed innocent until the contrary is proved, andshall enjoy the right to be heard by himself and counsel,to be informed of the nature and cause of the accusationagainst him, to have a speedy, impartial, and public trial,to mee t the w i tnesses face to face , and to havecompulsory process to secure the at tendance o fwitnesses and the production of evidence in his behalf.H owe ve r, af te r ar r a ignment , t r ia l may pro ceednotwithstanding the absence of the accused: Provided,that he has been duly notified and his failure to appearis unjustifiable.

F lowing separately from the due process clause earliercited, the rights of a person under custodial investigationare also constitutionally guaranteed. In addition, a citizen’s

free access to the courts, quasi-judicial bodies and adequatelegal services, as well as the right to a speedy dispositionof the case, are given constitutional protection. The rightto bail of all persons, except those charged with offencespunishable by reclusión perpetua (a form of life sentence)when evidence of guilt is strong, is also a constitutionalguarantee. F rom these rights are derived the provisionsin the Rules of Court on bail and the rights of an accusedin criminal proceedings.

Pursuant also to these constitutional mandates, RepublicAct N o. 7438 o f 1992 detai ls the r ights o f personsarrested, detained or under custodial invest igation andenumerates the duties of public officers in these instances.Significantly, the law penalizes ‘any arresting public officeror employee, or any invest igat ing off icer, who fai ls toinform any person arrested, detained or under custodialinvestigation of his rights’ enumerated under the law. Italso punishes ‘any person who obstructs, prevents orprohibits any lawyer, any member of the immediate familyo f a pe rson ar res t ed , de t a i ned o r unde r cus t od i a linvestigation, or any medical doctor or priest or religiousm in i st e r chosen by h im or by any member o f h i simmediate fami ly or by his counsel, from visit ing andconferr ing privately with him, or from examining andtreating him, or from ministering to his spiritual needs atany hour of the day or, in urgent cases, of the night.’

There are, therefore, ample constitutional, statutory andprocedural guidelines that protect the rights of a personaccused o f a cr im ina l offence. T his notw ithstand ing ,cr it icisms abound that the Phi l ippine cr iminal just icesystem does not work equal ly for rich and poor al ike.Problems such as racial or ethnic bias, access to affordableservices of attorneys and prohibitive costs of litigationseriously erode in reality the rights guaranteed in law.

Global Integrity (2009) describes itself as an independentnon-prof it prov ider of informat ion on corrupt ion andgovernance. It puts out an annual report or indicator thatrates national-level efforts to implement anti-corruptionand improve governance. Each count ry repor t is puttoge ther by an in-count ry team o f researchers and



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j our na l i s t s that gene r at es ‘quant i t at i ve dat a andqualitative report ing on the health of a country’s ant i-corruption framework’ (G lobal Integrity 2009: <http: / /repor t .globa l integ r it y.org / me thodo log y.cfm> ) . E achcountry assessment includes two components, a Reporter’sNotebook that tells a qualitative story about a country’sat tempts at ar rest ing cor rupt ion , and a quant itat iveIntegrity Indicators scorecard that ‘assesses the existence,effectiveness, and citizen access to key governance andant i-corrupt ion mechanisms through more than 300actionable indicators’ (G lobal Integrity 2009: <http: / /report .globalintegrity.org /methodology.cfm>).

The 2008 scorecard for the Philippines rated the country’sant i-corrupt ion and rule o f law overal l framework asmoderate. While the country’s ant i-corrupt ion law wasconsidered to be very strong, the agency established toimplement it was characterized as being only moderate.What brought the general indicator down was the factthat rule of law and law enforcement were graded as veryweak and weak, respectively (G lobal Integrity 2008: 10-11). These ratings are calculated from the responses tofactual questions that are posed to the research team whichare then subjected to a peer review process.

The above discussion leads the assessment to concludethat whi le laws exist that seek to improve the access ofthe poor and other marginalized groups to just ice, theimpl emen t a t i o n o f t hes e la ws has be en a b i gdisappointment to the groups that they seek to benefit.What is more, the institut ions establ ished to enable thesetarget groups to improve their access to just ice haveperformed poorly, hobbled perhaps by the sk impinessof resources assigned to them but also by the inst itutions’own shor tcomings, lack of resolve, and an inabil ity toreal ly understand the needs of the groups that they aresupposed to serve. T he Supreme Court ’s program toimprove access to justice for the poor is one at tempt toremedy this weakness but more needs to be done.

3.6 RecommendationsIn sum, it can be said that there are sufficient laws thatensure, on paper, the access of citizens to justice in thePhi lippines. However, the implementat ion of such lawsleaves much to be desired. To address this, the followingmeasures are proposed:

Ensure the full and effective implementation of lawsthat seek to improve access of citizens to justice.Invoke the oversight function of Congress throughthe various committees in order to monitor theimplementation of these laws. Specific attention mustbe given to laws addressing the needs of vulnerablesectors such as labour, farmers and fishers, womenand children, migrant workers, indigenous people, theurban poor, and those detained in prison. Involvecivil society advocates and other interest groups inorder to achieve a balanced assessment of theimplementation of these laws and a truthfulidentification of policy gaps that need to beaddressed.

Strengthen the institutions tasked with responsibilityof making justice accessible to the citizens.Specifically, ensure that sufficient resources areallotted to such government agencies and that suchresources are judiciously used. For example, despitethe significant role that the Public A ttorney’s O fficefulfils within the justice delivery system, it does notreceive substantial support in terms of budgetallocation and capacity building for its personnel.Similarly, prosecutors in various parts of the countrycontinuously complain not only of lack of resourcesbut also of lack of security for their lives since theyregularly file cases against dangerous elements ofsociety such as drug lords.

Promote and increase awareness of the barangayjustice system and the different forms of alternativedispute resolution (A DR). The barangay captain andmembers of the Lupon Tagapamayapa (Peace Council)play a crucial role in resolving disputes at the firstinstance of occurrence. By settling disputes at the



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community level, parties no longer need to litigateand further clog court dockets. On the other hand,different A DR mechanisms, such as arbitration andmediation, are already in place under Republic ActNo. 9285 (2004). By increasing the knowledge ofpeople regarding the different A DR mechanisms, theyare provided with alternatives to litigation, therebyincreasing their access to justice.

Revisit the recommendations made in the ActionProgram for Judicial Reform.

Under take capacity building trainings and seminarsfor public officers engaged in the delivery of justice.For example, judges and court personnel must beintroduced to fundamental issues faced by vulnerablesectors to appreciate the various nuances involved.Law enforcers, on the other hand, must continuouslybe trained in human rights promotion.

Increase the awareness of the poor and vulnerablesectors in order for them to assert their rights andarticulate their interests. A continuing educationprogram must be established in order to integrate inthe minds of the people the value of rule of law andthe different mechanisms that citizens can use toaccess justice.

Decrease the price tag of justice. Measures must bemade to cut down the costs of accessing justiceespecially for poor litigants. This would entailreviewing the current policy on indigent parties orpauper litigants and the strengthening of the PAO.In terms of decreasing the time it would take toresolve a dispute thereby decreasing costs,mechanisms such as the small claims court andsummary proceedings must be promoted togetherwith A DR.

Endnote1. Details of the consultation conferences were published in the

book, F rom the G rassroots: T he Justice Reform Agenda of the Poor andMarginalized, and is available online at the A lternative LawGroups website, <http: / / www.alternativelawgroups.org /upimages / from%20the%20grassroots.pdf >

References and further readingAlternative Law Groups, Inc., From the Grassroots: The Justice Reform

Agenda of the Poor and Marginalized, (Quezon City: AlternativeLaw Groups, Inc., 2004), available at <http: / /www.alternativelawgroups.org /upimages / from%20the% 20grassroots.pdf >

Alternative Law Groups, Inc., ‘Collecting Stor ies, E xchangingModels’, Proceedings of the National Paralegal Conference,S E A M E O - Inno tech , Q ue zon C i ty, 26-30 June 2006 ,unpublished

CPRM Consultants, Inc. N ational Survey of Inmates & InstitutionalAssessment F inal Report July 2003 (Manila: Supreme Court andUnited Nations Development Programme, 2003), available at<http: / / apjr.judiciary.gov.ph / pubrepor ts / Survey%20of%20Inmates%20F inal%20Report.pdf >

Global Integr ity, ‘Global Integr ity Homepage’, 2009, availableat <http: / / www.globalintegr ity.org / index.cfm>

Global Integr ity, G lobal Integr ity Scorecard: Philippines 2008(Washington DC: G lobal Integr ity, 2008), available at <http: // r e p o r t . g l o ba l i n t e g r i t y. o r g / r e p o r t P D F S / 2008 /Phil ippines.pdf >

N at ional Stat ist ica l Coord inat ing Board, ‘2008 Stat ist icalIndicators on Philippine Development’, available at <http: / /www.nscb.gov.ph/ stats / statdev /default.asp> , accessed March2009

National Statistical Coordinating Board, ‘Statistics: Public Order,Safety and Justice’, available at < http: / / www.nscb.gov.ph /secstat /d_safety.asp> , accessed 9 Apr il 2009

Supreme Court , Blueprint of Action for the Judiciary (Manila:Supreme Court, no date)

Supreme Court, Action Program for Judicial Reform 2001-2006(Manila: Supreme Court, 2001a)

Supreme Court, Action Program for Judicial Reform 2001-2006Supplement (Manila: Supreme Court, 2001b)



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Emerging Challenges Facingthe Rule of Law: From theGlobal to the Local

4.1 Counter-terrorism and InsurgencyHow is local counter-terrorism and anti-insurgencypractice conditioning the rule of law and to what extenthas the global war on terror influenced local laws andpractices?

One feature of life in the Philippines is the presence ofpersistent political violence. Such violence comes in variousforms and emanates from various sources. Among thesources are: ad hoc violence in response to specific events,pr ivate armed g roups backed by po l i t ical ly powerfulindividuals or families (and often used to intimidate voterso r cand idat es dur ing e lec to ra l exerci ses) , M arx is tinsurgents and Muslim secessionists. Among the Muslimsecessionists is the Abu Sayyaf Group (ASG), a networkof groups with var ious clan connect ions and a historythat goes back to the mujahedeen in A fghanistan in the1980s.

The New People’s Army (NPA) of the Communist Partyo f the Ph i l ipp ines (CPP) cla ims to operate in 9,000barangay (villages) across 128 fronts with an expandingstrength of 13,000 fighters (Communist Par ty of thePhilippines 2009). The Armed Forces of the Philippines(A F P) estimates that they are active in only 62 barangaywith the number of fighters falling from 7,000 fighters in

4

Supreme Court, Strengthening the Other Pillars of Justice throughReforms in the Department of Justice: D iagnostic Report, June 2003(Manila: Supreme Court, 2004a)

Supreme Court, 2003 Assessment of the Public Attorney’s Office (Manila:Supreme Court, 2004b)

Supreme Court, ‘Re: The Rule of Procedure for Small ClaimsCases’, A .M . No. 08-8-7-SC , 9 September 2008, available at<http: / / www.lawphi l.net / cour ts / supreme / am/ am_08_8_7_sc_2008.html>


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2008 to a little over 6,000 now. In terms of the effectsupon civilians, an Ibon Foundation report (2006: 5) forthe U n i ted N at ions I nte r nat i ona l Ch i ldren ’ s F und(U N IC E F) stated: ‘ The ratio of civilian casualties to armedconfrontations was lowest in the case of the NPA (one ineight) followed by the Moro Islamic L iberat ion F ront(M IL F) (one in five), the Moro National L iberation F ront(M N L F) (one in two) and the ASG (one to one). L ikewise,the ratio of civilian to combatant casualties is lowest inthe case of the NPA (one in twenty-eight), followed bythe M IL F (one in eleven), the M N L F (one in five) and theASG (one in eight).’ ID M C reported that in 2007, clashesbetween the NPA and the A F P resulted in the displacementof 3,000 Ata-Manobo (an indigenous peoples group inM indanao) from eleven communities and of more than30,000 in Reg ion 4-A of wh ich 9,000 were chi ldren( In te r na l D isplacement M on i t o r i ng Cent re 2007) .However, national figures for displacement are difficult toascertain because of the widespread and sporadic natureof these encounters. Communities may find themselvesdisplaced on a number of occasions as the opposing forcesadvance and retreat as is the case with guerrilla warfare.

In the case of the M IL F, and even of the ASG, the areasof inf luence are more conf ined and the nature o f theconf l ict is more pos it ional , hence f igures for civ i l iandisplacement are easier to determine. Last 2008 saw morethan 300,000 displaced following the breakdown of peacetalks w ith the M IL F. To date, many of them have notreturned home for fear of their safety, despite attemptsby government agencies to persuade them to do so.

A side from causing physical dest ruct ion and humandisplacement, such conflicts have also inhibited economicact iv i t ies, depr ived hundreds o f thousands o f thei rl ive l ihoods and le f t ch i ldren unable to pursue thei reducation. Health services have also been interrupted andinfrastructure destroyed. A t the same time, the conflictshave seen local government personnel, and even staff fromnat ional government agencies, also fleeing the confl ictzones. Those most frequently affected are the rural poor.The effects of these armed conflicts, in turn, impact upon

the ability of civilians to exercise their democratic rights,ei ther because they are coerced or int imidated frominteracting with government, or because government isunable to access civilians or is ineffectual in doing so. Inaddition, the provision of compensation for damages andinjuries incurred as a result of these clashes is usual lyarbitrary; more commonly, compensation is not availableat all as armed perpetrators are not properly subjected tothe regular rule of law.

The persistence of such groups already belies the claimso f ful l rule o f law throughout the te r r i to ry o f thePhilippines. A lso, some Muslim groups maintain that thePhilippine state is the direct descendent of both Spanishand American colonisations of M indanao to which theydid not succumb, and thereby dispute thei r status asPhilippine citizens.

Aside from the fact that these claims lie within the localdiscourse on citizenship and territoriality, there is the needto consider the w ider discourse on terrorism that hasemerged globally. This is especially relevant within thecontext of a long-term insurgency that is regarded witha degree o f leg i t imacy by s ignif icant sect ions o f thepopulat ion. I t is part icularly important , therefore , todistinguish between insurgency and terror ism, not justat the conceptual level but also at the operational level atwhich laws are passed and implemented. This is importantnot solely due to the need to respect the human rights ofthe accused or because of internat ional obl igations torespect the rights of all peoples to self-determination butalso because it makes sense in the construct ion o f afunctioning democracy.

A d i st inct i on be tween insurgency and t er ror ism isnecessary for the two have become conflated under theprevious US administration, just as they appear to havebeen long conflated in the Philippines. Terrorism is alsobeing described as a ‘threat to democracy’ but it is notaimed at democracies alone. Countries that may not befully democratic have also been subjected to terroristattacks.

Emerg ing Cha ll enges F ac ing th e Rul e o f L a w: F ro m th e G lo ba l t o th e Lo ca l


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This gives lie to the view that the war on terror is simplyabout the protection of democracy, even if terrorism isthe produc t o f ideo log i ca l con f l i c t w i th rul i ngestablishments. Essentially then, for the purposes of thisstudy, we define terrorism as the use of mass attacks oncivilians for ideological, but not necessarily negot iable,ends. The term describes methods and tactics rather thanultimate goals.

In today ’s world, counter-terrorism, because it comesunder the rubric of a ‘global war against terror’ with itsattempts to establish a broad ideological ‘them versus us’world view, has become a much broader and more viciousprocess affecting all institutions. Counter-insurgency, onthe other hand, is generally localized with an immediateimpact on, and may be the consequence of, military tacticsand the performance of the regular funct ions of theciv i l ian e xecut ing agencies of government . In manyrespects, the failure to appreciate this distinction has beena major problem among US strategists in years past inI raq. By conf lat ing counter-ter ror ism w i th counter-insurgency, they found that their tact ics and strategyencouraged not only an anti-occupation insurgency buta lso led to increas ing suppor t fo r t er ro r ism i n i tsideological and tactical senses among insurgents with apopular base who opposed foreign occupation. In manysenses this failure contributed to the further breakdownof the rule of law rather than its reconstruction followingthe controversial removal of Saddam Hussein’s regime.

These are all important considerations for the Philippines,which is not only host to the longest running Marx istinsurgency in Southeast Asia but also to a number ofU N , US and European Union listed terrorist organisationsand individuals. L isted as a terrorist organisation is theCommunist Par ty of the Phi l ippines and its N at ionalDemocratic F ront (N D F), an inclusion that constitutes amajor barrier to peace negotiations. This is perhaps ironicsince consistent al legat ions o f ideo log ica l , log ist ica l ,training and financial l inks with listed terrorist groupshave been alleged to have occurred with the M IL F, themain organ of an armed movement for Muslim autonomy

in the south, with whom negotiat ions have falter inglyproceeded until late 2008 when a settlement opposed byM indanao settlers and Manila elites was hastily aborted.

Negotiations with both organisations have not prosperedexcept for an unimplemented agreement on human rightswith the N D F and a junked agreement with the M IL F.While terrorism is now defined in Philippine law, it is aloose definition and seems to make little difference to thePhilippine government’s choice of who to add to the listof proscribed organisations as determined by the USA ,Europe and the U N . This is ev idence of the legal andstrategic inconsistencies of the government.

N ever theless, it is important to be real istic about thethreats facing the Philippines. Human Rights Watch, inits 2007 report, L ives Destroyed: Attacks on Civilians in thePhi l ippines, estimated that 400 civ i l ians were k i l led inM indanao, Basilan, Jolo and other southern islands as aresult of 40 bombings and simi lar at tacks on civ i l iantargets. A total of 1,700 civilian have died between 2001and 2007, all victims of direct acts of terrorism, accordingto the same report.

There also exist links to international terrorism. JemaahIslamyah (JI), responsible for the Bali bombings in 2002,and KO MPA K (Komite Aksi Penanggulangan Akibat Krisisor Crisis Management / Prevention Committee), a splintergroup o f J I , bo th groups o f I ndones ian or ig in , arereported to have linked with the M IL F and with remnantsof the M N L F. There is also indication of a direct link toAl-Qaeda in the form of the Bojinka plot. The plot calledfor simultaneously blow ing up twelve airliners as theytravelled to the USA from Asia. A co-conspirator in theplot was Khalid Sheikh Mohammed, one of the allegedmasterminds of the 9 /11 attacks. The plot also supposedlycalled for the assassination of Pope John Paul II, The wholescheme was reportedly financed by A l-Qaeda.1

T hese l inks imply that the Phi l ipp ines is affected byinternational terrorism, which may well be exacerbatingdomest ic at tacks. T hese external g roups may also beencourag i ng cont inu ing loca l res ist ance re lat ed to



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histor ical grievances over sovereignty, land rights, andpol it ical and cultural marg inal isat ion, mak ing it nighimpossible to obtain domestic settlement using peacefulpo l i t ical means. Fur thermore, these l inks prov ide arationale for the continued presence of US forces and maydrive the state to take more repressive measures and tofurther erode the d ist inct ion be tween civ i l ians andcombatants in the M us l im areas. T he rea l i ty is thatM usl ims are a l ready ravaged by arb i trary e lectora lprocesses consist ing of large-scale disenfranchisement ,vote-buying, intimidation and fraud conducted at the willof local el ites and often in conjunct ion w ith nat ionalofficials,2 discrimination in employment and the deliveryof basic social services, house-to-house searches, torture(for example,. the suspected torture of 28 people in Basilanin June-July 2001 as reported by Amnesty International(2003)), and the constant presence of checkpoints.

Bo th the M usl im and communist insurgencies haveaffected large numbers of civilians. As of 27 January 2009,the National D isaster Coordinating Council estimated thenumber of internally displaced people (IDP) in RegionsX , X I I and the Autonomous Region of Muslim M indanaoas a result of hostilities to be 314,047 persons (NationalD isaster Coordinating Council 2009: 6). This figure doesnot include IDPs in Sulu or those displaced by clasheswith the NPA . According to the website NationMaster.com,the Philippines ranked tenth in the number of most IDPsin 2007.

The apparent inability or refusal of military and politicals t ra t eg i s t s t o d i s t i ngu i sh be t ween t e r ro r i sm andinsurgency is a major issue. It represents an obstacle inthe resolution of these conflicts. It is also the reason whythe warring parties have failed their duty to protect theciv i l ian populat ion. T he result is the deter iorat ion ofdemocratic processes and life in many communities, whichcreat es a popular base f o r armed d i ssent , and thediminution of the rule of law and trust in governinginstitutions.

T he d i re consequences o f conf la t ing ter ror i sm andinsurgency are pointed out by the Internat ional Cr isisGroup (IC G 2008) in a well-researched paper. The IC Gis made up of eminent statespersons, including N obelpeace prize winner Martt i Ahrtisaari as chair emeritus.The IC G paper makes a useful distinction between terroristand insurgent groups and says that ‘the crux of counter-terrorism in the Philippines is to separate terrorists frominsurgents’ (International Crisis Group 2008: 2). Failureto do so, it warns, may push the M IL F and elements ofthe M N L F, groups that the paper characterizes as beingat the insurgent end of the spectrum, toward closer tieswith the Abu Sayyaf, a group that is at the other (terrorist)end. T he paper cites the example of the Ad-Hoc JointA ct ion G roup (A H J A G) , a coord inat ing mechan ismbetween the M I L F and the gover nment for shar ingintelligence on terrorist groups and other lawless elementsand avoiding accidental encounters between governmentforces and the M IL F as the former pursued those groups.This allowed the government to successfully remove theAbu Sayyaf from much of Basi lan and SouthwesternM indanao. The A HJA G, however, was allowed to lapse inJune 2007 without being renewed.

As Sidney Jones of The Asian Wall Street Journal put it,‘ ter ror ists don ’t create conf l icts, they e xplo i t them .Ultimately, a jihad at home serves the interests of terroristsfar more than one abroad because de fense o f fel lowMuslims becomes defense of family and friends. Not onlyrecruitment, but also fund-raising becomes much easier.’(Jones 2004). What must be addressed in order to combatterrorism is the nexus between terror ist networks anddomest ic insurgency more than the nexus be tweeninsurgency and the populace. Failure to attack the formernexus allows extremists to exploit local grievances andcreate for themselves local bases within which to moveand operate freely according to no law but their own.E f fect ive conf l ict resolut ion, including the necessarypolitical and economic settlements, which must also includeagreements on achiev ing substant ive rule of law, w il lresolve the causes of insurgency. However, it is necessary



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to ensure that the path to these sett lements prov idesneither hiding places for terror ist groups nor stal l ingpoints for entrenched political elites as happened with thefai led Government of the Republic of the Phi lippines(G RP)-M IL F agreement.

A clear conceptual dist inct ion between terror ists andinsurgents should be reflected in appropriate legal statutesgoverning the political and mi litary responses to thesetwo forms of dissidence. This should go as far as specifyingthe rules of conduct, which include the absolute imperativeto protect and de fend civ i l ians. I t should a lso meanavoiding populist or knee-jerk legislative measures.

4.1.1 Laws on Counter-terrorism and InsurgencyAre the same laws applied to both counter-terrorismand insurgency, or are there different laws associatedwith each or is existing criminal legislation simplyapplied?

T he Human Secur ity Act of 2007 (HSA , Republic ActNo. 9372) was designed to address the specific problemof terrorism. Critics have called it a knee-jerk reaction bythe state and have expressed anxiety concerning manyof its prov isions, not the least of which is its broaddefinition of terrorist acts that consist of crimes alreadydef ined as such by the Revised Penal Code, includingrebellion or insurrection. The sole qualifying element fordefining ex ist ing offences as terror ist acts is that theyshould also have the effect of ‘sow ing w idespread andextraordinary fear and panic’ in pursuit of ‘an unlawfuldemand’ wh i ch invo l ves coe rcing the gove r nment .Detractors of the law therefore say that it is unnecessary,on the one hand, and, on the other, that it has too manycatch-all provisions that make it applicable to any numberof groups opposing the government of the day.

Aside from a broad definition of terrorism, the act containsa number of other provisions of import. One is that aswell as making perpetrators of the acts listed above guiltyof terrorism, subject to the conditions of widespread fearand coercion of the government to give into unlawful

demands, it also makes conspiracy to conduct those actspunishable by 40 years imprisonment. Other punishmentsare 17 to 20 years impr isonment for those who areaccomplices by virtue of cooperat ion with principals inthe act and 10 to 12 years imprisonment for those whoprofit from the acts or help the pr incipals to prof it, orwho conceal the crime or its effects, or harbour or concealpe rpe t r at o r s. I n add i t i on , the H S A prov ides fo rproscript ion not only of organisat ions, associat ions orgroups of people specif ical ly coming together for thepurpose o f ter ror ism but a lso o f any group wh ich ,although not organized for that purpose, actually engagesi n the ac t i v i t i es ment i oned i n the law. H owe ve r,proscription is subject to due notice and can be challengedin the courts.

The HSA also contains six invasive provisions:

1. Section 7 – Surveillance of Suspects and Interceptionand Recording of Communications;

2. Section 18 – Detention without Judicial Warrant ofArrest

3. Section 19 – Detention without Judicial Warrant incase of Imminent Terror A ttack

4. Section 27 – Examination of Bank Deposits, T rustAccounts, E tc.

5. Section 39 – Seizure and Sequestration of BankDeposits and other Properties

6. Section 57 – Extraordinary Rendition

However, interception of communications is subject too rde r o f the cour t o f appea ls and f o rb ids i t i ncommunications of:

1. Lawyers and clients2. Doctors and patients3. Journalists and sources4. Confidential business correspondence.

The act also allows for arrest without warrant for a periodof three days based on surveillance and/ or examinationof bank deposits ordered by the Court of Appeals. I tallows for the same at the t ime of an actual at tack or



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where one is imminent. In the former, the suspect must bepresented to a judge, and in the latter, the suspect canalso be presented to a municipal, provincial or regionalmember of the Commission on Human Rights (C H R).This is the only instance in which officers of the C HR areexpected to perform such a judicial function.

The law affirms the right of the person arrested to beinformed of the nature and cause of the arrest, the rightto remain silent and the right to counsel. It also providesfor free communication with both counsel and membersof the fami ly or nearest re lat ives and for access to aphysician. The act also provides for a custodial logbookrecording the physical and mental condition of the detaineeand all visits to the detainee. The logbook is open to allfamily members, counsel and physician of the detainee.

T he act al lows for the examination, sequestrat ion andseizure of properties and assets of anyone suspected orcharged with a crime, with suspects allowed to withdrawmoney only in the amount that is ‘reasonably needed’ forfamily living and medical expenses. The act also permitsex traordinary rend it ion to another country for t r ia l ,testimony or investigat ion subject to assurances w ithregard to torture, rights to counsel and other rights ofsuspects. This is akin to the failed assurance provisions inlaws passed by countries such as the United K ingdom.

The law also allows for suspects on bail to be restricted tohouse ar res t and t o be depr i ved the means o fcommunication with people outside their residence.

The Commission on Human Rights is given the power toprosecute violations committed in the implementation ofthe act. This is ironic since the C HR is only permitted toinvestigate and recommend prosecution for general humanrights cases and to forward these to prosecutors of theDepar tment of Just ice (D OJ) or the Ombudsman. T heC HR has no prosecutorial experience and is not equippedfor this purpose. In another confusing element, the actalso prov ides for a gr ievance commit tee consist ing ofmembers of the O ffice of the Ombudsman, the Solicitor-General and an under-secretary of the Department of

Just ice. T he comm i t tee is charged w i th rece iv ing ,invest igat ing and evaluat ing complaints against lawenforcement officers with regard to the implementationof the act . T hus, the C H R now prosecutes whi le theOmbudsman appears to investigate but not prosecute.

The HSA is also extra-territorial in its coverage and canbe applied where acts occur against citizens, embassies orassets of the country abroad.

The act also has a joint oversight committee made up ofmembers of the House and Senate with the chair rotatingbetween the chairs of their respective committees on publicorder. F ive members of the twe lve-person oversightcommittee must come from members not affiliated withthe majority in the House and Senate. The committee ischarged with rev iewing the act w ithin a per iod of oneyear after its passage. The committee is also supposed toprovide a semi-annual report to both houses of Congresson the prevail ing circumstances that may impact uponthe act, including conclusions from reports submitted toit by the courts, and to make recommendations of reviewor amendment. To date, no such semi-annual report isbelieved to have been submitted by the committee.

The act does contain a number of extraordinary penaltiesfor its misuse. One is that anyone acquitted under the actis automat ical ly ent it led, w i th in 15 days, to receivePHP500,000 for each day that the person is detained ordeprived of liberty. He or she is also entitled to the sameamount for each day his or her assets are seized. The fundsare to come from the budget of the agency responsible forthe arrest. It also provides for imprisonment of betweensix to ten years for law enforcers who either fail to turnover survei l lance mater ials to the safe-keeping of thecourts or who misuse such materials, as well as for failingto report detention or arrest under the act of a suspect toa judge within the requisite period. Law enforcers are alsosupposed to not ify al l those who are subjected to bankexamination where no case is filed. Malicious use of theact to gain access to bank records is also punishable byimprisonment of ten to twelve years.



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Jose Manuel D iokno of the F ree Legal Assistance Group(F LA G) strongly criticized the Human Security Act (H AS)as being incoherent and, worse, dangerous because ‘itauthor izes prevent ive detention, expands the power ofwarrantless arrest, and allows for unchecked invasion ofour privacy, liberty and other basic rights’ (D iokno 2007:h t t p : / / o p i n i o n . i n qu i r e r . n e t / i nq u i r e r o p i n i o n /t a l ko f the t ow n / v i e w / 20070715-76703 / FA Q s_ on_the_Human_Secur ity_Act).

Martin Scheinin, the United Nations Special Rapporteuron the promot ion and protection of human r ights andfundamental freedoms while countering terrorism, urgedthe government to change the law, describing it’s definitionof terrorism as ‘an overly broad definition which is seento be at variance with the principle of legality and thusincompat ible w i th A r t i cle 15 o f the In ter nat i ona lCovenant on C ivil and Political Rights’ (Scheinin 2007:h t t p : / / w w w.unhchr .ch / hur i cane / hur i cane . ns f / 0 /33A881E349623E3CC125729C0075E6FB?opendocument).

Inte rest ingly, and perhaps as a s igna l o f the lega lprofession’s doubts about the law, the Supreme Court hasre fused to nom inate the special reg iona l courts forterrorism trials.

T wo other points are worth mentioning. The first is thatthe law ’s overs ight comm it tee has no t been v is iblyfunctioning. The second is that the law has been usedsparingly, one time in the case of three alleged membersof the ASG arrested for the bombing of bus terminalsand the other time in the October 2008 seizure of theassets of the Rajah Solaiman Movement. The reason forthis may be gleaned from comments made by police officialsregarding the law. The acting Cebu Provincial Police O fficeD irector, Carmelo Valmoria, and Criminal Investigationand Detect ion Group (CI D G) 7 Chief Super intendent ,Jose Jorge Corpuz, were both critical of the law, claimingthat safeguards against wrongful arrest and mistreatmentof suspects overly constrained pol ice activity (Sun-StarCebu 2007). According to the article, Valmoria said thatthe law should have g iven pol ice a month to gather

information on a suspected terrorist rather than a mere72 hours. Furthermore, Supt. Anthony Obenza of the PRO7 Po l ice Commun i t y Re lat i ons D iv is i on suggest edamending the law so that it would conform to internationalstandards (Sun-Star Cebu 2007). The superintendent was,in al l probabi l ity, refer r ing to emerg ing internat ionalstandards for ant i-ter ror ism leg is lat ion rather thanpre va i l i ng and pr i o r i nt e r nat i ona l human r i ght sstandards. In any case, the public criticism of the Act andthe doubts expressed by opposition politicians and activistsfrom all across the political spectrum show a deep concernover the potential to use the legislation to silence politicaldissent. They also reflect the prevailing public perceptionregarding police treatment of suspects.

The International Institute for Democracy and E lectoralAssistance (Internat ional ID E A) publication, Democracy,Conflict and Human Security, Policy Summary: Key F indingsand R ecommendations, noted that violent confl icts wererooted in the diminution of democracy and that humaninsecur ity was manifested in people’s lack of rights toaccess resources and power (International ID E A 2006).I t also specifies several strateg ies and approaches foradvancing democracy for human secur i t y includ ingputting emphasis on human rights, broadening the sharingof power and enabl ing people to participate in polit icalprocesses by providing them access to basic services andresources such as heal th and educat ion (Internat ionalID E A 2006: 7).

Clearly such strategies have implications for the rule oflaw but are also dependent on prioritizing the rule of lawas a critical means of assuring human secur ity. Humansecurity is most effectively established when people’s rightsare respected and where the rule of law forms the basison which those rights are made accessible and defensible.A n impl i ca t i on o f th i s approach wh i ch bearsconsideration is that it also encourages stakeholders toview rights as essential to a functioning democracy andnot merely as being of value in themselves. A lso, a majorelement of the rights in question is access to basic socialand econom ic r ights, such as hea l th , educat ion and



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employment opportunities, to name but a few, the absenceo f wh ich may preclude the par t icipat ion o f those inconfl ict w ith the state. I t is perhaps hardly surpr isingthen that the foremost areas of terrorist recruitment lieadjacent to the most significant regions of secessionistsentiment. These same regions also tend to suffer the mostviolent electoral exercises and are represented nationallyby individuals and political dynasties that most enjoy thepatronage of the national executive while also sufferingfrom some of the lowest levels of fulfilment of social andeconomic rights in the Philippines.3

In other words, the failure to respect, protect and enhancehuman r ights through the lack of effective rule of lawaccess to mechanisms of proper redress has not onlyinf l icted suf fer ing on those af fected reg ions but alsodiminished the national substance of democracy for thewho le count r y. I n t e r nat i ona l I D E A war ns thatunconstrained exuberance in responding to terrorism mayboomerang against the state itsel f. However the statechooses to respond to threats of terrorist violence, it mustcontinue to protect human rights and uphold the rule oflaw (International ID E A 2006: 14-15).

4.1.2 Implications of Terrorism and Insurgency forTerritorial Coverage of the Law

What are the implications of terrorism and insurgencyfor territorial coverage of the law?

There would appear to be three possibilities:

1. D istinctive laws for specific ethnic (sub-national)territories recognized by the national state;

2. Areas in which the rule of law does not reallyoperate according to nationally recognized norms;and

3. Secession – creation of a separate nation-state.

To some extent, the first possibility has been envisaged inprovisions of the Indigenous Peoples Rights Act (IPRA)of 1997 that allow for governance according to customarylaw and tradit ion. But those provisions remain unclear

and were inser ted as an af terthought into a piece oflegislat ion aimed more at offering some recognition ofindigenous land claims. IPRA is w idely regarded as aprogressive leg islat ive landmark for countr ies w ith asigni f icant propor t ion of indigenous peoples, but i tsimplementation has been stymied in the Philippines dueto conflicts with other laws, corruption in the NationalCommission on Indigenous Peoples (N CIP), a minisculebudget allocation and the low stature the commission isgiven within the executive branch of government (it hasbeen placed under three different mother agencies sinceits creat ion in 1997). T he fai lure of the N CIP and thecourts to raise the stature of customary law as envisagedin IPRA is one reason the M IL F refuses to concur withthe idea that ex ist ing legal frameworks, including theconstitution, will provide them with the autonomy theyseek.

The second possibility already largely exists in areas ofinsurgent control , such as areas under the control ofrevolutionary forces of the left, or in areas such as Suluand T awi-tawi where even the currency of the Philippinesis deemed second-best to that of neighbouring Malaysia’swith which much economic activity is linked. An expandeddiscussion on the rule of law under areas controlled bythe armed revolutionary left is given below.

The third possibility, secession, remains on the table as apoint of departure for negotiations but looks unwinnableand probably untenable.

The real question then is what variation or compromisebetween the first and third possibilities is likely to emerge?Jus t such a comprom i se was at t empt ed w i th thecontroversial Memorandum of Agreement on AncestralD oma i n ( M O A - A D ) be t ween the M I L F and thegovernment, which provoked great controversy and wasultimately junked by the latter.



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4.1.3 Implications of the Presence of Active Armed/Violent Groups for Local Officials

What are the implications of the active presence ofactive armed / violent groups for local officials and theiraccountabilities to citizens?

Local state officials are faced with the many difficultiesand dilemmas that the presence of armed groups imposes.Aside from having to cope with the severe impacts ofinternal displacements, local officials and politicians musttread a f ine l ine in deal ing w ith both insurgents andsecurity forces in contested areas. A particular case is howto handle demands for payments from armed g roups.Dur ing election per iods, this demand takes the form ofpayment for a ‘permit to campaign’ that is extorted frompoliticians wishing to campaign in these contested areas.W hi le, ironical ly, the new ant i-ter ror ism legislat ion issuspended for 40 days prior to elections, it is possible toimagine local candidates being punished for violating itif they pay for the aforement ioned permi t . I t is alsopossible that local officials may become the targets of bothinsurgents and terrorists if they do not enter into long-term accommodations with those insurgents and terrorists.

In the current situation in which the president’s legitimacyis in question due to electoral fraud, political support isrequired from those who can most easily wield power andautho r i t y w i th m i n ima l account ab i l i t y t o the i rconstituencies. These powerful people tend to be those inareas worst affected by insurgency and terrorism, the verysame areas that returned the anomalous electoral resultsthat undermined the president’s position. During the localelections of 2007, the Philippine National Police reportedlyhad a list of 93 private armed groups, with most of them(56) located in the Autonomous Reg ion in M us l imM indanao (A R M M ) (Pa lacio 2007). T hese areas areindicated in the map of consistent electoral hotspots below.They also generally coincide with those locations wherepol it ical warlords, ent renched pol i t ica l dynast ies andinsurgency exist, further affirming the political nature ofthe insurgency problem and its l ink w ith the failure ofthe rule of law.

Box 4.1 The Memorandum of Agreement onAncestral Domain (M OA-A D)

The M OA-A D was to be the third and final elementof the peace process between the M IL F and theGRP. The previous two elements constituted: 1)security aspects—including ceasefire arrangementssuch as the Comm i t tee on the C essa t i on o fHostilities and was later to lead to the presence ofan Internat ional M on itor ing Team led by theM alaysians and the format ion of the A H JA G(d iscussed abo ve) ; and 2) rehab i l i ta t i on anddevelopment of conflicted areas—an agreement toform the Bangsa Moro Development Agency andthe creat ion o f a Wor ld Bank-led M indanaoD eve lopment T rust F und w i th inter nat iona lsupport from the USA , Japan and the E U.

The third element, the Ancestral Domain Aspect,which resulted in the junking of the M OA-A D,was the most contentious. The outcry against theM OA among Christian leaders in local governmentunits was intense and they whipped up fears ofland seizures among Christian residents. Resistancea lso came f rom nat iona l oppos i t i on f igures,especially those with presidential ambitions, whodeclared that the agreement was a betrayal ofF ilipino sovereignty and would lead to the break-up of the Republic. It did not sit well with Lumadleaders who, while stating support of the BangsaMoros’ right to self-determination, did not wantv i l lages that they claimed were par t o f thei rancestral domain to be subject to the plebisciteson accession. The Supreme Court finally declaredthe agreement to be unconst itut ional , to haveexceeded mandates provided by the constitution,and t o have been concluded w i thout properconsultations with affected parties.



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Figure 4.1. Consistent election hotspots (2001, 2004 & 2007)

(Source: Map reproduced from <http:/ /www.gmanews.tv / sona2007/ story /43437/181-rp-towns-consistent-election-hotspots using PNP and Comelec sources>)

4.1.4 Implications for the Protection of Citizens’ Rightsto Life, Property, Basic Needs and Social Services

What are the implications for the protection of citizens’rights to life, property, basic needs and social servicesusing the rule of law?

The security forces tend to deny any distinction betweenopen, legal and unarmed dissidence and armed insurgency.They argue that armed insurgent groups have createdpolitical fronts as part of their strategy to seize power.They allege that these groups take advantage of civil andpolitical protections while recruiting for and conductingarmed at tacks. T his al legat ion , whether true or no t ,i gno res the f act tha t problems o f i nsurgency are

fundamental ly pol itical in nature and require pol it icalsolutions. And a political solution means that the state isable to identify those with whom it can enter into dialogueSuccessful peace processes, from N or thern I reland toSouth A frica, and nearer home, the island of Aceh, haveproceeded in this way. Peace negotiations are undertakenw ith pol itical movements with close t ies to insurgentgroups and that have the will and the skills to engage informs of politics that do not resort to the use of armedforce. This was the case with both Sinn Fein in the Northof Ireland and the A frican Nat ional Congress in SouthA frica. In the Phil ippines, the failure to recognize thatmilitary victory is, if at all possible, likely to be too costlyfor society to bear and damaging to state institutions andthe rule of law, has led to the security forces targetingsuspected sympathizers of insurgent groups. This has ledto an extra-lega l de f ini t ion of the insurgent and hasresul t ed in large-sca le e x t r ajud i c ia l k i l l i ngs. T hegovernment loudly protests that extrajudicial killings arenot part of the policy of the state. However, the failure toapprehend and conv ict the perpet rators o f a l l but am i no r i t y o f these k i l l i ngs no t onl y unde r l i ne theshortcomings of the rule of law but also perpetuate aclimate of impunity that erodes public trust in the ruleof law.

4.1.5 Implications for the Conduct of Judicial ProcessesWhat are the implications of terrorism and insurgencyfor the conduct of judicial processes?

In examining this quest ion it is important to considersome of the realit ies of the Phi l ippine judicial systemversus the ideals to which it claims to aspire. For instance,the Phi l ipp ines accepts the need for an independentjudiciary free from the direct influence of political andeconomic elites. It also sees the need for speedy and openlyconducted tr ials in which ev idence is properly sharedbetween prosecution and defence counsels.

The real ity of Philippine judicial processes is, however,far from the ideal. There are frequent delays in both pre-trial and trial processes. There are, for instance, cases of



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those accused of petty theft having been held on remandfor up to twelve years before disposition of their cases. Asof 2005, there was a reported backlog of 800,000 cases( T ransparency Inter nat iona l 2007: 206) . T here arelengthy delays at every step of the judicial process.4 Inaddition, almost every stage of the judicial process canbe subjected to appeal, with a further 15-day period inwhich to seek reversal of prior decisions on the part ofany party that feels aggr ieved. M eanwhi le, there arefrequent allegations of speedy dismissals for those withaccess to resources or influence.

It is well known that the judiciary is subjected to politicalpressures. The most recent is the initiative within Congressto consider the impeachment of the Chief Just ice fordecisions that have harmed the interest of inf luent ialpolitical groups. The president has issued executive ordersto curb the investigative powers of the legislature and toprov ide summary powers of detent ion and seizure tosecurity forces.5 T he Supreme Court has resisted theseencroachments. Such attempts, however, create pressureson the lower courts and on members of the judiciary whoare, after all, appointed by the president.

Where terrorism is allegedly involved, questions regardingthe circumstances surrounding apprehensions often cropup. T here are issues regarding shor tcuts taken in theprocess of obtaining warrants of arrest, shortcomings inthe collection of evidence, the non-appearance of witnessesand the lack of publ ic at torneys for the defence. N otsurprisingly, where legal representation is poor or publicpressure for redress is high, conviction is likely; wherethey are not, conviction is unlikely. In the lower courtsunsuccessful prosecutions of between 54 and 78 per centoccur while it is 29 per cent for the Regional T rial Courtsin which terrorist-related offences are likely to be tried.

Overall then, we conclude that the shortcomings in thejudicial processes for terrorism and insurgency relatedcases are likely to be similar to those for other criminalcases. Perhaps of equal significance should be the judicialprocesses followed by insurgent groups in their areas ofcontrol. This topic will be examined in the section below

in relation to the comments of the U N Special Rapporteuron E x t ra jud i ci a l K i l l i ngs concer n i ng the N at iona lDemocratic F ront’s people’s courts.

4.1.6 International Rules on the Conduct of Counter-Insurgency and Counter-terrorism Operations

What role do international rules on the conduct of warplay in the conduct of counter-insurgency and counter-terrorism operations? Are such rules legally enforcedand consistently applied? What mechanisms exist fortheir application?

W ith regard to the left-wing insurgency, on 5 July 1996the N D F addressed the “ N D F P D ec lara t i on o fUnderstanding to Apply the Geneva Conventions on 1949and Protocol I of 1977” to the Swiss Federal Council (thedepos i tary for the Geneva Convent ions) and to theInternational Committee of the Red Cross (ICRC). In itsdeclaration, the N D F ‘solemnly declare in good faith toundertake to apply the Geneva Conventions and ProtocolI to the armed conflict’ and also affirmed that it was ‘boundby i nt e r nat i ona l cus t omar y law pe r t a i n i ng t ohumanitarian principles, norms and rules in armed conflict’(United Nations 2008: 27, notes 3 and 4).

This was followed up when the government and the N D Fsigned the Comprehensive Agreement on Respect forH uman R ights and Inter nat iona l Human itar ian Law(C A RH RI H L) on 16 M arch 1998. T he articles of theagreement affirm prohibit ions on summary executions,involuntary disappearances, massacres, indiscr iminatebombardments, and the target ing of civil ians or thosetaking no active part in the hostilities, persons who havesurrendered and those placed hors de combat by sickness,wounds o r any o the r cause ( G ove r nment o f thePh i l ipp i nes and N a t iona l D emocrat ic F ront o f thePhi l ippines 1998). C A R H RI H L also prov ided for theestablishment of a Joint M onitoring Commit tee (JM C)that would be composed of three members chosen by thegovernment’s negotiating panel and three by the N D F ’snegotiating panel. The JM C was to ‘receive complaintso f v i o lat i ons o f human r i ght s and i nt e r nat i ona l



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humanitarian law and all pertinent information and shalli n i t i a t e reques t s o r recommenda t i ons f o r theimplementation’ of the agreement . The members havebeen chosen by bo th s ides so that the re are nowgovernment and N D F ‘sections’ of the JM C , but the JM Citself has only ever met once and never again followingthe breakdown of talks in 2004.

Rober t F rancis B. Garcia, Secretary General of PAT H(Peace Advocates for T ruth, Healing and Justice), has evenmore to say on the matter:

What powers does the JM C actually wield? T he mostdisconcerting feature of the agreement is “the failureof the CARHRI H L to vest the JM C with executorypower.” Indeed, all the JM C can do is deliberate on afiled complaint, try to reach a consensus, and then throwit to the “Party concerned” for further investigation.Nothing in the agreement indicates that either Partycan be compel led to investigate. Much less are theycompel led to provide reparation for the aggr ieved.Indeed, till this day not one of the cases filed with theJM C, whether against government or the CPPNPA-N D F, has moved an inch beyond their respective filingcabinets. In short, we have an official “agreement” torespect H R and I H L , w i th a body to “mon i tor”compliance, but no teeth to enforce it. All we have istheir word, which, going by experience, does not amountto much. (Garcia 2006: 5-6).

So for gr ievances against the N D F forces, the JM C issupposed to take up the case, while for the M IL F, issuesof lawlessness are supposed to be addressed through theA HJA G . H owever, what is m iss ing is the necessar ytransparency to assure aggrieved parties, or those accused,of any sort of due process as investigation and penaltieslie solely within the purview of the protagonist party.

In his report on extrajudicial killings in the Philippines,Philip A lston, the U N Special Rapporteur, was scathingof the judicial processes followed by the CPP / NPA / N D Fwhen he stated:

(T here are) several practices that are inconsistent withinternational human rights and humanitarian law. F irst,the CPP / NPA / N D F considers “intelligence personnel”of the A F P, PNP, and param il itary groups to beleg i t imate targe ts for mil itary at tack . Some suchpersons no doubt are combatants or civilians directlypart icipating in hostilities; however, the CPP / NPA /N D F defines the category so broadly as to encompasseven casual Government informers, such as peasantswho answer when asked by A F P soldiers to identifylocal CPP members or someone who calls the policewhen faced with NPA extortion. K illing such individualsviolates international law.

Second, the CPP / NPA / N D F ’s system of “people’scourts” is either deeply flawed or simply a sham . . .international humanitarian law (I H L) unambiguouslyrequires it to ensure respect for due process rights.One telling due process violation is that, while a people’scourt purportedly requires “specification of charges . .. prior to trial”, the CPP / NPA / N D F lacks anythingthat could reasonably be characterized as a penal code.I t is apparent that the CPP / NPA / N D F does imposepunishments for both ordinary and counterrevolutionarycr imes in areas of the country that it controls. ButN D F representatives were unable to provide me withany concrete details on the operation of the people’scourt system. T his suggests that little or no judicialprocess is involved. In some cases, the use of people’scourts would appear to amount to little more than anend run around the pr inciple o f non-comba tantimmunity. In other words, it seeks to add a veneer oflegality to what would better be termed vigilantism ormurde r. F a i lure to respec t due process no rmsconstitutes a violation of I H L for the NPA / CPP / N D Fand may constitute a war crime for participating cadres.

T h ird , publ i c statements by C P P / N PA / N D Frepresentatives that opponents owe “blood debts”, have“accountabi l it ies to the people” , or are sub ject toprosecution before a people’s court, are tantamount to



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death threats. Issuing such threats under the guise ofrevolutionary justice is utterly inappropriate and mustbe decisively repudiated.” (United Nations 2008: 14).

In further annexes, A lston explained his concerns aboutdue process, saying:

T he basic procedure of the people’s courts is providedin the “Guide for Establishing the People’s DemocraticGovernment” (1972), Chapter I I I , but this does notexplain what law the courts apply. Representatives ofthe N D F claimed that, while the process of codificationwas ongoing, several existing documents constituted apenal code.6

A lston concluded that none of the documents ‘nor anyother instrument cited actual ly defines the elements ofany criminal offence’ (United Nations 2008: 40, note 44).

Despite these apprehensions concerning the revolutionarymovement’s rule-of-law shortcomings, Sol Santos (2005:20) suggests that one of the features that continue toattract support for the NPA is their function as ‘a “socialpolice” in the countryside where the state has no presence’.

So wh i le the N D F cla ims to ab ide by internat iona lhumanitarian law (IH L) and other international laws, andwhi le agreement on the observat ion of I H L has beenarr ived at between the government and the N D F, themechanisms for implementation have never been put intooperation. The reason, in part, is because of the listing ofthe NPA as a terrorist organisation, largely at the behestof the Phi l ippine government , resul t ing in the N D Fceasing to engage with the government.

W ith regard to the M IL F insurgency, the governmentand the M IL F entered into the Ag reement on Peacebe t ween the G over nment o f the Republ i c o f thePhilippines and the Moro Islamic L iberation F ront on 22June 2001 and agreed to ‘[ t ]he observance of internationalhuman i t ar i an law and respec t fo r i nt e r nat i ona l l yrecognized human rights instruments’. This commitmentwas further elaborated in the Implementing Guidelines

on the Humanitar ian, Rehabi litation and DevelopmentAspects of the GRP-M IL F T ripoli Agreement on Peaceof 2001 signed on 7 May 2002.

What is clear, therefore, is that the GRP, N D F and theM IL F have all agreed to be subject to IH L . However, themeans by which all sides are to be bound by such lawsare absent . T he G RP and M I L F have no e f f ect i vemechanism in place at all although they have been able tocoordinate their disposition of forces through A HJA G. Inadd i t i on , Loca l M on i t o r i ng T eams, backed by theInter nat ional M on itor ing Team lead by the recent lydepar ted M alaysian forces, were able to successful lyintervene in ceasefire violations between the GRP and theM IL F. These interventions no doubt reduced the conflict’seffects upon civilians, thereby gaining significant plauditsfrom civilian groups, local government units and affectedcommunit ies. Nevertheless, following the breakdown ofthe MOA-A D, hundreds of thousands were again displaced,and rema in so to th is day. O n the o the r hand, theCARHRIH L between the GRP and the N D F, and its JM C ,has never been made fully operat ional . I t takes on apart icular importance at this juncture when the ant i-insurgency campaign has encompassed the killings of non-combatants, akin to what happened in the 1970s and 80s.

T he inter nat iona l team mon i tor ing the M IL F - G RPceasefire notwithstanding, there is no significant third-party presence that can call the warring parties to accountfor the failure to observe IH L . There is little to ensurethat IH L violations are prevented other than the localpolitical losses that the parties may suffer as a consequence.

Meanwhile, and in relation to the provisions of IH L onthe protection of civilians, many activists of the left claimthat the rapid r ise in extrajudicial ki ll ings commencedaround the time that the military strategy to finally defeatthe communists, called Oplan Bantay Laya, came into force.The plan, and other documents disseminated within themil itary such as Knowing the E nemy and the NorthernLuzon Command’s hastily withdrawn T rinity of War, allput great weight on the need to dismantle the CPP front



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organisations. These two documents contained the namesof suspected front organisations and alleged sympathizers.Even party-list groups with representation in Congresshave been label led by the N ational Security Adviser ascommunist fronts.

4.1.7 Extrajudicial KillingsTable 4.1 presents data pertaining to extrajudicial killings,enforced disappearances and displacements.

Table 4.1 Victims of extrajudicial killings, enforced disappearance and displacements

V ict ims of E x trajud icial , Summary V ict ims of E n forced oror A rb itrary E xecution under Involuntary D isappearancethe A rroyo Government under the Arroyo Government

Annual Totals: Januar y 21, 2001 Annual Totals: Januar y 21, 2001to September 30, 2008 to September 30, 2008

Year To ta l Organized Women Year To ta l Organized Women

2001 9 9 3 5 1 1 2001 7 1 2

2002 118 4 4 1 3 2002 9 3 2

2003 123 3 2 1 4 2003 1 1 2 1

2004 8 3 4 1 9 2004 2 6 1 0 5

2005 187 101 1 4 2005 2 8 6 0

2006 210 108 2 5 2006 7 8 2 6 1 6

2007 7 0 3 5 1 2 2007 3 3 1 3 4

2008 2008(Jan- (JanSep) 4 3 8 5 -Sep) 7 5 1

Total 933 404 107 Total 199 67 31

Source: T able reproduced from Kara patan Monitor , July-September 2008,avai lable onl ine at < http: / / www.karapatan .org / f i les /Karapatan M on i tor_3rd_08.pdf >

The Task Force Against Political V iolence, also known asTask Force 211, was created by virtue of AdministrativeOrder 211 signed by President Macapagal Arroyo on 26November 2007. While the Task Force is supposed to bemonitoring 235 cases of extrajudicial killings, it has onlyachieved one conviction so far, as table 4.2 shows.

Table 4.2 Accomplishments of Task Force 211 from 27 November 2007 to17 March 2009

Cases Activated:

1. Cases Prev iously Archived (Warrant of Arrest was not served)but the accused voluntari ly surrendered 1

2. D ismissed cases (f iled before the Prosecutor’s O ffice but wasdism issed for lack of ev idence or w itnesses) but was subsequentlyre-f iled in court 2

Accused was located : T he Armed Forces of the Phi lippinessurrendered Roderick de la Cruz to the National Bureau ofInvestigation today, M ay 16, 2008. 1

Accused finally Arrested:

Nanding Bitinol (TF 4025)Rafael Cardeño ( T F 4051) 2

Cases adjudicated by Courts: (Acqui ttals) 5

(Conv ict ion) 1

Cases filed in Court:

1. Cold case (case without any ev idence or witnesses) that wassubsequently f iled wi th the Prosecutor’s O ff ice for prel im inaryinvestigation. It is now fi led for prosecution at Court Level 1

2. Case prev iously under police investigation and wassubsequently f iled wi th the Prosecutor’s O ff ice for prel im inaryinvestigation. It is now fi led for prosecution at Court Level 5

3. Cases pending at Prosecutor ’s level finally filed forprosecut ion at Court level 1 1



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Cases D ismissed:

1. From cold case (cases without any evidence or witnesses) it was filed for preliminary investigation but was eventuallydismissed 3

2. Prev iously under prel iminary invest igat ion but wasdism issed for insufficiency of ev idence 9

3. Formerly undergoing trial but was later on dismissed forlack of w i tness / es 2

4. Formerly undergoing trial but was later on dismissedfor fai lure to prosecute 2

Total 45

Source: T ask Force 211 website at < http: / / www.task force211.com.ph /t f211_sub / accompl ishment / accomrep_t f211.htm> , accessed on 26 M arch2009

The A lston report went on to criticize the use of ordersof battle assembled by intelligence operatives, which namehundreds o f o rgan isat ions and ind iv idua ls tha t themilitary considers subversive and, therefore, enemies ofthe state. Because such materials, although in widespreaduse by the security forces, are by their nature secret, theycannot be subjected to any legal challenge. The reportalso described the role of the Interagency Legal ActionG roup (I A LA G), made up of ‘various cr iminal just ice,intelligence, and mil itary organs’ but whose operationswas control led by the O ff ice of the N ational SecurityAdviser. (United Nations 2008: 19). The report offered alikely rationale for the creation of such a group:

T he reason that such an ad hoc mechanism wasestablished for bringing charges against members ofthese civil society organisations and party list groupsis that they have seldom commi t ted any obv iouscr imina l of fence. Congress has never reversed i tsdecision to legal ize membership in the CPP or tofacilitate the entry of leftist groups into the democraticpo litical system. But the execut ive branch, through

I ALAG, has worked resolutely to circumvent the spiritof these legislative decisions and use prosecutions toimpede the work of these groups and put in questiontheir right to operate freely. (United Nations 2008: 19)

A lston speculated that the composition of the group madeit tempting to those of its members with the means to doso to conduct summary executions of individuals thatcan not be reached through legal means. He also statedthat by making prosecutors into team players with theA F P and the Philippine National Police (PNP), they (theprosecutors) were less likely to prosecute members ofthose agencies in cases involv ing the deaths of left istact iv ists. One o f A lston’s recommendat ions was thedisbandment of the IA LA G.

Alston also criticized the reluctance of the PNP to pursuecases against the A F P and cited the deep-rooted lack ofcooperation between prosecutors and police as an abettingfactor in the impunity that prevails. He characterized theoperat ions of the pol ice as being hampered by a lowquality witness protection program and limited forensicresources.

Lack of police capacity to prepare cases for prosecutionwas also cited in one of our focus group discussions bya part icipant who was a state prosecutor. He descr ibedhow prosecutors t ry to assist the police and how theyare frustrated at the poor quality of ev idence with whichthey had to work . Amidst such problems, it would beless than surpr ising if some over-zealous or frustratedofficers did not take the law into their own hands – anobse r va t i on a f f i rmed i n i n f o rma l i nte r v i ews w i thgraduat es o f the Ph i l ipp ine M i l i t ary A cademy andmembers of the PN P.

The A lston report was also highly critical of the lack oflegislative oversight and investigation of the killings. Henot only criticized the president’s Memorandum C ircular108 that prohibits Cabinet members from appearing beforeCongressional hear ings and stymied at tempts by thelegislature to subject the Armed Forces to proper scrutiny



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but also reported that a senior government official hadexpressed ‘genuine puzzlement’ that Congress might wishto conduct such scrutiny, saying that this was ‘successfullyavoided’ (United Nations 2008: 22). A lston went on tosay that ‘the then Chair of the Senate Committee on Justiceand Human Rights , , , could not recall having held anyhearing relevant to the ongoing extrajudicial killings butmaintained that this was not a problem, because killingwas already a punishable offence, so there was no needfor further legislation’ (United Nations 2008: 22).

Meanwhile the react ion of senior government officialsseemed to reveal just how ser iously or otherwise theyconsidered international opinion. The Secretary of Justicecal led A lston a muchacho (servant boy) of the U N andthen Defense Secretary Hermogenes Ebdane said, ‘Alstonwon’t pay attention. He is blind, mute, and deaf. We can’tdo any th i ng about tha t . ’ ( U y 2007 : < h t tp : / /news i n fo. inqu i re r.ne t / break i ngnews / nat i on / v i ew /20 07 03 28 -5 75 41 / A l s t o n % 3 A _ G o v t _ r e a c t i o n _to_visit_%91deeply_schizophrenic%92). These commentscame in spite of a pr ior invest igat ion conducted by apresidential commission, headed by retired Justice Melowhich, while denying the existence a strategy or policyof eliminating leftwing activists, did conclude that rogueelements of the military and police may be involved, rightup to the level of divisional commander, and made somesimilar recommendations to the A lston report, particularlyregarding investigations and witness protection.

In July 2007 the Supreme Court convened a summit onextrajudicial k il lings. A result of that summit was theCourt’s subsequent release of the writs of amparo andhabeas data. The writ of amparo, if granted, requires stateauthorities to protect those whose lives are believed bythe courts to be under threat . T he wr it can includei nspec t i on o rde rs and requ i re the produc t i on o fdocuments. W ith the writ of habeas data, the courts canorder the release, destruction or correction of records heldon persons believed to be under threat of death.

Aside from the killings of leftists, the A lston report alsocovered the large number of extrajudicial k i l l ings in

Davao. What is interesting from a rule of law perspectiveis that these Davao killings are a perfect example of thedrift from a national security endeavor (the fight againstinsurgency) into a common law enforcement funct ionagainst cr iminal ity. A lston says that 553 people weresummarily k illed for alleged cr iminal activit ies such asdrug pushing and theft by the shadowy Davao deathsquad. H uman R ights Watch (2009) released a morerecent report citing a further 124 killings in 2008 and 33in the month of January 2009, with eight executions inone day alone.

Both the mayor of Davao C ity and the Davao police denythe ex istence o f the death squads but that they aretolerated by the police and local government is undeniable.In a tel l ing interv iew w i th T ime magaz ine in 2002,Mayor Duterte said, ‘If you sell drugs to destroy otherpeople’s lives, I can be brutal.’ (Zabriskei 2002: http: / /www.t ime.com / t ime / magaz ine / ar t icle / 0,9171,265480-2,00.html) Duter te has been reported as say ing thatcriminals are legitimate targets of assassinations (AsianHuman Rights Commission 2008).

Kenneth Roth, the executive director of Human RightsWatch, has called on the national government to movebeyond their belated words of condemnation and bring ahalt to such killings (Roth 2009). Only on 30 March thisyear (2009) did the Commission on Human Rights finallybegin a process of public inquiry into the killings.

T his v ig ilant ism seems to have spread to other areas,notably to the cities of D igos, General Santos and Cebuin the Central V isayas where similar tactics to fight crimeare being emulated. Only in Davao, however, has thephenomenon t aken such a t er r ible and pro longedregularity w ith such widespread impact. What is reallyworrying is the apparent public tolerance of such killings,wh i ch cont i nue unaba t ed. Such publ i c accept anceillustrates only too well the extent to which the rule oflaw is failing the citizens of Davao and other cities.

While the figures for displacement, extrajudicial killingsand vigilante activities are often debated, the impacts upon



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civilians are undoubtedly widespread. These include notonly loss of life but also loss of property and livelihoods.Perhaps just as damaging to the democratic future of thePhi lippines is the abiding psychological damage that isinduced and the cultural damage to the social fabric thatis the foundat ion of a functioning democracy. Amidst acl imate of conf l ict , displacement , k i l l ings and wantondisregard for rights, it is difficult for people to retain theirbelief in peacefully and construct ively expressing theirviews and standing up against injustices, whether real orperceived.

O n 29 Apr i l 2009 P ro f esso r A ls ton subm i t t ed anaddendum to his report based on his 2007 visit. Praisingthe reduct ion in the ki l lings of leftwing act ivists, theissuance of the writs of amparo and habeas data by theSupreme Court and the C H R ’s steps to invest igateunlawful killings, he nevertheless decried the continuationof extrajudicial killings (United Nations 2009: 2).

In add i t i on , A ls ton went through each one o f therecommendations in his original report and revealed theprogress on each. On 23 occasions he found either that aparticular recommendation had not been implemented orthat there was no evidence of implementation. A lston waspar ticularly unspar ing over the government’s failure toi ns t i tut i ona l i z e a s i ng le po l i cy measure a imed a tcombat ing e xt rajud icia l k i l l ings, whe ther ef fect ivelyinst itutionalizing command-responsibi lity in the A rmedForces or ensuring effect ive congressional oversight orembedding capable, competent , eff icient and impartialinvest igat ion capacity in the pol ice, prosecutor ial andhuman rights bodies of the country. A lston (2009: 5) said‘most of the Government’s formal actions in response tothe Special Rapporteur ’s recommendat ions have beensymbo l i c, and lack the substant ive and pre vent i vedimensions necessary to end the culture of impunity.’

Perhaps predictably, given his previous statements, JusticeSecretary Raul Gonzalez ’s response to this report waschurlish and acerbic, saying, ‘ We better just ignore it’ and‘ We cannot keep on stopping every t ime a dog barks’( E sgue r r a 2009 : h t tp : / / news i n fo. i nqu i re r.ne t /

inquirerheadl ines / nat ion / v iew / 20090512-204482 / Just-ignore-A lston-says-Gonzalez). Such statements do littlebut affirm A lston’s conclusions, quite aside from leavingthe public asking where the canine demeanour really lies!

The absence or failure of effective domestic mechanismst o br i ng t oge the r war r ing par t i es and the f a i l inginstruments of rule of law to bring perpetrators to accounthas lead a f fec ted civ i l ians to tur n to int er nat iona linst ruments by br ing ing the mat ter of ext rajudicia lkillings to the U N Human Rights mechanisms. However,serious concerns are raised about the effectiveness of suchinstruments when they consist of recommendations whichare then ignored or, worse, brusquely dismissed out ofhand by sen i o r o f f i c i a ls. T he obse r vat i ons andrecommendations made by various U N committees, andthe circumstances and national government responsessurrounding these will be examined below.

4.2 International Obligations Protecting the Rights ofCitizens and Guaranteeing the Rule of Law

What international instruments has the Philippinessigned up to that uphold the rule of law and guaranteecitizens’ access to justice?

The Phi lippines has ratif ied or acceded to a number ofinternat ional convent ions and protocols, as shown inAppendix 1. Significantly, the Phi lippines has failed tosign the International Convention for the Protection ofA l l Persons from Enforced D isappearance. Pres identM acapaga l A r royo d id, however, s ign the Opt iona lProtocol to the Convention against Tor ture and otherCruel, Inhuman or Degrading T reatment or Punishmentin mid-2007, just as the Phi lippines was undergoing itsUniversal Periodic Review by the Human Rights Councilof the U N , where it was subject to specif ic pressuresregarding the extrajudicial kil lings of late. The Senatehas still to ratify the protocol and, in September 2008,the executive said it was now seeking a deferment of upto five years in its implementation. Executive SecretaryEduardo E rm ita (2008) sa id the Ph i l ipp ines should



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‘rather err on the side of prudence and thoroughness ifonly to assert our capability to deliver on the longer-term(and not be pushed into) early, yet flawed compliance’.Clearly, one of the first requirements is to fulfil its pre-existing obligation to provide legal remedy for the crimeof torture. A lthough torture is expressly forbidden in theconst itution, there is no crime of torture in the statutebooks. The one law that does define it is the Human SecurityAct. However, cases of torture can only be brought if thevictims are apprehended or charged under that same law.

The Philippines signed but did not ratify the Rome Statuteo f the I n t e r nat i ona l C r im i na l C our t (among therecommendat ions made to the Supreme Court at thesummit on extrajudicial k il l ings in 2007). This meansthat, while the Philippines is obliged to refrain from ‘actswhich would defeat the object and purpose’ of the ICC ,the government of the Philippines has not agreed to allowits subjects or those of foreign personnel operating withinits territory to be subject to the rulings of the court exceptwhere the latter are nationals of a state that has acceptedthe jurisdiction of the court . Importantly this includesthe United States, which withdrew its signature to theRome Statute in 2002. T here are calls from a range ofgroups for the Philippines to ratify the Statute, and alsofrom the Chief Justice of the Supreme Court. On the otherhand, then A F P Ch ie f o f Staf f , L ieutenant G enera lA lexander Yano, openly came out against rat if icat ionsaying it might only serve as a convenient venue for filingpar t i san and po l i t i ca l l y -mo t iva t ed cases o f r i ght sviolations against uniformed men. He added that it couldhamper secur ity efforts against terror ists and lawlesselements and groups (G M A News. T V 2008). This eitherindicates that the A F P does not understand that the ICC ’srole is to prosecute when state mechanisms are unable todo so effectively or it is an admission that the state cannot effectively prosecute cr imes against humanity. It isalso an ironic stance in the face of the percept ion thatmany of the victims were killed because of their politics.

T he f a i lure t o ful ly accede to these i nte r nat i ona lagreements can be seen in the context of a nat ional

secur ity apparatus that views itsel f as being at war onmul t iple fronts. In the meant ime, the Ph i l ipp ines isengag ing the suppor t o f a l l ies, such as the US andAustralia, that until all too recently have made clear theview that the war against terror will dictate the patternof law enforcement and the observation of human rightsnorms rather than the other way around.

The ev idence for this perspect ive is the large number ofdisappearances, of extrajudicial execut ions of act iv istsand of those forced to f lee their homes fo l low ing anupsurge in hosti lities between the A F P and the M oroIs lam ic L iberat ion F ront ( M IL F ) forces in SouthernM indanao. The quest ion then ar ises as to what use hasbeen made of these international agreements by citizens?What have been the most common complaints fi led? Howaccessible have these instruments been to cit izens? Howhas the gover nment reacted to cit izens’ use of theseinstruments?

In 2008 the Phi l ippines underwent its f irst UniversalPeriodic Review at the Council on Human Rights of theU N . A plethora of N G O submissions was received frommany organisations, both Phil ippine and internat ional .W h i le many of the organisat ions were internat ionalN G Os, they received most of their information from localgroups and formations active in the Philippines.

4.2.1 Adherence to International ObligationsDoes the Philippines adhere to these obligations in practicein terms of: 1) processes and procedures applicable tocitizens 2) reporting requirements and 3) monitoring bygovernment of compliance with these agreements?

Predictably the Philippines received rough sailing for itsrecord on extrajudicial k ill ings. Each N G O submissionde ta i led cases o f ex t rajud ic ia l k i l l ing af f ect i ng thesubmitting organisation’s sector of interest. Interestingly,in the period between the A lston report and the review,there was a reduct ion in the incidents o f summaryexecutions. However, since the beg inning of 2009, thenumber has risen again.



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In addition to submissions on these k il lings, a host ofother issues was raised by the submitting N G Os includingenforced disappearances; the use of torture; the effects ofneo-liberal economic policies on producer prices of food;issues with regard to access to education, health and otherbasic social serv ices; and the impact of internat ionalmining ventures on livelihoods and ancestral domains ofind igenous peoples. C oncer ns were a lso e xpressedregarding reproductive health rights highlighted by thewithdrawal of artificial contraception services by the C ityof Manila, the trafficking of women and children, forceddemolitions and relocat ions, violations of labour rightsincluding the right to organize into unions and the impacto f automat i c debt appropr ia t ions on socia l se rv i ceprovision. The Centre on Housing Rights and Evictions(2007: 22) complained of the effect of the automatic debtappropr iat ions on socia l serv i ces spend ing , say ing ,‘Current data indicates that almost half of the governmentspending goes to debt serv icing (interest and principalpayments). Only a meagre amount is allocated to the socialservices and other budget items that are supposed to pavethe way to authent ic development .’ T he governmentclearly has priorities other than education, health and ruraldevelopment as shown by its lack of long-term strategies.Its expenditures on social services pale in comparison withthose of its neighbouring states.7

T he Ph i l ipp i ne gove r nment was a lso ques t i onedconcerning delays in fulfilling its reporting requirementson many of the agreements it has signed. We examine therecord of the government in relation to a number of theseagreements in the following sections.

The Rights of WomenThe Philippines ratified the Convention on the E liminationo f A l l Fo rms o f D i scr im i nat i on A ga i ns t Women(C E DAW) on 3 August 1981. The U N Committee on theEl iminat ion of D iscr imination Against Women (2006),in its comments on the Philippine government’s fifth andsixth combined periodic report , expressed appreciationfor the measures taken in support of the Convention. The

specific measures mentioned were the adopt ion of laws(the Anti-T rafficking in Persons Act of 2003, the Anti-V iolence against Women and Their Children Act of 2004,the F am i l y Cour ts A c t o f 1997 , the Rape V ic t imsAssistance Act of 1998, the Indigenous People’s RightsAct of 1997 and the Social Reform and Poverty A lleviationAct of 1997), the plan for gender-responsive developmentand the institution of pre-departure briefings for migrantworkers.

However, the Committee also raised a number of concernsincluding the status of the Convention in the country’slega l system. A r t icle I I , sect ion 2 o f the Ph i l ipp ineconstitution says that the Philippines ‘adopts the generallyaccepted principles of internat ional law as par t of thelaw of the land’. However, lawyer Clara Rita A . Padilla(2008) , e xecut i ve d i rect o r o f E n G ende R ight s, anadvocacy N G O for women’s rights, noted that C E DAWhas only been cited in a very small number of cases in thePhil ippines.

Pad i l la (2008) descr ibed how d iscr im inat ion aga instwomen is perpetuated in the Philippines. She commencedw ith a discussion of v iolence against women and thenlooked into the top ics o f rape, se xua l harassment ,prost i tut ion and v io lence against women in int imaterelationships. She cited the progress on rape, particularlythe enactment of the Ant i-Rape Law of 1997 and theRape V ictim Assistance and Protection Act of 1998. TheAnti-Rape Law defines rape as a crime against the person(rather than against chastity as was previously the case)and prohibits admissibil ity into evidence of past sexualbehav iour, a l though i t is a proh ib i t ion that can beoverturned by the court at its discretion. Its shortcomingsare that lesser penalties are provided for sexual assaultby use of an object (meaning the insertion of things likepieces of wood or broom handles). Padilla also echoed theconcerns expressed in the 2006 C E DAW Commit teeConcluding Comments on the Philippines about the law’spro v i s i on ex t i ngu i sh i ng the cr im i na l ac t i on uponsubsequent forgiveness by the wife. Article 266-C of thelaw reads: ‘ In case it is the legal husband who is the



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offender, the subsequent forg iveness by the w ife as theoffended party shall extinguish the criminal action or thepenalty: Provided, That the crime shall not be extinguishedor the penalty shall not be abated if the marriage is voidab initio.’

Padilla (2008), however, reserved her major criticism forthe judiciary. She pointed to cases where judges seemedunaware that not all victims may openly resist rape. Inaddition, even though the Supreme Court has ruled thatthe lack of lacerations in the hymen is not evidence thatrape did not take place, Padi l la said that many judgesand prosecutors took the absence of lacerat ions as anindicat ion of consent . She also pointed out that manyjudges were unaware that it may take some time beforerape victims can recount details of the attack to anotherparty or that victims may be reluctant to report the crime.These at titudes are supposedly being addressed by theNational Commission on the Role of F ilipino Women aswell as by the Supreme Court through its committee ongender responsive planning.

The comments of the C E DAW Committee took note ofthe ‘patr iarchal att itudes and deep-rooted stereotypesregarding the roles and responsibi l it ies of women andmen in the family and society’ (U N Committee on theElimination of D iscrimination Against Women 2006: 4).

On the issue of sexual harassment, Padilla (2008) pointedto the passage of the Anti-Sexual Harassment Act of 1995as a positive step. She observed, however, that the lawde f ined sexual harassment only in the contex t o f arelationship involv ing a person in a super ior posit ionharassing someone in a subordinate posit ion, therebyexcluding cases involving peers or harassment perpetratedby subordinates. This is one of the laws most clearly inneed of review, especially since the impact on targets orvictims can be to force them into silence or to compel themto comply with unsavoury requests for fear that seekingredress would cost them lost jobs or damaged reputations.

W ith regard to prostitution, article 202 of the RevisedPenal Code is still used to round up working women and

charge them with vagrancy. However, the Anti-T raffickingin Persons Act of 2003 considers trafficked persons asvictims who should be afforded protection. Padilla (2008)cited the case in Quezon C ity of Judge Bautista of theReg ional T r ial Court who declared art icle 202 to beunconstitutional. She quoted the judge as saying, ‘ [ T ]hevery thought of pun ishment o f a person because o fpoverty smacks of elitism and a v iolation of the equalprotection of the law clause.’ (Padilla 2008: 14) A QuezonC ity ordinance now recognizes persons in prostitution asrequiring health services, crisis interventions and socio-economic assistance, and penal izes pimps and cl ients.Unfortunately, this is the only city in the country to haveadopted this view.

Regard i ng v i o lence aga i ns t women i n i nt ima t ere lat ionsh ips, the law prov ides for the i ssuance o fprotection orders for the v ict ims of such violence andcontempt orders to those who violate the protection orders.However, many judges are reportedly loath to issue suchorders. T he law a lso does l it t le to prevent con juga lproperties from being dissipated or women from beingevicted from their homes.

Divorce and AnnulmentEngendeRights, the organisation that Padilla founded, hasjo ined w i th o ther g roups t o ca l l for a d ivorce law.Currently, Muslims can divorce under the Sharia familycode while Christians and peoples of other faiths are notpermitted to do so. D ivorce by a foreigner married to aF ilipino is recognized so long as it is the foreigner whoinitiates the divorce. In fact, it is perhaps surprising thatthe Philippines has not been forced to confront this issueunder the provisions of the Convention on the E liminationof Racial D iscrimination since it would clearly appear tod iscr im inate by v i r tue o f e thn ici t y, nat iona l i t y andreligion.

T he al ternat ive for non- Musl ims is annulment . Onecommonly employed basis for such is “psycholog icalincapacity” as provided in article 36 of the country’s FamilyCode. The grounds for annulment are generally strict and,



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despite the constitutional provision on the separation ofChurch and state, ref lect Roman Catholic rules on thematter. The Supreme Court (1997) has directed the courtsto t reat w i th ‘ great respect ’ the int erpre t at ions o fpsycho log ica l incapaci t y o f the N at iona l A ppe l lateMatrimonial T ribunal of the Catholic Church. The O fficeof the Solicitor General has made it clear that it w il lchallenge every court decision in favour of annulment onthese grounds. Fur thermore, pursuing annulment is anexpensive process, making it unavailable to most people,with lawyers asking for an initial fee of PHP50,000 and afee of PH P3,000 per hear ing , plus the cost of expertwitnesses such as psychologists. A lower cost option is legalseparation but this does not permit remarriage. The poor,on the other hand, simply choose to separate informally.T he law is out of tune w ith social real it ies and haspart icular consequences for the r ights of women andchildren to property and their use of family names.

The last known survey on divorce in the Philippines wasundertaken in 2003 by the Social Weather Stations pollingagency with 36 per cent of those surveyed in favour ofdivorce. In addition, 65 per cent of the respondents alsosaid that one parent could raise children just as well astwo parents together, a sharp contrast to the usual sanctityof family life arguments against divorce. While there areproposals for a divorce law, the influence of the CatholicChurch remains strong and it lobbies intensively againstdivorce. The Philippines is the only country in the world,aside from M al ta, not to have a universally applicabledivorce law.

Another discriminatory aspect of family law picked upby the C E DAW Committee is the differentiation that theFamily Code makes between concubinage and adultery.Both are considered criminal, rather than civil, offences.The requirement of proof for concubinage is considerablymore stringent than for adultery. Article 334 of the RevisedPenal Code requires proof that a married man and hisconcubine are living together as though man and wife, orthat the husband has had ‘sexual intercourse in scandalouscircumstances with a woman who is not his wife’. Proof

of an adulterous relat ionship, on the other hand, onlyrequires that a married woman has had sexual intercoursewith someone other than her husband. There are proposalsin Congress to replace these with one marital infidelitylaw applicable to both husbands and wives.

The Philippines has also come under attack in C E DAWCommit tee hearings at the U N for the discriminatorycharacter of its fami ly law (Pad i l la 2008). C E DAW ’sconcern was over Muslim marr iage laws which permitmarriage as young as the age of 15.

AbortionThe C E DAW hearings have also criticized the Philippine’santi-abortion position, which brooks no exception for rapevict ims, foetal impairment or danger to a woman’s life.This anti-abortion stance forces women with unwantedpregnancies to resor t to unsafe backst reet abor t ions.Current estimates are that there are roughly half a millionattempts to abort foetuses every year. In 2004 the NationalCommission on the Role of F ilipino Women (N CRF W)repo r t ed that 55 per cent o f a l l pregnancies we reunintended. Unwanted pregnancies are common becausethe government has no effective reproductive health andfamily planning program and little formal sex education.And because the law requires physicians who treat womenwho are injured in such procedures to report the matterto the police, women’s lives are doubly threatened. This iswhy the Committee has urged the government to reviewits abortion laws and to remove their punitive provisionson women who seek abor t ion . T he Comm i t tee alsorecommended that the state should provide health servicesto women who suffer from abortion related injuries (U NCommittee on the E limination of D iscrimination AgainstWomen 2006: 6). While this may not be a call to legalizeabortion, it is clearly a call to decriminalize it.

Convention on the Rights of the ChildThe U N Committee on the Rights of the Child (CRC), inits 2005 considerat ion of the second periodic report ofthe Ph i l ipp ines regard ing i ts implementat ion o f the



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Convent ion on the R ights o f the Ch i ld, favourablyobserved the posit ive steps taken by the government ,particularly with the passing of several laws seeking toprotect children and promote their rights (U N Committeeon the Rights of the Child 2005). However, it also notedthat these laws were not effectively being implemented asthe government has not made available sufficient resourcesfor such a purpose. For instance, each town and city issupposed to prov ide its own juvenile detention faci litywith adequate social and educational services, yet manylocal government units cited the lack of funds for theirfa i lure to bui ld or ma intain such faci l it ies. T he non-governmental organisat ion Preda Foundat ion (2008: 9-10) has lamented the poor quality of facilities for childrenin conflict with the law.

T he C omm i t t ee a lso o f f e red cr i t i ca l obse r va t ionsconcerning the high school drop-out rate in the Philippinesand called for both formal and non-formal educat ionalopportunities for children to be expanded. In addit ion,the Comm i t tee made a number o f observat ions andrecommendations concerning economic exploitation ofch i ldren , w i th a speci f ic ca l l to improve the labourinspection system. The Commit tee also expressed deepconcern at the impact of the narcotics trade on children,the number of street children and the way law enforcerstreated them.

Convention on the Elimination of Racial DiscriminationIn 2008, the Philippines reported against its obligationsunder the Convent ion on the E l im inat ion o f Racia lD iscrimination (C ERD). The report was a consolidationof the 15th, 16th , 17th, 18th, 19th and 20th repor ts,indicating a problem by the government in issuing reportson its progress with regard to the C ERD (U N Committeeon the E limination of Racial D iscrimination 2008).

The government’s report commences by saying that ‘racialdiscrimination, as defined under paragraph 1, article 1 ofthe Convention, is alien to the prevailing mores and cultureof the F ilipino people. The type of racial discrimination,similar to what was practiced in South A frica when the

pol icy of apartheid was not yet dismantled, has neverofficially or factually existed in the Philippines, neither ina system ic nor forma l nor interm it tent nor iso latedmanner ’ (U N Commit tee on the E liminat ion of RacialD i scr im i na t ion 2008 : 6) . S t r ic t l y speak i ng th i s i sinaccurat e as under Span i sh rule there was a cleardistinction made between Indios (native F ilipinos), Chineseand those of Spanish descent born in the Phi l ippinesversus those born in Spain. Under the colonial rule of theUnited States, the predominant pol icy was one of co-opt a t i on a f t e r i n i t i a l sub juga t i on o f e ven thosecommunities that the Spanish had been unable to conquer.Laws were passed by the U S colon ial adm inistrat ionde f i n i ng ‘non-chr i s t i ans ’ and f o rci ng some i nt oreservations and forbidding them from the consumptionof alcohol on the grounds that they were savage andunci v i l i z ed . H owe ve r, r aci sm was gene r a l ly mo rethoroughly incorporated as a psychology that encouragedmany F ilipinos to consider their own culture as second-rate. This was accomplished through an American-styleeducation system, one that, to a large extent, remains tothis day.

Observance of ILO ConventionsIn general, the Philippine observance of ILO conventionsparallels that of the human rights instruments under theHuman Rights Council . T he Phi lippines currently hasnumerous outstanding reports that are overdue, includingresponses to and updates on comments made on previoussubmissions.

In 2007 the Philippines came under severe criticism fromthe Committee of Experts of the ILO with regard to thewave o f ex t rajud icia l k i l l ings and i ts impact on thecountry ’s adherence w ith Convent ion 87 (F reedom ofAssociation and Protection of the Right to Organise). TheCommittee said it was ‘deeply concerned at the allegationsof murders o f t rade union ists’, noted the absence ofconv ict ions and stated that any ev idence of impunityshould be ‘ f i rmly combated’ ( I nte r nat iona l L abourOrganization 2007: < http: / / www.ilo.org / ilolex / cgi-lex /



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pdconv.pl?host =status01&textbase= i loeng& document=781&chapter=13&query= Philippines%40ref&highlight=&querytype=bool&context =0>). During the committeediscussions, the ILO made a request for the conduct of ahigh level mission to the Phi lippines to determine thesituation and offer advice.

Government officials tend then to dwell on the level ofstated pol icy and legal isms ref lect ing a “pro-forma”response to international obligations rather than a focuson substant ive implementation of the conventions andtrue fulfilment of the rights they convey. It would seem,there fore, that hopes of substant ive inst itut iona l izedchange are unlikely to be forthcoming as a direct resultof appeals to international bodies. However, as discussionsbetween the US government and representatives of thePhilippine government concerning a proposed ILO visithave revealed, and as has been illustrated by the responseo f some sect ions o f the business commun i ty and o fforeign investors, the neglect of basic rights and a climateof impunity leave some investors worried about long-term prospects. The defensive posturing and the constantsurrender to speci f i c interests are revea l ing o f theprevailing attitudes to both economic as well as politicaldemocrat izat ion . Belatedly, po l i t ica l leaders may bestar t ing to rea l ize that the count ry ’s inter nat iona lreputation is at stake and that the international standingof the Phi lippines does make a real difference and hasreal economic consequences for the country. A damagedreputation leaves the country less able to exert its influencein international affairs.

4.3 Recommendations Actions for armed protagonists

1. Both military and legislative approaches shouldseek to distinguish between terrorism andinsurgency and to weaken the bonds betweenterrorists and insurgents.

2. IH L agreements between the GRP and insurgentgroups should be independently monitored with

the assistance of third parties agreed upon byprotagonists and by facilitating partners.Complaint mechanisms should be strengthenedto allow such independent scrutiny. Progress andresults of such scrutiny should be made publiclyavailable at all times.

3. Armed groups engaged in quasi-judicialprocesses should release clear rules of court thatmeet internationally accepted definitions of dueprocess, or they should cease such activities.

Actions for the Legislature1. In relation to armed conflict and displacement

a. Torture and coercion should be explicitlyforbidden for all members of the securityforces, and training on non-coerciveinterrogation techniques should be given tothem.

b. A fixed but index-linked scheme ofcompensation for civilians displaced, wounded,or killed during armed operations should beput in place.

c. The Congressional oversight committee on theHuman Security Act should meet regularlyand publish its recommendations on thewebsites of both houses of Congress and inofficial bulletins.

d. The Senate should immediately ratify the ICCat the request of the president.

2. Legislative measures in relation to women,children, and family welfarea. The offences of concubinage and adultery

should be abolished. Marital infidelity shouldbe made a civil rather than a criminal offence.

b. The law on sexual harassment should bechanged to reflect the fact that harassment cancome from subordinates and peers as well asfrom those in authority.

c. Charges of marital rape should not be allowedto be extinguished in the light of forgiveness



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by a spouse; failure to do so will simplycontinue to belittle the offence.

d. Article 202 on vagrancy of the Revised PenalCode should be declared unconstitutional bythe Supreme Court or repealed by Congress.The ordinance passed by Quezon C ity shouldbe adopted instead as the national law.

e. The Reproductive Health Act should be passedby Congress.

f. The Juvenile Justice and Welfare Act of 2006should be amended to ensure that all childrenin detention are safe from harm and havemandatory access to education, rehabilitationmeasures, and access to family or communitymembers. V iolent young offenders should beseparated from those who are not violent.

3. F iscal measures in relation to anti-corruptionand judicial effectiveness measuresa. There should be mandatory and separate

funding for the provisions of the JuvenileJustice and Welfare Act of 2006 sufficient toensure that every province and city has andmaintains at least one detention facility ofadequate quality to fulfil the provisions of theact. The national government should, inaddition, assist municipalities in determining,funding, and responding to the needs ofchildren in violation of the law in accordancewith the Act.

b. Funding for the judiciary as a whole, for theSandiganbayan, and for the O ffice of theOmbudsman should all be depoliticized byfixing the allocation for each at a specificproportion of the General Appropriations Act.

c. State prosecutors’ offices should havesignificantly greater fiscal autonomy.

d. The C HR’s budget should be fixed by statuteas a proportion of the defence and PNPbudgets.

Executive actions1. The implementing rules and regulations for the

anti-torture bill should be developed inconjunction with local and international humanrights groups, the Integrated Bar of thePhilippines, Philippine Medical Association,psychologists and the judiciary.

2. The process of appointing the Ombudsmanshould be similar to that of appointing justicesof the Supreme Court.

3. The executive and the peace panels shouldprovide regular briefings to members of bothhouses of Congress and arrange for thecommittees on defence and on human rights toregularly meet with members of populationsaffected by armed conflict.

4. The Philippines should immediately ratify theConvention on Enforced D isappearances.The executive, in line with the government’sdeclaration of commitment as a member of theU N Council on Human Rights, should issue openinvitations to all U N Special Rapporteurs.Similar invitations should be undertaken withregard to ILO inspections.

5. The president should immediately endorseratification of the ICC to the Senate.

Law enforcement investigation capacities1. PNP personnel should receive much greater

training on the rules of evidence and ontechniques for gathering and presenting evidence.Access to legal support within the PNP should beof significantly higher quality and be much morewidespread, including allowing the PNP to accessthe pro-bono services of lawyers in thepreparation of high profile cases.

2. The PNP should properly resource its forensiccapabilities in a range of centres around thecountry and make much greater use of D NAevidence and much less use of gunpowder testsand lie detector tests, both of which are known tobe unreliable.



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Judicial actions1. The gender committee of the Supreme Court

should resolve upon a new five-year plan in thelight of the C E DAW recommendations andconsultations with N CRF W, the academe andcivil society groups. Protection orders, inparticular, should be made much more accessible,and a nationwide information campaign shouldbe undertaken on options for women and childrensubjected to domestic violence. Courts should besensitized to the vulnerabilities of women withregard to conjugal property during periodscovered by protection orders.

2. The Supreme Court should sponsor studies andtrainings on customary laws pertinent to theindigenous groups with which judges are likelyto come into contact.

Independent oversight bodies1. The Commission on Human Rights’ (C HR)

investigatory capacities should be upgraded.2. The C HR should be given the power to visit any

facility in which it believes people may bedetained; that power should be respected withoutexception by force of legal statute and backed byjudicial prerogative, including automatic use ofcontempt powers, if necessary.

3. The ICC should develop a regional presence inSoutheast Asia and work actively withgovernments and civil societies within the region.

Endnotes1. More information on the plot is available at the following

sources: <http: / / web.archive.org / web/20020614124327/http: / /www.thestar.com/ NASApp/cs / ContentServer?pagename=thestar / Layout / Article_Pr intF r iendly&c= Article&cid=1009926464027> ; ‘September 11: The Asianbluepr int’ by Mar ia Ressa, at <http: / / edition.cnn.com/2002/WORLD / asiapcf / southeast /03 /11 / gen.phil.terror.blueprint /?related’> ; and <http: / / www.knowledgerush.com/ kr /encyclopedia / Bojinka_Plot / >

2. See, for example, <http: / /pcij.org / stor ies /did-mike-arroyo-fund-postelection-special-operations-in-lanao / > ; <http: / /verafiles.org / index.php/ trackback /108-working-miracles-in-mindanao> and <http: / / newsbreak.com.ph / index.php?option=com_jcs&task=add&&Itemid=88889164>

3. For more discussion on these r ights, see Philippine DemocracyAssessment: E conomic and Social Rights by Edna E .A . Co, Ramon L .Fernan I I I , and F ilomeno Sta. Ana I I I published by AnvilPublishing Inc 2007. See also the Human Development Indexacross provinces published by the Philippine HumanDevelopment Network and available at <http: / / hdn.org.ph /wp-content /uploads /2005_PH DR/ Stat_annex.xls>

4. For details, see Philippines Case Decongestion and Delay ReductionProject, a presentation by Professor Rosemary Hunter, GriffithUniversity, 2002, available at <http: / / siteresources.worldbank.org / IN T LAWJUST INST /Resources / CD DRPpresentation.ppt>

5. E xecutive Order 464, E xecutive Order on the Calibrated Pre-emptive Response and Presidential Proclamation 1017

6. These were the “Guide for Establishing the People’s DemocraticGovernment”, “Basic Rules of the New People’s Army” (1969),“Rules in the Investigation and Prosecution of SuspectedEnemy Spies” (1989), and the “N D FP Declaration ofUndertaking to Apply the Geneva Conventions of 1949 andProtocol I of 1977” (1996). While the “Basic Rules of the NewPeople’s Army” includes a list of offences that are to bepunished by expulsion and death when committed by membersof the NPA — “treachery, capitulation, abandonment of post,espionage, sabotage, mutiny, inciting for rebellion, murder, theft,rape, arson and severe malversation of people’s funds”(Pr inciple IV, Point 8)

7. For further details, see Edna Co, Ramon L . Fernan I I I andF ilomeno Sta. Ana I II , Philippine Democracy Assessment: Economicand Social Rights (Pasig C ity: Anvil Publishing Inc., 2007)



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References and further readingAlaminos C ity Government, ‘Lawmen collars two suspected drug

pushers anew ’, 30 September 2006, avai lable at <http: / /w w w.a l am i n o s c i t y. g ov. ph / n e ws / n e w s de t a i l s . as p x ?newsid=142> , accessed on 4 May 2009

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Dela Cruz, Jhong, ‘Gov’t Asked to Adopt U N Declaration on IPRights’, Bulatlat, V I (27), 13-19 August 2006, available at<http: / / www.bulatlat.com/ news /6-27 /6-27-ipr ights.htm> ,accessed on 18 August 2009

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Manila T imes, ‘Racism’, Editor ial, 12 February 2008

National D isaster Coordinating Council, N DCC Update SitrepN o . 82 re I D P s i n M i ndanao , ava i l able at < ht tp : / /210.185.184.53/ ndcc Web/ images / ndcc Web/ ndcc_ update /I DPs_ 2009/ ndcc%20update%20sitrep %2082%20re%20idps%20in% 20mindanao%20001.pdf > , accessed 18 March 2009

N at ionMaster.com, ‘ Immigrat ion Stat istics > Refugees andinternally displaced persons > I DPs > Philippines (histor icaldata) ’ , ava i l abl e at < ht tp : / / www.nat i onmas te r.com /t ime .php?stat = imm_re f_and_ int_d is_per_idp-refugees-internally-displaced-persons-idps&country=rp-philippines> ,accessed 20 March 2009

O ffice of the United States T rade Representative, ‘2008 GSPAnnual Review: Responses in Support of Petition To DesignateH T SUS 2009.41.20 and 2009.49.20 As E l igible A rt iclesUnder the Generalized System of Preferences And In Support



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of Request for Competitive Need L imit Waiver for Impor tsfrom The Philippines (Case Numbers 2008-08 and 2008-09)03 November 2008’, available at <http: / / www.laborr ights.org/ f i les / 2008%20 G SP % 20A nnua l %20Re v iew%202008-08%20and%202008-09%20%202009%2041%2020%20and%202009%2049%2020%20%20Post-hear ing%20Br ief%20_2_.pdf > , accessed on 25 November 2009

O lar te, Av igai l M ., ‘Spate of at tacks alarms local Indiancommunity’, 6 August 2007, available at <http: / /pcij.org /stor ies / spate-of-attacks-alarms-local-indian-community / > ,accessed on 15 August 2009

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Palacio, Rose B., ‘PNP monitors election hotspots’, PhilippineInformation Agency press release, 11 January 2007, availableat <http: / / www.pia.gov.ph / ?m=12&sec=reader&rp=1&fi =p070111.htm&no=2&date=01/11/2007> , accessed 12 Apr il2009

Pangasinan Star, ‘2-muslim-top-drug-pushers-in-dagupan-fall’, 15October 2007, available at <http: / /pangasinanstar.prepys.com/ archives /2007/10/15 /2-muslim-top-drug-pushers-in-dagupan-fall / > , accessed on 5 August 2009

Philippine Information Agency, ‘ Task Force Usig nabs 27 EJKsuspects’, PIA Press Release, 26 May 2008, available at <http: // ma i l .p ia .gov.ph / ?m = 12& f i = p080526 .h tm&no = 18 > ,accessed on 24 March 2009

Preda Foundation, Report on the Detention of Children and L apses inthe Implementation of the Comprehensive Juvenile Justice System andWelfare Act of 2006 (RA 9344), 10 December 2008, available at< ht tp: / / www.ch i ldpro tec t ion.org .ph / monthly features /PRE DA .pdf > , accessed on 15 July 2009

Pulse Asia, ‘Ulat ng Bayan: Pulse Asia’s October 2008 NationwideSurvey on Reproductive Health and the Reproductive HealthB i l l ’ , ava i l abl e < ht tp: / / pul s eas ia .com .ph / pul s eas ia /story.asp?id=664> , accessed on 25 July 2009

Roth, Kenneth, ‘Death Squads: A Murderous Plague’, Far EasternE conomic Review onl ine, posted 20 May 2009, available at<http: / / www.feer.com/politics /2009/may56/ Death-Squads-A-Murderous-Plague> , accessed on 2 June 2009

Rufo, Ar ies, ‘K illings Summit: Resume Peace Talks’, Newsbreak,18 July 2007, available at <http: / / www.newsbreak.com.ph /index.php?option=com_content&task=view&id=3498&Itemid=88889008> , accessed on 26 March 2009

Santos, Soliman M ., Jr., E volution of the Armed Confl ict on theCommunist F ront, A background paper submitted to the HumanDevelopment Network Foundation, Inc. for the PhilippineHuman Development Repor t 2005, avai lable at <http: / /h d n . o r g . p h / w p - c o n t e n t / u p l o a d s / 200 5 _ P H D R /2005%20Evolution_Communist_Conflict.pdf >

Scheinin, Martin, ‘U N Special Rapporteur Calls for Changes tothe Philippines’ Human Secur ity Act’, United Nations PressRelease, 12 March 2007, available at <http: / / www.unhchr.ch /hur icane / hur icane .nsf / 0 / 33A881E 349623E3C C125729C0075E6FB?opendocument> , accessed on 3 December 2009

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Tauli-Corpuz, V ictor ia, How the U N Declaration on the Rights ofIndigenous Peoples Got Adopted, no date, available at <http: / /www.tebtebba.org / index.php?option= com_docman&task=doc_download&g id = 287&I temid =27 > , accessed on 24September 2009

Tesiorna, Ben O., ‘Death by burning for Sino druglords: Duterte’,Sun-Star D avao, 1 December 2003 avai lable at <http: / /www.suns tar.com .ph / s tat i c / dav / 2003 / 12 / 01 / news /death.by.burning.for.sino.druglords.duter te.html> , accessed on20 September 2009



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Public Perception

5.1 Public Perception on Judicial andOther Institutions

What is the public perception on the judicial and otherinstitutions? To what extent do the people trust thejudicial and other institutions such as the courts, thepolice and other judicial authorities?

It is difficult and complex to ask people’s opinions aboutthe rule of law because measuring the rule of law is anintricate task. The closest measure of the rule of law isprobably the institutions that closely serve the purposeof law and the pro tect ion of ci t izens’ r ights. T heseinstitutions include the Supreme Court, the trial courts,the Ombudsman (and the Sandiganbayan), and otherpillars of justice such as the police and the Departmentof Justice. The other institutions with which people mightassociate the rule of law are institutions of governancesuch as the loca l gover nment un i t s, especi a l l y thebarangay, which by Phil ippine law, are mandated somequasi-judicial powers and which are the most v isiblegovernance institutions to ordinary citizens.

Several poll surveys were conducted by the Social WeatherStations (SWS) on various aspects of the rule of law andaccess to justice over the years 1993, 1995, 1999, 2003and 2007. The questions were directed at legal expertsand practitioners, such as judges and lawyers, who were

5


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asked about their perceptions of the rule of law and theperformance of institutions and legal exper ts. Surveyswere also conducted among the public at large.

The A lternative Law Groups, Inc. (A LG), an organisationof legal practitioners in the Philippines and a coalition of18 non-governmental organisat ions on developmentallega l serv ices, commissioned a survey in 2007 whichaddressed the problems of the poor in accessing justiceand the extent to which the A L G assisted the poor insolving these problems. The A LG study is a rich sourceof data on legal experts’ perceptions and, to some extent,public perceptions on the rule of law and access to justice.

The democracy assessment on rule of law commissionedSWS to do a survey in 2009. The survey asked similarquestions as those raised by SWS and A L G in their surveyof 2007 and by earlier SWS surveys prior to 2007. Thedifferent surveys allow a comparison of the responses overseveral time periods. New questions were included in thedemocracy assessment survey in 2009. The various resultsare discussed in this section. A ll survey data from 1993to 2003 are from SWS surveys. The 2007 data come fromthe SWS-A LG study. The 2009 data are from the surveycommissioned by the democracy assessment.

5.2 Findings of Various Surveys

5.2.1 Equal Treatment by the CourtsPeople’s at titude toward equal treatment by the courtswas assessed by asking respondents to agree or disagreewith the following proposit ion: ‘ Whether rich or poor,people who have cases in court generally receive equalt reatment .’ T h is was f irst posed in a 1985 pol l , andsubsequently in pol ls conducted in 1993, 1997, 1999,2003 and 2007. In 1985, 49 per cent agreed that peoplegenerally received equal treatment in court and only 26per cent disagreed. In subsequent survey years, however,the answers varied significantly, as table 5.1 shows.

Table 5.1 Respondents who agree or disagree w ith the proposi t ion of equaltreatment by the courts for r ich or poor people (in per cent)

Year Agree Disagree Undecided

1993 4 3 3 9 1 8

1997 4 1 4 0 1 9

1999 3 6 4 4 2 0

2003 4 0 3 6 2 4

2007 3 8 4 5 1 6

Sources: Social Weather Stations nat ional surveys conductedin 1993, 1997, 1999, 2003 and 2007 (wi th A lternative Law G roups)

In the 2003 national survey a series of questions wereasked regarding people’s trust in institutions, such asthe courts, and in judges and lawyers. Questions werealso asked about the problems that people encounteredin trying to get the proper services they sought fromthe courts. The results are presented and analyzedbelow.

5.2.2 People’s Confidence in Institutions

Level of Trust in InstitutionsIn general , people placed a higher level of trust in thechurch , med ia and non-gover nmenta l organ isat ionscompared to al l other inst itut ions, as table 5.2 shows.Among public institutions, people tended to put their truston the city or town government probably because this isthe unit of government they are most familiar with andthat is most visible and accessible to them. The SupremeCourt also seems to rate a high level of trust probablybecause it is the people’s ult imate resort and hope forobtaining justice.

Pub l ic Perc ep t io n


176 177

Table 5.2 People’s level of trust in inst itut ions (in per cent)

Inst i tut ions Ver y L i t t le Neither M uch Ver y D oesn ’tl i t t le much much know

nor inst i tut ionl i t t le

Supreme Court 6 1 4 3 3 3 4 1 1 0.5

T rial courts 6 1 6 4 1 3 0 6 0.7

Sand iganbayan 6 1 2 3 9 3 3 8 1.0

N a t ional government 4 1 3 3 6 3 8 9 0.4

Leg islature 4 1 4 3 7 3 7 7 0.6

C i ty / Town govt 3 1 1 2 9 4 2 1 5 0.1

M i l itary 8 1 7 3 0 3 5 1 0 0.1

Pol ice 9 2 0 3 1 3 2 7 0.0

Cathol ic Church 5 7 1 4 3 7 3 6 0.3

Telev ision 2 8 3 0 4 4 1 5 0.2

N ewspapers 4 1 1 3 5 3 7 1 1 0.3

N on-govt . organisations (N G Os) 5 1 3 4 0 3 2 8 2.0

Source: Social Weather Stations, Ma y 28-June 14, 2003 N ational Survey(Quezon C i ty : Social Weather Stations, 2003)

Present Performance of the Courts and Comparedto Five Years AgoMost respondents seemed to have a middle-of-the-roadat titude regarding court performance with 47 per centsaying it was neither good nor bad, as shown in table 5.3.However, 29 per cent did deem performance to be good.T able 5.4 shows that more than half of the respondents(56 per cent) said they thought that there was no changein the courts’ performance in the last five years.

Table 5.3 Op inion on present per formance of courts (in per cent)

Ver y good 4

Good 2 9

N ei ther good nor poor 4 7

Poor 1 4

Ver y poor 3

Source: Social Weather Stat ions,May 28-June 14, 2003 N ational Survey(Quezon C i ty : Social Weather Stations, 2003)

Table 5.4 Op inion on current performance of the courts compared tofive years ago (in per cent)

Much bet ter 4

Somewhat bet ter 2 1

T he same 5 6

Somewha t worse 1 3

Much worse 3


Public Perception of Judges and LawyersRegarding Certain CharacteristicsA small majority (54 per cent) of the respondents saidthat many judges, if not most, tended to be trustworthyand good at work, as shown in table 5.5. However, thisalso means that quite a few people believed that few judgeswere trustworthy. This could be why 56 per cent thoughtthat judges could be bribed. Even more people were ofthe same opinion about lawyers.

The public’s opinion on lawyers was worse as half impliedthat they were less than trustful of lawyers and 64 percent thought that many lawyers could be bribed, as shownin table 5.6. However, 62 per cent also said that many, if



178 179

not most, lawyers were good at their work. This, as withthe similar result for judge’s competence, may mean thatpro f ess iona l compe t ence does no t prec lude be i ngsusceptible to bribery.

Table 5.5 Public percept ion of judges in terms of speci fic character ist ics(in per cent)

M ost M any Few N one

T rustwor thy 1 4 4 0 4 4 1

Good at work 1 3 4 9 3 7 1

Can be bought / br ibed 1 7 3 9 3 9 4


Table 5.6 Public percept ion of lawyers in terms of speci fic character ist ics(in per cent)

M ost M any Few N one

T rustwor thy 1 2 3 7 4 8 2

Good at work 1 5 4 7 3 6 2

Can be bought / br ibed 2 3 4 1 3 4 3


Public Confidence in Court Decisions inSpecific Kinds of CasesAlmost two of every five persons expressed little or veryl it t le conf idence that the court would issue a decisionquickly in a case like murder where an important personis accused, as shown in table 5.7. One in three respondentssaid that they had little or very little confidence that thecourt would decide on the merits of the case rather thanon the quality of the legal representation, about the sameas those who had much or very much confidence in thecourt’s behaviour in this matter. This was about the sameoutcome regarding the question of the fairness of thecourt’s decision in this matter.

In contrast, somewhat more people expressed confidencein the cour t ’s fairness and t imel iness w ith regard todecision-mak ing in cases involv ing pol ice or m i l itarypersonnel, as shown in table 5.8. Among those who havebeen directly involved in court cases, a significantly highnumber (65 per cent) expressed confidence in the court’sfairness, as shown in table 5.9. However, there were somewho doubted the cour t ’s fair ness and promptness inhanding down decisions.

Table 5.7 Confidence in court decisions where v ict im is an ordinary person andaccused is an impor tant person (in per cent)

Ver y L i t t le N ei ther M uch Ver yl i t t le much

Decision wil l be issued w ithin a reasonable amount of time 9 2 9 3 0 2 5 7

T he court wi ll consider the meri ts of the case more than the qual ity of the lawyers arguing the case 5 2 7 3 6 2 6 5

T he decision of the court will be fair 7 2 6 3 3 2 6 7


Table 5.8 Confidence in court decisions where police and mili tary are accused ofv iolat ing human r ights (in per cent)

Ver y L i t t le N ei ther M uch Ver yl i t t le much

Decision wil l be issued w ithin a reasonable amount of time 5 2 3 3 8 2 6 8

T he court wi ll consider the mer its of the case more than the quali ty of the lawyers arguing the case 4 2 2 4 1 2 7 6

T he decision of the court will be fair 4 1 8 4 0 2 9 8




180 181

Table 5.9 Op inion on court ’s fairness by complainant or defendant (in per cent)

F air 6 5

Neither fair nor unfair 1 2

Unfair 2 0


A lthough there are no further explanations as to the court’spromptness and fa i r ness, i t is impo r t ant that theadministrative procedures of the court are based on ruleof law pr inciples. T his means that cit izens who areinvolved should have the right to be regarded, to be heard,to have access to information, and so on. The promptnessof the court in deciding on cases also says much aboutthe efficiency of the court, of its having a sense of urgencyor at least of its having a timetable within which decisionsare delivered. Such promptness is central to citizens’ accessto just ice. In other words, the promptness w ith whichcourts make decisions says something about rules andthe rule of law in the public sector system.

5.2.3 Influence and Pressure on the CourtsT able 5.10 below shows that people believe that the courtsget pressure from important offices and high officials, andvery few believe that the courts do not get serious pressurefrom any of the entities mentioned. The common beliefthat one of the biggest challenges facing the courts is theirindependence seems to be validated by this poll result.W hen the court s’ i ndependence is cha l lenged, theconfidence and trust of the people in them are diminished.People perceive that pressure on the courts is appl iedprimarily by business and political authorities.

Table 5.10 Ent it ies that pressure the courts and the courts’ resistance to them(in per cent)

Courts Courts Courts Courts N o seriousa lmos t usua l ly seldom a lmos t pressurealways resist resist never from thisresist resist ent i t y

O ff i ce of the President 1 5 3 1 3 1 1 7 3

Congress 1 2 3 3 3 5 1 5 3

L oca l author it ies 9 3 2 4 0 1 3 3

Big business 1 0 3 2 3 5 1 8 3

M i l itary 1 0 3 4 3 5 1 6 3

C iv i l Society advocacy groups 1 0 3 9 3 3 1 1 3

Organized

Cr ime 1 4 3 5 2 9 1 5 5

Source: A lternative Law Groups, Inc. ‘Research on the Poor Accessing Justiceand the AL G as Justice Reform Advocate’, Inroads A L G Study Series 4 (QuezonC ity: A lternative Law Groups, Inc. and Social Weather Stations, 2008)

5.2.3 Access to Courts and to JusticeAccess to justice is here understood to be and equatedwith access to the courts. Such access may be measuredby: firstly, the monetary cost involved in bringing andpursuing a case in court; secondly, the time needed to doso; th i rdly, the ease w i th which an ordinar y person(whether complainant or defendant) understands what isgoing on in court and the procedures involved in followingthe case through; and, finally, the general fairness withwhich the court arrives at its decision. These factors areamong the benchmarks of accessibility to the courts andof the access to justice by ordinary people. Prior to the2007 A L G survey, S W S pol ls had shown that ‘70 percent of the publ ic bel ieved that tak ing a case to courtcosts more money and time than they can afford’ (InroadsA LG Study Series 4, Research on the Poor Accessing Justice



182 183

and the A LG as Justice Reform Advocate. 2008). The costsof engaging the court are a factor that bears upon accessto justice especially by the poor.

Table 5.11 Rank ing of problems encountered when tak ing a case to court(in per cent)

Strongly Somewhat Neither Somewhat Stronglyagree agree agree disagree disagree

nordisagree

It is hard for me to understand English 1 2 37 (49) 1 7 2 6 1 1

It is hard for me to understand what the judge & other lawyers say, even when they use my language 8 32 (40) 2 6 2 7 8

To take a case to courts cost more money than I can afford 2 8 42 (70) 1 6 1 0 3

To take a case to courts takes more t ime than I can afford 2 7 42 (69) 1 9 1 0 2

M y opponent would probably resor t to bribery in order to win the case 2 5 37 (62) 2 1 1 2 6

T he judge would probably not understand the problems of someone like me 1 3 40 (53) 2 8 1 5 4

I f the court decision is in my favour, I cannot be sure that it will be enforced 1 3 43 (56) 2 8 1 3 3

It is difficult for me to find a trustworthy lawyer to help me 2 2 38 (60) 2 4 1 3 3


Access to the courts importantly means access to thelanguage used in court proceedings, as shown in table5.11 above. The inaccessibility of the proceedings due tothe language used exacerbates the alienation that ordinarypeople feel in relation to the technical and legal proceduresinvolved in court cases. Another accessibility benchmarkis trust in the rule of law and the courts.

It is essential that the part ies concerned have access tooff icial documents. Court transcripts are available uponpayment of a fee but for the poor, such a cost may beprohibit ive. O ther opt ions to access such informat ionshould be provided.

Many people think that the cost of pursuing one’s case incourt is a serious expense, as shown in table 5.12 below.Based on the po l l among A L G targe ted areas (thegeographical areas where A L G operates), the expensesinvolved in engaging the courts constitute a crucial factori n access i ng jus t i ce . H i r i ng a lawye r, acqu i r i ngdocumentat ion, t ravel l ing to and from the courts forhear ings al l require the expenditure of money. In theInroads A L G Study (2008: 45), respondents commentedthat the ‘rich get better treatment because they can easilypay the costs’, and that ‘justice is practically inaccessiblefor the poor’. Great dissatisfaction is often expressed onthe administrat ion of just ice in this country with theattendant costs and the considerable delays ranking highamong the barriers in obtaining justice. Improving accessto justice will mean decisive changes by the courts andthe justice system itself.

Table 5.12 Op inion on the cost of pursuing case in court (in per cent)

E xpensive 4 7

M oderate 3 9

Cheap 1 2

No expenses 1

Source: A lternative Law Groups, Inc. ‘Research onthe Poor Accessing Justice and the A LG asJustice Reform Advocate’, Inroads A L G Study Series 4(Quezon C ity: Alternative Law Groups, Inc. andSocial Weather Stations, 2008)



184 185

5.2.4 Lawyers and Judges’ Opinions on theState of the Judiciary

Judges differ from lawyers in their opinion on whetherpoor people can get justice under the judicial system. F romtable 5.13 below, it appears that judges, more than lawyers,have a higher degree of confidence that the poor can obtainjustice. That opinion had improved in 2003-04 from thatexpressed in 1995.

Table 5.13. Judges’ and lawyers’ opin ion on whether the poor can access just ice(in per cent)

Lawy ers Judges

1995 2003-04 1995 2003-04

A gree 5 0 5 3 6 1 7 5

D isagree 4 2 3 5 3 4 2 0

Can’t decide 8 1 2 3 3

No answer 0 0 2 2

Source: A lternative Law Groups, Inc. ‘Research on the Poor A ccessingJustice and the A L G as Justice Reform Advocate’, Inroads A L G Study Series4 (Quezon C i ty : A lternat ive Law Groups, Inc. and Social Weather Stat ions,2008)

The same survey showed 49 per cent of lawyers sayingthey were satisfied with the judicial procedure, while 48per cent said they were dissatisfied. The level of satisfactionwas slightly higher than in 1995 when 51 per cent oflawyers said they were dissatisfied. Judges, on the otherhand, had a s l ight ly more pos i t ive v iew o f jud icia lprocedures in 2003 as 82 per cent said they were satisfiedcompared to only 80 per cent in 1995.

Lawyers had a lower level of satisfaction with regard tothe pace of court cases, with 57 per cent saying that itwas too slow, as opposed to only 23 per cent of the judgeswith the same opinion. About a quarter (26 per cent) ofthe lawyers said that the pace was reasonable, while 71per cent of judges had this opinion.

Judges ’ pe rcept i on o f co r rupt i on among jud i c i a lprofessionals and personnel in 2003 is presented in table5.14 below. Judicial personnel perceived law enforcers suchas the police and the sheriffs as being the most corrupt.Prosecutors and lawyers were also seen as involved incorrupt ion.

Table 5.14. Percept ion of corrupt ion among judicial professionals and personnelby judges, 2003 (in per cent)

Very Many Many Some A Few Very few Don’t Know

Pol ice 2 5 3 4 1 8 8 5 8

Sher i ffs 9 2 7 2 2 2 0 1 0 9

Prosecutors 8 2 0 3 0 2 0 1 0 1 0

Lawy ers 5 2 2 3 1 2 1 8 1 1

Just ices 1 4 2 5 2 5 1 5 2 6

Clerks o f court 2 8 2 9 3 1 1 6 1 2

Judges 1 6 3 1 3 1 1 8 1 1

Secretar ies 1 4 1 6 2 7 2 0 2 2

Stenographers 0.3 3 1 6 3 1 3 0 1 5


Among lega l pract i t ioners, par t icular ly lawyers, theperception on the performance of the Philippine NationalPolice (PNP) had the highest level of net dissatisfaction,as table 5.15 below shows. Ironical ly, the pol ice, as thebasic enforcement unit of justice, plays a fundamental rolein the progress of succeeding proceedings.



186 187

Table 5.15. Lawyers’ rank ing of per formance by judicial inst itut ions (in per cent)

Very Somewhat N ot too Not at Don ’tsatisfied satisfied satisfied all satisfied Know

Supreme Court 1 8 5 9 1 9 4 0.2

Integrated Bar of the Philippines 8 5 7 2 8 6 1.0

Court of A ppea ls 4 5 2 3 4 6 4.0

Publ ic A ttorney ’s O ffice 6 4 6 3 6 8 2.0

Phi lippine Judges A ssociation 2 3 2 2 8 8 31.0

Prosecut ion Serv ice 2 3 5 5 3 9 2.0

P N P 1 1 0 4 8 4 0 2.0


One can only surmise the reasons for this percept ion.Among the possible reasons is the vulnerabil ity of thepo l ice to br iber y, cor rupt ion and abuse o f author i tysometimes resulting in violations of human rights. Thisis perhaps made worse by the inadequacy of sk ills andtrain ing among the po l ice in the handl ing of just iceenforcement. In one focus group discussion, a policewomanconf irmed that , generally, the police are not cognizantwhether their actions do have consequences on citizens’human rights. This fact says something about the skillsand training of the police on justice enforcement.

T able 5.16 below shows judges’ rating of the performanceof cer tain jud icia l inst i tut ions. T he judges rated thePhi l ippine Judicial Associat ion’s performance w ith thehighest level of satisfaction. They placed the police at thebottom of the ratings. This is a perception shared by manyordinary citizens when randomly asked about their viewson the performance of the police. Incidentally, citizens havemore and frequent direct experience with the police.

Table 5.16. Judges’ rat ing of the performance of judicial inst itut ions (in per cent)

Very Somewhat N ot too Not at Don ’tsatisfied satisfied satisfied all satisfied Know

Phil . Judicial A ssociation 3 0 5 5 9 2 2

Supreme Court 2 7 5 4 1 4 2 1

Phil. Judges A ssociation 1 1 4 9 2 4 7 6

Court of A ppea ls 9 4 8 2 8 4 7

I BP 7 4 8 3 2 7 3

PA O 8 4 6 3 7 6 1

Prosecut ion Serv ice 3 4 1 4 4 9 1

P N P 1 1 8 4 2 3 4 1


In 2007 the A lternative Law Groups, Inc. and the SocialWeather Stations survey asked, among other things, theextent to which the poor gain access to justice under thejudicial system. The results shown below compare theanswers of respondents who were recipients of A L Gservices with those outside the AL G targeted areas (shownunder the ‘national’ column).

T able 5.17 shows that poor respondents generally considerthe cost of going to court as the first obstacle or difficultyin access ing just ice. T he next problem appears to besecuring a lawyer, followed by other factors such as theperception that the courts may not be fair, the time spentin going to judicial proceedings, the risk and danger thata court case may br ing upon a person and, lastly, theintel lig ibility of the court’s procedures to the ordinaryperson.



188 189

Table 5.17. Percept ions by the poor regarding their access to just ice, A LG versusNat ional areas (in per cent)

A L G N a t ionalT argetA rea

Someone l ike me w i ll have a problem w ith the expenses 7 8 7 9

It wi ll be hard for someone l ike me to get a lawyer to help me 4 0 3 7

Someone l ike me lacks knowledge about laws and legal procedures 4 1 3 3

T he courts wi ll not be fair to someone like me 3 2 3 0

It w ill be hard for someone like me to wait for a long period for the end of this case 3 0 2 5

T his w il l be dangerous for someone l ike me and my family 3 2 1 5

It w ill be hard for someone like me to understand what the judge and lawyers say 1 5 1 0


T able 5.18 below shows the awareness of people in thebarangay on what agencies are able to assist them withlegal problems. People in both A LG and non-A LG areaswere most aware of the Department of Social Welfareand Development (DSW D) as an agency that is able toprovide them with legal assistance. This was followed bythe Public A ttorney’s O ffice (PAO), barangay officials andbarangay captains, and town mayors and councillors. Thisresult says that the poor first look up to the DSW D andthe PAO for assistance with their legal problems, and thento their local governments and officials.

Table 5.18 Awareness of government agencies that can prov ide legal assistance(in per cent)

A L G T arget N on-A L G A reaA rea

Dept. of Social Welfare & Devt. 37.0 34.0

Publ ic A ttorney ’s O ffice 34.0 25.0

Barangay off icials 23.0 25.0

Barangay Captain 15.0 20.0

C i ty / Mun icipal M ayor or Counci llor 18.0 22.0

Pol i ce / Pol i ce stat ion 7.0 6.0

Governor 3.0 6.0

N G Os 3.0 2.0

F iscals 4.0 1.0

A L G 2.0 1.0

Courts 1.0 2.0

Private lawyers 2.0 0.4

Own congressman 1.0 1.0

Church-based organisat ion 0.3 1.0

Others 8.0 10.0


W ith regard to changes in the court system during thelast f ive years applicable to the poor, as shown in table5.19 below, a number of people believed that there havebeen impro vement s made . T he y sa id tha t theseimprovements included substantive legal rights, servicesin availing and enforcement of these r ights, and in theprocedures of accessing justice.



190 191

Table 5.19 Percept ion of changes applicable to the poor in the last five years(in per cent)

Bet ter N ow N o Change Worse Now

Substant ive legal r ights 8 6 9 3

Serv ices to avai l of or en force legal rights 7 3 1 9 1

Procedures for access to just ice 6 7 2 0 9

Source: A lternat ive Law G roups, Inc. ‘Research on the Poor A ccessingJustice and the A L G as Justice Reform Advocate’, Inroads A L G StudySeries 4 (Quezon C i ty: A lternat ive Law G roups, Inc. and Social WeatherStat i ons , 2008)

The perception of most significant improvements in thelast f ive years concerned the passage of key laws, asshown in table 5.20. Passing such laws, however, is onething, whi le putt ing them in operation is another mat ter.The operat ionalization of the laws probably has to dowith eff icient and effective administration of these laws.Thus, it is impor tant to re-examine the manner in whichthe courts, and the personnel and staff of the courts,including justices and lawyers, carry out the rules basedon just ice principles. The common challenge to Phil ippinedemocracy (as in fair elections, reduction of democracyor cit izens’ access to social and economic rights) is notso much the presence or absence of laws but the mannerin which publ ic administration personnel carry out therule of law.

Table 5.20 Percept ion of most sign ificant improvements in the last five years(in per cent)

F G D areas NCR Luz V i s M in

Passage of key laws 2 6 1 1 3 1 2 1 3 2

More N GOs providing legal assistance 1 6 1 1 2 8 2 8 9

Strengthen ing A D R / Mediation 9 1 1 1 5 3 9

Improvements in the judiciary 8 3 3 0 7 9

E mpowerment o f abused women & children 3 1 1 0 3 5

E mpowerment o f Indigenous Peoples 3 1 1 8 0 0

Barangay Just ice System 2 0 0 0 5

Recogn i t i on o f NCIP Adjudication 2 0 8 0 0

Less corrupt ion in judiciary 2 1 1 0 3 0

Others 2 3 1 1 8 3 8 2 7

N otes: A DR - alternative d ispute resolut ionN CIP – N at ional Comm ission for Ind igenous PeoplesN CR – N at ional Cap ital Reg ionLuz – LuzonV is – V isayasM in – M indanao


It was mainly in the National Capital Region (N CR)where there was a high perception about improvementsin the judiciary (33 per cent). The efforts of non-governmental organisations to provide legal assistancewere noted as well.



192 193

Even among the focus groups that the A L G conducted,the participants observed some improvements in the accessto just ice by the poor and marg inal ized al though thedegree of improvement still differed according to sector.For example, some changes in procedural aspects made iteasier for the poor to access justice, thanks to the presenceof N G Os and local governments that assist the poor andmarginalized. In general, however, the government stillseems unable to effect ively administer just ice therebyhindering the poor ’s full access to it . T able 5.21 belowshows that the clamour for more and better education onthe laws is strong across al l geographical areas. Otherfactors that would need to be improved in order topositively affect the poor’s access to just ice have to dowith the administration of the rules of law, in the form ofbet ter training for judges, court personnel and pol ice;reform in substantive and procedural laws; reduction ofcorruption; and increased budget for the judiciary, amongothers. In other words, the demand for better rule of lawand access t o jus t i ce requ i res a be t t e r sys t em o fadministration of the rule of law. The effective and efficientadministration of the rules is key to the delivery of justice.

Table 5.21 Recommendat ions regarding the most effect ive way to improve thesystem of just ice in next five years (in per cent)


M ore educat ion on laws 2 2 3 3 2 3 2 1 1 8

Increased train ing for judges, PNP, court personnel , etc. 1 3 1 1 4 1 4 2 2

Bet ter selec t ion of lawyers and judges 1 3 2 2 1 2 1 0 1 4

M ore A L Gs / mainstream ing A L G 1 0 1 1 8 3 2 3

Strengthen A D R / JS 7 1 1 8 1 0 0

Independent Judiciary 7 2 2 4 7 5

Reform in substant ive and procedural laws 6 1 1 8 7 0

Reduce corrupt ion 6 1 1 8 0 9

H ire more lawyers & judges 6 1 1 4 1 0 0

Speedy tr ial of cases 6 0 8 1 0 0

Increased cooperat ion of the five pi llars of just ice 6 0 4 1 0 5

Improvements in IPs’ access to just ice 5 1 1 8 0 5

Increase budget for the judiciary 5 0 4 7 5

More lawyers for the poor 3 0 0 3 9

M ore paralegal trainings 3 0 8 0 5

A ccessib i l ity & affordabi li ty 3 0 8 3 0

C reat i on o f quasi-judicial bodies 3 0 0 1 0 0

L ivelihood suppor t for litigants 3 1 1 0 7 0

E mpowerment o f the poor 3 0 0 7 5

Others 2 2 3 3 1 2 3 4 1 4

N otes: A L G – A lternative Law G roupsA DR – alternative d ispute resolut ionJS – jud icial systemN CR – N at ional Cap ital Reg ionLuz – LuzonV is – V isayasM in – M indanao





194 195

5.3 2009 Survey on People’s Perceptions on the Ruleof Law and Access to Justice

In February 2009 the Democracy Assessment on Rule ofLaw and Access to Justice Project asked the Social WeatherStat ions pol l ing organisat ion to conduct a survey onpeople’s perceptions regarding the rule of law and accessto justice in the Philippines. The respondents in the surveywere equally divided between male and female. Some 13per cent of respondents came from the National CapitalRegion, 43 per cent from Luzon, 20 per cent from theV isayas region and 22 per cent from M indanao. By incomeclass categories, 71 per cent of the respondents were fromthe D bracket, 23 per cent from the E bracket and 6 percent from the ABC brackets. The A bracket refers to thehighest income group, the B and C to the middle incomegroups, the D bracket to the low income group, and bracketE to the lowest income group.

5.3.1 On Equal Treatment of the Rich andPoor in the Courts

Most respondents believed that rich and poor people werenot equally treated in court, with 45 per cent disagreeingand 37 per cent agreeing with the statement ‘whether richor poor, people with cases in court generally receive equaltreatment’. The response rate was similar to the September2007 survey when 45 per cent agreed and 38 per centd i sag reed w i th the s t at ement . Pas t sur ve ys hadconsistently shown that the rich and the poor do not getequal treatment in court.

In Metro Manila 50 per cent of the respondents expressedthis opinion. In M indanao, slightly more people (41 percent) said that rich and poor people generally receive equaltreatment. Half of the respondents in the lowest incomebracket (class E) disagreed that rich and poor people areequally treated in court.

5.3.2 On the Independence of the Supreme CourtSlightly more people said they thought that the SupremeCourt behaved independently of the President (G loriaMacapagal Arroyo) than said otherwise. Thirty-eight percent agreed that ‘the Supreme Court decides only accordingto the law and not according to the wishes of PresidentArroyo’, while 33 per cent disagreed with the statement.

T he v i ew that the Supreme C our t ’s decis i ons areindependent of the wishes of President Macapagal Arroyowas more pronounced among respondents from incomeclasses ABC than those among the lower income classesD and E .

5.3.3 On Knowledge of the System of JusticeThe study informed the respondents that ‘the system ofjustice refers to the entire governmental machinery forthe enforcement of laws and the resolution of disputes.Included in the system are the police, barangay justice,the cour ts, and o ther agencies of gover nment ’. T herespondents were then asked how much they knew aboutthe system of justice. Only 33 per cent thought that theyhad ‘adequate’ (24 per cent) to ‘extensive’ (9 per cent)knowledge o f the system o f jus t ice wh i le a largerproportion of respondents (67 percent) knew ‘only a little’(48 per cent) or ‘very little’ (18 per cent).

Knowledge of the system of justice is higher among thosein income classes ABC (49 per cent) than those in class D(34 per cent) and class E (34 per cent). Seventy-five percent of respondents from class E had ‘little knowledge ofthe system of justice’. Knowledge of the system of justicewas a lso h igher among those w i th more educat ion ,particularly among college graduates (46 per cent), whileamong non-elementary g raduates, 81 per cent claimed‘little knowledge’.

When asked how they learned about the system of justice,67 per cent said they learned this through the mass mediasuch as the radio, newspapers and television. Some 28per cent said they learned about it from ‘people withexper ience in a case ’ and 20 per cent obtained their



196 197

knowledge ‘from relatives and friends’. Other sources ofknowledge about the sys t em o f jus t ice were non-governmental organisations (13 per cent), school (12 percent) and personal experience in a case (11 per cent). Massmedia is a common source of knowledge in all areas andacross socio-demographic groups. The proportion of thosewho responded that they learned about the system ofjustice from ‘people with experience in a case’ was highestamong those from income classes ABC (42 per cent) andthose from Metro Manila (45 per cent).

5.3.4 On Access to JusticeTo ascertain the factors that may impede access to justice,the survey asked the respondents a hypothetical questionregarding their ownership of a piece of land to whichsomeone else had made a claim and had f iled a case incourt on this regard. The respondents were then askedhow hard it would be for them to fight for their rights inthis situation and what they would do in pursuit of theirr ights. T able 5.22a shows the responses from a 2007survey at which a similar question had been raised, whiletable 5.22b presents the results for the 2009 survey.

Table 5.22a Respondents’ determinat ion to fight for their r ights, September2007, by region and income class (in per cent)

RP NCR Luz V i s M in A B C D E

Not hard 2 6 3 2 2 5 2 3 2 7 4 0 2 7 2 0

Somewha t hard 2 6 2 5 3 0 2 0 2 7 2 0 2 9 2 2

Very hard 4 7 4 3 4 5 5 7 4 7 3 9 4 4 5 7

N otes: N CR – N at ional Cap ital Reg ionLuz – LuzonV is – V isayasM in – M indanao


Table 5.22b. Respondents’ determinat ion to fight for their r ights, February 2009,by region and income class (in per cent)

RP NCR Luz V i s M in A B C D E

Not hard 2 0 2 1 2 1 1 3 2 5 3 5 2 1 1 5

Somewha t hard 2 8 3 2 3 2 2 2 2 4 2 0 3 0 2 6

Very hard 5 1 4 7 4 6 6 5 5 1 4 5 4 9 5 8


Source: Social Weather Stat ions, N ationa l Survey Comm issioned by thePhilippine Democracy Assessment, February 2009 (Quezon C ity: Social WeatherStat ions, 2009)

The above results show that the proportion of those whosaid they would have diff iculty in f ight ing such a casewas highest among respondents from income classes D(79 percent) and E (84 per cent). Even respondents fromincome classes ABC (65 per cent) said the case wouldpresent at least some difficulty for them. The proportionof those who said it would be hard for them was high inall geographic areas.

Those who said they would have a hard time fighting forthei r r ights in the hypo thet ica l case presented wereh i ghes t among those who adm i t t ed t o ‘ver y l i t t leknowledge’ about the system of justice, as shown in table5.23 below.

Table 5.23 Respondents’ determinat ion to fight for their r ights, by extent ofknowledge of the just ice system (in per cent)

E xtensive A dequate Only a l it tle Ver y l i t tle

Not hard 2 5 3 0 1 8 1 4

Somewha t hard 2 1 3 2 3 4 1 2

Very hard 5 3 3 9 4 8 7 3




198 199

Respondents were asked about important reasons why itwill be hard to fight for their rights in a property disputecase. T ables 5.24a through 5.24e below give the reasonsoffered in the context of the different criteria already usedabove.

Table 5.24a Reasons g iven for the difficulty in fight ing the hypothet ical case, 2007and 2009, mult iple responses (in per cent)

Sep Feb2007 2009

Someone l ike me wi ll have a problem w ith the expenses 7 9 7 1

It wi ll be hard for someone like me to get a lawyer to help me 3 7 3 4

Someone l ike me lacks knowledge about laws and legal procedures 3 3 3 2

T he courts wi ll not be fair to someone like me 3 0 3 0

T his w il l be dangerous for someone l ike me and my family 3 2 2 5

It wi ll be hard for someone like me to wait for a long period For the end of this case 2 5 2 1

It wi ll be hard for someone l ike me to understand what the judge and lawyers say 1 0 1 3


Table 5.24b Reasons g iven for the difficulty in fight ing the hypothet ical case,by reg ion , mult iple responses (in per cent)

RP NCR Luz V i s M in

Problem w i th the expenses 7 1 7 3 7 7 6 9 6 3

It will be hard to get a lawyer 3 4 4 1 3 5 3 2 2 9

Lacks knowledge about laws & legal procedures 3 2 2 3 3 9 3 1 2 5

T he courts w ill not be fair 3 0 3 7 2 9 3 4 2 7

T his wil l be dangerous 2 5 3 2 2 4 3 3 1 7

It will be hard for me to wait for the end of this case 2 1 3 3 1 8 2 5 1 6

It w ill be hard to understandwhat the judge and lawyers say 1 3 1 1 1 1 1 7 1 2

N otes: RP – Phi lippinesN CR – N at ional Cap ital Reg ionLuz – LuzonV is – V isayasM in - M indanao


Table 5.24c Reasons g iven for the difficulty in fight ing the hypothet ical case,by income class, mult iple responses (in per cent)

A l l A B C D Eclasses

Problem w i th the expenses 7 1 6 8 7 3 6 8

It will be hard to get a lawyer 3 4 2 5 3 3 3 8

Lacks knowledge about laws & legal procedures 3 2 3 4 3 1 3 4

T he courts w ill not be fair 3 0 2 8 3 0 3 1

T his wil l be dangerous 2 5 3 3 2 6 2 3

It will be hard for me to wait for the end of this case 2 1 3 9 2 2 1 7

It w ill be hard to understand what the judge and lawyers say 1 3 1 9 1 2 1 4





200 201

Table 5.24d Reasons g iven for the difficulty in fight ing the hypothet ical case,by educat ional attainment, mult iple responses (in per cent)

A l l N on- E lementary H igh Co l legeelemen tary graduate schoo l graduate +graduate graduate

Problem w i th the expenses 7 1 6 7 7 2 7 3 6 8

It will be hard to get a lawyer 3 4 2 8 4 0 3 4 2 8

Lacks knowledge about laws & legal procedures 3 2 3 8 3 5 3 2 2 0

T he courts w il l not be fair 3 0 2 6 2 9 3 3 2 8

T his w ill be dangerous 2 5 2 0 2 6 2 6 2 7

It will be hard for me to wait for the end of this case 2 1 1 6 1 4 2 5 2 9

It will be hard to understand what the judge & lawyers say 1 3 2 1 1 5 9 1 4


Table 5.24e Reasons g iven for the difficulty in fight ing the hypothet ical case,by extent of knowledge of justice system, multiple responses (in per cent)

E xtensive A dequate Only a Ver yl i t t le l i t t le

Problem w i th the expenses 6 1 7 2 7 3 7 1

It will be hard to get a lawyer 2 9 2 7 3 8 3 2

Lacks knowledge about laws& legal procedures 3 0 2 5 3 3 3 9

T he courts w ill not be fair 3 5 2 7 3 3 2 7

T his wil l be dangerous 3 0 2 8 2 4 2 3

It will be hard for me to wait For the end of this case 1 8 2 7 2 1 1 6

It will be hard to understand what the judge & lawyers say 2 5 1 1 1 0 1 6


Many respondents felt that they would have difficulty inmeeting the associated expenses in fighting a court case.This was the top reason given across all areas and socio-economic classes. D ifficulty in finding a lawyer who couldhe lp them was a lso among the t op responses byrespondents from Metro Manila and from income classE . T he problem w i th e xpenses was h i gh amongrespondents from a l l educat iona l at ta inment leve ls,regardless of how extensive their knowledge of the systemof justice was.

For a country that has so many lawyers, the difficulty off ind ing one to f ight the case is probably re lated toprohibitive lawyers’ fees and related expenses rather thanactually finding a qualified person to represent the litigant.The perceptions that the courts will not be fair and thatrespondents think they lack knowledge on laws and legalprocedures also appear to be common.

The respondents were also asked what they would do if acase were filed against them over a property dispute. Therespondents gave multiple answers and the top responsesare shown in table 5.25 below.




202 203

Table 5.25 What respondents would do when faced w ith a lawsui t,mult iple responses (in per cent)

Consult a lawyer 7 1

Consult a very respected person in commun ity 2 9

Consult someone in commun i ty w i th exper ience in Set tling disputes 2 7

F i le a case in court 2 3

Ask help from T V / radio programs that g ive free legal adv ice 1 9

T alk to the relat ives of the other person claim ing the land 1 7

Go to the pol ice 1 5

Get help from a power ful person 1 2

Consult a pr iest or m inister 6

Just wait and see what happens 5


Most respondents would consult a lawyer as the mostlikely first course of action if they found themselves in adispute regarding a property claim. Turning to a respectedperson in the community was offered as the likely choicefor those who have little knowledge about legal mattersand court procedures, while those who would file a case incourt are more likely to have good knowledge on thesematters.

T his pat tern of responses is simi larly observed whenresponses are classified by area: most respondents saidthey would consult a lawyer (71 per cent), with N CRgetting a high 78 per cent, followed by M indanao (74 percent), V isayas (73 per cent) and Luzon (68 per cent). Byincome class categories, 84 percent of those from classesABC said they would consult a lawyer versus 71 per centfrom those in class D and 70 per cent in class E . Byeducational attainment, 78 per cent of college graduates

said they would consult a lawyer while 73 percent of thosewith a high school diploma said they would do so. Sixty-eight per cent of those with an elementary education and65 per cent o f those w i th no e lementary educat ionanswered simi larly.

Table 5.26 below shows the pattern of responses fromrespondents according to the extent of their knowledgeof the system of justice.

Table 5.26 What respondents would do when faced w i th a lawsuit, by extent ofknowledge of the just ice system, mult iple responses (in per cent)


Consult a lawyer 6 8 7 2 7 3 6 9

Consult a very respected Person in commun ity 2 8 2 8 2 8 3 5

Consult someone in commun i ty W i th exper ience in Set tling disputes 1 5 2 8 2 8 2 8

F i le a case in court 2 9 3 0 2 2 1 7

A sk help from T V / radio programs T hat g ive free adv ice 2 1 1 6 1 9 2 0

T alk to the relat ives of the other Person claiming T he land 1 2 1 7 1 8 1 5

Go to the pol ice 1 5 1 6 1 3 1 7

Get help from a powerful person 1 0 1 3 1 2 1 2

Consult a pr iest or m inister 6 4 6 6

Just wait and see what happens 3 6 3 7




204 205

Bet ter protection for people wi th cases in courts 4 5 4 4 3

Reduced corruption 3 3 3 3 3

Speed ier resolut ion of cases 3 3 3 5 3

M ore affordable costs of br ing ing a case in court 2 3 4 2 1

No, I have not seen any improvements 7 8 7 9 7 6 8 1 7 7



Table 5.27b Improvements in the just ice system over the last ten years,by income class (in per cent)

A l l A B C D E

Yes, I have seen improvements 2 1 3 1 2 2 1 6

Competency of courts, pol ice & law en forcers 1 1 1 3 1 2 7

Less in fluence of pol it icians on judges 4 6 5 2

Bet ter protection for people w i th cases in courts 4 5 4 3

Reduced corruption 3 1 3 3

Speed ier resolut ion of cases 3 4 4 3

M ore affordable costs of bring ing a case in court 2 6 3 1

No, I have not seen any improvements 7 8 6 9 7 6 8 4


O f those with only a little knowledge of the system ofjustice, 73 per cent said they would consult a lawyer. Only68 per cent of those who said they would consult a lawyerwe re respondent s who c la imed t o have e x t ens i veknowledge o f the system . T h i r ty per cent of thoserespondents who have adequate knowledge of the justicesystem said they would file a case in court, followed by29 per cent of those who have extensive knowledge, 22per cent of those who have only a little knowledge and17 per cent of those w ith very l itt le knowledge. I t isinterest ing that a number of those who have extensiveknowledge of the system (21 per cent) would ask helpfrom T V or radio programs that give free legal advice,fol lowed by 20 per cent of those who have very l it tleknowledge , 19 per cent o f those w i th only a l i t t leknowledge. Only 16 per cent o f those w ith adequateknowledge of the system said they would do the same.

T he f ina l se t o f quest ions had t o do w i th people ’sperceptions on the improvements made in the system ofjust ice . A l i t t le over a f if th , or 21 per cent , o f therespondents claimed to have seen improvements in thesystem of justice during the last ten years, while a largenumbe r, 78 pe r cent , sa id the y have no t seen anyimprovements. By income class, 31 per cent of respondentsfrom classes A BC said they have seen improvements,which is significantly higher than those from class D (22per cent) and class E (16 per cent). T he improvementsclaimed are listed in tables 5.27a to 5.27c below.

Table 5.27a Improvements in the just ice system over the last ten years, by region(in per cent)


Yes, I have seen improvements 2 1 1 9 2 3 1 9 2 0

Compe tency of courts, pol ice & law enforcers 1 1 8 1 2 8 1 1

Less inf luence of poli ticians on judges 4 3 4 3 5




206 207

By knowledge of system of justice:

Table 5.27c Improvements in the just ice system over the last ten years,by ex tent of knowledge of just ice system (in per cent)


Yes, I have seen improvements 2 5 3 5 2 0 1 0

Competency of courts, pol ice & law enforcers 1 4 1 9 9 4

Less in f luence of pol i t icians on judges 6 6 4 3

Bet ter protection for people wi th cases in courts 5 6 3 2

Reduced corruption 3 5 2 2

Speed ier resolut ion of cases 3 5 4 2

M ore affordable costs of br inging a case in court 3 4 2 2

No, haven’t seen improvements 7 5 6 5 8 0 9 0


Some people see tha t the re have been adequa t eimprovements in the performance of the courts duringthe last ten years. T he obser ved improvements areparticularly in the enhancement of the capacity of thecourts and law enforcers such as the police. However, mostpeople said they did not see improvements in the courtsystem during the last ten years.

5.4 SummaryPeople’s perceptions on certain features of the just icesystem were sought from different perspect ives, frompract itioners and people in judicial inst itutions such asjudges and lawyers, and from ordinary citizens who eitherhave direct experience with the workings of the justiceinstitutions or are mere observers.

Judges and lawyers, more so the former, were perceivedby people to be fair, particularly in relation to the policeand simi lar enforcers. However, this did not spare thejudges and lawyers from people’s perception that theywere also vulnerable to influence from powerful individualsor groups. The police received a low rating in terms oftrust and confidence.

People tend to seek assistance from the Department ofSocia l We l fare and D eve lopment or from the loca lgovernment unit or local officials when they have to dealwith legal problems. Even if these agencies and personsdo not directly perform judicial functions, they appear tobe closest to the people and are therefore relied on for helpas a first resort.

M ost people f ind the courts and the judicial processesinaccessible due to several reasons: the monetary costsrelated to accessing them, the difficulty of having to finda lawyer—probably related to the cost of hiring one, thedi ff icul ty of understanding the proceedings, and theextended period of time usually involved in the resolutionof a case. These factors are all related to the effective andefficient administration of the rules of law.

It is remarkable that most people said that they saw noimprovements in the system of justice over the last tenyears.



208 209

5.5 ConclusionIt is important that the image of the justice system andthe pillars involved in the administration and conduct ofjus t i ce are impro ved. Con f idence and t rus t in theinstitution is important if people are to continue to resortto these inst itut ions and their enforcers in their (thepeople’s) search for justice. The independence of the courtsand their personnel has much to do with people’s trustand confidence in these institutions.

It is equally important to consider administrative remedialmeasures such as improving the procedures of the courtsto speed up the reso lut ion o f cases, mak ing cour tproceedings intell igible to clients and ordinary cit izens,and reconsidering the fees and other costs involved in thejudicial process. It is also vital that enforcers of the lawand just ice, especial ly the pol ice, are imbued w ith theva lues of just ice and the sk i l ls related to the properenforcement of rules and the law. The capability of theenforcers of the law should be addressed as well as theorientation of their institutions to make them responsiveto the purposes of justice and human rights.

Moreover, it is crucial to make the pillars of justice visible,real and closer to the people. The fundamental agency inthis regard is publ ic administration—the efficient andeffective ministering of functions based on the rule of law.Although educating people on the law can be performedby non-governmenta l organ isat ions o f lawyers andparalegals, or even by academic institutes, the power toreform the administration of the rules is nestled in thepublic sector, among the institutions and personnel in thepublic sector. Publ ic administrat ion inst itut ions shouldensure that the rule of law and access to justice are indeedin the mainstream of people’s lives.

Educat ion and informat ion disseminat ion among thecitizens on the role of the rules are essential in buildingf am i l i ar i t y and t rus t i n the jus t i ce sys t em . N on-governmental groups and legal and paralegal groups thatwork closely with communities should continue to providea significant contribution to the rule of law and justice.

5.6 Recommendations The institutions of justice, which include the

Supreme Court, the lower courts and the Departmentof Justice including the police, are challenged to takesteps toward improving their image as the people’spillars of justice. A lthough public perceptions maynot be the truth, nevertheless, perceptions mirrorwhat the public think about these institutions. Apositive image is not everything; however, it doeshelp that people have a positive perception about theinstitutions. Such image contributes to therestoration of trust in the justice institutions. Toimprove its image, it will be necessary that the courtsremain independent and that the people perceive thecourts to be so.

For ordinary citizens, contact with the court dependson its proceedings, how these proceedings areunderstood and appreciated by those who gothrough them, and how affordable the proceedingsare to either complainants or defendants. Therefore, itis important that the justice system, particularly thecourts, re-think the proceedings, the language usedand the accessibility of the citizens to these legalproceedings and requirements. While court rules andprocedures have their own reasons for being, therules are not carved in stone, so to speak. Therefore, are-examination of these proceedings is in order ifpeople are to entrust their cases to the courts andregain confidence in the courts of law.

Enforcers of justice and the law, such as the police,should be trained adequately and competently notonly in the skills of enforcement but also in thevalues of justice. Competency in the enforcement ofthe law should likewise be enhanced not just as amatter of compliance to the rules and proceduresbut, more importantly, as a matter of fairness as wellas of efficiency and effectiveness in theadministration of justice. An appreciation of theuniversal human rights of citizens should beincluded in the training and capacity development ofjustice enforcers.



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Concluding Statements

6.1 The Judiciary as the Principal Sanctuaryof the Rule of Law

On 27 December 2009 former Supreme Court ChiefJustice Artemio V. Panganiban wrote:

In times of turmoil and crisis, our people have learnedto depend on the Supreme Court for direction andsalvation. Normally, they should really look to theirelected leaders, the president and the members ofCongress. I ronically however, the abusive and illegalacts complained of by our people come mainly fromexecut ive officials. Under these circumstances, ourpeople inevitably turn to the chief justice to lead theSupreme Court in protecting their rights. W hat arethe CJ’s functions?

1. Primus inter pares. Among the 15 members ofour Supreme Court, the CJ is the primus interpares (first among equals) who presides over itssessions, controls the flow of its proceedings,shapes its agenda, summarizes the discussionsand influences the direction and pace of theCourt’s work. Nonetheless, the CJ has only onevote. Thus, the CJ relies on moral ascendancy andpersuasive skill, not on a boss-subordinaterelationship, to sway the Court.

6

The agents of justice, such as the police, the localgovernment barangay justice system, legalpractitioners, and justices, should as much as possiblebe visible to the citizens. V isibility will signal tocitizens that the law is accessible and that justice isindeed in the mainstream of the people’s lives.

Education and information regarding the legalsystem, the rights to justice and the law, and thefundamentals of justice should continue to be acampaign among ordinary citizens, especially thevulnerable groups and those who have little or noaccess to the courts and public administration. Inthis regard, civil society organisations and the legaland paralegal groups play a vital role in reaching outto those who have less in law.

References and further readingAlternative Law Groups, Inc. ‘Research on the Poor Accessing

Justice and the A LG as Justice Reform Advocate’, Inroads A L GStudy Series 4 (Quezon C ity: A lternative Law Groups, Inc. andSocial Weather Stations, 2008)

Social Weather Stations, May 28-June 14, 2003 N ational Survey(Quezon C ity: Social Weather Stations, 2003)

Social Weather Stat ions, N ationa l Survey Commissioned by thePhilippine Democracy Assessment, February 2009 (Quezon C ity:Social Weather Stations, 2009)


212 213

2. Leader of the entire judiciary. The CJ is not justthe primus in the highest court. He is also thechief executive officer (or C E O) of the entirejudiciary composed of 2,000 lower court judgesand 26,000 judicial employees nationwide. He isthe leader who inspires, motivates and movesthem to work unceasingly, to rise above theirpuny limitations, to excel beyond themselves andto achieve collectively their loftiest dreams andhighest aspirations. While the jurist in himimpels the CJ to follow tradition, to upholdprecedents and stabilize judicial thought, theleader in him requires him to innovate, to re-engineer, and to invent new and better ways ofmoving forward the judicial branch.

3. Passionate reformer and action person. Becausethe judiciary, like the two other branches ofgovernment, must cope with the fast changingjudicial, social, economic, and technologicalenvironment, the CJ must have a passion forreforms to assure speedy and equal justice for all.This mission requires not only knowledge of lawbut also interaction with other offices, agencies,persons – both public and private – and evenwith foreign governments and internationalinstitutions. A lso, to keep up with the InformationAge, the judiciary must automate andcomputerize. How to interact with officials andcitizens, some of whom may have pending casesin the courts, without arousing public suspicionis a really sensitive balancing act. To be able todo this, the CJ, more than any other official, mustrely on deep public trust in his personal integrityand independence.

4. Leader of the bar. Because supervision over thepractice of laws is vested in the Supreme Courtby the Constitution, all lawyers look up to the CJfor guidance in their profession. This is why allbar associations want to listen to the CJ,especially a new one, for direction andinspirat ion.

5. Academic and maestro. As ex-officio chair of thePhilippine Judicial Academy, the CJ is viewed asa guru, who is expected to make the continuingeducation of judges a passion and vocation. Forthis reason and because of lack of governmentresources, the CJ, without compromising judicialindependence and integrity, is often constrainedto turn to outside assistance.

6. Mover and shaker. As chairperson of the Judicialand Bar Council (JBC), the CJ is expected to findnew and better ways of searching for, screeningand selecting applicants for judgeships. This jobis critical. The need for quality judgments beginswith quality judges. This imperative impels theCJ to move into nonjudicial endeavors, likeworking for better compensation, better security,and better working conditions and facilities forjudges. Only by securing better pay, bettersecurity, and better facilities will the JBC be ableto entice the best and the brightest attorneys tojoin the judiciary.

7. Administrator, manager and financial wizard.The Constitution vests in the Supreme Court“administrative supervision over all courts andthe personnel thereof ”, as well as theappointment of its officials and employees. Thismeans that the CJ must be a visionaryadministrator, efficient manager and sensiblefinancial wizard all at the same time. Severallaws, like the Administrative Code and theGeneral Appropriations Act, place on the CJ theresponsibility of steering the entire judicialdepartment. The Judiciary Development FundLaw (PD 1949) and the Special A llowance for theJudiciary (SAJ) Law (RA 9227) give the CJ the“exclusive sole power” to disburse the JD F andSAJ funds.

8. Role model and exemplar of public service. Ourpeople, especially the young, look up to the CJ asan exemplar and role model. Because of ourinquisitive media and open society, every publicofficial is subjected to minute scrutiny. In their

Co nc lud ing S t a t em en ts


214 215

search for heroes, our people often look up to theCJ as their choice of an upright public servant.Especially during these periods of politicalwrangling, civic groups and non-partisanorganisations turn to the chief justice to gracetheir seminars and inductions. They find solaceand peace in his quiet persona. In sum, the CJ isexpected to lead our highest court in its criticalrole as the last bulwark of democracy. Beyondthat, he attends to many sensitive, non-judicialleadership duties that take him to the farthestcorners of the country. That is why he is moreaccurately addressed as the Chief Justice of thePhilippines, not just the Chief Justice of theSupreme Court . (Panganiban 2009: A9)

Justice Panganiban fittingly describes the functions notjust of the Chief Justice but also of the Supreme Court.One should read the subtext of the Panganiban treatiseand interpret it as an art iculation about the judiciary ’srole as the principal sanctuary of the rule of law. Oneshould also understand that in the last ten years, theSupreme Court has taken on a special, busy role preciselybecause there are aberrations in the other institutions ofsociety, namely the executive branch and the Congress.

In a democracy people look up to the Court and thejustices in the resolution of issues related to the way thatthe executive branch enforces the rules and laws or thatarise due to the way Congress art iculated those laws,making them difficult to implement. It is therefore oftennecessary to get the Court to unravel these problems.People, especially the vulnerable groups, expect the justicesystem to help them gain access to justice through thismaze of laws and rules. As such, the justice system, ledby the Supreme Court, should be a source of inspiration,an exemplar of fairness and justice, and a reformer andleader in the face of institutional challenges to democracy.

The assessment shares the ideals art iculated by JusticePanganiban, even as it exposes the reality of the justicesystem being as imperfect as the other inst itut ions of

democracy are. While the judiciary appears to have a moresignificant role in upholding the rule of law and enhancingthe people’s access to justice, compared to the other twobranches of government, organisational weaknesses remainserious obstacles to the judiciary’s performance of this role.The allocation of a measly budget to the judiciary and theperennial problem of having to fill numerous vacancies injudicial positions are among the vulnerable points thatshould be addressed effectively and promptly.

6.2 Summary and ConclusionsRule of law and access to justice have references to somefundamental principles, namely that there is predictabilityand c lar i t y o f rules, there is independence o f theinstitutions that wield such rules, and that the institutionsare transparent and accountable for their decisions andact ions. Access to just ice is founded on the values ofresponsiveness, which means that justice does act and doesnot ignore the demand for justice by those who need itsprotection. It is founded on the equal treatment of thelaws and of the courts to everyone regardless of class,gender, ethnicity, and religion. In other words, rule of lawand access to justice imply that there are two parts in theequation: there are reasonable and functioning institutionsand that these inst itutions serve the purposes of thosewho seek justice.

In the Philippines there are formal institutions and rulesof just ice in place, thanks to the modern inst itutionsinfluenced and shaped by western democracy. However,the pe r f o rmance o f these i ns t i tut i ons some t imescontradicts the fundamental principles and the purposesof just ice and democracy. A number of reasons mayexplain the ineffectiveness of such institutions and rules,including: the grey areas in the letter of some laws andrules which make the implementation of such rules subjectto the interpretat ion of legal pract itioners and of thecourts; inaccessibility of the procedures and the languageof the court proceedings which alienate the legal expertsfrom the common people who are subjected to theseproceedings; and, in some instances, the incoherence of



216 217

the rules as defined by various institutions and agenciesof just ice.

Also notable is the wide latitude of discretion given tothe president in the exercise of authority and power suchas the appointments of just ices of the Supreme Courtand even the lower courts, the occasional subordinationo f Congress to the execut ive even though they aresupposedly co- equal branches of government, and theweakening independence of constitutional bodies such asthe Ombudsman and the Sandiganbayan.

A significant factor that explains the weakness of the ruleo f law has to do w ith the funct ion ing o f the publ icadministrat ive inst itut ions such as the insuff iciency ofbudget allocation for the pillars of justice to enable theseagenci es to per form e f fect ive ly and adequate ly, theconstraints on resources includ ing the lack o f publ icattorneys that should respond to the legal needs of thepoor, and the slow disposition of court cases which is partlyl inked t o the vulner ab i l i t y to co r rupt i on by lega lpractitioners, justices, and law enforcers.

The just ice system remains challenged. The assessmentimpl ies that : 1) a review of the rules of law is in orderto make the rules coherent and to make these in l ine withthe spir it of justice and the ultimate goals of democracy;2) publ ic admin istrat ion inst itut ions, par t icularly thecourts, the Depar tment of Just ice and the police, shouldsee k re f o rm and change i n the manne r by wh i chauthor ity, responsibil ity, and accountabil ity are exercised;3) cit izen educat ion on the just ice system and the ruleof law and justice is an imperative for rule of law andjust ice to be embedded in the hearts of people; and 4)the right to informat ion is necessary not only for citizensand oversight agencies to part icipate in seeking justiceand to ful f i l their ro les but a lso to make the publ icofficeholders accountable.

There are various claims to violat ions of human r ights,ev idenced by nat ional and internat ional comm issionsand autho r i t i es. T he ant i- t e r ro r i sm and count e r -insurgency pol icies do not help to reduce conf lict and

v iolence; on the contrary, these complicate the rule oflaw part icularly on the observance of human r ights, apr i nc iple that the Ph i l ipp i nes ope nly adhe re s t o.M oreover, there are var ious internat ional agreementsthat t he Ph i l i pp i ne s s i gned up t o, but who seimplementation is observed to be weak.

A recodification on the laws, policies and rules regardingterrorism and insurgency or counterinsurgency is in orderso as to avoid a conflation of these two terms, namely‘terrorism’ and ‘insurgency’. T he recodificat ion of suchrules should be an effort toward a clarif icat ion on thepolicies on and approaches to ‘terrorists’ and ‘insurgents’.A nd aga in , some publ ic adm in ist rat ive re forms arenecessary to enable publ ic agencies to carry out theirobligations under the international covenants.

The assessment shows that, according to the opinions ofe xpe r t s as we l l as the pe rcept i ons o f the publ i c ,substantive justice remains elusive and is, at best, difficultto obtain. A t the core of this predicament are intertwiningfactors, basically a feeble public administration and a weakenforcement o f rules and procedures that the lawsthemselves defined, aggravated by factors that al ienatethe system from the population. A subculture of the legalpractice and profession insulates the system from clientswho come to the courts of law for justice. H igh lawyerfees, the un i nte l l ig ible language o f the cour t s andoverdrawn court proceedings wear out justice seekers,al ienate them from the just ice system and effect ivelyweaken public trust in the institutions.

A redeeming value in Philippine democracy is civil societyand the efforts of legal and paralegal advocates to boostthe communities’ trust in the legal institutions and educatethem on the rule o f law and jus t i ce . V i s ible andapproachable agencies of public service are the people’sallies in their endeavour to access justice.

Having said this, the assessment suggests that the wayahead to reform should include an effective administrationof justice and efficient management of the courts, a visionthat is truly possible when leaders of the courts and the



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justice system have their hearts anchored on reform andwhen leaders themselves possess the integrity and enjoythe t rust o f the publ ic. M oreover, the assessmentrecognizes the robust role of civil society in the pursuito f the rule of law through educat ion and paralega lassistance, and in understanding the intricacies of thecourts of law.

A continuing examination of the rule of law and accessto justice challenges different stakeholders in the justicesystem to engage each o ther toward reform and thepursuit of public trust in the institutions of just ice. Anassessment of the rule of law should also reckon with aneffective indigenous justice system and enhance this asnecessary, alongside the augmentation of justice reformsand improvement of Philippine public administration.

References and further readingPanganiban, Ar temio V., ‘Chief Justice of the Phil ippines’,

Philippine D aily Inquirer, 27 December 2009

Inter nat iona l Convent ions and Protocols Signed andAcceded to by the Philippine Government

1. Protocol for the Prohibition of the Use ofAsphyxiating, Poisonous or Other Gases, and ofBacteriological Methods of Warfare. Geneva, 17 June1925

2. Convention for the Amelioration of the Condition ofthe Wounded and Sick in Armies in the F ield.Geneva, 27 July 1929

3. Convention Relative to the T reatment of Prisonersof War. Geneva, 27 July 1929

4. Convention on the Prevention and Punishment ofthe Crime of Genocide, 9 December 1948

5. Geneva Convent ions of 12 August 19496. Convention on the Non-Applicability of Statutory

L imitations to War Crimes and Crimes AgainstHumanity, 26 November 1968

7. Convention on the Prohibition of the Development,Production and Stockpiling of Bacteriological(Biological) and Toxin Weapons and on theirDestruction. Opened for Signature at London,Moscow and Washington. 10 April 1972

8. Protocol Additional to the Geneva Conventions of 12August 1949, and relating to the Protection ofV ictims of Non-International Armed Conflicts(Protocol I I), 8 June 1977

9. Convention on Prohibitions or Restrictions on theUse of Certain Conventional Weapons Which Maybe Deemed to be Excessively Injurious or to HaveIndiscriminate E ffects. Geneva, 10 October 1980

Appendix 1


220 221

10. Protocol on Non-Detectable F ragments (Protocol I).Geneva, 10 October 1980

11. Protocol on Prohibitions or Restrictions on the Useof M ines, Booby-T raps and Other Devices (ProtocolI I). Geneva, 10 October 1980

12. Protocol on Prohibitions or Restrictions on the Use ofIncendiary Weapons (Protocol III). Geneva, 10 October1980

13. Convention on the Rights of the Child, 20 November1989

14. Convention on the Prohibition of the Development,Production, Stockpiling and Use of ChemicalWeapons and on their Destruction, Paris 13 January1993

15. Protocol on Blinding Laser Weapons (Protocol IV tothe 1980 Convention), 13 October 1995

16. Protocol on Prohibitions or Restrictions on the Useof M ines, Booby-T raps and Other Devices asamended on 3 May 1996 (Protocol I I to the 1980Convention as amended on 3 May 1996)

17. Convention on the Prohibition of the Use,Stockpiling, Production and T ransfer of Anti-Personnel M ines and on their Destruction, 18September 1997

18. Optional Protocol to the Convention on the Rights ofthe Child on the involvement of children in armedconflict, 25 May 2000

19. Protocol additional to the Geneva Conventions of 12August 1949, and relating to the Adoption of anAdditional D istinctive Emblem (Protocol III), 8December 2005

T he count ry has a lso s i gned on to the f o l low i nginternational agreements:

1. F inal Act of the Intergovernmental Conference onthe Protection of Cultural Property in the Event ofArmed Conflict. The Hague, 14 May 1954

2. Convention for the Protection of Cultural Propertyin the Event of Armed Conflict. The Hague, 14 May1954

3. Protocol for the Protection of Cultural Property inthe Event of Armed Conflict. The Hague, 14 May1954

4. F inal Act of the D iplomatic Conference of Geneva of1974-1977

5. Protocol Additional to the Geneva Conventions of 12August 1949, and relating to the Protection of Victimsof International Armed Conflicts (Protocol I), 8 June1977

6. Rome Statute of the International Criminal Court,17 July 1998

7. Convention on Cluster Munitions, 30 May 2008

A p p en d i x

Contributors

Edna Estifania A. Co is a professor and dean of the Universityof the Philippines - National College of Public Administrationand G over nance. She i n i t iat ed the Ph i l ipp ine democr acyassessment and, in collaboration with the International Institutefor Democracy and E lectoral Assistance (International ID E A),an inter-governmental organisation based in Sweden, continuesto work on other democracy-related projects. She serves as eitherconsultant or trustee of government agencies in the Philippinesand of non-governmental organisations, and is a member ofthe Movement for Good Governance. She dives occasionally.

N epomuceno M alaluan i s a lawye r w i th an academ i cbackground in economics. He is a t rustee of the Act ion forEconomic Reforms, co-director of the Institute for F reedom ofInformation, and one of the spokespersons of the Right to Know.Right Now! Coalition.

Arthur Neame has worked in the Philippines for 20 years. H ispr imary work has been w ith N G Os special izing in rural andurban po ve r ty i ssues w i th par t i cular emphas i s on loca lgovernance. He formerly managed the program of ChristianA id (U K) for the Phi l ipp ines, Ch ina and Cambod ia. He iscurrently an associate of the Socio-Pastoral Institute in thePhilippines where he works with programs employing interfaithdialogues to engage with local governments.

Marlon Manuel is a lawyer. He is Executive D irector of theAlternative Law Groups (A LG) and served as legal counsel forthe celebrated Sumilao farmers’ case that demanded the genuineimplementat ion of agrar ian reform in Buk idnon, SouthernPhil ippines.

Miguel Rafael V. Musngi works as a program manager for theKonrad-Adenauer-Stiftung and is currently studying law at theUP College of Law. He is an advocate of farmers’ rights and therecovery of the coconut levy funds for all small coconut farmers.

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Philippine Democracy Assessment: Rule of Law and Access to Justice

222

A

Abortion, 155Abu Sayyaf Group (ASG), 115, 121Action Program for Judicial Reform

(APJR), 87, 88Ad-Hoc Joint Action Group

(AHJAG), 121, 130Administrative Order, 211Adultery, 154–55, 159Ahrtisaari, Martti, 121Al-Qaeda, 119Alston, Philip, 136–37, 138, 142–

43, 146Alternative dispute resolution

(ADR), 111, 112Alternative Law Groups (ALG), 97,

187: on poor accessing justice,174

Ancestral Domain Aspect, 130Annulment, 153–55Anti-corruption, 160Anti-Rape Law (1997), 82, 151Anti-Sexual Harassment Act (1995),

82, 152Anti-terrorism, 216: legislation, 131Anti-torture bill, 161Anti-Trafficking in Persons Act

(2003), 82, 151, 153Anti-Violence against Women and

Their Children Act (2004), 82,151

Aquino, Corazon, 12

Armed conflicts: effects, 116–17:implications for local officials,131–32

Armed Forces of the Philippines(AFP), 33, 35–37, 115, 149:accountability, 36; asprosecutors, 143

Armed insurgent groups: politicalsolutions, 132–33

Armed protagonists, 158Arrest without warrant, 123–24Arroyo, Gloria Macapagal, 13–14,

63, 140, 147Ata-Manobo, 116Autonomous Region of Muslim

Mindanao (ARMM): privatearmed groups, 131

B

Bangsa Moro Development Agency,130

Bantay Korte Suprema, 69Barangay, 195: on justice system,

188; and rule of law, 173Basic sector access, 90“Blood debts”, 137Blueprint of Action for the

Judiciary, 90, 91Bojinka plot, 119Budget, 23

C

Cebu, 145Centre on Housing Rights and

Evictions, 150Chief Justice, of Supreme Court,

211–14Children: economic exploitation, 156;

legislative measures, 159;protection, 156; trafficking of,150

Citizen’s rights, 173Citizenship, Active, ixCivil Service Commission, 27Civil society, 57-58, 71, 111, 142-

143, 162, 210, 217–18Civilian casualties, 116Code of Conduct and Ethical

Standards for Public Officials andEmployees, 30

Commission on Appointments, 25, 55Commission on Human Rights

(CHR), 28, 124–25, 145–46, 162Committee on the Cessation of

Hostilities, 130Communications: interception of, 123Communist Party of the Philippines,

115, 118Comprehensive Agrarian Reform

Law, 79Comprehensive Agreement on

Respect for Human Rights andInternational Humanitarian Law(CARHRIHL), 135–36, 139

Concubinage, 154, 159Conflict resolution, 121Congress of the Philippines, 20–21Congressional oversight committee,

146, 159Convention on Enforced

Disappearances, 161

Convention on the Elimination of AllForms of Discrimination AgainstWomen (CEDAW), 150–52, 155,162

Convention on the Elimination ofRacial Discrimination (CERD),153, 156–57

Convention on the Rights of theChild, 155–56

Corpuz, Jose Jorge, 126Corruption, 42–44 table 2.1, 45–46Counter-insurgency, 118, 216:

international rules, 135–40Counter-terrorism, 118:

international rules, 135–40; laws,122–28

Court decisions: public confidence in,178–79 table 5.7–8

Court system: changes, 189–90 table5.19

Court-case disposition, 104–5Courts, 195: access to, 181–83; cost

of pursuing a case in, 183 table5.12, 187; equal treatment, 174–75; fairness: opinions bycomplainant/defendant, 180;improvements in performance,206; influence/pressure, 180–81table 5.10; management of, 217–18; performance, 176–77 table5.3–4; problems when taking acase, 182 table 5.11; procedures,208–9

Crime of torture, 148Culture of impunity, 146Customary law, 128–29

Index

INDEX

D

Damages: compensation for, 117Davao: extrajudicial killings, 144–45Davide, Hilario, 64Decentralized local government, 30Declaration of Principles and State

Policies, 78Democracy, Conflict and Human

Security, Policy Summary: KeyFindings and Recommendations,127

Democracy, ixDemocratic transitions, viiiDemolitions/relocations, 150Department of Interior and Local

Government (DILG), 33Department of Justice (DOJ), 124,

216: on citizen’s rights, 173Department of Social Welfare and

Development (DSWD), 188, 207Digos (Davao), 145Diokno, Jose Manuel, 126Disappearances, 140, 149Displacements, 116, 140, 145–46,

159: impacts of, 131Disposition of cases, 106, 107Divorce, 153–55Due process, 77

E

Ebdane, Hermogenes: on Alston, 144Economic rights, 127–28Education, access to, 150Election: fraud, 131; hotspots, 131–

32 fig. 4.1Employee relations, 45EnGendeRights, 151, 153Equality, 77–78Ermita, Eduardo, 147–48

Estrada, Joseph, 13, 64Executive Order No. 209, 81Extra-judicial killings, 133, 136–37,

140–47, 149, 157: rise of, 139

F

Family Code, 81: article 36, 153–54Family Courts Act (1998), 151Family names, Use of, 154Family welfare: legislative measures,

159Financial management, 44:

implementation, 44;procurement problems, 42

Fisheries Code, 80Freedom of Information Act, 60

G

Garcia, Carlos, 54Garcia, Robert Francis B., 136Global Integrity, 109–10“Global war against terror,” 118Gonzalez, Raul, 146–47Government of the Republic of the

Philippines (GRP)-MNLFagreement, 122, 138–39, 158–59

Graft and corruption, 29Grievances over sovereignty, 120Guide for Establishing the People’s

Democratic Government, 138

H

Health, Access to, 150High school drop-out, 156House arrest, 124Human rights: violations of, 46–48,

216–17

Human Rights Council, 157Human Rights Watch, 119, 145Human security: assurance, 127Human Security Act (HSA, 2007),

122: extraordinary penalties, 125;extra-territorial coverage, 125;grievance committee, 124–25;oversight committee, 125, 126;provisions, 123; public criticism,127; on torture, 148

I

Impeachment, 26Implementing Guidelines on the

Humanitarian, Rehabilitation andDevelopment Aspects, 139

Indigenous peoples: ancestraldomain, 80, 85, 150

Indigenous People’s Rights Act(IPRA, 1997), 80, 85, 128–29,151

Indigent persons, 103Information, Right to, 37, 58–59Injuries: compensation for, 117Institutions, of Justice, 209: level of

trust in, 175–76 table 5.2Insurgency, 120, 131: consequences

of conflating with terrorism,121–22; implications for coverageof the law, 128–29; shortcomingsin judicial processes, 134; laws,122–28; recodification of laws,217

Integrated Bar of the Philippines,161

Interagency Legal Action Group(IALAG), 142–43

Internally displaced people (IDP),120. See also Displacements

International Commission of Jurists(ICJ), 2

International Committee of the RedCross (ICRC), 135

International Convention for theProtection of All Persons fromEnforced Disappearance, 147

International Crisis Group (ICG),121

International humanitarian law(IHL), 137, 138

International Institute forDemocracy & ElectoralAssistance (International IDEA),ix, 127, 128

International Labour Organization(ILO) Conventions, 157–58

International Monitoring Team, 130International obligations, 149

J

Jemaah Islamyah (JI), 119Jihad, 121Joint Monitoring Committee (JMC),

135–36Jones, Sidney, 121Journalists, 50, 52 table 2.3Judges, 67: public perception, 177–

78 table 5.5Judicial and Bar Council (JBC), 62,

69, 213Judicial institutions: judges’ rating

of performance, 187 table 15.16;lawyers’ ranking of performance,186 table 5.15

Judicial processes: and the poor, 90,96; of the CPP/NPA/NDF,136–37: implications ofterrorism and insurgency inconduct of, 133–35; monetarycosts, 207

IndexPhilippine Democracy Assessment: Rule of Law and Access to Justice

225224

227


226

Judicial professionals: perception ofcorruption, 185 table 5.14

Judiciary, 7: lawyers/judges’perception on, 184; Padilla’scriticism, 152; power, 61–62; andrule of law, 211–18

Judiciary Development Fund Law,213

Justice, Access to, 11, 12 fig. 1.1,14–16, 92, 94, 196–206:administration of, 217–18; byprisoners, 95, 96

Justice on Wheels program, 92Justice system: agents, 210;

enforcers of, 209; image of, 208;improvements, 192 table 5.21–193 , 204–5; table 5.27a–c;knowledge of, 195–96, 203–4;people’s perception, 207

Juvenile Justice and Welfare Act(2006), 83, 84, 160

K

Knowing the Enemy, 139KOMPAK (Komite Aksi

Penanggulangan Akibat Krisis),119

L

Labor code, 79: amendment, 81Labour rights: violations of, 150Land rights, 120Laws, 6–7: improvements, 190–91

table 5.20Lawsuit, 202 table 5.25–203 table

5.26Lawyers: public perception, 177–78

table 5.6

Legal assistance: by governmentagencies, 189 table 5.18

Legal separation, 154Legal system. See Justice systemLegislature: on extrajudicial killings,

143; torture/coercion, 159Litigation cost, 90Lives Destroyed: Attacks on Civilians

in the Philippines, 119Local elections: 2007, 131Local government, 30: ; and rule of

law, 173; assistance to poorpeople, 192; on armed groups,131

Local Government Code, 31

M

Magna Carta of Women, 83Marcos, Ferdinand, 21Marginalization, Cultural, 120Marginalization, Political, 120Marital rape, 159Martial law, 21–23Marxist insurgency, 118. See also

InsurgencyMedia, 175Melo commission, 46, 47, 50–51Memorandum Circular 108, 143–

44Memorandum of Agreement on

Ancestral Domain (MOA-AD),129, 130 box 4.1, 139

Metro Manila: equal treatment ofrich/poor in courts, 194

Migrant Workers and OverseasFilipino Act, 79

Millennium Development Goals(MDG), 9

Mindanao Development TrustFund, 130

Mindanao: equal treatment of rich/poor in courts, 194

Mining ventures, international:impact, 150

Mohammed, Khalid Sheikh, 119Moro Islamic Liberation Front

(MILF), 116, 118–19, 121, 129,138, 149: and AHJAG, 136; onIHL, 139

Moro National Liberation Front(MNLF), 116, 121

Multi-party system, 52Muslims: divorce, 153; electoral

processes, 120; marriage laws,155

N

National Appellate MatrimonialTribunal, 154

National Capital Region (NCR):improvements of judiciary, 191

National Commission on IndigenousPeoples (NCIP), 129

National Commission on the Role ofFilipino Women (NCRFW), 152,155, 162

National Democratic Front (NDF),118–19: Declaration ofUnderstanding to Apply theGeneva Conventions, 135; onIHL, 139; and JMC, 136; people’scourts, 135

National Disaster CoordinatingCouncil, 120

National Paralegal Conference, 99Neo-liberal economics, Effects of, 150New People’s Army (NPA), 115: as

social police, 138Non-Christians, 157

Non-governmental organizations,175, 208: assistance to poorpeople, 192; extrajudicial killings,149–150

O

Obenza, Anthony, 127Office of Ethical Standards and

Public Accountability (OESPA),36

Office of the Ombudsman, 27, 56–58, 124, 160, 161, 216: oncitizen’s rights, 173

Office of the Solicitor General, 154Oplan Bantay Laya, 139Optional Protocol to the Convention

against Torture and other Cruel,Inhuman or DegradingTreatment or Punishment, 147

Orders of battle, 142Osmeña, Sergio, Jr., 54

P

Padilla, Clara Rita A., 151Panganiban, Artemio V., 211, 214Paralegals, 99Party-list, 52Peace processes, 133People power, 13People’s courts, 137–38People’s Law Enforcement Boards,

34Personal hiring and appointments,

44Philippine Judicial Academy, 213Philippine Judicial Association, 186Philippine judicial system, 133–34.

See also Judicial systemPhilippine Medical Association, 161

Index

229


228

Philippine National Police (PNP), 30,31, 195, 216: abuse of authority,186; administrative cases, 33–34;on bribery/corruption, 186;powers, 32–33; as prosecutors,143; on rules of evidence, 161

Police. See Philippine National Police(PNP)

Poor people: access to justice, 187–88 table 5.17, 192; equaltreatment in courts, 175 table5.1, 194; lawyers/judges’ opinionon access to justice by, 184 table5.13

Powers: abuse of, 48–49; separationof, 20

Preda Foundation, 156Presidential appointments, 25, 49,

55Presidential communications

privilege, 68Presidential Decree No. 442, 79Prisons, 104Procurement problems, 42–44Properties/assets, Examination,

sequestration and seizure of, 124Property dispute, 201–2Prosecutor, 103Prostitution, 151, 152Public administration, 208Public Attorney’s Office (PAO), 92–

94, 95, 102, 188Public officials, 19: accountability, 26;

crime, 29; Republic Act No.6713, 30; Republic Act No. 3019,29

Q

Quezon City: ordinance onprostitution, 153

R

Racial discrimination, 156–57Rajah Solaiman Movement, 126Rape, 151, 152Rape Victims Assistance and

Protection Act (1998), 151Reproductive Health Act, 160Reproductive health rights, 150Republic Act No. 6033, 86Republic Act No. 6034, 87Republic Act No. 6657. See

Comprehensive AgrarianReform Law

Republic Act No. 6713. See Code ofConduct and Ethical Standardsfor Public Officials andEmployees.

Republic Act No. 6725, 81Republic Act No. 7192. See Women

in Nation-Building Act (1992)Republic Act No. 7279. See Urban

Development and Housing ActRepublic Act No. 7438, 109Republic Act No. 7877. See Anti-

Sexual Harassment Act (1995)Republic Act No. 8042. See The

Migrant Workers and OverseasFilipino Act.

Republic Act No. 8371. SeeIndigenous Peoples Rights Act(1997)

Republic Act No. 8353. See Anti-Rape Law (1997)

Republic Act No. 8550. SeeFisheries Code

Republic Act No. 9208. See Anti-Trafficking in Persons Act (2003)

Republic Act No. 9262. See Anti-Violence Against Women andtheir Children Act (2004)

Republic Act No. 9285, 112Republic Act No. 9344. See Juvenile

Justice and Welfare Act (2006)Republic Act No. 9481, 79Republic Act No. 9710. See Magna

Carta of WomenRevised Penal Code, 122: Article 202,

152–53, 160; Article 334, 154Revolutionary justice, 138Rich people: equal treatment by

courts, 175 table 5.1, 194Rights of an accused, 108Rights of children, 154Rights of citizens, 147–58Rights of suspects, 124Rights of women, 150–54Rights to basic needs: implications

for protection, 132–33Rights to counsel, 124Rights to life: implications for

protection, 132–33Rights to property: implications for

protection, 132–33Rights to social services: implications

for protection, 132-33Rights: to fight for, 196 table 5.22a–

201 table 5.24eRoman Catholic Church, 175: on

annulment, 154Rome Statute of the International

Criminal Court, 148, 162Roth, Kenneth, 145Rule of law, 1–3, 147–58: and access

to justice, 5, 215, 218; andhuman rights, 128; conditions of,7–8; Congress of the Philippines,20; economic development, 8–9;implications, 127; indicativebenchmark, 14–16; justice, 10;people’s perception, 8, 173, 194–

210; texture, 4 table 1.1; thick, 4,5; thin, 4, 5, 7

Rural poor, 116. See also Poor people

S

Sandiganbayan, 27, 160, 216: oncitizen’s rights, 173

Santos, Sol, 138Scheinin, Martin, 126Secession, 129Sexual harassment, 151, 152, 159Sharia family code, 153Sinn Fein, 133Small claims cases, 87Social Reform and Poverty

Alleviation Act (1997), 151Social rights, 127–28Social services: debt appropriations,

150Social Weather Stations (SWS): on

rule of law, 173–74Special Allowance for the Judiciary

(SAJ), 213State prosecutor’s office, 160Sulu, 129Supreme Court Appointments

Watch (SCAW), 69–70Supreme Court, 63, 68–69, 92, 107:

appointment of justices, 216;Chief Justice, 134, 211; oncitizen’s rights, 173; oncustomary law, 162; onextrajudicial killings, 144, 146;gender committee, 162;independence of, 195; onpsychological incapacity, 154; onterrorism trials, 126

Index


230

T

Task Force 211. See Task ForceAgainst Political Violence, 141

Task Force Against PoliticalViolence: accomplishments, 141–42 table 4.2

Tawi-Tawi, 129Terrorism, 118–19, 120–21, 131:

definition of, 122–23, 126;implications for coverage of thelaw, 128–29; international, 119;judicial processes, 134;recodification of laws, 217

Torture, 124, 150Trade unions, 157Trinity of War, 139–140

U

Undersecretaries, ineligible, 50 table2.2

Unethical practices, 44–45United Nations Committee on the

Elimination of DiscriminationAgainst Women, 150

United Nations Committee on theRights of the Child, (CRC), 155–56

United Nations Council on HumanRights, 161

United Nations InternationalChildren’s Fund (UNICEF), 116

United Nations Office on Drugs andCrime (UNODC), 9

United Nations Special Rapporteurs,161

Universal Declaration of HumanRights, 85, 86

Universal Periodic Review, 147, 149Urban Development and Housing

Act, 80

V

Valmoria, Carmelo, 126Vigilantism, 137, 145Violence, Political, 115Violent conflict: implications for local

officials, 131–32Vulnerable groups, 78

W

War on terror, 118Women: discrimination against, 151;

legislative measures, 159;trafficking of, 150; violenceagainst, 151, 153

Women in Nation-Building Act(1992), 81

Writs of amparo, 144, 146Writs of habeas data, 144, 146

Y

Yano, Alexander, 148

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