Impeachment as a Popular Check on Official Misconduct

COVER

The IBP Journal INTEGRATED BAR OF THE PHILIPPINES

Board of Editors

Merlin M. Magallona Editor-in-Chief Eduardo A. Labitag Managing Editor Danilo L. Concepcion Florin T. Hilbay Sedfrey M. Candelaria Nasser A. Marohomsalic Oscar G. Raro Carmelo V. Sison Amado D. Valdez

Vincent Pepito F. Yambao, Jr. Associate Editor



Vivian C. Capiznon Circulation Manager

Eumir C. Lambino Layout/Design

VOLUME 37, NUMBER 3 & 4 (JULY - DECEMBER 2012)

IBP JOURNAL

Volume 37, Numbers 3 & 4 (July - December 2012)

Articles The Current State of the Law on Custodial Investigation ............................................. 1 Oscar G. Raro Constitutional Guarantees for Workers ........................................................................... 26 Patricia R.P. Salvador Daway The Status and the Rights of Women in Islam ................................................................ 42 Nasser A. Marohomsalic Children in Conflict with the Law: Diversion as Alternative to the Formal Court System ................................................... 54 Teresita Asuncion M. Lacandula-Rodriguez The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code .................................................................... 90 Frank E. Lobrigo The Patent System and the Protection of Traditional Knowledge ............................ 116 Robert Nereo B. Samson Mining in the Philippines: Whose Interests Should Prevail? A Synthesis and Analysis of the La Bugal Case ............................................................ 133 Antonio P. Jamon, Jr. Impeachment as a Popular Check on Official Misconduct ....................................... 146 Dante B. Gatmaytan

Notes and Comments

Comments on the Status of Enforced Disappearances Under International Law .................................................................... 159 Merlin M. Magallona

The IBP Journal (ISSN 0118-9247) is an official publication of the Integrated Bar of the Philippines Subscription Rates (inclusive of postage): Php1,000.00 (local), US $20.00 (Foreign Individual), US $25.00 (Foreign Institution) Editorial Office Integrated Bar of the Philippines 15 J. Vargas Avenue, Ortigas Center, Pasig City 1600 Telephone: (632) 631-3014/18 Fax: (632) 634-4697 Website: www.ibp.ph Email: [email protected] The IBP Journal accepts papers dealing with legal issues and developments as well as socio-economic and political issues with legal dimensions. Only manuscripts accompanied by a soft copy (diskette, CD, e-mail, etc.), including an abstract and the curriculum vitae of the author, shall be accepted. All papers to be submitted must be signed. The articles published in the IBP Journal do not necessarily represent the views of the Board of Editors. Only the authors are responsible for the views expressed therein.

The Current State of the Law on Custodial Investigation

The Current State of the Law on Custodial Investigation Oscar G. Raro*

Under the 1987 Constitution, the rights of persons under investigation for the commission of an offense have been expanded and made more demanding and explicit: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 171 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.” (1987 Const., Art. III, Section 12) Hence, the rights of a person “under investigation for the commission of an offense” are the following: (1) the right to remain silent;2 (2) the right to have competent and independent counsel preferably of his own choice and if the person cannot afford the services of counsel, the right to be provided with one; and (3) the right to be informed of such rights to remain silent and to counsel.3 Also, such person under custodial interrogation has the right to be free from torture, force, violence, threat, intimidation or any other means which vitiates (his) free will.4 These rights cannot be waived unless such waiver is made in writing and in the presence of counsel. Violation of any of these rights, *

A.B., University of Sto. Tomas, LlB., University of the Philippines, LlM. (candidate) San Beda Graduate School of Law, Editor-in-Chief, San Beda Graduate School of Law Journal.

1

1987 Const., Article III Section 17. No person shall be compelled to be a witness against himself.

2

The 1987 Const., Sec. 12, ART. III makes clear that the person’s right to “counsel” refers to “competent and independent counsel preferably of his own choice,” that if “the person cannot afford the services of (such) counsel, he must be provided with one,” and, as suggested in People v. Galit, 135 SCRA 465, that the rights to silence and to counsel “cannot be waived except in writing and in the presence of counsel”

3

Tanenggee v. People, G.R. No. 179448, June 26, 2013.

4

The 1987 Constitution adds that “Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.”

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specifically that of the right to counsel, makes “any confession obtained inadmissible in evidence,5 even when made “voluntarily, knowingly, and intelligently.”6 Thus, the relevance of the rights during custodial investigation is only when “an extrajudicial admission or confession is extracted from the accused and becomes the basis of his conviction.”7 It must be noted, however, that when the detainee is assisted by counsel, the voluntariness of the confession is presumed and the declarant bears the burden of proving that his confession is involuntary and untrue.8 In People v. Cristobal,9 however, the Supreme Court cautioned that the above-mentioned rights do not extend to all kinds of investigations, but only when “any person is under investigation for the commission of an offense,” which means a situation where “a person is already in custody as a suspect, or if the person is the suspect, even if he is not yet deprived in any significant way of his liberty.” This is an expansion of Miranda where the invocation of the right occurs when a person is questioned after being taken into custody or “deprived of his freedom of action in any significant way.” Clearly, the rights under Section 1210 also extend to persons who may not be under custodial investigation but only “under investigation for the commission of an offense.” This is the declared intent of the framers of the 1987 Constitution during their deliberation: MR. Colayco: Section [12] is, we might say, an expansion of the provision in the 1973 Constitution which concerns the so-called custodial examination, which was the result precisely of a complaint of Commissioner Garcia that it has been the practice of military investigators to prohibit the assistance of counsel to persons suspected of being subversives on the ground that custodial interrogation is different from tactical interrogation . . . . 5 ����������������������������������������������������������������������������������������������������������� The proviso, as now found in the 1987 Constitution, makes inadmissible in evidence any confession or admission obtained not only in infringement of the rights mentioned (to silence, to counsel, etc.) but also in violation of Sec. 11, Art. III, to the effect that “Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.” The new charter also requires that “The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.” (People v. Ayson, G.R. No. 85215, July 7, 1999).

2

6

People v. Salangga, G.R. No. 100910, July 25, 1994: “While the right to counsel may be waived, such waiver must be effected voluntarily, knowingly and intelligently. Further, waiver must be with the assistance of counsel. The absence of counsel at that stage makes the statement, in contemplation of law, involuntary, even if it was otherwise voluntary in a non-technical sense.”; People v. Olaes, G.R. No. 76547, July 30, 1990 citing People v. Hizon, 163 SCRA 760 (1988); People v. Repe, G.R. No. 64935, July 19, 1989: “In the case at bar, the waiver was made without the assistance of counsel. This omission alone is sufficient to invalidate the confession. While the trial court observed that the narration of the accused in his extrajudicial confession is complete in every detail and did not show any sign of suspicious circumstance to indicate that there was pressure of restraints exerted upon his person, having been made without the mandatory assistance of counsel the same is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given.”; People v. Ampo-an, G.R. No. 75366, July 4, 1990 citing People v. Decierdo, G.R. No. L-46956, May 7, 1987, 149 SCRA 496, citing: Magtoto v. Manguera, Nos. L-37201-02, 37424, 38929, March 3, 1975, 63 SCRA 27: ”The lack of counsel ‘makes [those] statement[s], in contemplation of law, ‘involuntary,’ even if it were otherwise voluntary, technically.’”

7

People v. Tidula, G.R. No. 123273, July 16, 1998, per Justice Panganiban as cited in People v. Sabalones, G.R. No. 123485, August 31, 1998.

8

People v. Uy, G.R. No. 158157, September 30, 2005.

9

G.R. No. 159450, March 30, 2011 citing Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Ed., p. 413.

10

1987 Const., Article III.

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The Current State of the Law on Custodial Investigation

We will notice that under the old rule, the mantle of protection where the suspect or accused under investigation could only claim the right against selfincrimination and the right to be informed of his right to have counsel and to remain silent was apparently limited to that portion of the investigation when he was already under the technical custody of the investigator. That is why it was referred to as custodial investigation. We went further by extending the mantle of protection to the time immediately after the commission of any offense, whether the policeman or the person making the investigation has any suspect under custody. Thus, it is stated in Section [12] that it would be the duty of the investigating officer, when making preliminary investigation on the spot, on the place of the crime or elsewhere, to remind any person or suspect that he is entitled to remain silent, to have counsel and that if he does not have any, he could demand the service of one. So in effect, the custodial theory was extended, and we will notice we did not use the word “custodial” anymore, so that the military investigators could not go around the provisions by saying that tactical interrogation was different from custodial interrogation; in other words, to avoid other interpretations. MS. Aquino: Mr. Presiding Officer, a follow-up question to that. Would this section proscribe detention preliminary to technical custody; that would mean in the nature of temporary detention before technical custody or may temporary detention incidental to preliminary interrogation? ...... MR. Colayco: Yes, because as I explained earlier the wording does not make use anymore of the adjective “custodial.” (Italics supplied)11 In 1992, Republic Act No. 743812 was passed where the rights of such suspect are further explained and duties are correlatively imposed on the concerned public officer as follows: Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. (b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all 11

Proceedings of the 1987 Constitutional Commission, July 17, 1986, pp. 682-684 as cited in Pacifico A. Agabin, The Concept of Arrest for Purposes of Constitutional Guarantees, in Protection of the Accused 5-7 [1997].

12

An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation as Well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations Thereof.

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times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. (c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person’s “immediate family” shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. As used in this Act, “custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law. (Id. Sec. 2) However, in the face of the police officer’s neglect either by “ignorance or indifference” of the Miranda right, which, as it was, “had become insufficient and needs to be updated in the light of new legal development,” the Supreme Court, in People v. Mahinay,13 patiently 13

4

G.R. No. 122485, February 1, 1999.

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The Current State of the Law on Custodial Investigation

reiterated the caveat against police authorities during in-custody investigation in a greatly expansive delineation: 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means — telephone, radio, letter or messenger — with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun;

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10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence. Thus, what we have now in the Philippines is a greatly evolved and broadened Miranda right with more stringent standards for compliance.14 But even when a confession is made in observance of the limits imposed by the 1987 Constitution,15 as reinforced by Republic Act No. 7438 approved on 15 May 1992, “it must further be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement.”16 Thus, in summary, an extrajudicial confession, to be admissible must conform to the following constitutional and statutory requisites: “(1) the confession must be voluntary; (2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessant’s choice; (3) the confession must be express; and 4) the confession must be in writing.”17 The Right to Remain Silent This constitutional right to remain silent18 is most critical at the start or at any time during the period of custodial or any investigation when the detainee has yet to secure the services of counsel. Remaining silent is the first line of defense of the criminally accused while alone and unaided by counsel while in police custody. The substance of the right to remain silent is actually the right against selfincrimination as what it prevents is “extracting from the lips of the accused an admission of guilt.”19 As the right is directed against “testimonial compulsion” and not all other compulsions, DNA evidence of blood sample taken from the accused as well as the DNA tests implicating him in the commission of the crime do not violate his right to remain silent and against self-incrimination.20 Hence, a suspect “may be compelled to submit to fingerprinting, photographing, and paraffin, blood and DNA” testing. He may likewise be subjected to “physical examination to determine his involvement in an offense,”21

6

14

People v. Mojello, G.R. No. 145566, March 9, 2004.

15

Article III, Section 12; People v. Santos, 347 Phil. 723, 733 (1997).

16

People v. Rapeza, G.R. No. 169431, April 4, 2007.

17

People v. Rapeza, G.R. No. 169431, April 4, 2007 citing People v. Porio, 427 Phil. 82, 93 (2002), citing People v. Gallardo, 323 SCRA 219 (2000) and People v. Bacor, 306 SCRA 522 (1999); See People of the Philippines v. Oranza, 434 Phil. 417, 430 (2002); People v. Valdez, 395 Phil. 207, 224 (2000); People v. Base, 385 Phil. 803, 815 (2000); People v. Lumandong, 384 Phil. 390, 403 (2000); People v. Calvo, Jr., 336 Phil. 655, 661 (1997).

18

1987 Const., Article III, Sec. 12 (1).

19

People v. Yatar, G.R. No. 150224, May 19, 2004.

20

People v. Yatar, G.R. No. 150224, May 19, 2004.

21

People v. Yatar, G.R. No. 150224, May 19, 2004.

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The Current State of the Law on Custodial Investigation

and in the process, to be stripped of his clothing and personal items which may later be introduced in evidence.22 The right to remain silent should not be confused with the evidentiary rule on admission by silence. In People v. Tia Fong,23 a 1956 case decided under the 1935 Constitution, the Supreme Court stated that there are related principles in connection with the silence of an accused in criminal cases — such as his failure or refusal to testify, to answer incriminating questions when he testified, or his silence while under police custody — that the “better rule is to consider the circumstances in each case and decide the admissibility of the silence accordingly.” Thus, in Tia Fong, accused’s silence, coupled with his participation in the reenactment of the crime, was deemed an admission of guilt. Tia Fong, however, made clear “the implication of guilt in the case is not derived from mere silence; it is inferred from appellant’s silent acquiescence in participating in the reenactment of the crime.” In People v. Alegre,24 a 1979 case decided under the 1973 Constitution, the Supreme Court, stated: The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, and that he may refuse to answer an incriminating question. It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory.25 The leading case of Miranda v. Arizona26 held that the prosecution may not use at trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at a police custodial interrogation. Prior to Miranda, it was the view of many authorities that a man to whom a statement implicating him in a crime is directed may fail to reply if he is in custody under a charge of the commission of that crime, not because he acquiesces in the truth of the statement, but because he stands on his constitutional right to remain silent, as being the safest course for him to pursue and the best way out of his predicament.27 Other courts have held that the circumstance that one is under arrest by itself does not render the evidence inadmissible, and that an accusation of a crime calls for a reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicate that he is free to answer if he chooses.28 We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot 22

People v. Paynor, G.R. No. 116222, September 9, 1996.

23

G.R. No. 7815, March 14, 1956.

24

G.R. No. 30423, November 7, 1979.

25

Citing People v. Tia Fong alias Ah Sam, L-7615, March 14, 1956, 98 Phil. 609.

26

Citing 384 U.S. 436, 16 L. ed. 2d 694.

27

Citing 29 Am. Jur. 2d 694, at 640.

28

16 C.J. 633; People v. Tia Fong, supra.

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be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against self-incrimination. The right or privilege of a person accused of a crime against self-incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against self-incrimination is an important development in man’s struggle for liberty. It reflects man’s fundamental values and his most noble of aspirations, the unwillingness of civilized men to subject those suspected of crime to the cruel trilemma of selfaccusation, perjury or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life.”29 As early as 1908, the Supreme Court in a case had already ruled that the silence of the accused while in custody and his failure to deny incriminatory statements made by another in his presence do not amount to admission by silence.30 This right to remain silent exists not only during custodial investigation or before trial. During trial the accused has right against self-incrimination or the right not to be compelled to be a witness against himself.31 The Right to Counsel While even under the 1973 Constitution the right to counsel was provided along with the right to remain silent and to be informed of such rights, nothing was said of the right against uncounseled waiver of the right to counsel.32 In contrast, the 1987 Constitution clearly stated that: Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.33 (Italics supplied) This is how it should be since foremost among the rights of the suspect during custodial or any investigation is the right to “competent and independent counsel preferably of his own choice.”34 This is not an empty rhetoric as it addresses “the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an

8

29

Citing Justice Goldberg, in Murphy v. Waterfront Commission of New York, 378 U.S. 52; 84 S.C. 1594; 12 L. ed. 678, citing Ullman v. United States and States v. Grunewald.

30

United States v. De la Cruz, G.R. No. 4740, November 18, 190812, 12 Phil. 87.

31

Alvero v. People, G.R. No. 145209, June 8, 2006.

32

Filoteo, Jr. v. Sandiganbayan, G.R. No. 79543, October 10, 1996.

33

1987 Const., Article III, Section 12 (1).

34

1987 Const., Article III, Sec. 12 (1).

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The Current State of the Law on Custodial Investigation

informed judgment on the choices explained to him by a diligent and capable lawyer.”35 The purpose of the right is clearly to curb the police practice of extracting confession incriminatory to the accused.36 This choice of counsel, even when freely made, is still subject to whether said counsel is “independent.” Thus, this chosen counsel, may not be one whose interests and functions conflict with that of the accused such as a special counsel, public or private prosecutor, counsel of the police, a municipal attorney,37 a city legal officer,38 a municipal mayor even if he is a lawyer,39 or a lawyer-applicant for employment at the National Bureau of Investigation.40 The phrase “preferably of his own choice” vis-à-vis the right to counsel is, however, never intended to be left at the sole discretion of the suspect to prevent other competent and independent lawyers from assisting him. The operative word here is “preferably” which should mean that the choice of the suspect is preferred when made. But when not being made, the “preference” no longer exists and “he must be provided with a competent and independent counsel by the investigating officer.”41 Otherwise, the progress of custodial investigation will be left to the predilection, financial limitation, or dilatory designs of the suspect.42 The suspect cannot hold hostage the progress of the investigation by refusal to hire or choose a counsel. Thus, a lawyer provided by the investigators is deemed engaged by the suspect when he does not raise any objection to the counsel’s appointment during the investigation.43 That said, the counsel provided by the law enforcers themselves, must not be “for the sole purpose of making it appear that appellant is assisted by a counsel in making his confession” as when such counsel has no sufficient time to interview the suspect, much less to intelligently assess his case and to explore any theory for his defense. In short, he must not “merely lend his presence so as to validate the alleged confession of the [suspect.]”44 The right to counsel exists “at all times”45 in every phase of the custodial investigation,46 from its inception to its termination, that is, from the time the suspect surrenders or is arrested47 or when “he answers the first question until the time he signs the extra-judicial 35

People v. Tomaquin, G.R. No. 133188, July 23, 2004 citing People v. Suela, 373 SCRA 163, 182 (2002).

36

Lumanog v. People, G.R. Nos. 182555, 185123 & 187745, September 7, 2010 citing People v. Rapeza, G.R. No. 169431, April 4, 2007, 520 SCRA 596, 623, citing People v. Delmo, 439 Phil. 212 (2002), cited in People v. Dueñas, Jr., G.R. No. 151286, March 31, 2004, 426 SCRA 666.

37

People v. Sunga, G.R. No. 126029, March 27, 2003; People v. Culala, G.R. No. 83466, October 13, 1999; People v. Bandula, 232 SCRA 566 [1994]; People v. Taliman, G.R. NO. 109143, October 11, 2000.

38

People v. Espanola, 271 SCRA 689 [1997].

39

People v. Taliman, G.R. NO. 109143, October 11, 2000; People v. Velarde, G.R. No. 139333, July 18, 2002.

40

People v. Januario, G.R. No. 98252, February 7, 1997.

41

Republic Act No. 7438, Sec. 2 (b) But, the counsel provided by the law enforcers themselves, must not be “for the sole purpose of making it appear that appellant

42

People v. Barasina, 229 SCRA 450.

43

Id.

44

People v. Mojello, G.R. No. 145566, March 9, 2004.

45

Republic Act No. 7438, Sec. 2 (a).

46

People v. Paule, 261 SCRA 649 (1996).

47

People v. Baloloy, G.R. No. 140740, April 12, 2002.

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confession.48 Being made to stand in a police line-up is not the starting point or a part of custodial investigation. As the right to counsel arises “at the precise moment custodial investigation begins,” it follows that there is no right to counsel for one “made to stand in a police line-up.”49 Once commenced, custodial interrogation is a continuing process requiring the continuing vigilance and presence of counsel: Conditions vary at every stage of the process of custodial investigation. What may satisfy constitutional requirements of voluntariness at the investigation’s onset may not be sufficient as the investigation goes on. . . . The competent or independent counsel so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.”50 Thus, when the counsel of the suspect left before the termination of the custodial investigation, or his presence is intermittent as the interrogation is on-going51 even if subsequently the written confession is signed in his presence or that it is signed only after he arrives,52 or that the counsel merely signs as “saksi” or a witness,53 the right to counsel is deemed to have been effectively defeated and the extra-judicial confession becomes inadmissible. In one case, where the counsel left just when the interrogation was starting, the Supreme Court “chastised both counsel and the trial court for lack of zeal in safeguarding the rights of the accused.”54 There is likewise no meaningful right to counsel when a suspect was accorded a counsel a day after the initial questioning55 or a day after the confession was already executed,56 or after two days after he was taken into custody and only for the purpose of the “taking of his formal statement.”57 But when the first custodial investigation of the accused which is infirmed by lack of counsel and by improper waiver is succeeded by another investigation in full compliance with his rights, any confession made during the latter investigation is admissible. In People v. Mojello,58 the Supreme Court stated that “[e]ven though improper interrogation methods were used at the outset, there is still a possibility of obtaining a legally valid confession later on by properly interrogating the subject under different conditions and 48

People v. Felixmina, G.R. No. 125333, March 20, 2002 citing People v. Labtan, 320 SCRA 140 (1999) citing People v. Bacamante, 248 SCRA 47 (1995).

49

People v. Lara, G.R. No. 199877, August 13, 2012 citing People v. Amestuzo, 413 Phil. 500 (2001).

50

People v. Deniega, 51 SCRA 626 (1995) as cited in People v. Morial, supra.

51

People v. Morial, G.R. No. 129295, August 15, 2001;

52

Id. citing People v. Compil, 244 SCRA 135 (1995).

53

People v. Garcia, G.R. No. 145176, March 30, 2004.

54

People v. Lucero, 244 SCRA 425 (1995).

55

Lumanog v. People, G.R. Nos. 182555, 185123 and 187745, September 7, 2010.



56 57 58

10

People v. Cabintoy, G.R. No. 107534, August 21, 1995.

People v. Delmo, G.R. No. 130078-82, October 4, 2002. G.R. No. 145566, March 9, 2004

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The Current State of the Law on Custodial Investigation

circumstances than those which prevailed originally.”59 When duly assisted by counsel, an extrajudicial confession is presumed to have been made voluntarily especially so when it contains such details “which the investigating officers could not have known and could not have supplied, without the knowledge and information given by the [declarant].”60 The right to counsel, however, “applies only to admissions made in a criminal investigation but not to those made in an administrative investigation.”61 The Right to be Free from Coercion, Torture, and Other Means Vitiating Consent It is a sad footnote in our jurisprudential history that a confession even when illegally extracted by force was before held to be admissible. Worse, to repudiate such a confession, the confessor must prove not only that the confession was “obtained by force and violence, but also that it is false or untrue.” Even worse was the reasoning behind the ruling: “for the law rejects the confession when, by force or violence or intimidation, the accused is compelled against his will to tell a falsehood, not when by such force and violence he is compelled to tell the truth.”62 This is a circular reasoning. How do we know if indeed it is the truth when it is extracted through torture or violence? This was a ruling which even flaunted the dictum that the end justifies the means when it said that “(t)his is in consonance with the principle that the admissibility of evidence is not affected by the illegality of the means with which it was secured.”63 Happily, such reasoning is already behind us.64 The 1973 Constitution provided that “[n]o force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against [any person in custody]” and that [a]ny confession obtained in violation of this section shall be inadmissible in evidence.”65 The 1987 Constitution reiterates the proscription.66 The constitutional provision does not allow torture, force, violence, threat, or intimidation without any qualification. Only the “other means” are qualified that it must amount to vitiation of free will. This “other means vitiating the free will” may, for example, take the form of a promise of a reward, position, leniency, or favor.67 Thus, any interpretation that torture or violence that does not vitiate consent is still allowed is self-evidently misplaced, the perceived inaccuracy in the constitutional language notwithstanding. 59

Citing Fred E. Inbau and John E. Reid, Criminal Interrogation and Confessions (2d Ed., 1967), p. 200 citing Lyons v. Oklahoma, 322 U.S. 596 (1944) and other cases.

60

People v. Muit, G.R. No. 181043, October 8, 2008.

61

Remolona v. Civil Service Commission, 414 Phil. 590, 599 (2001) as cited in Tanenggee v. People, G.R. No. 179448, June 26, 2013.

62

People v. De los Santos, G.R. No. L-4880, May 18, 1963, 93 Phil. 83, 92-93; Also People v. Villanueva, 98 Phil. 327, 335 and People v. Prias and Flores, 109 Phil. 48, 56

63

People v. De los Santos, supra, citing Moncado v. People’s Court, 80 Phil. 1

64

People v. Guillermo, G.R. No. 36824, September 11, 1978 citing Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967; 20 SCRA 383.

65

1973 Const. Article IV, Section 20.

66

1987 Const., Article III, Sec. 12 (2).

67

May be gleaned from People v. Parojinog, G.R. No. 95850, November 18, 1991 citing People v. Francisco, et al., G.R. No. L-4258, May 15, 1953; People v. Candava, G.R. L-18517; March 31, 1964; People v. Dorado, G.R. No. L-23464, October 31, 1969 when such means vitiating consent has to be proved by the accused.

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More, on 10 November 2009, Republic Act No. 974568 was passed penalizing torture, among others, and declaring it the policy of the State that “no person placed under investigation or held in custody . . . shall be subjected to physical, psychological or mental harm, force, violence, threat or intimidation or any act that impairs his or her free will”69 in that “any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, except if the same is used as evidence against” the torturer.70 Form of Extrajudicial Confession An extrajudicial confession may be oral, or when written, need not be executed under oath. The written extrajudicial confession is complete, at the moment that it is signed by the suspect and by his counsel. There is no law that “requires confessions or other admission against interest to be excluded from the record unless made under oath.71 Its “evidentiary value rests upon the fact that it was made by the accused himself, voluntarily and against his own interest.”72 The booking sheet — which is merely a statement of the fact that accused is being booked and of the data which accompanies the fact of arrest, a police report, at most — does not constitute an extrajudicial statement even if signed by the accused.73 Beyond oral and written extrajudicial confession, there is such a thing as confession or admission by deed, commonly resorted to by the police during custodial investigation: the reenactment of the crime with the participation of the accused. Here, the rulings on the admissibility of the inculpatory effects of reenactment are mixed. In one case involving a crime of murder, the reenactment of the crime was admitted in evidence even while accused’s extrajudicial confession was excluded as he was not assisted by an independent counsel of choice;74 In another case involving a crime of robbery with homicide, the reenactment was admitted to strengthen the extrajudicial confession signed and sworn to before a fiscal, but not in the presence of counsel;75 again, in another case of murder, the reenactment was appreciated in evidence together with the extrajudicial confessions of the accused which was later ratified and sworn to before the assistant provincial fiscal;76 in another case of robbery with homicide, the pictures of the reenactment was also admitted without any explanation beyond the statement of the court that the “Solicitor General competently refuted appellant’s arguments” and that the “trial court in its 232-page decision made an overly thorough examination of the evidence and convincingly demonstrated that the guilt of the appellants was established

12

68

“Anti-Torture Act of 2009.”

69

Republic Act No. 9745, Section 1 (b).

70

Republic Act No. 9745, Section 8.

71

See U.S. v. Corrales, 28 Phil. 262 (1914).

72

People v. Logronio, G.R. No. 92416, October 13, 1992.

73

People v. Rualo, G.R. No. 70287, July 31, 1987.

74

People v. Diaz, G.R. No. 130210, December 8, 1999.

75

People v. Aquino, G.R. No. 50523, September 29, 1983.

76

People v. Villarosa, G.R. No. 2921, June 27, 1951.

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to a moral certainty.”77 Against these nonchalant and unreasoned rulings which admitted evidence proceeding from reenactments are the following cases: In a case of rape with murder — and even during the time when the rule on extrajudicial confession was that of spontaneity and voluntariness — the court rejected the admissibility of evidence relating to the reenactment because there was no showing that the accused was informed of his constitutional rights to counsel;78 in another case of robbery with homicide, the Supreme Court ruled that the pictures of the reenactment depicting the role of one of the accused “cannot be utilized as evidence of his participation as a principal as that reenactment was conducted without any lawyer assisting [him],”79 reenactments being “covered by the right against self-incrimination;”80 and in a case of murder, the court likewise rejected forced reenactment, which “like uncounseled and coerced confessions, come within the ban against self-incrimination.”81 These later cases are more in tune with the constitutional rights of the accused against extrajudicial confession without a counsel of choice. There is no rhyme and reason for such confession by deed in the form of reenactments to be treated differently than oral and written confessions insofar as the stringent requirement for admissibility is concerned. Custodial Interrogation Not Limited at the Police Station Since custodial interrogation may be conducted by the police at the moment the suspect is taken into custody or his freedom of action deprived in any significant way, the questioning made by the police even while the suspect is being walked along the highway,82 or while on board the police patrol jeep,83 on their way to the police station, is considered custodial interrogation and therefore, protected by our evolved concept of the Miranda rights. Non-Custodial Admission; Admission During Preliminary Investigation The inadmissibility of uncounseled confession and admission applies when made during custodial investigation not during preliminary investigation. Custodial investigation differs from preliminary investigation. The former is initiated by the police after a person is taken into custody or otherwise deprived of his freedom of action in any significant way,84 while the latter is initiated before the investigating prosecutor for an inquiry or a proceeding 77

People v. Salbino, G.R. No. 40235, February 25, 1985.

78

People v. Luvendino, G.R. NO. 69971, July 3, 1992.

79

People v. Suarez, 267 SCRA 119 at 138 [1997]; Also People v. Jungo, G.R. No. 78531, June 22, 1990: “We also find that the pictures taken during the re-enactment of the crime, are inadmissible in evidence since the reenactment was based upon the defendants’ inadmissible extra-judicial confessions. Pictures re-enacting a crime which are based on an inadmissible confession are themselves inadmissible.”

80

People v. Suarez, 267 SCRA 119 at 138 [1997] citing People v. Olvis, G.R. No. 71092, September 30, 1987, 154 SCRA 513.

81

People v. Olvis, G.R. No. 71092, September 30, 1987, 154 SCRA 513.

82

People v. Bariquit, G.R. No. 122733, October 2, 2000.

83

People v. Bolanos, 211 SCRA 262 [1992].

84

People v. Marra, 236 SCRA 565, September 20, 1994; People v. Logronio, 214 SCRA 519, October 13, 1992; People v. Ayson, 175 SCRA 216, 230, July 7, 1989.

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to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial.85 During the preliminary investigation, the respondent may86 or may not be in custody. But whether he is detained during preliminary investigation does not affect the admissibility of his confession made either in his counter-affidavit or during clarificatory questioning. These incriminatory statements are made before the investigating prosecutor and not before the police. This is how it should be since the danger of coercion, or violence, or any act which may vitiate his consent does not exist during preliminary investigation which is being conducted, no longer by the police, but by the investigating prosecutor. Admission During Administrative or Fact-Finding Investigation A suspect cannot claim violation of his Miranda rights and insist on inadmissibility of evidence or of his confession: during an administrative or fact-finding investigation;87 during a police line-up,88 unless it is made after the start of the custodial investigation;89 during an investigation by a bank officer at the place of the suspect’s employment;90 during an inquiry by the employer’s lawyer to determine whether the employment of the suspect will be terminated even if such inquiry is conducted at the police station;91 during the time that the suspect is asked to sign the receipt for the articles seized from him;92 during a Senate public hearing where claimants are questioned as resource persons;93 when the suspect made an “spontaneous admission not elicited through questioning” before a mayor,94 or through a letter explaining the shortage by a bank teller of her dollar

14

85

Ladiana v. People, G.R. No. 1442293, December 4, 2002.

86

As in cases of waiver of Article 125 of the Revised Penal Code.

87

Sebastian v. Garchitorena, G.R. No. 114028, October 18, 2000.

88

People v. Lara, G.R. No. 199877, August 13, 2012; People v. Almanzor, G.R. No. 124916, July 11, 2002 citing People v. Amestuzo, G.R. No. 104383, July 2001, pp. 7-8; People v. Bagas, G.R. No. 104383, July 12, 2001 citing People v. Lamsing, 248 SCRA 471(1995); People v. Dela Torre, 294 SCRA 196 (1998); People v. Salvatierra, 276 SCRA 55 (1997). The case of People v. Lamsing overturns the Court’s prior ruling in the case of People v. Macam, 238 SCRA 307, where identification of an uncounselled accused made in a police line-up at the start of the custodial investigation was held to be inadmissible.

89

People v. Roque, G.R. No. 91011-12, November 24, 1994.

90

People v. Salonga, G.R. No. 131131, June 21, 2001, where a bank employee summoned for questioning before the Assistant Accountant of the Department of Internal Affairs of Metrobank admitted and reduced into writing his admission that he issued a cashier’s check without any legitimate transaction to his co-accused who was then suffering from financial difficulties.

91

Manuel v. N.C. Construction Supply, G.R. No. 127553, November 28, 1997.

92

People v. Canton, G.R. No. 148825, December 27, 2002. N.B. However, in Marcelo v. Sandiganbayan (G.R. No. 109242, January 26, 1999), the Supreme Court excluded the signatures made by the suspect during custodial investigation on an envelope to prove that it was the same evidence seized from him. The court said that such “authentication undoubtedly help establish the guilt of petitioner” being “evidence of admission” contemplated under “Art. III, §§12(1) and 17 of the Constitution.”

93

Philcomsat Holdings Corp. v. Senate of the Republic of the Philippines, G.R. No. 180308, June 19, 2012.

94

People v. Andan, G.R. No. 116437, March 3, 1997. N.B. The Supreme Court stated that while the” mayor has ‘operational supervision and control’ over the local police and may arguably be deemed a law enforcement officer,” the confession made here was not made in response to any question by the mayor, but was volunteered by the suspect “spontaneously, freely, and voluntarily,” without the mayor knowing beforehand that the suspect will confess.

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collection;95 when the confession is made before a barangay officer96 or when a motorist is subjected to a roadside questioning pursuant to a routine traffic stop;97 when “the police inquiry has not yet reached a level when a person is considered a particular suspect;”98 or generally, in situations when the inquiry or investigation is not under the control of police officers.99 Also as a general rule, when an admission is made before a private person, such admission is not custodial and is admissible in evidence,100 such as when the questioning is not initiated by a law enforcement authority but merely by a bank officer during an investigation of an anomaly in the branch of the bank where the suspect works and the suspect is neither arrested nor restrained of his liberty in any significant manner during ��� questioning. 101 Admission as Part of the Res Gestae Res gestae, as an evidentiary rule,102 “comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content.”103 As an exception to the hearsay rule, res gestae contemplates a situation when the statement, confession, or admission of the declarant, who may be a participant, victim, or spectator to a crime, is testified to by another person and not by the declarant himself.104 The witness in res gestae may not have direct personal knowledge of the fact, but may testify on what the declarant said as an exception to the hearsay rule. If the declarant himself testifies, there is no application of res gestae since the declarant is stating a fact of his direct personal knowledge. Spontaneous statements, elicited without any interrogation made immediately after the commission of the offense is not protected by the right to custodial investigation.105 They are admissible in evidence. Thus, persons to whom the suspect confided may testify on what the accused confessed or admitted while in a state of excitement shortly after the incident. Thus, a statement is admissible when made an hour after an alleged 95

People v. Cristobal, G.R. No. 159450, March 30, 2011.

96

People v. Tamayo, G.R. No. 137586, July 30, 2002; People v. Satorre, G.R. No. 133858, August 12, 2003.

97

Luz v. People, G.R. NO. 197788, February 29, 2012 citing Berkemer v. McCarty, 468 U.S. 420 [1984].

98

People v. Marra, G.R. No. 108494 citing People v. Dy, G.R. No. 74517, February 23, 1988, 158 SCRA 111.

99

People v. Estado, Jr., G.R. No. 150867, February 5, 2004 citing Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1996 ed., pp. 417-418.

100

People v. Zuela, G.R. No. 112177, 28 January 2000, 323 SCRA 589, 606. See also People v. Maqueda, G.R. No. 112983, 22 March 1995, 242 SCRA 565, 590.

101

Tanenggee v. People, G.R. No. 179448, June 26, 2013.

102

Rules of Court, Rule 130, SEC. 42. Part of the res gestae. — Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

103

People v. Nartea, G.R. No. 48811, October 23, 1942.

104

People v. Mansueto, G.R. No. 135196, July 31, 2000.

105

People v. Tampus,G.R. No. L-44690 March 28, 1980.

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assault,106 some thirty minutes after the commission of a crime,107 or shortly or almost immediately after the incident.108 But a declaration made a day after the incident is clearly ��� not spontaneous and is properly ruled out to be not part of the res gestae. 109 Admission Before the Media In controversial cases, the suspect is usually presented by the police before the media. More often than not, members of the media are allowed to interview the suspect on matters which directly or indirectly bear on his participation if not on his direct culpability for the crime. The Supreme Court justified the admissibility of these media confessions on grounds of spontaneity and voluntariness110 and by the fact that it is not in the nature of police investigation.111 Thus, confessions or admissions are held admissible when “made in response to questions by news reporters,”112 such as a reporter of ABS-CBN Network;”113 during a taped interview of a radio or television announcer,”114 even while the tape is edited with commentaries.115 Duration of Custodial Interrogation The duration of custodial investigation is necessarily limited by the period by which the police may legally detain the suspect for purposes of such investigation without the police being charged with the crime of “delay in the delivery of detained persons to the proper judicial authorities” as provided by Article 125 of the Revised Penal Code. This may be gleaned from Section 2 (e) of Republic Act No. 7438,116 where “waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel.” Under Article 125, the period of legal detention depends on the gravity of the offense for which the suspect is being interrogated: “twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.”

16

106

People v. Ignas, G.R. Nos. 140514-15, September 30, 2003 citing See Wheeler v. US, 211 F.2d 19 (1954); Contra People v. Palmones, G.R. No. 136303, July 10, 2000, where the statement made “30 minutes to an hour later” was ruled out to be not part of the res gestae.

107

People v. Ignas, G.R. Nos. 140514-15, September 30, 2003 citing State v. Finley, 338 P.2d 790 (1959).

108

People v. Ignas, G.R. Nos. 140514-15, September 30, 2003, 336 Phil. 9; People v. Bituon, G.R. No. 142043, September 13, 2001.

109

People v. Navarro, G.R. No. 129566, October 7, 1998.

110

People v. Vizcarra, G.R. No. L-38859. July 30, 1982, 115 SCRA 743, 752

111

People v. Andan, G.R. No. 116437, March 3, 1997

112

People v. Hipona, G.R. No. 185709, February 18, 2010.

113

People v. Malingan, G.R. No. 170470, September 26, 2006. N.B. The Supreme Court, however, declined to discuss the issue as the ABS-CBN reporter was not presented as a witness, even while such confession to the media was one of the reasons why the trial court convicted the accused.

114

People v. Ordoño, G.R. No. 132154, June 29, 2000.

115

People v. Bernardo, G.R. No. 97393, March 17, 1993.

116

An Act Defining Certain rights of Persons Arrested, Detained or Under Custodial Investigation as Well as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof.

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A child arrested shown to be fifteen years of age or below, shall be immediately released to the custody of his parents or guardians, or in the absence thereof, to his nearest relative.117 If the child arrested is above fifteen but below eighteen years of age, his detention shall not last beyond eight (8) hours and he shall be released to the Social Welfare and Development Office or other accredited NGOs.118 Not later than the same period of eight (8) hours, the apprehending officer shall immediately notify the child’s parents or guardians, the local social welfare and development officer, and the Public Attorney’s Office of the child’s detention.119 In no case shall the child be locked in a detention cell during his period of detention.120 When the suspect is arrested for the crime of terrorism as defined under the Human Security Act of 2007,121 the allowable period of detention is three (3) days if the arrest is the result of surveillance122 and of examination of bank deposits123 under the requirements imposed under the same law. These allowable periods of detention have been construed to exclude Sundays, official holidays, and election day.124 Also, “the means of communication as well as the hour of arrest and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and to file in time the necessary information, must be taken into consideration.”125 The duration of the detention ends the moment the detained person is released without any charges or delivered to “the proper judicial authorities,”126 which suggests delivery to the court. It was held in Sayo v. Chief of Police,127 that “the judicial authority . . . . referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the temporary commitment or detention of the person arrested; and not the city fiscals or any other officers, who are not authorized by law to do so.” This is the reason why inquest proceeding in cases of warrantless arrest is instituted, so that the arrested person may be immediately brought to court within the period provided under Article 125, or for the arrested person to sign a waiver of said Article in the event he opts for a preliminary investigation. 117

Juvenile Justice and Welfare Act of 2006 or.Republic Act No. 9344, Section 20; Revised Rule on Juveniles in Conflict with the Law dated 24 November 2009, Section 8 (a).

118

Republic Act No. 9344, Section 21 (i).

119

Revised Rule on Juveniles in Conflict with the Law dated 24 November 2009, Section11 (j).

120

Republic Act No. 9344, Section 21 (last paragraph); Revised Rule on Juveniles in Conflict with the Law dated 24 November 2009, Section11 (k).

121 Republic Act No. 9372, Section 3. 122

Republic Act No. 9372, Section 7.

123

Republic Act No. 9372, Section 27.

124

Medina v. Orozco, Jr., G.R. No. L-26723. December 22, 1966.

125

Sayo v. Chief of Police of Manila, G.R. No. L-2128. May 12, 1948.

126

Revised Penal Code, Article 125.

127

G.R. No. L-2128. May 12, 1948, 80 Phil. 859 [1948].

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Rights of a Person Detained Continue Even After The Filing of the Complaint or Information But even after custodial interrogation had already been terminated and the case against the suspect is already filed in court, his rights as a person in custody remain. It may not be argued that after the filing of the criminal complaint or information, accused no longer enjoys the right during custodial interrogation as such investigation had already been terminated. The rights to counsel and to remain silent, and the right against selfincrimination,128 continue to apply even after custodial investigation, especially so when the accused is still in custody: It was therefore, wrong . . . to hold that Section 12 (1), Article III of the Constitution is strictly limited to custodial investigation and that it does not apply to a person against whom a criminal complaint of information has already been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court, then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions from accused persons after they had been arrested but before they are arraigned because at such stage the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel.129 This is how it should be since the threat of an illegally extracted confession remains a possibility during such detention. Burden on the Prosecution to Prove that the Suspect was Accorded His Rights During Custodial Interrogation It is now incumbent upon the prosecution to prove during trial that, prior to questioning, the suspect was informed of his constitutionally-protected rights since the presumption of regularity of official acts does not apply during in-custody investigation.130 The proof must not consist merely of a “mere recitation by rote of the sacramental advice,” but there must be “sincere effort or desire” to apply the guarantee of the Miranda rights.131 Thus, the burden — which must be discharged by clear and convincing evidence — is also on the prosecution to prove that an accused waived his right to remain silent, his right to counsel before making a confession, and any evidence derived from confession is not tainted as “fruit of the poisonous tree.”132 The prosecutor, however, has no obligation to discharge this burden when no extrajudicial confession was extracted from the accused during custodial investigation. This is so because allegation of rights violation during such investigation is “relevant and material only to cases in which an extrajudicial admission or

18

128

1987 Const., Article III, Section 17: “No person shall be compelled to be a witness against himself.”

129

People v. Maqueda, G.R. No. 112983, March 22, 1995.

130

People v. Camat, supra citing People v. Tolentino, G.R. No. 50103, November 24, 1986.

131

People v. Rojas, G.R. Nos. 46960-62, January 8, 1987.

132

People v. Alicando, G.R. No. 117487, December 12, 1995.

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confession by the accused becomes the basis of his conviction.”133 It is not enough that the suspect was informed of his Miranda rights; he must be made to understand such rights. Thus, compliance here should likewise consist of “meaningful communication to and understanding by the suspect of his rights, as opposed to a routine, peremptory and meaningless recital thereof.”134 Understanding will “necessarily depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation.”135 Visitorial Right of Persons Detained Upon the request of the person arrested or any person acting in his behalf, any member of the Philippine Bar shall have the right to visit and confer privately in jail or in any other place of custody, at any hour of the day or night, with the person arrested. Visitorial rights of the relatives of the person arrested, however, are subject to reasonable regulations.136 This visitation rights extend to any member of the immediate family of the person arrested, which includes the spouse, fiancé or fiancée, parent, child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward; any medical doctor or priest or religious minister chosen by him or chosen by any member of his immediate family or by his counsel; any national non-governmental organization duly accredited by the Commission on Human Rights; or any international non-governmental organization duly accredited by the Office of the President.137 This constitutional right138 to counsel during detention is reinforced by statute139 which provides for a penalty of imprisonment of not less than four years nor more than six years, and a fine of Four Thousand Pesos, against any person who obstructs, prohibits or prevents such visits.140 Consequences of and Remedies for Violation of the Rights of a Detainee During Custodial Investigation; Exclusionary Rule, Objection to Admissibility of Extrajudicial Confession The exclusionary rule as it relates to extrajudicial confession or admission is constitutionally-guaranteed. Under Article III, Section 12, of the 1987 Constitution, any person under investigation for the commission of an offense possesses certain inviolable 133

People v. Buluran, G.R. No. 113940, February 15, 2000 citing People v. Andres, 296 SCRA 318, 337 (1998); People v. Sabalones, 294 SCRA 751, 790 (1998); People v. Tidula, G.R. No. 123272, July 16, 1998; Eugenio v. People, G.R. No. 168163.

134

People v. Rapeza, G.R. NO. 169431, April 4, 2007.

135

Id. citing People v. Canoy, 385 Phil. 73 (2000).

136

Rules of Court, Rule 113, Sec. 14.

137

Republic Act No. 7438, Sec. 2 (f).

138

1987 Const., Section 12 (1), (2), and (3).

139 Republic Act No. 7438, Sec. 2.; Diokno v. Enrile, G.R. No. 36315, December 19, 1981. 140 Republic Act No. 7438 Sec. 4 (b).

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rights, foremost among which is the right to counsel.141 Any confession or admission obtained in violation of such rights, such as the right to counsel and the right to selfincrimination,142 shall be inadmissible in evidence against the declarant.143 But not only is the confession is inadmissible but also the evidence gathered as a result of such custodial interrogation without the benefit of counsel.144 The remedy of the accused is to object to the admissibility of such illegally-extracted evidence. If the uncounseled confession is oral and is being attempted to be narrated by the prosecution witness during trial, objection should be made immediately after the offer is made for the testimony of the witness but before he testifies.145 If questions are propounded which would elicit from the witness such oral confession, objection should be made as soon as such intent becomes reasonably apparent.146 If the questionable confession is in writing, the time to object is after the formal offer by the prosecution of its evidence if it includes the written confession as one of the documents being offered.147 The exclusion of uncounseled confession applies even when it is voluntarily given,148 even in the absence of torture or any evidence of coercion,149 even if the suspect failed to file administrative charges against the investigators for violating his right to counsel,150 or even if the statements themselves are gospel truth.151 This is so because the right to counsel is intended “at all times to preclude the slightest coercion as would lead the accused to admit to something false.”152 That said, the counsel “should never prevent an accused from freely and voluntarily telling the truth whether in an extrajudicial statement or testimony in open court.”153 The exclusionary rule, therefore, does not merely cover evidence secured by illegal search, but also covers confessions and statements made by the suspect during custodial investigation without the benefit of a counsel of his choice. Thus, uncounseled incriminatory statements made by the suspect even during an “informal talk” with the police officer 141

1987 Const., Aticle III, Section 12, paragraphs (1) & (2).

142

1987 Const., Article, Section 17.

143

1987 Const., Article, Section 12,

144

People v. Alicando, G.R. No. 117487, December 12, 1995.

paragraph

(3).

145 Rules of Court, Rule 132, Section 36, (first paragraph). 146 Rules of Court, Rule 132, Section 36 (second paragraph). 147 Rules of Court, Rule 132, Section 36, (penultimate paragraph).

20

148

People v. Quidato, G.R No. 117401, October 1, 1998 citing Constitution, Article III, Sec. 12(1) and (3); People v. Cabintoy, 247 SCRA 442 (1995).

149

People v. Tan, 286 SCRA 207 [1998]; People v. Bariquit, G.R. No. 122733, October 2, 2000; People v. Salcedo, G.R. No. 100920, June 17, 1997 citing . People v. Cabintoy, 247 SCRA 442, 449, August 21, 1995; People v. Bandula, 232 SCRA 566, 574-576, May 27, 1994; People v. Rodrigueza 205 SCRA 791, 797, February 4, 1992.

150

People v. Mutuc, G.R. No. L-37578. April 24, 1984

151

People v. Camat, G.R. No. 112262, April 2, 1996 citing People v. Pineda, G.R. No. 72400, January 15, 1988, 157 SCRA 71.

152

People v. Mojello, G.R. No. 145566, March 9, 2004

153

People v. Hernandez, G.R. No. 117624, December 4, 1997 citing People v. Aquino, 186 SCRA 851, 859-860 [1990], citing People v. Layuso, 175 SCRA 47, 53 [1989], and Gamboa v. Cruz, et al., 162 SCRA 642 [1988].

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The Current State of the Law on Custodial Investigation

after his arrest and while in police custody, are inadmissible.154 The presumption now, in contradistinction to “voluntariness and spontaneity” is that uncounseled admission is coerced, “the very evil the rule stands to avoid.”155 If the uncounseled confession is admitted by the trial court despite objection, its inadmissibility may be raised in a demurrer to evidence if the uncounseled statement is the backbone of the prosecution’s case without which it cannot convict156 or raised during the appeal as one of accused’s assignments of errors.157 While the special civil actions for certiorari and prohibition are not proper remedies against the interlocutory order denying a motion to acquit which is in the nature of a demurrer to evidence,158 such remedies may be resorted to when the order denying a demurrer to evidence amounts to grave abuse of discretion which divests the court of its jurisdiction.159 Crimes Against the Detaining Officers The concerned officer who fails to inform the person under custodial investigation of his right to remain silent and to counsel or who fails to provide competent and independent counsel if the suspect cannot afford the services of his own counsel, incurs criminal liability punishable by a fine of Six Thousand Pesos (P6,000.00) or by imprisonment of not less than eight (8) years but not more than ten (10) years. A lower penalty of a fine of Four Thousand Pesos (P4,000.00) and imprisonment of not less than four (4) years nor more than six (6) years shall be imposed upon “any person who obstructs, prevents or prohibits any lawyer, member of the immediate family, any medical doctor, priest, or religious minister from visiting and conferring privately with the suspect, or from examining and treating him, or from ministering to his spiritual needs at any hour of the day or, in urgent cases, of the night.”160 Any person who violates any provision of Republic Act No. 9344, also known as the Juvenile Justice and Welfare Act of 2005 and any rule or regulation promulgated in accordance thereof, which includes, therefore, detaining a child beyond the period allowed in the said law, shall be punished by a fine of not less than Twenty Thousand Pesos (P20,000.00) but not more than Fifty Thousand Pesos (P50,000.00) or imprisonment of not less than eight (8) years but not more than ten (10) years, or both, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he shall in addition to these penalties, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.161 154

People v. Bravo, G.R. No. 135562, November 22, 1999.

155

People v. Bravo, G.R. No. 135562, November 22, 1999.

156

People v. Garcia, G.R. No. 145176, March 30, 2004. N.B. The demurrer to evidence was denied in this case because the inadmissibility of the confession did not become apparent until after the defense presented its case. Thus, if such inadmissibility is clear even during presentation by the prosecution of its witnesses, the demurrer may be sustained.

157

Aballe v. People, G.R. No. 64086, March 15, 1990; People v. Enciso, G.R. No. 77685, April 15, 1988.

158

Gamboa v. Cruz, G.R. No. 56291, June 27, 1988.

159

Katigbak v. Sandiganbyan, G.R. No. 140183, July 10, 2003.

160

Republic Act No. 7438,. Sec. 4. Penalty Clause.

161

Republic Act No. 9344, Section 62.

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Oscar G. Raro

Under the Anti-Enforced or Involuntary Disappearance Act of 2012, agents of the State or any person who are authorized, supported, or tolerated by acquiescence of the State who (1) arrests, abducts, detains, or deprives a person of liberty in any form; (2) refuses to even acknowledge such deprivation of liberty; and (3) even conceals the fate and whereabouts of the person detained to be reachable by suitable legal process or protection of the law,162 shall be penalized by reclusion temporal to reclusion perpetua, depending upon their degree of participation.163 For delay in the delivery of detained persons within the period allowed under Article 125 of the Revised Penal Code, the detaining officer shall be liable for arbitrary detention, punishable by a penalty of arresto mayor to reclusion temporal depending upon the duration of the detention.164 In extreme cases when the person detained is tortured as defined in the law,165 the 162

Republic Act No. 10353, also known as the “Anti-Enforced or Involuntary Disappearance Act of 2012,” Section 3 (b).

163

Republic Act No. 10353, also known as the “Anti-Enforced or Involuntary Disappearance Act of 2012,” Section 15:



SEC. 15. Penal Provisions. – (a) The penalty of  reclusion perpetua and its accessory penalties shall be imposed upon the following persons: (1) Those who directly committed the act of enforced or involuntary disappearance; (2) Those who directly forced, instigated, encouraged or induced others to commit the act of enforced or involuntary disappearance; (3) Those who cooperated in the act of enforced or involuntary disappearance by committing another act without which the act of enforced or involuntary disappearance would not have been consummated; (4) Those officials who allowed the act or abetted in the consummation of enforced or involuntary disappearance when it is within their power to stop or uncover the commission thereof; and (5) Those who cooperated in the execution of the act of enforced or involuntary disappearance by previous or simultaneous acts.



(b) The penalty of  reclusion temporal and its accessory penalties shall be imposed upon those who shall commit the act of enforced or involuntary disappearance in the attempted stage as provided for and defined under Article 6 of the Revised Penal Code.



(c) The penalty of  reclusion temporal and its accessory penalties shall also be imposed upon persons who, having knowledge of the act of enforced or involuntary disappearance and without having participated therein, either as principals or accomplices, took part subsequent to its commission in any of the following manner: (1) By themselves profiting from or assisting the offender to profit from the effects of the act of enforced or involuntary disappearance; (2) By concealing the act of enforced or involuntary disappearance and/or destroying the effects or instruments thereof in order to prevent its discovery; or (3) By harboring, concealing or assisting in the escape of the principal/s in the act of enforced or involuntary disappearance, provided such accessory acts are done with the abuse of official functions.



(d) The penalty of  prision correctional and its accessory penalties shall be imposed against persons who defy, ignore or unduly delay compliance with any order duly issued or promulgated pursuant to the writs of  habeas corpus, amparo and habeas data or their respective proceedings.



(e) The penalty of  arresto mayor and its accessory penalties shall be imposed against any person who shall violate the provisions of Sections 6, 7, 8, 9 and 10 of this Act.

164 Revised Penal Code, Article 124. 165

22

Republic Act No. 9745, known as the “Anti-Torture Act of 2009,” Sections 3 & 4.

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persons liable shall be penalized by prision correccional to reclusion perpetua, depending upon the degree of participation.166 Writs of Habeas Corpus and Amparo The aggrieved party may avail of the writ of habeas corpus167 and writ of amparo168 depending on whether the case is for an illegal arrest, detention, abduction, and disappearance. 166

Republic Act No. 9745, known as the “Anti-Torture Act of 2009,” Section 14:



Section 14. Penalties. - (a) The penalty of reclusion perpetua shall be imposed upon the perpetrators of the following acts: (1) (2) (3) (4)

Torture resulting in the death of any person; Torture resulting in mutilation; Torture with rape; Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and (5) Torture committed against children. (b) The penalty of reclusion temporal shall be imposed on those who commit any act of mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.

(c) The penalty of prision correccional shall be imposed on those who commit any act of torture resulting in psychological, mental and emotional harm other than those described 1n paragraph (b) of this section.



(d) The penalty of prision mayor in its medium and maximum periods shall be imposed if, in consequence of torture, the victim shall have lost the power of speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have lost the use of any such member; Or shall have become permanently incapacitated for labor.



(e) The penalty of prision mayor in its minimum and medium periods shall be imposed if, in consequence of torture, the victim shall have become deformed or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or incapacitated for labor for a period of more than ninety (90) days.



(f) The penalty of prision correccional in its maximum period to prision mayor in its minimum period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for mare than thirty (30) days but not more than ninety (90) days.



(g) The penalty of prision correccional in its minimum and medium period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) days or less.



(h) The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or degrading treatment or punishment as defined in Section 5 of this Act.



(i) The penalty of prision correccional shall be imposed upon those who establish, operate and maintain secret detention places and/or effect or cause to effect solitary confinement, incommunicado or other similar forms of prohibited detention as provided in Section 7 of this Act where torture may be carried out with impunity.



(j) The penalty of arresto mayor shall be imposed upon the responsible officers or personnel of the AFP, the PNP and other law enforcement agencies for failure to perform his/her duty to maintain, submit or make available to the public an updated list of detention centers and facilities with the corresponding data on the prisoners or detainees incarcerated or detained therein, pursuant to Section 7 of this Act.

167

Rules of Court, Rule 102.

168

Rule on the Writ of Amparo which took effect on October 24, 2007.

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Oscar G. Raro

The special proceeding for a writ of habeas corpus is available to any person whose liberty is unlawfully restrained.169 It extends to all cases of illegal confinement or detention170 including those from wrongful conviction because the constitutional right of the accused against self-incrimination has been violated.171 When the detention is legal, however, habeas corpus will not lie.172 Thus: In passing upon a petition for habeas corpus, the Court must determine whether: (1) the person in whose behalf the application is made is imprisoned or restrained of his liberty; (2) the name of the person detaining another; (3) the place where he is imprisoned or restrained of his liberty; (4) the cause of his detention (Section 3, Rule 102, Revised Rules of Court). Only if the Court is satisfied that a person is unlawfully restrained of his liberty that the petition for habeas corpus will be granted and the person detained will be released from confinement (Gonzales v. Viola, 61 Phil. 824). If the respondents are not detaining nor restraining the applicants or the person in whose behalf the petition for habeas corpus is filed the petition should be dismissed. (In the Matter of the Petition for Habeas Corpus of Ferdinand E. Marcos, etc. v. Executive Secretary Catalino Macaraig, May 18, 1989, G.R. No. 88079, En Banc, Minute Resolution).173 The writ of amparo is available when a person’s right “to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.” It covers “extralegal killings and enforced disappearances or threats thereof.”174 Before the institution of this writ in 2007, the Supreme Court in one case stated that in cases of forcible taking and disappearance — not arrest and detention — the proper remedy is not habeas corpus, “but criminal investigation and proceedings.”175 Now, cases of disappearance are no longer limited to “criminal investigation.” The writ of amparo is now a specific remedy for such cases. A person abducted but was released later, may still avail of the writ as he continues to be “under threat of being once again abducted, kept captive or even killed which constitute a direct violation of his right to security of person.”176 Civil Action for Damages and Rehabilitation The constitutional provision provides for civil, aside from penal, sanctions against violators of the rights of persons under custodial investigation. The right to compensation for rehabilitation is likewise provided for victims of torture.177 169

In Re: Daniel Ngaya-an v. Balweg, G.R. No. 80591, August 5, 1991.

170

Office of the Solicitor General v. De Castro, A.M. No. RTJ-06-2018, August 3, 2007.

171 ������������������������������������������������������������������������������������������������������ Chavez v. Court of Appeals, G.R. No. 29169, August 19, 1968; In Re: The Writ of Habeas Corpus for Reynaldo De Villa, G.R. No. 158802, November 17, 2004.

24

172

Villegas v. Montaño, G.R. No. 59962, September 21, 1982.

173

In Re: Daniel Ngaya-an v. Balweg, G.R. No. 80591, August 5, 1991

174

Rule on the Writ of Amparo, Section 1.

175

Martinez v. Mendoza, G.R. No. 153795, August 17, 2006.

176

Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008.

177

1987 Const., Article III, Section 12 (4).

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Violations of constitutional rights, specifically the right to be secure in one’s person178 179 and the freedom from arbitrary or illegal detention, ��� give rise to causes of action for damages. These causes of action for damages exist even when the illegal arrest and detention are committed during a period of suspension of the writ of habeas corpus.180 With respect to compensation for rehabilitation of victims of torture, the AntiTorture Act of 2009 provides that “any person who has suffered torture shall have the right to claim for compensation under Republic Act No. 7309181 which compensation “shall not be any lower than Ten Thousand Pesos (P10,000.00).” Likewise, to attain restorative justice, the Implementing Rules of the Anti-Torture Act of 2009 mandate that “rehabilitation programs shall be provided for the physical, psychological, and social healing and development of victims of torture and their families.”182 •••

•••

178

Civil Code, Article 32 (9).

179

Civil Code, Article 32 (4).

180

Aberca v. Ver, G.R. NO. 69866, April 15, 1988.

181

An Act Creating a Board of Claims Under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes.

182

Implementing Rules of the Anti-Torture Act of 2009, Sections 37, 39, 40, and 41.

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Patricia R.P. Salvador Daway

Constitutional Guarantees for Workers* Patricia R.P. Salvador Daway**

We take this opportunity to reaffirm our concern for the lowly worker who, often at the mercy of his employers, must look up to the law for his protection. Fittingly, that law regards him with tenderness and even favor and always with faith and hope in his capacity to help in shaping the nation’s future. It is error to take him for granted. He deserves our abiding respect. How society treats him will determine whether the knife in his hands shall be a caring tool for beauty and progress or an angry weapon of defiance and revenge. The choice is obvious, of course. If we cherish him as we should, we must resolve to lighten “the weight of centuries” of exploitation and disdain that bends his back but does not bow his head.1 I. INTRODUCTION Laws related to workers’ protection, beginning with the fundamental laws of the land have been passed within the context of labor being the disadvantaged sector vis-à-vis the employers who own the means of production and are therefore in a position to dictate the terms and conditions of the employer-employee relationship. The situation is such that the have-nots are practically pitted against the haves, that is, the powerful employers who have all the resources at their beck and call (including, lands and buildings, machineries, tools and implements, etc.) as against the poor workers who can only offer their labor or services. The fact is, there is an inherent inequality between labor and capital/the worker and the employer. Another fact is that the employer operates mainly for profit, certainly not for charity. As noted by the Supreme Court, “[E]very business enterprise endeavors to increase its profits.”2 Management prerogative or the employer’s right to regulate all aspects of employment from hiring to firing and everything in between, stems from ownership. For as long as exercised in good faith and not for purposes of defeating workers’ rights, the exercise of management prerogative will be upheld by the Supreme Court.3 No less the Constitution guarantees the employer’s right to reasonable returns on investments although in tandem with the corollary right of the worker to receive a just share in the fruits of production.4 The employer would always resort to cost-cutting measures in order to lower costs and maximize his profits. The first item that he would normally look at would be the labor

26

*

��������������������������������������������������������������������������������������������������������� Paper Presented at the “Beyond 2010: Leadership for the Next Generation”, Labor Panel, U.P. Academic Congress, February 1-5, 2010, U.P. College of Law.

**

Associate Dean, U.P. College of Law

1

Cebu Royal Plant (San Miguel Corporation) v. The Hon. Dep. Minister of Labor and Ramon Pilones, G.R. No. L-58639, August 12, 1987

2

San Miguel Brewery Sales Force Union (PTGWO) v. Ople, G.R. 53515, 8 February 1989.

3

St. Luke’s Medical Center Employees’ Association –AFW v. NLRC, 517 SCRA 677, 689 (2007)

4

Const., Art. XIII, par. 4.

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costs, whenever operations become uneconomic.5 Consequently, although the workers are entitled to a just return for their labor, they instead become most vulnerable to abuses and exploitation. They thus need to be empowered to redress the inequality and in order to promote a healthy, symbiotic relationship with the employer; otherwise, it will remain to be an uneven contest. To this end, the law has to step in to at least level the playing field and thus promote peace in the industrial front, the end objective of the Constitutional provision affording full protection to labor6 and for that matter, labor legislation which governs the relationship between labor and capital. II. CONSTITUTIONAL MANDATE: FULL PROTECTION The framers of our present Constitution took pains enshrining therein provisions which are meant to empower the labor sector, local and overseas, organized and unorganized. Highly significant are the provisions related to: 1. Affirmation of labor as a primary social economic force, consequent to which, it is the policy of the State to protect workers’ rights to promote their welfare.7 2. Affording full protection to workers,8 the overriding concern which has been enshrined in the Constitution. As aptly stated by Justice Cecilia MuñozPalma, the President of the Constitutional Commission of 1986, Article XIII which is entitled Social Justice and Human Rights, is “the heart of the entire Constitution”.9 Emphasis is in order for the qualifying term “full” which is not found in the 1935 and 1973 Constitution, indicating the pro-poor stance of the framers of the 1987 Constitution and the intention to afford full protection to the most vulnerable sector in Philippine society. 3. The primacy of the seven cardinal rights of workers. These are as follows: (a) the right to self-organization; (b) the right to collective bargaining and negotiations; (c) the right to peaceful concerted activities, including the right to strike in accordance with law; (d) the right to security of tenure; (e) the right to humane conditions of work; (f) the right to a living wage; and (g) the right to participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.10

5

P.V. Fernandez, Labor Relations Law (Rev. Ed.)

6

Const., Art. XIII, Sec. 3, par. 3.

7

Const., Art. II, Sec. 18.

8

Const., Art. XIII, Sec. 3.

9

Journal of the Constitutional Commission, Vol. 3, p. 1800.

10

Const., Art. XIII, Sec. 3, par. 2.

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Patricia R.P. Salvador Daway

III. WORKERS’ CONCERNS While the foregoing cardinal rights are guaranteed in full by the Constitution to all workers, local or overseas, organized or unorganized, the questions that have bedeviled the lowly workers in the actual workplace concern their practical application. Thus: Are these rights actually enjoyed by the workers in the workplace OR are they more honored in the violation? Are they for real OR more of lofty ideals, motherhood statements or in a manner of speaking, mere illusion? IV. WORKERS’ RIGHTS UNDER THE CONSTITUTION The three rights related to trade unionism are first in the list of constitutional guarantees. As held by the Supreme Court, “[t]here is both a constitutional and statutory recognition that laborers have the right to form unions to take care of their interests visa-vis their employers.”11 A. The Right To Self-Organization As explained during the deliberations for the 1987 Constitution, it is important to guarantee the right of workers to self-organization because once organized, the possibility of workers’ participation becomes more real and effective.”12 The Labor Code underscores the importance of this right by providing for its non-abridgment under Art 246. Hence, “[I]t shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization.” Art. 246 elaborates on its scope which “shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection.” Such is the magnitude of this right that the Court declared that “the right of members of the [Iglesia ni Kristo] not to join a labor union for being contrary to their religious beliefs, does not bar the members of that sect from forming their own union.”13 In a recent case14, the Court said that “[t]he provision in the CBA disqualifying probationary employees from voting cannot override the Constitutionally-protected right of workers to self-organization, as well as the provisions of the Labor Code and its Implementing Rules on certification elections and jurisprudence thereon.” In the landmark case of Reyes v. Trajano, the Court explained: [i]t is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. The fact that a person has opted to acquire membership in a labor union does not preclude his subsequently opting to renounce such membership.”15

28

11

Pan American World Airways, Inc. v. Pan Amer. Employees Association, G.R. No. L-25094, Apr 29, 1969

12

R.C.C. NO. 47, August 4, 1986

13

Kapatiran sa Meat & Canning Division v. Calleja, G.R. 82914, June 20, 1998

14

National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009

15

G.R. No. 84433, June 2, 1992

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Constitutional Guarantees for Workers

B. The Right To Collective Bargaining And Negotiations The policy of the State is to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes16. Collective bargaining, defined as “negotiations towards a collective agreement, is one of the democratic frameworks under the Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation.”17 In one case18, the Court found that in refusing to send a counter-proposal to the union and to bargain anew on the economic terms of the CBA, the company committed an unfair labor practice. It held that the employer’s refusal to make a counter-proposal “is an indication of its bad faith, x x x a clear evasion of the duty to bargain collectively.” In another case,19 the Court underscored the requirement on both parties of the performance of the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. Collective negotiations, an innovative concept which was introduced in the 1987 Constitution, is intended to address the difficulties of the non-unionized employees and laborers and second, that of the government employees.20 C. The Right To Peaceful Concerted Activities, Including The Right To Strike In Accordance With Law Article 263(b) of the Labor Code elaborates on the Constitutionally-enshrined right to peaceful concerted activities by providing that “[w]orkers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection.” It is said that the right to organize themselves carries with it the right to engage in concerted activities.21 Referring to the right to strike as constituting a signal victory for labor, Chief Justice Reynato S. Puno took occasion to elucidate that the “[s]trike has been considered the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment. It may be that in highly developed countries, the significance of strike as a coercive weapon has shrunk in view of the preference for more peaceful modes of settling labor disputes. In underdeveloped countries, however, where the economic crunch continues to enfeeble the already marginalized working class, the importance of the right to strike remains undiminished as indeed it has proved many a time as the only coercive weapon that can correct abuses against labor. It remains as the 16

Labor Code, Art. 211

17

Kiok Loy v. NLRC, G.R. L-54334, January 22, 1986.

18

General Milling Corporation v. Court of Appeals, G.R. No. 146728, February 11, 2004

19 ��������������������������������������������������������������������������������������������������������� Colegio de San Juan de Letran v. Association of Employees and Faculty of Letran, G.R. No. 141471, September 18, 2000; See also: Labor Code, Art. 252 20

R.C.C. No. 46, August 2, 1986

21

R.C.C. No. 36, July 22, 1986

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Patricia R.P. Salvador Daway

great equalizer.”22 In an earlier case23, the Court was emphatic that “[t]he right to strike is an instrument of labor for its protection against exploitation by management. By virtue of this right, the workers are able to press their demands for better terms of employment with more energy and persuasiveness, poising the threat to strike as their reaction to the employer’s intransigence. The strike is indeed a powerful weapon of the working class. But precisely because of this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers’ own hands”. As such and as explicitly provided in the Constitution, the right to strike can be exercised only within the parameters of law, rules and regulations.24 Hence, in one case where the strikers refused to dismantle the tent they put up at the employees’ entrance to the Hotel, prompting the guards to dismantle the tent during which the strikers as well as the guards were hit by rocks, resulting in physical injuries to some of them, the Court said that “[e]ven if the purpose of a strike is valid, the strike may still be held illegal where the means employed are illegal.”25 Because of the nature of strikes which may lead to serious economic repercussions, the Labor Code provides for assumption of jurisdiction by the Secretary of Labor in the so-called industries indispensable to the national interest (e.g., power distribution, transportation industries).26 Thus, “a strike that is undertaken, despite the issuance by the SOLE of an assumption or certification order, becomes a prohibited activity and thus, illegal pursuant to Article 264 of the Labor Code.”27 In November 2008, the Court handed down a decision28 that held that the union members’ act of shaving their heads was not a protected action. In holding that an illegal strike was held, the Court ruled that: “[T]he Union’s violation of the Hotel’s Grooming Standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the Hotel and was, therefore, not a protected action.” The Court concluded that “the Union’s concerted violation of the Hotel’s Grooming Standards which resulted in the temporary cessation and disruption of the Hotel’s operations is an unprotected act and should be considered as an illegal strike. Moreover, the concerted action to shave their heads and crop their hair violated the Union’s duty and responsibility to bargain in good faith.” 22

Bisig ng Manggagawa sa Concrete Aggregates, Inc. v. NLRC, G.R. No. 105090, September 16, 1993

23

BLTB v. NLRC, G.R. No. 101858, August 21, 1992

24

Labor Code, Arts. 264-265

25

Philippine Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union, G.R. No. 158075, June 30, 2006

26

Labor Code, Art. 263[g]

27

Grand Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel, Restaurant and Allied Industries, G.R. No. 153664, July 18, 2003S

28 ������������������������������������������������������������������������������������������������� NUWHRAIN-Dusit Hotel Nikko Chapter Union v. The Hon. Court of Appeals, NLRC, and Philippine Hoteliers, Inc. G.R. 163942, November 11, 2008

30

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Prof. Ibarra M. Gutierrez III of the UP College of Law writes and aptly so: “In finding that the act of coming to work with a shaved head, even without an express refusal to work, amounted to a strike as it forced the hotel to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, the Court has dramatically expanded the legal definition of strike.”29 Indeed, the Dusit Hotel decision has raised very serious concerns about how this interpretation will affect the erstwhile zealously guarded Constitutional protection to the exercise of freedom of speech and expression in the workplace. The fear is that by expanding the definition of a strike to any activity which may embarrass the employer, even activities as simple as the wearing of arm bands, may be construed as an illegal concerted activity even without actual stoppage of work which is the issue in any strike. STATISTICS RE EXERCISE OF TRADE UNION RIGHTS Background statistics which to a large extent indicate whether or not workers truly and actually enjoy their rights as enshrined in the Constitution and which after all are translated into more concrete terms in the Labor Code are provided by the Department of Labor and Employment (DOLE). The data cover a period of about ten (10) years, that is, beginning year 2000 until June or October 2009. 1. The right to self-organization vis-à-vis the number of existing unions and newly-registered unions 30

29

http://wherethesunbeats.wordpress.com/2009/01/28/stifling-free-speech-in-law-workplace/

30

http://www.bles.dole.gov.ph/2007 Publications/2007 LS/STATISTICAL TABLES/Chap 16/Tab16-1.xls.

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31

The first two graphs show the right to self-organization vis-à-vis the number of existing unions and newly-registered unions. In 2000, there were 10,296 existing unions. The number consistently increased each year until it reached 17,484, an almost 70 percent increase over a period of one decade. In 2000, there were 339 newly registered unions. Beginning 2005, the number decreased consistently and as of June 2009, only 180 was listed as newly registered, a decrease of 46.9 percent over the same period of time. What do the figures show? Over the last decade, the number of existing unions has been on the rise. At the same time, however, the number of newly registered unions has been declining. While the DOLE attributes the rise in the number of existing unions to the primacy mandated by law to be given to the right of self-organization, the decline in the number of newly-registered unions may indicate the workers’ growing distrust and frustration that unions are unable to better their terms and conditions of employment, most importantly in regard to wages. 2. The right to collective bargaining and negotiations vis-à-vis the number of existing CBAs and new CBAs filed

31

32

http://www.bles.dole.gov.ph/2007 Publications/2007 YLS/STATISTICAL TABLES/Chap 16/Tab16-1.xls.

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33

The third and fourth graphs depict the right to collective bargaining and negotiations vis-à-vis the number of existing CBAs and new CBAs that have been filed. We started with 2,687 CBAs in 2000. Beginning 2004, the number decreased each year. By June 2009, it was down to 1,430, or a 46.78 percent decrease over the same period of one decade. In 2009, the number of new CBAs filed was 419. The number fluctuated each year. By June 2009, it registered at 225, a 46.39 percent decrease over the same period of time. 32

http://www.bles.dole.gov.ph/2007 Publications/2007 YLS STATISTICAL TABLES/Chap 17/Tab17-1.xls and

33

http://www.bles.dole.gov.phCurrent Labor Statistics/oct09/Tab46.pdf

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The figures show that over the last ten years, there has been a sharp decline in the number of both existing CBAs and newly-filed CBAs. The DOLE claims that this may be brought about by the prevalence of CBA deadlocks. But the real cause may be that workers are unable to secure for themselves through their CBAs better terms and condition of employment which are truly satisfactory to them. 3. The right to peaceful concerted activities, including the right to strike vis-à-vis the number of strike/lockout notices filed and actual strikes/lockouts 34

35

34

34

http://www.bles.dole.gov.ph/2007 Publications/2007 YLS/STATISTICAL TABLE/Chap 17/Tab17-1.xls and

35

http://www.bles.dole.gov.ph/Current Labor Statistics/oct09/Tab46.pdf.

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The fifth and sixth graphs relate to the right to peaceful concerted activities, including the right to strike vis-à-vis the number of notices of strike/lockout as well as actual strikes/lockouts. In 2000, there were 734 notices of strike/lockout that were filed. Decreasing each year beginning 2003 (except for 2008), the graph shows that the number is down to 254 by October 2009, or a decrease of 65.4 percent over a period of one decade. Over the last decade, there has been a sharp decline in the number of strike/ lockout notices and actual strikes/lockouts. It is said that this is brought about by the stringent rules and regulations set forth when it comes to strikes and concerted activities. As regards actual strikes/lockouts, the graph shows 60 in 2000. Here, we have a consistent yearly decline such that by October 2009, only 4 actual strikes/lockouts were listed. Of course, the sharp decline, that is, a staggering decrease of 93.3 percent over the same period of time, may be attributed to the workers’ growing maturity considering the state of Philippine economy vis-à-vis the global financial debacle, although the unions claim that the sharp decline is more indicative of labor repression. A union leader referred to the situation as the “peace of the grave with the right to strike being buried six feet under the ground through the (Labor Secretary’s) power to assume jurisdiction.”36 (Words in parenthesis supplied) Violations Of Rights Of Trade Unionists The International Labour Organization (ILO)37 has asked the Philippine Government to investigate numerous reports covering serious violations of trade union rights. These include killings, attempted murders, death threats, abductions, disappearances, assaults, torture, military interference in trade union activities, violent police dispersal of marches and pickets, arrests of trade union leaders in connection with their activities and widespread impunity for the perpetration of such acts. Despite measures previously announced by the Government to address the issues, the Committee noted that there is an “abysmal failure” to investigate or prosecute the perpetrators of such acts, which has led to a climate of impunity and impassivity in the face of continuing violence against unionists. Also noted are violent dispersals of workers’ protests, intimidation, threats and blacklisting of trade unionists, militarization of workplaces especially in export processing zones (EPZS) and special economic zones, and constant surveillance and harassment of trade unions opposing the economic development model and their leaders. “[W]ith a view to putting an immediate end to the climate of violence and impunity which is extremely damaging to the exercise of trade union rights”, the ILO Committee requested the Government among others, to ensure the prompt investigation, prosecution, trial and conviction of those found guilty of violations of fundamental human rights against trade unionists.

36

Veronica Uy. “DOLE Assumes Jurisdiction of PNCC-Skyway Labor Tiff.” Inquirer.net. http

37

Report of the Committee on Experts on the Application of Convention and Recommendations. ILO 98th Session, 2009. nhttp://www.ilo.org/wcmsp5/groups/public---ed_norm/---relconf/documents/meetingdocument/wcms_103484.pdf

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D. The Right to Security of Tenure Tenure in employment means the right to continue in employment until the same is terminated under conditions required by law. Article XIII, Section 3 of the Constitution guarantees to workers security of tenure.38 The Labor Code provides in Art. 279 that “[i]n cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title.” Affirming that the policy of the State is to assure workers of “security of tenure”, the Court reiterated that “the guarantee is an act of social justice”, explaining that “[w]hen a person has no property, his job may possibly be his only possession or means of livelihood” and the worker should therefore “be protected against any arbitrary deprivation of his job”.39 In a later case, the Court held that “[s]ecurity of tenure is a right which may not be denied on mere speculation of any unclear and nebulous basis”.40 While the Labor Code seems to limit the right of security of tenure to regular employment, it is clear from the Constitution as well as Supreme Court decisions that the right not to be dismissed except for a just or authorized cause and after observance of due process extends to temporary employment (project, seasonal employees, probationary, casual and fixed term employees), to the extent of the period of their employment. Moreover, a temporary employment may, under certain conditions, be treated as regular employment. In Philips Semiconductors (Phils.), Inc. vs. Eloisa Fadriquela,41 the Court held that such “continuing need for the services of the respondent is sufficient evidence of the necessity and indispensability of her services to the petitioner’s business, and that by operation of law, the respondent had attained the regular status of her employment with the petitioner.” Citing the landmark case of Brent School, Inc. v. Zamora42, the Court proclaimed in Romares v. NLRC,43 that “where from the circumstances, it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy and morals”. The Problem of Contractualization Despite the clear mandate of the Constitution, employers have been circumventing the tenurial security rights of workers. As noted by a foremost labor leader, companies hire and fire people at any time without providing a reason, by employing them in fivemonth contracts, even if their services are necessary and desirable in the nature of the business they work under. He adds that workers take these jobs out of desperation as these

36

38

Palmeria vs. NLRC, 247 SCRA 57

39

Philippine Geothermal, Inc. vs. NLRC, 189 SCRA 211 (1990).

40

Escareal vs. National Labor Relations Commission, G.R. No. 99359, 02 September 1992.

41

G.R. No. 141717, 14 April 2004.

42

G.R. No. L-48494, 05 February 1990

43

294 SCRA 411 (1998)

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are offered on a “take it or leave it” basis; there are others in line, more desperate.44 No less the Senate of the Philippine lamented that “contractualization continues to be the norm among some private sector entities, citing the global economic crisis.” Expressing their dismay, several legislators noted that this “regime of unequitable labor arrangements” is easing out long-term jobs in favor of temporary and contractual employment.45 One Senator stated that putting an end to contractualization is a concrete measure to improve the quality of life of Filipino workers because they will become eligible for social security and health benefits. The more militant groups, of course, minced no words in claiming that contractualization is one of the leading systems used by capitalists to further exploit and oppress workers.46 They aver that contractualization worsens the oppression of workers through practices which follow: (1) firing regulars and replacing them with contractuals, or firing regulars and rehiring them as mere contractuals; (2) hiring contractuals on condition that they do not join unions; (3) maintaining workers as contractuals despite years of working with the company; (4) requiring workers to sign undated or postdated letters of resignation that may be used to fire them or serve as a constant threat that they could be fired whenever the capitalist decides on it; or (5) requiring workers to sign, blank or doctored payrolls to make it appear that they receive wages higher than what they actually get or agreements ceding all their rights to the capitalist. The Asian Development Bank which funds a host of projects in the Philippines has recognized the plight of temporary workers and has called for a review and comparison of the benefits enjoyed by all workers, permanent and temporary, including health and safety, social and security benefits with due consideration to the regularity of work, the nature of the task, and the skill involved.47 E. The Right To Humane Conditions Of Work This right ensures that working conditions take into account the health, safety and welfare of workers. The Labor Code is replete with provisions that address this concern. The entire Book IV on Health, Safety and Social Welfare Benefits relates to medical and dental services, occupational health and safety, and a compensation program for employees and their dependents in the event of work-connected disability or death. In addition to the Labor Code, there are also several other legislations protecting the worker’s welfare. These include the Social Security Law, the GSIS Law, and the National Health Insurance Act. The Bureau of Working Conditions of the Department of Labor and Employment (DOLE) summarizes the basic rights of workers related to the right to humane conditions 44

E.F. Herrera, Contractualization makes services suffer and loses customers, Policy Peek, The Manila Times, 02 Sept 2008) http://www.manilatimes.net/national/2008/sep/02/yehey/opinion/20080902opi2.html.

45

Senate of the Philippines, Press Release of November 10, 2009. Better Quality of Life for Workers, Higher Gov’t Revenues Pushed. Available online at http://www.congress.gov.ph.

46

Available online: http://www.philippinerevolution.net/cgi-bin/ab/text.pl?issue=200204;lang=eng;article=03

47

ADB –ILO Core Labor Standards Handbook (2006)

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of work in the following manner: (a) hours of work: normal working hours of 8 hours a day; compensable meal break of less than one hour and short rest period; (b) weekly rest days: a day-off of 24 consecutive hours after six days of work to be scheduled by the employer upon consultation with the workers; (c) provision of welfare facilities at the workplace, especially for pregnant women; (d) prohibition against discrimination based on sex; (e) prohibition against employment of young workers in hazardous undertakings; (f) safe and healthful conditions of work and welfare services: proper illumination and ventilation, fire exits and extinguishers, occupational health personnel and services, family planning/family welfare services at the workplace, etc. Despite what are clearly provided in the black letter law, a 2002 study48 conducted by the Trade Union Congress of the Philippines (TUCP) and Solidarity Center (ACILS) shows that almost 40% of the surveyed EPZ companies imposed forced overtime and non-payment or underpayment of overtime in contravention of the Labor Code. Virtually all companies (96%) violated basic occupational health and safety standards in terms of heat, noise or security equipment. Another in- fringement is that one out of three ecozone firms evaded payment of government- mandated health benefits and social security insurance for their employees. F. Right To A Living Wage During the ConCom deliberations, it was agreed that the term “living wage” should include not only food and recreation but also social and religious opportunities not only for the worker but also for his wife and his family.49 In a study entitled Development of Methodology for Estimating the Living Wage by the National Wages and Productivity Commission,50 “living wage” was defined as the amount of family income needed to provide for the family’s food and non-food expenditures with sufficient allowance for savings/investments for social security so as to enable the family to live and maintain a decent standard of human existence beyond mere subsistence level, taking into account all of the family’s physiological, social and other needs. The current family living wage is estimated using the family size of six (6), and is computed on a regional basis. Under Senate Bill No. 1393, the proposed “Living Wage Act of 2007”, the term living wage shall not be synonymous with and is distinguished from the concept of minimum wage as provided under labor laws, rules and regulations. For the year 2009, despite the Labor sector’s adamant demand for wage increases, no such increases were mandated. The minimum wage levels from NCR to CAR to ARMM, stood still at the level mandated in June 2008. At present, NCR has the highest minimum wage rate at P382 per month for the non-agricultural sector and P345 for the agricultural sector while ARMM has the lowest at P210 per month for both the non-agricultural and

38

48

Jobs, sweat(shops) and tears. Trade Union World Briefing Magazine of the International Confederation of Free Trade Unions (ICFTU), November 2005, No. 14

49

III Record of the Constitutional Commission, page 77.

50

Executive Summary available online at http://www.ilsdole.gov.ph/PAPs/ResCon/rcon_011s2.htm

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agricultural sectors. In NCR, therefore, the minimum wage earner who works from Monday to Saturday expects to earn approximately P9,932 per month and should be able to feed, clothe, house, educate his family of six with this total amount. G. The Right To Participate In Policy And Decision-Making Processes Affecting Their Rights And Benefits As per ConCom records, this constitutional guarantee would require that workers be consulted on matters pertaining to their interests. The parameters would be references to negotiations towards the CBA and its terms, covering grievance machineries and voluntary modes of settling labor disputes and the conciliation proceedings which can be initiated and mediated by the Ministry of Labor.”51 An amendment introduced by RA 6715 in 1989 to the Labor Code reiterates this constitutional guarantee and explicitly allows workers and employers to form labormanagement councils. In a case involving Philippine Airlines, Inc.,52 the Court held that “a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of the employees.” The Court affirmed the NLRC ruling that the New Code of Discipline unilaterally formulated by the employer company should be reviewed and discussed with complainant union, particularly the disputed provisions; and that thereafter, the employer should furnish each employee with a copy of the said Code of Discipline. The Court agreed with the observations that management can no longer exclude labor in the deliberation and adoption of rules and regulations that will affect them. The PAL decision should be distinguished from San Miguel Brewery Sales Force Union (PTGWO) case53 where the Court recognized management prerogatives and ruled that the implementation of the new marketing scheme known as the “Comprehensive Distribution System” did not violate the CBA nor amount to unfair labor practice. In the said case, the Court recognized and upheld the authority and power of the employer to make policy, without the workers’ participation, since the questioned policy dealt primarily with the company’s sales operations and not workers’ rights and benefits.

51

II Record of the Constitutional Commission, page 759.

52

Philippine Airlnes, Inc. (PAL) vs. National Labor Relations Commission, G.R. No. 85985, 13 August 1993.

53

Supra, Note No. 2 at 1

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V. CHALLENGES TO THE NEXT ADMINISTRATION A. Awareness Building The dignity of labor entitles workers not only to the just reward for their hard labor but likewise, to their rightful place in society as the primary social economic force.54 Longoverdue are concrete measures that would significantly raise the level of consciousness, awareness of every Filipino that the workers play an indispensable role in bringing progress, prosperity to our fledgling economy. This will require a change in the psyche, attitudes, values of not only the social partners but more so, of every Filipino consistent with the Constitutional provision mandating the legislature “to give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity” (underscoring supplied.)55 In order to address the need for a massive information dissemination campaign in this regard, school curriculum beginning at the elementary level should be revised so as to include courses on the role of workers in national development with emphasis on their rights guaranteed under the Constitution. Moreover, media participation should be encouraged in order to educate the community at large. Likewise, there is a need to underscore the symbiotic relationship between the worker and the employer. Rather than a contest, the “protagonists” should be regarded as partners in nation-building for the greatest good of the greatest number (general welfare) based on social justice, the classic definition of which states that it is neither communism, nor despotism, nor anarchy nor atomism, but the humanization of laws and the equalization of social and economic forces so that justice in its objectively secular conception may at least be approximated. 56 B. Focused Partnership 1. While tripartism may have its advantages, there is a need to seriously and effectively sensitize government agencies, officials and employees to the problems and concerns of workers and to this end, rationalize government machinery for the more effective enforcement and safeguarding of workers’ rights including adequate legal assistance and access to the courts and quasi-judicial bodies.57 This will entail an efficient machinery complete with committed officials and personnel to minimize or possibly even eradicate graft and corruption in the Labor courts. 2. The Government should address areas of grave concern: violations of human rights, contractualization, contract violation, and considering the magnitude of the problems attendant to the migration phenomenon, illegal recruitment. Moreover, governmental intervention resulting in assumption/compulsory arbitration should be limited to essential services — electricity, water, hospitals, and transportation services.

40

54

Const., Art. XIII, Sec. 3, par. 4; Art. II, Sec. 18

55

Const., Art. XIII, Sec. 1, par. 1.

56

Calalang vs. Williams, 70 Phil. 726 (1940).

57

Const., Art. III, Sec. 11.

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3. Furthermore, all alternative voluntary modes of dispute settlement should be pursued with more vigor consistent with the fundamental law.58 4. Focus on the most marginalized, neglected sectors in the Philippine society will indicate the new government’s pro-poor stance, a must for ours is a country with teeming millions of poor Filipinos.

Thus, relative to rural workers there is a need for the formulation of a law that will address the peculiar needs of the fisherfolks, farm hands, etc. considering that the Labor Code is more specific to the concerns of industrial workers. As regards domestic helpers, the country is in need of a law which will upgrade the minimum standards for the terms and conditions of employment of domestic helpers including the grant of the 13th month pay and shorter hours of work.

5. Attendant to the impact of globalization, government should provide more training and retraining activities and skills upgrading if our workers are to remain competitive in the market and be effective agents of economic growth. C. Paradigm Shift The 1.5 million increase in the workforce (from 57.8M in 2008 to 59.3M in 2009) visà-vis 971,000 new jobs left a big percentage of jobless young people. To date, our country remains largely agricultural. Government has to focus on this sector, find ways and means to create job opportunities for our 2.8 million jobless fellow Filipinos, most of whom are young men, uneducated or undereducated and will not therefore qualify for the BPO industry to which a lot of hopes have recently been pinned.59 To accomplish these and many other concerns, the next administration should exhibit the POLITICAL WILL to make a difference, no matter who or what gets in the way — after all, at stake is our national development, essential to which is the indispensable participation of its primary social economic resource, the workforce. ***GOD BLESS THE PHILIPPINES*** •••

•••

58

Const., Art. XIII, Sec. 3, par. 3.

59

C.F. Habito, “How Workers Fared in 2009”, PDI (Jan. 25, 2010, p. B2)

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Nasser A. Marohomsalic

The Status and the Rights of Women in Islam Nasser A. Marohomsalic*

From the dawn of history down into the industrial revolution and contemporary times, society has been patriarchal, most largely patriarchal, in fact, in remote times, with human rights for women at best some trimmings in the throne of men. Worse, they were relegated to an order of lesser critters, assigned to menial work and flogged for venial sins. Pre-Islamic Arabia In the land of Prophet Muhammad and before his viceregency, Arab men were bane to their women.1 They married off their daughters to whoever could put up a handsome dowry or to anybody for their own reasons like they were disposing some broken earthenware. A matrimonial system existed where a man could give away his wife on loan to another man and keep away from her and a group of men could marry a woman.2 Women pegged some value as a prized trophy in clan and tribal wars. Titles to social ranks and wealth were passed to the male heirs. Even the rich and the powerful among the Quraish did not lavish their women.3 Female infanticide was not uncommon. Gender Equality The advent of Islam in the seventh century swept away the dregs of the old ways. In his early 50s, Muhammad founded the city-state of Madinah and governed by the rules of the Qur’an, conquered Makkah few years later and gained the allegiance of surrounding Arab tribes who converted to the new faith, Islam. The Qur’an abolished female infanticide4 and a chapter therein came by the title of An-Nisah, The Women. As a primary source of Islamic Law, the Muslim Holy Book consecrates the place of womanhood in society. In Al-Imran,5 it recounts the story of the wife of Imran, who, in her pregnancy, made a promise to sanctify whoever would come out of her womb. Then, she was expecting a male child, mindful of the prohibition against devoting a female child to Temple service under Mosaic Law. But when a female came, she felt happy and prayed to Allah to protect the child from evil. Her name is Mariam,6 the mother of Jesus Christ, who is glorified in the Qur’an as the blessed of all women.7 Indeed, the Qur’an abounds with verses that regard men and women of equal dignity and spiritual pedigree, both being a creature of Allah and accountable to Him. Without distinction as to sex, race and color, it decrees the believers as the best of people, evolved for mankind8 from water, leech-like cloth and clay9 that become a pair of male and female,10 assigned with mates among themselves11 that they may dwell in tranquility and with love and mercy between them in their hearts,12 the most honored being the most

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righteous in the sight of Allah,13 and the most favored by Allan being the most charitable of His creatures.14 As husband and wife, the Qur’an emphasizes in its usual poesy their place of equality, thus: They are your garments and ye are their garments.15 x x x The believers, men and women, are protectors, one of another. They enjoined what is just and forbid what is evil16 The Prophet himself regards women as “twin halves” of men, warning the male species to treat them kindly and that whoever mistreats them is an evil person.17 According to his wife Aishah, “The Messenger of Allah had not beaten anybody with his hands, not a woman nor a servant, except only while fighting in the cause of Allah.18 He had never taken vengeance on anyone who harmed him, unless when the slightest of the prohibitions of Allah were violated, and (only in that case) would he take vengeance for the sake of Allah, the Almighty.”19 Indeed, he was the best among men, most kind and merciful, and an excellent exemplar.20 General Rights of Women The equality of men and women in the human dimension has resulted in the grant of equal rights to both of them in Islamic Law, without distinction.21 Some of these rights operate to countervail the rights accorded to men and guarantee the well-being and insure the dignity of women. They include the following, thus: 1) The right to choose a spouse;22 2) the right to object subsequent marriage by the husband;23 3) the right to sue;24 4) the right to fair trial and justice;25 5) the right to property;26 6) the right to work and choose her work and remuneration;27 7) the right to acquire education and acquire and propagate knowledge;28 8) the right to refuse carnal relation with the husband;29 9) the right to family planning;30 10) the right to keep her maiden name;31 11) the right to protection of honor and reputation;32 12) the right to privacy;33 13) the right to participate in the determination of family residence;34 14) the right to inheritance;35 15) the right to divorce;36 16) the right to freedom from want;37 17) the right to grant asylum;38 18) the right to enjoin good and prohibit evil or the right to freedom of Volume 37, Number 3 & 4 - (July - December 2012)

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expression;39 19) the right to freedom of religion and worship;40 20) the right to consultation and participate in the affairs of government;41 21) the right to political freedom, elect allegiance and peaceably assemble to petition government for the redress of grievances;42 and 22) and the right to fight tyranny and oppression.43 Special Rights of Women But there are also rights peculiar to women and considered as woman’s privilege on man.44 By nature men have a certain degree of advantage over women;45 they are endowed with “more strength” than women,46 and this advantage affords them some obligations to their women and families.47 These obligations translate to women’s rights and they include the following, thus: 1) 2) 3) 4) 5)

The right to sustenance and support;48 the right to dowry;49 the preferential right in the custody of child after divorce;50 the right to breastfeed;51 and the right to be treated kindly.52

The Prophet accords most reverence and respect for mothers. According to one hadith, “Paradise lies beneath the feet of mothers.” Another Hadith graphically quoted him, thus: A man asked the Prophet, “Who should I honor most?” The Prophet replied, “Your mother.” The man continued, “And who comes next?” The Prophet replied, “Your mother.” The man further asked, “And who comes next?” The Prophet again went on, “And who comes next?” The Prophet then replied, “Your father.”53 The Qur’an provides the reasons for this special treatment for motherhood, thus: We have enjoined on man Kindness to his parents: In pain did his mother Bear him, and in pain Did she give him birth. The carrying of the (child) To his weaning is (A period of) Thirty month.54

xxx

And we have enjoined on man (To be good) to his parents: In travail upon travail Did his mother bear him.

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And in years twain Was his weaning: (hear The command); “show gratitude To Me and to thy parents: To Me is (thy final) Goal.55

War, Underdevelopment and Patriarchy Thus far I have painted in broad strokes a rosy picture of womanhood on the canvas of human rights in the light of the ideals of Islam. For sure, the picture does not mirror reality. In general, Muslim women are oppressed in their countries. The culture of patriarchy in the Muslim World, not to mention its internal contradictions of feudalism and underdevelopment, is most pervasive and invasive, bearing most heavily on Muslim women. Notes Professor Azizah al-Habri of the American University, the status of women during the nascency of Islam presents a shocking contrast to what obtained in the ensuing clime and time. Thus: Early Muslim women were actively involved in every aspect of the life of the nascent Muslim society. They included businesswomen, poets, jurists, religious leaders and even warriors.56 x x x The literature abounds with stories of women who dialogued with men about proper Islamic practices or the preferred interpretation of an Islamic text. Women also were major reporters of Hadith. As a result, many prominent men came to them for religious education and guidance. This trend continued for several centuries after the death of the Prophet. As the concept of education expanded, many women leaders appeared in the various disciplines. They were prominent female literary figures, religious leaders, doctors, judges, politicians, and teachers to name a few. It might be useful at this point to mention some of these women. Among the outstanding literary figures are Sukaynah bint al-Hussayn, the granddaughter of the Prophet, A’isha bint Talha and Walladah bint alMustakfi. Among the physicians are Zainab, the physician of the tribe of bani Awd and Um al-Hassan, daughter of Judge Abu Ja’far al-Tanjali. Among those who actively participated in politics are Hind bint Yazid alAnsariyah and Akrashah bint al-Utroush. Among the heads of state were Shajarat al-Durr of Egypt and Queen Arwa of Yemen. There are of course many other accomplished Muslim women in many diverse fields. Some of them have been mentioned in books but remained nameless. Furthermore, many great Islamic scholars were taught by great female Islamic scholars. Unfortunately the latter’s contributions were not as quickly recognized by their contemporaries or as meticulously preserved by male historians. Among the male scholars who studied under female scholars are: al-Shafi’l lbr Khilikan and Abu Hayyan. lbr Volume 37, Number 3 & 4 - (July - December 2012)

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Asaker, a prominent Hadith scholar, mentioned that his female mentors and teachers numbered more than eighty. Today Muslim women are conducting research to rediscover and expand their knowledge of these once prominent Muslim female scholars.57 Two prominent female scholars of early Islam and medieval Europe, respectively, were proposed marriage by Muslim kings. One was the daughter of Sa’eed ibn al-Musayyab who refused the offer of Caliph Abdul al-Malik ibn Marwan of the Ummayad Caliphate, who reigned in 685-70 as its 5th Caliph. Instead, he married her beautiful and learned daughter to one of his righteous students named, Abdullah ibn Wada’ah.58 Another was Fatimah, a faqueehah (female jurist) and daughter of 12th century Hanafite jurist Imam Ala’a Uddin Muhammad ibn Ahmad Samarqandi. She was offered marriage by Muslim kings of the Byzantium but her father wed her to his student, ‘Ala’ad–Deen al-Kasani, who wrote a Commentary on his book, Tuhfat al-Fuqaha, entitled, Bada ai-as – Sana’ai, and accepted his book as dowry for his daughter.59 Before her marriage, Fatimah used to issue fatwa along with her father, and the fatwa would be written in her handwriting and that of her father.60 After she married the author. Al-Bada’ai, the fatwa or religious or juristic decree would appear in her handwriting and that of her father and her husband.61 Her husband would make mistakes, and she would correct them.62 Umm Al-Muqtadir-Billah whose son the Abbasid Caliph Al-Muqtadir Billah was incapacitated, directed the affairs of State and went as far as installing one of her female courtiers as judge.63 The turmoil in the Muslim World resulting from its quest for expansion and dominion and the rivalry among its rulers conspired against womanhood and made the men as dyed-in-the-wool conservatives. Throughout the days of empire that spanned more than a millennium beginning from the Umayyad Caliphate (661-750) in Damascus down through the Abbasids (749-1258) in Baghdad, the Fatimids (953-1171) and the Mamluks (1254-1517) in Egypt and into the Ottomans (1324-1922), the Muslim Ummah remained patriarchal. Locked against the Zoroastrian Empire, later the Christian Byzantines and Crusaders and then the Buddhist Mongols, the demands and requirements of warfare in Muslimdom sidelined other cares of state, least of all women’s rights. To the siren warning of the trumpets of war, women were left behind and relegated to the harems and zenanas as it were, fattened like sows for the breeding of sinewy jihadists. The role of women in society was drastically diminished. Everything almost saved for household chores, became a man’s world. Gradually, women lost their identity, the conservative ulama a rouser of war and prescribing the burqah and the nikab for the women to hide their broad faces and muffle their protestations. They enforced their patriarchal interpretations of Islamic injunctions. But patriarchy is not only endogenous to the Muslim World. The patriarchal interpretations, on the one hand, and patriarchal institutions, on the other hand, entered the Islamic intellectual and social arenas with the expansion of the Muslim empire, all of which was occurring during the critical centuries in which the legal schools of Islamic thought were developing.64 In the codification of Islamic laws in various Muslim countries, notes Professor al-

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Hibri, they injected and continued to inject to this day into their codes some of the most medieval and patriarchal contributions to Islamic jurisprudence.65 Even the proposed Uniform Personal Status Code, which is being considered for adoption by various Arab countries as a further step to modernization, continues the unfortunate trend.66 The disintegration of the Ottomans in the nineteenth century and the ensuing colonization of most of the countries in the Muslim World by Western Powers all the more bore down on human rights. Following the grant of independence, most of the Muslim World became a closed society ruled by strongmen and monarchs who suppressed human rights to ensure their stay in power. Arab Spring Nowadays, Muslim women have emerged from the cocoon, so to speak. Over in the Middle East, they have gone to the streets, side by side with the men, denouncing their governments for being a dictatorship and a corrupt apparatus chasing out from power the dictators of Tunisia, Egypt, and Libya. Much earlier in 1979, Iran showed off the new face of Muslim womanhood. With clenched fists and alongside the men, they held mammoth demonstrations and forced the Shahansha to flee and abandon his peacock throne. Noorus Salam in the Philippines As in olden times, Moro society is still patriarchal. But Moro women have gone strides in the assertion and exercise of their rights. A Moro woman became Senator of the country. Two Moro women served in the Cabinet. The local government in Moroland accounts for two women provincial governors. In the Regional Trial Courts of the country sit two Moro women lawyers as judges. The House of Representatives has had Muslim Congresswomen. Women Empowerment But women empowerment in terms of human rights is still a far-off destination. It will not only be — to borrow the words of the Qur’an — an uphill road, like what happened in the campaign to end slavery; it might even be a Sisyphusian task.

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ENDNOTES * Presently, Marohomsalic is the National Secretary of the IBP and Member of the IBP Law Journal. He was IBP Governor of Western Mindanao Region (2009-2011), former Commissioner of Human Rights (1994-2001), former Commissioner of the 1988 Regional Consultative Commission for Muslim Mindanao, founding Convenor of the Philippine Council for Islam and Democracy which spun off into the Philippine Center for Islam and Democracy, founding Member of the Board of the Legal Network for Truthful Elections and founding Chair of the Muslim Legal Assistance Foundation. He is the author of a book on the history of the Bangsamoro entitled, Aristocrats of the Malay Race, 2001. A collection of his Speeches as Human Rights Commissioner entitled, Towards Peace, Autonomy and Human Rights was published by the Institute of Foreign Service in 1999 in commemoration of the 50th anniversary of the Universal Declaration of Human Rights. Many of his articles were published in various journals and media. Atty. Marohomsalic receives a plaque of recognition from President Aquino for invaluable services to the Indigenous Peoples through his scholarly defense of the constitutionality of the Indigenous Peoples Rights Act of 1997 on the occasion of the 25th anniversary of the law at GSIS Theater on October 30, 2012. 1. Zayn Kasam, Islamic Ethics and Gender Issue, cited in Joseph Ruzino and Nancy Martin, eds., Ethics in the World Religions. 2001. One World Publication, p. 124. 2. Hadith narrated by Aishah, wife of Prophet Muhammad, also cited in Hadith reported by Bukhari, et. al. 3. Hind, the wife of Abu Sufyan who was then the richest in Arabia, went to the Prophet and complained against her husband for not giving her and their children sufficient sustenance, which incident described the pitiful circumstances of women during the period. (Dr. Muhammad Ali Af-Hashimi, The Ideal Muslimah. 2008: International Islamic Publishing et al House, Riyadh, p. 192 4. Qur’an, Al-Takwir (The Folding Up) 81:8-9 5. Qur’an, Al-Imran (The Family of Imran) 3:35-36 6. Id. and Qur’an, Al-Tahrim (Holding Something Forbidden) 66-12 7. Al-Imran 3:42 8. Id. 3:110; Qur’an, Ha’mim (The Abbreviated Letters) or Fussilat (They are explained in detail) 41:33 9. Qur’an, Al-Ar’af (The Heights) 71:12; Qur’an, An’Nam (The Cattle) 6:12; Qur’an, Al-Hijr (The Rocky Tract) 15:26; and Qur’an, Iqra’a (Read) 96:1-2 10. Qur’an, An-Nisah (The women) 4:1 and Qur’an, Al-Hujurat (The Apartment) 49:13

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11. Al-Ar’af 71:89; Al-Hujurat 49:13 and Qur’an, Ar-Rum (The Romans) 30:12 12. Ar-Rum 30:12 13. Al-Hujurat 49:13 14. Hadith narrated by Tirmidhi 15. Qur’an, Al-Baqarah (The Cow) 2:187 16. Qur’an, Al-Taubah (The Repentance) 9:17 17. Hadiths quoted in Dr. Muhammad Ali al-Hashimi, infra, p. 47; also see note 52 18. Id., p. 50 19. Id. and hadith narrated by Aishah. 20. Hadith narrated by Tirmidhi 21. Hujatul-Islam Seyed Muhammad Khamenei, Human Rights for Women in Islam and in other Laws, in Sayyid Khadim Hussayn Naqavi, ed., Human Rights in Islam: A compilation of Papers Presented to the 5th Islamic Thought Conference in Teheran on 29-31 January 1987. 1989: Islamic Propagation Organization, Teheran, pp. 314-315 22. The Qur’an provides that the contract of marriage is a mithaq, a solemn covenant in this wise: And how could ye take it When ye have gone in Unto each other, and they have Taken from you a solemn covenant? (An-Nisah 4:21) Thus, the consent of the man and the woman is an essential of marriage. (Abdul Rahman I. Doi, Shariah: The Islamic Law, Zaria, Nigeria, p. 123). In a hadith the Prophet granted a bride forced upon to a marriage by her father the right to repudiate the contract. (Narrated by Bukhari). The right to choose a spouse hinges to hard-and-fast rules. While a woman is conferred the right, this does not do away the privilege of parents to give counsel in her affairs for the latter’s protection. Generally speaking, for their natural predisposition to do the best things for their daughter, parents’ counsel is held with reverence in Muslim society. Another rule pertains to prohibition for a Muslim woman to marry a non-Muslim including idolaters and polytheists until they believe. (Abdul Rahman I. Doi, supra, p. 136 and Al-Baqarah 2:221) Due to consanguinity, affinity and fosterage, some forms of marriage too are prohibited in Islam. (An-Nisah 4:22-24 and Articles 22, 23, 24 and 25, Presidential Decree 1083 (1977) or the Code on Muslim Personal Laws of the Philippines). It may be Volume 37, Number 3 & 4 - (July - December 2012)

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pertinent to note that while Muslim males are allowed to marry the women of the Book, fiqh and Ijtihad prescribe rules and conditions before the former may excercise the privilege. 23. Philippine law hews to Islamic law in the practice of polygamy, prescribing the stringent requirement in the Qur’an in this wise, thus: … no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases. (Article 27, Code of Muslim Personnel Laws)

The Qur’an prefers monogamy to polygamy, thus: If ye fear that ye shall not Be able to deal justly With the orphans, Marry women of your choice, Two, or three, or four; But if ye fear that ye shall not Be able to deal justly (with them), Then only one, or That which your right hand possess. That will be most notable, To prevent you From doing injustice. (An-Nisah 4:3)

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Ye are never able To do justice Between wives Even if it is Your ardent desire. (An-Nisah 4:129)

According to the Shafi’i school, the permission for polygamy principally depends on the financial capacity of the husband (Tanjil-ur-Rahman, C.M.P.L., Vol. 1, p. 97, cited in Bensaudi 1. Iribani, Sr., Commentaries on the Code of Muslim Personal Laws, 2011: Rex Book Store, Manila, p. 381), and where the husband fails to provide for the financial maintenance of his wife according to her social standing, he is not entitled to contract a subsequent marriage. (Id.)



The right may be also reserved by the bride in an ante-nuptial agreement. (See Note 36)

24. The right to sue afforded to women is founded in Al-Baqarah, which states, “And they (wives) shall have rights similar to the rights against them.” (2:228)

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husband, sue or be sued in the following cases: (a) If the litigation is between husband and wife; (b) If the birth concerns her exclusive property; (c) If the litigation is incidental to her profession, occupation or business; (d) If the litigation the exclusive property of the husband, the administration of which has been transferred to her; or (e) Such other appropriate cases as maybe allowed by the general principles of Islamic law and other laws. 25. Conflict is a fact of life, fostered in the nature of humankind from its base elements (Qur’an, Yusuf (The Prophet Yusuf) 12:57). Thus, God says they’re always be recalcitrants among the people on whom is God’s Wrath. (Qur’an, Al-Fatihah (The Opening) 1:7 and Al-Mumtahana 60:13, etc.). Even authorities themselves are bound in conflict. And when such a situation arises, or they differ in anything among themselves, God counsels them to “refer it to Allah and His Messenger” (An-Nisah 4:59)

In modern life and as elsewhere mostly in the Muslim World, disposition of conflict or justiceable controversy is a function of the Judiciary, presided by men trained in the science of the law and jurisprudence or Shari’ah and Fiqh. They interpret the law and apply it to the facts. Necessarily, man’s intervention by his appreciation of facts and understanding of the pertinent laws could either dilute or render obtuse justice as the term is understood in Islam, which means, the Straight Way (Al-Muminum (The Believers) 23:73), the Shari’ah, to use the language of the Qur’an in said verse, one which is based on truth, not in whims and caprices (Hujjatul-Islam Muhammad Taqia Misbah Islam Muhammad, Yozdi. In Naqavis, Human rights in Islam, Origins of Rights, p. 153)



This kind of justice in Islam comports to the symbolism of the blindfolded Lady Justice, fair and unbiased, its pursuit a covenant with God as articulated in Alan’Nam (The Cattle), thus: Whenever ye speak, speak justly Even if a near relative Is concerned. And fulfill The Covenant of Allah. (6:152)



In the conduct of justice, indeed, fairness rules and personal consideration and inclination are prescribed. Al-Maidah (The Table Spread) of the Qur’an elaborates, thus: O ye who believe! Stand out firmly For Allah, as witnesses To fair dealing, and let not The hatred of others To you make you swerve

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To wrong and depart from justice. Be just: that is Next to Piety: and fear Allah. For Allah is well acquainted With all that ye do. (5:8)

And of this Straight Path, also called “Balance” (Ash-Shurah (Consultation) 42:17; Also see Note 4550 of the Commentary of Yusuf Ali of the Holy Qur’an at page 1479), the Qur’an prescribes no detour. Thus: Verily this is My Way Leading straight: follow it: Follow not (other) paths: They will scatter you about From His Path Thus doth He commanded you, That ye may remember. (Al-an’Nam 6:153) In order to obviate the commission of injustice and enable the judge to judge between men with justice (An-Nisah 4:85), the Qur’an ordains man and the wali not to follow the low and vain desires of litigants without knowledge or understanding (Ar-Rum 30:29; Al-Maidah 5:49) and not to get inducted with hatred and act inequitably (5:8). Equality of treatment of protagonists in all stages and deliberations in the judicial system is fundamental. Responsibility for a crime is an individual liability. The Qur’an provides it, thus: Nor can a bearer of burdens Bear another’s burdens. If one heavily laden should Call another to (bear) his load, Not the least portion of it Carried (by the other) Even though he be nearly Related. Al-Fatir (The Originator) 35:18 Islam does not tip the balance against those who fought against Muslims for reasons other than their faith and security. (Qur’an, Al-Mumtahana (The Woman Examined) 60:8). On the contrary, the believers are enjoined to deal with their enemies kindly and justly, finding justification therefor in the doctrinal teaching of Islam that says that God loves those who are just. (Id.) In Ash-Shurah God enjoins the Prophet to call the people to the faith and stand steadfast in his mission, not following their vain desires but still professing the standards of justice, thus: …(The Prophet) believes In whatever Book Allah has sent down;

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and I am commanded To judge justly between you. Allah is our Lord And your Lord! For us (Is the responsibility for) Our deeds and for you For your deeds. (42:15) Everybody is equal before the law. An episode in the life of Caliph Umar makes the point. Then he was presiding a case where a Jew brought a complaint against Ali, the son-in-law of the Prophet who later became the 4th Caliph of Islam. Caliph Umar addressed Ali by his plain name like he were just any man in the street. Indeed, the arm of the law should fall where it should. An episode in the Sirah of the Prophet exemplifies further the point. Thus: Usama ibn Zayd came to intercede for a Makhzumi woman who committed theft and was meted out with the cutting off her hand. In his refusal to mitigate the penalty, the Prophet said: “By Allah, even if Fatimah the daughter of Muhammad had committed theft, I would have cut off her hand. (Hadith narrated by Bukhari and Muslim) 26. Every person has the right to property (Article 18, 1990, Cairo Declaration on Human Rights in Islam). In most jurisdiction of the Western World, property is conjugal between husband and wife, unless otherwise agreed upon by the parties.

In Islam, the rule consecrates womanhood and grants her exclusive ownership of her inheritance, bequest, dowry and fruits of her labor and she may dispose or use her wealth without the consent of her husband. The Qur’an says, “To man is allotted what they earn and to women what they earn. (Au-Nisah 4:32). Despite her wealth, the upkeep of the family is the responsibility of the husband. “He shall bear the cost of the food and clothing.” (Al-Baqarah 2:233); see Qur’an, AlTalaq (Divorce) 65:7).



The Code on Muslim Personal Laws of the Philippines reinstates this Islamic principle in this wise, thus: The wife has the right to retain ownership to possess, administer, enjoy and dispose of her own exclusive estate even without the consent of her husband (Article 66)

27. The right to work enjoyed by women flows from An-Nisah (The Women) which reads, “To men are allotted what they earn and to women what they earn.” (4:32).

Generally, in Islam women need not work because the financial maintenance of the family is the responsibility of men. But should one wish to work, she has to choose a job which comports to her gender and secures her integrity as a

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Muslim woman. This issue has actuated debates among the conservative ulama and progressive Muslim women-scholars. Nevertheless, nowadays women have excelled in the arts and sciences and work beckons for their expertise. They now occupy highly skilled and high positions in government and society hitherto the preserve of the men. (For further discussion, see Note 28 on education).

A catch-all tradition of the Prophet provides reason to adopt a flexible approach on the issue, thus: None of your truly believes until he likes for his brother what he likes for himself. (Narrated by Bukhari and Muslim)

28. Education is compulsory in Islam, and this injunction rests on Al-Baqarah, thus:

Those who conceal The clear (Signs) We have Sent down, and the Guidance After we have made it Clear for the People In the Book, -- on them Shall be Allah’s curse And the curse of those Entitled to curse. (2:159)

Thus, the pursuit of education and knowledge is the duty of every Muslim (Hadith narrated by Ibn Ma’jah), and an Islamic polity is mandated to provide free education from cradle to the grave. In Al-Mujadila (The Woman who pleads) of the Qur’an, God assures to elevate by several degrees the ranks of those who believe and those who have knowledge (58:11). In one verse of the Qur’an God classifies people into the group who know and another group who do not know. (Az-zumar (The Group) 39:9). Further, the Qur’an says, thus: Surely, the vilest of animals, in Allah’s sight, are the deaf, the dumb, who do not understand (AlAnfar (The Spoils of War) 8:22) Thus, the Prophet puts premium on education. He even refers to scholars as heirs of prophets. (Hadith narrated by Bukhari). In an hadith narrated by Ahmad, he said, “O ye nations of Islam! Thou shall learn from the neighbors. Should you decline to do so, I shall promptly punish you.” Seek knowledge even in China is another tradition that testifies to the Prophet’s high regard for the value of education in the life of a Muslim and for the advancement of society. Even after marriage, a Muslim woman has the right to pursue her education; she may stipulate it in the marriage contract. (Dr. Magda Amer, supra, p. 56). When the Prophet married Lady Hafsah, daughter of Umar al-khattab who became the 2nd Caliph of Islam, who had just began to study the principles of reading

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and writing, he asked ash-Shaifa’ to teach her handwriting and reading (Id.). The Prophet has his reason. He said: The mother is a school. If you prepare her properly, you will prepare an entire people of good character. The mother is the first teacher foremost among them, and the best of teachers. (Diwan Hadith Ibraheem, 282, cited in Dr. Muhammad Ali al-Hashimi, supra, p. 252) 29. The golden mean is a verity in Islam and has its application in the carnal relationship between a husband and his wife. Thus: One does not believes unless he loves for his brother what he loves for his own self. (Hadith in Dr. Magda Amer, An Islamic Perspective on Legislation for Women. 2006: Al Falah Foundation, Cairo, p. 84)

In accord with this injunction a woman may refuse her husband’s invitation for penetrative sex during her menstruation, which is also an injunction in alBaqarah (2:222), when in pain or sick (i.e. headache) or ill-emotional state caused by problems with her family, or physical or mental exhaustion; or during postnatal blood (Id., p. 85) until fully healed and recovered. The Prophet cursed men who did sex by the anus.

30. The doctrine of Islam on family planning stands mainly on economic grounds and health reasons.

In Saba (the City of Saba), the Qur’an declares that “It is not your wealth nor your children that will bring you nearer to us” (34:37). In a hadith, the Prophet was quoted to have said that the worst difficulty is to posses plenty of children with inadequate facilities. In similar vein, he said, “Having plenty of children is one of two poverties and a small number of children is one of two prosperities.” (Quoted in Nasroden B. Guro, Islam and Family Planning in the Philippines, Mindanao Journal Vol. XVIII, Nos. 3-4 (Jan-June 1992)



When pregnancy or giving birth poses threats to a woman, she may take medical intervention like contraception to avoid the risks. The Qur’an allows her, thus: Do not throw yourself into destruction with your hands. (Al-Baqarah 2:195)

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Do not throw yourselves: undoubtedly, Allah is merciful to you. (An-Nisah 4:29) 31. In the Qur’an the Prophet curses men who break ties with kith and kin (47:22-23)

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In a hadith reported by Bukhari and Muslim, the Prophet said: “The person who breaks the ties of kinship will never enter paradise.” In An-Nisah everybody is enjoined to hold in reverence the womb who bore them. (4:1)



For a woman and despite marriage, she has to show her reverence to her kinship by sporting and maintaining her maiden name.



(See Article 6, 1990 Cairo Declaration on Human Rights in Islam.)

32. Honor and reputation are spiritual garments for man and woman as leaves and flowers and fruits are for trees. Like a bare, isolated tree, a man or a woman of illrepute would be avoided by most people like some pariah, their world constricting upon themselves.

In brief, honor and reputation are a necessity, as essential as a shelter that gives comfort and security. Islam even extends this right to the dead, thus: Every human being is entitled to inviolability and the protection of his good name and honor during his life and after his death. The State and society shall protect his remains and burial place. (Article 9, 1990 Cairo Declaration on Human Rights in Islam) This injunction not to talk ill of the dead rests on the hadith of the Prophet, thus: Do not abuse the dead, because they have attained that which they had forwarded (i.e., their deeds, good or bad) (Narrated by Aishah and reported by Bukhari)

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The act of defaming and speaking evil of a person’s lineage is a sign of unbelief (Hadith narrative by Abu Haraira). A false charge against a chaste woman carries 80 stripes. Speaking ill of people behind their backs is an abominable act likened to eating flesh. (Al-Hujurat 49:11-12). The person who goes about with calumnies will never enter paradise or jannah (Hadith narrated by Hudhaifah and Bukhari and Muslim). And so is he who goes around to rouse hostilities among people. (Hadith narrated by Ibn Abbas, Bukhari and Muslim). Those who frequently resort to cursing people around would neither be accepted as witnesses nor intercessors on the day of resurrection (Hadith reported by Abu Darda and Muslim).



Indeed, Islam takes a harsher look at the suspicious lot and the envious among people who espy on their neighbors and spread gossips and trample upon their honor.



The prohibition is expansive including listening to backbiting and (vain) talk (Al-Muminun 23:3; Bani Isra-il (The Children of Israel) 17:36); irritating and criticizing the inadequacies or weaknesses of others (Al-Hujurat 49:11) and a hadith narrated by Aishah, Abu Dawud and Tirmidhi); indulgence in excessive The IBP Journal

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talk or boastfulness without remembrance of Allah, which habit hardens the heart. (Id. and hadith narrated by Umar and Tirmidhi); and false and vain talk (Qur’an, Al-Qasas (The Narration) 28:55) or thoughtless utterances. (Hadith narrated by Abu Huraira)

Muslims are enjoined to avoid these wrong-doers (Al-an’Nam 6:68), these wicked transgressors (Qur-an, An-Nur (The light) 24:49) who are cursed in this World and in the Hereafter (24:3, id.), and defend the honor of their Muslim Brothers (Hadith narrated by Abu Darda and Tirmidhi), which act will secure their face against the fire on the day of Resurrection (Id.). People will be thrown into Hell on their faces on account of their loose tongues. (Hadith narrated by Mur’adh, bin Sabal and Abu Darda)

33. A house, be it a shovel or whatever, so goes a popular cliché, is a resident’s temple, a place of rest, security and quiet, shut off from the rest of the world until permission is given to guests and visitors. (An-Nur 24:27-29)

Seeking permission to enter a house is done by greeting those concerned the usual salutation in Islam, “Assalamu Alaikhum.” (Hadith narrated by Ad-Durr al-Manthur)



Once inside the house, the visitor, if within the prohibitive degree of marriage to the women therein, should lower his gaze. (Hadith quoted in Tafsir Ibn Kathir, Vol. 7. 2000: Darussalam, p. 62). Women too are required to observe the same etiquetle (Hadith narrated by Bukhari). “That is purer for them,” says the Prophet (Id.), adducing for support the following Qur’anic verse: (Allah) knows the treachery Of the eyes, And all that the hearts (Of men) conceal (Al-Muminun) 40:19)



Men and women are also required to cover their “private parts” by wearing modest or outer garments.



The reason for this strict ethical regimen is spelled out in the hadith reported by Bukhari, thus: The son of Adam has his share of Zina (lust or adultery) decreed for him, and he will commit that which has been decreed. The Zina of the eyes is looking; the Zina of the tongue is speaking; the zina of the ears is listening; the Zina of the hands is striking; the Zina of the feet is walking; and the soul wishes and desires, and the private parts confirm or deny. (In Tafsir, supra, Vol. 7, p. 66)



Islam is especially sensitive to women’s modesty. The Qur’an provides for what a

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Muslim woman should wear, thus: She must wear under and outergarment or jilbab, a long gown covering the whole body, a cloak covering the neck and the bosom (Note 3765, Commentary on the Holy Qur’an by Yusuf Ali, p. 1265), a khimar or veil to cover the head (Hadith narrated by Ad-Durr Al-Manthur. In Tafsir, supra, p. 69)

According to Dr. Riffat Hassan, burqah and Nikab were not prescribed for the Muslim woman and they were not worn during the time of the Prophet. (Dr. Riffat Hassan, Women’s Right and Islam and Prof. Zaya Kasam, Islamic Ethics and Gender Issues In Runzo and Martin, eds., Ethics in the World Religions. 2001: England, New York, p. 230. Prof. Kasam is a woman historian of religion with expertise on Islam among other faiths). Whether or not a form of modest dress as it obtains from one culture to another is a gender issue, its propriety is a question under God’s object of mercy.



The right to privacy in Islam is more comprehensive in its scope than what obtains in western legal traditions, it being also an ethical regimen. In the narration of Ibn Mas’ud, the Prophet said, thus: No woman should describe another woman to her husband, so that it as if he is looking at her. (Hadith quoted in Tafsir, supra, Vol. 7, p. 71. (This hadith is also narrated by Bukhari) A husband is also proscribed from divulging intimate secrets of his wife he came to know in confidence. Espying on another is a legal prohibition per se, it does not require the spread of information on the object to complete the act and make it sinful or actionable. The Qur’an provides in Al-Hujurat, thus: O ye who believe! Avoid suspicion as much (As possible). For suspicion In some cases is a sin: Nor speak ill of each other Behind their backs (49:12) “And those who annoy believing men and women undeservedly bear on themselves a calumny and a glaring sin.” (Qur’an, Al-Ahzab (The Confederates) 33:58) Suspicion is the worst of false tales. (Hadith narrated by Bukhari and Muslim). Even the holding of a meeting between two people to the exclusion of a third is frowned upon and disfavored. (Hadith narrated by Bukhari and Muslim). This partakes of a cabal that the Qur’an shuns, thus:

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Secret counsels are only inspired by Satan. (Al-Mujadila 58:10) The blood, honor and property of a Muslim is inviolable for another Muslim. (Hadith narrated by Abu Hurairah) (For a fuller discussion see the Right to the Protection of Honor and Reputation at Note 32) 34. A wife has the right to advice her husband. The Prophet himself even consulted his wives on affairs of State. (Dr. Magda Amer, supra p. 58). But in matters of family including the choice of residence, a wife gets a good deal of influence because this involves the moral health of the whole family and their private life. “The responsibility of the Muslim woman for the members of her family is no less, in the sight of Allah, than that of the man.” (Dr. Muhammad Ali al-Haslimi, supra, p. 88). Her responsibility is in fact even greater than a man’s because of what she knows of the secret life of her children who live with her most of the time. They may tell her things that they do not tell their father” (Id.)

In a hadith narrated by Bukhari and Muslim, the Prophet is reported to have said, thus: Each of you is a shepherd and each of you is responsible for his flock. The leader is a shepherd and is responsible for his flock; a man is the shepherd for his family and is responsible for his flock; a woman is the shepherd in the house of her husband and is responsible for her flock; the servant is the shepherd of his master’s wealth and is responsible for it. Each of you is a shepherd and is responsible for his flock. (Quoted in al-Hashimi, id., p. 88) Both husband and wife are guided by parameters in the choice of a house and a place of residence, such as: 1. 2. 3. 4. 5.

It must provide privacy; It should be as the husband can afford; It should not be in an isolated place; It should be in a good neighborhood; It should be properly equipped with utilities and ventilation; 6. It should suit the wife; i.e., be similar to houses of her equals; and 7. She should not be forced to live with her husband’s family against her will. (Dr. Magdama Amer, supra p. 23 and Article 18, 1990 Cairo Declaration on Human Rights in Islam)

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In Philippine jurisdiction and as agreed by all schools of thought in Islamic law, the husband has the primary right to fix the residence of the family. (Article 35, Code on Muslim Personal Laws of the Philippines or Presidential Decree 1083, 1977). However, the Court may exempt the wife from living with her husband on any of the following grounds: 1) Her dower is not satisfied; and 2) The conjugal dwelling is not in keeping with her social standing or is, for any reason, not safer for the members of the family or her property. (Id.) The observance of this right is of paramount importance in Islam, a necessary, in fact, for the integrity of the family. As provided in the 1990 Cairo Declaration on Human Rights in Islam, thus: Every person has the right to live in a clean environment free of mischief and moral vices in such a manner that will enable him to develop himself morally. The state and the community are responsible for providing this right. (Article 17) 35. In inheritance and under ordinary circumstances, the daughter gets a half of what the son is provided for in the estate left by their parents. This apparent inequality between man and woman is not strictly iniquitous. In the explanation of a Muslim scholar, a woman has all the right to own and dispose of her property by all lawful means including her dowry. Despite wealth, she does not spend for the upkeep of the family, which responsibility belongs entirely to the man. (Prof. Dr. Suleiman Bin Abdul Rahman al-Hageel, Human Rights in Islam and their applications in the Kingdom of Saudi Arabia. 2001: Saudi Arabia, pp. 197-199)

Nevertheless, I pick a hole in the argument as regards its application in an unIslamic polity where an inadequate welfare system exists or not at all. Under crisis as when her husband is retrenched from work or becomes impaired or dies without sufficient bequest, she’ll be burdened with children to raise, and it will be irrational to deprive her of a goodly inheritance from her parents should they die, that which is lesser than that of her male siblings.



Advocates of Ijtihad address this issue of inequality, adverting to the said Qur’anic provision and the like as mutable verities and, by shurah among the learned, could be “reformulated” and made responsive to change and development for the general welfare.

36. The man is provided with a wide latitude to divorce his wife. But every woman is possessed of the right under certain circumstances. Examples are manifold. She may secure release from the marriage bond by offering to return the dowry or to pay any other lawful consideration. (Al-Baqarah 2:229) (Divorce by Khul). She may reserve the right to divorce in an ante-nuptial agreement under certain conditions (See Azizah al-Hibri, Islam, Law and Custom, 12 Am. U.J. Int’l L & Pal’y 1 (1997) (Divorce by Tawfid). Sukhayna, the granddaughter of the Prophet, had

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it for her third marriage. (Id.) A woman may initiate for divorce by khul in court in the following cases: 1) If her husband refuses to provide for her unless it is due to financial difficulties; 2) If her husband is absent without her consent for more than one year or jailed for a period longer than three years. However, she has the right to claim a divorce after one year of imprisonment; 3) If he is not fulfilling his conjugal responsibilities; 4) If she loathes life with him because of his harsh temper, illconduct or cruelty; 5) For any physical abuse from her husband; 6) If she is treated unjustly in case of polygamy; 7) If the husband is sterile, and she desires children; and 8) If she is mentally insane or chronically ill (Dr. Magda Amer, An Islamic Perspective on Legislation for Women, Part IV, 2006: AlFalah Foundation, Cairo, p. 251) Neglecting the sexual needs of a wife gives her the right to divorce her husband. (Id., p. 63). If the man swears not to touch his wife and carries out the pledge for four months, the wife earns the right to divorce her husband. (Al-Baqarah 2:226) (Divorce by Ila). She too earns the right if he remains absent without cause for six months under the Hanbali School. (Tanjil ur-Rahman, C.M.P.L., Vol. 1, p. 641; cit. Ibn Rasud Bidajal al-Muhtahid, Cairo, n.d., Vol. II, p. 60). When the husband has assimilated (zihar) his wife to any of his relatives within the prohibitive degrees of marriage, the wife may require her husband to perform expiation or to divorce her should he fail or refuse to do so. (Al-Mujadila 58:1-4) Philippine law grants Muslim women this right to divorce by faksh or by decree of court and reinstates the same grounds for its exercise by the wife, as fallows: 1) Neglect or failure of the husband to provide support for the family for at least six consecutive months; 2) Conviction of the husband by final judgment sentencing him to imprisonment for at least one year; 3) Failure of the husband to perform for six months without reasonable cause his marital obligation in accordance with this Code; 4) Impotency of the husband; 5) Insanity or affliction of the husband with an incurable disease which would make the continuance of the marriage relationship injurious to the family; 6) Unusual cruelty of the husband as defined under the next succeeding article; or 7) Any other cause recognized under Muslim law for the dissolution of marriage by faksh either at the instance of the wife or wali. (Article 52, Code of Muslim Personal Laws (P.D. 1083) Volume 37, Number 3 & 4 - (July - December 2012)

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Also, Philippine law recognizes divorce by zihar, (Article 48, id.), ila (Article 47, id.), and lian. In the last instance and by definition, the court has no choice but to decree a divorce where the husband accuses his wife of adultery. (Article 48, id.). If a husband turns apostate, the marriage is annulled on the injunction of Al-Mumtahana that says, “they (Muslim women) are not lawful (wives) for the unbelievers nor are the unbelievers lawful (husbands) for them.” (60:10). A husband’s ill-contempt of his wife’s kith and kin could also be a good ground for the woman to seek for divorce by faksh. In many places the Qur’an upholds as one of best deeds the keeping of ties and good neighborliness. (See 4:11 and 36; 17:23 and 26; and 47:22-23, supra) In Bukhari and Muslim a hadith is reported on authority of Abu Ayoob and Al-Ansari where the Prophet gives precedence to the ties of kinship among the major features of the faith. It relates to the long conversation recorded in history between the Roman Emperor Heraculius and the Makkahn leader Abu Sufyan. (Dr. Muhammad Ali al-Hashimi, The Ideal Muslimah. 2005: International Islamic Publishing House, Riyadh, p. 267). When the Emperor asked Abu Sufyan, “What does your Prophet order you to do?” He answered, “He (the Prophet) tells us: Worship Allah alone and do not associate anything with Him. Give up the religion of your forefathers. He tells us to pray, to tell only the truth, to be chaste and to uphold the ties of kindship. (Id.) In An-Nisah, “this injunction to do good,” notes Yusuf Ali, “is wider and more comprehensive than ‘Love God and love your neighbor,’” provision in the Qur’an thus: And do good – To parents, kinfolks, Orphans, those in need, Neighbors who are kin Neighbors who are strangers, The companion by your side, The way-farer (ye meet) (4:36 and see Notes 55 on the Commulatory of the Holy Qur’an by Yusuf Ali)

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Thus, breaking ties is an abomination. There is no worse kin for which Allah will hasten punishment than oppressing others and breaking the ties of kinship. (Hadith narrated by Ahmad and Ibn Majah.) The person who breaks the ties of kinship will never enter paradise. (Hadith narrated by Bukhari and Muslim)



In the Qur’an, “such are the men whom Allah has cursed for He has made them deaf and blind. (Muhammad (The Prophet) 47:22-23)



In sum, ill-treatment and oppression by the husband of the kith and kin of the wife is tantamount to breaking ties with one’s own, which places the wife or both of them in a situation where, to quote the words of Al-Baqarah, “they would be unable to keep the limits (ordained) by Allah” (2:229), thereby earns her the right The IBP Journal

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to seek divorce by faksh. 37. The Qur’an prescribes a state of ease on Earth where no one may suffer hunger or lack the necessities of life. God creates our home planet with enough provision therein, so mankind may not suffer deprivations or go hungry, naked and thirsty. (Qur’an, Ta’ha 20:118-119). He also made it manageable to traverse through so men may partake of its riches. (Qur’an, Al-Mulk (Dominion) 67:15). The needy is provided from the portion of the State from the wealth of the rich, which is in modern parlance is called, “Tax on Wealth”. (Qur’an, Al-Ma’arij (Nocturnal Ascension) 70:24-25). Wealth is further sanctified or purified with its bearers obliged to allocate alms or gifts of charity for the State to provide for its social security programs, among others. (Id., 9:103). For God does not impose any burden or hardship more than one can bear. (Qur’an, Al-Hajj (The Pilgrimage) 22:78)

The Prophet himself grieves to see people suffer. (Qur’an, Al-Taubah (The Repentance) 9:28). During the Caliphate of Ali, the son-in-law of the Prophet, a kind of welfare system was patronized so the old, the weak and feeble do not suffer deprivation. An incident exemplifies it: Caliph Ali gave a Christian beggar subsistence allowance from the treasury, saying, “When he was young and powerful, you used him. Now that he is old and infirm, you have left him to beg.” (Dr. Seyed Jawad Mustafavi, Human Rights in Islam. In Human Rights in Islam (Papers presented at the 5th Islamic Thoughts Conference in Teheran in January 1987. 1989: Islamic Propagation Organization, Teheran, p. 190)

38. At the time of the conquest of Makkah, Umme Hani, the sister of Ali, the son-in-law of Prophet Muhammad who later became the 4th Calipa of Islam, gave asylum to one of the polytheists of the city and the Prophet enforced the protection granted by her. (Hujjatul-Islam Seyed Muhammad Khamenei, Human Rights for Women in Islam. In Human Rights in Islam (Papers presented at the 5th Islamic thought conference in Teheran in January 1987, id., p. 319). In Islam every citizen is afforded the right to security of life and political asylum provided the conditions are fulfilled. (ld.) 39. If anyone of you sees something objectionable, he should prevent it with his hand; but if he cannot, he should prevent it with his tongue; and if he cannot, he should do it in his heart, that being the weakest form of faith. (Hadith narrated by Muslim)

The Prophet further bats for the right to freedom of expression, thus: One who does not say the right things he knows degrades himself. (Hadith quoted in Al-Hafeth Al-Mutharis At-Targkeeb wa At-Tarqhkeeb, Vol. 4)

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40. Al-Baqarah 2:256; Qur’an, Yunus (The Prophet Jonah) 10:19; Qur-an, Hud, (The Prophet Hud) 11:19; Qur’an, Yusuf 12:103; and Al-Maidah 5:48.

Serious with their religion, Mulsims are enraged at calumnies against Prophet Muhammad.

41. In Ash-Shurah God ordains men to conduct their affairs by mutual consultation (42:38), whether it be in their public and private lives. (Yusuf Ali in his Commentary on the Holy Qur’an at Note 4579, p. 1487). Of his vicegerency, the Qur’an describes the Prophet’s disposition towards his community, his having dealt with his people gently, noting that had he been severe or harsh-hearted with them, his people would break away from his rulership (Al-Imran 3:159). It further counsels him to pass over (their faults), ask for (Allah’s) forgiveness for them and consult them in affairs (moment) before taking decision. (ld.). As the Prophet was ordained, so are his successors to the throne of power.

The importance of consultation in statecraft is emphasized in a popular hadith narrated by Al-Tarabani that says, “He who consults others shall have no regret.”



Islamic history is replete with narratives on how the chief rulers and caliphs were questioned, advised and corrected by common people. (Hammudah Abdalati, Islam in Focus. 1975: American Trust Publication, Indianapolis, p. 131). One incident is remarkable, thus: In a gathering at a mosque, Caliph Umar was consulting with the people, proposing to place an upper limit on the amount of mahr or dowry a woman may demand from a man. Dowry serves as a precautionary safety net for the woman to provide for herself especially during crisis or when divorced by her husband. It is her exclusive property, and the man could only get access to it by leave of his wife. An unknown woman rose up and took issue with the Caliph, reminding him that he has no right to take away what God has given women. The Caliph then realized his error and admitted that the woman was right. (1 Abi Hamid Al-Ghazali, “Thya” “Lilum al-Din” (4 Vols.) (11th century, reprint, Egypt, Mustafa al-Babi al-Halabi Press, 1939). In al-Hibri, supra, p. 27) As in the constitutions of western democracies, the Qur’an and Sunnah along with other sources of Islamic Law defined the limits of freedom and the boundaries of power, including the exercise of consultation as a democratic tool of government. Al-Maidah sums it all, thus:



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Help ye one another In righteousness and piety. But help ye not one another, In sin and rancour…(5:2) Over and above this standard in matter of consultation, Islam prescribes for leaders, to emphasize, to be most kind and merciful. (Al-Taubah 9:128) 42. This right is a twin-component of the right to consultation and participate in the affairs of government. However, it is separately treated here to give it an added significance in the light of important political events in Islam providing the milieu for its exercise.

In Al-Mumtahana the Qur’an relates the story of married women who left their polytheistic husbands in Makkah, together with minor women under guardianship, and migrated to Madinah to join the Muhajireens, the Mukkahn company of the Prophet, and professed fealty and allegiance to him, who extended to them his protection despite the Treaty of Hudaibbiya which obliged him to return refugees in sweeping language, ransoming their safety by returning the dowry to their husbands. (60:10-12) (See Yusuf Ali on his Commentary on the Holy Qur’an at Note 5422, p. 1732). By this act of the Prophet, the rule that married woman enjoy political freedom to choose their leaders was ordained. The incident is the first recorded expression in all of histories of women’s right to suffrage (al-Hibri, supra, p. 26).



Another incident in early Islam relates to the pledge of loyalty and support to the leadership of the Prophet by two women from Madinah in the Second Pledge of Aqaba. This is a secret meeting attended also by 62 men from Madinah who also professed loyalty and support to the leadership of the Prophet, and the Prophet received and accepted their pledge. Incidents are many where women pledge their support for the Prophet. (http://www.loonwatch.com/2014/03/15important-muslim-women-in-history)



The choice of leaders is a function of the people as electorate, a sort of public exercise of sovereignty that is coeval with the vestment on Prophet Muhammad and the people themselves as a vicegerent of Allah on Earth. For vicegerency as a source of man’s authority to govern subsumes the right to elect a leader. A tradition of the Prophet is instructive, thus: Whoever instructs a man to public office where in his society there is a better man than the trustees, he has betrayed the trust of God and His Messenger and the Muslims. (The hadith is quoted in Abdalah’s Islam in Focus, supra, p. 130)



Indeed, early in the history of Islam, women made their marks in the political life of the world of Islam. (See al-Hibri, supra, p. 29)

43. In an Islamic polity rulership is a privilege of the pious and enlightened or the learned. As such, he is expected to govern by the Right Path as prescribed in the Volume 37, Number 3 & 4 - (July - December 2012)

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Shari’ah and be truthful to his trust (Al-Anfal 8:27), consulting with his people (Ash-Shurah 42:38), taking their counsel and dealing with them gently. (Al-Imran 3:59). Otherwise, if he does wrong, violates his trust, becomes unjust and follows (his) low desires (Ar-Rum 30:26-32 and Qur’an, Al-Araf (The lights) 175-176) and goes astray at the instance of Satan (Id., 7:175-176), or turns severe and harsh-hearted (An-Nisah 4:123-124), his people will disperse from around him (3:158, supra) and he will have no protecting friend or helper (4:123-124, supra)

In sum, an unjust ruler loses his guardianship over his people whose “believing men and women,” so the Qur’an declares, “are guardians of each other,” enjoining what is good and forbidding what is evil. (Al-Imran 3:103 and Al-Taubah 9:71) Al-Imran emphasizes the injunction, thus: Let there arise out of you A band of people Inviting to all that is good, Enjoining what is right, And forbidding what is Wrong: They are the ones To attain felicity (3:104) In An-Nisah God calls people to arise and go to the field against tyrants, thus: And why should ye not Fight in the cause of Allah And of those who being weak, Are ill-treated (and oppressed) -Men, women, and children, Whose cry is: “Our Lord! Rescue us from this town, Whose people are oppressors, And raise for us from thee One who will help! (4:75)

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Tyrants and oppressors are regarded as friends of Satan (4:76, id.) and they will find their abode in hell. (4:97, id.) Thus, Muslims are prohibited from turning to those who fight them for their faith and drive them out of their homes including their supporters (Al-Mumtahana 60-9); they’re enjoined to “slay them wherever ye catch them” (Al-Baqarah 2:19) until there is no more fitna or oppression or persecution (ld. 2:191, 193) or they relent (ld., 2:192-193). And when one dies in defense of family, home, honor and property he goes directly to Jannah or Heaven. (Hadith narrated by Zaid bin Zaid bin Amr, bin Nufail, Abu Dawud and Tirmidhi)



History tells us that Muslim women engaged in jihad side by side with men, marching with them in battles, bringing water to the thirsty, tending the wounded, setting broken bones, stemming the flow of blood, encouraging the soldiers, and sometimes joining in the actual fighting, running back and forth between the swords and spears, standing firm when some of the brave men had fled (Dr. The IBP Journal

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Muhammad Ali al-Hashimi, supra, p. 211). Their courageous conduct in battle was praised by the Prophet. (ld.) One of the most remembered women in Islam is Nusayba B. Ka’b al-Ansharriyy, one of the earliest converts to Islam in Madinah. In the battle of Uhud (625), she carried sword and shield and fought against the Makkahns. She sustained several lance wounds and arrows as she cast herself in front of the Prophet to protect him. (http://www.loonwatch.com/2014/03/15important-muslim-women-in-history) Another remarkable woman warrior in early Islam is Khawla B. al-Azwar (d. 639). She participated in the Battle of Yarmuk (636) and is lionized in Islamic history as the woman counterpart of the celebrated general in prophetic Islam, Khalid Ibn Walid, for her fighting prowess. (http://www.loonwatch.com/2014/03/15-important-muslim-womenin-history) 44. Khamanei, supra, p. 315. 45. Al-Baqarah 2:228 46. An-Nisah 4:34 47. Id. 48. Id., 4:4 and 34; Al-Baqarah 2:235; and Qur-an, Al-Talaq 65-7

As discussed, the responsibility for the upkeep of the family, the sustenance and support for the wife is lodged on her husband. (See also Article 6(b), 1990 Cairo Declaration on Human Rights in Islam). She may share in the burden of her own free will or out of charity or by way of loan to her husband.



In Philippine jurisdiction this kind of support (nafaqa) includes everything that is indispensable for sustenance, dwelling, clothing and medical attendance according to the social standing of the person obliged to give it, and the education of the person entitled to the support until she completes her education, training or vocation even beyond the age of majority. (Article 65, Code on Muslim Laws of the Philippines)

49. Id. 4:4. The dowry is her exclusive property. She exclusively determines the amount the groom has to defray for his dowry.

Except for acts which are intrusive to privacy and defamatory to a person’s honor and reputation, as discussed, freedom of expression is an injunction of faith, a duty sanctified for its role in the foundation of society. Says the Qur’an, “. . . (The Muslims should) enjoin what is just and forbid what is wrong and bear with patience constantly whatev’er beside thee for this is firmness (of purpose) in (the conduct of) affairs.” (Qur’an, Al-Luqman (the Wise) 31:17)

50. In a hadith narrated by Amr ibn Shiyab and Ibn Ma’jah, the Prophet was quoted to have said that a woman has a better right to have custody over her son or daughter after a divorce. This custody lasts until puberty for a son and until marriage for a daughter, while the financial responsibility for their maintenance remains with the father. (See also Al-Luqman 31:14) Volume 37, Number 3 & 4 - (July - December 2012)

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The Code on Muslim Person Laws of the Philippines defines this preferential right of a wife, as follows: The care and custody of children below seven years of age whose parents are divorced shall belong to the mother or, is her absence, to the maternal grandmother, the paternal grandmother, the sister and aunts. In their default, it shall devolve upon the father and the nearest paternal relatives. The minor above seven years of age, but below the age of puberty, may choose the parents in whom he wants to stay. (Article 78(1)) The unmarried daughter who has reached the age of puberty shall stay with the father, the son, under the same circumstances, shall stay with the mother. (Article 78(2), id.)



Females conferred with the right of custody will lose it, if they marry a male not related to the child within the prohibited degrees of marriage. (Muskat-ulMasabih, Al-Hadiz, pp. 725-726. In Bensaudi I. Iribami, Commentaries on the Code of Muslim Personal Laws of the Philippines. 2011: Rex Bookstore, p. 564)

51. In Al-Baqarah, a woman has the right to demand from her husband all the sustenance and care she needs for a period of two years within which she breastfeeds her child (Id., 2:233). If, for health and other reason, the woman does not lactate or cannot nurse her child, the husband has to employ a surrogate mother who lactates and is able to nurse the child with her breast milk. (Id.)

These injunctions are enshrined in the Code on Muslim Personal Laws of the Philippines. (Article 67(1)(2))



In a hadith reported by Ali lbn Abi Talib, the Prophet enjoins the father to select the foster-mother for the breast feeding of the child for the reason that breastfeeding affects and shapes the child’s character.

52. One of the privileges which accrue to women owing to their gender is the right to be treated kindly. The Prophet himself allowed his wives to speak their minds, in fact, tolerated their shouting and yelling at him. He would help with the family chores. (Hadith reported by Bukhari). He said: Women are “twin halves of men and whoever mistreats them is an evil person.” (Dr. Magda Amer, supra, p. 47. Hadith narrated by Tirmidhi and Bukahri). The Prophet also said that the best and the most perfect among the believers to their wives all those who treat them kindly and the wicked ones are those who insult them. (Hadith narrated by Muslim and Bukhari)

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Said Aishah: “The Prophet has never beaten anybody with his hands; not a woman nor servants except only while fighting in the cause of Allah.” (ld. p. 50). The IBP Journal

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He warned women not to marry a man who was known for beating women.

As Islam treats a married woman as a full jural personality in every sense of the term, she has a right to a house or apartment of her own. And a house or apartment implies the reasonable expenses for its upkeep and for her own and her children’s maintenance. And this is obligatory not only in her married state, but during the iddat (Al Baqarah 2:241), which is a most trying period for the woman. During the period she must not only be turned out, but it is not decent for her to leave of her own accord, lest the chances of reconciliation diminished. (Yusuf Ali, The Holy Qur’an: English Translation of the Meanings and Commentary, Saudi Arabia, p. 1764)

53. Hadith reported by Bukhari and Muslim 54. Al-Ahqaf (The Sandhills) 46:15 55. Al-Luqman 31:14 56. Prof. Azizah al-Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, 12 Am. M.S. Int’l L. & Pal’y 1 (1997) pp. 3-4 57. Id., p. 27 58. Dr. Muhammad Ali al-Hashimi, supra, p. 150 59. Id., p. 151 60. Id. 61. Id. 62. Id. Quoted by al-Hasimi from Tuhfat al-Fuqaha 63. http://sunnahonline.com/library/women-and-islam/407-muslim-women-inhistory 64. Zayn Kasam, Islamic Ethics and Gender Issues. In Joseph Runzo and Nancy M. Martin, eds., Ethics in the World Religions 2001: One World Publications, England, p. 12 65. Pro. Azizah al-Hibri, supra, pp. 5-6 66. Observation of Prof. Al-Hibri

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Teresita Asuncion M. Lacandula-Rodriguez

Children in Conflict with the Law: Diversion as Alternative to the Formal Court System Teresita Asuncion M. Lacandula-Rodriguez*

I. PROTECTION OF CHILDREN IN CONFLICT WITH THE LAW Under Philippine and international law, a child is one who is under 18 years of age.1 The tender age of the child makes him/her vulnerable and in need of protection. The need to safeguard and prioritize the welfare of children is paramount not just because of the inherent weakness of children but also because they are the future citizens of society. The Philippine Constitution gives importance to the role of children or the youth in nation building and makes the promotion and protection of their well-being a state policy: Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.2 A child who is in conflict with the law (CICL) becomes even more vulnerable because the coercive power of the State is leveled against him/her. In giving due regard to the child’s rights, the objective is also to prevent a pattern of lawlessness and provide a good example to the child in terms of protection of human rights and freedoms. In actions by the authorities involving children, the primary consideration should always be the best interests of the child3 which is defined as: “Best Interest of the Child” refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child’s physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.4 The Philippines is a signatory to and has ratified the United Nations Convention on the Rights of the Child (CRC) in 1990. One of the obligations of the country under the CRC is to formulate a policy of diversion of CICLs: Article 40 xxx xxx xxx

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*

Presiding Judge, Metropolitan Trial Court, Branch 81, Valenzuela City

1

An Act Establishing a Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating Funds Therefor and for Other Purposes [Juvenile Justice and Welfare Act of 2006], Republic Act No. 9344, § 4(c) (2006); Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 1 [hereinafter CRC].

2

Phil. Const. art. II, § 13.

3

CRC, supra note 1, art. 3.

4

Juvenile Justice and Welfare Act of 2006, § 4 (b).

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

3. State parties shall seek to promote xxx (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. With the best interest of the child as the standard, diversion of the CICLs from judicial proceedings is seen as appropriate to address their misbehavior. II. DIVERSION OF CHILDREN IN CONFLICT WITH THE LAW In order to implement the Philippines’ obligations under the CRC, particularly Article 40 thereof, the Juvenile Justice and Welfare Act of 2006 (Act) was passed. This law defined a CICL as one who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws.5 Family Courts were designated to handle criminal cases where children are the accused, including drugs cases.6 A CICL has the right to diversion if he/she is qualified and voluntarily avails of the same.7 The objective is for the child to be detained or undergo trial only as a last resort. If the child is above 15 years old but below 18 and acted with discernment, he/she is referred to diversion programs8 which the Act defines as: Section 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows: xxx xxx xxx (i) “Diversion” refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (j) “Diversion Program” refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. 5

Juvenile Justice and Welfare Act of 2006, § 4 (e).

6

An Act Establishing Family Courts, Granting them Exclusive Original Jurisdiction Over Child and Family  Cases, Amending Batas Pambansa Bilang 129, As Amended, Otherwise Known as The Judiciary Act of 1980, Appropriating Funds Therefor And for Other Purposes [Family Courts Act of 1997], R.A. No. 8369, § 5.

7

Juvenile Justice and Welfare Act of 2006, § 5(i).

8

Id. § 22 (b).

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The idea behind diversion as a policy for CICLs is that the child cannot be reformed if he/she undergoes the formal justice system and ultimately, incarceration. The formal justice system is not appropriate in dealing with CICL. Children, because of their vulnerability, are easily victimized by those they would interact with in the formal justice system who wield power, influence or ascendancy wrongfully, e.g. law enforcers, adult detainees and other older criminal elements. Consequently, their futures are further jeopardized; it becomes harder to get out of the cycle of criminality and the possibility of transforming them into responsible citizens becomes even more remote. Therefore, formal adjudication should be resorted to only when other less harsh alternatives have failed and only for very grave offenses committed by CICLs who are a danger to society or who refuse to be diverted from the formal court system. The objective is to invest in and secure the future of the CICL and give him/her every opportunity to change and turn his/her life around through rehabilitation and reintegration into society. Through rehabilitation, the CICL’s negative behavior and attitudes are rectified thus saving the child from further committing another wrong and finally restoring his/her childhood. Reintegration facilitates acceptance of the CICL back to the community and into normal life by teaching him/her life skills and nurturing his/her self-esteem.9 For such goals, every effort is exerted by the five pillars of the justice system — courts, law enforcers, prosecutors, correction and community — to save the child from the harshness of the formal justice system which not only includes the adversarial character of court trial but also the stigma of having a criminal record.10 Therefore, under Section 23 of the Act, if the crime the CICL is charged with has an imposable penalty of six years or less and there is a private offended party, the case may be referred to mediation, family conferencing and conciliation. If there is an admission by the child as to the commission of the offense, a diversion program shall be formulated. In victimless crimes, the appropriate diversion program for the child shall be developed by the Local Social Welfare and Development Officer (LSWDO) in coordination with the Barangay Council for the Protection of Children (BCPC). If the maximum imposable penalty is more than six years but not more than 12 years, only the judge can check the propriety of resorting to diversion before arraignment.11 Diversion may be resorted to even before the case reaches the court. Diversion can happen during the barangay mediation and conciliation proceedings under the Katarungang Pambarangay provisions in the Local Government Code12 applicable to criminal offences where the penalty does not exceed one year imprisonment or a fine of Php 5,000. It is also conducted during the police investigation and prosecutor’s inquest or preliminary investigation,13 by the law enforcer or prosecutor, respectively, but only if the offense allegedly committed has an imposable penalty of not more than six years of imprisonment. However, the child, his/her parent or guardian should consent to diversion and agree to

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9

Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc., Guidelines for a Community-Based Diversion and Prevention Programme for Children in Conflict with the Law 20 (2005) [hereinafter FREELAVA, Guidelines].

10

Rule on Juveniles in Conflict with the Law, A.M. No. 02-1-18-SC, Nov. 24, 2009, § 2 (e).

11

Juvenile Justice and Welfare Act of 2006, §§ 23 & 31.

12

An Act Providing for a Local Government Code of 1991 [Local Government Code of 1991], R.A. No 7160, §§ 399 et seq.

13

Juvenile Justice and Welfare Act of 2006, § 24.

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

the diversion program.14 III. THE PROCESS OF DIVERSION Studies show that CICLs in the Philippines are overwhelmingly male, are mostly from poor households and come from big families. Not surprisingly, the crimes committed are usually against property like theft and robbery or what are called “survival” or povertyrelated crimes.15 Many of them are repeat offenders or have been arrested before.16 Several are also gang members. These characteristics have been explained by the following factors: One factor that drives children to come in conflict with the law is poverty. Studies show that CICL often come from poverty-stricken families. Their situation pushes them to commit offenses in order to provide for their basic needs. Some of these children come from dysfunctional [families]. A family can be considered dysfunctional if parents are often in conflicts, have little trust in each other and make their children the object of their hostility. More often than not, children experience abuse, cruelty and neglect from the very people who are supposed to protect them. These situations force the children to turn to their peers for acceptance and find themselves engaged in illegal activities with their friends. Lack of education or low educational attainment is another factor that contributes to children becoming in conflict with the law. Another factor to consider is the communities where these children live. There may not be good schools or facilities available to provide them basic services. Their communities are likely to be places where criminality is high, and basic services are lacking. The environment may not be clean nor safe, and there may be few loving adults and role models.17 These characteristics of CICLs show that diversion programs, to be effective, should address root causes of their misbehavior and be designed to reintegrate the CICL into the community to prevent re-offending.18 CICLs should be viewed and treated as a vulnerable 14

Id. §§ 27, 28 & 31.

15 ������������������������������������������������������������������������������������������������������� Liane Peña Alampay, A Rights-based Framework for Preventing Juvenile Delinquency in Philippine Communities (An Unpublished Report Submitted to UNICEF Philippines) 26-27 [hereinafter Alampay, Rights-based Framework]; Jessica Knowles, Still Behind Bars: Child Incarceration and Juvenile Justice Policy in the Philippines (An Unpublished Report) 12-17, available http://www.preda.org/en/wp-content/uploads/2010/07/stillbehind-bars.pdf (last accessed Sep. 14, 2012) [hereinafter Knowles, Still Behind Bars]. 16

Knowles, Still Behind Bars, id. at 8-19.

17

Department of Social Welfare and Development, A Child that Cries for Another Chance: A Training Module for BCPC on the Juvenile Justice Act (RA 9344) 14-15 (n.d.) [hereinafter DSWD, A Child that Cries]

18

Inter-Agency Coordination Panel on Juvenile Justice, Protecting the Rights of Children in Conflict with the Law 27, available at http://www.unodc.org/pdf/criminal_justice/Protecting_children_en.pdf (last accessed Sep. 8, 2012).

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group who need assistance and protection rather than criminals to be punished. They should be treated as victims. The term CICL, in contrast to “juvenile delinquent”, acknowledges that the child is “in a situation” in which he or she is a victim.19 The diversion process includes the conduct of diversion proceedings which entails mediation, family conferencing and conciliation,20 formulation of diversion program, contract signing, implementation of the diversion program, monitoring and supervision of the CICL undergoing diversion, and lastly, its termination.21 Here is a brief discussion of the stages of the diversion proceedings: A. Conflict Resolution For diversion proceedings at the barangay, police and law enforcement level, the Punong Barangay or law enforcement officer, respectively, shall conduct mediation, family conferencing and conciliation.22 During the mediation process, the first thing to do is explain to the CICL and his/ her family the objective and value of the diversion as well as the consequences of not undergoing the process. The next steps, documented as best practices, are: 1. Ask the offending child of the circumstances of the crime — the motives or purpose of the offence and the factors that led the child to commit the offence; 2. Ask the same of his/her personal circumstance including his/her parents and family, his/her peers and educational status; 3. Make the CICL understand the consequences of his/her actions and the corresponding responsibilities; 4. Ensure that the child understands and realises his/her accountability, be remorseful of his/her actions and takes on the responsibility in repairing the harm done in lieu of filing a formal case in the court; 5. Explain to the complainant the benefits of forgiveness and diversion, and the need to reform the child within the auspices of the community instead of detention centres or rehabilitation institutions once the child expresses remorse and a willingness to ask for forgiveness from the complainant. The xxx mediator shall also undertake the following: 1. Negotiate and persuade the complainant to settle the matter at the community level; and 2. Assure the same that the [community] will take custody of reforming and monitoring the child through various diversion and reparative activities.23 19

DSWD, A Child that Cries, supra note 17, at 16.

20

Juvenile Justice and Welfare Act of 2006, § 25; Rules and Regulations Implementing the Juvenile Justice and Welfare Act of 2006, Rule 43.c (2006) [hereinafter IRR].

21 ��������������������������������������������������������������������������������������������������������� Department of Social Welfare and Development, Guidelines in the Conduct of Diversion for Children in Conflict with the Law, Administrative Order No. 7, Series of 2008, V [hereinafter DSWD A.O. No. 7, s. 2008].

74

22

IRR, Rule 43.c.

23

FREELAVA, Guidelines, supra note 9, at 17.

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

One practice is to first conduct shuttle mediation wherein the mediator talks to the CICL and victim separately to orient them about the process first. The purpose is to familiarize them with the mechanics of mediation so that they are not alienated by the process they were not prepared for and do not understand. Instead of the formal adjudication where the child is prosecuted using the vast powers of the State, diversion proceedings involve the facilitation of a dialogue between the CICL and offended party wherein both are able to speak up and voluntarily reach a mutually satisfactory solution to their conflict. This face-to-face interaction and dialogue can result to an admission of fault and accountability, the seeking of forgiveness and genuine repentance which comes from empathizing with the victim and the latter likewise is not averse to helping his/her offender to improve his/her life. The belief is that this shared responsibility brings about justice more than when a punitive attitude is used against the CICL. During the mediation conference between the CICL and victim, options that are achievable are explored and directly negotiated by the parties. The agreement voluntarily reached must be acceptable to them. B. Formulation of Diversion Program In designing the program, the CICL and his/her parents or other responsible advocate for the CICL are consulted so that the result is practical and implementable. Likewise, the offended party is also heard. If the CICL is studying and his/her classes last from 7:00 a.m. until 3:00 p.m., he/she may be asked to participate in school-based activities. Otherwise, it may be more realistic to ask the CICL to make a significant contribution in his/her own household, e.g. wash the dishes or take care of younger siblings. If feasible and whenever available, the CICL can take part in community-based programs. Particularly when the CICL’s family is dysfunctional, community-based diversion has a better chance of success considering that the parents are unable to guide the CICL. Aside from availability of such programs, the activities to be required will depend on what the CICL has the capability to accomplish. For repeat offenders, they are usually charged without undergoing the prior levels of diversion.24 C. Acceptance and Signing of Diversion Contract The contract of diversion agreed upon by the CICL, with the guidance of his/her parents, guardian, advocate or other responsible adult, should be signed by them and attested to by the assisting LSWDO and authority conducting the diversion proceeding. The victim’s consent may be obtained but such is not indispensable for the validity of the contract.25 The contract shall state the responsibilities of the different participants: 24

Mae Fe Ancheta-Templa, et al., Understanding Children in Conflict with the Law: Contradictions on Victimisation, Survivor Behaviour and the Philippine Justice System 41 (2004).

25

DSWD A.O. No. 7, s. 2008, V, step 1, c.

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the CICL, his/her parents (if any) and the LSWDO who is duty-bound to supervise the implementation of the contract.26 D. Implementation of Diversion Program Based on the Diversion Contract According to the Training Module relied upon by the LSWDO, the diversion program should be completed in two years. If the contract is not implemented at all for a period of one month after signing, the authority conducting the proceedings shall certify such failure of the diversion proceedings, as noted by the LSWDO, and list the reasons for such failure. Thereafter, the CICL shall be referred to the next level of diversion.27 The LSWDO shall monitor and report on the compliance of the CICL and his/her parents with the diversion contract through surprise home or school visits. Considering the caseload of LSWDOs, the assistance of community volunteers, e.g. from local youth organizations or Sangguniang Kabataan, can be solicited to check the CICL’s progress or investigate any factors that prevent compliance.28 The LSWDO shall make recommendations to address any issues or difficulties in compliance. If there is failure to comply with the diversion contract, the LSWDO shall certify the same and refer the case to the law enforcer or prosecutor for proper action.29 E. Termination of Diversion Program After full compliance with the terms of the diversion contract resulting in the successful diversion of the CICL, the LSWDO shall make a terminal report which shall include his/her assessment of the diversion program. IV. KINDS OF DIVERSION PROGRAMS The Act lays down the kinds of diversion programs that the CICL can undergo: Section 31. Kinds of Diversion Programs. - The diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a) At the level of the Punong Barangay: (1) Restitution of property; (2) Reparation of the damage caused; (3) Indemnification for consequential damages; (4) Written or oral apology;

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26

Juvenile Justice and Welfare Act of 2006, supra note1, at § 26.

27

DSWD A.O. No. 7, s. 2008, V, step 1, c.

28

Id. at V, step 3.

29

Id.

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

(5) Care, guidance and supervision orders; (6) Counseling for the child in conflict with the law and the child’s family; (7) Attendance in trainings, seminars and lectures on: (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense; (8) Participation in available community-based programs, including community service; or (9) Participation in education, vocation and life skills programs. (b) At the level of the law enforcement officer and the prosecutor: (1) Diversion programs specified under paragraphs (a)(1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime; (c) At the level of the appropriate court: (1) Diversion programs specified under paragraphs (a) and (b) above; (2) Written or oral reprimand or citation; (3) Fine: (4) Payment of the cost of the proceedings; or (5) Institutional care and custody. Diversion includes rehabilitation and reintegration programs such as: • • • • • • • • • • • • • • •

Case monitoring; Follow-up and continuous counseling;30 Cleanliness drives and other community service endeavors; Fun and games; Music and entertainment;31 Formal education; Literacy and other non-formal education; Vocational training and education; Supervised employment schemes in trades and livelihood projects; Sports, recreational and other youth development programs; Play therapy, arts (visual and musical) and entertainment, community theatre; Values formation; Religious and spiritual enhancement programs; Peer counseling/education sessions;32 Alternative Learning System (the schedule of which is at 5:00 p.m. to 9:00 p.m.)

30

FREELAVA, Guidelines, supra note 9, at 20.

31

Id.

32

Id. at 30.

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Some best practices of FREELAVA (Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc.), a nongovernment organization based in Cebu City which was a pioneer in designing and implementing diversion programs for CICLs even before the passage of the Act, include the following activities as part of such programs: 1) Parenting Seminars and home visits - parents of minor offenders undergo counseling and participate in informal meetings (or pulong-pulong) where parenting practices and responsibilities, and the rights of children are discussed. Parent volunteers conduct home visits periodically to follow-up on the child’s activities and progress in school, and to assist in any difficulties. 2) Peer Education and counseling - former CICL form an organization of peer educators who associate with non-delinquent and at-risk youth to provide counseling and share testimonies and reflections about their experiences. The objective is to discourage [the] youth from turning to delinquent activities. In so doing, they serve as models and “big brothers [or sisters]” or mentors to younger at-risk youth. 3) Reintegration and socio-cultural activities - educational field trips (e.g., to the Mactan Export Processing Zone) and exposure to CICL rehabilitation centers motivate the youth and make them feel that they have a future to look forward to. Through these activities, the youth are made aware that they have responsibilities towards their communities, and that there are adults looking out for their welfare. These activities also give them the opportunity to simply have clean fun and enjoy being young.33 Other forms of diversion programs recommended by the Department of Social Welfare and Development (DSWD) are: a. Assist in caring [for] infants and other children with special needs, the elderly and those with disabilities in government and non-government institutions; b. Act as care-giver, tutor, reader, etc. to pre-school children in Day Care Centers, street children, senior citizens and other institutions; c. Conduct tree planting, vegetable gardening, garbage collection, cleaning of surroundings, drainage of canals and other environmental sanitation activities; d. Assist in the construction or repair of playground and sports centers, furniture, kitchen, bedrooms and other significant structure; e. Assist in the construction or repair of playground and [sports] facilities as well as initiate beautification projects such as painting, decorations of pathways, planting of ornamental plants, etc. f. Access to other government agencies providing programs for the youth such as: Department of Labor and Employment (DOLE), Department of Tourism (DOT), Department of Public Works and Highways (DPWH), Department of Health (DOH), Department of Environment and Natural Resources (DENR).34

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33

Alampay, Rights-based Framework, supra note 15, at 89-90.

34

DSWD A.O. No. 7, s. 2008, Annex D.

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

Considering that each CICL has unique needs and circumstances, the diversion program should be appropriate to his/her background: social, cultural, economic, psychological or educational, and geared towards positively contributing to his/her intellectual, physical and moral growth. It should likewise be commensurate to the offense committed. The factors that should be considered are laid out in Sections 29 and 30 of the Act: SEC. 29. Factors in Determining Diversion Program. - In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration: (a) The nature and circumstances of the offense charged; (b) The frequency and the severity of the act; (c) The circumstances of the child (e.g. age, maturity, intelligence, etc.); (d) The influence of the family and environment on the growth of the child; (e) The reparation of injury to the victim; (f) The weight of the evidence against the child; (g) The safety of the community; and (h) The best interest of the child. SEC. 30. Formulation of the Diversion Program. - In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment. The following factors shall be considered in formulating a diversion program for the child: (a) The child’s feelings of remorse for the offense he/she committed; (b) The parents’ or legal guardians’ ability to guide and supervise the child; (c) The victim’s view about the propriety of the measures to be imposed; and (d) The availability of community-based programs for rehabilitation and reintegration of the child. If the CICL is already charged in court, pending the determination of diversion by the Diversion Committee, the court shall commit the child to an appropriate youth detention home or youth rehabilitation center which shall be responsible for the presence of the child during the diversion proceedings, if it is not advisable to release the child to his/her parents, guardian or relatives.35 There are existing Regional Rehabilitation Centers for the Youth where the CICL may be referred if his/her family is not financially capable of supporting him/her or if he/she will be safer here. Some of the activities in the Center are: back-to-school program, values formation, skills and livelihood training, sports and recreation, scouting, and outreach programmes for male and female children within the neighbouring slum 35

Rule on Juveniles in Conflict with the Law, § 32; FREELAVA, Guidelines, supra note 9, at 20-21.

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areas.36 CICLs who are drug users have a different treatment under A.M. No. 07-8-2-SC.37 Those who are charged in the Family Court found to be drug dependents after assessment by a physician accredited by the Department of Health (DOH) and as stated in the case study report prepared by the court social worker shall be ordered by the court to undergo treatment and rehabilitation in a Rehabilitation Center for six months up to one year.38 This voluntary submission program shall actively involve the CICL’s family, school, community organizations and the court.39 The DOH-accredited physician or Rehabilitation Center shall report to the court the status of the treatment of the CICL.40 Upon discharge, the CICL shall be exempt from criminal liability if he/she complied with the rules under the program and does not pose a danger to himself/herself or the community unless he/she has other drug cases or escaped from confinement.41 Even if the CICL does not qualify for exemption, the court may put the CICL under probation and order him/her to undergo community service instead of imprisonment.42 Thereafter, the court may approve an after-care and follow-up program for at least 18 months as recommended by the DOH-accredited physician.43 This shall include community service for the CICL.44 V. STRENGTHS OF EXISTING DIVERSION PROGRAMS The following are the strengths of various diversion programs as mandated by the law, which are practiced and implemented in the Philippines: Restorative Justice. The concept of restorative justice is officially recognized in the Act. It replaced the concept of retributive justice where the system mainly acts to punish the offender. It promotes the role of the community in dealing with the CICL with the end of re-establishing harmony. The focus is the restoration of relationships: the offended party is compensated with the reparation of the harm done, his/her anger is diffused and his/her sense of justice is affirmed; the CICL who is reformed and remorseful is reintegrated into and reconciled with the community and the community feels safer that a CICL has been transformed and ready to be a functional and productive member of society.45 All these are achieved through dialogue and negotiation thus the process is not adversarial. Instead of convicting the offender, the aim is to solve the problem that

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36

Felisa U. Etemadi, et al., Children in Conflict with the Law in Cebu: Profile and Experience with the Juvenile Justice Process 47 (2004).

37

Supreme Court, Rule on Children Charged under Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, SC Administrative Matter No. 07-8-2-SC [SC A.M. No. 07-8-2-SC] (Nov. 5, 2007).

38

Id. §§ 9, 10, 13.

39

Id. §12.

40

Id. §13.

41

Id. §14.

42

Id. § 17.

43

SC A.M. No. 07-8-2-SC, § 15.

44

Id. § 17.

45

FREELAVA, Guidelines, supra note 9, at 7.

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

led to the crime and its consequences. In this way, it is forward looking and moving on from the past, seeking to change negative behavior and cultivating in the community an atmosphere that is conducive for such positive changes to be accepted and nurtured. Although government professionals (prosecutor, public attorney, social worker, barangay officials, and police) facilitate the process, the CICL and his/her family and the victim can directly interact with each other and actively come up with solutions to their own problem. Juvenile Justice and Welfare Council (JJWC). The Act created the JJWC which has approved manuals to aid in the law’s implementation, e.g. a) Police Manual on the Management of Cases of Children in Conflict with the Law: Simplified Rules in the Apprehension and Investigation of CICL; b) Monitoring Tool for LGU’s Compliance with RA 9344; c) Self-Instructional Manual for Social Workers in Assessing Discernment of CICL, and d) Training Module for BCPC on the Juvenile Justice and Welfare Act: A Child that Cries.46 The preparation of such manuals greatly aids in improving the understanding of the law by the different justice sector pillars and enhances their compliance with its provisions. Consent of Complainant. Since diversion is a right, the consent of the offended party is not indispensable although his/her views are taken into consideration. Diversion Committee. The Diversion Committee in the court is formed when the information is filed and before arraignment. The Committee, which is composed of the Branch Clerk of Court as chairperson; the prosecutor, a lawyer of the Public Attorney’s Office (PAO) assigned to the court, and the social worker assigned by the court to the child, as members,47 has enough diversity and various offices are represented therein such that it comprehensively draws knowledge from different aspects of the justice system. Consequently, the group as a whole has a complete perspective about the resources and services available for the CICL as it designs the diversion program. Consent to Diversion. Because diversion is voluntary and not imposed, the expectation is that the resulting program will be complied with and successfully completed. Community Resources. The community can contribute greatly to the successful diversion of a CICL. Thus, those directly involved in the diversion proceedings should know what the community has to offer in terms of programs and services of the different sectors in the locality, e.g. government offices, nongovernment organizations, people’s organizations, schools and civic or faith-based organizations.48 The DSWD lists as examples the following institutions that provide community services: Pag-asa Youth Association of the Philippines (PYAP), Sangguniang Kabataan (SK) and Local Council for the Protection of Children (LCPC).49 Peer Educators. CICLs can relate to peer educators because of the similarity in 46

Department of Justice, Department of Justice Annual Report 2010 (An Unpublished Report) 36, available at http://www.doj.gov.ph/files/2010Annual.pdf (last accessed Sep. 14, 2012).

47

Rule on Juveniles in Conflict with the Law, § 31.

48

DSWD A.O. No. 7, s. 2008, at V.

49

Id.

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their experiences. These educators can share their experience in jail and the hardships and consequences of reoffending which can persuade the CICL to refrain from further committing acts that they will regret in the future and instead to turn their lives around for the better. Peer educators can give advice about staying away from negative influences (e.g. substance abuse and lawless gangs) and engaging in constructive or wholesome activities.50 Minimum Restriction. Unlike detention or incarceration, diversion programs need not impose burdensome restrictions on the CICL. Considering that the aim is to redirect the life of the CICL into normalcy, any restrictions required are those that are necessary and constructive. Continued Schooling. The diversion program should not interfere with the CICL’s schooling. With diversion, there is a greater chance that the CICL will be kept in school which in turn will provide him/her with productive activities and equip him/her with the necessary knowledge and skills to secure work in the future. Even the diversion proceedings need not interfere with the CICL’s attendance in school and can be scheduled after school hours. Case Study Report. A report on the family background of the CICL is essential to understand his/her situation, concerns and needs which will be addressed by the diversion program. Other relevant information are: • Developmental age; • Educational attainment; • Family and social relationships; • The quality of his/her peer group; • The strengths and weaknesses of the family; • Parental control over the child; • Attitude towards the offence; • The harm or damage done to others resulting from the offence; • Record of prior offences, if any; and • The attitude of the parents towards the child’s responsibility for the offence.51 The data is gathered through interviews with the CICL and his/her parents. Home visits and collateral interviews with relatives or other relevant people are conducted when necessary to validate the information if there are lingering questions. Intervention Programs. There is a recognition that troubled and disadvantaged children should be placed under positive circumstances so that they are not at risk of being in conflict with the law. Thus intervention programs from the community to the national level are developed to address such risks and enhance the child’s, his/her family’s and their community’s capabilities and strengths.52 Interventions may be primary, secondary or tertiary:

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50

FREELAVA, Guidelines, supra note 9, at 32.

51

Id. at 29.

52

DSWD: A Child that Cries, supra note 17, at 74.

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Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

Primary interventions are developmental in nature. These are general measures to promote social justice and equal opportunity, which tackle root [causes] of offending, therefore, developing potentials and sustaining strengths of the child, family and community to prevent circumstances of the child being at risk of reoffending. Interventions are centered on the community as the larger system including its members – the families and their children and individuals – to contribute to general community welfare. Secondary interventions are preventive and protective in nature. These are measures that assist the child at risk of offending, his/her family and the community with the aim of preventing circumstances that make the child [get] in conflict with the law. Interventions are focused on problem areas in the child, family and community, that in resolving such problems, the circumstances of the child would return to a healthy and functioning state. Tertiary interventions are remedial in nature. The child is in conflict with the law, thus, the interventions aim to restore his/her functioning state, repair the damages created as a result of his/her offense and prevent re-offending. Interventions are heavy on the child and his/her family as his/her immediate support system. The community is helped to support the rehabilitation process of the child and the family.53 Diversion programs fall under tertiary interventions. VI. WEAKNESSES OF EXISTING DIVERSION PROGRAMS Even after around nine years the Act was passed, this law has not yet been completely implemented thus its full potential has not been reached. Awareness of the Act. Those tasked to implement the Act or who have duties under it are not familiar with its provisions and requirements. Even among judges, particularly in far-flung areas, there is a lack of awareness of the Act. Limited Use of Diversion. Diversion is neither well known nor practiced at the barangay, police and prosecution levels for various reasons. Barangay officials say that police officers do not refer CICL to them because the latter view diversion proceedings at the barangay level as an unnecessary step which makes their investigation longer. The police and prosecutors do not conduct it as a matter of procedure because they are concerned that the victim will view this as bias in favor of the CICL. It may also be that the heavy caseloads of these public officers hinder them from faithfully performing their duties under the law. Furthermore, several still have the mindset that the court should just deal with the CICL. Barangay Council for the Protection of Children (BCPC). Not all BCPCs are organized, with its head and members appointed, or even if organized are active and fully functional. Hence, it is not surprising that many of the BCPC’s members, if there are any, are not trained nor knowledgeable about the Act and what they are supposed to do for CICLs. The community services they ask the CICL to engage in may not be responsive to 53

Id. at 74-75.

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the needs of the latter and does little to rehabilitate him/her, e.g. cleaning of the barangay hall or community common areas, clerical work, or generally expecting them to do utility work (utusan). Moreover, the lack of regard to the Act’s requirement of confidentiality may be damaging to the self-esteem of the CICL. Diversion at Police Level. The police officers very seldom conduct diversion proceedings. In fact, even a recent legal advisory of the Philippine National Police does not include in their guidelines that an arrested CICL should be referred to the barangay for mediation proceedings when the Katarungang Pambarangay provisions are applicable: If the child committed a non-serious offense Q: What are the effects if the police find out that the child committed a nonserious offense? A: The following are the effects:

Outside court diversion is allowed. Caveat: Although diversion is allowed at the PNP station level, it is safer to pass this responsibility to the DSWD Officer. xxxx

Q: Could the Authority who had initial contact with the child aged 15 years and one day but below 18 years old, and who acted with discernment, immediately release the child to the custody of the mother or father? A: No. This time, it is the Court alone which could order the release of the child to the parents, etc (Sec. 25, AM No. 02-1-18-SC). Note: This is the reason why the PNP has to file the case even if there is outside court diversion. Once the case has been filed, the Prosecutor has no option but to conduct inquest proceedings and file the case in court so that the court could acquire jurisdiction over the case and it could order the release of the accused on recognizance. The success or failure of the outside court diversion does not have any effect on the filing of the case. Whatever the result of the outside court diversion will be noted in the court docket as the outcome of the case.54 Poor Coordination. The efforts towards diversion among the five pillars are poorly coordinated. Thus, the LSWDO may not know that a CICL is in jail. A period of time is necessary as well to coordinate with the Youth Home for the transfer of the CICL. Lack of Family Courts. Not all provinces and cities have Family Courts as mandated by the Family Court of 1997. Even the existing Family Courts were not created but merely designated as such from regular Regional Trial Courts. They suffer from heavy caseload considering that family law cases have recurring pending incidents, e.g. action for support, and lack of personnel. Heavy Caseload of PAO. Public attorneys whose job is to defend CICL have heavy 54

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PNP Legal Service, Legal Advisories (May 2012), available at http://www.ls.pnp.gov.ph���������������������� / May �������������������� 2012 Legal Advisories B.pdf (last accessed Sep. 14, 2012).

The IBP Journal

Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

caseloads that prevent them from providing quality legal representation to all their clients. Even well-intentioned or passionate defenders cannot give their best in each and every case because it may not be humanly possible. Youth Detention Home/Rehabilitation Center. Only a few cities have Youth Detention Homes solely for the detention of CICL. More often, these provide housing for other children in need, e.g. those who are abused or abandoned, drug users, street children and runaways.55 Detention of CICL in police precincts or jails may be inevitable for lack of Youth Homes. Also, these homes lack resources necessary to give proper care to their wards, e.g. food, medicines, toiletries and productive activities.56 These Homes resemble jails in that they have cells with bars.57 Training of Justice Sector Involved with CICL. Through the Enhanced Justice on Wheels program of the Supreme Court, the Philippine Judicial Academy (PHILJA) trains barangay officials on diversion procedures. The Capacity Enhancement Training extends not only to judges, but also the public prosecutor, public attorney, branch clerk of court and the social worker. Though these trainings are helpful, the shortness of the modules does not give the participants time to internalize the spirit of the Act or to fully understand its intention. Local Social Welfare and Development Officer. The role of the LSWDO is crucial in diversion proceedings not just because of his/her expertise but because he/she assists in its conduct in all levels of diversion. However, there are so few of them, with each one handling hundreds of cases. They are overburdened considering that each case necessitates an investment of time, patience, empathy and genuine concern for the CICL who often relies on the LSWDO’s guidance and support. VII. RECOMMENDATIONS The following are suggested mechanisms which could assist in and improve the implementation of the Act, particularly in the diversion of CICLs: Information Campaign. All the parties involved in its implementation should be educated about the provisions of the Act and generally about CICL’s and children’s rights either through institutional formal training sessions, community discourse or fora and dissemination of user-friendly booklets. Workshop Trainings. As stated earlier, lecture type trainings which are usually done in short segments (e.g. half the day) may not be enough to familiarize stakeholders with the Act or inculcate empathy for CICLs. A workshop where biases can be exposed and with sessions designed to induce a paradigm shift may be more successful in training implementers. Principle of Restorative Justice. There should be a national information dissemination and discourse on this principle through the active involvement of the media, 55

Knowles, Still Behind Bars, supra note 15, at 9.

56

Id. at 34-35.

57

Id. at 37.

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church and civil society.58 It might help if success stories of CICLs who have undergone diversion and aspired to be better be publicized, e.g. through a video documentary. Role of JJWA. The JJWC should strictly monitor the implementation of the Act in order to gather the data necessary to evaluate the juvenile justice system and the impact of diversion programs on CICLs with a view to improving the same. Referral to Barangay. The very first level of diversion at the barangay should not be skipped so that every opportunity is given to spare the child from formal adjudication. In view of the high incidence of violation of the eight-hour limit for police custody,59 referral to the barangay would also prevent or minimize police detention of children. Children who are arrested, even in flagrante delicto, should not be brought immediately to the police station but to the Lupon for mediation proceedings under the Katarungang Pambarangay law. For example, barangay tanods and owners or management of malls or stores should be advised to order their security or civilian guards to bring the child to the barangay first for mediation. The parents of the child should be called so that settlement can be negotiated. Mediation Room. To facilitate the process, there should be a private mediation room that is separate from other activities so that the parties can focus and feel comfortable. The CICL and his/her parents, guardian or in their absence, a social worker or other responsible adult, the victim and arresting authority should be present during mediation.60 Child-Friendly Proceedings and Language. In order to be productive and constructive, the diversion proceedings should be sensitive to the CICL’s needs and stage of development. He/She should not be humiliated or made to feel uncared for and insignificant. Understanding the Child. In order to assist the child properly, court workers should build rapport with the child. Participation of Child. Consistent with the Article 12 of CRC, the child has the right to have a say on matters affecting him/her: Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

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58

Special Committee for the Protection of Children, DOJ, Protecting Filipino Children from Abuse, Exploitation and Violence (An Unpublished Paper) 40, available at http://philippinetourism.ph/filer/Filipino_children.pdf (last accessed Sep. 14, 2012).

59

Juvenile Justice and Welfare Act of 2006, § 21 (i); Knowles, Still Behind Bars, supra note 15, at 25-28.

60

FREELAVA, Guidelines, supra note 9, at 25.

The IBP Journal

Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

The rationale is that the CICL knows his/her own situation best and that if he/ she understands the program and agrees with it then he/she will comply with his/her obligations and meaningfully engage in the activities required under the program. The child should be explained to so that he/she comprehends what is happening and guided every step of the way. He/She should also be consulted when assessing the impact of the program considering it is his/her life being dealt with. The child might contribute valuable insight that can be used to improve the system and its policies. Most people, including children, value having a say in events and decisions affecting them. In decision-making involving the child, the right of the CICL to be heard has to be balanced with his/her ability to grasp the consequences of different options. A CICL, while he/she have his/her opinions, may have limited knowledge on how the world works and about the repercussions of certain decisions on his/her future. Thus, the CICL’s view may not coincide with what has been deemed as in his/her best interests. However, what is decided as the best interest of the CICL should consider the latter’s own views about the situation. The CICL’s advocate should always listen to and consider the CICL’s decisions, perspective and ideas and not automatically dismiss the same as incompetent or unpersuasive. Listening to the CICL also means not prejudging the situation based on personal biases and notions. Adult Support During Proceedings. To ensure that the CICL is not coerced into an agreement and that his/her rights are protected and well-being safeguarded, the CICL should be accompanied by his/her parents, guardian or other responsible and respected adult. Peer educators can also help in giving advice and comfort. Benefits Explained. The process has to be explained carefully and not haphazardly to the parties so that they understand it and thus optimize the results of the diversion proceedings. Clarify Responsibilities. In implementing the diversion program agreed upon, the roles of the different authorities and parties involved in the proceedings should be delineated and laid out to avoid confusion and shirking of responsibilities. Lawyer-Client Confidentiality. The CICL’s advocates, in keeping with the standard of the best interests of the child, may decide to divulge information confided in confidence but which indicates potential harm to the child, e.g. danger of physical harm or retaliation, child abuse, psychological problems, threats of or predisposition to suicide.61 Socio-economic Realities. The child’s advocate should understand the realities of the child’s life, including the socio-economic factors which influence it, and not be limited to the legal aspects of the problem. Single Interview. The CICL should not be made to narrate his/her story multiple times to avoid being traumatized. Also, although it is helpful to have different representatives with distinct roles in the process, the number of people should not be overwhelming so as to make the CICL feel that the state authorities are ganging up on 61

Institute of Human Rights, University of the Philippines Law Center, Handbook for Lawyering for Women, Children, Indigenous Peoples, and the Poor (An Unpublished Paper) 45, available at http://law.upd.edu.ph/ files/pdf/hlp.pdf (last accessed Sep. 2, 2012).

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him.62 Stress Management. Aside from training for competence, family court personnel including the Diversion Committee members should have a consistent stress management program. This is necessary because of the seriousness of the issues they deal with on a regular basis and the vicarious burden suffered by them. Minimize Detention Time. The goal is to implement the policy that “a child cannot wait”, i.e. that even a day in detention or jail by the CICL is time wasted.63 The CICL should be with his/her family, school or any responsible person from the community who can give him/her support and it is commonly held internationally that jail time neither gives nor encourages normalcy in the child’s life. In many police stations, the boys are segregated from the girls but the children are not separated from the adults. Because of this, there was a tragic story of a boy who was raped by a man who was detained in the same place. There are also stories of corrupt police officers who make the detainees do chores for them. Children should be kept out of jails because of their deplorable conditions, e.g. lack of space, ventilation and food, unclean and pest-infested cells and spread of disease64 Time in jail hardens children and adds to their disillusionment and despair. Punishment of Violators. Those who violate the Act must be sanctioned to prevent such behavior which results in lasting damage to CICLs. Local Government Unit (LGU) Support. The most immediate expanded support for the CICL is the community thus the LGU should give priority to funding and instituting community services which can be part of diversion programs. Replicate Best Practices. The community-based diversion programs of FREELAVA in Cebu have been tried and tested in terms of design and implementation. Such best practices have to be disseminated to other communities. Police Involvement in Community Diversion. The police should be included in the community programs for diversion to inform them about such activities and their thrusts and to familiarize them with the process so that they will be inclined to immediately turn over children who are arrested to the BCPC instead of detaining them or passing them to the prosecutor for immediate filing of formal charges.65 Community Awareness. Unless the broader community is educated about the difficulties of CICLs and the efforts to turn their life around, the stigma attached to CICLs will interfere with their reintegration into the community. Parental Education. Some parents of CICLs need to be guided and be made aware of their parental roles and responsibilities so they are equipped to be role models to their children.

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62

FREELAVA, Guidelines, supra note 9, at 24.

63

DSWD: A Child that Cries, supra note 17, at 74.

64

Knowles, Still Behind Bars, supra note 15, at 29.

65

FREELAVA, Guidelines, supra note 9, at 12.

The IBP Journal

Children in Conflict with the Law: Diversion as Alternative to the Formal Court System

Repeat Offenders. Recidivists should still be allowed to undergo diversion but the design of the program should be stricter in terms of the CICL’s responsibilities and in the monitoring of compliance with the program. Monitoring of Diversion Program. Monitoring of compliance with the program can be done through house visits. The LSWDO shall assess the progress of the CICL.66 Non-compliance should be addressed and corrected and counseling can be recommended when necessary. However, if there is incorrigibility, the offended party can file charges against the CICL.67 Reports should be submitted so that the program and its effectiveness can be evaluated.68 School Involvement. To encourage CICL to go back to school without feeling stigmatized, the school officials and guidance counselors should be educated about the diversion process and tapped to help in the reintegration of the CICL. Confidentiality and Privacy of Proceedings. Those who are not parties to the case should not be included in the proceedings so that the CICL will be comfortable, secure and confident in telling his/her story and views. Accordingly, the place for the interview/dialogue should be neutral, private and free from distractions. Likewise, the identities of the parties should be kept confidential. VIII. CONCLUSION The importance of diverting CICL from the formal justice system cannot be overemphasized given the abuse that can be suffered by them in the system and the fact that their experience in it do not contribute positively to their lives. All possible effort and resources should be provided to fully implement the Act and give proper support to CICL if the country cares about its future. •••

66

Juvenile Justice and Welfare Act of 2006, § 26.

67

Id.

68

FREELAVA, Guidelines, supra note 9, at 28.

•••

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The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code* Frank E. Lobrigo**

I. INTRODUCTION ​ The enactment of the new Philippine insolvency law1 in 2010 makes the country’s insolvency system at par with the world’s systems and international best practices on insolvency. The law gives a basic structural framework to the country’s economic fundamentals. Its objective is the reallocation of resources and the distribution of liabilities so that viable and sustainable businesses beset with financial distress can continue their operation by avoiding premature liquidation.2 Since the function of an insolvency law involves the distribution of resources, it is inevitably tied to the rules on concurrence and preference of credits under civil law. The latter law governs the distribution of the assets of an insolvent debtor among the different classes of claimants or creditors. Conversely, the rules on concurrence and preference of credits are dependent on an insolvency regime as the applicability of these rules is predicated on the insufficiency of the resources of the debtors, hence, the necessity of distributing available resources to similarly or differently situated claimants or holders of credits.  It is unavoidable therefore that insolvency law, on one hand, and the rules on concurrence and preference of credits, on the other, will be interdependent on one another. From this interdependence nexus, especially under the regime of the FRIA, however arises tension between their respective provisions. This tension becomes apparent when one considers that an insolvency law provides relief to a financially distressed debtor which is unable to meet its current obligations. In insolvency law parlance, financial distress need not necessarily be a result of balance-sheet insolvency. Debt relief under the insolvency law thus opens up at least two (2) remedies to the financially distressed debtor. The first option which is rehabilitation accords the debtor breathing space by allowing him to continue operating the business, if it is still viable, without being burdened with debt repayments that it could not afford in the first place. The other more drastic option is liquidation, by which the business that it is no

90

*

Excerpt from a paper entitled “The Tension between the Financial Rehabilitation and Insolvency Act and the Rules on Concurrence and Preference of Credits of the Civil Code” submitted in the Master of Laws Program of San Beda College Graduate School of Law

**

Presiding Judge, Regional Trial Court, Branch 3, Legazpi City

1

An Act Providing for the Rehabilitation or Liquidation of Financially Distressed Enterprises and Individuals [Fria], Republic Act No. 10142 (2010), lapsed into law on 18 July 2010.

2

Francis Ed. Lim, Esq., Toward a More Forward-Looking Insolvency System (An Unpublished Paper Submitted for the 9th Metrobank Foundation Professorial Chair, 25 January 2013), at 3

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

longer viable is terminated altogether, and distribution of its net assets among the different classes of debtors follow as a consequence. In the latter mode, the debtor is granted a clean slate and may start all over again without being burdened by past debt obligations.  ​Traditionally, the rules on concurrence and preference of credits apply only to the liquidation process, be it in an insolvency proceeding or a settlement of estate. In both proceedings, the assets of a debtor or estate are distributed among the creditors, claimants, or heirs as the case may be. The FRIA changes this long-standing rule on when the concurrence and preference of credit can apply as it now allows, nay mandates, the application of the rules even in a rehabilitation plan where there is no liquidation or distribution of assets among the different classes of creditors. ​This paper explores the interdependence between the provisions of the FRIA and the rules on concurrence and preference of credits of the Civil Code.3 It also proposes that the FRIA upholds the “absolute priority rule” in favor of the secured creditors, with respect to the security or collateral encumbered by the insolvent, as a result of which they may be considered sui generis. It also proposes a novel legal theory that the absolute priority of the secured creditors to the specific assets put up as debt security effectively delists them from among the preferred creditors enumerated in the rules on concurrence and preference of credits but without consequential diminution of their rights. II. THE INTERDEPENDENCE NEXUS BETWEEN THE NEW INSOLVENCY LAW AND THE CIVIL CODE The FRIA mandates that the rehabilitation plan or the liquidation plan to be approved by the Regional Trial Court must ensure that the payments made under the plan follow the priority established under the provisions of the Civil Code on the concurrence and preference of credits and other applicable laws,4 unless a preferred creditor, in a liquidation plan, voluntarily waives his preferred right. Corollarily, by jurisprudence, before the rules on concurrence and preference of credits could be applied there x x x must be first some proceeding where the claims of all 3

An Act to Ordain and Institute the Civil Code of the Philippines [Civil Code], Republic Act No. 386 (1950)

4

Fria, § 62. Contents of a Rehabilitation Plan. – The Rehabilitation Plan shall, as a minimum: x



x

x

(i) ensure that the payments made under the plan follow the priority established under the provisions of the Civil Code on concurrence and preference of credits and other applicable laws; x

x

x

Fria, § 133. Concurrence and Preference of Credits. - The Liquidation Plan and its Implementation shall ensure that the concurrence and preference of credits as enumerated in the Civil Code of the Philippines and other relevant laws shall be observed, unless a preferred creditor voluntarily waives his preferred right. For purposes of this chapter, credits for services rendered by employees or laborers to the debtor shall enjoy first preference under Article 2244 of the Civil Code, unless the claims constitute legal liens under Article 2241 and 2242 thereof.

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the preferred creditors may be bindingly adjudicated, such as insolvency, the settlement of a decedent’s estate under Rule 87 of the Rules of Court, or other liquidation proceedings of similar import.5 The Supreme Court explained the rationale for this rule, thus:6 “A preference of credit bestows upon the preferred creditor an advantage of having his credit satisfied first ahead of other claims which may be established against the debtor. Logically, it becomes material only when the properties and assets of the debtors are insufficient to pay his debts in full; for if the debtor is amply able to pay his various creditors in full, how can the necessity exist to determine which of his creditors shall be paid first or whether they shall be paid out of the proceeds of the sale of the debtor’s specific property. Indubitably, the preferential right of credit attains significance only after the properties of the debtor have been inventoried and liquidated, and the claims held by his various creditors have been established. (Citations omitted.)” Even as the FRIA requires adherence to the rules on concurrence and preference of credits, these rules could not be applied unless an insolvency proceedings would be initiated in accordance with the FRIA against an insolvent debtor. There lies the interdependence between the FRIA and the rules on concurrence and preference of credits. In case of divergence, which law should prevail then? The Primacy of Secured Creditor’s Rights Most countries have two bankruptcy [or insolvency] procedures, one for reorganizing [or rehabilitating] failing firms, and the other for liquidating the assets of failing firms.7 By definition, an insolvent firm has assets whose value is less than the total amount of creditors’ claims. If unsecured creditors perceive that a firm is or may be insolvent, they anticipate that it will not be able to repay all its creditors in full and – as in a bank run – they have an incentive to race against each other to be first to collect from the firm. Unsecured creditors race to collect by declaring their loans in default and suing the firm for repayment. Secured creditors have less incentive to race against each other since they can foreclose on their collateral if default occurs. When unsecured creditors win their lawsuits, they have the right to liquidate any assets of the firm not subject to secured creditors’ liens. But when individual creditors liquidate assets piecemeal, they disrupt the firm’s operations and may force it to shut down even when the best use of its assets is continued operation. Also individual creditors are concerned only with repaying their own claims, not with selling the firm’s assets for their maximum value. The race by creditors to be first to collect from failing firms is an example of the prisoner’s dilemma8 and may lead to inefficient use of failing firms’ assets.9

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5

De Barretto v. Villanueva, 1 Scra 288, at 296 (1961)

6

Development Bank of the Philippines v. Secretary of Labor, 179 Scra 630, 634, 635 (1989)

7

Michelle J. White, Corporate Bankruptcy (An Unpublished Paper) at 1, available at http://econweb.ucsd. edu/~miwhite/palgrav2.pdf (last accessed 3 March 2014)

8

A situation wherein 2 suspects are separately detained by the authorities who have no evidence against them unless one will squeal on the other and both might end up in prison by telling on each other. The situation creates a collective incentive for the prisoners to cooperate with each other by keeping silent and jointly earn their freedom or an individual incentive to squeal against the other on a belief that he would get his freedom but actually both end up getting jailed. Thus, the prisoners are better off cooperating with each other than each one thinking of his own freedom only, which might result to both of them losing it.

9

White, supra note 7, at 5

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

The bankruptcy reorganization [or rehabilitation] procedure in the U.S. is called Chapter 11. Under Chapter 11, existing managers of firms usually remain in control as “debtors-in-possession,” they have the exclusive right for at least six months (and normally much longer) to propose a reorganization plan for the firm and they have substantial control over the bargaining process generally. The reorganization plan specifies how much each creditor will receive in cash or new claims on the firm. There are two separate procedures for adopting a plan. Under the most commonly used of the two, all classes of creditors and equity as a class must vote in favor of the plan. Creditors must receive at least what they would be entitled to if the firm would be liquidated and the proceeds were distributed according to the “absolute priority rule.”10 The bankruptcy liquidation procedure in the United States is called Chapter 7. When a firm files under Chapter 7, the bankruptcy court appoints a trustee who shuts the firm down and sells its assets. The bankruptcy priority rule that determines how the proceeds of the sale are divided is called the “absolute priority rule.” It specifies that claims are paid in full in the following order: first, administrative expenses of the bankruptcy process itself; second, claims taking statutory priority, such as tax claims, rent claims, and unpaid wages and benefits; and, third, unsecured creditors’ claims, including those of trade creditors, long-term bondholders, and holders of damage claims against the firm. Subordination agreements which specify that certain unsecured creditors rank above others in priority are followed; otherwise all unsecured creditors’ claims have equal priority. Equity holders receive the remainder, if any. Secured creditors are outside the priority ordering. They have bargained with the firm for the right to claim a particular asset or its value if the firm defaults and/or files for bankruptcy. Secured creditors thus may receive a payoff in bankruptcy even when all other creditors receive nothing.11 The Absolute Priority Rule It is well settled for over a century that a shareholder or equity holder must not receive any payment or other form of profits until a business’s debts are paid. This theory came in response to the actions taken by senior creditors and shareholders looking to reorganize a failed business. Senior creditors would entice shareholders to supply new capital to a floundering business by providing the shareholders with a stake in the newly formed business. However, subordinated debt holders would often be left with nothing, despite the fact that their debt was clearly superior to any equity position held by the shareholders. Almost one hundred years ago, the [US] Supreme Court quashed this practice by holding that creditors must be paid before any stockholder should be compensated monetarily in a reorganization of a failed business. Eventually, the Bankruptcy Code codified this theory as the absolute priority rule, which is a perquisite to confirmation of a chapter 11 plan of reorganization. In its most basic form, the absolute priority rule mandates that a contested chapter 11 plan must not be confirmed over the objection of a dissenting class unless the dissenting class receives the full value of its claim, or a junior creditor to the dissenting class receives no property under the plan on account of its interest.12 10

Id., at 2

11

Id.

12

Joseph J. Di Pasquale and Jennifer D. Talley, History of the Absolute Priority Rule, Bloomberg Law Reports, Vol. 5, No. 35, August 29, 2011, at 3; available at http://www.trenklawfirm.com/publications/history-of-theabsolute-priority-rule.pdf (last accessed 3 March 2014)

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In a corporate chapter 11 case, the application of the absolute priority rule is relatively straightforward, as equity interests or shareholders cannot retain any money or property unless all senior classes of creditors accept the plan or all unsecured claims are paid in full.13 The rule thus simply states that an equity holder receives nothing from the distressed enterprise unless the claims of the creditors are satisfied. It also includes the rule that the junior creditors will receive nothing unless the claims of the senior creditors are satisfied first. While the FRIA does not expressly advert to an absolute priority rule, the inclusion of the non-diminution and adequate-protection rules14 and the requirement of compliance 13

David S. Jennis and Kathleen L. DiSanto, Application of Absolute Priority Rule and New Value Exception in Individual Chapter 11s, American Bankruptcy Institute Journal (Reprint), Vol. No. 6, July/August 2011; available at http://www.jennisbowen.com/Article-2.PDF (last accessed 3 March 2014)

14

Fria, §60. 



No Diminution of Secured Creditor Rights. The issuance of the Commencement Order and the Suspension or Stay Order, and any other provision of this Act, shall not be deemed in any way to diminish or impair the security or lien of a secured creditor, or the value of his lien or security, except that his right to enforce said security or lien may be suspended during the term of the Stay Order. The court, upon motion or recommendation of the rehabilitation receiver, may allow a secured creditor to enforce his security or lien, or foreclose upon property of the debtor securing his/its claim, if the said property is not necessary for the rehabilitation of the debtor. The secured creditor and/or the other lien holders shall be admitted to the rehabilitation proceedings only for the balance of his claim, if any.

Fria, § 61.

Lack of Adequate Protection. - The court, on motion or motu proprio, may terminate, modify or set conditions for the continuance of suspension of payment, or relieve a claim from the coverage thereof, upon showing that: (a) a creditor does not have adequate protection over property securing its claim; or (b) the value of a claim secured by a lien on property which is not necessary for rehabilitation of the debtor exceeds the fair market value of the said property.



For purposes of this section, a creditor shall be deemed to lack adequate protection if it can be shown that: (a) the debtor fails or refuses to honor a pre-existing agreement with the creditor to keep the property insured; (b) the debtor fails or refuses to take commercially reasonable steps to maintain the property; or (c) the property has depreciated to an extent that the creditor is under secured.



Upon showing of a lack of protection, the court shall order the debtor or the rehabilitation receiver to make arrangements to provide for the insurance or maintenance of the property; or to make payments or otherwise provide additional or replacement security such that the obligation is fully secured. If such arrangements are not feasible, the court may modify the Stay Order to allow the secured creditor lacking adequate protection to enforce its security claim against the debtor: Provided, however, That the court may deny the creditor the remedies in this paragraph if the property subject of the enforcement is required for the rehabilitation of the debtor.

Fria, §114. 

94



Rights of Secured Creditors. - The Liquidation Order shall not affect the right of a secured creditor to enforce his lien in accordance with the applicable contract or law.



A secured creditor may: (a) waive his right under the security or lien, prove his claim in the liquidation proceedings and share in the distribution of the assets of the debtor; or (b) maintain his rights under the security or lien.



If the secured creditor maintains his rights under the security or lien: (1) the value of the property may be fixed in a manner agreed upon by the creditor and the liquidator. When the value of the property is less than the claim it secures, the liquidator may convey the property to the secured creditor and the latter will be admitted in the liquidation proceedings as a creditor for the balance. If its value exceeds the claim secured, the liquidator may convey the property to the creditor and waive the debtor›s right of redemption upon receiving the excess from the creditor; (2) the liquidator may sell the property and satisfy the secured creditor›s entire claim from the

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

with the rules on concurrence and preference of credits in the approval of a rehabilitation plan as well as the non-diminution rule in a liquidation proceedings institutionalize the applicability of the absolute priority rule in the Philippine insolvency system. Who is a secured creditor? The FRIA defines a secured creditor as one who has a “secured claim” and a secured claim is defined as one that is secured by a “lien”.15 The law also defines a lien as a statutory or contractual claim or judicial charge on real or personal property that [legally entitles?] a creditor to resort to said property for payment of the claim or debt secured by such lien.16 The Rules of Procedure on Corporate Rehabilitation defines “claim” as to include all claims or demands of whatever nature or character against a debtor or its property, whether for money or otherwise, and a “creditor” as one who is a holder of a claim.17 The then rules of procedure on corporate rehabilitation likewise define “a secured claim” as any claim whose payment or fulfillment is secured by contract or by law, including

proceeds of the sale; or (3) the secured creditor may enforce the lien or foreclose on the property pursuant to applicable laws. 15

Fria, § 4. Definition of Terms. - As used in this Act, the term: x

x

x

(t)  Lien shall refer to a statutory or contractual claim or judicial charge on real or personal property that legality entities a creditor to resort to said property for payment of the claim or debt secured by such lien. (Phrase in boldface a typographical fluke?) x

x

x

(jj)  Secured claim shall refer to a claim that is secured by a lien. (kk)  Secured creditor shall refer to a creditor with a secured claim. 16

Id.

17

2008 Rules of Procedure on Corporate Rehabilitation, rule 2, § 1 (superseded 2013) “Claim” shall include all claims or demands of whatever nature or character against a debtor or its property, whether for money or otherwise. x



x

x

x

“Creditor” shall mean any holder of a claim. x



x

“Secured claim” shall refer to any claim whose payment or fulfillment is secured by contract or by law, including any claim or credit enumerated under Articles 2241 and 2242 of the Civil Code and Article 110, as amended, of the Labor Code of the Philippines.

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any claim or credit enumerated under Articles 224118 and 224219 of the Civil Code and Article 110, as amended, of the Labor Code of the Philippines.20 Thus, the holders of claims enumerated under Articles 2241 and 2242 of the Civil Code are considered “secured creditors” under the then rules of procedure on corporate rehabilitation. It bears to note that the FRIA rules do not expressly repeal the then rules of procedure on corporate rehabilitation. Notably, under Article 2243 of the Civil Code the claims or credits enumerated under Articles 2241 and 2242 are considered “mortgages or pledges of real or personal property, or liens within the purview of legal provisions governing insolvency.21 Thus a secured creditor under the FRIA refers to a holder of instrument of debt security or a preferred claimant under the rules on concurrence and preference of credits.

96

18

Civil Code, art. 2241.



With reference to the specific movable property of the debtor, the following claims or liens shall be preferred: (1) Duties, taxes and fees due thereon to the State or any subdivision thereof; (2) Claims arising from misappropriation, breach of trust, or malfeasance by public officials committed in the performance of their duties, on the movables money or securities obtained by them; (3) Claims for the unpaid price of movable sold, on said movables, so long as they are in the possession of the debtor, up to the value of the same; and if the movable has been resold by the debtor and the price is still unpaid, the lien may be enforced on the price; this right is not lost by the immobilization of the thing by destination, provided it has not lost its form, substance and identity; neither is the right lost by the sale of the thing together with other property for a sump sum, when the price thereof can be determined proportionally; (4) Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor, or those guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the value thereof; (5) Credits for the making, repair, safekeeping or preservation of personal property, on the movable thus made, repaired, kept or possessed; (6) Claims for laborer’s wages, on the goods manufactured or the work done; (7) For expenses of salvage, upon the goods salvaged; (8) Credits between the landlord and the tenant, arising from the contract of tenancy on shares, on the share of each in the fruits or harvest; (9) Credits for transportation, upon the goods carried, for the price of the contract and incidental expenses, until their delivery and for thirty days thereafter; (10) Credits for lodging and supplies usually furnished to travellers by hotel keepers, on the movables belonging to the guest as long as such movables are in the hotel, but not for money loaned to the guests; (11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor, upon the fruits harvested; (12) Credits for rent for one year, upon the personal property of the lessee existing on the immovable leased and on the fruits of the same, but not on money or instruments of credit; (13) Claims in favor of the depositor if the depositary has wrongfully sold the thing deposited, upon the price of the sale.



In the foregoing cases, if the movables to which the lien or preference attaches have been wrongfully taken, the creditor may demand them from any possessor, within thirty days from the unlawful seizure.

19

Civil Code, art. 2242.



With reference to specific immovable property and real rights of the debtor, the following claims, mortgages and liens shall be preferred, and shall constitute as encumbrance on the immovable or real right: (1) Taxes due upon the land or building; (2) For the unpaid price of real property sold, upon the immovable sold; (3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works; (4) Claims of furnishers of materials used in the construction, reconstruction, or repair of buildings, canals or other works, upon said buildings, canals or other works; (5) Mortgage credits recorded in the Registry of Property, upon the real estate mortgaged; (6) Expenses for the preservation or improvement of real property when the law authorizes reimbursement, upon the immovable preserved or improved; (7) Credits annotated in the Registry of Property, in virtue of a judicial order, by attachments or executions, upon the property affected, and only as to later credits; (8) Claims of co-heirs for warranty in the partition of an immovable among them, upon the real property thus divided; (9) Claims of donors of real property for pecuniary charges or other conditions imposed upon the donee, upon the immovable donated; (10) Credits of insurers, upon the property insured, for the insurance premium for two years.

20

See supra note 17

21

Civil Code, art. 2243.



“The claims or credits enumerated in the two preceding articles shall be considered as mortgages or pledges of real or personal property, or liens within the purview of legal provisions governing insolvency. Taxes mentioned in No. 1, Article 2241, and No. 1, Article 2242, shall first be satisfied.”

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

Significantly, the FRIA treats a secured creditor who is a holder of instrument of debt security and other secured creditors under the rules on concurrence and preference of credits differently even as the former is effectively delisted by the FRIA from the enumeration under the rules on concurrence and preference of credits. Corollarily, the FRIA does not distinguish between a secured creditor with an instrument of debt security registered with the deeds registry and a secured creditor with an unregistered instrument of debt security. On the other hand, the rules on concurrence and preference of credits give preference only to registered claims or credits. Under No. (5) and No. (7) of Article 2242 of the Civil Code, only registered real estate mortgages and claims arising from a judicial writs which are recorded in the deeds registry are given preferential treatment. The FRIA does not make such distinction provided the claim is filed with the rehabilitation or liquidation court. Under No. (4) of Article 2241 of the Civil Code, pledges and registered chattel mortgages are given preference with respect to encumbered chattel or movable. In pledge, the delivery of the movable to the creditor is an essential element of the contract. Possession of the thing pledged or mortgaged (movable or real) is equivalent to registration as a third party who might be interested in the thing pledged or mortgaged is thereby put on notice to inquire into the nature or characteristic of the possession of the movable or real property by a person other than its owner. In chattel mortgage,22 registration is likewise required by the Civil Code in order to bind third parties. This divergence in the treatment of secured creditors, inter alia, unavoidably creates a tension between the FRIA and the rules on concurrence and preference of credits. Too, the effective delisting of the secured creditors with debt security instrument from among the preferred credits under the Civil Code in case of liquidation of the assets of the insolvent creates a tension between the FRIA and the rules on concurrence and preference of credits. It poses a challenge on the application of the rules on concurrence and preference of credits in the implementation of a rehabilitation plan. Delisting the secured creditor with a debt security instrument from among the preferred creditors under the Civil Code. Traditionally, the rules on concurrence and preference of credits find relevant applicability only in the event of the liquidation of an insolvent debtor or estate vis-àvis the distribution of its insufficient assets among its creditors or claimants. The FRIA changed this traditional norm with the requirement that the rehabilitation plan should be compliant with the aforesaid Civil Code rules.

22

Civil Code, art. 2140.



“By a chattel mortgage, personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third person, the contract is pledge and not a chattel mortgage.”

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Frank E. Lobrigo

Under the FRIA,23 the liquidator has the following main duties, 1) to preserve and maximize the value of the assets of the debtor, and to recover those assets 2) to liquidate the assets (meaning, convert into cash) and 3) discharge all claims against the debtor (meaning, pay all debts of the debtor). We can call the first duty as “shepherding the assets” of the debtor. The liquidator cannot perform his second duty without the first, and his third duty without the second. Thus, the liquidator has to determine first the net distributable estate of the debtor which he can do while in the process of shepherding the debtor’s assets. We can call it too as having an inventory of all the assets of the debtor, whether used as collateral or not. In this duty, the liquidator is not called upon to apply the rules on concurrence and preference of credits. The next duty of the liquidator, after having rounded up all the assets of debtor, is to convert them into cash, also called “liquidation.” In this second duty, the liquidator is not yet called upon to apply the rules on concurrence and preference of credits. The liquidator will proceed with the conversion by selling the assets of the debtor including those assets used as collateral or encumbered in favor of a secured creditor. Under Sec. 119 and Sec. 114 (b) (2),24 the liquidator can sell the security but must satisfy first the entire mortgages or pledges on the security. Here, the payment or satisfaction of the mortgage or pledge does not involve the application of the rules on concurrence or preference of credits because in the conversion stage of the assets of the debtor, the liquidator is not yet called upon to apply that rule, which he will do in the third phase of his duty. Sec. 119 (d) is another clear proof of the primacy of the right of a secured creditor with debt security instrument under the FRIA over all other claimants arrayed under Articles 2241 and 2242 of the Civil Code. The liquidator may also sell the security to the secured creditor himself. Under Sec. 114 (b) (1), the liquidator and secured creditor can agree on the value of the collateral. If the value of the security is less than the claim of the secured creditor, the security can be

98

23

Fria, § 119.



Powers, Duties and Responsibilities of the Liquidator. - The liquidator shall be deemed an officer of the court with the principal duly of preserving and maximizing the value and recovering the assets of the debtor, with the end of liquidating them and discharging to the extent possible all the claims against the debtor. The powers, duties and responsibilities of the liquidator shall include, but not limited to: (a) to sue and recover all the assets, debts and claims, belonging or due to the debtor; (b) to take possession of all the property of the debtor except property exempt by law from execution; (c) to sell, with the approval of the court, any property of the debtor which has come into his possession or control; (d) to redeem all mortgages and pledges, and so satisfy any judgment which may be an encumbrance on any property sold by him; (e) to settle all accounts between the debtor and his creditors, subject to the approval of the court; (f) to recover any property or its value, fraudulently conveyed by the debtor; (g) to recommend to the court the creation of a creditors› committee which will assist him in the discharge of the functions and which shall have powers as the court deems just, reasonable and necessary; and (h) upon approval of the court, to engage such professional as may be necessary and reasonable to assist him in the discharge of his duties.



In addition to the rights and duties of a rehabilitation receiver, the liquidator, shall have the right and duty to take all reasonable steps to manage and dispose of the debtor›s assets with a view towards maximizing the proceedings therefrom, to pay creditors and stockholders, and to terminate the debtor›s legal existence. Other duties of the liquidator in accordance with this section may be established by procedural rules.



A liquidator shall be subject to removal pursuant to procedures for removing a rehabilitation receiver.

24

See supra notes 23 and 14

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

conveyed to the secured creditor and he will be admitted in the liquidation proceedings as an unsecured creditor for the deficiency. It should be noted that in this disposition, the liquidator is not yet called upon to apply the rules on concurrence and preference of credits because it is still the conversion phase of the assets into cash. If the value of the security is more than the claim, the security can be conveyed to the secured creditor who will pay the excess value and in turn the liquidator will waive the right of redemption. The excess value to be paid by the secured creditor will form part of the proceeds of the free property to be distributed among the claimants under the rules on concurrence and preference of credits. In his third duty, the liquidator will prepare a list of recipients of the proceeds of the assets converted into cash. A non-waiving secured creditor with debt security instrument will not be included in the list of claimants/creditors who will partake in the distribution of the proceeds of the net estate or assets of the insolvent. It is in this third duty of the liquidator that the rules on concurrence and preference of credits will be applied. If after 180 days the liquidator has not yet disposed of the security and satisfied the entire claim of a non-waiving secured creditor, the latter can enforce his security by foreclosure. The foreclosure will not be done by the liquidator but by the notary public or the sheriff and the proceeds from such foreclosure will not form part of the net estate or proceeds to be distributed to the listed claimants. The right to foreclose a mortgaged or pledged property springs from a power of attorney that the mortgagor/pledgor confers upon the mortgagee/pledgee to sell the property and satisfy his claim. This authority is not arrogated by the FRIA unto the liquidator. And the liquidation order cannot diminish that authority of the mortgagee or pledgee conferred upon him by the mortgagor or pledgor. There are only two (2) ways for a secured creditor with a debt security instrument to be included in the list of claimants who will partake in the distribution of the proceeds of the net estate or assets of the insolvent. These are; (1) to waive the security and participate in the distribution as an unsecured creditor, and (2) with regard to a deficiency in the satisfaction of the secured claim, the secured creditor will participate in the distribution of the proceeds from the free property as an unsecured creditor. The non-impairment of the debt security provided for under Sec. 114 of the FRIA basically insulates the secured creditor with debt security instrument from the reach of the preferential right of the State to enforce payment for internal revenue taxes pursuant to the rules on concurrence and preference of credits. The rule is different with regard to realty taxes because they do attach to the realty and could be enforced by the local government unit pursuant to the provisions of the Local Government Code of 1991. The exclusion of the secured creditor with debt security instrument from the liquidation process makes such secured creditor, in a sense, sui generis compared to the other secured creditors mentioned under the rules on concurrence and preference of creditors. III. CONCLUSION A divergence appears inevitable in the application of the rules on concurrence and preference of credits in both rehabilitation and liquidation processes. Although both processes involve the distribution of resources with the end in view of satisfying the claims of creditors in the order of their preference or superiority either pursuant to Volume 37, Number 3 & 4 - (July - December 2012)

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Frank E. Lobrigo

contract or law, they are markedly different in the sense that the distribution of resources in rehabilitation is multiple or recurrent while the distribution of resources in liquidation is singular and terminal. The distribution of resources in rehabilitation pertains to the incomes generated over time or for the duration of the rehabilitation period, or the proceeds from the free property not necessary for the operation of the distressed enterprise as an ongoing concern. Such distribution therefore can be periodic and repetitive. The distribution of resources in liquidation pertains to the proceeds of the net assets of the insolvent and results in the cessation of the existence of the distressed enterprise as well as the dissipation of its insufficient assets. Thus, the distribution is a one-time affair and it is terminated as soon as it is over. Both distribution processes, however, have a common denominator, that is, the non-impairment of the security of the secured creditor. Too, the timelines for the fulfillment of the objectives of rehabilitation and liquidation are also diverse. Rehabilitation will take longer to achieve than it is for liquidation which can take place in a relatively much shorter period of time. In a distribution scheme under a liquidation plan wherein the secured creditor is confined to the value of his security, he could not participate in the liquidation distribution thereby placing him outside of the coverage of the rules on concurrence and preference of credits, unless he would waive the security or the participation is with regard to a deficiency value, and in both instances participate as an unsecured creditor. Should such secured creditor be excluded also in the distribution of incomes from the rehabilitation process or of the proceeds from the free property not necessary in the operation of the distressed enterprise, which distribution requires the application of the rules on concurrence and preference of credits? If so, would not the symmetrical treatment of the secured creditor with debt security instrument vis-à-vis the distribution of resources pursuant to a rehabilitation plan relegate such secured creditor to an inferior status compared to the other secured creditors mentioned in the rules on concurrence and preference of credits because they would be receiving payments ahead than the secured creditor excluded? Since the incomes from the continued operation of the distressed enterprise or the proceeds from the free property that would be distributed under a rehabilitation plan are not attributable to any specific movable or real property to which a lien of a preferred creditor is related or attached, how then should the preference of secured creditors be observed or implemented? The dichotomy in the application of the rules on concurrence and preference of credits in a rehabilitation plan and in a liquidation plan has to be reconciled. The requirement in the FRIA for a rehabilitation plan to follow the priority prescribed in the rules on concurrence and preference of credits may be interpreted as a prescription of a standard formula for an equitable distribution of incomes among the claimants or creditors. The pre-FRIA insolvency regime, for lack of statutory standard, left the scheme of distribution of income in a rehabilitation plan to the imagination or ingenuity of the rehabilitation receiver. More often than not, the rehabilitation receiver would apply the pari passu and pro rata principles.

100

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

Notably, liquidation in insolvency, by its nature or characteristics, is always subject to the Civil Code rules on concurrence and preference of credits regardless of whether or not the insolvency law expressly so provides. The observance of the rules on concurrence and preference of credits in a liquidation plan, therefore, could only mean as “immediate full satisfaction of the claim” in the order of preference or priority, the reason being that the “proceeds” for distribution are attributable or related to specific movable or real property, with the exception of those used as collateral or security which are immune from inclusion in the assets to be liquidated unless the secured creditors waive the security. Too, since the distribution will necessarily result in the dissipation of the assets of the distressed enterprise, and thus terminal, the creditors, secured or unsecured, could expect no further payments. The meaning of “priority” pursuant to the rules on concurrence and preference of credits vis-à-vis the rehabilitation plan could be interpreted in two notions. It could be interpreted to mean in the context of an “immediate full satisfaction of the claim” as in the distribution of proceeds under a liquidation plan. The reason for this theory is the thesis that a rehabilitation plan is primarily designed to enable the creditors to recoup their exposures and the settlement of claims of creditors take precedence because of the absolute priority rule which bars the equity holders from enjoying their equity in derogation of the prior right of a creditor or claimant. “Priority” could also be interpreted to mean not in the context of an “immediate full satisfaction of the claim” but merely as basis for adopting an equitable formula for the distribution of proceeds in a rehabilitation plan. The reasons for this theory are, (a) that the “proceeds” for distribution are not attributable or related, and therefore not traceable, to any specific movable or real property whence the preference of a creditor is derived, (b) the rehabilitation is designed to help the distressed enterprise get back on its feet by providing it with some breathing space to enable it to earn profits without being burdened by claims repayments, and (c) the priority mentioned in the rules on concurrence and preference of credits refers to liens which attach to movable or real property of the insolvent and the entitlement to such priority arises only when the property to which the lien is related to or attached would be sold and the proceeds therefrom would be the subject of distribution. Without these “conditions” there could be no trigger for the application of the priority rules. In other words, the priority is merely qualified. It is not absolute. Where the conditions that would trigger the application of the priority rules do not arise, the distribution of whatever proceeds among the claimants mentioned in the rules on concurrence and preference of credits should be done in accordance with the pari passu25 and pro rata rule pursuant to Articles 2246 to 2249.26 25

A Latin phrase meaning “equal footing” that describes situations where two or more assets, securities, creditors or obligations are equally managed without any display of preference. An example of pari-passu occurs during bankruptcy proceedings when a verdict is reached, all creditors can be regarded equally, and will be repaid at the same time and at the same fractional amount as all other creditors. Treating all parties the same means they are pari-passu. See http://www.investopedia.com/terms/p/pari-passu.asp (last accessed 24 March 2014)

26

Civil Code, art. 2246.



“Those credits which enjoy preference with respect to specific movables, exclude all others to the extent of the value of the personal property to which the preference refers.”



Civil Code, art. 2247. “If there are two or more credits with respect to the same specific movable property, they shall be satisfied pro rata, after the payment of duties, taxes and fees due the State or any subdivision thereof.”

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Frank E. Lobrigo

To illustrate: I - ASSUME THE FOLLOWING VALUES: Claims against a distressed enterprise: BIR assessment 8M, real estate mortgage loan duly registered 30M, unsecured suppliers 25M, employees’ claim adjudged by NLRC with finality 12M = 75M. Assets of the distressed enterprise: Mortgaged land and building used in business 42M, machinery and equipment 12M, inventory 8M, account receivables 10M, Cash 5M = 77M. Projected annual earnings after income tax: 4M for the first 3 years, 7M for the next 3 years, and 12M for the next 4 years. Proposed rehabilitation period: 10 years. II – POSSIBLE SCENARIOS UNDER THE FRIA: A. Liquidation Plan: Assets for conversion into cash for distribution: Machinery and equipment – 12M Inventory – 8M Account receivables – 10M Total



Resources available for distribution

30M plus 5M cash – 35M

Claims for satisfaction:



102

BIR assessment Employees’ claims Unsecured suppliers Claims for satisfaction

– 8M – 12M – 25M – 45M



Civil Code, art. 2248.



“Those credits which enjoy preference in relation to specific real property or real rights, exclude all others to the extent of the value of the immovable or real right to which the preference refers.”



Civil Code, art. 2249.



“If there are two or more credits with respect to the same specific real property or real rights, they shall be satisfied pro rata, after the payment of the taxes and assessments upon the immovable property or real right.”

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code

Option for the liquidator: Sell the mortgaged land and building for an amount over the claim of the mortgagee to generate additional fund (pursuant to Sec. 119, Fria.)27 Settle the claim of the mortgagee. Formula for distribution compliant with the rules on concurrence and preference of credits: First priority claim:

First tier - BIR assessment pursuant to Art. 224128& Art. 224229 Second tier - Unsecured suppliers pursuant to Art. 2241, No. (3)

- 8M - 8M

Second priority claim: Employees’ claims pursuant to Art. 224430

- 12M

Claim without priority: Unsecured suppliers - 7M Total claims satisfied - 35M Notes: a) The unsecured suppliers would be better off in a rehabilitation of the distressed enterprise than if it were liquidated. b) The mortgagee of land and building was not included in the liquidation plan because it is entitled to foreclose on its security 27

See supra note 23

28

See supra note 18

29

See supra note 19

30

Civil Code, art. 2244.



With reference to other property, real and personal of the debtor, the following claims or credits shall be preferred in the order named: (1) Proper funeral expenses for the debtor, or children under his or her parental authority who have no property of their own, when approved by the court; (2) Credits for services rendered the insolvent by employees, laborers, or household helpers for one year preceding the commencement of the proceedings in insolvency; (3) Expenses during the last illness of the debtor or of his or her spouse and children under his or her parental authority, if they have no property of their own; (4) Compensation due the laborers or their dependents under laws providing for indemnity for damages in cases of labor accident, or illness resulting from the nature of the employment; (5) Credits and advancements made to the debtor for support of himself or herself, and family, during the last year preceding the insolvency; (6) Support during the insolvency proceedings, and for three months thereafter; (7) Fines and civil indemnification arising from a criminal offense; (8) Legal expenses, and expenses incurred in the administration of the insolvent’s estate for the common interest of the creditors, when properly authorized and approved by the court; (9) Taxes and assessments due the national government, other than those mentioned in Articles 2241, No. 1, and 2242, No. 1; (10) Taxes and assessment due any province, other than those referred to in Articles 2241, No. 1, and 2242, No. 1; (11) Taxes and assessment due any city or municipality, other than those indicated in Articles 2241, No. 1, and 2242, No. 1; (12) Damages for death or personal injuries caused by a quasi-delict; (13) Gifts due to public and private institutions of charity or beneficence. Credits which, without special privilege, appear in (a) a public instrument; or (b) in a final judgment, if they have been the subject of litigation. These credits shall have preference among themselves in the order of priority of the dates of the instruments and of the judgments, respectively.

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pursuant to Sec. 11431 of the FRIA. c) The unsecured suppliers could exercise the right of redemption of the distressed enterprise in the mortgaged land and building for the unsatisfied portion of their unsecured claims in the amount of 10M. B. Rehabilitation Plan:

Distribution formula:

First Priority: • First tier of claim (Pursuant to Art. 2241 and Art. 2242)

Amount of Claim

Percentage

8M

10.6 %

Unsecured suppliers

8M

10.6 %

Mortgagee of land and building

30M

40 %

Amount of Claim

Percentage

12M

16 %

BIR claim • Second tier of claim (Pursuant to Art. 2241 and Art. 2242)

Second Priority: (Pursuant to Art. 2244) Employee’s claim

Last Priority: (Pursuant to Art. 2245)32



Unsecured suppliers

Total claims to be satisfied

Amount of Claim

Percentage

17M



22.7%

75M



100%

FIRST MODULE I - Distribution of profits if “priority” were construed to refer to “full satisfaction of preferred claim”.

a) First 2 years of rehabilitation period: First Priority: • First tier of claim (Pursuant to Art. 2241 and Art. 2242) BIR claim

Amount of received / year 4M

• Second tier of claim (Pursuant to Art. 2241 and Art. 2242)

104

31

See supra note 14

32

Civil Code, art. 2245.



“Credits of any other kind or class, or by any other right or title not comprised in the four preceding articles, shall enjoy no preference.”

The IBP Journal

The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code Unsecured suppliers

0

Mortgagee of land and building

0

Second Priority: (Pursuant to Art. 2244)

Amount of received / year

Employee’s claims

0

Last Priority:

(Pursuant to Art. 2245)

Amount of received / year

Unsecured suppliers

0

Total Payments per year 4M

b) Year 3 of rehabilitation period: First Priority: • Second tier of claim (Pursuant to Art. 2241 and Art. 2242)



Amount to be received

Unsecured suppliers

0.84M

Mortgagee of land and building

3.16M

Pro rata sharing: Suppliers Mortgagee

8/38 x 4M = 0.84M 30/38 x 4M = 3.16M

Second Priority: (Pursuant to Art. 2244) Employee’s claims

Amount to be received 0

Last Priority: (Pursuant to Art. 2245) Unsecured suppliers

Amount to be received 0

Total payments 4M

c) Second 3 Years of rehabilitation period: First Priority: • Second tier of claim (Pursuant to Art. 2241 and Art. 2242)



Amount to be received / year

Unsecured suppliers

1.47M

Mortgagee of land and building

5.53M

Volume 37, Number 3 & 4 - (July - December 2012)

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Frank E. Lobrigo

Pro rata sharing: Suppliers Mortgagee

8/38 x 7M = 1.47M 30/38 x 7M = 5.53M

Second Priority: (Pursuant to Art. 2244)

Amount to be received / year

Employee’s claims

0

Last Priority: (Pursuant to Art. 2245)

Amount to be received

Unsecured suppliers

0

Total payments per year



7M

Schedule 1 Recapitulation of payments after 6 years of rehabilitation period: BIR claims Yr. 1: 4M+Yr.2: 4M = 8M after 2 years Mortgagee claims Yrs. 1&2: 0+Yr.3: 3.16M+Yrs. 4to6: 16.59M

= 19.75M after 6 years

Unsecured suppliers claims Yrs. 1&2: 0+Yr.3: 0.84M+Yrs. 4to6: 4.41M

= 5.25M after 6 years

Employees’ claims Yrs. 1to6: 0 = 0 after 6 years d) Year 7 of rehabilitation period: First Priority: • Second tier of claim (Pursuant to Art. 2241 and Art. 2242)



Amount to be received

Unsecured suppliers

2.53M

Mortgagee of land and building

9.47M

Pro rata sharing: Suppliers Mortgagee

8/38 x 12M = 2.53M 30/38 x 12M = 9.47M

Second Priority: (Pursuant to Art. 2244) Employee’s claims

106

Amount to be received 0

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Last Priority: (Pursuant to Art. 2245)

Amount to be received

Unsecured suppliers

0

Total payments per year



12M

Schedule 2 Recapitulation of payments after 7 years of rehabilitation period: BIR claims Yr. 1: 4M+Yr.2: 4M = 8M after 2 years Mortgagee claims Yrs. 1&2: 0+Yr.3: 3.16M+ Yrs. 4to6: 16.59M + Yr.7: 9.47M = 29.22M after 7 years Unsecured suppliers claims Yrs. 1&2: 0+Yr.3: 0.84M+ Yrs. 4to6: 4.41M Yr. 7: 2.53M

= 7.78M after 7 years

Employees claims Yrs. 1to7: 0

= 0 after 7 years

e) Year 8 of rehabilitation period: First Priority: • Second tier of claim (Pursuant to Art. 2241 and Art. 2242)

Amount to be received

Unsecured suppliers

0.22M

Mortgagee of land and building

0.78M

Pro rata sharing: Suppliers Mortgagee

8/38 x 12M = 2.53M 30/38 x 12M= 9.47M

Second Priority: (Pursuant to Art. 2244)

Amount to be received

Employee’s claims

11M

Last Priority: (Pursuant to Art. 2245)

Amount to be received

Unsecured suppliers Total payments per year

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0

12M

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Schedule 3 Recapitulation of payments after 8 years of rehabilitation period: BIR claims Yr. 1: 4M+Yr.2: 4M = 8M after 2 years Mortgagee claims Yrs. 1&2: 0+Yr.3: 3.16M+Yrs. 4to6: 16.59M + Yr. 7: 9.47M + Yr.8: 0.78M

= 30M after 8 years

Unsecured suppliers claims Yrs. 1&2: 0+Yr.3: 0.84M+ Yrs. 4to6: 4.41M + Yr. 7: 2.53M + Yr.8: 0.22M

= 8M after 8 years

Employees’ claims Yrs. 1to7: 0 + Yr.8: 11M = 11M after 8 years Note: After year 8 of the rehabilitation period the unsecured suppliers still have 17M unsatisfied claim, and the employees still have a 1M unsatisfied claim. f) Year 9 of rehabilitation period: Second Priority: (Pursuant to Art. 2244)

Amount to be received

Employee’s claims

1M

Last Priority: (Pursuant to Art. 2245)

Amount to be received

Unsecured suppliers Total payments per year

11M

12M

Schedule 4 Recapitulation of payments after 9 years of rehabilitation period: BIR claims Yr. 1: 4M+Yr.2: 4M = 8M after 2 years Mortgagee claims Yrs. 1&2: 0+Yr.3: 3.16M+Yrs. 4to6: 16.59M + Yr. 7: 9.47M + Yr.8: 0.78M = 30M after 8 years

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Unsecured suppliers claims Yrs. 1&2: 0+Yr.3: 0.84M+ Yrs. 4to6: 4.41M +Yr. 7: 2.53M + Yr.8: 0.22M+ Yr.9: 11M

= 19M after 9 years

Employees’ claims Yrs. 1to7: 0 + Yr. 8: 11M + Yr.8: 1M

= 12M after 9 years

g) Year 10 of rehabilitation period: Last Priority: (Pursuant to Art. 2245)

Amount to be received

Unsecured suppliers

6M

Entitlement of equity holders

6M

Total payments per year



12M

Schedule 5 Recapitulation of payments after 10 years of rehabilitation period: BIR claims Yr. 1: 4M+Yr.2: 4M = 8M after 2 years Mortgagee claims Yrs. 1&2: 0+Yr.3: 3.16M+Yrs. 4to6: 16.59M + Yr. 7: 9.47M + Yr.8: 0.78M = 30M after 8 years Unsecured suppliers claims Yrs. 1&2: 0+Yr.3: 0.84M+ Yrs. 4to6: 4.41M +Yr. 7: 2.53M + Yr.8: 0.22M+ Yr.9: 11M + Yr.10: 6M = 25M after 10 years Employees’ claims Yrs. 1to7: 0 + Yr. 8: 11M + Yr.8: 1M

= 12M after 9 years

Entitlement of equity holder Yrs. 1to9: 0 + Yr. 10: 6M = 6M after 10 years SECOND MODULE II – Distribution of profits if “priority” were construed NOT in the context of “full satisfaction of preferred claim” and the pari passu and pro rata rules were applied. a) First 3 years of rehabilitation period:

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First Priority: Amount of Claim

% x Income

Amount to be received / year

8M

10.65 x 4M

0.43M

Unsecured suppliers

8M

10.65 x 4M

0.43M

Mortgage of land and building

30M

40.00 x 4M

1.6M

Amount of Claim

% x Income

Amount to be received / year

12M

16.00 x 4M

0.64M

Amount of Claim

% x Income

Amount to be received / year

17M

22.70 x 4M

0.90M

• First tier of claim (Pursuant to Art. 2241 and Art. 2242) BIR claim • Second tier of claim (Pursuant to Art. 2241 and Art. 2242)

Second Priority: (Pursuant to Art. 2244) Employee’s claims

Last Priority: (Pursuant to Art. 2245) Unsecured suppliers

Total 75M

100

4.0M

Schedule A Recapitulation of payments after 3 years of rehabilitation period: BIR claims Yr. 1to3: 0.43M x 3

= 1.29M after 3 years

Mortgagee claims Yrs. 1to3: 1.6M x 3

= 4.8M after 3 years

Unsecured suppliers claims Yrs. 1to3: 0.43M x 3 Yrs. 1to3: 0.90M x 3

= 3.99M after 3 years

Employees’ claims Yrs. 1to3: 0.64M x 3

= 1.92M after 3 years

Total = 12.M b) Second 3 years of rehabilitation period:

First Priority: • First tier of claim (Pursuant to Art. 2241 and Art. 2242) BIR claim

110

Amount of Claim

% x Income

Amount to be received / year

8M

10.65 x 7M

0.75M

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The Interdependence between the Financial Rehabilitation and Insolvency Act (FRIA) and the Rules on Concurrence and Preference of Credits of the Civil Code • Second tier of claim (Pursuant to Art. 2241 and Art. 2242) Unsecured suppliers

8M

10.65 x 7M

0.75M

Mortgage of land and building

30M

40.00 x 7M

2.8M

Amount of Claim

% x Income

Amount to be received / year

12M

16.00 x 7M

1.12M

Amount of Claim

% x Income

Amount to be received / year

17M

22.70 x 7M

1.58M

Second Priority: (Pursuant to Art. 2244) Employee’s claims

Last Priority: (Pursuant to Art. 2245) Unsecured suppliers

Total 75M

100

7.0M

Schedule B Recapitulation of payments after 6 years of rehabilitation period: BIR claims Yrs. 1to3: 0.43M x 3 = 1.29M Yrs. 4to6: 0.75M x 3 = 2.25M

= 3.54Mafter 6 years

Mortgagee claims Yrs. 1to3: 1.6M x 3 = 4.8M Yrs. 4to6: 2.8M x 3 = 8.4M

= 13.2M after 6 years

Unsecured suppliers claims Yrs. 1to3: 0.43M x 3 Yrs. 1to3: 0.90M x 3= 3.99M Yrs. 4to6: 0.75M x 3 Yrs. 4to6: 1.58M x 3= 6.99M

= 10.98M after 6 years

Employees’ claims Yrs. 1to3: 0.64M x 3=1.92M Yrs. 4to6: 1.12M x 3=3.36M

= 5.28M after 6 years

Total = 33.M c) Third 3 years of rehabilitation period:

First Priority: • First tier of claim (Pursuant to Art. 2241 and Art. 2242) BIR claim

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Amount of Claim

% x Income

Amount to be received / year

8M

10.65 x 12M

1.28M

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Frank E. Lobrigo

• Second tier of claim (Pursuant to Art. 2241 and Art. 2242) Unsecured suppliers

8M

10.65 x 12M

1.28M

Mortgage of land and building

30M

40.00 x 12M

4.8M

Amount of Claim

% x Income

Amount to be received / year

12M

16.00 x 12M

1.92M

Amount of Claim

% x Income

Amount to be received / year

17M

22.70 x 12M

2.72M

Second Priority: (Pursuant to Art. 2244) Employee’s claims

Last Priority: (Pursuant to Art. 2245) Unsecured suppliers

Total 75M

100

12.0M

Schedule C Recapitulation of payments after 9 years of rehabilitation period: BIR claims Yrs. 1to3: 0.43M x 3 = 1.29M Yrs. 4to6: 0.75M x 3 = 2.25M Yrs. 7to9: 1.28M x 3 = 3.84M

= 7.38M after 9 years

Mortgagee claims Yrs. 1to3: 1.6M x 3 = 4.8M Yrs. 4to6: 2.8M x 3 = 8.4M Yrs. 7to9: 4.8M x 3 = 14.4M

= 27.6M after 9 years

Unsecured suppliers claims Yrs. 1to3: 0.43M x 3 Yrs. 1to3: 0.90M x 3= 3.99M Yrs. 4to6: 0.75M x 3 Yrs. 4to6: 1.58M x 3= 6.99M Yrs. 7to9: 1.28M x 3= Yrs. 7to9: 2.72M x 3= 12M

= 22.98M after 9 years

Employees’ claims Yrs. 1to3: 0.64M x 3=1.92M Yrs. 4to6: 1.12M x 3=3.36M Yrs. 7to9: 1.92M x 3=5.76M

= 11.04M after 6 years

Total = 69 M

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d) Distribution on the 10th year of rehabilitation period Amount for distribution on the 10th year of rehabilitation period – 12M Less: First Priority: First tier of claim BIR claim – 62M Second tier of claim Unsecured suppliers – 0 Mortgagee of land and building – 2.4M Second Priority: Employees’ claims – 0.96 Last Priority: Unsecured suppliers – 2.02 Entitlement of equity holder



– 6M



Schedule D Recapitulation of payments after 10 years of rehabilitation period: BIR claims Yrs. 1to3: 0.43M x 3 = Yrs. 4to6: 0.75M x 3 = Yrs. 7to9: 1.28M x 3 = Yr. 10 : =

1.29M 2.25M 3.84M 0.62M

= 8M after 10 years

Mortgagee claims Yrs. 1to3: 1.6M x 3 = 4.8M Yrs. 4to6: 2.8M x 3 = 8.4M Yr.10: = 2.4 M

= 30M after 10 years

Unsecured suppliers claims Yrs. 1to3: 0.43M x 3 Yrs. 1to3: 0.90M x 3= 3.99M Yrs. 4to6: 0.75M x 3 Yrs. 4to6: 1.58M x 3= 6.99M Yrs. 7to9: 1.28M x 3= Yrs. 7to9: 2.72M x 3= 12M Yr. 10: = 2.02M

= 25M after 10 years

Employees’ claims Yrs. 1to3: 0.64M x 3=1.92M Yrs. 4to6: 1.12M x 3=3.36M Volume 37, Number 3 & 4 - (July - December 2012)

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Yrs. 7to9: 1.92M x 3= 5.76M Yr. 10: = 0.96M

= 12M after 10 years

Total = 75 M Converting the scheme of priority prescribed by the rules on concurrence and preference of credits into a distribution formula in a rehabilitation plan will certainly be easier said [or read] than done given the potential divergence in the interpretation of the rules. It will surely pose a challenge for the petitioner in rehabilitation proceedings, the rehabilitation receiver, and ultimately, the rehabilitation court. It is no consolation that jurisprudence has nothing to offer in guidance considering the novel status of the rules on concurrence and preference of credits being mandatorily required in a rehabilitation plan. It is to be pointed out that the first module presented above showing the application of the priority rules in the context of a liquidation plan treats the claim of the Bureau of Internal Revenue as a super priority over and above the other preferred creditors or claimants. On the other hand, the second module presented above showing the application of the priority rules in a pari passu context portrays an equitable sharing of the proceeds between and among the claimants. It is the sense of this paper that the second module is the better approach in applying the rules on concurrence and preference of credits in a rehabilitation plan as provided for by the FRIA even as such module is more in keeping with the principles outlined by the World Bank for an effective insolvency and creditor rights system.33 These principles are, a) the principle of equitable distribution34 b) the principle that non-possessory or non-registrable or non-visible claims should not derogate upon the consensual rights of

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33

The World Bank Principles and Guidelines for Effective Insolvency and Creditor Rights Systems (2001); available at http://www.worldbank.org/ifa/ipg_eng.pdf (last accessed 24 March 2014)

34

Id., at 25



Principle 6



71. Equitable distribution. The principle of equitable distribution is based on the notion that in a collective proceeding, creditors with similar legal rights should be treated the same. The equity policy permeates many provisions of an insolvency law, including the automatic stay, the moratorium on payments of claims created prior to the bankruptcy, provisions to set aside claims and recapture property or value, , classification and voting procedures in a rehabilitation, and distribution mechanisms. At the outset an injunction prevents the “free for all” system of individual enforcement and replaces it with one that balances the interests of creditors, the debtor and the government. Another way of expressing the equity policy is the principle of pari passu treatment for creditors, which espouses that creditors should be paid on a ratable basis and in the relative priority of their claims and interests from the proceeds of the liquidated estate. Put differently, creditors on an equal legal footing should be treated equally, receiving a distribution on their claim proportionate to aggregate claims of the same kind. In reality, the pari passu principle and equity policy are modified by social choices on claim priorities. (Underscoring supplied.)

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creditors,35 and c) the principle that broader public interests should not compete with private interests because they distort normal commercial incentives.36 The application of the current insolvency law should not veer away from these World Bank principles because they set the standard for a world-class system and international best practices in insolvency. The FRIA, juvenile yet it is, will still go a long way in the fine tuning of its applicability and relevance to the Philippine legal and economic systems. That long way to systemic perfection may yet be shortened if the Supreme Court would come up with sufficient guidelines on the application of the rules on concurrence and preference of credits vis-à-vis the rehabilitation plan. An insolvency system is not just a legal framework. In a broader context, an insolvency system is an economic framework, the efficient operation of which could not just be left to the interplay of the market forces. In other words, the legal framework is merely a tool to attain the efficient operation of an insolvency system as an economic framework within the global economic system. •••

•••

35

Id., at 44 Principle 16

36

Id., at 44



Principle 16



148. Legislators should resist the temptation to create a proliferation of priority classes based on special interests rather than solidly endorsed and widely embraced social policies. All insolvency laws reflect policy choices that prioritize some claims over others in the distribution scheme. While many such policies recognize important public interests, such as preserving the state’s revenue base or ensuring employee security, these broader public interests compete with private interests and may distort normal commercial incentives. Insolvency laws should not serve as surrogate social security systems, environmental protection agencies and the like. (Underscoring supplied.)



Acknowledgment: The Legal Citation Guide (2011) of the Ateneo L.J. was used in this paper.

147. Another factor eroding the position of the ordinary unsecured creditor is the wide range of nonconsensual security interests found in many legal systems — for example, liens given by law to secure the payment of repair charges, port and landing dues for ships and aircraft, seamen’s wages and other maritime claims, and the like. Typically, such liens have priority not only over the claims of unsecured creditors but also over consensual security interests. And because they are often non-possessory and not readily susceptible to registration, their existence is not visible to creditors holding consensual security, who simply have to accept the risk of such liens arising. Accordingly, when a new legal regime is being devised for consensual security interests it is important that due attention be paid to the position not only of secured creditors and ordinary unsecured creditors but also to preferential creditors and those holding nonconsensual security interests. (Underscoring supplied.)

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The Patent System and the Protection of Traditional Knowledge Robert Nereo B. Samson

The saxophone is the only instrument in the orchestra that was once patented. It was patented in 1842 in France by Adolphe Sax. Throughout the course of the next 40 or so years, there were another 20 or 30 patents that were taken out on the saxophone that led to the mouthpiece that we now know, the alto sax, other different varieties of sax, and an improved mechanism for the saxophone itself. All that technology has been in the public domain for well over 100 years now, and anyone can make or use the saxophone. And it is interesting and instructive to compare that with the evolution of the violin. In Cremona, in Italy, in the 18th century, the technology was family based and secret. It was passed from generation to generation in secrecy. The result is that nobody, to this day, still knows how the very best violins that the world has ever seen – the Stradivarius and the others – were made. The secret of their manufacture has been lost in time and lost in the secrecy of the families and the methods by which they transmitted their knowledge.1 I. The Intellectual Property Rights System When the Philippines became a member of the World Trade Organization (WTO) in 1995, it agreed, among other things, to comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).2 The TRIPS Agreement provides the minimum standards which the Member States must adhere to promote effective and adequate protection of intellectual property rights. The Member States must ensure that measures and procedures to enforce intellectual property rights do not become barriers to legitimate trade. Consequently, the country’s laws on intellectual property were modified, thus, giving birth to the Intellectual Property Code of the Philippines (IP Code)3 which codified the intellectual property laws of the Philippines. The existing legal mechanisms in protecting intellectual property rights are, therefore, primarily contained in the IP Code. Under Section 4 of the IP Code, the term “intellectual property rights” consists of the following: 1. 2. 3. 4.

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copyright and related rights; trademarks and service marks; geographic indications; industrial designs;

1

Excerpt from the speech of the World Intellectual Property Organization (WIPO) Director General Francis Gurry in Technical Symposium on Access to Medicines, Patent Information and Freedom to Operate, 18 February 2011, WHO Headquarters in Geneva.

2

Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Annex 1(c) of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1869 U.N.T.S. 299.

3

An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for Other Purposes [Intellectual Property Code of the Philippines], Republic Act No. 8293, (1997).

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The Patent System and the Protection of Traditional Knowledge

5. patents; 6. layout-designs (topographies) of integrated circuits; and 7. protection of undisclosed information. The field of intellectual property may, therefore, be divided into two areas. The first is in the context of artistic and literary creations that are covered by copyright and related rights. Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.4 On the other hand, related rights have been granted to three categories of beneficiaries namely, performers, producers of phonograms, and broadcasting organizations.5 Meanwhile, the second area of intellectual property can be categorized as the industrial property, which includes inventions (patents), trademarks, industrial designs, geographic indications and the other forms of the enumerated intellectual property rights in Section 4 of the IP Code. Similarly, the intellectual property rights of the breeders of new plant varieties form part of the industrial property.6 “During the last 20 years or so, the level, scope, territorial extent, and role of IP protection have expanded at an unprecedented pace. Genetic materials have become widely patented. IP rights have been modified or created to cover new technologies, particularly biotechnology and information technology. Technologies produced in the public sector are routinely patented. The World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has extended minimum standards for IP protection globally. There are continuing discussions in WIPO aimed at further harmonisation of the patent system, which may supersede TRIPS. Moreover, bilateral or regional trade and investment agreements between developed and developing countries often include mutual commitments to implement IP regimes that go beyond TRIPS minimum standards. Thus there is sustained pressure on developing countries to increase the levels of IP protection in their own regimes, based on standards in developed countries.”7 Significantly, the changing landscape of intellectual property requires a need to redefine the role of intellectual property in both the traditional areas of concerns (i.e. copyrights, trademarks, patents) and the emerging issues (i.e. traditional knowledge, genetic resources and health). These changes suggest the need to take a more strategic and developmental approach in the field of intellectual property protection to make it an effective tool for national development. In this regard, a major practical issue or challenge that may be considered is the 4

What is copyright? available at http://www.wipo.int/copyright/en/ (last accessed 06 March 2014).

5

Related Rights available at http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909. html#related_rights (last accessed 06 March 2014).

6 An Act to Provide Protection to New Varieties, Establishing a National Plant Variety Protection Board and for Other Purposes [Philippine Plant Variety Protection Act of 2002], Republic Act No. 9168, s 2 (2002). 7

United Kingdom’s Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Report of the Commission on Intellectual Property Rights, Executive Summary, London September 2002, pages 1 and 2, available at http://www.iprcommission.org/graphic/documents/final_report. htm (last accessed 06 March 2014).

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Robert Nereo B. Samson

availability and sufficiency of the existing mechanisms in the intellectual property rights system, in particular, the laws on patents, to provide legal protection to traditional knowledge and address the concerns of the traditional knowledge right holders on their intellectual property rights. II. The Law on Patents The Philippines adheres to the policies of securing the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.8 A patent right is granted by the State to an inventor to exclude others from commercially exploiting the invention for a limited period, in return for the disclosure of the invention, so that others may gain the benefit of the invention. Patents are frequently referred to as “monopolies”, but a patent does not give the right to the inventor or the owner of a patented invention to make, use or sell anything. The effects of the grant of a patent are that the patented invention may not be exploited in the country by persons other than the owner of the patent unless the owner agrees to such exploitation. Thus, while the owner is not given a statutory right to practice the invention, the patent holder is given a statutory right to prevent others from commercially exploiting the invention, which is frequently referred to as a right to exclude others from making, using or selling the invention. The right to take action against any person exploiting the patented invention in the country without the agreement of the patent holder constitutes the patent owner’s most important right, since it permits the patent holder to derive the material benefits to which the owner of a patent is entitled as a reward for the intellectual effort and work, and compensation for the expenses incurred by the patent holder in the research and experimentation leading to the invention.9 Under Sec. 21 of the IP Code, any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process or an improvement of any of the foregoing. The laws on patents, thus, requires the three (3) elements of novelty (new), not being obvious (inventive step) and having utility (industrially applicable) for an innovation or an invention to be patentable. An invention shall not be considered new if it forms part of a prior art.10 Prior art shall consist of everything which has been made available to the public anywhere in the world, before the filing date or the priority date11 of the application claiming the invention; and the whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, 8

PHIL. CONST. art XIV, s 13.

9

World Intellectual Property Organization, Intellectual Property Handbook, Chapter 2, Fields of Intellectual Property Protection, 17 (2004).

10

Intellectual Property Code, s 23.

11 ��������������������������������������������������������������������������������������������������������������� The Paris Convention for the Protection of Industrial Property provides that an applicant who filed an application in one country party to the Convention is entitled to claim priority for a period of twelve months and the filing date of that first application is considered the “priority date.” (Article 4). Therefore, when that applicant applies for protection in other member countries (of the Paris Convention) during those twelve months, the filing date of the first application is considered to have “priority” over other applications filed after that date. In such a case, the applicant will still succeed in being the first-to-file in other member countries, even if there are other applications filed before the filing date of the application in those countries.

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with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in both applications are not one and the same.12 On the other hand, an invention involves an inventive step if having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention.13 The person having ordinary skills in the art is presumed to be an ordinary practitioner aware of what is common general knowledge in the art at the relevant date. He is presumed to have knowledge of all references that are sufficiently related to one another and to the pertinent art and to have knowledge of all arts reasonably pertinent to the particular problems with which the inventor was involved. He is presumed also to have had at his disposal the normal means and capacity for routine work and experimentation.14 Meanwhile, an invention that can be produced and used in any industry shall be industrially applicable.15 Accordingly, the indigenous peoples may secure patent protection on their traditional knowledge that satisfies the elements of novelty, inventive step, and industrial applicability. For instance, an indigenous knowledge that covers a method or process of selecting, storing, and planting seeds that may produce better yield than those available in the market may be the subject of patent protection if such method or process is not known to the public or had not been disclosed to the farmers and the agricultural community. Similarly, the indigenous knowledge system and practices referring to farming practices may be the subject of patent protection provided these practices satisfy the criteria of a patentable invention. However, it is admitted that the cultural dimensions within which these indigenous knowledge systems and practices were developed may indicate possible gaps in the application of the laws on patents. The notion of exclusive and individual proprietary rights and the limited period of protection under the laws on patents may not be consistent to the collective, communal nature, and intergenerational characteristics of TK. III. Perceived limitations on the use of the laws on patents to protect traditional knowledge 1. Subject matter of the invention The IP Code did not specifically enumerate that a TK is a non-patentable subject matter.16 Accordingly, TK must not be considered in principle any less patentable when knowledge from any other source, and the general criteria of novelty, inventive step and 12

Intellectual Property Code, s 24.

13

Id. s 26.

14 �������������������������������������������������������������������������������������������������������� Rules and Regulations Implementing the Intellectual Property Code, Republic Act No. 8293, Revised Implementing Rules and Regulations for Patents, Utility Models and Industrial Designs, Rule 207 (2011). 15

Intellectual Property Code, s 27.

16

Id. s 22.

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industrial applicability should be applied.17 In addition, because TK encompasses a broad subject, for purposes of the law on patents, a narrow definition or concept of TK needs to be considered to put it in the context of patent protection. This is important to identify the scope of TK subject matter for which protection can be given. However, given the highly diverse and dynamic nature of TK, it may not be possible to develop a singular and exclusive definition of the term TK. Traditional knowledge differed according to the purpose for which they were developed and according to the cultures in which they were developed. Different definitions of the term TK are therefore conceivable for sociological, historical or legal purposes.18 The Implementing Rules and Regulations of the Philippine Technology Transfer Act of 200919, however, adopted a definition of TK as referring to: “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.”20 Regarding the concerns that TK may not satisfy the element of novelty or newness,21 this perceived limitation “results from the concept that traditional knowledge being traditional is ‘old’ ”.22 However, “traditional knowledge, just because it is “traditional” is not necessarily old. Tradition in the context of traditional knowledge, refers to the manner of producing such knowledge, and not to the date on which the knowledge was produced. Traditional knowledge is knowledge that has been developed based on the traditions of a certain community or nation… Besides, even traditional knowledge that is “old” – in the sense that it has been produced yesterday or, eventually, many generations ago – can be novel for the purposes of several areas of intellectual property. Novelty, in general, has been defined by laws according to more or less precise criteria according to which the specific piece of technical knowledge has been made available to the public. In the field of patents for example, it is disclosure (or the lack thereof) that establishes whether the condition of novelty (and of inventiveness) has been met. The date on which the invention was realized is not necessarily taken into account for that purpose.”23 Henceforth, a TK, that is not part of the prior art or which has not been disclosed to the public prior to the filing of the patent application covering the TK can still be considered new which satisfies the required element of novelty for patent protection. 17

Anthony Taubman and Matthias Leistner, Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore, Part III Analysis of Different Areas of Indigenous Resources 96 (Dr. Silke von Lewinski, Second Edition).

18

World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report [hereinafter IGC], WIPO/GRTKF/IC/2/16, at page 50 paragraph 112 (14 December 2001).

19 ������������������������������������������������������������������������������������������������������� An Act Providing the Framework and Support System for the Ownership, Management, Use, and Commercialization of Intellectual Property Generated from Research and Development Funded by Government and for Other Purposes [Philippine Technology Transfer Act of 2009], Republic Act No. 10055, (2010). 20

Rules and Regulations Implementing the Philippine Technology Transfer Act of 2009, Rule 3(dd).

21

Sedfrey M. Candelaria, Case Study 4 Copyright for the T’nalak: Protecting the Intellectual Property Rights of Indigenous Communities in The Road to Empowerment 68, 2007.

22

IGC, Third Session, Review of Existing Intellectual Property Protection of Traditional Knowledge WIPO/ GRTKF/IC/3/7 (06 May 2002).

23

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Id.

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2. Identity of the inventor Under the provisions of the IP Code, the identity of the inventor is required to be disclosed in the patent application.24 However, identifying the inventor of a TK may be difficult owing to its very nature of being collectively owned by the community and which possesses an intergenerational character. In this regard, because the right to a patent belongs to the inventor,25 there would be a difficulty of identifying the person entitled to patent protection. Moreover, if a holder of a TK discloses a particular knowledge to a researcher/ inventor and such disclosure inspires the latter to develop a new product, the specifications of which would not necessarily embody the TK, the patent system would only reward the inventor identified in the patent application. In this respect, the absence of the acknowledgment of the contribution of the holder of the TK is lost in the patent system requiring only the identity of the inventor. Nonetheless, the application for patent protection requires the disclosure of the description including the background art26 of the invention which would trigger the disclosure of the information related to TK. The patent system requires the publication of the patent application before the substantive examination.27 In this regard, the disclosure would enable a third party to be informed if the subject matter may have reference to any TK of the indigenous peoples or the indigenous cultural community. Accordingly, any person may present observations in writing concerning the patentability of the invention.28 3. Term of protection Patent protection has a limited term of protection which is 20 years from the filing date of the patent application.29 On the other hand, the term of protection of a utility model shall expire without any possibility of renewal, at the end of the seventh year after the date of the filing of the application.30 The term of protection is relatively limited compared to the intergenerational timeframe in which TK is developed and might not be adequate to ensure the due preservation of TK. Thus the limited duration of protection may be considered a gap.31 24

Intellectual Property Code, s 32.2.

25

Id. s 28.

26

Rules and Regulations Implementing the Intellectual Property Code, The Revised Implementing Rules and Regulations for Patents, Utility Models and Industrial Designs, Rule 407.

27

Intellectual Property Code, s 44 and s 48.

28

Intellectual Property Code, s 47.

29

Id. s 54.

30

Id. s 109.3.

31 IGC, Thirteenth Session, The Protection of Traditional Knowledge: Draft Gap Analysis: Revision WIPO/ GRTKF/IC/13/5(b) Rev (11 October 2008).

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4. Lack of reference to recognized principles of the free and prior informed consent and the equitable sharing of benefits arising from the access and use of TK The patent system has no reference to the recognized right of indigenous peoples to their free and prior informed consent on any access and use of genetic resources and associated TK. Access to biological and genetic resources and to indigenous knowledge of the indigenous peoples must be obtained in accordance with customary laws of the community concerned.32 Similarly, the indigenous peoples and the community concerned shall be entitled to royalty from the income derived from any of the researches conducted and resulting publications.33 This, however, is not a requirement in securing patent protection to an invention, notwithstanding that such innovation may have been derived from the TK of the indigenous peoples or the indigenous cultural community. 5. Technical difficulties The holders of TK may not necessarily be open to submitting their intellectual creations to registration and protection under the IPR system, more particularly in the field of patent protection which requires technical expertise in the drafting of the description and claims of the invention. And, even if the indigenous peoples would be willing to submit to the IPR system processes, inherent difficulties abound such as the capability of the holders of TK to embrace the technicalities of the processes in the IPR system from the filing of the intellectual property application to the registration and enforcement of the intellectual property rights. In the operational context, the cost of filing and registration of intellectual property rights is prohibitive, as are the costs of enforcement and infringement proceedings.34 6. Patent protection is territorial in nature and the lack of international standards in the protection of TK in the IPR system The aforementioned technical difficulties by the indigenous peoples to use the IPR system to protect their TK is aggravated by the concept in the IPR system which recognized the authority of the sovereign states to prescribe their respective criterion of protection subject to the minimum standards required by international agreements on intellectual property. For instance, even if the indigenous peoples can prevent the patenting of their TK here in the Philippines, they cannot prevent the patenting of their TK in other countries if the pertinent patent application satisfies the patentability requirements in that foreign jurisdiction of an invention being novel, inventive and industrially applicable. Thus, in her thesis, Marie Yasmin Sanchez cited the following: “The Philippine yew tree (taxus sumatrana) has also been patented by the University of Philadelphia for taxol, an anti-cancer compound found in the needle and stem of the tree. The researchers were able to obtain information on the strength of a “gratuitous

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32

Indigenous Peoples Rights Act of 1997, s 35.

33

Rules and Regulations Implementing the Indigenous Peoples Rights Act of 1997, Rule VI Sec. 15 (e).

34

World Intellectual Property Organization (WIPO), Intellectual Property Needs and Expectations of Traditional Knowledge Holders WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), 217 (2001).

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permit” issued by the Cordillera regional environment and natural resources office. They promised to send back a copy of the research but failed to do so, despite the Philippine government’s requests. Futhermore, an herbal medicine used in Cordillera highlands called Banaba (Lagerstroemia speciosa), used as a purgative and stimulant by traditional healers and known to treat fever, diarrhea and diabetes, has been patented by Itoen KK, a Japanese Company. According to the Department of Health, Japan funded a jute plantation in Central Luzon and put up a plant to process the medicine and sell it in both powdered and tablet form. Other popular backyard Filipino herbal medicines like sambong, lagundi and takip kuhol (Centella asiatica), have also been the subject of many patent claims by Japanese companies.”35 (footnotes omitted) With the advent of modernization and globalization, trade and commerce may unwittingly provide easy access to third parties on the TK of the indigenous peoples and consequently, these parties may secure patent protection on foreign jurisdiction which may not have laws addressing the protection of TK. While multilateral agreements on intellectual property provide clear mechanisms on the protection of intellectual property, the standards of protection embodied in these international agreements do not provide the mechanisms for the protection of TK within the IPR system. Accordingly, the acknowledged technical difficulties on the part of the indigenous peoples are even more aggravated by the current IPR system of protection. This limitation is actually acknowledged in the various international fora like the WIPO and the WTO where negotiations are being undertaken to find the international standard of protection of TK in the IPR system. 7. The World Intellectual Property Organization (WIPO) The WIPO, as the lead United Nations agency mandated to promote the protection of intellectual property through cooperation among states and in collaboration with other international organizations, is committed to ensuring that all countries are able to benefit from the use of intellectual property for economic, social and cultural development. Implied in this, are the notions of balance, accessibility and reward for creativity and innovation.36 The WIPO Development Agenda aims to ensure that development considerations form an integral part of WIPO’s work. As such, it is a cross-cutting issue which touches upon all sectors of the Organization. Development is one of the most urgent challenges that the international community is facing today. Its importance is acknowledged not only for the benefit of developing countries but also for the benefit of developed nations. In the context of the United Nations, the United Nations Millennium Declaration was adopted in 2000 in order to respond to the world’s major development challenges. The Declaration recognizes that the central challenge is to ensure that globalization becomes a positive force for all. In 35

Marie Yasmin M. Sanchez, Combating Piracy: The Resolution of Inconsistencies between the Convention on Biodiversity (CBD) and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights at Abstract(2012) (J.D. thesis, Ateneo de Manila University)(on file with the Professional Schools Library, Ateneo de Manila University).

36

http://www.wipo.int/ip-development/en/ (last accessed 19 March 2013).

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addition to an intensified globalization, the world is in a transition to a knowledge-based economy where knowledge will become a strong competitive advantage in the globalized market.37 When formally establishing the Development Agenda in October 2007, the WIPO General Assembly adopted a set of forty-five (45) recommendations to enhance the development dimension of the Organization’s activities. One of these recommendations is: “18. To urge the IGC to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments.”38 The IGC was established in 2000 with a mandate to determine the possible development of an international instrument or instruments for the protection of TK. The work of the IGC is without prejudice to the work pursued in other fora. The discussions in the WIPO and the IGC illustrate the rather tedious process in establishing the international norms of protecting traditional knowledge within the context of the IPR system. 8. The World Trade Organization (WTO) – TRIPS Council The WTO-TRIPS Council examines the relationship between the TRIPS Agreement and the CBD, the protection of traditional knowledge, and folklore. In this regard, various submissions were submitted to the TRIPS Council including proposals to amend certain provisions of the TRIPS Agreement. One of the submissions in the TRIPS Council maintains that any protection of genetic resources and traditional knowledge will not be effective unless and until international mechanisms are found and established within the framework of the TRIPS Agreement. Other means, such as access contracts and data bases for patent examinations, can only be supplementary to such international mechanisms, which must contain an obligation on Members collectively and individually to prohibit, and to take measures to prevent, the misappropriation of genetic resources and traditional knowledge.39 However, notwithstanding the various submissions by the WTO Member States, the TRIPS Council has not made any decisions on the issue of protection of TK. That there is no substantive results yet in the TRIPS Council may also be because the negotiations in the WTO are not deemed concluded unless all other issues are settled. As there are diverging positions on issues on trade in goods and services, the negotiations on intellectual property rights are not being pushed for conclusion. In this regard, the development in the WIPO appears to be relatively advance in status as compared to the TRIPS Council in so far as seeking an international instrument providing the protection of TK within the IPR system is concerned. 37

World Intellectual Property Organization, Standing Committee on the Law of Patents, Twelfth Session, SCP/12/3, Report on the International Patent System, page 90, paragraph 303 (15 April 2008).

38

http://www.wipo.int/ip-development/en/agenda/recommendations.html (last accessed 19 March 2013).

39 ������������������������������������������������������������������������������������������������������� World Trade Organization Council for Trade-Related Aspects of Intellectual Property Rights, Taking Forward the Review of Article 27.3 (b) of the TRIPS Agreement, Joint Communication from the African Group, IP/C/W/404 {26 June 2003 (03-3410)}.

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IV. The interplay of the patent system and the protection of traditional knowledge Even if the holder of a patentable TK is not interested in securing the exclusive rights over an invention but would rather have such knowledge to be in the public domain or to be available to the public without restriction, the laws on patents can also be used as a form of “defensive” protection which would bar a third party from patenting this invention or securing a patent to an invention that is equivalent40 if not actually identical to this invention. The disclosure of the TK or the making available to the public anywhere in the world of the TK may form part of the prior art, thus, barring the patent protection on any invention referring to this TK. For example, a patent application for an “anti-obesity” invention has a filing date of 03 March 2014. However, prior to this date, a “Traditional Knowledge Journal” was published which contained an article citing the “anti-obesity” characteristics of a fruit of a plant which happens to be the source of the invention subject of the patent application. The article claims that since the 1950’s, various groups of indigenous peoples have used this fruit of the plant to suppress their appetite. If the invention is based on this fruit of a plant, the patent examiner may use the publication in the Traditional Knowledge Journal to rule against the novelty of the patent application. The holder of a patented TK has the right to exclude others from accessing and exploiting this TK and consequently, any third party is bound to adhere to the rights and obligations and sharing of benefits envisioned under the IPR system for accessing a patented invention. Patents or applications for patents and inventions to which they related shall be protected in the same way as the rights of the other property other the Civil Code. Inventions and any right, title or interest in and to patents and inventions covered thereby, may be assigned or transmitted by inheritance or bequest or may be the subject of a license contract.41 Similarly, if the holder of TK would like this knowledge to be made available to anyone and to bar any third party from securing exclusive rights over the TK, the disclosure of this TK would bar the patent protection. Moreover, the laws on patents in the IP Code also recognize the rights over utility models and industrial designs. Utility models refer to inventions that are new and industrially applicable.42 Accordingly, as in patent protection, the same standards of novelty and being industrially applicable can be applied to the TK that is the subject or related to the utility model application. On the other hand, an industrial design refers to any composition of lines or colors or any three-dimensional forms, whether or not associated with lines or colors: Provided that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft.43 Only industrial designs that are new or original shall 40 ������������������������������������������������������������������������������������������������������������� An invention is deemed equivalent to a prior invention if it performs substantially the same function in substantially the same way to achieve substantially the same result. See Smith Kline Beckman Corporation v. The Honorable Court of Appeals, 409 SCRA 33, 40 (2003). 41

Intellectual Property Code, s 103.

42

Id. s 108.1.

43

Id. s 112 (1).

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benefit from protection.44 Similarly, the TRIPS Agreement requires the Member States to provide for the protection of independently created industrial designs that are new or original. The Member States may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Member States may also provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.45 In this regard, artistic designs which embody the traditional cultural expressions of the indigenous peoples or indigenous cultural communities and which give a special appearance to and can serve as pattern for an industrial product or handicraft can also be covered by the design protection in the laws on patents. Therefore, the standards of protection being applied to inventions, utility models and industrial designs can be applied similarly to the standards of protection of TK covering an invention, a utility model or an industrial design. The Disclosure Requirements on Patent Applications The essence of patent protection is the grant of incentives in exchange for the disclosure of the invention. The disclosure of the invention is, thus, an important consideration in any patent granting procedure. Article 29 of the TRIPS Agreement provides that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art. The IP Code has a similar provision which also requires the implementing rules and regulations on the laws on patents to prescribe the contents of the description of the invention.46 However, regarding inventions that utilized traditional knowledge and those associated with genetic resources, it is still a policy and legal debate even in the international fora whether to include the disclosure of the source or origin of the traditional knowledge or genetic resources in patent applications. In the WIPO, there are debates on “how to guarantee that genetic resources or traditional knowledge have been legitimately accessed, how to ensure patents as granted are consistent with equitable benefit-sharing, and how the patent system can overall promote and advance equitable benefit-sharing.”47 The responses to these debates and questions operate at the macro and micro levels. At the macro level, the linkage of the patent system and the protection of TK refer to the genetic resources or traditional knowledge used in the claimed invention which may have an effect on substantive legal questions such as the patentability of invention, the applicant’s entitlement to apply for or to be granted a patent; and the enforcement of patents that are considered to be obtained inequitably.48 Supplementing these core macro level questions, are the perceived linkages between

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44

Id. s 113.1.

45

World Trade Organization, Uruguay Round Agreement: TRIPS, Article 25, available at http://www.wto.org/ english/docs_e/legal_e/27-trips_04b_e.htm#4 (last accessed 19 March 2013).

46

Intellectual Property Code, s 35.2.

47

Supra note 37 at 86 paragraph 295.

48

Id. paragraph 296.

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the patent system and TK and genetic resources at the practical, micro level – focusing on patent search and examination, so that in practice there is reduced likelihood of illegitimate patents being granted that claim genetic resources/TK directly or noninventive derivatives of genetic resources/TK, but also to facilitate the equitable sharing of benefits from legitimate patenting of derivative inventions, through the development of practical capacity and awareness on the part of custodians of TK and genetic resources, and work on guidelines to support choices in the way mutually agreed terms for access to genetic resources are structured so as to safeguard equitable sharing of resulting benefits.49 Under the provisions of the IP Code, these disclosure requirements on traditional knowledge are not expressly required. Sec. 40 the IP Code states that: SEC. 40. Filing Date Requirements.- 40.1. The filing date of a patent application shall be the date of receipt by the Office of at least the following elements: a. An express or implicit indication that a Philippine Patent is sought; b. Information identifying the applicant; and c. Description of the invention and one (1) or more claims in Filipino or English. Similarly, the TRIPS Agreement does not require these disclosure requirements on traditional knowledge but there are proposals to amend the TRIPS Agreement to include these disclosures in the patent applications. Disclosure as a TRIPS obligation: A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand, and supported by the African group and some other developing countries, wants to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received “prior informed consent” (a term used in the Biological Diversity Convention), and evidence of “fair and equitable” benefit sharing. Disclosure through WIPO: Switzerland has proposed an amendment to the regulations of WIPO’s Patent Cooperation Treaty (and, by reference, WIPO’s Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated. Disclosure, but outside patent law: The EU’s position includes a proposal to examine a requirement that all patent applicants disclose the source or origin of genetic material, with legal consequences of not meeting this requirement lying outside the scope of patent law. Use of national legislation, including contracts rather than a disclosure 49

Id. paragraph 297.

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obligation: The United States has argued that the Convention on Biological Diversity’s objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosing of any commercial application of genetic resources or traditional knowledge.50 In this regard, the patent system can be used as a legal and policy tool to ensure compliance with the requirements for accessing the TK of the indigenous peoples. Through a mechanism that requires evidence showing compliance to these requirements, including the disclosure that customary laws of the indigenous cultural communities were followed, the misappropriation of the TK can be prevented. The patent system may act as a monitoring tool where compliance on the provisions for the access and use of the associated TK is disclosed in the patent application. This disclosure requirement can be embodied in the description of the invention and is consistent to the country’s policy of giving recognition, respect, and protection to the rights of indigenous cultural communities (in relation to their associated TK).51 Moreover, the disclosure requirements are useful mechanisms in implementing the provisions of the Convention on Biodiversity (CBD)52 regarding access to genetic resources that may be associated with TK. Art. 15(7) of the CBD provides that: Article 15. Access to Genetic Resources xxx 7. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms. In addition, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol)53 which provides the international regime on the fair and equitable sharing of benefits arising from the utilization of genetic resources requires Member States to take measures, as appropriate, with the aim of ensuring that TK associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities.54

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50

TRIPS Reviews, Article 27.3(b) and Related Issues, �������������������������������������������������������� Background and the current situation, The Debate, available at http://www.wto.org/english/tratop_e/trips_e/art27_3b_background_e.htm last accessed 19 March 2013.

51

PHIL. CONST. art. XIV, s 17 and the Indigenous Peoples Rights Act of 1997.

52

Convention on Biological Diversity, 05 June 1992, 1760 U.N.T.S. 79.

53

Opened for signature 02 February 2011, C.N. 782.2010.Treaties-1 (Depositary Notification).

54

Nagoya Protocol, art 7.

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The requirement of disclosure of the associated traditional knowledge on patent applications is similar to the provisions of the Philippine Technology Transfer Act of 2009 and its implementing rules and regulations requiring the inclusion in the abstract or description of the intellectual property application the associated TK, and indigenous knowledge, systems and practices utilized in or which formed as basis in the development of the subject matter contained in the application.55 Furthermore, the Implementing Rules and Regulations of the country’s Plant Variety Protection Act of 2002 requires the applicants to disclose in their applications the detailed origin and breeding history of the plant variety including the source of the germplasm and the results of other plant variety tests or trials that have already been done on the variety.56 By requiring the disclosure of the origin of the associated TK in patent applications, there is the mechanism to ensure that the access of the TK complies with the pertinent rules and regulations on using the associated TK of the indigenous peoples and the indigenous cultural communities. Consequently, this mechanism will also facilitate the equitable sharing of benefits arising from the access and use of the TK as disclosed in the patent application. In addition, aside from being consistent to the principle of disclosure on Article 29 of the TRIPS Agreement, the disclosure requirement enhances the patent system by ensuring that patents are granted only to inventions that have fully met the criteria of patentability. The disclosure of the associated TK in a patent application contributes to the examination of novelty of the invention by providing the background of the invention. In other words, the disclosure forms part of the database of information that would be examined on the relevant art. This disclosure requirement on patent applications is also recognized in other countries. In China, for example, they have granted thousands of patents for innovations within the field of traditional Chinese medicines.57 A provision in the laws of patents of China provides that for an invention based on genetic resources, the applicant shall state the direct source and the original source of the genetic resources in the application documents. If the applicant is not able to state the original source, the applicant shall state the reasons.58 The disclosure requirements aside from enhancing the examination of the patentability criteria of the invention also allows the review on the compliance to the regulatory requirements in the access and utilization of TK and the provisions of benefit sharing agreements of the parties concerned. In Brazil, the granting of industrial property rights by the competent bodies over the process or product obtained from samples of genetic heritage components is subject to compliance with the provisions on the country’s laws on access to genetic heritage. The person or institution applying for the property rights must inform the origin of the genetic material and the genetic knowledge and the associated traditional knowledge, as 55

Rules and Regulations Implementing the Philippine Technology Transfer Act of 20089, Rule 12 Section 3 (c) (v).

56

Implementing Rules and Regulations of the Philippine Plant Variety Protection Act of 2002, Administrative Order No. 7, Series of 2003, art. 27.

57

World Intellectual Property Organization, Intellectual Property and Traditional Knowledge, 30 (Booklet No. 2).

58

Patent Law of the People’s Republic of China, art 26 (2008).

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appropriate.59 In the European Union, if an invention is based on biological material of plant or animal origin or if it uses such material, the patent application should, where appropriate, include information on the geographical origin of such material, if known; whereas this is without prejudice to the processing of patent applications or the validity of rights arising from granted patents.60 Accordingly, the IPR system or in this case, the patent system, can be used both to prevent the misappropriation of and to secure the equitable sharing of benefits arising from the use of TK. The Philippines adheres to the policy of recognizing, respecting, and protecting the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions.61 The passage of the IPRA which was approved in the same year that the IP Code was approved (1997) gives effect to the State policies giving the indigenous peoples and the indigenous cultural communities, the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs.62 The indigenous peoples and indigenous cultural communities are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights.63 The access to biological and genetic resources and to indigenous knowledge related to the conservation, utilization and enhancement of these resources, shall be allowed within ancestral lands and domains of the indigenous cultural communities only with a free and prior informed consent of the communities, obtained in accordance with customary laws of the concerned community.64 In this regard, the patent system can be an effective tool for the economic, social and cultural development of the indigenous peoples and the indigenous cultural communities. While it is admitted that there are limitations in using the IPR system to protect TK, a deeper understanding of this system can narrow if not overcome these perceived limitations and enable the crafting of a legal and policy framework that can contribute to the protection of and give the holders of TK a fair and equitable share of the benefits arising from the access and use of their TK. The protection of intellectual property is not only a statutory privilege but a State policy expressly recognized by the 1987 Constitution. Significantly, the IPR system protects the innovations of all Filipinos including the intellectual creations and innovations of the indigenous peoples. Similarly, the 1987 Constitution recognizes the importance of

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59

Provisional Act No. 2,186-16, dated August 23, 2001. This legislation in Brazil is related to the access to genetic heritage and traditional knowledge in Brazil.

60

EU Directive 98/44/EC of the European Parliament and of the Council of 06 July 1998 on the legal protection of biotechnological inventions.

61

PHIL. CONST. art. XIV, s 17.

62

The Indigenous Peoples Rights Act of 1997, s 32.

63

Id. s 34.

64

Id. s 35.

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promoting respect to the cultural integrity of the indigenous peoples which indisputably includes their intellectual creations or their community intellectual rights to their creations and innovations. The standards of protection in intellectual property continue to develop as evidence by the inclusion in the Philippine Plant Variety Protection Act of 2002 and the Philippine Technology Transfer Act of 2009 of the recognition of the rights of small farmers on their traditional practices65 and the requirements of disclosure of the source of the TK in intellectual property applications, respectively. Similarly, other countries and international organizations have adopted and are discussing the relevant mechanisms and instruments for the protection of TK within the framework of the intellectual property regime. It is also not farfetched that the countries in the world in the near future would agree to an international instrument for the protection of TK within the legal and policy framework of the IPR or the patents system. V. Conclusion The dynamic landscape of the IPR system including the laws on patents can cover the innovations derived from the indigenous knowledge systems and practices of the indigenous peoples and the indigenous cultural communities. However, for the effective application of the IPR system or the patent system, it is necessary that there must be a clear identification of the TK that are recognized as the intellectual creations by the indigenous peoples, and consequently, recognized as owned and subject to control by the indigenous peoples. This is a significant factor especially with the proprietary, individual, and exclusive rights concepts in the IPR system. The patent system is a mechanism that was developed to form part of an effective intellectual and industrial property system that is vital for technological development, transfer of technology and the incentives for the marketing of products. The use of intellectual property also bears a social function.66 Accordingly, the patent system must be used towards these objectives Significantly, providing intellectual property protection on traditional knowledge needs an analysis of the various States policies and objectives. It is important that objectives are clear and well-defined. The diversity of the subject matter of traditional knowledge will certainly give rise to various opinions, approaches, and understanding. The existing concept of intellectual property protection might not necessarily fit to the concept of “protection” of traditional knowledge as envisioned by the TK holders and even their users. The country’s legislations are not that far behind in providing legal protection to owners, holders and stakeholders of traditional knowledge and of providing equitable benefit sharing on access to genetic resources. The country can boast of a legislation that recognize and respect the aspirations and concerns of the indigenous people and to protect their interests through a legal system. Through the Indigenous Peoples Rights Act of 1997, the indigenous peoples and the indigenous cultural communities have been granted recognition of their full ownership not only over land domain and natural resources but also over the intellectual rights 65

Philippine Plant Variety Protection Act of 2002, s 43.

66

Intellectual Property Code, s 2.

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involved in the cultural heritage.67 There is no dispute of the need to give fair and equitable share of benefits derived from the use and utilization of genetic resources and associated traditional knowledge. However, whether the patent system can contribute to this objective is not expressly provided in the IP Code and in the current international standards on the protection of intellectual property. Be that as it may, this should not deter the application of the country’s patent system to achieve these policy objectives. The relevant government agencies can harmonize their respective implementing rules and regulations to ensure the interplay of the patent system in the protection of traditional knowledge. It is therefore necessary that while the global community is developing standards for intellectual property protection of traditional knowledge and genetic resources, there must be continuous consultation at the national level. Consultations with relevant government entities, traditional knowledge holders/users and the private sector must be pursued. Any scheme of intellectual property protection on traditional knowledge and associated genetic resources must therefore provide an approach that shall consider the variables, resources and issues involved and its impact on the policy objectives of promoting the common good of all the sectors of the society including the indigenous peoples and the indigenous cultural communities. •••

67

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•••

Mrs. P. V. Valsala G. Kutty for the World Intellectual Property Organization, National Experiences with the protection of expressions of folklore/traditional cultural expressions: India, Indonesia and the Philippines, 28 (1999).

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Mining in the Philippines: Whose Interests should Prevail? A Synthesis and Analysis of the La Bugal Case

Mining in the Philippines: Whose Interests Should Prevail? A Synthesis and Analysis of the La Bugal Case Antonio P. Jamon, Jr.* In the end, it is the threat of universal extinction hanging over all the world today that changes, totally and forever, the nature of reality and brings into devastating question the true meaning of man’s history. James Baldwin, “The Fire Next Time” The smoke of their foul dens Broodeth on Thy fair Earth as a black pestilence, Hiding the kind day’s eye. No flower, no grass there groweth, Only their engines’ dung which the fierce furnace throweth. Wilfrid Scawen Blunt, “Satan Absolved”  “The task of reclaiming Filipino control over Philippine natural resources now belongs to another generation.” Justice Carpio-Morales, “La Bugal – B’laan Tribal Association, et al. v Secretary Ramos, et al” (December 2004)

INTRODUCTION: AN ISSUE OF CONTROL It is without argument that mining operations1, as a natural consequence of obtaining useful minerals from the earth’s crust, have led to widespread and severe environmental degradation despite exhaustive attempts at various sustainable development frameworks. *

Managing Partner, JAMON TORREJA & ASSOC. LAW OFFICES; Assistant Dean, De La Salle University (DLSU) College of Law; Coach for the Debating Team of the De La Salle College of Law, in the recent Moot Court Competition on International Humanitarian Law held at the University of the Philippines, College of Law, Diliman, Quezon City; Member, National Committee on Bio-Safety of the Philippines (NCBP), Department of Science and Technology (DOST) representing the Consumer Sector; Assistant Vice-President, Office of the Chairman of the Board, United Laboratories, Inc. (UNILAB) (April 1996 – June 2001); Assistant VicePresident, Legal and Corporate Affairs, Chemphil Group of Companies (October 1989 – April 15, 1996); Director, Legal and Intelligence Services, Bureau of Customs (March to August 1987); Officer-in-Charge (OIC), Office of the Executive Director (March 1987) and Chief Legal Officer, Legal and Policy Research Division (LPRD) (January 1984), Environment Management Bureau, DENR; Corporate Secretary, Institute of Strategic and Development Studies (ISDS), a private research and “think-tank” Institute, based in UP; He also served as Corporate Legal Counsel, Office of the President and Chief Executive Officer (Pres/CEO) of the Philippine Health Insurance Corp. (PhilHealth); Corporate Secretary, Board of Trustees of the Specialty Hospitals (Philippine Heart Center, National Kidney & Transplant Institute, Lung Center of the Philippines, Philippine Children’s and Medical Center and East Avenue Medical Center); Legal Consultant, Veterans Medical and Memorial Center, and Legal Counsel of the Nutritionists – Dietitians Association of the Philippines (NDAP), and the Office of the Secretary of Health, Department of Health, for almost a decade.

1

Dublin, Thomas. When the Mines Closed. Cornell University Press, 1998. Mining operations generally progress through four stages: (a) prospecting, or the search for mineral deposits; (b) exploration, or the work involved in assessing the size, shape, location, and economic value of the deposit; (c) development, or the work of preparing access to the deposit so that the minerals can be extracted from it; and (d) exploitation, the work of extracting the minerals.

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Yet despite our State’s claim of social awareness regarding the mining problematique, what should have been the situs of increased government participation in minimizing largescale and potentially irreparable damage to the Philippine’s natural environment, what we are left with instead are numerous bilateral agreements and laws that aim to simplify the procedures of processing mining applications and, consequently, the issuance of mining permits to both Filipino and foreign corporations. The most notorious of these laws, the Philippine Mining Act of 1995 (R.A. 7942) authored by then-Senator Gloria Macapagal Arroyo herself, has been in operation for more than a decade. Its Implementing Rules and Regulations (IRR) and a Financial and Technical Assistance Agreement (WMCP FTAA), entered into by the Philippine Government and the Australian-owned WMC Philippines, Inc., continues to be a legally controversial and socially disquieting issue not only with regard to the obvious threat it poses to our country’s finite resources, but of broader Constitutional issues as well, generating intense opposition from various sectors of society — from civil society members, environmental watchdog groups, anti-mining liberalization activists to concerned citizens staking a claim in behalf of “intergenerational responsibility”2 — who call for nothing less than the scrapping of a law that entices foreign investors to cash in on the country’s mining resources, in what has been called a “systematic sell-out of Philippine sovereignty.” The intent of the Arroyo Administration with regard to operations of mining companies is evident in the continued operation of the TVI Pacific, Inc. in Siocon, Zamboanga del Norte amidst the strong opposition regarding the lack of a valid government permit. Similarly, mining permits have been granted in Eastern and Western Samar despite the moratorium on mining by the provincial governments. Moreover, not even the galvanized opposition of the people of Mankayan, Benguet could halt the steady expansion of the Lepanto Consolidated Mining Co. Accordingly, in what seems to be the government’s unabashed partiality to opening our country to mining opportunities, the Philippine Supreme Court reversed its 27 January 2004 ruling of La Bugal – B’laan Tribal Association, et al. v Secretary Ramos, et al, declaring the Mining Law and its IRR as both valid and constitutional in the Resolution dated 1 December 2004. Specifically, the earlier petition is mainly for the nullification of the Philippine Mining Act of 1995 and the Financial or Technical Assistance Agreement (FTAA) entered into by and between the Philippine Government and WMC (Philippines), Inc., in 1995, for being unconstitutional. the Supreme Court granted the petition, declaring on January 27, 2004, that certain provisions of RA 7942, DAO 96-40, as well as of the entire FTAA executed between the government and WMCP are unconstitutional. In an action of undue haste (although the author admits the contentiousness of this statement), the Court, through the voice of Justice Panganiban, has reached a decision to reinstate what has taken years of struggle from various concerned sectors to lobby against, but conversely drawing support instead from both the Philippine business community and foreign investors alike. Various sectors of Philippine society continue to question the legality of the FTAA 2

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Oposa v. Factoran, G.R. No. 101083, 30 July 1993. See discussion and definition of the concept of “intergenerational responsibility” with regards to the legal standing of parties in environmental disputes.

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Mining in the Philippines: Whose Interests should Prevail? A Synthesis and Analysis of the La Bugal Case

provisions that allow foreign companies not only both financial and technical assistance but also what can be perceived as near “total control” of mining operations, a nationalized industry. It is on this latter argument over the definition “control” and the applicability of a “control test”, leading to the necessary determination of where or to whom this “control” is ultimately vested in, lies the crux of the problem. Thus, this paper attempts to reconcile the various doctrines arising from the aforementioned issues, as well as harmonize the conflicting opinions (if indeed possible) enshrined in the two cases: to be henceforth identified as the January Ruling3 and the December Resolution4, for brevity. The related issues to be scrutinized and, hopefully, resolved shall be discussed as follows: 1. A Profile of the RA 7942 and the Mining Industry 2. Mining and the Permissiveness of the Philippine Constitution A. Dissecting “Agreements Involving Either Technical or Financial Assistance” Enshrined in Art. XII, Sec. 2 (4) of the 1987 Constitution

i. Strict vs. Liberal Approach

B. The Application of the “State Control” Test on Foreign Investor’s “Beneficial Interest”

ii. Conflicting Views on the Intent of the Constitutional Framers

3. Broader Environmental Implications vs. Economic Priorities 4. Conclusion: The Necessity for Filipino Control I. A PROFILE OF THE RA 7942 AND THE MINING INDUSTRY A notable feature of the RA 7942 is that it provides for a mineral agreement5 that grants the contractor the right to conduct mining operations within a specified contract area for 3

Decision of the Supreme Court of the Republic of the Philippines, G.R. No. 127882, 27 January 2004. Penned by the esteemed Justice Conchita Carpio Morales, the Decision was promulgated on a vote of 8-5-1.  Chief Justice Davide and Justices Puno, Quisumbing, Carpio, Corona, Callejo, and Tinga concurred.  Justices Santiago, Gutierrez, and Martinez joined the Dissent of Justice Panganiban, while Justice Vitug wrote a separate Dissent.  Justice Azcuna took no part due to conflict of interest.

4

Decision of the Supreme Court of the Republic of the Philippines, G.R. No. 12788, 1 December 2004. Chief Justice Davide, Justices Sandoval-Gutierrez, Austria-Martinez, and Garcia concurred. Justice Puno in the result and votes to invalidate sections 3.3; 7.8 and 7.9 of the WMC FTAA. Justice Quisumbing in the result. Justice Ynares-Santiago joined the dissenting opinion of Justices Carpio and Carpio-Morales. Justice Corona certified he voted affirmatively with the majority and he was allowed to do since he was on leave. Justice Callejo, Sr concurred to the dissenting opinion of J. Carpio. Justices Tinga and Chico-Nazario concurred with a separate opinion. Justice Azcuna took no part, same reason.

5

R.A. 7942. Sec. 4 Ownership of Mineral Resources. - Mineral resources are owned by the State and the exploration, development, utilization, and processing thereof shall be under its full control and supervision. The State may directly undertake such activities or it may enter into mineral agreements with contractors.

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a period of 25 years but is renewable for another 25 years.6 There law makes mention of four types of mineral agreements, which differs in the degree to which the Philippine government involves itself with the mining operations. In the first three types, the mining contractor should be either a Filipino citizen or a corporation having at least 60% Filipino equity. a.) Mineral Production Sharing Agreement (MPSA)7

The government merely grants the right to the mineral resources whereas the contractor provides the financing, technology, management and personnel for the implementation of the agreement.

b.) Co-Production Agreement (CPA)8

The government contributes other resources in addition to the rights.

c.) Joint Venture Agreement (JVA)9

A joint venture agreement requires the government and the contractor to organize a joint venture company in which both parties have equity shares.



For large-scale mining operations, the government may opt to enter into the fourth type of mineral agreement which provides foreign mining companies full equity of mining projects:

d.) Financial or Technical Assistance Agreement (FTAA)

The FTAA is a contract involving either financial or technical assistance for the large-scale exploration, development and utilization of mineral resources. For a minimum investment of US $50 million (or its equivalent in pesos for a Filipino corporation, i.e. Php 2.3 billion), the mining firm is granted 81,000 hectares of land for mineral exploitation for a period for 25 years per contract but is renewable for a maximum of another 25 years.

It should be taken cognizance of that 52 FTAA applications were filed before the approval of RA 7942, while 14 were submitted before the IRR were finalized on August 15, 1995.10 The total area of the application covers approximately 12.2 million hectares of the land area of the Philippines. It was estimated in a study made by a Philippine NGO that, mathematically speaking, if all FTAA applications and MPSAs were approved, at

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6

“Mining in the Philippines”, The U.S. Embassy — Philippines. http://www.philippineembassy-usa.org/other/ miningprimerrp.htm

7

R.A. 7942. Sec. 26.

8

Id.

9

Id.

10

“Mining in the Philippines”, The U.S. Embassy — Philippines. http://www.philippineembassy-usa.org/other/ miningprimerrp.htm

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Mining in the Philippines: Whose Interests should Prevail? A Synthesis and Analysis of the La Bugal Case

least 40.65% of the country’s total land area will be covered by mining claims. However, the Department of Environment and Natural Resources (DENR) avers that not all applications will be approved and that the grant of 81,000 hectares for mineral exploration is subject to a progressive reduction or relinquishment where the mining contractor returns to the government areas that have low mineral potential. In its defense of the law, the DENR stresses that the law allows a contractor a maximum of only 5,000 hectares for actual mining or commercial production that will commence after the sixth year of the contract period.11 This was countered by civil society groups that point out that while relinquishment does significantly reduce the land area open to mining activities, 5,000 hectares is still a huge land area, especially in a country where landlessness remains a perennial problem. II. MINING AND THE PERMISSIVENESS OF THE PHILIPPINE CONSTITUTION Philippine laws on natural resources are based on medieval concept of jura regalia or the Regalian Doctrine where ownership is vested in the State.12 Under this principle, “all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State”,13 the dominium extending not only to land but also to “all natural wealth that may be found in the bowels of the earth.”14 It follows that the exploration, development and utilization of mineral resources fall under the supervision and control of the State. Thus, a significant application is that if a person is an owner of land in which minerals are discovered, the right to explore, develop, extract or utilize the said minerals is limited by the need for the necessity of State permission and approval.15 Consequently, since the discovered minerals are said to belong to the State, for whatever purpose the land is used at the time of discovery, the land is converted into what is called mineral land by the State in its exercise of sovereign prerogative. Under the Mining Act, all public and private lands are open to mining operations as stated in the provision that: “all mineral resources in public or private lands, including timber or forestlands... shall be open to mineral agreements or financial or technical assistance agreement applications.” In this sense the law also provides auxiliary rights that will ensure that the protection of mining rights by those who enter into contracts with the State. These auxiliary rights include the right to enter private lands, the right to build necessary infrastructure on private lands as well as water and timber rights within the mining area as necessitated by the mining operations. 11

Id.

12

Id. Note the detailed historical discussion on the jura regalia doctrine by the ponente Justice Panganiban.

13

CONST. (1987), art. II, sec. 1.

14

G.R. No. 127882, 1 December 2004.

15

J. BERNAS, S.J., THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY 1193 (2003).

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In the earlier La Bugal case, these provisions in the Mining Act has led to the petitioners’16 contention that the law has virtually opened up the entire country to mining operations by declaring areas covered by existing mining claims or that are deemed ecologically crucial as closed to mining operations. The latter includes old growth forests, watershed forest reserves, mangrove and mossy forests, national parks, bird sanctuaries and marine reserves, among others. But upon the consent of the government or other concerned parties, areas once sacrosanct and previously barred from mining operations are currently mined. These areas include military reservations, areas covered by smallscale mining and even ancestral lands. A. Dissecting “Agreements Involving Either Technical or Financial Assistance” enshrined in Art. XII, Sec. 2 (4) of the 1987 Constitution i. Strict vs. Liberal Approach Sec. 2, Art. XII of the Philippine Constitution provides as a general rule that the Republic of the Philippines may enter into agreements for the utilization of natural resources with Filipinos and corporations that are at least 60% owned by Filipinos. As an exception to this general rule, the fourth paragraph of Sec. 2 provides that the President of the Republic of the Philippines may enter into agreements (the so-called FTAAs) with 100% foreign-owned corporations involving either technical or financial assistance for the large scale exploration, development and utilisation of minerals, petroleum and other mineral oils.17 In the January Ruling of the Bugal Case, the Court utilized the verba legis approach and held that the exception discussed above must be read literally and strictly construed. That is, petitioners claim that the phrase “agreements… involving either technical or financial assistance” simply means technical assistance or financial assistance agreements, nothing more and nothing else. Thus, on the verba legis basis, the Court concluded that a form of FTAA or a mining law that allowed anything more than financial and technical assistance or permitted the party to the FTAA to provide any form of management assistance would, in effect, convey “beneficial ownership” of the Philippines natural resources to a foreign corporation. This would thus breach our State policies and principles and would have to be deemed invalid for being unconstitutional. The Court then considered that a form of FTAA which went beyond the restrictive scope of the exception would constitute a form of “service contract” which, in the Court’s opinion, was intended to be abolished by the framers of the Constitution. However, this was assailed by Justice Panganiban in the Resolution: “But if that was the intention, then what is the point of requiring that they be based on real contributions to the economic

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16

The petitioners included representatives of indigenous cultural communities led by the La Bugal-B’laan Tribal Association, Inc.; some of the framers of the 1987 Constitution that included former senator Wigberto E. Tañada, Ponciano Bennagen and Jaime Tadeo; civil libertarians and legal scholars like Prof. Marvic Leonen, who is a member of an indigenous cultural community himself.

17

J. BERNAS, S.J., THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY 1009 (1996).

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Mining in the Philippines: Whose Interests should Prevail? A Synthesis and Analysis of the La Bugal Case

growth and general welfare of the country?” He further opined that it was also unclear how a verba legis approach led to the conclusion that the management or operation of mining activities by foreign contractors, which are the principal features of service contracts, were precisely the evil that the drafters of the 1987 Constitution sought to eradicate. In other words, under the clever argument that “if the framers had intended to put an end to service contracts, they would have at least left some transitory guidelines” the FTAAs were not considered as service contracts proscribed by the Philippine Constitution. Thus, the idea that the commissioners fully realized that their work would have to withstand the test of time, that the Constitution, although “crafted with the wisdom born of past experiences and lessons painfully learned, would have to be a living document that would answer the needs of the nation well into the future”, should be construed with a more liberal approach given the profitability of mining, prevailed over all other frameworks presented. B. The Application of the “State Control” Test on Foreign Investor’s “Beneficial Interest” In the first time La Bugal was filed, the Court held that FTAAs are service contracts prohibited by the 1987 Constitution. A service contracts were thus defined as: “…a contractual arrangement for engaging in the exploitation and development of petroleum, mineral, energy, land and other natural resources by which a government or its agency, or a private person granted a right or privilege by the government authorizes the other party (service contractor) to engage or participate in the exercise of such right or the enjoyment of the privilege, in that the latter provides financial or technical resources, undertakes the exploitation or production of a given resource, or directly manages the productive enterprise, operations of the exploration and exploitation of the resources or the disposition of marketing or resources.”18 Hence, all provisions concerning the Financial or Technical Assistance Agreement (FTAA) and other permits that can be granted to foreign-owned corporations such as the exploration permits, and mineral processing permits were null and void19 because, to wit: 18

G.R. No. 127882, 27 January 2004.

19

Id. In addition, it also declared as unconstitutional and void all provisions of the Mining Act relating to the Financial or Technical Assistance Agreement (FTAA) (Sections 33 to 41 and 81). This means that foreign-owned corporations are no longer eligible for any mining contracts in the country. A foreign-owned corporation is a duly registered corporation in which less than 50 percent of the capital is owned by Filipino citizens.





Declared as void and unconstitutional are the Mining Act’s provisions pertaining to the rights and obligations of an Exploration Permit holder (Sec. 23) The provisions pertaining to the grant of an Exploration Permit were not assailed, but without Section 23, the Mining Act will be silent on what rights are being granted to, as well as the obligations of the permittee. This renders the grant of Exploration Permits untenable. It also declared as void and unconstitutional the provision that allows the issuance of a mineral processing permit to foreign-owned corporations (Sec. 56) With this, mineral processing is now confined exclusively to Filipinos/Filipino juridical entities. The Court also declared as void and unconstitutional the provision that grants incentives as provided for in Executive Order 226, the Omnibus Investments Code of 1987 (Sec. 90) Incidentally, this provision includes the grant of incentives to Mineral Agreements, including the mineral production sharing agreements (MPSAs).

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(1) The law allows foreign-owned companies to extend more than mere financial or technical assistance to the State in the exploitation, development, and utilization of minerals, petroleum, and other mineral oils, and even permits foreign owned companies to “operate and manage mining activities.” (2) The law allows foreign-owned companies to extend both technical and financial assistance, instead of “either technical or financial assistance.” Initially, the Court held that those provisions of the Mining Act and IRR that were inconsistent with the Court’s decision were invalid such as those provisions of the Mining Act allowing 100% foreign-owned companies to hold exploration permits and also mineral processing permits. The latter was an important provision for holders of permits under the other form of title permitted by the Mining Act known as a Mineral Production and Sharing Agreement (which can only be held by 60% Philippine owned companies) because it recognized the requirement for significant capital investment by foreigners in mineral processing facilities and, as such, for them to have management control over, and greater returns from, those facilities. Similarly, the Court held that the FTAA with WMCP was a service contract that granted the FTAA contractor “beneficial ownership” over natural resources that properly belong to the Republic of the Philippines and are intended for the benefit of its citizens and thus invalid. In the Resolution, Justice Panganiban countered these with the succinct: “It does not take deep knowledge of law and logic to understand that what the Constitution grants to foreigners should be equally available to Filipinos.” With the doctrine of ut magis valeat quam pereat, the December Resolution illustrated the contradiction between the State’s full control and supervision and the safeguarded service contracts with foreign contractors. It was pointed out that the full control and supervision cannot be taken literally to mean that the State controls and supervises everything involved, “down to the minutest details”, and making all decisions required in the mining operations. Control by State may be on the macro level – establishment of policies, guidelines, regulations, industry standards, etc. Thus, upholding the arguments of the respondents, the phrase “agreements involving technical or financial assistance” was held synonymous to service contracts. Thus, the issue of State control raised by the petitioners was neatly resolved by defining the word itself, as used in Sec. 2 of Article XII, was to be taken to mean a degree of control sufficient to enable the State to “direct, restrain, regulate and govern the affairs of the extractive enterprises.” Control by the State may be on a macro-level, through the establishment of policies, guidelines, regulations, industry standards and similar measures that would enable government to “regulate the conduct of affairs in various enterprises, and restrain activities deemed not desirable or beneficial”, with the end in view of ensuring that these enterprises contribute to the economic development and general welfare of the country, conserve the environment, and uplift the well-being of the local affected communities. As enshrined in the Resolution, such a degree of control would be compatible with permitting the foreign contractor sufficient and reasonable management authority over the enterprise it has invested in, to ensure efficient and profitable operation.

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ii. Resolving Conflicting Views on the Intent of the Constitutional Framers The Court held in the Resolution that proceedings of the Constitutional Commission stated that the members used the terms “agreements involving technical or financial assistance” and “service contracts” interchangeably. Thus, while certain commissioners may have mentioned the term “service contracts”, they may have been using the term loosely and not in the context of the 1973 Constitution. Also, the phrase “service contracts” was been deleted in the 1987 Constitution’s Article on National Economy and Patrimony, and this was interpreted by the Court that if indeed the Constitutional Commission intended to retain the concept of service contracts under the 1973 Constitution, it could have simply adapted the old terminology instead of employing new and unfamiliar terms. The present interpretation of Art. XII, Sec. 2 (4) of the 1987 Constitution grants the State the option to directly undertake mining activities or to enter into the different modes of mining agreements with Filipinos or Filipino-owned corporations. Although the provision is interpreted as giving preference to Filipinos in the grant of mineral rights, privileges and concessions, but specifically for large-scale mining, the Constitution grants the government the option to enter into FTAAs with foreigners; because, as ratiocinated by Justice Panganiban: “The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace.”20 III. BROADER ENVIRONMENTAL IMPLICATIONS The petitioners traverse a wide range of sectors, and among them are La Bugal B’Laan Tribal Association, Inc., a farmers and indigenous people’s cooperative organized under Philippine laws representing a community actually affected by the mining activities of WMCP, members of said cooperative, as well as other residents of areas also affected by the mining activities of WMCP, an Australian-owned company. Even if the petitioners were not the actual parties in the contract, they claim that they will suffer “irremediable displacement” as a result of the FTAA allowing WMCP to conduct mining activities in their area of residence. Furthermore, the petitioners also raise concern over the potential environmental effects of more large-scale mining activities should these be allowed to commence. With the 1996 Marcopper mining disaster in Marinduque and the ravages of open pit mining in Benguet as examples of the potential impact, these groups believe that mining operations of the FTAA scale could unparalleled destruction to our country’s natural resources. 20

G.R. No. 127882, 1 December 2004.

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It should be remembered that even in 2005, the December Resolution continued to be questioned with regards to the tremendous incentives given to mining companies despite the environmental tragedy involving the Rapu-Rapu Mining Corp. dumping mine tailings on the waters surrounding the island where the mining site is located. Mining concerns, which continues to pit the Arroyo Administration against provincial local governments who support people’s movements calling for a ban or, at the barest minimum, a moratorium on mining activities in their provinces, is not merely an issue about the environment, but the very tenuous hold we Filipinos have on what little that is left of our sovereignty and national patrimony. IV. Conclusion: The Necessity for Filipino Control The author, therefore, wishes to share a few realizations with regards to attempting to reconcile doctrines that span across both sides of a legal spectrum. In a situation like mining, where in truth, the long-term disadvantages far outweigh the initial financial rewards, any attempts at the reconciliation of (unreconcilable) doctrines do nothing more than decelerate, but not entirely halt, the reasonable conclusion: Although the notion that if the Supreme Court closes its doors to international realities and unilaterally sets up its own concepts of strict technical and financial assistance it may unwittingly make the country take upon an economic isolationist stance, the one overriding the consideration of the Philippine Government should instead always be will of the sovereign Filipino people as embodied in their Constitution. To briefly opine further: 1. Debunking the “Isolationalist” Myth First, the potential for enacting policies that reflect what Justice Panganiban calls “economic hermitage” in the La Bugal Resolution tends to generalize or overestimate in the negative the effects of “isolationalist” or “protectionalist” policies at the expense of providing limits and safety nets for the foreign players in the Philippine market. Justice Panganiban furthermore opines that: “The mining industry plays a pivotal role in the economic development of the country and is a vital tool in the government’s thrust of accelerated recovery.” However, with increased government awareness and participation in other avenues for development that has drastically less side effects, there is always the distinct possibility of having a liberalized general economic policy that is more prudent, if not outrightly cautious (and in the author’s opinion, justly so) with regards to mining. 2. Mining: A Short-Sighted Cost-Benefit Analysis Second, the liberalization of the mining sector is often ridden conjointly with a shortsighted and overly optimistic estimate of the benefits, while the macro-level benefits are overemphasized resulting in a possible mismanagement of the micro-level given the Philippine’s inexperience in such large-scale ventures in a nationalized industry. Big

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economic and finance numbers21 are often placed too far ahead of the actual benefits of Filipino citizens in general, such as mineral purchase price control. The gold mined from Philippine territory by a foreign firm must be traded under strict supervision of the Department of Finance, given that international finance standards include gold reserves. This, however, applies only to gold, and for that particular reason. Other minerals are not covered by such a policy, and presumably it is because of the financial significance and marketability to foreign investors. Moreover, if we operate under the assumption that no system is perfect and some merely possess more flaws and/or are more vulnerable to lapses in implementation, then even under this system some gold escapes the regulation of the Finance department, and suggesting that we add more minerals and metals to this list or implementing a similar regulatory approach for the others is a viable option but our capacity to implement properly will always be in doubt. For one, our minerals here could potentially expose us to the same problems as Africa where the instability of their governments has left the disillusioned populace vulnerable to whatever (predominantly foreign) corporation conducts mining operations. Admittedly the African experience with mining may be wholly different from that of the Philippines based on different historical contexts and existing social structures, but nevertheless, one must not negate the potential threat mining has, beginning first as an the environmental issue, on undermining the stability of our already unstable present government. Underdeveloped governance infrastructure and political backwardness continue to be serious problems our government is facing. Given that most mining operations will be conducted in the countryside, far from the capital, many abuses and excesses will then remain unknown to the central government because: (1) lack of safety nets and guidelines in terms restraining the possible unethical conduct of foreign companies; and (2) the lack of capacity of the people to report such due to unawareness of their political agency, capacity and rights. This argument is, of course, under the assumption that the central government would have responded in the people’s favor. This does not contemplate a situation where the government either protects a misguided economic policy or where concerned local officials have already been retained by foreign firms — these problems being another matter altogether. 3. An Exploitation Not Only Of Minerals But Of Cheap Labor Another point that is often overlooked is the long term effects on the people and the communities that are directly related to the mining projects. Beyond the Bugal case where the arguments centered on economic returns vs. Constitutional concerns should be carefully considered. Foreigners come to this country not merely for the presence of 21

The law also provides a host of financial incentives that will guarantee returned investments and profitability to the mining contractor. These include a 100% repatriation of investments in dollars, a 100% remittance of earnings in dollars, freedom from expropriation, and double acceleration of depreciation costs, among others. The collection of the government’s share in the financial or technical assistance agreement, consisting of corporate income tax, excise tax, and other duties and fees, shall commence only after the mining operator has fully recovered its pre-operating expenses. When the mining contractor starts commercial production, a revenue sharing scheme begins wherein the government will receive 60% of the net profit from the operation while the contractor receives 40%. However, all corporate taxes, excise taxes, duties and fees, payable by the corporation will be counted against the government’s 60% share.

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the resources, but the reduced costs of labor (which is true for other industries as well), and that is not merely an incidental characteristic brought about by the different degrees of development, but that we should take into account how exactly underdevelopment contributes to the labor cost, beyond the macroeconomic figures. As development brings with it economic prosperity, it brings with it education, and awareness of rights spreads to lower classes of society. Awareness of their rights means that, as far as corporations are concerned, they will make the company less profitable, because apart from demanding higher wages, they can understand whether the firm is making any profit and how much. In addition to their wages, they will demand better working conditions, and with mining in particular this will manifest in medical and life insurance as well as safety equipment. Even if the exchange rates are the primary factor these are never far behind, either in consideration by the firms or analysis of underdevelopment. Moving the operations or parts of the operations chain to underdeveloped economies then becomes imperative in order to increase profit margins. Rationally speaking, the foreign investors are appealing to us because of our underdeveloped industries, and we are to them because of our underdeveloped economy, which means that they need us to be underdeveloped for them to invest in certain ways and to remain so if we are to keep them here. It is on this ground that we ultimately sacrifice our sovereignty. On top of the arguments surrounding the environmental impact and rights to use the resources in our own territory, here the democratic cost will be enormous. We will depend on foreign assistance to develop, on the other hand these foreigners should always be regarded as rational actors instead of benevolent brethren, and as such we should never be surprised that their presence has a tendency to sow discord. The government, marketing this country to the world while distracting people with macroeconomic figures, can be unscrupulous enough to favor foreign investors over the welfare of their own people. The macro figures can be useful propaganda, hereby steering development along the mediocre and superficial path, and along the way the people’s clamor for rights are suppressed, by the use of force (as in openly quelling demonstrations), in political processes (the deliberate incapacity to enact laws that favor workers’ rights vs. foreign firms, or silence when enforcing them vs. foreign investors) or by sheer economic relativism (the citizens themselves can be convinced of the benefits of working for foreign firms, here or elsewhere, but they seldom realize what made local firms and the government incapable of providing competitive wages to begin with). In our rush to develop we risk getting into a situation where we gain short term benefits but in the long run be forced to choose between keeping the investors here and developing political awareness and local industry. 4. Enforcing Environmental Safeguards The same logic also applies to the enforcement of environmental safeguards, in that it parallels the clamor for workers’ rights, as both are vital considerations for the profit margin. Obviously certain forms of mining will either damage and erode the soil, while others produce hazardous byproducts, such as using solvents and other types of chemicals when separating the mineral from the ore. Obviously in the developed countries proper disposal is enforced, and as it is the departure or even closure of companies as a result

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Mining in the Philippines: Whose Interests should Prevail? A Synthesis and Analysis of the La Bugal Case

of high operational expense or from lawsuits and regulatory penalties do not dent the economy as a whole given its stage of development. In fact, moving their operations elsewhere does more good than harm: it preserves their resources for when worldwide scarcity is apparent and no matter where the operations are the profits will benefit their economy anyway, which by their planning at least could compensate for the loss of jobs for their miners. Sovereignty as far as mining is concerned is not merely about the rights to use resources, but more on how they will be of use to us, and incidentally the fact that foreigners mine them will mean that they will demand considerable profit in return. This isn’t merely greed in the common sense, but consider that as rational actors this is their raison d’ etre. Consequently we too as Filipinos should also act as rational actors to better deal with these Western economic hegemons so that an equal slice of the economic pie no longer remains a pipe dream.

•••

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Impeachment as a Popular Check on Official Misconduct Dante B. Gatmaytan*

I. INTRODUCTION South Korea and the Philippines have rsouth ecent experiences in the impeachment of public officials. The National Assembly of South Korea passed a motion to impeach President Roh Moo-hyun. In the latter, the Congress tried and impeached Chief Justice Renato Corona from office. In both cases, the judiciary played significant roles in the outcomes of these efforts. In South Korea, the Constitutional Court blocked the impeachment and reinstated the President. In the Philippines, the Supreme Court promulgated a series of decisions that aided the Chief Justice and weakened the case against him. But it later refused to rule on several petitions questioning the constitutionality of the impeachment. This Article explains the Courts’ actions primarily as measured steps guided more by public perception and self-interest rather than any assertion of judicial independence or the principle of checks and balances. Both cases offer lessons for the exercise of the legislatures’ power to impeach officials. II. TWO IMPEACHMENTS On March 12, 2004, the National Assembly of Korea passed a motion to impeach President Roh Moo-hyun, an act that temporarily shifted power from the President to the Prime Minister. Two months later, the Constitutional Court of Korea rejected the impeachment motion and reinstated the President.1 Mr. Roh was charged with a minor violation of election law and for the alleged corruption and poor economic management.2 The Court rejected the impeachment charges, saying that a charge of illegal electioneering “was not serious or grave enough to justify the unseating of the president.”3 The Constitutional Court found that Roh violated the law but that, when weighed against the consequences of removing him from office, the impeachment should be dismissed and he should be reinstated as President. The costs of removal, as determined by the Court, included prematurely ending the term of a democratically elected official and the political chaos that would be caused by requiring the election of a new president.4

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*

Associate Professor, University of the Philippines, College of Law; LL.B., University of the Philippines, 1991; M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996, dante.gatmaytan@ upd.edu.ph. I wish to thank Marijo Alcala and Carla Mapalo for providing research assistance and preparing this article for publication.

1

Youngjae Lee, Law, Politics, and Impeachment of Roh Moon-hyun from a Comparative Law Perspective, 53 The American Journal of Comparative Law 403, 404 (2005).

2

Gordon Fairclough, South Korean Court Overturns Roh’s Impeachment, The Wall Street Journal (Asian Edition), May 14, 2004, available at http://online.wsj.com/article/0,,SB108449784100411603,00.html.

3

Anthony Faiola, Court Rejects S. Korean President’s Impeachment, The Washington Post, May 14, 2004, at A12. Roh was impeached after less than a year in office. The thrust of the complaint was that he urged voters to support the Uri Party in legislative elections. Under election codes in South Korea, presidents are required to remain impartial during legislative elections. Id.

4

Samuel Issacharoff, Constitutional Courts and Democratic Hedging, 99 Geo. L.J. 961, 972 (2011).

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The impeachment invigorated Roh’s political stature because of the “massive public backlash against his ouster.”5 About a month after the impeachment, Koreans replaced the members of parliament with younger and more liberal lawmakers loyal to Roh.6 South Koreans elected a left-of-center parliamentary majority led by the Uri party (152 of 299 National Assembly seats) over the conservative opposition Grand National party (121 seats).7 Politics returned to normal after the Court’s decision. The decision is interpreted as an example of how courts are able to successfully deal with highly politically-charged cases.8 The Constitutional Court’s actions showed that it maintained the political status quo and respected the political processes. It evaluated the strength of the democratic commitments shown by the other political actors in their particular contexts.9 In contrast, the Philippine Congress successfully removed the Chief Justice of the Supreme Court. The impeachment of Chief Justice Renato Corona was the conclusion of a strained relationship with President Benigno Aquino III. As a candidate for President, Aquino III opined that the outgoing President was prohibited from filling the vacancy caused by the retirement of then Chief Justice Reynato Puno. There was precedent supporting his view. Abandoning precedent, however, the Supreme Court in De Castro v. Judicial and Bar Council ruled that President Gloria Macapagal-Arroyo was not prevented by the Constitution to fill the vacancy two months before a Presidential election.10 When Aquino became President, he opted to take his oath as President before Associate Justice Conchita Carpio-Morales, the lone dissenter in De Castro.11 Tension mounted as the Supreme Court subsequently declared Aquino’s Truth Commission, designed to determine offenses committed by the previous regime, as unconstitutional.12 The tension between the Chief Executive and the Chief Justice reached its peak during the first National Criminal Justice summit in December 2011. During his speech, the President criticized controversial decisions made under the Corona Court.13 Aquino also criticized the Court in preventing the Department of Justice from implementing its watch list order against Arroyo and her husband Jose Miguel Arroyo. 5

Most Koreans saw the move against Roh as a political coup staged by his enemies. Public wrath centered on the Grand National Party, which was opposed to Roh’s policy of rapprochement with North Korea as well as calls from within his administration for legislation to help the poor while increasing taxes on the rich. Id.

6

S Korea enters new political era, BBC News, April 16, 2004, http://news.bbc.co.uk/2/hi/asia-pacific/3631103.stm. Public outrage against the impeachment translated into a political windfall for Roh. The small, liberal-leaning Uri Party that backs him tripled its National Assembly seats to take a slim majority and break the conservatives’ four-decade hold on parliament. See S. Korea leader awaits impeachment ruling, USA Today, May 13, 2004, http:// usatoday30.usatoday.com/news/world/2004-05-13-skorea-impeach_x.htm?csp=34.

7

Victor D. Cha, South Korea in 2004: Peninsular Flux, 45 Asian Survey 33, 35-5 (January/February 2005).

8

Wen-Chen Chang, Strategic Judicial Responses in Politically Charged Cases: East Asian Experiences, 8 Int’l J. of Constitutional Law 885-6 (2010).

9

Id. at 910.

10

G.R. No. 191002, March 17, 2010.

11

Philip Tubeza, Aquino to take oath before lone SC dissenter, Philippine Daily Inquirer, May 21, 2010.

12

Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010..

13

Christine O. Avendaño, Aquino lashes out at Supreme Court, Philippine Daily Inquirer, December 5, 2011, available at http://newsinfo.inquirer.net/105647/aquino-lashes-out-at-supreme-court.

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The temporary restraining order issued by the Court had conditions to be fulfilled by the Arroyos but the Court later said there was no need to implement those conditions for the order to be implemented.14 III. IMPEACHMENT AND TRIAL Days later, the President’s allies in the House of Representatives impeached Chief Justice Renato Corona. House Speaker Feliciano Belmonte produced a 57-page document signed by more than one-third of the 285 members of the House of Representatives. The number of signatories reached 188, a requirement under the Constitution to impeach the Chief Justice without going through the plenary debates. Belmonte explained that since the secretary general of the House of Representatives verified the signatures, the case could be sent directly to the Senate.15 The charges against Corona included the betrayal of public trust, culpable violation of the Constitution, and graft and corruption.16 The impeachment complaint listed eight issues against Corona: 1. Partiality and subservience in cases involving the Arroyo administration from the time of his appointment as Supreme Court Associate Justice up to his dubious midnight appointment as Chief Justice and up to the present. 2. Failure to disclose to the public his statement of assets, liabilities, and net worth as required by Section 17 Article XI of the Constitution. 3. Failure to meet and observe the stringent standards under the Constitution that provided that a member of the judiciary must be a person of proven competence, integrity, probity, and independence in allowing the Supreme Court to act on mere letters filed by a counsel which caused the issuance of flip-flopping decisions in final and executory cases; in creating an excessive entanglement with Mrs. Arroyo through her appointment of his wife to office; and in discussing with litigants cases pending in the Supreme Court. 4. Blatantly disregarding the principle of separation of powers by issuing a status quo ante order against the House of Representatives in the case concerning the impeachment of then Ombudsman Merceditas Gutierrez. 5. Wanton arbitrariness and partiality in consistently disregarding the principle of res judicata, or resurrecting decided cases, and in deciding in favor of gerrymandering in the cases involving the 16 newly created cities, and the promotion of Dinagat Island into a province;

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14

Id.

15

Cynthia D. Balana & Gil C. Cabacungan Jr., 188 Solons impeach CJ Corona, Philippine Daily Inquirer, December 13, 2011.

16

Id.

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Impeachment as a Popular Check on Official Misconduct

6. Arrogating unto himself, and to a committee he created, the authority and jurisdiction to improperly investigate an alleged erring member of the Supreme Court for the purpose of exculpating him. Such authority and jurisdiction are properly reposed by the Constitution in the House of Representatives via impeachment. 7. Partiality in granting a temporary restraining order in favor of Arroyo and her husband Jose Miguel Arroyo in order to give them an opportunity to escape prosecution and to frustrate the ends of justice, and in distorting the Supreme Court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the Supreme Court’s own TRO. 8. Failure and refusal to account for the Judiciary Development Fund and Special Allowance for the Judiciary collections.17 After arguing three of eight articles of impeachment, the prosecution announced it was resting its case against the Chief Justice.18 House prosecutors said they have already submitted “overwhelming evidence” to pin down Corona on three articles of impeachment for betraying public trust and violating the Constitution.19 Prosecutors presented evidence that he deposited $28.7 million into various bank accounts. According to financial documents presented by the prosecution, Mr. Corona maintains 82 dollar-denominated accounts in five banks in the Philippines.20 From April 2003 to December 2011, incoming transactions in the Chief Justice’s accounts, including deposits and bank transfers, totaled $28,740,497.93 at a time when Corona was earning less than $935 per month as a Supreme Court Justice. The Ombudsman, who was called as a witness by the defense, confirmed news regarding these accounts and produced the records indicating the $28.7 million in deposits. On May 29, 2012 the Philippine Senate, sitting as an impeachment court, voted to remove the Chief Justice of the Supreme Court Renato Corona from office. Corona was removed after it was discovered that he had failed to declare $2.4 million in foreign 17

Cynthia D. Balana & Gil C. Cabacungan Jr., 188 Solons impeach CJ Corona, Philippine Daily Inquirer, December 13, 2011.

18

Cathy Yamsuan & Cynthia D. Balana, Prosecution rests case vs Corona, Philippine Daily Inquirer, February 29, 2012, available at http://newsinfo.inquirer.net/153265/prosecution-rests-case-vs-corona.

19

As Day 25 of the Corona trial was winding down, lead prosecutor Representative Niel Tupas informed the Impeachment Court that the prosecution panel was no longer presenting evidence with respect to Article I (Corona’s alleged partiality to the Arroyo administration), Article IV (Corona’s alleged disregard of separation of powers in the case of resigned Ombudsman Merceditas Gutierrez), Article V (Corona’s alleged partiality in resurrecting decided SC cases on gerrymandering), Article VI (Corona’s alleged improper creation of an SC ethics committee) and Article VIII (Corona’s alleged refusal to account for the judiciary fund). Butch Fernandez, House prosecutors drop 5 of 8 charges vs Corona, Business Mirror, February 28, 2012, http://www.businessmirror. com.ph/home/top-news/23880-house-prosecutors-drop-5-of-8-charges-vs-corona.

20

Floyd Whaley, Prosecutors Say Philippine Chief Justice Had $28 Million, New York Times, May 14, 2012, available at http://www.nytimes.com/2012/05/15/world/asia/prosecutors-detail-wealth-of-philippine-chief-justice. html?_r=1.

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currency deposits.21 Twenty senators found Corona guilty of Article 2 of the impeachment complaint pertaining to his failure to disclose to the public his statement of assets, liabilities, and net worth.22 Fearing a potential constitutional crisis, Corona decided against challenging his ouster as Chief Justice by the Senate impeachment tribunal.23 The removal of the Chief Justice, some suggest, is a sign that the Philippines is functioning properly — there is an effective check on government abuse, which is a hallmark of political maturity.24 The last time the Senate tried a public official was in December 2000 when it tried President Joseph Estrada on corruption charges. In that case, prosecutors and opposition senators staged a walkout, claiming that pro-Estrada senators were manipulating the trial. Huge demonstrations erupted in Manila, forcing Estrada to relinquish his post as President.25 IV. THE JUDICIAL ROLE On its face, Corona’s impeachment appeared as a smooth execution of a constitutional check on abusive officials. Congress, however, was not alone in its task. The Supreme Court was brought into the fray—and had the potential to undo the verdict of the Senate. There are three ways the Supreme Court can intervene in the impeachment and trial of the Chief Justice. The first way is to exercise judicial review and rule on petitions questioning the constitutionality of the impeachment itself. The second way is to rule on related cases that could affect the outcome of the impeachment trial. The third way is to exercise judicial review and reverse the decision of the Senate finding the Chief Justice guilty of the charges against him. The Supreme Court made use of the second way and tried to help the Chief Justice during his trial. a. Judicial Review of Impeachment Proceedings

In 2003, the Supreme Court of the Philippines ruled that it could inquire into the

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21

Floyd Whaley, Philippine Chief Justice removed over omission in report of assets, New York Times, May 29, 2012, available at http://www.nytimes.com/2012/05/30/world/asia/philippines-chief-justice-removed-over-finances. html. In the Philippines, senior officials are required to file a statement of assets, liabilities and net worth each year to verify that they are not enriching themselves from their positions. One of the charges against the Chief Justice states that he did not declare all his assets. See id.

22

Maila Ager, Senate votes 20-3 to convict Corona, Philippine Daily Inquirer, May 29, 2012.

23

Marlon Ramos, Ex-Chief Justice Corona won’t appeal conviction, Philippine Daily Inquirer, June 1, 2012, available at http://newsinfo.inquirer.net/204489/ex-chief-justice-corona-wont-appeal-conviction.

24

See Jocelyn R. Uy, CBCP head to Filipinos: Accept verdict on Corona, Philippine Daily Inquirer, May 30, 2012, available at http://newsinfo.inquirer.net/203697/cbcp-head-to-filipinos-accept-verdict-on-corona.

25

In October 2000, a local provincial governor accused President Estrada of amassing $4 million in bribes from an illegal lottery called jueteng. The opposition filed an impeachment complaint against the President on four counts: for graft and corruption, bribery, culpable violation of the Constitution, and betrayal of public trust. He was impeached by the House of Representatives and then tried by the Senate. See Renato Cruz de Castro, The 1997 Asian Financial Crisis and the Revival of Populism /Neo-Populismin 21st Century Philippine Politics, 47:6 Asian Survey 930, 944 (2007).

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validity of an impeachment complaint if it allegedly violates the Constitution.26 The Court ignored United States case law and pointed out differences with Philippine law: As already observed, the U.S. Federal Constitution simply provides that “the House of Representatives shall have the sole power of impeachment.” It adds nothing more. It gives no clue whatsoever as to how this “sole power” is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that “exclusive power” is to be exercised. Judicial review, however, does not extend to every aspect of the impeachment. The Court held that it cannot determine what offenses constitute impeachable offenses. The Court said “any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense [and] [s]uch a determination is a purely political question, which the Constitution has left to the sound discretion of the legislation.”27 Two times before, the Supreme Court stopped an impeachment. In 2003, it halted an attempt to impeach former Chief Justice Hilario Davide and in 2010, it stopped the impeachment of Ombudsman Merceditas Gutierrez. Both were halted before the case went on to trial in the Senate. The High Court decided to issue status quo ante orders stopping the House’s impeachment proceedings while it examined the constitutional issues that were raised. In Davide, the Court eventually declared certain provisions of the House Rules on Impeachment unconstitutional, and disallowed the complaint against Davide, on grounds that it would have been the second complaint entertained against him for that year.28
It took the Court less than a month to decide on the petitions relating to the Davide impeachment. In the case of then Ombudsman Merceditas Gutierrez in 2010, the Court decision took about five months until it eventually ruled to uphold the power of the House of Representatives to conduct the impeachment hearings.29 Gutierrez resigned in April 2011 before the trial in the Senate could begin.30 26

Under Article VIII, Section 1 of the Constitution, judicial power includes the duty of the courts of justice to “settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. It is an antidote to and a safety net against whimsical, despotic and oppressive exercise of governmental power. Macabago v. Commission on Elections, G.R. No. 152163, November 18, 2002. Shortly after his conviction, Corona released a statement saying that he will not pursue any judicial remedies. See Marlon Ramos, Ex-Chief Justice Corona won’t appeal conviction, Philippine Daily Inquirer, June 1, 2012, available at http://newsinfo.inquirer.net/204489/ex-chief-justice-corona-wont-appealconviction.

27

Macabago v. Commission on Elections, G.R. No. 152163, November 18, 2002.

28

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003.

29

Gutierrez v. The House of Representatives Committee on Justice, G.R. No. 193459, February 15, 2011.

30

The summary of the previous cases is found in Carmela Fonbuena, SC twice halted impeachment before, Rappler, at http://www.rappler.com/nation/special-coverage/corona-trial/1392-sc-twice-halted-impeachment-before.

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While facing trial in the Senate, Corona asked the Supreme Court to rule on the legality of the case against him. The Court did not rule on the constitutionality of the impeachment until after Corona was convicted.31 Unlike the earlier cases, Corona’s impeachment went directly to the Senate because at least a third of the House had filed the complaint.32 If the Supreme Court wanted to intervene at this point, it would have had to stop the Senate and not the House of Representatives. The Court did not stop the trial but it did manage to provide the Chief Justice with help. b. Deciding cases in favor of the Chief Justice

While the Court did not rule on the validity of the impeachment, it ruled in his favor in three other cases that were related to his impeachment. The cases that aided Chief Justice Corona did not deal with constitutional strictures but with the grounds for his removal from office. In these cases, the Court either restricted the release of data or absolved the Chief Justice of any wrongdoing. The effect of the decisions was to weaken the case against the Chief Justice. The first among the three is Philippine Savings Bank v. Senate Impeachment Court,33 where the Court en banc enjoined the subpoena issued by the Impeachment Court against Philippine Savings Bank, Katipunan Branch to produce the records of the dollar deposit accounts of Corona. As a defense to Republic Act No. 1405,34 where impeachment proceedings are explicitly made an exception to the secrecy of bank deposits, the Supreme Court quickly invoked the Foreign Currency Deposit Act (Republic Act No. 6426) and interpreted Section 8 of the law as granting a right of absolute confidentiality of foreign currency deposits.35 The Court said, “in no instance shall foreign currency deposits be examined, inquired or looked into by any person” including the government, except only by written permission of the depositor which Corona did not grant. In the second case, the Court dismissed another subpoena issued by the Impeachment

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31

This case was subsequently dismissed after Corona was removed from office. See Chief Justice Corona v. Senate, G.R. No. 200242, July 17, 2012.

32

The Constitution provides that “[i]n case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.” See Const. art. XI,§ 3(4).

33

G.R. No. 200238, February 9, 2012.

34

An Act Prohibiting Disclosure of or Inquiry into, Deposits with Any Banking Institution and Providing Penalty Therefor.

35

Section 8 of the Foreign Currency Deposit Act provides:



Sec. 8. Secrecy of Foreign Currency Deposits All foreign currency deposits authorized under this Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositors, in no instance shall such foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or private: Provided, however, that said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever.

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Impeachment as a Popular Check on Official Misconduct

Court, but this time, against the Supreme Court’s own Clerk of Court and her Deputy.36 To avoid the examination of the Clerks of Court on the internal deliberations of the Supreme Court on certain decided cases,37 the Court ruled that its internal deliberations constitute privileged communication. In throwing back the question to the Senate, it said that in as much as a senator may invoke legislative privilege when he is questioned outside the Senate about information gathered during an executive session of the Senate’s legislative inquiry in aid of legislation, a Justice, a judge, or other court official may invoke judicial privilege. This is in spite of the fact that the aforementioned cases for which the Impeachment Panel issued the subpoena have already been decided with finality. But in any case, finality of cases does not seem to impede the Court as well, where it has also justified the recall by the Chief Justice of the final and executory judgment in the case of FASAP v. PAL38 by delving into a constrained invocation of the technicalities of its own Rules and of several incidents beyond its control. In this third case, the Supreme Court reasoned that Corona acted lawfully in recalling the decision of its 2nd Division that denied the plea of PAL simply because there is doubt about the validity of the 2nd Division’s decision on the case anyway: a) interpretation of conflicting provisions of the Internal Rules of the Supreme Court with potential jurisdictional implications;39 b) successive retirement of three Justices in the ruling Division; c) change in the governing rules; d) series of inhibitions in the course of the case; e) three reorganizations of the divisions pendente lite; f) unusual timing of Atty. Mendoza’s letter; and g) time constraint. The Court, as in any case, also approved the re-opening of the case for review on the merits in the higher interest of justice because of the gigantic amount involved. Waiting for the trial to terminate is one course of action that the Court can take. This option, which was available in the FASAP case, would preclude conflicting decisions. The Impeachment Court, after all, could side with the dissent in FASAP and concluded that there was something anomalous about the manner in which the case was treated. But why should the Court wait? It could be argued that the Court’s business does not end simply because an impeachment has affected one of its members. This argument would suggest that in the usual course of business, these cases have to be taken up. It can also be argued that the Court’s decisions can help the trial in the Senate by settling issues whether in favor of the Chief Justice or not. 36

In Re: Production of Court Records and Documents and the Attendance of Court officials and employees as witnesses under the subpoenas of February 10, 2012 and the various letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012, 14 February 2012.

37

The cases were: 1) FASAP v. PAL, G.R. No. 178083, July 22, 2008; 2) Navarro v. Ermita, G.R. No. 180050, Decision dated February 10, 2010 and Resolution dated May 12, 2010; 3) Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, February 15, 2011; and 4) League of Cities v. COMELEC, G.R. No. 176951, November 18, 2008.

38

Flight Attendants and Stewards Association of the Philippines v. Philippine Airlines, Inc., G.R. No. 178083, October 2, 2009.

39

Under the Interal Rules of the Supreme Court, there are two related but confusing provisions. The first refers to Section 3, Rule 8 dealing with the inhibition of a Member-in-Charge of a case in a Division; it causes the case to be returned to the Raffle Committee for re-raffling among the Members of the other two Divisions of the Court. The Court ruled this to be a general rule applicable only to inhibitions by a Member-in-Charge. The other provision is Section 7, Rule 2 that deals with the inhibition by the ponente from acting on the motion for reconsideration or clarification that has the effect of re-raffling the case to a new ponente who shall be chosen from among the new Members of the Division who participated and concurred in the decision or signed resolution. The Court ruled that this latter provision contemplates a situation when the ponente is no longer available.

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It might also be argued that the standards in the Supreme Court’s decision will not necessarily absolve the Chief Justice in the Senate’s own processes. After all, the impeachment process is a political exercise. Conduct that is permissible in the eyes of the judiciary may not be permissible when examined by popularly elected public officials. The decisions of the Senators are not always based on legal rules, but how the public sees them. Unfortunately, the possibility of having two decisions by two separate branches of government can scarcely settle the issue. At the very least, it will cast doubt on the soundness of the Senate’s decision and it would be then a purely political act that has no basis in law. On the other hand, the Supreme Court’s ruling would appear as an attempt to protect a colleague. Waiting serves a higher goal: it preserves the constitutional order by allowing checks and balances to operate. The Supreme Court itself noted that “[g]iven their concededly political character, the precise role of the judiciary in impeachment cases is a matter of utmost importance to ensure the effective functioning of the separate branches while preserving the structure of checks and balance in our government.”40 Its actions can deter the proper operation of the constitutional order and can undermine the rule of law. The Court could not have waited in the two other cases. Both cases, however, were novel in the sense that bank secrecy laws and judicial privilege have never been examined in the context of an impeachment. In such cases, the better rule would be to lean towards an interpretation that strengthens the system of checks and balances. This route would have fulfilled the constitutional provisions on public accountability. Instead, the Court protected the respondent and deprived the public of the chance to hold him accountable. c. Judicial Review of the Senate’s decision.

The last form of judicial intervention could be the judicial review of the Senate’s decision to convict Corona. After the Senate convicted Corona, his lawyers hinted at the possibility of bringing the case to the Supreme Court. The Philippine Constitution has a very broad definition of judicial power. Article VIII, section 1 of the Constitution provides: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Discretionary acts of another branch of government are now subject to judicial review. The Senate, however, cited another provision of the Constitution that would seem to preclude judicial intervention in the trial of the Chief Justice. Article XI on the Accountability of Public Officers provides in section 3: 40

154

Corona v. Senate of the Philippines, G.R. No. 200242, July 17, 2012.

The IBP Journal

Impeachment as a Popular Check on Official Misconduct

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. The Senate President made his position on this issue very clear: “They (the Supreme Court) cannot review our decision,” he said. “Otherwise, they will be the one to make the final decision in violation of the Constitution, which says that the Senate has the sole power to decide and try all impeachment cases.” He warned the Court of the consequences of its intervention: “I will say this very frankly and I hope they understand — if they will question the jurisdiction of the impeachment court and reverse our decision, we will defy them.… If they want a constitutional crisis in this country, they will have one”.41 The Supreme Court could have resolved these views and ruled in its own favor. Corona, ultimately chose not to bring the matter to the Supreme Court. “If this will be for the good of the country, I now accept the Calvary we endured [b]ecause even from the start, I was ready to lay my life for the nation,” Corona said in Filipino in a statement.42 Corona claims that he is a victim of politics. He said he faced his impeachment with the hope he would be granted justice in accordance with the law and the Constitution, amid the “malicious” allegations against him. He reiterated his claim that President Aquino would use all government means and resources to oust him and ruin his reputation.43 V. HEEDING THE PUBLIC During the Roh era, the Constitutional Court asserted itself as an independent entity. The Court struck down several of Roh’s most ambitious agenda items, such as his proposal to move the political capital away from Seoul. Almost every political conflict between Roh and his detractors reached the Court.44 Said one analyst, Through its repeated repudiation of the President, who though democratically elected was increasingly viewed as wielding imperial powers, the Constitutional Court established itself as a powerful check against the arrogation of excessive power by political officials. This robust vision of the Constitutional Court’s role in the polity reflected a “strong public demand for judicial control over government activities as a means of advancing democratization.” Accordingly, a 2007 poll found that Koreans regarded the Constitutional Court as both “the most influential and credible” public institution in the country.45 41

Christian V. Esguerra, Appeal to Supreme Court will spark crisis, Enrile warns ex-Chief Justice, Philippine Daily Inquirer, May 31, 2012.

42

Philip C. Tubeza, I now accept the calvary we endured—Corona, Philippine Daily Inquirer, May 30, 2012, available at http://newsinfo.inquirer.net/203039/corona-accepts-senate-verdict.

43

Evangeline de Vera, Corona accepts verdict, urges nation to move on, Philippine Star, May 30, 2012, available at http:// www.malaya.com.ph/index.php/news/nation/5177-corona-accepts-verdict-urges-nation-to-move-on.

44

Ryan Y. Park, The Globalizing Jury Trial: Lessons and Insights From Korea, 58 Am. J. Comp. L. 525, 548-9 (2010).

45

Id.

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The judgment may be seen as an activist judicial decision that contradicted the overwhelming parliamentary majority in support of the impeachment. There is a view, however, that the legislative motion to impeach President Roh was primarily due to inter- and intra-party struggles. Public support for Roh increased substantially after the legislative motion, and led to a better electoral turn out for his political alliance. By the time of the Court’s decision, President Roh had already earned sufficient support in the National Assembly. The Court wisely chose not to impeach President Roh, but condemned some of his constitutional violations to provide some consolation to President Roh’s opponents.46 It is generally believed that this indicator of the public’s preferences influenced the Court in its decision.47 The apparent opposition to impeachment made obvious by the results of the general election, forced the Constitutional Court into considering the political circumstances and recognizing the victory of progressive power in Korean politics. Although the Constitutional Court said the result of the election would not be relevant to the final decision of the Court, it was evident that the election could justify its decision. The public accepted the decision because it seemed to reflect public opinion on that matter as it was expressed in the general election.48 It will be recalled that in the Philippines, the Supreme Court stalled in resolving cases questioning the constitutionality of the impeachment of the Chief Justice, but it did rule in his favor in three other cases that were related to his impeachment. Twice before, the Supreme Court intervened after the filing of impeachment cases against public officials. It blocked the case against Chief Justice Davide,49 and years later allowed the case against the Ombudsman to proceed.50 Yet, it stalled on the cases questioning the impeachment itself. Then the Supreme Court aided the Chief Justice by ruling in his favor three times51 — basically depriving the public of information about Corona’s actions. What could account for the Court’s actions? The Court’s support for the Chief Justice might have been encouraged by what appeared to be a weak prosecution panel. The prosecution team had a rocky performance. Throughout the trial they were “[r]idiculed, mocked and lectured by luminaries inside

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46

Jiunn-Rong yeh & Wen-Chen Chang, The Emergence of East Asian Constitutionalism: Features in Comparison, 59 Am. J. Comp. L. 805, 828-9 (2011).

47

Tom Ginsburg & Zachary Elkins, Ancillary Powers of Constitutional Courts, 87 Tex. L. Rev. 1431, 1451 (2009). See also Chun-Yuan Lin, Court in a Political Conflict: Note on South Korean Impeachment Case, 4 Nat’l Taiwan U.L. Rev. 249 (2009).

48

Jonghyun Park, The Judicialization of Politics in Korea, 10 Asian-Pac. L. & Pol’y J. 62, 74-5 (2008).

49

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003.

50

Gutierrez v. The House of Representatives Committee on Justice, G.R. No. 193459, February 15, 2011.

51

Philippine Savings Bank v. Senate Impeachment Court, G.R. No. 200238, February 9, 2012; In Re: Production of Court Records and Documents and the Attendance of Court officials and employees as witnesses under the subpoenas of February 10, 2012 and the various letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012, February 14 2012; and Flight Attendants and Stewards Association of the Philippines v. Philippine Airlines, Inc., G.R. No. 178083, October 2, 2009.

The IBP Journal

Impeachment as a Popular Check on Official Misconduct

and outside the Senate.”52 The media described the prosecution’s performance as “a series of embarrassing blunders and missteps that became quite painful to watch.”53 Towards the end of the impeachment trial of Chief Justice Renato Corona, however, nearly four of 10 Filipinos, or 38 percent, were undecided about his guilt, while 45 percent thought he was probably or definitely guilty.54 The change in the public’s view may have altered the Court’s attitude. When the verdict was imminent, the Court was less inclined to tussle with the Senate. Associate Justice Martin Villarama, who has been assigned to write the High Court’s ruling on Corona’s petition to stop his impeachment, said the Tribunal would accept any Senate decision. “We’ll accept anything. We’ll accept the verdict. Whatever it is, we’ll accept it,” Villarama told reporters during an interview.55 VI. IMPEACHMENT AS A POPULAR CHECK Legislative bodies are often given the power to check other branches of government. These powers are not exclusive. The exercise of that power is evidently affected by the roles played by the judiciary. The impeachment of Renato Corona illustrated the judicious use of judicial power and judicial review. The Supreme Court may have demonstrated allegiance to the Chief Justice when it decided cases in his favor, but in the end, the Court was a student of public perceptions. Careful not to offend public sensibilities and possibly concerned about its own stature, the Court refused to stop the impeachment and trial or review the decision of the Senate. In the South Korean experience, the Constitutional Court reinstated the President after the public replaced the legislature responsible for his ouster. The Court clearly had the power to determine whether charges against public officials can constitute impeachable offenses. This discretion gives the Court vast discretion and this discretion makes the Court’s function vulnerable to popular sentiments. The rules are not clear, and therefore, can be molded by the Court to suit the public’s sentiments. The Constitutional Court did not defy the National Assembly but respected the popular sentiment. These experiences suggest that impeachment is not exclusively a function of formal government. Critics may be uncomfortable with the idea that public perception influences court actions. States can address this issue by constitutional design. If the State wishes to restrict the discretion of courts, they can amend the Constitution and deprive courts of this discretion. Constitution writers may define what acts constitute impeachable offenses (to deal with South Korea’s experience). They can also restrict the Court’s power to be involved in the impeachment process and make Congress’ role exclusive (as in the United 52

R.G. Cruz, Miriam’s ‘gago’ was last straw for prosecution, ABSCBNnews.com, http://www.abs-cbnnews.com/nation/02/29/12/prosecution-cries-foul-over-miriams-gago.

53

Dodo Dulay, The prosecution’s self-inflicted wounds, Manila Times, February 7, 2012, available at http://www.manilatimes.net/index.php/opinion/columnist1/16643-the-prosecutions-self-inflicted-wounds.

54

Poll: More Filipinos thought Corona guilty, Philippine Daily Inquirer, June 5, 2012, available at http://newsinfo. inquirer.net/206837/poll-more-filipinos-thought-corona-guilty.

55

Philip C. Tubeza, SC will accept senator-judges’ verdict in impeachment case, Philippine Daily Inquirer, May 28, 2012, available at http://newsinfo.inquirer.net/202137/sc-will-accept-senator-judges%E2%80%99-verdict-inimpeachment-case.

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States). Another option would be to categorically limit the judiciary’s role to, say, ensuring that procedures for impeachment are followed. Even if judicial participation is removed from the impeachment process, the public can always influence the members of Congress. This is the lesser evil. The members of Congress are creatures of politics. They are elected representatives who need to respond to the demands of their constituents. Because courts are expected to apply the law, external influences seem more intrusive. When Congress listens to the public, it performs its most vital function — to represent the public in government. Of course, there is a potential for abuse in any possible exercise of this power but abuse of this power can always be checked in the next elections. VII. CONCLUSION The biggest legal issue in the Philippines in 2012 was the removal of Chief Justice Renato Corona. The first successful impeachment of the country56 is generally regarded as a huge step towards political maturity. Underneath it all was another story, however –the story of how courts exercise judicial power amidst an impeachment. The Philippine Supreme Court’s erratic behavior, siding one time with the Chief Justice then abandoning him in the next could be a function of the Court’s reading of the public’s preferences. Like the case of South Korea, these observations are speculative. There is more reason to believe, however, that the Philippine Supreme Court was concerned about the public’s view. The Court’s reputation was already tarnished after its leader was impeached. Alienating the public further was least likely to be at the top of its agenda. Citizens naturally shadow political developments and take sides on issues. As these cases show, crowds sway political institutions and perform an active, if indirect way, of checking these institutions. •••

56

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•••

There were failed impeachment attempts against former presidents Elpidio Quirino, Diosdado Macapagal, Ferdinand Marcos, Corazon Aquino, Joseph Estrada, and Gloria Macapagal Arroyo. As stated, earlier attempts were also made against former Chief Justice Hilario Davide and former Ombudsman Merceditas Gutierrez. See Bruan Villasana, History Shows 7 Failed Impeachment Attempts, Manila Bulletin, May 29, 2012, available at http:// www.mb.com.ph/node/360728/hi#.UKXheBxBsrg.

The IBP Journal

Comments on the Status of Enforced Disappearances Under International Law

Comments on the Status of Enforced Disappearances Under International Law Merlin M. Magallona*

PART I Human-Rights Obligations in the Hierarchy of International Law Norms 1. By way of underscoring its foundational nature, it must be affirmed that the right to life and liberty involved in and enforced disappearances is the conceptual and real presupposition of the entire system of human rights and fundamental freedoms under national and international law. The termination of human life or the extermination of the human person is a totalizing assault on social organization and its public order in both legal systems. 2. Bringing this focus to international law, the international human rights system instituted by the Charter of the United Nations has acquired primacy in the postwar reorganization of the international community on account of humankind’s experience in the atrocities and barbarities of the Second World War. The United Nations Organization itself is established “to reaffirm faith in fundamental human rights in the dignity and worth of the human person.”1 3. Under Articles 55 and 56 of the UN Charter, it is a principal obligation of the UN members – of which the Philippines is one – to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” As such member, the Philippines “pledge[s itself]… to take joint and separate action in cooperation with the [UN] Organization” for the achievement of this purpose. 4. The International Court of Justice (ICJ) is of the view as spelled out in its Advisory Opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia, that denial of fundamental human rights is a flagrant violation of the purposes and principles of the [UN] Charter.2 Thus, the provisions of the UN Charter in Articles 55 and 56 have obligatory force.3 5. Together with other international obligation arising from the UN Charter, the duty to promote and observe human rights enjoy supremacy under Article 103 *

Professorial Lecturer and former Dean and Professor of Law, U.P. College of Law.

1

UN Charter, second preambular paragraph

2

ICJ Reports, 1971, pp. 16.57.

3

See I. Brownlie, Principles of Public International Law, 5th ed., p. 574.

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of the UN Charter. This supremacy clause reads: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. 6. In its judgment in the Barcelona Traction Case, the ICJ has characterized the principles of human rights as obligations erga omnes or obligations “towards the international community as a whole, as differentiated from obligations which a state owes to another state. The ICJ judgment states: Such obligations derive, for example, in contemporary international law, from outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.4

As creative of erga omnes obligations, the “principles and the rules concerning the basic rights of the human person” are the concern of all States. According to the ICJ, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.”

7. The provisions of the UN Charter on human rights and fundamental freedoms find authoritative interpretation in the Universal Declaration of Human Rights (UDHR). In this respect, the obligations of the UN members acquire specificity in reference to the first ever catalogue of human rights contained in the UDHR as “a common standard of achievement for all peoples and all nations.” Although not a legally binding instrument, the UDHR has largely been absorbed by the general practice of States creating legal obligations. It is widely regarded as part of the “law of the United Nations”.5 8. The UDHR proclaims that “All human beings are born free and equal in dignity and rights” and that “Everyone has the right to life, liberty and security of person”.6 It affirms that “Everyone has the right to recognition everywhere as a person before the law” and that “All are equal before the law and are entitled without any discrimination to equal protection of the law”.7 9. The Supreme Court has applied these fundamental rights under the UDHR as part of Philippines law constituting as they do “generally accepted principles of international law” within the scope of the 1935 Constitution’s incorporation

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4

ICJ Reports, 1970, pp. 3, 32. Emphasis added.

5

L.B. Sohn and T. Buergenthal, International Protection of Human Rights, 1973, p. 156; Brownlie and G.S. GoodwinGil (eds.), Basic Documents on Human Rights, 2002, p. 18; Waldock, General Course on Public International Law, 106 Recueil des Cours, p. 1, 32-33).

6

UDHR Articles 1 and 3.

7

UDHR Arts. 6 and 7.

The IBP Journal

Comments on the Status of Enforced Disappearances Under International Law

clause.8 In Mejoff v. Director of Prisons9 and Borovsky v. Commissioner10 the Court issued the writ of habeas corpus for the release of a foreign national under detention, as “protection against deprivation of liberty without due process of law”. It affirms: ….[I]n a resolution entitled “Universal Declaration of Human Rights” … approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on 10 December 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolve that “All human beings are born free and equal in dignity and rights (Art. 1; that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, that “Everyone has right to an effective remedy by the competent tribunals for acts violating the fundamental rights granted him by the constitution or by law (Art. 8); that “No one shall be subjected to arbitrary arrest, detention or exile” (Art. 9).

The Court reiterated the same ruling in Chirskoff v. Commissioner11 and Andreu v. Commissioner12

10. As a party to the International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty, the Philippines undertakes under Article 2 to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.13 Among these rights, the following deserve emphasis in context: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life.14 8

Art. II, sec. 3.

9

90 Phil. 70, 73-74 (1951).

10

90 Phil. 107, 111 (1951).

11

90 Phil. 256 [1951].

12

Phil. 347 [1951]

13

Emphasis added.

14

ICCPR, Art. 6

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Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.15

PART II Specific Legal Context of and Enforced Disappearances In Non-International Armed Conflict 11. The issues at hand relating to the fundamental human right to life and liberty involved in enforced disappearances acquire specific context in the application of international humanitarian law (IHL), formerly known as the law of armed conflict. The context of armed conflict of internal or non-international character is drawn up by the treatment of killings as appearing in the Melo Commission Report, the Alston Report, the amnesty International Statement, and the documents disclosed in the Special Report published by the Philippine Daily Inquirer (PDI) in its issues of July 16 and 17, 2007. Victims of, and those targeted for, extrajudicial killings are “enemies of the State”. 12. This implies that enforced disappearances are reasonably contextualized as forming part of internal or non-international armed conflict as defined by IHL, i.e., by Article 3 common to the Geneva Conventions of 12 August 1949 and Additional Protocol II, all of which the Philippines is a party. 13. Non-international armed conflict is one “which take[s] place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a pert of its territory as to enable them to carry out sustained and concerted military operations and to implement ….”16. In Article 3 common to the Geneva Convention of 1949 an armed conflict is not of an international character if it occurs “in the territory of one of the High Contracting Parties,” as in the case of the Philippines. 14. Concededly, the fundamental rights to life and liberty set out above generally apply in conditions of armed conflict. However, under these conditions the guidelines set by the ICJ in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.17 are instructive: More generally, the Court considers that the protection offered by human rights conventions does not cease in the case of armed conflict, …. As regards the relationship

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15

ICCPR, Art. 9.

16

Additional Protocol II, Art. 1(1).

17

ICJ Reports, 2004, para. 106.

The IBP Journal

Comments on the Status of Enforced Disappearances Under International Law

between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law, namely, human rights law and, as lex specialis, international humanitarian law. 15. As an alternative to international human rights law set forth above, the application of IHL as lex specialis points to the following approach: 16. In the light of IHL, the extrajudicial killings and enforced disappearances contravene what the ICJ describes as “intrasgressive principles of international customary law”, reflecting as they do “the most universally recognized humanitarian principles.”18 17. The main point of violation of IHL relates to the obligations under Article 3 common to the Geneva Conventions which “shall be bound to apply, as a minimum, to each party to the conflict. This provision defines in part the following obligations: Persons taking no active part in the hostilities, …. shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth, or wealth or any other familiar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;



*

*

*

(d) the passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.19

*

*

*

18. Additional Protocol II specifies further that the prohibition set out above “shall be applied without any adverse distinction founded on… political or other opinion 18

Advisory Opinion on Legality of Threat or Use of Nuclear Weapons, ICJ Reports, 1996, paras. 79 and 82.

19

Emphasis added.

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….”20 It prescribes that the protected persons mentioned above “are entitled to respect for their person, honour and convictions and religious practices.” To the prohibited acts enumerated in Article 3 common to the Geneva Conventions, Additional Protocol II adds “acts of terrorism,” among others.

PART III Extrajudicial Killings and Enforced Disappearances Constitute Crimes Against Humanity 19. “Crimes against humanity” are one of the most serious crimes of concern to the international community as a whole.21 This crime has crystallized into general international law. UN General Assembly resolution on “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and Judgment of the Tribunal” characterizes crimes against humanity as crimes under international law. 20. Given the information that extrajudicial killings in question number more than 800, executed in the manner described in the Melo Commission Report and the Alston Report, these inhuman acts exhibit a pattern forming part of “a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Under this defining element, murder, severe deprivation of physical liberty, enforced disappearances of persons, and persecution against any identifiable group on political grounds, which are involved in the cases of extrajudicial killings and enforced disappearances in issue, constitute “crimes against humanity” as now established in general international law as well as in international criminal law.22 21. The reports on extrajudicial killings mentioned above indicate sufficient basis for determining the perpetrators of the “crime against humanity of murder” with intent and knowledge, taking into account that such conduct was committed “as part of a widespread of systematic attack against a civilian population”.23 22. In International criminal law, “enforced disappearance” constitutes one of the acts characterized as “crime against humanity” when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.24 The Rome Statute defines “enforced disappearance of persons” as “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization,

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20

Art. 2.

21

Rome Statute of the International Criminal Court, fourth preambular paragraph. See also Elements of Crime, Art. 7.

22

C. Bassioni, Crimes against Humanity in International Law, 1999, chapter 7. See Rome Statute of the International Criminal Court, Art. 7(1).

23

Rome Statute, Elements of Crime, Art. 7(1)(a).

24

Rome Statute, Art. 7(1)(i).

The IBP Journal

Comments on the Status of Enforced Disappearances Under International Law

followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”.25 A substantially identical definition is provided in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance as set forth below.

PART IV General Features of the International Convention of the Protection of All Persons from Enforced Disappearances 23. The foregoing survey may serve as the context of the International Convention for the Protection of All Persons from Enforced Disappearance.26 Pursuant to its own provisions the Convention entered into force with 42 States Parties as of the end of the year 2012. It has 93 signatories. The Philippines does not appear to have signed or ratified the Convention, but it is open to its accession. 24. The preambular paragraphs relate the Convention to its close connection with the “relevant international instruments in the fields of human rights, humanitarian law and international criminal law, beginning with the international obligation of States under the U.N. Charter to promote universal respect for, and observance of human rights and fundamental freedoms, all of which are already binding on the Philippines. Besides, enforced disappearance constitutes a crime and, in certain respects, is defined in international law as a crime against humanity. In enforced disappearance, humanity is engaged in the assault against life and liberty, the foundation of the international law of human rights. 25. The Convention defines the term “enforced disappearance” in Article 2 as “the arrest, detention, detection, abduction or any other form of deprivation of liberty by agents of the States or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabout of the disappearanced person, which place such a person outside the protection of the law.”27 It returns to the characterization of enforced disappearance as a crime against humanity under international criminal law, in cases of widespread and systematic practice.

It is one of the primary obligations of the State Party to the Convention “ to ensure that enforced disappearance constitutes an offense under its criminal law”. It is ordained that “No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offense of enforced disappearance”.28

25

Rome Statute, Art. 7(2)(i).

26

Text in 2715 UNTS 448.

27

Art. 4.

28

Art. 6, para. 2.

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26. In addition to criminal liability arising from acts of direct participation, the Convention widens the scope of liability in Article 6, to include subparagraph (b), on command responsibility on the part of a superior, military or civilian, who: (i) Knew or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance; (ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and (iii) Failed to take all necessary and reasonable measures within his or her power to prevent or press the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution. 27. The heart of the problem may arise from the fact that a State Party expectedly will rely on its military, security or police organizations for the enforcement or implementation of the Convention in its domestic jurisdiction – officers or personnel of State authority who are likely to be involved as “agents of the State” or as “persons or groups of persons acting with the authorization, support or acquiescence of the State”, in the crime of enforced disappearance as defined in the Convention. The application of command responsibility, as given above, becomes problematical in the relationship of the superior with his or her subordinates, which may be either in tension or connivance. •••

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The IBP Journal

Integrated Bar of the Philippines BOARD OF GOVERNORS

(2011-2013) ROAN I. LIBARIOS National President & Chairman of the Board DENIS B. HABAWEL Governor for Northern Luzon

OLIVIA VELASCO-JACOBA Governor for Central Luzon

DOMINIC C.M. SOLIS Governor for Greater Manila

VICENTE M. JOYAS Governor for Southern Luzon

LEONOR L. GERONA-ROMEO Governor for Bicolandia

MANUEL L. ENAGE, JR. Governor for Eastern Visayas

ERWIN M. FORTUNATO Governor for Western Visayas

ISRAELITO P. TORREON Governor for Eastern Mindanao

FLORENDO B. OPAY Governor for Western Mindanao

NATIONAL OFFICERS NASSER A. MAROHOMSALIC National Secretary

MARIA TERESITA C. SISON GO National Treasurer

JOSE V. CABRERA National Executive Director for Operations

ROLAND B. INTING National Executive Director for Administration

ROSARIO T. SETIAS-REYES National Director for Legal Aid

DENNIS B. FUNA National Director for Bar Discipline

ALICIA A. RISOS-VIDAL National Director for Peer Assistance Program

PACIFICO A. AGABIN General Counsel

TRIXIE CRUZ-ANGELES Public Information Officer

MERLIN M. MAGALLONA Editor-in-Chief, IBP Journal

PATRICIA ANN T. PRODIGALIDAD Assistant National Secretary

VICTORIA V. LOANZON Assistant National Treasurer

RODOLFO G. URBIZTONDO Deputy General Counsel

Integrated Bar of the Philippines 15 J. Vargas Avenue, Ortigas Center, Pasig City 1600 Telephone: (632) 631-3014/18 Fax: (632) 634-4697 Website: www.ibp.ph Email: [email protected]