The PHILPHILPHIL AAA APRIL - JUNE 2002 PHILVOL.PHIL 4, ISSUE NO. 12 AA JJJUDICIALUDICIAL JJOURNALOURNAL

Economic, Social and Cultural Rights (ESCR)

The PHILPHILPHIL AAA APRIL - JUNE 2002 VOL. 4, ISSUE NO. 12 JJUDICIAL JJOURNAL

ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ESCR)

I. MESSAGES Realizing Economic, Social, and Cultural Rights Economic, Social and Cultural Rights from the Perspective of Hope

II. LECTURES ESCR & Philippine Laws ESCR in the Courts ESCR: International & Domestic Experiences International Covenant on Economic, Social and Cultural Rights (ICESCR) Justiciability of ESCR Gender & Children Issues Right to Participation

III. SYNTHESIS Highlights of the Workshop Proceedings

IV. INTERNATIONAL INSTRUMENTS AND MAJOR LEGISLATION

V. CASE STUDIES iv

The PHILJA Judicial Journal.

The PHILJA Judicial Journal is published four times a year, every quarter, January through December, by the Research and Linkages Office of the Philippine Judicial Academy (PHILJA). The Journal contains articles and contributions of interest to members of the Judiciary, particularly judges, as well as law students and practitioners. The views expressed by the contributors do not necessarily reflect the views of either the Academy or its editorial board.

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Copyright © 2002 by The PHILJA Judicial Journal. All rights reserved.

For more information, please visit the PHILJA website at www.philja.gov.ph. v

SUPREME COURT OF THE PHILIPPINES

CHIEF JUSTICE Hon. HILARIO G. DAVIDE, Jr.

ASSOCIATE JUSTICES Hon. JOSUE N. BELLOSILLO Hon. REYNATO S. PUNO Hon. JOSE C. VITUG Hon. SANTIAGO M. KAPUNAN Hon. VICENTE V. MENDOZA Hon. ARTEMIO V. PANGANIBAN Hon. LEONARDO A. QUISUMBING Hon. CONSUELO YÑARES SANTIAGO Hon. ANGELINA SANDOVAL GUTIERREZ Hon. ANTONIO T. CARPIO Hon. MA. ALICIA M. AUSTRIA MARTINEZ Hon. RENATO C. CORONA

COURT ADMINISTRATOR Hon. PRESBITERO J. VELASCO, Jr.

DEPUTY COURT ADMINISTRATORS Hon. ZENAIDA N. ELEPAÑO Hon. JOSE P. PEREZ Hon. CHRISTOPHER O. LOCK

CLERK OF COURT Attorney LUZVIMINDA D. PUNO

ASST. COURT ADMINISTRATORS Attorney ANTONIO H. DUJUA Attorney ISMAEL G. KHAN, Jr. (Chief, Public Information Office) Attorney CARLOS L. DE LEON

ASST. CLERK OF COURT Attorney MA. LUISA D. VILLARAMA

DIVISION CLERKS OF COURT Attorney VIRGINIA A. SORIANO Attorney TOMASITA M. DRIS Attorney JULIETA Y. CARREON vi

PHILIPPINE JUDICIAL ACADEMY

Board of Trustees

Hon. HILARIO G. DAVIDE Jr. Chief Justice Chairman

Hon. JOSUE N. BELLOSILLO Senior Associate Justice, Supreme Court Vice-Chairman Members

Hon. AMEURFINA A. MELENCIO HERRERA Hon. PRESBITERO J. VELASCO, Jr. Chancellor Court Administrator

Hon. CANCIO C. GARCIA Hon. FRANCIS E. GARCHITORENA Acting Presiding Justice, Court of Appeals Presiding Justice, Sandiganbayan

Hon. MARINO M. DE LA CRUZ, Jr. Dean ROMULO V. BORJA President, Philippine Judges Association Exec. Vice-President, Philippine Association of Law Schools

Hon. ILUMINADA C. CORTES Executive Judge, Presiding Judge, MTCC, Br. 4, Baguio City Executive Officials

Hon. AMEURFINA A. MELENCIO HERRERA Hon. ANTONIO M. MARTINEZ Chancellor Vice-Chancellor Hon. PRISCILA S. AGANA Executive Secretary

Heads of Offices

Hon. ANTONIO M. MARTINEZ Fr. RANHILIO C. AQUINO Administrative Office Academic Affairs Office

Prof. SEDFREY M. CANDELARIA Hon. BERNARDO T. PONFERRADA Research and Linkages Office Judicial Reforms Office

Academic Council

Hon. AMEURFINA A. MELENCIO HERRERA Chair

Dr. PACIFICO A. AGABIN Hon. RICARDO C. PUNO, Sr. Constitutional Law Civil Law

Hon. OSCAR M. HERRERA, Sr. Hon. ROMEO J. CALLEJO, Sr. Remedial Law Criminal Law

Hon. PRESBITERO J. VELASCO, Jr. Hon. HILARION L. AQUINO Court Management Ethics and Judicial Conduct

Prof. ROMAN F. MABANTA, Jr. Dr. PURIFICACION V. QUISUMBING Commercial Law International and Human Rights Law

Fr. RANHILIO C. AQUINO Prof. MYRNA S. FELICIANO Jurisprudence and Legal Philosophy Legal Method and Research

ACA ANTONIO H. DUJUA Atty. IVAN JOHN E. UY Special Areas of Concern Court Technology vii

Justice Ameurfina A. Melencio Herrera Chancellor

Professor Sedfrey M. Candelaria Editor-in-Chief

Editorial Advisers

Dr. Pacifico A. Agabin, Constitutional Law Justice Ricardo C. Puno, Sr., Civil Law Justice Oscar M. Herrera, Sr., Remedial Law Justice Romeo J. Callejo, Sr., Criminal Law Justice Presbitero J. Velasco, Jr., Court Management Justice Hilarion L. Aquino, Ethics and Judicial Conduct Prof. Roman F. Mabanta, Jr., Commercial Law Dr. Purificacion V. Quisumbing, International and Human Rights Law Fr. Ranhilio C. Aquino, Jurisprudence and Legal Philosophy Prof. Myrna S. Feliciano, Legal Method and Research ACA Antonio H. Dujua, Special Areas of Concern Atty. Ivan John E. Uy, Court Technology

Editorial Staff

Copy Editing Layout and Design Melanie H. Perez Michael S. Santos

Editorial Assistance Circulation Queency M. Sara Armida M. Salazar Blythe M. Lumague

Printing Services Emmanuel C. Ignacio VOLUME 4 ISSUE NO. 12 APRIL - JUNE 2002

THE PHILJA JUDICIAL JOURNAL

CONTENTS

OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ...... v

OFFICERS OF THE PHILIPPINE JUDICIAL ACADEMY ...... vi

I. MESSAGES

OPENING REMARKS: REALIZING ECONOMIC, SOCIAL, AND CULTURAL RIGHTS Justice Ameurfina A. Melencio Herrera (ret.) ...... 1

INSPIRATIONAL MESSAGE: ECONOMIC, SOCIAL AND CULTURAL RIGHTS FROM THE PERSPECTIVE OF HOPE Chief Justice Hilario G. Davide, Jr...... 6

II. LECTURES

ESCR & PHILIPPINE LAWS

GUARANTEES OF ESC RIGHTS IN THE PHILIPPINE CONSTITUTION AND LAW S (INCLUDING THE FISHERIES CODE, AGRARIAN REFORM LAWS ON MINERAL AND OTHER NATURAL RESOURCES) Atty. Denise Monina F. Uy ...... 14 CONTENTS

THE DEVELOPMENT OF ADMINISTRATIVE LAW IN THE PHILIPPINES RELATIVE TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS Dr. Pacifico A. Agabin ...... 54

ESCR IN THE COURTS

ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE COURTS Justice Leonardo A. Quisumbing ...... 74

ESCR: INTERNATIONAL & DOMESTIC EXPERIENCES

RIGHTS, OBLIGATIONS AND REMEDIES: INTERNATIONAL AND DOMESTIC EXPERIENCES Atty. Rene V. Sarmiento ...... 105

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)

THE ICESCR AND THE WORK OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Prof. Virginia B. Dandan ...... 113

JUSTICIABILITY OF ESCR

JUSTICIABILITY OF SOCIO-ECONOMIC AND CULTURAL RIGHTS Fr. Joaquin G. Bernas, S.J...... 131 CONTENTS

REFLECTING ON THE CONCEPT OF JUSTICIABILITY Fr. Ranhilio C. Aquino ...... 151

GENDER & CHILDREN ISSUES

NON-DISCRIMINATION AND PARTICIPATION: GENDER AND CHILDREN ISSUES Prof. Myrna S. Feliciano ...... 158

RIGHT TO PARTICIPATION

THE HUMAN RIGHT TO PARTICIPATION Dr. Clarence J. Dias ...... 189

III. SYNTHESIS

HIGHLIGHTS OF THE W ORKSHOP PROCEEDINGS Justice Ameurfina A. Melencio Herrera (ret.) ...... 201

IV. INTERNATIONAL INSTRUMENTS AND MAJOR LEGISLATION

UNIVERSAL DECLARATION OF HUMAN RIGHTS ...... 213

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION ...... 223

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ...... 245 CONTENTS

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ...... 262

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ...... 294

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST W OMEN ...... 300

CONVENTION AGAINST T ORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING T REATMENT OR PUNISHMENT ...... 321

CONVENTION ON THE RIGHTS OF THE CHILD ...... 344

SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, AIMING AT THE ABOLITION OF THE DEATH PENALTY ...... 378

V. CASE STUDIES

I. STATE OF CONSTANCIA ...... 383

II. STATE OF GANLANDIA ...... 384

III. STATE OF T ERUKA ...... 386

IV. STATE OF SANDOLINA ...... 387

V. C ITY OF MAHARLIKA ...... 388

VI. BARANGAY LORENZO, LAGUNA ...... 389

VII. STATE OF BERNITA ...... 391 CONTENTS

I. MESSAGES

OPENING REMARKS: REALIZING ECONOMIC, SOCIAL, AND CULTURAL RIGHTS Justice Ameurfina A. Melencio Herrera (ret.) ...... 1

INSPIRATIONAL MESSAGE: ECONOMIC, SOCIAL AND CULTURAL RIGHTS FROM THE PERSPECTIVE OF HOPE Chief Justice Hilario G. Davide, Jr...... 6

II. LECTURES

ESCR & PHILIPPINE LAWS

GUARANTEES OF ESC RIGHTS IN THE PHILIPPINE CONSTITUTION AND LAW S (INCLUDING THE FISHERIES CODE, AGRARIAN REFORM LAWS ON MINERAL AND OTHER NATURAL RESOURCES) Atty. Denise Monina F. Uy I. INTRODUCTION ...... 16 II. RELEVANT CONSIDERATIONS ...... 18 III. RIGHTS PROTECTED ...... 19 IV. FISHERIES CODE, AGRARIAN REFORM, LAW S ON MINERALS AND OTHER NATURAL RESOURCES ...... 37 V. C ONCLUSION ...... 51 CONTENTS

THE DEVELOPMENT OF ADMINISTRATIVE LAW IN THE PHILIPPINES RELATIVE TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS Dr. Pacifico A. Agabin I. ESC RIGHTS AND THE ADMINISTRATIVE PROCESS ...... 55 II. POLITICAL POWER AND THE W ELFARE STATE ...... 59 III. WELFARE LEGISLATION AND THE UPSURGE OF ADMINISTRATIVE LAW ...... 63 IV. A CASE STUDY: AGRARIAN REFORM AND THE COURT OF AGRARIAN RELATIONS ...... 66 V. C ONCLUSION ...... 72

ESCR IN THE COURTS

ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE COURTS Justice Leonardo A. Quisumbing I. INTRODUCTION ...... 75 II. RESPECT FOR HUMAN RIGHTS ...... 76 III. EARLY JURISPRUDENCE ...... 79 IV. EARLY APPLICATION ...... 83 V. A PPLICATION ABROAD ...... 86 VI. COMPARATIVE LEGISLATION ...... 91 VII. CASES FROM INDIA ...... 93 VIII. AMERICAN DERIVATION ...... 99 IX. RECENT DECISIONS ...... 100 X. RULE-MAKING POWER ...... 101 CONTENTS

ESCR: INTERNATIONAL & DOMESTIC EXPERIENCES

RIGHTS, OBLIGATIONS AND REMEDIES: INTERNATIONAL AND DOMESTIC EXPERIENCES Atty. Rene V. Sarmiento I. INTRODUCTION ...... 106 II. JUDICIAL ACTIVISM ...... 106 III. DOMESTIC EXPERIENCES ...... 107 IV. INTERNATIONAL EXPERIENCES ...... 109 V. C ONCLUSION ...... 111

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)

THE ICESCR AND THE WORK OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Prof. Virginia B. Dandan I. INTRODUCTION ...... 114 II. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) ...... 116 III. THE W ORK OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ...... 118 IV. CONCLUSION ...... 129 CONTENTS

JUSTICIABILITY OF ESCR

JUSTICIABILITY OF SOCIO-ECONOMIC AND CULTURAL RIGHTS Fr. Joaquin G. Bernas, S.J. I. INTRODUCTION ...... 132 II. JUSTICIABILITY ...... 132 III. CONCLUSION ...... 150

REFLECTING ON THE CONCEPT OF JUSTICIABILITY Fr. Ranhilio C. Aquino I. THE LOOP AND THE CONCERN ...... 152 II. THE ACT OF JUDGING AND HUMAN COOPERATION ...... 153

GENDER & CHILDREN ISSUES

NON-DISCRIMINATION AND PARTICIPATION: GENDER AND CHILDREN ISSUES Prof. Myrna S. Feliciano I. INTRODUCTION ...... 159 II. CONSTITUTIONAL POLICIES ...... 162 III. TREATIES AND INTERNATIONAL AGREEMENTS ...... 165 IV. NON-DISCRIMINATION ...... 168 V. P ARTICIPATION ...... 185 VI. CONCLUSION ...... 187 CONTENTS

RIGHT TO PARTICIPATION

THE HUMAN RIGHT TO PARTICIPATION Dr. Clarence J. Dias I. ELABORATING THE CONTENT OF THE RIGHT TO PARTICIPATION ...... 189 II. REALIZING THE RIGHT TO PARTICIPATION ...... 199

III. SYNTHESIS

HIGHLIGHTS OF THE W ORKSHOP PROCEEDINGS Justice Ameurfina A. Melencio Herrera (ret.) 1. INTRODUCTION ...... 202 II. HIGHLIGHTS ...... 204

IV. INTERNATIONAL INSTRUMENTS AND MAJOR LEGISLATION

UNIVERSAL DECLARATION OF HUMAN RIGHTS ...... 213

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION ...... 223

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ...... 245

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ...... 262

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ...... 294 CONTENTS

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST W OMEN ...... 300

CONVENTION AGAINST T ORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING T REATMENT OR PUNISHMENT ...... 321

CONVENTION ON THE RIGHTS OF THE CHILD ...... 344

SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, AIMING AT THE ABOLITION OF THE DEATH PENALTY ...... 378

V. CASE STUDIES

I. STATE OF CONSTANCIA ...... 383

II. STATE OF GANLANDIA ...... 384

III. STATE OF T ERUKA ...... 386

IV. STATE OF SANDOLINA ...... 387

V. C ITY OF MAHARLIKA ...... 388

VI. BARANGAY LORENZO, LAGUNA ...... 389

VII. STATE OF BERNITA ...... 391 Realizing Economic, Social, and Cultural Rights∗

Justice Ameurfina A. Melencio Herrera (ret.)∗∗

Chief Justice Bhagwati, Dr. Dias, Professor Dandan, the Justices of the Court of Appeals, Dr. Quisumbing, our Trial Judges selected from all over the country, human rights advocates, all: At the outset, may I mention that our hearts go out to the victims of the terrorist acts committed in the World Trade Center in New York and in the Pentagon in Washington D.C., that we learned about only this morning. I invite you all to observe a minute of silence to pray for those who lost their lives, and those who were injured. May the Almighty give everyone strength and grace to overcome all the ordeal.

∗ Opening Remarks delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 12, 2001, at PHILJA, Tagaytay City. ∗∗ Justice Ameurfina A. Melencio Herrera (ret.) has been the indomitable Chancellor of the Philippine Judicial Academy (PHILJA), the education arm of the Supreme Court of the Philippines, since March 1996. She was Associate Justice of the Supreme Court from 1979 to 1992, where she chaired the Second Division from 1988, and Associate Justice of the Court of Appeals chairing the Eighth Division from 1973 to 1979. Justice Herrera graduated Valedictorian and Cum Laude at the University of the Philippines College of Law, where she obtained her Bachelor of Laws degree. She became Bar Topnotcher when she took her Bar Examinations, ranking first with a score of 93.85%. 2THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Notwithstanding the pall of gloom over the world today, it is my distinct privilege to greet you all a very pleasant Good Morning, and to welcome you very warmly to the Philippine Judicial Academy or PHILJA. This is our first activity on Economic, Social, and Cultural Rights. For this, we must thank the United Nations Development Programme (UNDP), headed by Mr. Terence Jones, and the Office of the UN High Commissioner for Human Rights, represented here by its Regional Adviser for the Asia-Pacific Region, former Chief Justice P. N. Bhagwati of India, for their invaluable assistance and cooperation. Their active involvement and that of Dr. Clarence Dias, President of the International Center for Law in Development, provided us with incentive and encouragement. I must make mention, too, of our very own Dr. Purificacion Quisumbing, our Project Coordinator, and Ms. Amparo Tomas, the UNDP Programme Officer, who designed our program distinctively and innovatively. They did that in consultation with Prof. Virginia Dandan, Dean of the U.P. College of Fine Arts and Chairperson of the Committee on Economic, Social, and Cultural Rights. Acknowledgment is also due our high caliber Chairpersons, Lecturers, Resource Persons, Rapporteurs, and Facilitators, for lending us their expertise in order to make our three days a fruitful learning experience. We recognize those who are present as well as those who will be joining us for the next two days. Let us applaud them all. And to all our participants, especially our three lady Justices of the Court of Appeals led by its Presiding Justice, the Honorable Alice Austria Martinez, and our hard-picked Trial Court Judges from the courts of the National Capital Region, and from Luzon, Visayas, and Mindanao, many thanks as well for 2002] REALIZING ECONOMIC, SOCIAL, AND 3 CULTURAL RIGHTS joining us in the challenging field of economic, social, and cultural rights. In many ways the international legal order has never been the same again after the adoption of the Universal Declaration of Human Rights on December 10, 1948. Not that this seminal document announced doctrines never before heard, for in it will be found the central, the humane, and humanizing precepts of Christianity and of other religions, and of civilization’s greatest teachers of moral living. With its promulgation, however, nations and peoples had a succinct summary of the rights and freedoms that from thenceforth legal and juridical orders would safeguard and hold inviolate. Although clearly, at first, a non- binding proclamation of the signatory States, its ideals and values, its prescriptions and proscriptions have found their way into treaty law and into customary law, some of them attaining even the status of peremptory norms of international law. The International Covenants on Civil and Political Rights, and on Economic, Social, and Cultural Rights, are the progeny of the Declaration, and although they may have the same status in paper, and all human rights are indivisible, yet, civil and political rights have received considerably more attention than economic, social, and cultural rights. Indeed, law school has drilled into us the intricate jurisprudence that has sprung from our Bill of Rights that resonates with the prescriptions and injunctions of the Covenant on Civil and Political Rights. But the rather novel provisions of the Philippine Constitution of 1987 that embody the State’s concern with economic, social, and cultural rights as well do not seem to have been met with equal enthusiasm and interest. 4THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

We have heard of civil and political rights advocates, but not specifically of economic and social rights advocates. But should not the right to shelter, right to health, right to food, right to education, right to environment, be also given as much attention and meaning? These rights belong to a different category of rights altogether because they concern nothing less than self- preservation and self-perpetuation. This is especially so when we think of the plight of the world’s poorest countries, where civil and political rights may be quite beside the point, according to their national leaders. In fact, the gains in civil and political rights may even be lost in case of losses in economic and social rights. Neglect ESC rights and civil and political rights cannot thrive. In other words, economic, social, and cultural rights have a crucial bearing on the exercise of civil and political rights, and vice-versa. There is very good reason, therefore, for this conference- workshop. The past has had shortfalls. The present is now focusing on awareness and consciousness. The future can eventually lead to a progressive realization of the justiciability and enforceability of economic, social, and cultural rights. No argument is needed to establish the truth of the proposition that economic and social rights are necessary ingredients for social progress and development. Besides a democratically elected government and laws that are substantively and procedurally fair and administered by competent and credible courts, what else does human development presuppose? This Judiciary Workshop will answer that question by highlighting economic, social, and cultural rights; the relationship of interdependence and correlation between economic, social and cultural rights, the right to development, and respect for civil and political rights. 2002] REALIZING ECONOMIC, SOCIAL, AND 5 CULTURAL RIGHTS We, members of the Judiciary, must ceaselessly advocate the Rule of Law because we desire what the Preamble of our Constitution holds forth to be the fruit of adherence to law: a regime of justice, peace and love. Hardly anyone else enunciated the relation between peace and social development with more brevity and unparalleled clarity than Pope Paul VI when he declared: “Development is the new name of peace!” A warm Welcome then to what could well be a conference on human development. A warmer Welcome then to an assembly for peace! Economic, Social and Cultural Rights From the Perspective of Hope*

Chief Justice Hilario G. Davide, Jr.**

As we bring to a close this three-day workshop on economic, social and cultural rights, or ESCR, with recognized experts on the subject as resource speakers, three conclusions can immediately be drawn. First, the hectic schedule and the spartan discipline under which you were placed may have violated your ESC rights. Second, you now know more how to value these rights for yourselves and for others. Third, you now may have more questions than you expected about human rights, one of the more engaging subjects of International Law. Of course, International Law is just as complex. It deals primarily with the rights and obligations of States, although recent trends have conferred on individual persons legal standing, particularly, the right to seek redress of grievances. The latter development bodes well in our quest for a better future, especially in the aftermath of controversies surrounding the subject of human rights. Imagine: Individuals are given legal personality to stand before nations on the strength of human rights.

∗ Inspirational Message delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 14, 2001, at PHILJA, Tagaytay City. ∗∗ Chief Justice Hilario G. Davide, Jr. assumed stewardship of the Judiciary on November 30, 1998. He is one of seven eminent leaders who joined the Supreme Court and became Chief Justice without any prior judicial experience. His distinguished career 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 7 FROM THE PERSPECTIVE OF HOPE The recognition by the international community of the entire spectrum of human rights through the Universal Declaration of Human Rights, or UDHR, gives us greater hope. This instrument was adopted by the UN General Assembly on 10 December 1948 as a plea for humanity after the atrocities of World War II. include serving as: Chairman of The Fact Finding Commission created pursuant to R.A. No. 6832; Chairman of the Commission on Elections (COMELEC) and the principal sponsor of its Rules of Procedure; Commissioner of the Constitutional Commission (CONCOM) of 1986 which drafted the 1987 Constitution; Assemblyman, Interim Batasang Pambansa representing Region VII, its first Minority Floor Leader; and Delegate, Constitutional Convention (CONCON) representing the 4th District of Cebu. As CONCOM Commissioner, he was the principal author and sponsor of the Article on the Legislative Department of the 1987 Constitution of the Philippines. He authored innumerable amendments to the draft of the Constitution and submitted the most number of resolutions. He was among the three delegates of the CONCON who introduced the most number of reform proposals. As Assemblyman, he filed the most number of bills of national significance and resolutions to lift Martial Law. He sought legislative investigations, especially of cases involving graft and corruption and irregularities in the government, as well as violations of human rights. He authored bills that were subsequently enacted into law, such as those increasing the penalties for white slavery, for corruption of minors, and limiting the periods of preventive detention and restraining orders; bills to repeal oppressive and unjust decrees such as Presidential Decree Nos. 1735, 1834, 1835, 1836 and 1877. He authored major substantial amendments to the 1984 Election Law to provide safeguards for the election process and preserve the sanctity of the ballot, and various amendments to the Dangerous Drugs Act. 8 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

My studies on the matter disclose that debates over the two main components of the UDHR, namely, civil and political rights, or CPR, and ESCR, however, persisted. Even the dichotomy was not spared from controversy as advocates maintained that the same was either deliberate or inadvertent. To cure this divergence, the UDHR was split into two, producing two covenants, namely the International Covenant on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights. Nearly three decades later, the Vienna Declaration and Programme of Action was adopted by member states at the 1993 World Conference on Human Rights held in Vienna, Austria. This instrument, pronouncing all human rights as “universal, indivisible and interdependent and interrelated,” validated the unity, harmony and synthesis of all human rights. Because of the Vienna declaration, we now understand human rights to include both civil and political rights and the broad range of ESCR, as well as the right to development. The Vienna Declaration was a monumental achievement for humankind. It is a testament to hope, to triumph of the human spirit over seemingly insurmountable obstacles that attempted to stunt its growth. There is no gainsaying that while the conference attained global acceptance of and support for the principles embodied in the declaration, the rampant violations of human rights taking place at the time provided a grim counterpoint. Such was – and still is – the reality. But as long as governments and peoples of the world believe in equality unaffected by gender, language, religion or race; as long as you and I act on and work for that belief, hope will soar and ensure a future where our aspirations will be realized. 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 9 FROM THE PERSPECTIVE OF HOPE As members of the Judiciary we have a unique role in realizing economic, social and cultural rights in our country in particular, and, because of the universality of these rights, in the world in general. An enhancement of these rights in our country improves them for the whole world. Their violations in the Philippines impair them in the rest of the world. Courts are the last bulwark in the defense of these rights. And while courts are passive policymakers, laying down rules only when cases are filed before them and only with regard to said cases, it does not mean that judges should wait for such cases to come. As citizens who are naturally looked upon as disciples of truth, right and justice, judges must be pro-active in the defense of human rights. This workshop has taught us to be more conscious of the vast universe of human rights. Each of us has an inherent claim to such basic rights as the right to work, which is necessary for the material well-being of the individual and the development of his personality; the right to just and favorable conditions of work; the right to participate in trade unions; the right to social security, including social insurance; the right to the protection of and assistance to the family, mothers and children; the right to an adequate standard of living; the right to the highest attainable standard of mental and physical health; the right to education and to the promotion and preservation of cultural heritage. Above all, there should be equality in the enjoyment of these rights. We are not without a legal foundation. Even in the absence of the International Convention on ESCR, the constitutions of various nations contain, to a certain degree, provisions on these rights. The Philippine Constitution, for example, in Article II, commits the State to value the dignity of every human person and guarantee full respect for human rights. Article XIII on Social Justice and Human Rights contains provisions pertinent to ESCR. 10 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

I think our Constution is the only Constitution with a solemn commitment to human rights and an article on Human Rights. I am proud to say that as then Commissioner of the Constitutional Commission of 1986, I contributed much to the formulation of these constitutional provisions. Additionally, as we have learned from Justice Quisumbing, Chief Justice Bhagwati, Dr. Quisumbing and Dr. Dias, there is no shortage of decisional authorities on human rights, both persuasive and binding force. The protection of ESCR, therefore, relies not only on legislation. As judges, we have our share of responsibility in the promotion of economic, social and cultural rights. We recognize, however, that the implementation and application of ESCR unavoidably differ among different nations. A random reading of the Declarations and Reservations of the country-signatories to the covenant on ESCR as of 11 June 2001 proves insightful. For example, Algeria reserved its right to freely organize its educational system despite the provisions of the Covenant on the right to education. Madagascar and Zambia sought to postpone the application of the provisions on primary education because their financial conditions could not as yet guarantee the full application of the advocated principles. The United Kingdom believed that the complete application of ESCR could not be guaranteed at present, even as it fully accepted the principle of equal pay to men and women for equal work as enshrined in the Covenant. Sweden, Japan and Denmark entered reservations as regards the provisions on remuneration for public holidays. These are merely the practical implications and complications of implementation and enforcement. Our hope, however, lies in 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 11 FROM THE PERSPECTIVE OF HOPE the commitment of individual nations to work for the immediate realization of ESCR. The mammoth task began years ago and continues today. Our hope lies in the full accomplishment of these seemingly Herculean labors to secure a future where there is absolute and irrevocable peace and security among nations. This should be translated at the national and individual perspectives as the indisputable enjoyment of happiness, life and hearth. That being the case, the right to happiness should likewise be global. Let me slightly digress for a while and relate our longing for global peace and happiness to recent events in America which momentarily overshadowed many global issues, including our domestic concerns. What happened to the World Trade Center and the Pentagon demonstrate not just physical destruction, but much hatred and misunderstanding in the world. The attack was, indeed, an assault on humanity itself. Reckoning American time, it happened on the day you began this workshop. What a mystifying coincidence. After this insensible attack, I hope that the whole world and all people will realize that if we recognize the human rights that we share with others, if we recognize our common humanity, perhaps we can begin to achieve peace. Excerpts from the 1992 report to the UN General Assembly by then UN Secretary-General Boutros-Ghali, are enlightening. The Secretary-General reported, and I quote: Respect for human rights is clearly important in order to maintain international peace and security and to achieve social and economic development. In turn without development, long term enjoyment of human rights will prove illusory…Good governance, democracy, participation, an independent [J]udiciary, the rule of law and civil peace create conditions necessary to economic progress. 12 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Ultimately, man is the centerpiece of these instruments that affirm all human rights and which mandate all nations to respect, honor and observe these rights. But outside any international instrument, apart from any constitution and legislation, man already possesses these rights. It amazes that documents are still necessary to proclaim these inalieanable rights. It boggles that people have to assert and fight for, even at the cost of death, what is inherently theirs. It puzzles that people need institutionalized assistance to ensure that their rights are dutifully protected and observed. It is perplexing that people still need to be enjoined so they can directly and actively participate in the economic, social and political activities of a nation to ensure a quality of life consistent with their aspirations. Under the shadow of these paradoxes, we judges are asked to bring light to everyone’s quest for human rights. We have lit the flame of reason with this three-day workshop. Let us now bear the torch for our countrymen, and, through such service, the world. This brings to mind the Papal Encyclical Gadium et Spes which Pope Paul VI issued on 1 January 1966, the same year when the two covenants were being completed. The encyclical reminds the world that man is created in the image and likeness of God; man’s dignity and rights as a person are derived from God as his Creator; and human institutions must labor to minister to the dignity and purpose of man. I commend the Philippine Judicial Academy, under the leadership of our Chancellor, Madame Justice Ameurfina Melencio Herrera, for pursuing this activity. I thank the United Nations Development Programme, which continues to support judicial reform, and the UN Office of the High Commission for Human Rights, for assisting us in this endeavor. And I thank 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 13 FROM THE PERSPECTIVE OF HOPE our speakers and resource persons, especially Chief Justice Bhagwati, for sharing their vast knowledge on human rights. Lastly, I pray for greater clarity and less confusion, more confidence and less despair, and sustained optimism rather than hopelessness in the future of humanity in the application of economic, social and cultural rights. Thank you and good night. May we all have a safe trip home. God bless us all. Guarantees of ESC Rights in the Philippine Constitution and Laws (Including the Fisheries Code, Agrarian Reform Laws on Mineral and Other Natural Resources)

Atty. Denise Monina F. Uy

I. INTRODUCTION ...... 16 II. RELEVANT CONSIDERATIONS ...... 18 III. RIGHTS PROTECTED ...... 19 A. Right to Work B. Right to Fair Conditions of Employment C. Right to Join and Form Trade Unions D. Right to Social Security E. Right to Protection of the Family 1. Article X, Constitution 2. Section 12, Article II, Constitution 3. The Family as a Basic Social Institution 4. Religious Education and Instruction F. Right to an Adequate Standard of Living, including the Right to Food, Clothing and Housing 1. Article XI, Constitution 2. Urban Land Reform and Housing i. Article XIII, Constitution ii. R.A. No. 7279, Urban Development and Housing Act (UDHA) 3. Rules and Procedure on Eviction and Demolition i. Authorized Eviction or Demolition ii. Section 28, R.A. No. 7279, Implementing Rules and Regulations 2002] GUARANTEES OF ESC RIGHTS IN THE 15 PHILIPPINE CONSTITUTION AND LAWS iii. R.A. No. 7835, Comprehensive and Integrated Shelter Finance Act G. Right to Health 1. Article XII, Constitution 2. Section 11-14, Article XIII, Constitution 3. R.A. No. 7875, National Health Insurance Act of 1995 4. R.A. No. 7160, Local Government Code of 1991 5. Other Relevant Legislation H. Right to Education I. Right to Culture 1. Article XV, Constitution 2. Section 10, Article XIV, Constitution IV. FISHERIES CODE, AGRARIAN REFORM, LAWS ON MINERALS AND OTHER NATURAL RESOURCES ...... 37 A. ESC Rights and Environment 1. General Recognition of Right i. Article XII, Constitution ii. P.D. No. 1151, Philippine Environmental Policy iii. P.D. No. 1586, Environmental Impact Assessment System iv. P.D. No. 1152, Philippine Environmental Code v. P.D. No. 984, Pollution Control Act 2. Environmental Management i. Clean Air ii. Clean Water iii. Land Use Management iv. Management of Toxic Waste B. R.A. No. 8850, The Philippine Fisheries Code of 1998 C. Agrarian Reform 1. Article XIII, Sections 4-8, Constitution 2. R.A. No. 6657, Comprehensive Agrarian Reform Law (CARL) 16 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

3. R.A. No. 6938, The Cooperative Code 4. R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997 D. Other Rights 1. Right to Development 2. Rights of Indigenous Cultural Minorities 3. Right to Self-Determination 4. ESC Rights of Women 5. Rights to Work and Rights at Work E. Other Relevant Legislation 1. R.A. No. 7192, Women in Development and Nation- Building Act 2. P.D. No. 442, as amended, Labor Code of the Philippines 3. Other relevant legislation V. C ONCLUSION ...... 52

I. III. NTRNTRNTRODUCTION

Two important points with respect to a general recognition of the rights covered by the International Covenant on Economic, Social and Cultural Rights (ICESCR) must be made: first, quite a number of these rights are already recognized in the Constitution itself as it will be seen in the latter portion of this paper. Secondly, by virtue of the incorporation clause, generally accepted principles of international law, including the protection of human rights, are incorporated into municipal law. Moreover, international treaties and agreements entered into by the Philippines are transformed or become part of the law of the land (Muyot, p. 11). These contribute much to the guarantees of ESC rights in the country as no less than the fundamental law of the land is involved. However, much of the ESC rights, unlike civil and 2002] GUARANTEES OF ESC RIGHTS IN THE 17 PHILIPPINE CONSTITUTION AND LAWS political rights, are not, as a rule, enforceable by themselves. Legislation implementing these rights is necessary. In a similar vein, Article 2(1) of the ICESCR details the States’ obligation “to take steps…with a view to achieving progressively the full realization of [ESC rights] … by all appropriate means, including, particularly, the adoption of legislative measures.” In its General Comment 3, the Committee on Economic, Social and Cultural Rights (CESCR) states that such legislation is highly desirable and in some cases may even be “indispensable” to the realization of these rights. The Philippines, to its credit, has passed quite a number of laws aimed at protecting and implementing the rights recognized by the Covenant. However, much still has to be done if full protection is to be achieved. In its concluding observations in 1995 with respect to the Philippines, the CESCR “welcomes the fact that some of the rights guaranteed by the Covenant have been reflected in the Constitution and in domestic legislation” and continues to urge the protection of specified rights. Moreover, it has been accurately observed that “the wide array of implementing legislation … betrays an absence of coherence…” Hence, a legislative framework, such as the following, is necessary: a. To provide a more precise, detailed definition of the scope and content of various ESC rights encountered in international instruments and national constitutions; b. To prescribe the exact responsibilities and functions of different spheres of government at the national, provincial and local levels in giving effect to the particular rights; c. To create a coherent and coordinated institutional framework for the delivery of the rights; 18THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

d. To prevent and prohibit actions by public officials and private parties (e.g., landlords, employers, corporations, etc.) that curtail the enjoyment of ESC rights; and e. To ensure provision of specific remedies to redress violations of a right. The subject of this paper cannot obviously be thoroughly covered by a short paper such as that required for this Workshop. What is proposed to be done here within such a limited space are the following: a. Give a very brief overview of existing relevant legislation in order to provide the participants with an idea of the present situation; b. Provide a list of relevant considerations which could be used in evaluating such laws vis-à-vis international standards; c. Point out possibilities for judges to partake in the guarantees of ESC rights which commonly is thought to be programmatic at the very least and, at best, the executive and legislative branches’ responsibilities.

II. RELEVANT CONSIDERATIONS

Admittedly, notwithstanding efforts to protect ESC rights by enacting relevant legislation, violations of the rights still prevail. In cases where such protection appears adequate, not everyone enjoys it. In the evaluation of legislation involving ESC rights, the following factors may be taken into consideration in order to remedy this unfortunate reality: a. Whether a particular right is guaranteed at all; 2002] GUARANTEES OF ESC RIGHTS IN THE 19 PHILIPPINE CONSTITUTION AND LAWS b. If the answer is in the affirmative, what is the actual legislative formulation and does it differ from that contained in the ICESCR; c. Whether guarantees of a certain right provided by legislation and their interpretation by State authorities ensure the same scope and content of the rights as in the ICESCR; d. Whether restrictions of the right envisaged by legislation correspond to those permitted by the ICESCR; e. Whether or not effective legal remedies exist for the protection of the right/s in question; f. Whether standards in legislation are specific enough for a judge to be able to resolve a controversy arising from such legislation.

III. RIGHTS PROTECTED

The rights to be protected include, broadly, the right to work (Art. 6), the right to fair conditions of employment (Art. 7), the right to join and form trade unions (Art. 8), the right to social security (Art. 9), the right to protection of the family (Art. 10), the right to an adequate standard of living, including the right to food, clothing and housing (Art. 11), the right to health (Art. 12), the right to education (Art. 13), and the right to culture (Art. 15).

A. Right to Work

Article 6 of the Covenant recognizes the right to work, “which includes the right of everyone to the opportunity to gain his 20THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 living by work which he freely chooses or accepts.” It likewise mandates that appropriate steps to safeguard this right be taken by the State. The steps to be taken shall include “technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development, and, full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”

B. Right to Fair Conditions of Employment

Article 7 of the Covenant recognizes the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular: 1. Remuneration which provides all workers, as a minimum, with: i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men with equal pay for equal work; ii. A decent living for themselves and their families in accordance with the provisions of the present Covenant; 2. Safe and healthy working conditions; 3. Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; 2002] GUARANTEES OF ESC RIGHTS IN THE 21 PHILIPPINE CONSTITUTION AND LAWS 4. Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

C. Right to Join and Form Trade Unions

Under Article 8, States Parties undertake to ensure: 1. The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; 2. The right of trade unions to establish national federations or confederations, and the right of the latter to form or join international trade-union organizations; 3. The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; 4. The right to strike, provided that it is exercised in conformity with the laws of the particular country. However, according to the second paragraph, Article 8 shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 22THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

To guarantee protection for labor, the Philippine Constitution provides that: The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They may also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable return of investments, and to expansion and growth. (Article XIII, Section 3) In order to enforce and enhance these policies, the Labor Code contains provisions on protection of labor, promoting full employment, ensuring equal work opportunities, regardless of sex, race or creed, regulating relations between workers and employers, assuring the rights to self-organization, collective bargaining, security of tenure, and just and humane conditions of work, including minimum wages. 2002] GUARANTEES OF ESC RIGHTS IN THE 23 PHILIPPINE CONSTITUTION AND LAWS In relation, Article 10 (3) of the Covenant provides: Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labor should be prohibited and punishable by law. To honor its commitment, the following local laws exist: R.A. 7658 (Act Prohibiting the Employment of Children Below 15 Years Old) and R.A. 7610 (Special Protection Against Child Abuse). Another vulnerable group denied rights at work is migrant workers. Domestic legislation aimed at protecting these workers is R.A. 8042 (Migrant Workers and Overseas Filipinos Act). Other relevant legislation: 1. R.A. 7655 (Increasing the Minimum Salaries of Domestic Helpers); 2. R.A. 8282 extends to domestic helpers benefits of the Social Security Law; 3. Articles 1689 to 1995 of the Civil Code also grants protection to them.

D... Right to Social Security

The States Parties recognize in Article 9 the right of everyone to social security which includes social insurance. 24THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

The Social Security Act, R.A. No. 1161, as amended, was established in the Philippines for the benefit of employees and laborers. The legislative policy of the Social Security System is to provide social security, which means funds of the beneficiary, if the employee dies, or for the employee himself and his dependents if he is unable to perform his task because of illness or disability, or is laid off by reason of termination of the employment, or because of temporary lay-off due to strike. Likewise relevant are: 1. R.A. 8425 which creates the National Poverty Commission to pursue the Social Reform Agenda; 2. R.A. 8282, the Social Security Act of 1997 which increases the coverage of the Social Security Law.

E. Right to Protection of the Family

1. Article X, Constitution

Under Article X, States Parties recognize that: i. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of the society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. ii. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period, working mothers should be accorded paid leave or leave with adequate social security benefits. 2002] GUARANTEES OF ESC RIGHTS IN THE 25 PHILIPPINE CONSTITUTION AND LAWS iii. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labor should be prohibited and punishable by law.

2. Section 12, Article II, Constitution

The Philippine Constitution declares as one of its state policies that: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural primary right and duty of parents in the rearing of the youth for civic efficiency and development of moral character shall receive support of the Government. The policy is reiterated in detail in Article XV, Sections 1 and 2 of the said Constitution, which state that: i. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. ii. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. 26THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

3. The Family as a Basic Social Institution

The Civil Code of the Philippines contains several provisions that promote and preserve the family as the basic social institution. (e.g., Article 218 of the Civil Code and Article 149 of the Family Code).

4. Religious Education and Instruction

The State also gives the right of parents or guardians the teaching of religion of their choice to their children (Article XIV, Section 3(3), Constitution). This aforesaid provision is in consonance with the natural and primary rights and duty of parents in the rearing of the youth for civic efficiency and the development of moral character which shall secure the support of the government (Article II, Section 12, Constitution).

F... Right to an Adequate Standard of Living, including the Right to Food, Clothing and Housing

1. Article X1, Constitution

i. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. 2002] GUARANTEES OF ESC RIGHTS IN THE 27 PHILIPPINE CONSTITUTION AND LAWS ii. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed: a. To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition, and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; b. Taking into account the problems of both food- importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

2. Urban Land Reform and Housing

i. Article XIII of the 1987 Constitution: Social Justice and Human Rights

Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the public sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. 28THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Section 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban and rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.

ii. Republic Act No. 7279, Urban Development and Housing Act (UDHA)

The UDHA aims to: a. Make available to underprivileged and homeless citizens decent housing at affordable cost; b. Provide for rational use and development of urban land; c. Regulate and direct urban growth and expansion towards a dispersed urban net and more balanced urban-rural interdependence; d. Provide for an equitable land tenure system that shall guarantee security of tenure to program beneficiaries, but shall respect the rights of small property owners and ensure the payment of just compensation; e. Encourage more effective people’s participation in the urban development process; and f. Improve the capability of local government units in undertaking urban development and housing programs and projects. 2002] GUARANTEES OF ESC RIGHTS IN THE 29 PHILIPPINE CONSTITUTION AND LAWS 3. Rules and Procedure on Eviction and Demolition

i. Authorized Eviction or Demolition

The law discourages demolition as a practice. Eviction or demolition may be allowed only when: a. Persons/entities occupy danger areas; b. Persons/entities occupy public places; c. Place occupied is a government infrastructure project site; d. There is a court order for eviction or demolition; e. Construction falls under the category: new illegal structure (construction after March 29, 1992); f. Structure belongs to a professional squatter or a member of a squatting syndicate.

ii. Section 28, UDHA, Implementing Rules and Regulations

In the execution of eviction or demolition involving underprivileged and homeless citizens, the following are mandatory: a. 30-day notice: • Adequate consultation; • Only during office hours and good weather; • Presence of LGU officials; • All those participating in demolitions must have proper ID; 30THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

• The Philippine National Police shall be in proper uniform (their task is not to demolish but for law enforcement and disturbance control only).

b. Heavy equipment shall not be used except for concrete structures.

iii. Republic Act No. 7835, Comprehensive and Integrated Shelter Finance Act

Increasing and regularising yearly appropriation of the major components of the national shelter program. It consists of the following major components programs: a. Resettlement Program b. Medium-Rise Public and Private Housing c. Community Mortgage Program d. Cost-Recoverable Programs e. Local Housing Program

G. Right to Health

1. Article XII, Constitution

Article XII recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. According to this article, the steps to be taken to achieve the full realization of this right shall include those necessary for: a. The provision for the reduction of the stillbirth-rate and infant mortality, and for the healthy development of the child; 2002] GUARANTEES OF ESC RIGHTS IN THE 31 PHILIPPINE CONSTITUTION AND LAWS b. The improvement of all aspects of environmental and industrial hygiene; c. The prevention, treatment and control of epidemic, endemic, occupational and other diseases; d. The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

2. Article XIII, Sections 11-14, Constitution

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country’s health needs and problems. Section 13. The State shall establish a special agency for disabled persons for rehabilitation, self-development and self-reliance, and their integration into the mainstream of society. Section 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. 32THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

3. Republic Act No. 7875, National Health Insurance Act of 1995

Objectives of the Act: i. To provide all citizens of the Philippines with the mechanism to gain financial access to health care services; ii. To create the National Health Insurance Program that will administer the Program at central and local levels.

4. Republic Act No. 7160, Local Government Code of 1991

The Local Government Code provides local administration and regulation of health services to render as feasible and workable the availability of health services at affordable cost. Title V of the Act mandates the formation of local health boards in every province, city or municipality, which shall have the following functions: i. To propose to the Sanggunian concerned, in accordance with standards and criteria set by the Department of Health, annual budgetary allocations for the operation and maintenance of health facilities and services with the municipality, city or province, as the case may be; ii. To serve as an advisory committee to the Sanggunian concerned on health matters such as, but not limited to, the necessity for, and application of, local appropriations for public health purposes; and iii. Consistent with the technical and administrative standards of the Department of Health, create committees which 2002] GUARANTEES OF ESC RIGHTS IN THE 33 PHILIPPINE CONSTITUTION AND LAWS shall advise local health agencies on matters such as, but not limited to, personnel selection and promotion, bids and awards, grievance and complaints, personnel discipline, budget review, operations review and similar functions (Section 102).

5. Other relevant legislation:

i. R.A. 8503, Health Research Act ii. R.A. 8344 penalizes hospital or clinics refusing medical treatment or confinement due to non-payment of deposit; iii. R.A. 1082, strengthening dental and health services in rural area; iv. R.A. 1798, establishing island emergency hospitals; v. R.A. 6615, requiring hospitals to extend medical assistance in emergency cases; vi. R.A. 7307, Magna Carta of Health Workers; vii. R.A. 7600, provides incentives to all government and health institution with roaming-in and breastfeeding practices.

H. Right to Education

Under Article 13, States Parties recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and 34THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. They likewise recognize that, with a view to achieving the full realization of this right: 1. Primary education shall be compulsory and available free to all; 2. Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; 3. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; 4. Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; 5. The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. Thirdly, under this article, States Parties undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid or approved by the State and to ensure the religious and moral education of their children in conformity with 2002] GUARANTEES OF ESC RIGHTS IN THE 35 PHILIPPINE CONSTITUTION AND LAWS their own convictions. With respect to compulsory primary education, Article 14 additionally provides that each State Party which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all. The Philippine Constitution provides more in detail the obligations of the State to protect and promote the right of all citizens to quality education at all levels; take appropriate steps to make such education accessible to all; establish and maintain a system of free public education in the elementary and high school levels establish and maintain a system of scholarship grants, student loan programs, subsidies and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; encourage no-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and, provide adult citizens, the disabled, and out-of-school youths with training in civics, vocational efficiency, and other skills. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age (Article XIV, Sections 1-2).

The Philippines has enacted several laws to implement this provision concerning the right to education: 36THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

1. R.A. 8190, establishing, in every barangay, access to education; 2. R.A. 8525, Adopt A School Act; 3. R.A. 2896, Elementary Education Act; 4. R.A. 4090, Providing State Scholarships in Science and Arts for the Poor; 5. R.A. 6054, The Barrio High School Charter; 6. R.A. 6050, Providing for Free Public Secondary Education; 7. R.A. 411, Establishing Municipal Libraries; 8. R.A. 3562, Promotion of Education of the Blind.

I. Right to Culture

1. Lastly, Article XV provides: i. The States Parties to the present Covenant recognize the right of everyone, i.e., any literary or artistic production of which he is the author. ii. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development, and the diffusion of science and culture. iii. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. iv. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields. 2002] GUARANTEES OF ESC RIGHTS IN THE 37 PHILIPPINE CONSTITUTION AND LAWS 2. Article XIV, Section 10 of the Constitution provides:

The State shall give priority to research and development, invention, innovation, and their utilization. The Constitution likewise mandates that the State shall provide: Incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and especially gifted citizens.” (Article XIV, Section 11) Moreover: The State shall regulate the transfer of technology to protect and secure the exclusive rights of citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as may be provided by law. (Article XIV, Sections 12-13)

IV. FISHERIES CODE, AGRARIAN REFORM,,, LAWS ON MINERALS AND OTHER NATURAL RESOURCES

A. ESC Rights and Environment

1. General Recognition of Right

i. Article XII, Constitution – Right to Health. To achieve full realization of this right, the States are mandated to improve all aspects of environmental and industrial hygiene (ICESCR). 38THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

While the Covenant posits that the right to a clean and healthful environment is only a derivative right to the right to health, the Philippine Constitution clearly recognizes it as an independent right. Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. In fact the Supreme Court has recognized that this right is inherent and need not be legislated. Such right gives rise to a correlative duty on the part of government to “refrain from acts impairing the environment.” While the Covenant limits the right to the rights of the individual, international law as well as Philippine jurisprudence clearly recognize that the right to a clean and healthful environment belongs to the present generation and the future generation. In fact, in the same case of Oposa v. Factoran, the Supreme Court declared that the petitioners could represent the rights of unborn children to a clean and healthful environment.

ii. P.D. No. 1151 Even prior to the 1987 Constitution, the right to a clean and healthful environment has already been recognized under P.D. 1151. Section 3. Right to a Healthy Environment – In furtherance of these goals and policies, the Government recognizes the right of the people to a healthy environment. It shall be the duty and responsibility of each individual to contribute to the preservation and enhancement of the Philippine environment. 2002] GUARANTEES OF ESC RIGHTS IN THE 39 PHILIPPINE CONSTITUTION AND LAWS P.D. 1151 enshrines the Philippine Environment Policy, namely: a. To create, develop, maintain, and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; b. To fulfill the social, economic and other requirements of present and future generations of Filipino; and c. To insure the attainment of an environmental quality that is conducive to a life of dignity and well-being (Section 2).

iii. P.D. No. 1586, Environmental Impact Assessment System In order to implement this right, P.D. 1586 implemented the Environmental Impact Assessment System. This law is implemented by DENR Administrative Order No. 96-41. All environmentally critical projects and projects conducted within environmentally critical areas are required to procure an Environmental Compliance Certificate (ECC).

iv. P.D. No. 1152, Philippine Environmental Code The Philippine Environmental Code, P.D. 1152, divides environmental management into management of air quality, water quality and land use.

v. A general prohibition against pollution has been enacted in P.D. 984: No person shall throw, run, drain, or otherwise dispose into any of the water, air and/or land resources of the Philippines, or cause, permit, suffer 40THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

to be thrown, run, drain, allow to seep or otherwise dispose thereto any organic or inorganic matter or any substance in gaseous or liquid form that shall cause pollution thereof.

2. Environmental Management

Specific legislation have also been enacted on these areas of environmental management.

i. Clean Air Philippine Clean Air Act – The Philippine Clean Air Act uses a holistic approach in managing air pollution and attempts to control both stationary and non-stationary sources of air pollution. The law also introduces new approaches of environmental management such as the use of economic instruments. The law introduces an emission charge system which seeks to encourage polluters to reduce pollution by making it more costly to pollute. Section 2 of the Clean Air Act recognizes the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Section 4 enumerates derivative rights pursuant to the right to a balanced and healthful ecology. These include: a. The right to breathe clean air; b. The right to utilize and enjoy all natural resources according to the principles of sustainable development; 2002] GUARANTEES OF ESC RIGHTS IN THE 41 PHILIPPINE CONSTITUTION AND LAWS c. The right to participate in the formulation, planning, implementation and monitoring of environmental policies and programs and in the decision-making process; d. The right to participate in the decision-making process concerning development policies, plans and programs, projects or activities that may have adverse impact on the environment and public health; e. The right to be informed of the nature and extent of the potential hazard of any activity, undertaking or project, to serve timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances; f. The right to access to public records which a citizen may need to exercise his or her rights effectively under this Act; g. The right to bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area, and to seek the imposition of penal sanctions against violators of environmental laws; and h. The right to bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity. See also: DENR ADMINISTRATIVE ORDER NO. 81-00 (Implementing Rules and Regulations of R.A. 8749). 42THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

ii. Clean Water Marine pollution from all sources is prohibited under P.D. 979. Aquatic pollution, on the other hand, is prohibited under Section 102 of R.A. 8550 (Philippine Fisheries Code of 1998). The law defines aquatic pollution as: ...the introduction by human or machine, directly or indirectly, of substances or energy to the aquatic environment which result or is likely to result in such deleterious effects as to harm living and non- living aquatic resources, pose potential and/or real hazard to human health, hindrance to aquatic activities such as fishing and navigation, including dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum carbonaceous materials/substances, and other, radioactive, noxious or harmful liquid, gaseous or solid substances, from any water, land or air transport or other human-made structure. Deforestation, unsound agricultural practices such as the use of banned chemicals and excessive use of chemicals, intensive use of artificial fish feed, and wetland conversion, which cause similar hazards and deleterious effects shall also constitute aquatic pollution (Section 4.4).

iii. Land Use Management Section 4, Article XII of the 1987 Constitution mandates Congress to define, by law, the specific limits of forest lands and national parks, making clearly their boundaries on the ground. Thereafter, such forestlands and national parks shall be conserved and may neither be increased nor diminished, except by law. The Congress shall provide 2002] GUARANTEES OF ESC RIGHTS IN THE 43 PHILIPPINE CONSTITUTION AND LAWS for such period as it may determine measures to prohibit logging in endangered forests and watershed areas. Presidential Decree 705, Forestry Code, contains the specific rules on forestry management. Congress has also enacted R.A. 7586, National Integrated Protected Area System. Recognizing that the right to a clean and healthful environment is a right not only of the present generation but of future generations as well, it has become imperative to protect and maintain the natural biological and physical diversities of the environment notably on areas with biologically unique features to sustain human life and development, as well as plant and animal life. The National Integrated Protected Areas Systems (NIPAS) is the classification and administration of all designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible.

iv. Management of Toxic Waste Republic Act 6969 and its implementing rules regulate, restrict or prohibit the importation, manufacture, processing, sale, distribution, use and disposal of chemical substances and mixtures that present unreasonable risk and/or injury to health of the environment. It further prohibits the entry, even in transit, of hazardous and nuclear wastes and their disposal into the Philippine territorial limits for whatever purpose; and to provide advancement and facilitate research and studies on toxic chemicals. 44THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

B. Republic Act No. 8550, The Philippine Fisheries Code of 1998

Section 2 provides: It is hereby declared the policy of the State: 1. To achieve food security as the overriding consideration in the utilization, management, development, conservation and protection of fishery resources in order to provide the food needs of the population. A flexible policy towards the attainment of food security shall be adopted in response to changes in demographic trends for fish, emerging trends in the trade of fish and other aquatic products in domestic and international markets, and the law of supply and demand; 2. To limit access to the fishery and aquatic resources of the Philippines for the exclusive use and enjoyment of Filipino citizens; 3. To ensure the rational and sustainable development, management and conservation of the fishery and aquatic resources in Philippine waters including the Exclusive Economic Zone (EEZ) and in the adjacent high seas, consistent with the primordial objective of maintaining a sound ecological balance, protecting and enhancing the quality of the environment; 4. To protect the rights of fisherfolk, especially of the local communities with priority to municipal fisherfolk, in the preferential use of the municipal waters. Such preferential use, shall be based on, but not limited to, Maximum Sustainable Yield (MSY) or Total Allowable Catch (TAC), on the basis of resources and ecological conditions, and shall be consistent with [the country’s] commitments under international treaties and agreements; 2002] GUARANTEES OF ESC RIGHTS IN THE 45 PHILIPPINE CONSTITUTION AND LAWS 5. To provide support to the fishery sector, primarily to the municipal fisherfolk, including women and youth sectors, through appropriate technology and research, adequate financial production, construction of post-harvest facilities, marketing assistance, and other services. The protection of municipal fisherfolk against foreign intrusion shall extend to offshore fishing grounds. Fishworkers shall receive a just share for their labor in the utilization of marine and fishery resources; 6. To manage fishery and aquatic resources, in a manner consistent with the concept of an integrated coastal area management in specific natural fishery management areas, appropriately supported by research, technical services and guidance provided by the State; and 7. To grant the private sector the privilege to utilize fishery resources under the basic concept that the grantee, licensee or permittee thereof shall not only be a privileged beneficiary of the State, but also active participant and partner of the Government in the sustainable development, management, conservation and protection of the fishery and aquatic resources of the country. The State shall ensure the attainment of the following objectives of the fishery sector: 1. Conservation, protection and sustained management of the country’s fishery and aquatic resources; 2. Poverty alleviation and the provision of supplementary livelihood among municipal fisherfolk; 3. Improvement of productivity of aquaculture with ecological limits; 46THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

4. Optimal utilization of offshore and deep-sea resources; 5. Upgrading of post-harvest technology.

C. Agrarian Reform

1. Article XIII, Sections 4-8, 1987 Constitution: Social Justice and Human Rights Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land sharing. Section 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’ organizations to participate in the planning, organization and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services. Section 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession 2002] GUARANTEES OF ESC RIGHTS IN THE 47 PHILIPPINE CONSTITUTION AND LAWS suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. Section 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.

2. Republic Act No. 6657, Comprehensive Agrarian Reform Law

The law seeks to enforce the land to the tillers policy of the basic Charter where the welfare of the landless farmers and farmworkers will receive the highest consideration to promote social justice and to move the nation toward sound rural development and 48THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 industrialization through a more equitable distribution and ownership of land, with due regard to the rights of the landowners to just compensation. Other relevant legislation: i. R.A. 6982, An Act Strengthening the Social Amelioration Program in Sugar Industry ii. R.A. 7607, Magna Carta of Small Farmers iii. R.A. 7905, Strengthening the Program of the Comprehensive Agrarian Reform

3. Republic Act No. 6938, The Cooperative Code

Designed to further the protection and enhancement of rights of farmers and farmworkers, fishermen and fishworkers, as embodied in the Constitution, through the following: i. To develop an appropriate system of land tenure, development, consolidation; ii. To facilitate dissemination of scientific methods of production, storage, transport, and marketing of farm products; iii. Provide financial facilities to beneficiaries; iv. Facilitate transfer of appropriate technology to beneficiaries; v Provide social security benefits, health, medical and social assurance benefits and other social and economic benefits that promote the general welfare of the beneficiaries; vi. Provide for non-formal education, vocational/technical training, and livelihood programs to beneficiaries; 2002] GUARANTEES OF ESC RIGHTS IN THE 49 PHILIPPINE CONSTITUTION AND LAWS vii. Act as channels for external assistance and services to the beneficiaries; viii. Undertake comprehensive and integrated development program in agrarian reform and resettlement areas with special concern for the development of agro-based, marine-based and cottage-based industries; ix. Represent the beneficiaries on any or all matters that effect their interest; x. Undertake such other economic or social activities as may be necessary or incidental in the pursuit of the foregoing.

4. Republic Act No. 8435, Agriculture and Fisheries Modernization Act of 1997

Section 2 of the Act provides the policies by which it was enacted. It is emphasized among the declared policies of the Act that agricultural development and agrarian reform shall be used as vehicles to achieve industrialization and full employment “through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets.” Hence its support to agriculture and fisheries.

D... Other Rights

1. Right to Development

Right to development is for participation, contribution and enjoyment of economic, social and political rights by the people. 50THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. Rights of Indigenous Cultural Communities

They are descendants of the original inhabitants of many lands, strikingly varied in their cultures, religions and patterns of social and economic organizations. (See Article XIV, Section 17, Philippine Constitution; R.A. 8371, An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, appropriating funds therefor, and for other purposes.)

3. Right to Self-Determination

Right of the people to determine their political, economic and social development status (See Art. 1, Economic, Social and Cultural Rights; Article II, par. 7, Philippine Constitution). The people have the right to freely determine their political status and pursue their economic, social and cultural development.

4. ESC Rights of Women

The United Nations Development Programme’s Human Development Report (1993) highlighted various areas in which women fare worse than men in accessing as well as enjoying ESC entitlements. Applying a gender-perspective would change the manner in which ESC rights are articulated and consequently non-discriminatory against women.

5. Right to Work and Rights at Work

Article XIII, Section 14, Philippine Constitution. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that 2002] GUARANTEES OF ESC RIGHTS IN THE 51 PHILIPPINE CONSTITUTION AND LAWS will enhance their welfare and enable them to realize their full potential in the service of the nation.

Article II, Section 14, Philippine Constitution. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

E. Other Relevant Legislation

1. R.A. 7192, Women in Development and Nation-Building Act

The Act levels the playing field between men and women especially where women have been and still are accorded rights inferior to those of men. The Act recognizes equality of roles that merit equality of rights as well.

2. P.D. 442, as amended, Labor Code of the Philippines

The Labor Code contains provisions giving special protection to women workers given the problems they particularly face, and outlawing various forms of discrimination and against them such as those covering health and night work prohibition.

3. Other relevant legislation:

i. R.A. 8369, Family Courts Act of 1997 ii. R.A. 8505, Rape Victim Assistance and Protection Act of 1998 iii. R.A. 8551, Philippine National Police Reform and Reorganization Act of 1998 52THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

iv. R.A. 6955, Outlawing Mail Order Brides v. R.A. 7877, Anti-Sexual Harassment Law

V. CONCLUSION

Although this paper was to be limited to guarantees of ESC rights in the Constitution and domestic law, it cannot be denied that guarantees would be empty without their being enforced in courts. When we speak of genuine guarantees, then the Judiciary’s role is inevitable. “It should be kept in mind that only effective domestic protection can ensure the observance of internationally recognized rights.” (Martin Abregu, “La aplicacion del derecho internacional de los derechos humanos por los tribunales locales: Una introduccion,” cited in Circle of Rights, p. 421). Domestic protection cannot be assured without the Judiciary, which is the ultimate guarantor of rights. Therefore, the effective protection/ guarantee of ESC rights requires that necessary mechanisms be put into place or adopted to carry out the obligations signed by the States. “… Nonetheless, in the face of non-performance, whether total or partial, it is the justice system that should set in motion the machinery to guarantee the enjoyment of the right, both because under domestic law the Judiciary is the ultimate guarantor of person’s rights, and because it is the Judiciary that has the responsibility for incorporating the international rules to the domestic legal system.” (Juan Mendez, “El derecho a la verdad frente a las graves violaciones a los derechos humanos.” Cited in Circle of Rights, p. 421) From the laws themselves and the Constitution, the role of the Judiciary is spelled out. That is, judicial remedies are provided 2002] GUARANTEES OF ESC RIGHTS IN THE 53 PHILIPPINE CONSTITUTION AND LAWS for and hence there is clear basis for court action. However, it is important to point out that even in instances where they may be no clear cut authority in legislation, it does not necessarily mean that courts would then have no role in guaranteeing ESC rights. From a survey of precedent setting cases from both here and other jurisdictions, it is clear that judicially creative and human rights sensitive domestic courts have been enforcing, that is helping guarantee, ESC rights. Strategies adopted by these courts have mostly been deriving state obligations for ESC rights from civil and political rights such as the right to life, the principle of non-discrimination, the concept of indivisibility of rights, the concept of non-regression in the enjoyment of ESC rights, the guarantee of due process, interpreting national constitutional and legal guarantees using international standards where such national guarantees may be vague in their coverage, and even using precedents from courts in other countries.

SOURCES: • Circle of Rights, Economic, Social and Cultural Rights Activism: A Training Resource (International Human Rights Internship Program and Asian Forum for Human Rights and Development). • Muyot, Albert T., Philippine Law and Jurisprudence on Human RightsRights, Institute of Human Rights, University of the Philippines Law Center. • Coquia, Jorge R., Compendium of Laws, Treaties and Court Decisions on Human Rights – A Digest of Constitutional, Statutory and Treaty Provisions, and Court Decisions as Guides for Human Rights Workersers, Commission on Human Rights. • Concluding Observations on the Philippines of the Committee on Economic, Social and Cultural Rights (7 June 1995); U.N. Doc. E/C.12/1995/7 (1995). The Development of Administrative Law in the Philippines Relative to Economic, Social and Cultural Rights∗

Dr. Pacifico A. Agabin∗∗

I. ESC RIGHTS AND THE ADMINISTRATIVE PROCESS ...... 55 II. POLITICAL POWER AND THE W ELFARE STATE ...... 59 III. WELFARE LEGISLATION AND THE UPSURGE OF ADMINISTRATIVE LAW ...... 63 IV. A CASE STUDY: AGRARIAN REFORM AND THE COURT OF AGRARIAN RELATIONS ...... 66 V. C ONCLUSION ...... 72

∗ Delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 13, 2001, at PHILJA, Tagaytay City. ∗∗ Dr. Pacifico A. Agabin became a member of the Philippine Bar in 1960 after having placed thirteenth in the Bar Examinations of that year. He then went on to graduate school and in 1965 earned his Master of Laws degree with specialization in Constitutional Law from Yale Law School. The same institution granted him the Doctor of Science of Jurisprudence degree two years later, again in Constitutional Law. He has been in private practice as he has been in the academe. From 1989 to 1995 he was Dean of the U.P. College of Law. He was Editor of the Republic of the Philippines Digest in 17 volumes and of Philippine Annotated Laws in 4 volumes. He has written extensively for different law publications. He chairs PHILJA’s Department of Constitutional Law. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 55 IN THE PHILIPPINES RELATIVE TO ESCR

I. ESC RIGHTS AND THE ADMINISTRATIVE PROCESS Some time in 1936, a laborer was riding a raft of logs, which was being transported to Manila Bay by floating these down the Pasig River, when one of the logs broke away. His immediate boss, who was riding with him, ordered the laborer to jump into the rampaging river to salvage the breakaway log. As if by reflex, the laborer jumped into the flooded river but as he swam towards the log, he drowned. When his heirs claimed for workmen’s compensation, the trial court denied compensation based on traditional tort principles, the court citing assumption of risk and contributory negligence in denying compensation. The decision was affirmed by the Court of Appeals.1 When the decision was made public, the President of the Philippines assailed the judges for their “sixteenth century minds” and “for safeguarding the interests of the wealthy.”2 The President also blamed the lawyers for “trampling down on human rights in defending property interests.”3 The President’s tirades against the Bar and the Bench was met with counter-criticism from the Bar and the public,4 but from the more enlightened section of the legal profession came a call for judicial statesmanship on the part of the Judiciary and for a new look at the outmoded techniques of judicial reasoning. The President of the University of the Philippines, Jorge Bocobo, called for a “socialization of the law” and urged the courts to respond to the throb of present-day society, what he called “the

1. Philippines Herald, September 22, 1937. 2. Ibid. 3. Ibid. 4. Manila Daily Bulletin, September 24, 1937. 56 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 tremendous struggles for readjustment and the restless longings of the masses for a decent living.”5 The President of the constitutional convention, Senator Claro M. Recto, observed that the protection of property rights has been made subordinate to the supreme interests and well-being of the nation, and he urged the implementation in concrete cases of this principle.6 But it was President Quezon himself who pointed out the way for judicial statesmanship if the principle of social justice is to be given substance. He said: …social justice cannot be achieved by constitutional enactments alone. We must radically revise our concept of private property by emphasizing the social responsibilities of wealth. We must indoctrinate every citizen with the ethical principle that he is his brother’s keeper.7 Despite these admonitions, the shift in judicial thought on property rights was imperceptible. Gripped by the clutches of stare decisis, the Judiciary persisted in its old habits of thought and failed to disengage itself from the moorings of orthodox legal doctrines. Notwithstanding the radical provisions of the 1935 Constitution on social justice and protection of labor,8 the courts did not use the approach and the same arguments in traditional civil law claims and thus defeated the spirit behind

5. Bocobo, “Unfettering the Judiciary,” 6 Lawyers Journal 97 (1938), 98. 6. Recto, “The Philippine Constitution,” 6 Lawyers Journal 255 (1938), 256. 7. Quezon, Speech at the University of the Philippines, April 1, 1939, in 7 Lawyers Journal 341 (1939). 8. The 1935 Constitution provided that “the promotion of social justice to insure the well-being of an economic security of all people should be the concern of the State” (Art. II, Sec. 5). 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 57 IN THE PHILIPPINES RELATIVE TO ESCR the social justice provisions of the Constitution. If the claim, however, had been filed with an administrative agency, the Workmen’s Compensation Commission, then it could have been decided under the Workmen’s Compensation Act 3428, which made compensable all accidental injury “arising out and in the course of employment.” The Workmen’s Compensation Act is but an illustration of how the administrative process has been used as an instrument not only for redesigning the economic system, but also to effect a shift in decisional technique from the judicial passive method to the administrative active method. This change of administering workmen’s compensation from the courts to an administrative commission brought about a change in the technique of making decisions to enforce the economic rights of the weaker party in an economic relationship where the status quo is tilted in favor of the dominant party. Administrative commissions are different from the regular courts in the sense that the latter are bodies of general jurisdiction with the breadth of vision and general impartiality of a broad- minded liberal, while the former have specialized knowledge, sympathy, and the potential intolerance of a narrow-minded expert. While the judges are passive laidback characters who would wait for the lawyers to introduce evidence favorable to their clients, administrative commissioners are active, evidence-seeking advocates who are highly specialized in a given field who can give meaning and substance to economic and social rights guaranteed by the Constitution. Adjudication is just a secondary

It also empowered the State to “afford protection to labor, especially to working women and minors, and shall regulate the relations between landowner and tenant, and between labor and capital in industry and agriculture” (Art. XIV, Sec. 6). 58 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 function of administrative agencies; their principal function is regulation and administration. This is done through licensing, rule-making, investigation and prosecution, taxation, eminent domain, and other provisional and summary powers. It has been said that the lifeblood of administrative process is the flow of fact, the gathering, organization and analysis of evidence out of which relevant material may be drawn for purposes of recommendation for regulation, or of formulation of a policy for administration or adjudication.9 The preservation and protection of economic, social, and cultural rights in a positive way has been achieved largely through the creation of administrative agencies. It is necessary that these specialized agencies be created because economic, social and cultural rights are unlike political and civil rights. While the latter category of rights require only restraint on the part of the State, ESC rights can be enforced only through immediate State action or only after economic and social programs had been carried out by governmental bodies or agencies. In short, ESC rights are “programmatic” in character; to be enforceable, they require expenditure of State resources as well as positive programs to be pursued by highly specialized administrative agencies. The institutionalization of ESC rights by means of legislation, by establishment of administrative agencies, the expenditure of State resources, and the regulation of private economic power and adjudication of demandable rights and obligations, constitute the core of what we know as administrative law. While there are ESC rights which do not necessarily require State action or creation of administrative agencies, these are the exceptions rather than the rule.

9. Jaffe and Nathanson, Administrative Law: Cases and Materials (4th ed.), p. 26. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 59 IN THE PHILIPPINES RELATIVE TO ESCR That is why the enforcement of ESC rights in a developing country like the Philippines is a big problem, because most of these rights require the attainment of a particular stage of economic and social development. The right to take part in the cultural life of a community, the right to a decent living wage, the right to partake of the benefits of scientific and technological advancement, the right to benefit from any literary or artistic production of which one is the author, require a developed economy, a cultural life that is common to the community, and a highly integrated social existence in the body politic. In Third World countries like the Philippines, where State resources are so limited, where the ruling class is a tiny oligarchy set up by the colonial administrators and which sits atop a mass of poverty- stricken and teeming humanity, the immediate enforcement of ESC rights enumerated in the Constitution is much more than legal fiction. It is, to use Justice Jackson’ metaphor, a “munificent bequest in a pauper’s will.” We will undertake a case study of how economic rights which have been bequeathed to our masses have been enforced, first, through the passage of social welfare legislation, through police power and, later, through the creation of administrative agencies which gave substance to such economic rights. Needless to say, this has been achieved through the political power of mass democracy and the confluence of social, political, and economic developments.

II. POLITICAL POWER AND THE WELFARE STATE

The advent of the welfare state, like that in other countries of the world, came in the wake of the economic crisis in the US in the early 1930s. It came from a realization of the fact that the 60 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 dominant philosophy of laissez faire may not, after all, be the panacea to all the economic ills of the country. Thus, when the U.S. underwent economic crisis in the early thirties, people’s faith in the free market system and in the dynamism of the entrepreneurial class declined to such an extent that, by the time the framers of the Philippine Constitution of 1935 convened, they were totally disillusioned with the free market philosophy. Earlier, the Filipinos, on the eve of the American promise of independence, tried to free themselves from the grip of judicial precedents imposed by the American-dominated Supreme Court. There was a perceptible movement in the country to release the law from the clutches of the common law doctrine of stare decisis as interpreted by the American jurists, who were still entranced with the substantive aspects of due process as laid down in the Lochner case.10 During the American colonial period, the Philippine legislature attempted to place the American-dominated Supreme Court under Filipino control. So, in 1932, the Filipino legislature passed a law11 increasing the membership of the Supreme Court from 11 to 15, and it nominated four Filipinos to the new positions. However, the U.S. Senate, which under the

10. In Lochner v. New York, 198 U.S. 45, the US Supreme Court invalidated the New York law prohibiting employers from allowing employees to work more than 60 hours per week in a bakery, relying on the substantive due process clause to invalidate state welfare legislation. The due process reasoning in Lochner was imported into the Philippines through the decision in the case of People v. Pomar, 46 Phil. 440 (1924), where the Court invalidated the Maternity Leave Law on grounds of impairment of contract. 11. Hayden, The Philippines: A Study in National Development, p. 242, fn. 6 (1942). 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 61 IN THE PHILIPPINES RELATIVE TO ESCR Federal Law had retained the power to confirm nominations to the Philippine Judiciary, aborted the attempt by refusing confirmation of the nominees.12 Undaunted, the Philippine legislature passed another “reorganization act”13 which reduced the size of the Court back to 11, but provided that in declaring an act of the legislature invalid, 7 out of the 11 Justices should concur. This legislation was inspired by the events taking place in the U.S., where the U.S. Supreme Court invalidated 11 major New Deal legislation by a narrow margin of one or two votes.14 This piece of legislation was later incorporated in the 1935 Constitution, which the delegates to the constitutional convention considered as a “decided advantage over the American Constitution.”15 This somewhat tilted political power in favor of the legislature, for it made it difficult for the Supreme Court to declare a law passed by the legislature unconstitutional. It was the 1935 Constitution which laid the foundations of a welfare State in the Philippines. The Constitution, in the eyes of the Americans, was more socialistic rather than capitalistic in orientation. According to Josephy Ralston Hayden, a serious student of Philippine affairs and the then Vice-Governor of the Philippines, there are four reasons for the socialistic tendency of the Constitution: first, the great influence of Roosevelt’s New Deal spread to the Philippines; second, there was a feeling that unless the lot of the masses would be improved by direct and sweeping governmental action, the new State may sooner or later be faced with serious social and political unrest; third, there was a

12. Ibid. 13. Act 4023 (1932). 14. See Wood, Due Process of Law 68 (1950). 15. Hayden, supra note 11, p. 44, fn. 130. 62 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 widespread belief that a state-directed economic system is essential to the economic survival of the country from the shock of separation from the U.S.; and last, the leading totalitarian states of the world somehow influenced Filipino thought and action.16 In expounding on the philosophy of the 1935 Constitution, President Quezon announced that “under our Constitution it is provided that one of the main duties of the State is to look after the interest of the largest number.”17 This can be seen from a provision in the declaration of principles that “the promotion of social justice to insure the well-being and economic security of all the people should be the concern of the State.”18 These legal foundations for the advent of the welfare State could not have been more timely. At about that time, economic conditions, spawned by the crisis in the U.S., became worse, and agrarian unrest and labor agitation pervaded the country.19 The concentration of big landed estates in a few families, coupled with the reprehensible tenancy system that reduced the tenants to penury, began to tell on the peace and order situation. Under this system, the tenant lived on starvation wages, and he became prey to usurers who charged interest from 130% to 300% for a loan of six months.20 He also had to contend with defrauding landlords who took advantage of his inability to read and write

16. Ibid., p. 44. 17. Messages of the President, Vol. III, Part I, 67-68 (1937). 18. Art. II, Sec. 5, 1935 Constitution. 19. Id. At 390-393. 20. See Fact-Finding Survey of Agrarian Problems in the Philippines, Dept. of Labor, 1936, quoted in Special Economic and Technical Mission, U.S., Philippine Land Tenure Reform, Appendix C-20 (1952). 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 63 IN THE PHILIPPINES RELATIVE TO ESCR by asking him to sign unconscionable contracts of crop-sharing, or who charged him with high services for the landlord’s family.21 The tenant was also deprived of his right to association; he could not join peasant unions because of his fear of being ejected from his landholding. A government survey team found a general sentiment “for a radical change in the present scheme of relations with the all-powerful and moneyed and landowning class.”22 The economic crisis was complicated by the inability of the country to industrialize. The ranks of unemployed swelled by the hundred thousands, while those in the factories and industries received subsistence-level wages. Only less than 4% of the population was employed in the manufacturing industries, while another 2% were employed in the small-scale industries. Besides the violent demonstrations of the socialist peasant unions in Central Luzon, labor strikes became common in the big cities.23

III. WELFARE LEGISLATION AND THE UPSURGE OF ADMINISTRATIVE LAW

The social justice provisions of the 1935 Constitution laid the groundwork for welfare legislation in the Philippines. This marked the stress placed on the role of the administrative process to solve social and economic problems which were faced by the new Commonwealth of the Philippines. Since government was mandated to play a significant role in promoting the welfare of the people, the administrative process would pave the way for economic and social reforms. For instance, as may be seen above, workmen’s compensation, which was administered non-judicially

21. Id. At C-15. 22. Ibid. 23. Ibid. 64 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 by the Workmen’s Compensation Commission, reformed the traditional law on industrial accidents. But in a developing country like the Philippines, the problems are of a greater magnitude than merely reforming the outdated judicial approach to industrial accidents. In 1935, in the face of grave economic problems which required Herculean solutions, the legislature embarked on social and welfare legislation to cope with the crisis. In an attempt to effect agrarian reform, the solution was two-pronged: the first prong was directed toward the breaking up of big landed estates to be sold at cost to tenants who occupied the land. The second was to effect a more equitable tenancy sharing system between landlords and tenants. Thus, the first prong was set up by the 1935 Constitution which provided for the expropriation of big landed estates and for the sale of the lots to the tenants thereof.24 For this purpose, the legislature passed Commonwealth Act Nos. 20 and 539 and set up an administrative agency, the Rural Program Administration, and later the Landed Estates Division of the Bureau of Lands, to acquire urban and agricultural estates for resale to tenants.25 Indeed, the Rural Program Administration was set up to obviate the impairment of public tranquility arising from agrarian conflict which had posed a threat to social order and stability.26 The Rural Program Administration was later superseded by the Landed Estates of the Bureau of Lands. After the independence of the Philippines, the government set up, through R.A. 1160, the National Agricultural Rehabilitation and Resettlement Administration (NARRA),

24. Sec. 4, Art. XIII, 1935 Constitution. 25. See Guido v. Rural Progress Administration, 84 Phil. 847. 26. Ibid. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 65 IN THE PHILIPPINES RELATIVE TO ESCR another administrative body, to acquire a big landed estate in San Pedro, Laguna, and another in Cabanatuan City, which were subdivided and sold to tenants and occupants on instalment basis. Later, another administrative body, the Land Authority, was created under R.A. 3844 in 1963, headed by a Governor and, later in 1971, was replaced by a regular line department under the President, the Department of Agrarian Reform established by R.A. 6389 and headed by a Secretary of Agrarian Reform. The second prong was in the form of legislation to improve the lot of the share tenant. This took the form of Act No. 4054, the Rice Share Tenancy Act, approved in 1933, which sought to improve the plight of the rice-share tenant by giving him tenure or by resettling him on public land, and Act No. 4113, an act passed also in 1933, prescribing certain provisions concerning tenancy contracts on land planted to sugarcane. These were followed by the establishment in 1936 of the Court of Industrial Relations under Commonwealth Act No. 103, which was vested not only with the power of compulsory arbitration of disputes between employers and employees, but also that between landlords and tenants, and to regulate relations between them. When the Philippines became independent in 1946, agrarian legislation was accelerated. Republic Act 34 was passed. This Act redefined the concept of “landlord” to include not only the real owner of the farm, but also the lessor, a usufructuary, or any legitimate possessor, while the definition of a “tenant” was also expanded to include any person who undertakes to work the land for another or one who furnishes labor with the consent of the landlord. The law also provided an 80-20 sharing for the second crop, and provided for a right of the tenant to construct a dwelling on the land cultivated by him. This was followed by R.A. 1199 in 1954 which again redefined the concept of “agricultural 66 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 tenancy” giving security of tenure to the tenant and abolishing the rice-share tenancy system. By an administrative order, the President created an Agricultural Tenancy Commission to enforce and implement the provisions of R.A. 1199. In 1955, Congress passed a law creating the Court of Agrarian Relations which would take off from the Court of Industrial Relations and would have exclusive jurisdiction over all tenancy disputes.

IV. A CASE STUDY::: AGRARIAN REFORM AND THE COURT OF AGRARIAN RELATIONS

The predecessor of the Court of Agrarian Relations, the Court of Industrial Relations (CIR), was established in 1936 and was such a novelty that the Supreme Court did not know how to characterize it. At first, the CIR was called a court of justice “because, according to the Court, it had the power to settle conflicts.”27 Later, it was deemed an arbitral board because it had the power of compulsory arbitration.28 One of its judges called it a “court of equity.”29 As a result, the characterization of the proceedings in the CIR was just confused: these have been called “judicial,30 legislative,31 administrative,32 and quasi-judicial.”33

27. Ang Tibay v. CIR and National Labor Union, 69 Phil. 635 (1940). 28. Stanvac v. Phil. Labor Organization, G.R. L-4556, March 21, 1952. 29. Lanting, “The Court of Industrial Relations,” in Castro, Labor and Social Legislation 1062 (1956). 30. Calderon, From Compulsory Arbitration to Collective Bargaining (Doctrinal Thesis submitted to the Yale Law School, 1956), 34. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 67 IN THE PHILIPPINES RELATIVE TO ESCR Perhaps it had never occurred to them that the Court of Industrial Relations then was actually an administrative agency, and that its multifarious proceedings in the matter of arbitrating disputes between labor and management, and between landlords and tenants could either be legislative, judicial and quasi-judicial. Those judges who did not look back into the history of the Philippines had never realized that the CIR was an agency set up to equalize the serious imbalance of economic power between labor and capital, and between tenant and landowner. They did not know that right after the end of the Second World War in Central Luzon, the agrarian unrest rose to new proportions as the tenants who fought as a guerilla army during the war and who did not surrender their arms refused to be relegated to serfdom once again. As an impartial foreign scholar observed, at that time the predominance of political power in the country continued to reside in the economically privileged who thwarted the numerical superiority of the peasants with their economic power by dictating political alternatives to the country.34 Thus, it was not surprising that the tenancy laws of the Philippines continued to reflect the interests of the dominant landowning class.35 “Outwardly conforming to a democratic government,” wrote a Japanese observer, “Philippine society is still mainly ruled by an oligarchy.”36

31. Pasumil Workers Union v. CIR, 69 Phil. 370 (1940). 32. Gallego v. Kapisanan Timbulan ng mga Manggagawa, G.R. L- 1868, March 17, 1949. 33. Ang Tibay v. CIR and National Labor Union, supra. 34. Hardie, Land Tenure in the Philippines, (1952) 212. 35. See e.g. Starner, Magsaysay and the Philippine Peasantry (1961). 36. K. Kurihara, Labor in Philippine Society, (1945), 91. 68 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

It was against this backdrop that the CIR was given almost absolute power to decide on all matters affecting labor and agrarian disputes by way of compulsory arbitration. The court was empowered to take cognizance of any “agricultural or industrial dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares of compensation, dismissals, lay-offs, or suspension of laborers or employees, hours of labor, or conditions of tenancy or employment, between employers and employees or laborers, and between landlords and tenants or farm laborers.” Thus, the CIR, in the exercise of its compulsory powers of arbitration, fixed minimum wages for laborers and maximum rentals for tenants, ordered wage reductions, converted the payment of salaries from monthly to a daily basis, ordered the payment of overtime, backwages, vacation and sick leaves. It determined what it considered for itself “fair and just wage,” “just or unjust dismissal,” decided what were “national interest cases,” and even defined the broad concept of “social justice” under the Constitution.37 When the decision of the CIR was questioned before the Supreme Court, the latter, abiding by the social justice provisions of the Constitution, upheld the former. Thus, when a federation of landowners challenged the authority of the CIR to annul rice tenancy contracts alleged to have been induced by fraud and deceit, the High Court held that the fact that the nullity of the contracts is raised does not take the case out of the jurisdiction of the CIR.38 When the landlords questioned the capacity of the labor union to sue on behalf of the tenants, the High Tribunal ruled

37. Noriel, Country Report on the Philippines, in Romero, ed., First Asian Congress on Labor Law and Social Security (1982) 153, at 155. 38. Gallego v. Kapisanan, supra note 32. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 69 IN THE PHILIPPINES RELATIVE TO ESCR that labor and tenants’ unions were recognized as one of the effective means by which laborers and tenants may obtain protection of their rights.39 In affirming the jurisdiction of the CIR over tenancy contracts and the capacity of the labor unions to sue on behalf of tenants, the Supreme Court knocked out the traditional civil law props used by the landlords in the regular courts. The High Court also affirmed the power of the CIR to nullify contracts between landlords and tenants executed through fraud and deceit, even if this did not fall squarely under the direct prohibition of the law.40 It likewise upheld the CIR holding that the refusal of a tenant to sign a tenancy contract containing stipulations by law is not a cause for dismissal.41 It was found by the CIR that one potent weapon of the landlords against the tenants is the threat of ejectment or dismissal. A committee study found that tenants had been indiscriminately dismissed in spite of legal provisions insuring security of tenure for tenants. Indeed, while the law provided that tenants might be dismissed only for cause, the phrase was defined by courts under common law concepts.42 In 1955, Congress finally decided to solve the tenants’ problem of tenure. It passed a law which provided that “the sale or alienation of the land do not, of themselves, extinguish the tenancy relationship,” and that “the purchaser or transferee shall assume the rights and obligations of the former landholder in relation to the tenant.”43 When a

39. Ibid. 40. Sibulo v. Altar, 46 Official Gaz. 5502 (1949). 41. Japitanan v. Hechanova, G.R. L-4089, January 31, 1952. 42. See Report, House Comm. On Agrarian Legislation, in 22 Lawyers J. 433 (1955). 43. Sec. 9, R.A. 1199. 70 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 landowner challenged the constitutionality of this provision, the Supreme Court dismissed the petition, in light of the constitutional provision on social justice and the power of the State to regulate tenancy contracts.44 The provision of R.A. 1199 assailed did not prohibit the landowner from disposing of his property; it only provided that in such eventuality, the tenancy relation should be preserved. In pointing out the reasonableness of the law, the High Tribunal said that it was designed to protect the tenant from being unjustly dispossessed by the purchaser of the land. This rule was reiterated the following year. This time, it was found that it was the lessee who hired the tenant and, upon expiration of the lease, the lessor refused to employ the lessee’s tenant, invoking liberty of contract.45 Here, on review of the CAR decision, the Supreme Court delved into the history of the law and found sufficient justification for ruling in favor of its constitutionality. In those cases decided by the Court of Agrarian Relations, it lived up to its function of protecting the economic and social rights of the tenants by curtailing the rights of property of landowners as well as purchasers of agricultural farms. Thus, the CAR had somehow mitigated the economic insecurity of farm tenants. Reduced to extreme poverty, the tenants had been benefited by administrative issuances, social welfare legislation, and the administrative processes arising from the operations of administrative agencies. When Martial Law was declared by President Marcos in 1972, the Court of Agrarian Relations was reorganized under

44. Primero v. CAR, 55 Official Gaz. 180. 45. Joya v. Pareja, G.R. L-13258, November 28, 1959. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 71 IN THE PHILIPPINES RELATIVE TO ESCR Presidential Decree No. 946 and placed under the jurisdiction of the Supreme Court. According to the preamble of P.D. 946, the present organizational and procedural set-up of the CAR was not conducive in the effective and efficient implementation of the objectives of the accelerated Agrarian Reform Program, and that the inferior economic, intellectual, social, political and cultural position of the tenant-tillers required suitable changes in the structure, manner of operation and rules of procedure of the CAR, as well as in the orientation of persons having anything to do with agrarian law and reform.46 However, the Presidential Decree carved out so many exceptions from the exclusive jurisdiction of the CAR, and placed these under the authority of the Minister of Agrarian Reform, including the classification and identification of landholdings, identification of tenant-farmers and landowners and determination of their tenancy relation, determination of the total production and value of the land to be transferred to the tenant, issuance of certificates of land transfer, right of retention of the landowner, right of the tenant to home lot, disposition of the excess area in the tenant’s farmholding, change in crop from rice and corn to any other crop, conversion of tenanted rice land to residential, commercial or industrial uses, transfer or surrender by the tenant of his farmholding, and increase of tillage area by a tenant.47 The emasculation of the CAR ultimately led to its abolition, and all its functions were transferred to the Ministry of Agrarian Reform up to the present.

46. Preamble, P.D. 946 (1973). 47. P.D. 946, Se. 12(b). 72 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

V. CONCLUSION

In conclusion, and from a higher perspective, it can be seen that the agrarian unrest in the Philippines gave rise to an administrative process which initially leaned in favor of giving meaning to the economic, social and cultural rights of a disadvantaged majority: the peasant-farmers in the rural areas. The social justice provisions of the 1935 Constitution caused legislative inroads into the domain of private property, and these were enforced through several administrative agencies created to prosecute agrarian reform towards the achievement of an egalitarian society. Tenancy and employment contracts in agriculture became subject to state supervision and even control. This was aided by legislative and administrative rules which rejected the theoretical equality of the tenant-farmer and the landlord in favor of the sad reality of actual inequality. The CAR realized that the equality which had been foisted on the parties to a rice-share tenancy contract by means of a wooden interpretation of the constitutional concepts was an illusion. The CAR gave meaning to equality under the law by a realistic scrutiny of the plight of the tenants under a feudal relationship. This trend in the decisions of the CAR was upheld by the Supreme Court. But when Martial Law was declared, purportedly to reform Philippine society, agrarian reform was stalled and the administrative bodies that were created to prosecute the reform program fell under the influence of vested groups and abusive landlord-politicians. The CAR was emasculated out of existence by an authoritarian power which was captured by the dominant landowning class. Even after democratic rule was restored, the cacique class became even more politically powerful, and it hammered the last nail in the coffin of land reform. 2002] THE DEVELOPMENT OF ADMINISTRATIVE LAW 73 IN THE PHILIPPINES RELATIVE TO ESCR In any program to protect and preserve economic, social and cultural rights, there must be strong political will to assist certain social units or categories of individuals who suffer from economic, social or cultural discrimination. There must be full commitment to available economic and legal resources by the government, and this must be coupled by an effective administrative process that is bent on achieving the full realization of such rights. Legislation coupled with appropriate administrative processes must be put to good use, and that administrative agencies created to achieve reform must resist capture by the regulated interests. Economic, Social and Cultural Rights in the Courts∗

∗∗ Justice Leonardo A. Quisumbing

I. INTRODUCTION ...... 75 II. RESPECT FOR HUMAN RIGHTS ...... 76 III. EARLY JURISPRUDENCE ...... 79 IV. EARLY APPLICATION ...... 83 V. A PPLICATION ABROAD ...... 86 VI. COMPARATIVE LEGISLATION ...... 91 VII. CASES FROM INDIA ...... 93 VIII. AMERICAN DERIVATION ...... 99 IX. RECENT DECISIONS ...... 100 X. RULE-MAKING POWER ...... 101

∗ Delivered at the Philippine Judiciary Workshop on Economic, Social, and Cultural Rights, on September 13, 2001, at the PHILJA, Tagayatay, City. ∗∗ Appointed as Associate Justice of the Supreme Court on January 15, 1998, Justice Leonardo A. Quisumbing received his A.B. degree from Manuel L. Quezon University (MLQU), Magna Cum Laude, and his LL.B. degree from the University of the Philippines. He placed 12th in the Bar Examinations of 1966. Justice Quisumbing is an ardent labor advocate. While a Professorial Lecturer at the U.P. College of Law, he was Counsel and later President of a national alliance of teachers and workers. Later, he became Secretary-General of the Lakas Manggagawa Labor Center and Chairman of the Confederation of Industry Unions of the Philippines. Several times he represented the country in labor conferences held in Moscow, Geneva, Bangkok, Hanoi, Washington, Seoul and Tokyo. After the EDSA 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 75 IN THE COURTS

I. INTRODUCTION Timely indeed is this workshop on human rights – those rights that are inherently ours simply because we are human. Some say constitutional rights and civil rights are what happen in rich countries. What happens in poor or developing economies we call human rights. Many observe that human rights are empty talk in a verbose legal system supported by weak pillars of a thin constitutional court and a fat police force. I reply that such is not our view of human rights because ours is an activist court inspired by the “Davide Watch” and committed to judicial reforms and respect for human rights. There is, however, a folk saying that the purpose of a rabbit snare is to catch rabbits, and when they are caught, the snare is forgotten. Similarly, the purpose of words is to convey ideas, and when the ideas are grasped, the words are forgotten. So one oriental teacher, Chung-Tzu, asked: “Where can I find a man who has forgotten words? He is the one I like to talk to.” My answer is,

Revolution in 1986, he served briefly as Senior Executive Assistant in the Department of National Defense before he was appointed Undersecretary of National Defense, with stints as Acting Secretary. In mid-1993, he returned to Malacañang as Senior Deputy Executive Secretary. He also served briefly as Acting Executive Secretary. In 1996, he was appointed as Secretary of Labor and Employment. For his work as public administrator, he was awarded the Presidential Medal of Merit. The Polytechnic University of the Philippines and the University of Pangasinan conferred on him doctorate degrees, honoris causa. He also used to be Dean of the College of Law of Northwestern University. 76THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

“Here in Tagaytay, the home of PHILJA1 . Our judges are ready to grapple with ideas and not just words concerning human dignity and human rights.” Coming here, I’m reminded of a comic scene. In an age of artificial intelligence, this scenario may become commonplace. At the breakfast table Mother-robot is feeding Baby-robot electronically while Father-robot tinkers with his televideo remote to enhance reception. Suddenly Baby-robot shoots a question: “Mommy, what are humans?” Mother is startled, recovers, and turns. “Ah,” she says, “ask your Dad. He knows.” Quite distractedly, Daddy responds above the static. “What, humans? Are we running out of power cells again?” Now, you know. Humans, particularly farmed embryos according to the movie Matrix, would be the ultimate sources of electro-dynamic energy. But, even in that distant future, humans or their clones would not be trouble-free.

II. RESPECT FOR HUMAN RIGHTS

Way back in the not so distant past when Martial Law held sway, the U.P. Law Center conducted a symposium on human rights and bravely asked: What must be done in order to encourage respect for and ensure observance of human rights in the Philippines? Our neighbor, a lady professor, had a quick answer: Create a new international economic order, transform the domestic social structure, lift Martial Law.

1. Philippine Judicial Academy. 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 77 IN THE COURTS A labor official and research scholar, since co-opted by the international bureaucracy, had a longer reply: [P]riority should go to a genuine reform of our socio- economic structure to insure that everyone has equal opportunity to a decent livelihood…to focus attention on improving the conditions of our lowest-income groups. There is no sense in preaching human rights if the bulk of the population are living below the subsistence levels. A dean of Islamic studies, now retired and abroad, sounded cautious: [W]hile progressively putting into Philippine law, as much as it can accommodate, those rights stated in the Declaration and the Covenants…it should do best to educate the people on the meaning of such rights, provide the conditions to make them viable, and protect them. It is to be added that it is wise for Philippine society to emphasize more the duties or obligations of citizens. The fact that there are claims to individual human rights should not allow people to forget that there must also be correlative rights of society – rights which, in the final analysis, will guarantee or make it more possible for individuals to enjoy human rights. A senator (on exile) had a longer response, with an acidic comment: It is naive to think that those in power will respect human rights after listening to an eloquent lecture or sermon on the subject. They violate human rights because their curtailment is viewed as indispensable to their stay in power. The best Constitution, with the most elaborate guarantees of human rights, will be a mockery in the hands of a privileged few who lust after power and (of) a people who do not have the intelligence, the will, and the courage to fight for their basic rights. 78THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Only one respondent, a bishop, indirectly referred to the role of the courts, when he replied: Every citizen must be encouraged to report to the authorities any violation of human rights, especially the obstruction and miscarriage of justice. On the other hand, the authorities must see to it that proper corrections be made at the soonest possible time. If we do not, we can almost expect that the citizens will unite to insist on their rights at all costs. Hardly ten years later, People Power toppled the Martial Law- oriented regime and restored a semblance of constitutional democracy. But barely fifteen (15) years had passed when People Power II forced another President to leave the Palace by the Pasig River, despite his charismatic hold on the movie-going masses. The Supreme Court, by a vote of 13-0,2 decided to dismiss his petition which impugned the legitimacy of his successor in office. As the Red Queen would say to Alice in Wonderland, we are in a fast-moving country. It took us all of fifteen years running to remain in place. And here we are again, led by a lady (economist as mid-term) President, hoping to find the magic formula that will ensure, despite coup rumors, the realization of human rights, particularly economic, social and cultural rights. Obviously, I can speak only of my own experiences and observations regarding our topic on the application of ESCR standards by the Philippine courts. But I hasten to add, what I state here does not reflect necessarily the views of my colleagues in the Supreme Court, much less those of our workshop sponsors today.

2. See Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001. 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 79 IN THE COURTS

III. EARLY JURISPRUDENCE One thing I learned from our researcher before coming here [is that] Velayo’s Digest, now out of print, hardly had any entry on human rights. But there are entries for deportation, habeas corpus, and stateless persons.persons SCRA QUICK INDEX has some entries on our subject. That shows somehow that our annotators are progressing even if we have no Shephard’s, and Paras’ citator had been discontinued. I shall assume, however, that as members of the Bench and/or the Bar, we are all up to date on the jurisprudence of human rights. And if I cite cases, they are only as background or by way of example. Or, in case you get bored, to bring our discussion back to earth. Among the early substantive applications of the provisions of the Universal Declaration of Human Rights by our Court that we could find involve cases of foreigners: an alleged spy, an alleged subversive, an alleged Hukbalahap sympathizer, an alleged threat to national security, and some jobless but allegedly habitual drunkards. They were brought into the country to work, to practice a profession, to engage in business, or to spy – for a foreign power during the Second World War while the Philippines was under enemy occupation, or earlier. They filed petitions for habeas corpus on grounds that they were detained for long periods by the Commission of Immigration, but their deportation were long delayed or virtually impossible as they were already “stateless.” In the leading case of Mejoff v. Director of Prisons, 90 Phil. 70 (1951), the Supreme Court granted the petition for habeas corpus of Boris Mejoff, an alien of Russian descent brought in by the Japanese as a secret operative, but who was captured by the US CIC3 and handed over to the government for proper

3. United States Counter-Intelligence Corps. 80THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 disposition under our laws after the liberation of Manila. He was ordered deported to Russia by the Deportation Board, but no vessel would take him aboard, so he was confined first in Cebu and then in Bilibid Prison at Muntinlupa while awaiting arrangements for his departure to be made. His first petition was denied. But the second was granted after two years of further incarceration. Earlier, the Court warned that “under established precedents, too long a detention may justify the issuance of a writ of habeas corpus,” where the detainees’ deportation could not be effected through “no fault of their own.” In granting the writ, Justice Tuason opined: The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in violation of its immigration laws may be detained for as long as the Government is unable to deport him, is a point we need not decide. The petitioner’s entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law during the occupation. Moreover, by its Constitution (Art. II, Sec. 3), the Philippines “adopts the generally accepted principles of international law as part of the law of the Nation.” And in a resolution entitled “Universal Declaration of Human Rights” and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that “[a]ll human beings are born free and equal in degree and rights” (Art. 1); that “[e]veryone is entitled to all the 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 81 IN THE COURTS

rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth or other status” (Art. II); that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law” (Art. VIII); that “[n]o one shall be subjected to arbitrary arrest, detention or exile” (Art. IX); etc. In U.S. v. Nichols, 47 Fed. Supp., 201, it was said that the court “has the power to release from custody an alien who has been detained an unreasonably long period of time by the Department of Justice after it has become apparent that although a warrant for his deportation has been issued, the warrant cannot be effectuated;” that “the theory on which the court is given the power to act is that the warrant of deportation, not having been able to be executed, is functus officio and the alien is being held without any authority of law.” The decision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that the same result had been reached in innumerable cases elsewhere. The case referred to were United States ex rel. Ross v. Wallis, 2 Cir. 279 F. 401, 404; Caranica v. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky v. Weedin, 9 cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis v. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425. If you had in constitutional law or criminal procedure these cases of Mejoff, Borovsky, Chriskoff and Andreau, you might wonder how these petitioners were so lucky compared to the petitioner in Tan Seng Pao v. Commissioner of Immigration, 107 Phil. 742 (1960). Tan had been under detention for eight (8) years since he was ordered deported, but the order had yet to 82THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 be implemented. In contrast, Mejoff and company were under detention for only two to four years. Why? As found by the Court, Tan, unlike Mejoff, et al., was not stateless: he was a Chinese citizen and Formosa (now Taiwan) was nearby. Moreover, Tan, through counsel and after a long wait, had moved for reconsideration of the respondent’s order. Pending resolution of his motion, he could still file a petition for bail. Clearly, he did not exhaust administrative remedies yet. And since neither fault for the delay in his deportation nor negligence could be attributed to the government for his detention, the Court, on April 27, 1960, decided that the “warrant for his deportation should stand in all its force and vigor.” All these despite the fact that Tan had been arrested and detained since October 12, 1949, and his deportation was already ordered since February 2, 1950. It mattered not that his petition for habeas corpus was based on gross violations of law and of the Constitution, as well as the Universal Declaration of Human Rights. If like you, I’m wondering at this result, it is only because perhaps my practice in CID4 was shorter than at COMELEC.5 But I have very positive impressions of the ponencias in Mejoff, Borovsky, et al.. The decisions were brief, [and] to the point. The sentences were clipped. No word had a hyphen. The cases cited in the footnotes were few. Citations of foreign cases were clear. The dissents of Justice Pablo were in Spanish, without translation, but mercifully brief. I must stress, however, that the ponencias of Justice Tuason were squarely based on Philippine Law and our Constitution. He cited our adoption of the generally accepted principles of international law as part of the law of the

4. Commission on Immigration and Deportation. 5. Commission on Elections. 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 83 IN THE COURTS nation. And though the ink on the Universal Declaration of Human Rights dated December 10, 1948, was hardly dry, the Court found it worth quoting to support the issuance of the great writ of liberty in favor of, among others, alleged spies, subserves, and “un borracho.” That should tell us that the Declaration is indeed universal – for all human beings.

IV. EARLY APPLICATION

The free (or almost free) flow of goods, capital, services and ideas which appears commonplace these days easily makes us forget that protectionism, in the economic sense, was all too entrenched fifty years ago. Economic nationalism was the flavor of that period, and as a student I remember an essay contest sponsored by NEPA. With the prize money came a gold medal from then President Carlos P. Garcia, the exponent of Filipino First policy. The winning piece bewailed alien dominance of our economy while Filipinos remained hewers of wood and drawers of water, or worse, houseboys and housemaids of foreigners. Now, I have imbibed a little bit more economic sense. At the Department of Labor and Employment, I was told that our economy might suffer if our domestics and other workers abroad suddenly stopped remitting dollars home. More important, I learned our economy might collapse without continued infusion of foreign investments. We could be anti-IMF, WB, and AID, but where would that leave our skilled workers, managers, engineers and lawyers? Sa kankongan!6 So we have joined ASEAN, APEC, AFTA, and WTO, aside from ILO, in order that we should not be left alone, helpless, isolated, and stranded in an ocean of economic sharks, crocodiles and piranhas. And yet, in practice

6. Literally, in the field of water spinach. 84THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 and in Court, I learn that economic and social security are set in a global culture of risks: no nation is ever safe from tigers east and west, north and south. But way back in 1957, when the peso-dollar parity hovered just above 2 to 1; with our population just about 25 million instead of 78.5 million; when the minimum wage was only P4 pesos a day compared to P250 today; when our foreign debt was way below $90 billion; when Magsaysay had routed the Huks, and our economy ranked second only to Japan in Asia; when we had loggers but not drug lords; when life was simpler and many Pinoys could afford amahs and achoys at home, it was all right to be patriotic, nationalistic, and protectionist. Or so it seemed, not only in the media and in the campus, but even in the halls of the Judiciary. Faced with a petition to declare the Retail Trade Nationalization Law (R.A. 1180) unconstitutional, the Court saw its task as quite delicate. As eloquently stated by Justice Labrador, in Lao Ichong v. Hernandez, 101 Phil. 1155 (1957): Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the foreign retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Disposing of arguments that the nationalization by Congress of the retail trade was a violation of due process and equal 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 85 IN THE COURTS protection clauses of the Constitution, as well as a deprivation of private property without just compensation, the Court went on to reject the petitioner’s argument that the act of Congress violated treaty and other international obligations of the Philippines. Said the near-unanimous Court through Justice Labrador: Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of Human Rights adopted by the United Nations General Assembly. We find no merit in the above contention. The United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951, ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation, or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter and of the Declaration of Human Rights can be inferred from the fact that members of the United Nations Organization, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals “upon the same terms as the nationals of any other country.” But the nationals of China are not discriminated against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging 86THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification of amendment by a subsequent law (U.S. v. Thompson, 258, Fe. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (Palston v. Pennsylvania, 58 L. ed. 539).

V. APPLICATION ABROAD

In our selected reading references, Prof. C. McCrudden of Oxford University asks about a common law on human rights. According to him, it is now commonplace in many jurisdictions to refer to decisions of foreign jurisdictions when interpreting domestic human rights guarantees. With his comments in mind, I now wish to call attention to an early application of the UN Charter and the Declaration of Human Rights provision abroad. In Sei Fujii v. State, 97 A.C.A. 154, P. 2d 481 (1950), the California District Court of Appeals reversed the lower court’s escheat of the land of plaintiff who was born in Japan and ineligible for naturalization as U.S. citizen. Said Judge Wilson on appeal: On December 10, 1948, the General Assembly of the United Nations passed and proclaimed and called upon all member countries to publicize, disseminate and expound in schools and elsewhere, a “Universal Declaration of Human Rights” affirming among other things that “All human beings are born free and equal in dignity and rights. They…should act toward one another in a spirit of brotherhood. [Art. 1] Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth of other status. [Art. 2.]…Everyone has 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 87 IN THE COURTS

the right to own property alone as well as in association with others.” [Art. 17.] This Declaration implements and emphasizes the purposes and aims of the United Nations and its Charter. Democracy provides a way of life that is helpful; however its promises of human betterment are but vain expressions of hope unless ideals of justice and equity are put into practice among governments, and as well between government and citizen, and are held to be paramount. The integrity and vitality of the Charter and the confidence which it inspires would wane and eventually be brought to naught by failure to act according to its announced purposes. Its survival is contingent upon the degree of reverence shown for it by the contracting nations, their governmental subdivisions and their citizens as well. This nation can be true to its pledge to the other signatories to the Charter only by cooperating in the purposes that are so plainly expressed in it and by removing every obstacle to the fulfillment of such purposes. A perusal of the Charter renders it manifest that restrictions contained in the Alien Land Law are in direct conflict with the plain terms of the Charter above quoted and with the purposes announced therein by its framers. It is incompatible with Article 17 of the Declaration of Human Rights which proclaims the right of everyone to own property. We have shown that the expansion by the Congress of the classes of nationals eligible to citizenship has correspondingly shrunk the group ineligible under the provisions of the Alien Land Law to own or lease land in California until the latter now consists in reality of a very small number of Japanese. The other Asiatics who still remain on the proscribed list are so few that they need not be considered. 88THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Clearly such a discrimination against a people of one race is contrary both to the letter and to the spirit of the Charter which, as a treaty, is paramount to every law of every state in conflict with it. The Alien Land Law must therefore yield to the treaty as the superior authority. The restrictions of the statute based on eligibility to citizenship, but which ultimately and actually are referable to race or color, must be and are therefore declared untenable and unenforceable. Judgment reversed with directions to enter a decree in favor of plaintiff in accord with the prayer of his complaint. So far, so good. But it was not the end of the controversy. International law experts and other scholars like Judge Hudson were critical of Judge Wilson’s ponencia invalidating the escheat of Sei Fujii’s land by the State. The California Supreme Court heard the State’s further appeal. In Sei Fujii v. State, 38 Cal. 2d 731, 242 P. 2d 617 (1952), C. J. Gibson differed from Judge Wilson’s views and reversed him in regard to the application of the UN Charter. Said C. J. Gibson: …[T]he sole question presented on this appeal is the validity of the California Alien Land Law. It is first contended that the Land Law has been invalidated and superseded by the provision of the United Nations Charter pledging the member nations to promote the observance of human rights and fundamental freedoms without distinction as to race. Plaintiff relies on statements in the preamble and in Articles 1, 55, and 56 of the Charter, 59 Stat. 1035. It is not disputed that the Charter is a treaty, and our federal Constitution provides that treaties made under the authority of the United States are part of the supreme law of the land and that the judges in every state are bound thereby, U.S. Const., Art. VI. A treaty, however, does not 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 89 IN THE COURTS

automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. In the words of Chief Justice Marshall: A treaty is to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract – when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract, before it can become a rule for the court. (Foster v. Neilson, 1829, 2 Pet. 253, 314, 7 L. Ed. 415) x x x The provisions in the Charter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are framed as a promise of future action by the member nations. Secretary of State Stettinius, Chairman of the United States delegation at the San Francisco Conference where the Charter was drafted, stated in his report to President Truman that Article 56: ...pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes. 90THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State, Department of State Publication 2349, Conference Series 71, p. 115; Hearings before the Committee on Foreign Relations, United States Senate (Revised) July 9-13, 1945, p. 106. The same view was repeatedly expressed by delegates of other nations in the debates attending the drafting of Article 56. See U.N.C.I.O. Doc. 699 II/3/40, May 30, 1945, pp. 1-3; U.N.C.I.O. Doc. 684, II/3/38, May 29, 1945, p. 4; Kelsen, The Law of the United Nations (1950), footnote 9, pp. 100-102. The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and Legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The Charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs. We are satisfied, however, that the Charter provisions relied on by plaintiff were not intended to supersede existing domestic legislation, and we cannot hold that they operate to invalidate the Alien Land Law… [Having thus disposed of the issues relating to the UN Charter, the court proceeded to hold the Alien Land Law invalid on the ground that it violated the equal protection clause of the Fourteenth Amendment.] Lest we get a negative impression of the U.S. courts’ record, however, more recent cases like Hilao v. Estate of Marcos and Trajano v. Marcos regarding damages for alien tort claims because of torture and other violations of human rights, have shown 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 91 IN THE COURTS American adherence to jus cogens, or that class of human rights from which no derogation is allowed.

VI. COMPARATIVE LEGISLATION

At about the same time that the Universal Declaration of Human Rights was adopted, the drafting of the Civil Code of the Philippines was also finished. Completed in late 1947, the Code was submitted in January 1948 to Congress and approved on June 18, 1949 as Republic Act No. 386. The Code contained a chapter (2) specifically devoted to “Human Relations” which has a detailed provision in Article 32 with 19 sections protecting the basic rights and freedoms of the individual, particularly of religion, speech, press, suffrage, due process, just compensation in the taking of private property, equal protection of the laws, freedom from arbitrary or illegal detention, security of one’s person, house, papers, and effects against unreasonable searches and seizure, liberty of abode, privacy of communication, freedom of association, peaceful assembly to petition for redress of grievances, freedom from involuntary servitude (or slavery), right against excessive bail, right to counsel, speedy trial, confrontation, compulsory process, attendance of witnesses for the accused, right against self-incrimination, freedom from excessive fines or cruel and unusual punishment, and freedom of access to the courts. Article 32 of the Civil Code includes a provision for independent civil action for damages, distinct from criminal prosecution. But it grants civil immunity to the judge as an exception the rule therein that: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the 92THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

(mentioned) rights and liberties of another person shall be liable for damages. Significantly the Civil Code incorporates the fairly modern view of “abuse of rights,” in contrast to the classical theory that “he who uses a right injures no one.” For it says in Article 19: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Also noteworthy insofar as the role of the courts is concerned, the Code provides in Article 9 that: No judge or court shall decline to render judgment by reason of the silence, obscurity of insufficiency of the laws. And it further provides in Article 10 that: In case of doubt in the interpretation or application of laws, it is presumed that the law-making body intended right and justice to prevail. It particularly directs the Court to be solicitous of the weak- minded, the young, the aged, the illiterate, and the disadvantaged in general. Now, let me just dwell for a moment on an issue involving the right of free access to the court. If this right is guaranteed in the Constitution, may an amendment to the Constitution do away with this guarantee? We all know that in our jurisdiction, for example, the right of appeal to a second-level court is deemed statutory and such appeal may be removed by repeal or amendment of the enabling statute. But since free access to the court is provided for by the Constitution, Congress by law may not derogate from the right. The problem, however, arises when the Constitution is amended to remove a certain class of cases from 94THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 the court found, were not shielded by constitutional amendments because the land involved was a “ryot” and not an “estate” as constitutionally defined. In 1964 the Karimbil ruling was relied on to invalidate the Madras Land Reform Act of 1961. To save the Kerala and Madras measures and those in equally vulnerable position, Parliament again resorted to constitutional amendment, the seventeeth. This time forty-four (44) land reform laws were removed from court review. The term estate now included ryotwari settlement, specific grants, and “any land held or let for purpose of agriculture or for purposes ancillary thereto.” More important, it made possible the acquisition by the State of any land “held by a person under his personal cultivation” “within the ceiling applicable to him under any law for the time being in force” so long as the acquisition law provides for compensation at “not less than the market value thereof.” It is fair to say that at this time the target of legislative attack has fanned out to include not only the zamindars, but also small-holders. The constitutionality of the seventeenth amendment was challenged in Sajjan Singh v. Rajasthan State, 1 S.C.R. 932 (1965), on the ground that the power to amend does not include the power to take away the fundamental rights, including the right to challenge the validity of acts listed as exempt from challenge in court. Petitioners contended that the effect of the amendment was a “very serious and substantial inroad on the powers of the High Courts.” Gajenkadkar, C.J., writing for the majority of three, found the amendment valid, for the reason, among others, that the effect on the powers of the court was indirect, incidental and otherwise insignificant. The “pith and substance” of the amendment was the removal of possible obstacles “to the fulfillment of the socio-economic policy in which the party in power believes.” If petitioners prevailed in having the amendment 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 95 IN THE COURTS invalidated, and the ruling in Sankari Prasad reversed, past amendments “would be rendered invalid and a large number of decisions dealing with the validity” of land reform acts listed by those amendments “would also be exposed to serious jeopardy.”7 There were two separate opinions concurring in the result (dismissal of petitions) that nevertheless aired doubts about the validity of the seventeenth amendment. The Indian legislature, argued Mudholkar, J., is not “a sovereign Parliament on the British model” and, like other state organs, could function only within the limit of powers conferred by the Constitution; whether an amendment must comply with the requirements of Constitution,” and it is both the duty and power of the court to examine the challenge that an amendment was not validly made. Hidayatullah, J. remarked that he would require stronger reasons than those given in Sankari Prasad, S.C.R. 89 (1952), to accept “the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with other parts of the Constitution and without concurrence of the States.” These expressions of doubt crystallized into a contrary opinion in Golaknath v. Punjab State, 2 S.C.R. 762 (1967). Therein questioned were the validity of the Punjab Security of Tenures Act and the Mysore Land Reforms Act, both of which were listed in the seventeenth amendment that shielded them from court action. The fact situation involved the estate of Golaknath on whose death several hundred acres of land were declared surplus,

7. The same argument was offered in Golaknath v. Punjab, 2 S.C.R. 762 (1967), but Sankari Prasad was nevertheless reversed, although Subbao Rao’s opinion sought to avoid this jeopardy by the doctrine of prospective overruling. 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 93 IN THE COURTS judicial cognizance. Such was the situation in regard to agrarian reform, for example, in India, which was the subject of my own research many years ago.

VII. CASES FROM INDIA

At about the same time that the American court in Berman v. Parker, 348 U.S. 26 (1954), narrowed down the justiciability of public purpose, the Indian court was losing its power to pass upon compensation questions. Moreover, the broad concept of taking in the American sense was negated by the Indian constitutional amendment, No. IV, Sec. 2. It provided that the law shall not be deemed as providing for compulsory acquisition or requisition, notwithstanding it deprives any person of his property, if there is no transfer to the state or state corporation. Thus, in those cases of regulation or of indirect takings, the court could not entertain the issue of compensability. The fourth amendment to the Constitution of India helped quicken the pace of land reform, even as critics lamented the drift from American concepts of property to that of socialism as having eaten into the vitals of constitutional guarantees. However, to the pessimistic prognosis that the spectre of confiscation had entered India, it was contended that the amendment did nothing more than return from the American doctrine of judicial review to the English doctrine of parliamentary supremacy. Moreover, the amendment did not bar all instances of resort to the court. When the ceilings on holding, after the abolition of zamindari, became part of land reform legislation, an avenue of renewed attack on land reform laws was found in the distinction between “estate” and “ryotwari.” In the leading case of Karimbil Kunhikoman v. Kerala State, 1 S.C.R. 829 supp. (1962), the court voided the compensation provisions of the Kerala Acts which, 96THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 viz, above the ceiling imposed by the Punjab Act, and therefore had to be distributed to the tenants. Golaknath’s children, as heirs, claimed the Act infringed their right to property. The Mysore Act, which also fixed a ceiling on holdings and conferred ownership of the surplus on tenants, was contested by the landowners who claimed that the Act amounted to a denial of equal protection, an impairment of their right to property and a deprivation of property without authority of law and without compensation. Since both acts were listed in the seventeenth amendment, the validity of that amendment was put at issue as the threshold question. But at the bottom of the conflict was the question of whether Parliament had the power to pass an amendment (to the Constitution) alleged to contravene fundamental rights, including the right to move the court for encorcement of those constitutional guarantees. Divided as the special Bench of eleven Justices were, five- one-five, no court opinion could be written. However, Hidayatullah, J. voted with the five Justices led by Subba Rao, C.J. who, in his opinion, reached the following result: (5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. [2 S.C.R. 762, 815 (1967)] The other five Justices dissented in three separate opinions, but all refused to circumscribe the powers of the legislature. Wanchoo, J., writing for three members, stated that they had no doubt that Article 368 does confer power on Parliament subject to the procedure provided therein for amendment of any provision of the Constitution. Rasmawani, J. found it “difficult to accept…that fundamental rights enshrined in Part III are 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 97 IN THE COURTS immutably settled and determined once and for all these [such that] rights are beyond the ambit of the future amendment.” If the power of amending “this Constitution” means “any provision thereof,” then it was not intended, Bachawat, J., argued, “that defects in Part III could not be cured or that possible errors in judicial interpretation of Part III could not be rectified by constitutional amendment.” If basic features of the Constitution could not be amended, Wanchoo, J., declared, and only the court could define what was basic, “every amendment would provide a harvest of legal wrangles so much so that Parliament may never know what provisions can be amended and what cannot.” Holding the decisive vote on the seventeenth amendment’s validity, Hidayatullah, J. found that: 1. “The sum total of this amendment is that except for land within the ceiling, all other land can be acquired or extinguished or modified without compensation and no challenge to the law can be made under Articles 14, 19, or 31 of the Constitution;” 2. Deprivation of private property of any person is not to be regarded as acquisition or requisition unless the benefit of the transfer or ownership goes to the State or State- owned or controlled corporation; 3. The ceiling on holding, applicable for the time being, may be lowered by legislation; and the state “may leave the person an owner in name and acquire all his other rights.” All these he considered inroads on fundamental rights; but he would sustain the constitutional amendment because the “amendment is a law and Article 31 (1) permits the deprivation of property by authority of law.” 98THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

However, concerning the third part of the amendment, which added forty-four state statutes concerning land reform to the list saving them from judicial decision of nullity, past or future, Hidayatullah, J. found one aspect gravely wrong: the list or Schedule “is being used to give advance protection to legislation which is known or apprehended to derogate from Fundamental Rights.” Because this holding tilted the balance, it is worth quoting:

The power under Article 368, whatever it may be, was given to amend the Constitution. Giving protection to statutes of State Legislatures, which offend the Constitution in its most fundamental part, can hardly merit the description amendment of the Constitution.…If these Acts were not included in the Schedule, they would have to face the Fundamental Rights and rely on Articles 31 and 31-A to save them. By this device, protection far in excess of these articles is afforded to them. This, in my judgment, is not a matter of amendment at all...Ours is the only Constitution in the world which carries a long list of ordinary laws which it protects against itself. In the result I declare s. 3 to be ultra vires the amending process.

Hidayatullah, J. was therefore of the opinion “that an attempt to abridge or take away Fundamental Rights by a constituted Parliament, even though by an amendment of the Constitution, can be declared void.” The Court, according to him, had the power and jurisdiction to make the declaration. Whether this narrow victory for fundamental rights in India escaped the inroads of changing times, I have no recent news. More citation analysis is needed, a luxury I cannot now afford. 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 99 IN THE COURTS

VIII. AMERICAN DERIVATION

Let us take a little time, though, to stress that the rights of the individual human being that are enshrined in the Bill of Rights of our Constitution are derived mainly from the first ten Amendments to the U.S. Constitution. But they are not limited to political and civil rights. They also contain economic, social and cultural rights. Moreover, although showing slight variations, these fundamental and protective guarantees of individual rights have a constant resonance since the Malolos Constitution of 1898, the Organic Law of 1916, and the Independence Act of 1935. Basic rights and fundamental freedoms of the individual in our basic laws offer protection in law not just to Filipinos, but also to foreigners in the Philippines, not just to Christians, but also non- Christians, not only to the well-heeled, but even the so-called lepers of society as well. In the off-quoted decision of Justice George Malcolm in Villavicencio v. Lukban, 19 Phil. 778, the Supreme Court granted the privilege of the writ of habeas corpus to 170 women of ill repute who were forcibly taken from their homes in Manila and involuntarily shipped to Davao City, away from their clientele. According to Malcolm, the forcible taking of these women to have them deposited in a distant region deprived them of their freedom of locomotion just as effectively as if they had been imprisoned. It goes without saying that some of them did improve their lives in Davao City, but that is another story. The same revered Justice Malcolm, however, in Rubi v. Mindoro, 39 Phil. 661, just a few days earlier than Villavicencio v. Lukban, sustained a restrictive ordinance passed by the Provincial Board of Mindoro and directed at a cultural minority. That measure, pursuant to Section 2145 of the Administrative Code 100THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 of 1917, with approval of the Secretary of Interior, authorized the Provincial Governor to direct non-Christian inhabitants, namely Mangyans like Rubi, to take up habitation in reservations (“sites on unoccupied public lands”) selected by the Governor and the Provincial Board, similar to reservations for Indians in some American states. According to Justice Malcolm, confinement in reservations in accordance with the Administrative Code did not constitute slavery and involuntary servitude. Instead, he pointed out that it was intended to begin the process of civilization of the indigenous tribe of Mangyans; to promote education of their children, to improve health and morals, and develop the resources as well as protect the settlers of that great island. Justice Malcolm rejected the doctrines of laissez faire and unrestricted freedom of the individual as axioms of politics and economics that are passé. He did mention the U.S. policy of “pupilage” of American Indians as wards under the U.S. Congress with the U.S. government serving as their guardians. I wonder though how this policy squares with the Bill of Rights and other human rights documents today, and how the decision by Justice Malcolm will stand the test of time .

IX. RECENT DECISIONS

Taking a look at current decisions of the Court, we find that judicial protection has been extended, upon the invocation of human rights and fundamental freedom protected by our Constitution, our laws, and treaties or international conventions. In G.R. No. 123810, January 20, 1999, Consolidated Rural Bank v. NLRC and Sanchez, an employee was ordered reinstated to her position with full back wages, under Article 279 of the Labor Code, as well as allowances and other benefits or their monetary equivalent, and 10% of the total award as attorney’s fees. Or in 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 101 IN THE COURTS lieu of reinstatement if such is no longer possible, with the payment of full backwages and other monetary benefits, and Php500,000 as moral damages, on the ground that her alleged dismissal was attended by bad faith, and constituted an act contrary to law, or done in a manner contrary to morals, good customs or public policy. In Llorente v. Sandiganbayan, G.R. No. 122166, March 11, 1998, petitioner was found guilty of unjust discrimination against an employee who, for that reason, was awarded damages of Php90,000.

X. RULE-MAKING POWER

Before I close, may I just cite the impact of the rule-making power of the Court on cases involving human rights and socio-economic issues. Please note that even the Commission on Human Rights created by the Constitution must “adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court.” [Const., Art. XIII, Sec. 18, (2)]. In turn, we must recall that the Constitution [Art. VIII, Sec. 5 (5)] vested in the Supreme Court the power to: Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, procedure in all courts… Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Its rule-making power encompasses the admission to the practice of law, the integration of the Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. 102THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Coupled with its power to appoint all administrative officials and employees of the Judiciary and its power of administrative supervision over all courts and the personal thereof, the rule- making authority of the Supreme Court greatly enhances its independence in a system of separation of powers with checks and balances among the three branches of government. Further, such autonomous rule-making authority vested in the Court appreciably facilitates its exercise of traditional judicial power to resolve actual cases and controversies, but also of its newly vested power “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.” [Constitution, Art. VIII, Sec. 1 (2)] In the exercise of its rule-making power, the Court has very recently adopted new rules or amendments to the Rules of Court. Among them is the Rule on Electronic Evidence, effective August 1, 2001, intended to implement requirements of the E-Commerce Law. Earlier, it promulgated the Rule on Examination of a Child Witness, effective December 15, 2000, as well as the amended Rules for the transfer of SEC cases to the Regional Trial Courts which must henceforth decide those cases pursuant to changes in the SEC law. In regard to BP No. 22 (The Bouncing Checks Law), the Court has issued Administrative Circulars (No. 12- 2000 and No. 13-2001) adopting the policy of assessing fines rather than imposing imprisonment as penalty for violations of said law, considering among others, the constitutional guarantee against imprisonment for non-payment of debt. Even more important, the Court has promulgated effective December 1, 2000, the Revised Rules of Criminal Procedure as amended (Rules 110-127, Rules of Court). Shortly thereafter, the Court promulgated the revisions of Rule 140 of the Rules of Court 2002] ECONOMIC, SOCIAL AND CULTURAL RIGHTS 103 IN THE COURTS on administrative cases affecting the discipline of judges, hopefully to meet critical observations of the affected judges themselves. If you have second thoughts on the impact of these changes in the Rules, then let me just point out the amendment of Section 8 of Rule 110. As amended, it now reads: Sec. 8. Designations of the offense. – The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or sub-section of the statute punishing. (8a) Pursuant to this revised rule, in People v. Melecio Sagarino alias Kalamansi, G.R. Nos. 135356-58, the accused-appellant was saved from two sentences of death for rapes he committed because no aggravating circumstances were specified in the informations filed against him. Before you rejoice that a young life was saved from lethal injection, let me tell you the victim was his own mother, aged 57 years old. In closing, let me stress that under the “Davide Watch,” we remain vigilant in order that fundamental freedoms and human rights are protected and promoted. Equal justice and access to justice are not idle expressions. But in our jurisdictions, we have to beware lest it be said, “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has” (Griffin v. Illinois, 351 U.S. 12, 1956). Our Bill of Rights include only “negative” rights. As observed by Mary Becker (LXIX No.-5, Ap. 2001, Fordhan Law Review: Progressive Politics, Progressive Constitution, p. 2052): 104THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

A Constitution with only negative rights will better protect the powerful against government action harmful to their interests than the less powerful, who need protection against the powerful as well as against the government. The Universal Declaration of Human Rights as well as the two Covenants contain positive rights that may be more aspirational rather than self-executing. But, in our time, positive guarantees of economic, social and cultural rights (as much as if not more than political and civil rights) could no longer be ignored or left unrealized. The hour is late, we say, and Minerva’s owl will fly at dusk. Rights, Obligations and Remedies: International and Domestic Experiences*

Atty. Rene V. Sarmiento**

I. INTRODUCTION ...... 106 II. JUDICIAL ACTIVISM ...... 106 III. DOMESTIC EXPERIENCES ...... 107 IV. INTERNATIONAL EXPERIENCES ...... 109 V. C ONCLUSION ...... 111

∗ Delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 14, 2001, at PHILJA, Tagaytay City. ∗∗ Attorney Rene V. Sarmiento, a highly sought speaker on human rights, served as Member of the following government committees: the Constitutional Commission of 1986 that drafted the 1987 Constitution of the Philippines; Select Committee to Screen Judges and Justices of the Court of Appeals, Department of Justice (1986-1987); Presidential Human Rights Committee (1991-1994); and the Government of the Republic of the Philippines (GRP) Panel for Talks with the CPP/NPA/NDF. He later became Chairman of the GRP’s Reciprocal Working Committee on Human Rights and International Humanitarian Law (1996-1999). He obtained his Bachelor of Laws degree at the University of the Philippines and his A.B. degree in Political Science at the San Beda College, with a Magna Cum Laude honor and a Rector’s Award for his overall academic excellence and outstanding leadership in campus activities, especially in the field of Catholic and Social Action. 106THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

I. INTRODUCTION

May I, at the outset, profoundly thank Dr. Purificacion V. Quisumbing for inviting me to be a speaker in today’s session on “Rights, Obligations and Remedies: International and Domestic Experiences.” May I state that I had learned many things about human rights from Dr. Quisumbing. She was my professor on human rights when it was first offered as a subject in the College of Law of the University of the Philippines in 1977. The brilliance and the beauty of Dr. Quisumbing had inspired me to be zealous in my study of human rights in the law school. It has often been said that the Judiciary is a mere passive referee of conflicting rights and duties, a mere adjudicator of clashing claims, generally afraid to be innovative when it finds unfenced spaces in the various aspects of law. I most respectfully disagree with this. Judges and their perspectives change. Their thoughts evolve. Let us find out.

II. JUDICIAL ACTIVISM

In 1981, the International Commission of Jurists, in its Conference on Development, Human Rights and the Rule of Law, viewed the Rule of Law in its progressive perspective and said: The Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspiration and dignity may be realized. 2002] RIGHTS, OBLIGATIONS AND REMEDIES: 107 INTERNATIONAL AND DOMESTIC EXPERIENCES In 1985, in a workshop held at Eldoret, Kenya, justices, judges, lawyers, legal scholars and social scientists, discussed the theme, “The Role of the Judiciary in Plural Societies,” and came up with the conclusion that judicial activism can be “an important strategy to overcome all forms of oppression, exploitation, impoverishment, unjustifiable on any model of societal development in Africa and Asia.” The workshop added by saying that “judicial activism, encouraged by social action litigation, inspired by constitutional values, may be regarded as a vital human technology for social change in [an] impoverished society.” Yes, the Judiciary can be pro-active in the courageous experiment and life nourishing exercise of using law to make life worth living for all, with honor and with dignity, and to make real enforceability of economic, social and cultural rights. Many years ago, Ex-Senator Jose W. Diokno captured this idea and spirit creatively using law for the common good when he, before a meeting of lawyers, spoke about “waging revolution by law.” In many parts of the globe, the Philippines included, economic, social and cultural rights are being enforced by courts of law in the emerging belief that human rights are indivisible and interdependent. These economic, social and cultural rights encompass the right to a healthful environment, right to education, right to shelter, right to work, right to food, etc.

III. DOMESTIC EXPERIENCES

In Laguna Lake Development Authority v. Court of Appeals, et al. (231 SCRA 292 [1994]), the Supreme Court was called upon to decide a case involving the clash between the responsibility of the Caloocan City Government to dispose of the 350 tons of garbage it collects daily and the growing concern to a pollution- 108THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 free environment of the residents of Barangay Camarin, Tala Estate, Caloocan City where these tons of garbage are dumped daily. In its decision, the Supreme Court said: The immediate response to the demands of the necessities of protecting vital public interests ‘gives vitality to the statement on ecology embodied in the Declaration of Principles and State Policies of the 1987 Constitution…As a constitutionally guaranteed right of every person, it earns the correlative duty of impairment. This is but in consonance with the declared policy of the state to protect and promote the right to health of the people and instill health consciousness among them.’ It is to be borne in mind that the Philippines is a party to the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 which recognize health as a fundamental human right. In two other cases, namely, Augustus L. Momongan v. Rafael B. Omipon (242 SCRA 332 [1995]) and Alfredo Tano, et al. v. Salvador P. Socrates, et al. (278 SCRA 154 [1997]), two cases which come after the landmark case of Oposa v. Factoran (224 SCRA 792 [1993]), the Supreme Court affirmed the right of the people to a healthful environment or to a balanced and healthful ecology. Louie Soriao v. Araceli R. Pineda (G.R. No. 110702 [August 10, 1994]) is about the right to education. The Court of Appeals, invoking the 1987 Constitution and the Universal Declaration of Human Rights, ordered Araceli R. Pineda, Head Teacher II of Juan C. Angara Memorial High School, Dinalungan, Aurora, to allow Louie Soriao to enrol and to study after he was meted out a disciplinary action without due process of law. 2002] RIGHTS, OBLIGATIONS AND REMEDIES: 109 INTERNATIONAL AND DOMESTIC EXPERIENCES

IV. INTERNATIONAL EXPERIENCES In New York City, in the case of Cullahan v. Carey, Case No. 79- 42582 (Sup. Ct. N.Y. Country, August 26, 1981), a class action was filed on behalf of homeless men on the Lower East Side of New York City, demanding that the city provide shelter to any man who asked for it based on the New York Constitution, Social Services Law and New York Administrative Code. The New York Supreme Court, recognizing the legal right to shelter, granted a temporary injunction that required New York to finish a sufficient number of beds to meet the needs of all homeless men applying for shelter. In Shantistar Builders (AIR 1990 SC 630), the Supreme Court of India took a holistic view of life and wrote that “the right to life is guaranteed in any individual society.” “That would take,” said the Court, “the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.” In the inter-State complaint of Cyprus v. Turkey, 4 EHRR, Report of the Commission, the European Commission on Human Rights addressed mass evictions as a violation of the right to respect for the house. The Commission held that: The evictions of Greek Cypriots from homes including their houses, which are imputable to Turkey under the Constitution, amount to an interference which rights guaranteed under Article 8(1) of the Constitution [European Convention on Human Rights and Fundamental Freedom], namely, the right of these persons to respect for their home, and/or their right to respect for private life… There is in the world today, thanks to progressive judges and justices, the growing acceptability of social, economic and cultural 110THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 rights as enforceable and justiciable. In the Philippines and various parts of the globe, the enforceability of the kinds of rights can be enhanced if Congresses or National Assemblies or Parliaments pass a statute known as law of amparo (in Spanish, amparo means “protection”). This law of amparo is a device intended to protect social, economic and cultural rights not protected by habeas corpus. To protect constitutional guarantees, Latin American countries like Mexico, Argentina, Brazil, Costa Rica, El Salvador, Panama, Honduras, Nicaragua, Guatamela, Bolivia, Paraguay and Ecuador have incorporated in their Constitutions ley de amparo. The Mexican amparo is a versatile institution. It can be used as a writ of habeas corpus, injunction, declaratory judgment or appeal. The leading Mexican writer, Fix Zumudio, points out that the amparo combines the following five autonomous procedural functions: 1. Protection of life and liberty; 2. Challenging unconstitutional laws; 3. Resolution of conflicts stemming from administrative acts and decisions; 4. Appeal of judicial decisions; and 5. Protection of the rights of persons subject to agrarian reform. In the Philippines, the Supreme Court, without waiting for congressional action or a constitutional amendment, can adopt rules related to the law of amparo. Under Article VIII, Sec. 5(5) of the 1987 Constitution, the Supreme Court can “promulgate rules concerning the protection and enforcement of constitutional rights…and legal assistance to the underprivileged.” It will be a blow for democracy and good governance should the Supreme Court, consistent with its libertarian tradition and judicial creatitivity, promulgate rules analogous to ley de amparo. 2002] RIGHTS, OBLIGATIONS AND REMEDIES: 111 INTERNATIONAL AND DOMESTIC EXPERIENCES The enforceability of social, economic and cultural rights will be further enhanced if an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights will be adopted. Individuals, organizations and States will not be starting from scratch because last January 28, 1995, the Utrecht Expert Meeting, drawing inspiration from the principle of indivisibility of human rights embedded in the International Bill of Rights, as well as in the Vienna Declaration and Programme of Action adopted by the Second World Conference on Human Rights, prepared a Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Once an Optional Protocol comes into force, it will be a potent instrument to protect economic, social and cultural rights throughout the world. The enforceability/justiciability of economic, social and cultural rights is not without a critic. George Moose, the American Ambassador to the UN Human Rights Commission (UNHRC), explained in April that his country was “concerned” about changes in international law that would ”lead in the direction of the creation of legal enforceable entitlements to economic, social and cultural rights.” He said “that would mean citizens could sue their governments for enforcement of rights” (“Righting Wrongs,” The Economist, August 18, 2001).

V. CONCLUSION

I now conclude. Since I am speaking before justices and judges, may I confess that I have my favorite justices, living dead. One of them, now deceased, is Chief Justice Roberto Concepcion. Justice J.B.L. Reyes described Chief Justice Roberto Concepcion as a great jurist and 112THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 perfect gentleman. Chief Justice Claudio Teehankee described him as Champion of the Rule of Law. In a book entitled, Roberto Concepcion, Chief Justice of the PhilippinesPhilippines, Chief Justice Roberto Concepcion wrote about the Supreme Court. The article entitled, “The Supreme Court: Its Responsibilities and Its Membership,” though written and spoken in 1973, on the occasion of his retirement from the Supreme Court, is timely and has a bearing on the role of the Judiciary for the realization of economic, social and cultural rights. He said: Upon the other hand, the Supreme Court now exercises the power of administrative suspension over all courts and the personnel thereof…As a consequence, the Supreme Court is now called upon to blaze new trails, and the Philippine Bench, as well as the Bar and the people in general, are looking forward to administrative measures and precedent setting decisions tending to bolster up the independence of the [J]udiciary, expedite the administration of justice and otherwise foster the people’s faith in our courts of justice as instrumentalities of their welfare. Long live the Justices and Judges! Mabuhay! The ICESCR and the Work of the Committee on Economic, Social and Cultural Rights∗

Prof. Virginia B. Dandan∗∗

I. INTRODUCTION ...... 114 II. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) ...... 116 III. THE W ORK OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ...... 118 A. Reporting Mechanism B. The Committee on Economic, Social and Cultural Rights and Its Jurisprudence IV. CONCLUSION ...... 129 ∗ Delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 12, 2001, at PHILJA, Tagaytay City. ∗∗ Professor Virginia B. Dandan, Dean of the University of the Philippines College of Fine Arts, is also the Chairperson of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) for the past three years. She is the first woman to head the UP College of Fine Arts and also the first woman and first Asian to chair the UN Committee on ESCR. A member of the CESCR for 10 years, she has read papers for numerous conferences and meetings on human rights, and has conducted extensive research on cultural rights. She has traveled to a number of countries to observe firsthand the implementation of the International Covenant on ESCR. Aside from her activities in the field of human rights, she continues to be a productive artist and holds regular exhibitions of her art. 114THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

I. INTRODUCTION

International human rights law is a relatively new legal system, having come into its own only since the end of World War II. This legal regime has evolved dynamically since the adoption of the United Nations Charter in 1945 and some of the more important legal philosophies are codified within this legal regime. International human rights law consists of a code of laws enshrined in diverse legal texts, some of which create legally binding obligations while others are more symbolic in nature.1 Treaties, covenants and conventions are generally considered to be legally binding instruments possessing the force of law. For the treaty to become legally binding upon governments, States must go through certain procedures beginning with the signing of the treaty and ultimately its ratification by the Parliament of the State concerned. In effect, when a State ratifies an international treaty such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the State makes a solemn vow to its citizens (including non-nationals residing within its territories), to other States that have also ratified the treaty, and to the international community at large that the provisions of the treaty will be promoted, respected, protected and fulfilled. Consequently, when the provisions of the treaty are violated or not fulfilled, the State Party cannot argue that concerns about the infringements of rights protected by the treaty are strictly internal affairs.

1. T. Meron, ed. (1984) Human Rights in International Law: Legal and Policy Issues, Clarendon Press, Oxford; and Newmann and Weissbrodt (1990) International Human RightsRights. Anderson Publishing Co., Cincinnati referred to in Scott Leckie, When Push Comes to Shove (Habitat International Coalition, 1997), p. 33. 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 115 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS A basic question arises at this point - to whom do these legal documents apply and who is liable for implementation? International law addresses itself to actions between States while human rights law refers to the relationship of the citizen to the State. Human rights are not States’ rights. Human rights are rights of individuals and their communities within States. Human rights laws create various levels of legal obligations for States while at the same time generating a series of entitlements for the beneficiaries of these rights. Under human rights law all individuals and groups are to be protected against the violation or infringements of their rights. The entity ultimately responsible for doing so is the State. The State makes laws, has the power and capability of enforcing them and, under the norm of international human rights law, the duty to do so. One of the weaknesses of this legal system is its enforcement at the national level. While it might be difficult for a government to not act in accordance with the terms of its national Constitution, it is comparatively simple for States to avoid complying with their international legal obligations. Thus, the role of good faith in carrying out human rights duties by governments remains central. Most people have no idea that their governments possess binding human rights obligations, and fewer still know of the availability of procedures designed for the redress of human rights violations. Another weakness is apparent in the fact that in the field of international human rights law as well as its application at the national level, civil and political rights have in almost every respect received more attention, legal codification and judicial interpretation. They have also been instilled in public consciousness to a far greater degree than economic, social and cultural rights. Inspite of the repeated reaffirmation of the fundamental notion 116THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 that civil and political rights and economic, social and cultural rights are indivisible and interdependent, economic, social and cultural rights have until recently been often seen as ‘second class’ rights, unenforceable, non-justiciable, only to be fulfilled ‘progressively’ over time. It is important to note, however, that in the years immediately past, it has become evident that greater attention is being paid to economic, social and cultural rights. The UN Commission on Human Rights has in fact passed a number of resolutions on the rights enshrined in the International Covenant on Economic, Social and Cultural Rights and on the work of the Committee on Economic, Social and Cultural Rights. For example, in the light of issues arising from the impact of liberalization, markets and globalization on human rights, civil society has become more sensitized to economic, social and cultural rights. A global network has been formed into an alliance of non-governmental organizations working in the field of economic, social and cultural rights. Even Amnesty International which has traditionally focused its efforts on civil and political rights has formally embraced economic, social and cultural rights. An even more significant development is the increasing general acceptance of the precise legal nature of economic, social and cultural rights. It is within this landscape that we situate our focus and concern on the implementation of the ICESCR at the national level.

II. THE INTERNATIONAL COVENANT ON ECONOMIC,,, SOCIAL AND CULTURAL RIGHTS (ICESCR)

The International Covenant on Economic, Social and Cultural Rights entered into force in 1976. It is divided into five “Parts.” Part I (like Part I of the ICCPR) recognizes the rights of peoples to self-determination; Part II defines the general nature of the 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 117 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS States Parties obligations; Part III enumerates the specific substantive rights; Part IV deals with international implementation; Part V contains typical final provisions of a human rights treaty. Part I consists of Article I, which provides for the realization of the right to self-determination, a right that is fundamental to the effective guarantee of individual human rights. Self- determination has both external and internal dimensions which have recently become controversial. The right to self-determination is now being asserted by groups within countries and not just by ex-colonies. Part II defines the general nature of States Parties’ obligations. The principle of non-discrimination is provided for in Article 2, paragraph 2 of the Covenant which guarantees the exercise of the rights in the Covenant without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3 guarantees that men and women have the same legal entitlements to the rights provided for in the Covenant. In effect, both Articles 2 and 3 provide significant legal protection against all forms of discrimination in the pursuit of economic, social and cultural rights. Articles 4 and 5 are provisions pertaining to limitations, restrictions and derogation. The provisions under Part II are deemed to be immediately applicable no matter what the economic status may be of the State party. Part III of the Covenant articulates the right to work, the right to fair wages and to just working conditions, the right to strike and to freedom of association, the right to social security, the protection of the family, the right to an adequate standard of living, which includes the right to adequate housing and to freedom from hunger, the right to physical and mental health, 118THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 the right to education, the right to take part in cultural life and to enjoy the benefits of scientific progress, and the protection of moral and material interests derived from his or her artistic endeavors.2 Towards the objective of protection and promotion of economic, social and cultural rights, States Parties are required to submit periodic reports regarding their compliance with their obligations under the Covenant. The reporting presently in place requires each State Party to submit an initial report within two years following ratification, and thereafter to submit periodic reports in five-year intervals. The Covenant also addresses the important task of governments and the United Nations in the field of human rights and that is - implementation. To that end, the Covenant provides not only for monitoring the implementation of its provisions through a system of State reporting, but also through reporting by UN specialized agencies such as ILO, UNESCO, WHO, FAO and UNHCR on the effects of policies and programs on economic, social and cultural rights and on the progress made in the enjoyment of these rights. There are 145 States Parties to the Covenant to date, the most recent members of which are Thailand and China.

III. THE WORK OF THE COMMITTEE ON ECONOMIC,,, SOCIAL AND CULTURAL RIGHTS (CESCR)

The Committee on Economic, Social and Cultural Rights was established in 1985 by the UN Economic and Social Council

2. United Nations Fact Sheet No. 16 Rev. 1 (1996). The Committee on Economic, Social and Cultural Rights, p.24, Geneva... 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 119 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS primarily to monitor the implementation of the Covenant. The Committee is composed of eighteen (18) independent experts who serve in their individual capacities and although nominated by their governments, are not themselves government representatives. They are elected into office by the ECOSOC based on the candidates’ qualifications while at the same time bearing in mind the equitable geographic representation as prescribed by the UN. The Committee draws on the expertise of its members in providing assistance to governments in fulfilling their obligations under the Covenant through suggestions and recommendations towards ensuring the realization of economic, social and cultural rights.3 Periodic reports of States Parties are prepared according to the Committee’s general guidelines for reporting which are intended to facilitate the preparation of reports and ensure that the issues of principal concerns are dealt with in a methodical and informative manner.4 When a State Party’s report is received by the UN, it is translated by the Secretariat into the UN working languages, after which the report is reviewed by the Committee’s five-member pre-sessional working-group meeting six months prior to its consideration by the Committee at its succeeding session.

3. Ibid. 4. United Nations Economic and Social Council E/C12/1991/1 (17 June 1991). Revised General Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights. 120THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Representatives of the State Party formally present the report during a Committee session and engage in an extensive dialogue with Committee members who may comment and ask further questions in relation to the report and other information received by the Committee from other sources. At the end of the dialogue, the Committee concludes its consideration of the report by adopting a set of concluding observations regarding the compliance of the State Party to the Covenant. The Committee bases its concluding observations on all the relevant materials available to it, including its dialogue with representatives of the reporting State Party. In accordance with its methods of work, the Committee focuses on four aspects in its concluding observations - factors and difficulties which impede the implementation of the Covenant, positive factors, principal subjects of concern and, suggestions and recommendations. Concluding observations comprise part of the annual Committee report to the ECOSOC and are sent to the reporting State Party’s permanent mission during the last afternoon of the Committee session.

A. The Reporting Mechanism The Committee attaches great value to the reporting process not only because it is in fulfillment of an obligation on the part of the State Party, but also because it fulfills other functions - the initial review, monitoring, policy formulation, public scrutiny, evaluation, acknowledging problems and information exchange.5 General Comment No. 1 adopted by the Committee during its

5. Alston, Philip. “The Purposes of Reporting” in Manual for Human Rights Reporting (1997). United Nations Centre for Human Rights/United Nations Training and Research, pp. 14-16. 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 121 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS third session in 1989 sets out seven objectives of its reporting system. The following are excerpts from these seven objectives, which elaborate on the functions of the reporting process.6 • A first objective, which is of particular relevance to the initial report required to be submitted within two years of the Covenant’s entry into force for the State Party concerned, is to ensure that a comprehensive review is undertaken with respect to national legislation, administrative rules and procedures and practices in an effort to ensure the fullest possible conformity with the Covenant. • A second objective is to ensure that the State Party monitors the actual situation with respect to each of the rights on a regular basis and is thus aware of the extent to which the various rights are or are not being enjoyed by all individuals within its territory or under its jurisdiction. • While monitoring is designed to give a detailed overview on the existing situation, the principal value of such as overview is to provide the basis for the elaboration of clearly stated and carefully targeted policies, including the establishment of priorities which reflect the provisions of the Covenant. Therefore a third objective of the reporting process is to enable the Government to demonstrate that such principled policy-making has in fact been undertaken. • A fourth objective of the reporting process is to facilitate public scrutiny of government policies with respect to economic, social and cultural rights, and to

6. United Nations International Human Rights Instruments HRI/ GEN/1/Rev.3 (1997) General Comment 1 Reporting by States Parties, pp. 56-58. 122THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

encourage the involvement of the various economic, social and cultural rights sectors of society in the formulation, implementation and review of relevant policies. • A fifth objective is to provide a basis on which the State Party itself, as well as the Committee, can effectively evaluate the extent to which progress has been made towards the realization of the obligations contained in the Covenant. • A sixth objective is to enable the State Party itself to develop a better understanding of the problems and shortcomings encountered in efforts to realize progressively the full range of economic, social and cultural rights. • A seventh objective is to enable the Committee, and the States Parties as a whole, to facilitate the exchange of information among States and to develop a better understanding of the common problems faced by States, and a fuller appreciation of the type of measure which might be taken to promote effective realization of each of the rights contained in the Covenant.

B. The Committee on Economic, Social and Cultural Rights and Its Jurisprudence

The year 2001 makes the twenty-fifth year since the entry into force of the ICESCR and sixteen years since the Committee was first established. At present it is not yet possible to submit formal complaints to the Committee regarding violations by States Parties of the Covenant. The preparation of an Optional Protocol was being discussed in the Committee as early as 1990. In the Vienna Declaration and Programme of Action, the World Conference on Human Rights in 1993 encouraged “the Commission on 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 123 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of Optional Protocols to the International Covenant on Economic, Social and Cultural Rights” (Part II, para. 75). The Committee went through a process of drafting an optional protocol over a period of five years and in December 1996, it submitted to the Commission on Human Rights its Draft Optional Protocol to the ICESCR, which grants the right of individuals or groups to submit communications concerning non-compliance with the Covenant. Today, five years later after the submission, fierce discussions among States and outright resistance by some that are seeking to block other States from opening the instrument for signature, have delayed the adoption of the Optional Protocol. The resistance within the Commission on Human Rights is led by States from the north, foremost among them the USA which has not even ratified the Covenant. The very same States that repeatedly and loudly invoke the indivisibility and interdependence of human rights, are at the forefront of the resistance to an Optional Protocol that would correct the neglect of economic, social and cultural rights, as well as the imbalance presently obtaining between civil and political rights on the one hand, and economic, social and cultural rights on the other. The latest development is that of the appointment by the Commission of an independent expert to study the Draft Optional Protocol. This independent expert has been asked to submit his report in December of this year. The continued absence of an optional protocol has not deterred the Committee from proceeding with its normative work of elaborating general comments, statements and revising its guidelines for reporting by States. General comments are a crucial 124THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 means of generating the Committee’s jurisprudence, providing a method by which members of the Committee come to an agreement regarding the interpretation of norms embodied in the Covenant. Over the years, the Committee has gained an extensive experience through its examination of large and still growing number of States Parties’ reports. These reports have disclosed gaps and insufficiencies in the interpretation by States Parties of the provisions of the Covenant. These reports have also validated the practices of some States towards the fulfillment of their obligations according to the Covenant. The Committee has so far elaborated two types of general comments. There are general comments that deal with specific themes. Reporting by States Parties - forced evictions, persons with disabilities, the economic, social and cultural rights of older persons, the relationship between economic sanctions and respect for economic, social and cultural rights, the domestic application of the Covenant, and the role of national human rights institutions in the protection of economic, social and cultural rights - have so far been the themes dealt with by the Committee in its general comments. The other general comments deal with specific provisions of the Covenant - the right to adequate housing (Art. X1(1)), plans of action for primary education (Art. XIV), the right to adequate food (Art. X1), the right to education (Art. XIII), and the most recent of all, the right to the highest attainable standard of health (Art. XII). On the basis of its consideration of States’ reports and of its own deliberations as it drafts general comments, the Committee seeks to attain three principal objectives - developing the normative content of the provisions of the Covenant; acting as catalyst to state action in developing national benchmarks and devising appropriate mechanisms for establishing accountability 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 125 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS and providing means of vindication to aggrieved individuals and groups at the national level; and, holding states accountable at the international level through the examination of reports. It will be recalled earlier in this paper that the Committee adopts concluding observations at the end of its consideration of States Parties’ reports. In these concluding observations, there is an abundance of references made by the Committee to its general comments when drawing the attention of States Parties to [their] obligations under the Covenant. To illustrate, in its concluding observations on the initial report of Cameroon during its 21st session, the Committee made the following recommendations to the State Party. Para. 355. The Committee urges the State Party to implement laws and policies to combat the problem of forced evictions, in accordance with General Comments No. 4 (1991) and No. 7 (1997) concerning the right to adequate housing (Art. X1, para.1 of the Covenant). Para. 357. The Committee recommends that the Government take effective measures to end all forms of compulsory parental contribution for primary education. In this regard, the Committee urges the State Party to allocate increased resources to education, in particular for infrastructure and human resources, especially in rural areas. In this connection, the Committee draws the attention of the State Party to its General Comment No. 11 (1999) on plans of action for primary education (Art. XIV of the Covenant).7

7. Economic and Social Council Official Records 2000 Supplement No. 2. Committee on Economic, Social, and Cultural Rights Report on the Twentieth and Twenty-First Sessions. United Nations (1999), p.61. 126THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Similarly, in its concluding observations on the initial report of the Philippines on Articles X to XII of the Covenant, the Committee made the following recommendations. Para. 31. The Government should ensure that forced evictions are not carried out except in truly exceptional circumstances, following consideration of all possible alternatives and in full respect of the rights of all persons affected. The Committee urges the Government to extend indefinitely the moratorium on summary and illegal forced evictions and demolitions and to ensure that all those under threat in these contexts are entitled to due process. The Government should promote greater security of tenure in relation to housing in accordance with the principles outlined in the Committee’s General Comment No. 4 and should take the necessary measures, including prosecutions wherever appropriate, to stop violations of laws such as R.A. 7279. In general, the Committee urges that consideration be given to the repeal of P.D. 772 and P.D. 1818, and recommends that all existing legislation relevant to the practice of forced evictions should be reviewed so as to ensure its compatibility with the provisions of the Covenant…8 From time to time the Committee adopts statements to address current and compelling issues that impact on the enjoyment of economic, social and cultural rights in general and on the capacity of States Parties to comply with their obligations under the Covenant. Through these statements, the Committee has signaled in concrete terms that is closely examining these critical issues through the lens of the Covenant. The most recent statements issued by the Committee are its Statement to the Third Ministerial Conference of the World Trade Organization in

8. Economic and Social Council. E/C.12/1995/7. 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 127 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Seattle in 1999, and its statement, “Poverty and the International Covenant on Economic, Social and Cultural Rights,” which it adopted in time for the World Conference for Least Developed Countries. The Statement to WTO underlined the Committee’s concern about the social impacts of economic liberalization programmes, policies and laws and the negative consequences of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), particularly on food security, indigenous knowledge, bio-safety and access to health care - major concerns of the Committee as reflected in Articles XI to XV of the Covenant. The last paragraph of the statement urges - … WTO members ensure that their international human rights obligations are considered as a matter of priority in their negotiations which will be an important testing ground for the commitment of States to the full range of their international obligations.9 The Committee’s statement on poverty adopted in May 2001 is historic in that it is the first time that a UN body has formally identified a conceptual link between poverty and human rights. The Committee concludes its statement with the following paragraphs: Para. 19. The Committee strongly recommends the integration of international human rights norms into participatory, multi-sectoral national poverty eradication or reduction plans. Such anti-poverty plans have an indispensable role to play in all States, no matter what their stage of economic development.

9. Economic and Social Council. E/C.12/1999/9. para.8. 128THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Para 20. Non-State actors, including international organizations, national human rights institutions, civil society organizations and private businesses, also have heavy responsibities in the struggle against poverty. Each should clearly identify how it can contribute to poverty eradication, keeping in mind the human rights dimensions of poverty as outlined in this statement. Para. 21. The Committee is deeply aware that there are structural obstacles to the eradication of poverty in developing countries. Through its various activities, including the reporting process and the adoption of general comments, the Committee attempts to assist developing States by identifying measures that they can and should take to address these obstacles. However, some of the structural obstacles confronting developing States’ anti-poverty strategies lie beyond their control in the contemporary international order. In the Committee’s views, it is imperative that measures be urgently taken to remove these global structural obstacles, such as unsustainable foreign debt, the widening gap between rich and poor, and the absence of an equitable multilateral trade, investment and financial system; otherwise the national anti-poverty strategies of some States have limited chance of sustainable success. In this regard, the Committee notes Article 28 of the Universal Declaration of Human Rights, as well as the Declaration on the Right to Development, in particular, Article 3.3.10

10. Economic and Social Council. Poverty and the International Covenant on Economic, Social and Cultural Rights. E/ C.12/2001/10. 2001. 2002] THE ICESCR AND THE WORK OF THE COMMITTEE 129 ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

IV. CONCLUSION The Committee is presently reviewing its revised guidelines for reporting with a view to updating its content in order to integrate its general comments and statements. The Committee’s guidelines for reporting is designed to provide States with a blueprint in preparing their reports on how they implement the treaty provisions of the Covenant in their territories. The guidelines also reveal the Committee’s view as to which elements comprise each provision of the Covenant and from which derive an important source of its jurisprudence. It is also evident upon a closer scrutiny of the guidelines that the Committee takes the work of specialized agencies with care and attention. As such, the Committee constantly seeks updates on the development of their policies. The Committee looks upon the ratification of ILO Conventions as an important indicator of how seriously a State takes its obligations under the work- related rights in the Covenant. Similarly, the work of UNESCO, particularly in the field of education, is a very important component in the Committee’s consideration of States Parties’ fulfillment of the right to education. The Committee drafted its general comment on the right to food with FAO as its working partner. Similarly when the Committee was drafting its general comment on the right to education and the right to health, it did so with UNESCO and WHO by its side. As the Committee begins its work of crafting a general comment on the right to take part in cultural life, it has invited UNESCO once again to be its working partner. Inspite of the mounting evidence that economic, social and cultural rights are justiciable, questions in this regard have not been laid to rest. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural 130THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Rights11 state that although the fulfillment of Covenant rights is to be attained progressively, “… the application of some rights can be made justiciable immediately while a other rights can become justiciable over time.”12 In other words, justiciability of the ICESCR is an obligation of the State Party. At the national level, it is the duty of States Parties - … to use all appropriate means, including legislative, administrative, judicial, economic, social and education measures consistent with the nature of the rights, in order to fulfill their obligations under the Covenant.13

11. A group of distinguished experts in international law, convened by the International Commission of Jurists, the Faculty of Law of University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, USA), met in Maastricht on 2-6 June 1986 to consider the nature and scope of the obligation of States Parties to the ICESCR, the consideration of States Parties’ reports by ECOSOC CESCR, and international cooperation under Part IV of the Covenant. The participants agreed unanimously upon what was henceforth known as the Limburg Principles on the Implementation of the ICESCR which they believed reflected the state at that time of international law. 12. International Commission of Jurists. Economic, Social and Cultural Rights: A Compilation of Essential Documents. ICJ (1997), p. 66. 13. Ibid. p.67 Justiciability of Socio-Economic and Cultural Rights∗

Fr. Joaquin G. Bernas, S.J.∗∗

I. INTRODUCTION ...... 132 II. JUSTICIABILITY ...... 132 A. Strengths and Limitations of Separation of Powers B. Judicial Power C. Case and Controversy Doctrine D. Demandable Legal Right and Its Violation 1. Oposa v. Factoran, Jr. 2. Cruz v. Flavier III. CONCLUSION ...... 150

∗ Delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 12, 2001, at PHILJA, Tagaytay City. ∗∗ Fr. Joaquin G. Bernas, S.J., is a Jesuit priest and a lawyer by vocation. At present he is Rector of the Jesuit Residence of the Ateneo de Manila University and Dean of the Ateneo Law School. He writes a column twice a week for the newspaper TODAY. A graduate of the Ateneo Law School, he also holds the degree of Doctor of Juridical Science from New York University and an M.A. in Philosophy and Licentiate in Sacred Theology. He was Dean of the School of Arts and Sciences of the Ateneo; President of the Ateneo; Provincial Superior of the Jesuits in the Philippines; Delegate to two General Congregations of the Society of Jesus, the highest law-making body of the Order; and Member of the 1986 Constitutional Commission. He has written numerous books on Constitutional Law which are in use in schools and by the Bench and Bar. 132THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

I. INTRODUCTION

The subject of my brief comments is the justiciability of socio- economic and cultural rights. I propose to approach it from the viewpoint of Philippine constitutional law. Necessarily, therefore, my discussion will have to touch on separation of powers, albeit briefly, on the scope of judicial power, and on the language of our Constitution when it speaks of socio-economic rights.

II. JUSTICIABILITY

A. Strengths and Limitations of Separation of Powers We are all familiar with separation of powers, both with its strengths and its limitations. I always like to refer to separation of powers as an aspect of a document which is a covenant of both trust and distrust. We allocate the tremendous powers of government among various officials because we have a modicum of trust in them. But deep down within us, we know that we cannot trust them absolutely. For the reason we have engrafted into the Constitution various devices through which we can rein in government officials when they show signs of betraying our trust. These devices are both structural and doctrinal. Separation of powers is the principal structural device. A major argument usually used against separation of powers is that the system is inefficient and wasteful. Criticism of separation of powers as inefficient is legitimate criticism. But it must be remembered that separation of powers was not invented as an instrument for efficiency. It was invented as a bulwark against tyranny whether of the legislature, of the executive or even of the Judiciary. It is in this context that I propose to comment on justiciability. I must say that, with the memory of the martial law 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 133 AND CULTURAL RIGHTS Supreme Court still fresh, I believe we should maintain a modicum of distrust even of the Judiciary.

B. Judicial Power Within the context of separation of powers, what is given to the Judiciary is only judicial power. Our Constitution defines judicial power thus: 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 government. The first part of this definition sets down the familiar “case” and “controversy” parameter of judicial power applicable to all disputes, and the second part focuses on grave abuse of discretion which has special relevance to what are traditionally called “political questions.”

C. Case and Controversy Doctrine I believe that in discussing justiciability, we must begin with the limitation that arises from the case and controversy requirement. Out of these two words jurisprudence has woven an entire body of doctrine setting down the conditions when the courts may exercise power. The literature on case and controversy embodies two complementary limitations. First, it confines courts to playing a limited role within a tripartite system of government and ensures that courts will not intrude into areas assigned to the other two departments. The confinement is principally effected through the “political questions” doctrine, but it is also supported by the prohibition of “advisory opinions.” Second, the case and 134THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 controversy doctrine limits the business of courts to questions presented in an adversary context and in a form capable of judicial determination. This excludes questions that have become moot as well as collusive suits. “Justiciability is the term of art employed to give expression to this dual limitation placed upon...courts by this case and controversy doctrine.”1 The case and controversy doctrine is peculiarly self-regarding. It tells us how the Judiciary views its own role. It is a manifestation of the Judiciary’s institutional psychology. It is a psychology that is conservative and that forces the Judiciary to assert that in order for a claim to be justiciable, it must first “present a real and substantial controversy which unequivocally calls for adjudication of the rights” asserted.2 Two things are involved here: first, the court looks for a demandable legal right and, second, it looks for a violation of that legal right which calls for correction.

D. Demandable Legal Right and Its Violation The existence of a demandable right is not something that is created by courts. Demandable rights are either constitutional or statutory creations or prescriptions of equity. It is noteworthy, for instance, that in the grant of rulemaking authority to the Supreme Court, it is specifically stated that the rules shall not “diminish, increase, or modify substantive rights.”3 The first step in the justiciability process, therefore, is the search for and identification of a demandable right. When none is found, the courts are unable to offer a remedy.

1. Flast v. Cohen, 392 U.S. 83, 94-95 (1968). 2. Poe v. Ullman, 367 U.S. 497, 509 (1961). 3. Article VIII, Section 5 (5). 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 135 AND CULTURAL RIGHTS The second step is the determination of whether there has been a violation that calls for redrss. This involves the issue of locus standi, that is, whether the party-seeking redress has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. The analysis of standing issues involves two inquiries. The first inquiry is whether the challenged action has caused the complainant an injury in fact, whether economic or otherwise. In order to show injury in fact, the complainant must show: ...such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of different…questions.4 The second inquiry is whether the interest sought to be protected is covered by the statutory or constitutional guarantee being appealed to. This involves the question whether the statutory or constitutional provision being appealed to is judicially enforceable. This inquiry focuses on the limits of judicial competency. This inquiry, it should be noted, has been much affected by the new provision which says that judicial power includes the power: ...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.5 Are these requirements of justiciability applicable to issues involving socio-economic and cultural rights? Unquestionably,

4. Baker v. Carr, 359 U.S. 186, 204 (1962). 5. Article VIII, Section 1. 136THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 they are. What I propose to do is to examine what methodology our Supreme Court uses in determining the justiciability of socio- economic and cultural rights. For this purpose I shall limit my discussion to two cases: Oposa v. Fatoran, Jr.6 , a case involving environmental rights, and Cruz v. Flavier7, a case involving the economic and cultural rights of indigenous communities.

1. Oposa v. Factoran, Jr. Oposa v. Factoran Jr. was a petition filed by a group of minors asking that logging licenses be repealed. Specifically the petition touched upon the issue of whether the petitioners had a cause of action to prevent the misappropriation or impairment of Philippine rainforests and “arrest the unabated hemorrhage of the country’s vital life-support systems and continued rape of Mother Earth.” The petition was predicated on two constitutional provisions found in Article II of the Constitution, Sections 15 and 16: SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. SEC. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. The claim of the petitioners was that they possessed a right to a balanced and healthful ecology. They dramatically associated this right with the twin concepts of “inter-generational responsibility” and “inter-generational justice.” To this, the

6. G.R. 101083, July 30, 1993. 7. G.R. 135365, December 6, 2000. 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 137 AND CULTURAL RIGHTS response of the Secretary of Natural Resources was that the petitioners had no cause of action. The first question that must be answered, therefore, for purposes of justiciability analysis is whether the petitioners were raising a demandable right. Justice Davide, the ponente in the case, was categorical in saying that there was and that it was a fundamental right. He wrote: The complaint focuses on one specific fundamental legal right—the right to a balanced and healthful ecology which, for the first time in our nation’s constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation— aptly and fittingly stressed by the petitioners—the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution 138THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the State a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come—generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment… But is the constitutional text found in Sections 15 and 16 sufficient to anchor justiciability? Justice Feliciano, although he concurred in the result, was not satisfied and wanted to see something more specific. He said: There is no question that “the right to a balanced and healthful ecology” is “fundamental” and that, accordingly, it has been “constitutionalized.” But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as “specific,” without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to “a balanced and healthful ecology.” The list of particular claims which can be subsumed under this rubric appears to be entirely open- ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 139 AND CULTURAL RIGHTS

and whole communities; of dumping organic and inorganic wastes on open land streets and thoroughfares; failure to rehabilitate land after strip mining or open pit mining, kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. Apparently Justice Davide himself did not find the constitutional text specific enough. Hence, he found it necessary to point to implementing statutory texts. He elaborated: Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country’s natural resources, then President Corazon C. Aquino promulgated on 10 June 1987, E.O. No. 192, Section 4 of which expressly mandates that the Department of Environment and Natural Resources “shall be the primary government agency responsible for the conservation, management, development and proper use of the country’s environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.” x x x This policy declaration is substantially restated in Title XIV, Book IV of the Administrative Code of 1987 x x x 140THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Still not satisfied with these, Davide next pointed to laws that anteceded the Constitution, specifically P.D. Nos. 1151 and 1152. He said: It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the ‘environmental right’ of the present and future generations. He concluded: Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR’s duty – under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987—to protect and advance the said right. But Feliciano was unconvinced. He said: The other statements pointed out by the Court: Section 3, Executive Order No. 192, dated 10 June 1987, Section 1, Title XIV, Book IV of the 1987 Administrative Code, and P.D. No. 1151, dated 6 June 1977 – all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Sections 16 (“the right to a balanced and healthful ecology”) and 15 (“the right to health”). P.D. No. 1152, also dated 6 June 1977, entitled, “The Philippine Environment Code,” is, upon the other hand, a compendious collection of more “specific environment management policies” and “environment quality standards” (fourth “Whereas” clause, Preamble) relating to an extremely wide range of topics: (a) Air quality management (b) Water quality management 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 141 AND CULTURAL RIGHTS

(c) Land use management (d) Natural resources management and conservation embracing: i Fisheries and aquatic resources ii. Wildlife iii. Forestry and soil conservation iv. Flood control and natural calamities v. Energy development vi. Conservation and utilization of surface and ground water vii. Mineral resources Feliciano next noted that: [N]either petitioners nor the Court [had] identified the particular provision or provisions (if any) of the Philippine Environment Code which [gave] rise to a specific legal right which petitioners [were] seeking to enforce. He continued: As a matter of logic, by finding petitioners’ cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. Why then did Justice Feliciano concur? He concurred merely in the result, and he did so in the expectation that the lower court, 142THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 to which the case was being remanded, would compel the petitioners to: ...show a more specific legal right - a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution - that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting, the proceedings on a motion to dismiss. The next point to consider is the standing of the petitioners. Standing is closely linked with the specificity of the legal right that is being asserted. I again begin with then Justice Davide who found no problem in finding locus standi. He said: Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the “rhythm and harmony of nature.” Nature means the created world in its entirety. Such rhythm and harmony indispensably include, 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 143 AND CULTURAL RIGHTS

inter alia, the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, water, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. This passage from Davide brings to my mind the issue in American jurisprudence whether citizenship alone is enough to anchor locus standi in constitutional challenges. In Schlesinger v. Committee to Stop the War,8 the U.S. Court held that individuals acting in their capacity as United States citizens lacked standing to raise the claim that the “incompatibility clause” of the Federal Constitution rendered a member of Congress ineligible to hold a commission in the Armed Forces. And in Ex Parte Levitt9 , the Court ruled that a citizen lacked standing to raise the claim that Justice Black, because of his vote as Senator for the increase of retirement benefits, had been improperly appointed to the Supreme Court. The Court ruled that to entitle a private individual to invoke judicial power, “he must show…a direct injury… and it is not sufficient that he has merely a general interest common to all members of the public.” As the Schlesinger decision put it, since “every provision of the Constitution [is] meant to serve the interests of all,” recognition of citizen standing

8. 418 U.S. 208 (1974). 9. 302 U.S. 633 (1937). 144THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

“has no boundaries” and would “distort the role of the[J ]udiciary in relation to the Executive and Legislature and open the [J]udiciary to the charge of government by injunction.” I believe that our Constitution also believes that citizenship alone cannot anchor standing. For that reason, Article VII, Section 18 makes an exception by allowing any citizen to challenge the factual foundation of the imposition of Martial Law or the suspension of the privilege of the writ. For Davide, however, the interest of the petitioner minors, speaking for their generation and generations to follow, was enough to anchor standing. In effect he was anchoring standing on citizenship or mere membership in the Philippine community. (Incidentally, if the Oposa decision had followed the first Kilosbayan decision, also penned by Davide, Davide might have used “transcendental importance” of the issue as his anchor for standing.) Again, however, Justice Feliciano found Davide’s position too loose for comfort. Feliciano argued: The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners’ claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of suit. Because of the very broadness of the concept of “class” here involved—membership in this “class” appears to embrace everyone living in the country, whether now or in the future—it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries’ right of action in the field of environmental protection, as against both the public 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 145 AND CULTURAL RIGHTS

administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such a beneficiaries’ right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown… is not discussed in the decision… But again Feliciano found comfort in the expectation that this would be attended to in the lower court in a future appropriate case. For this reason, he concurred in the result. I suggest, therefore, that in reading Oposa v. Factoran, Jr., it is important to note that the case did not dispose of the substantive constitutional issue with finality. It found the lower court’s dismissal of the case precipitous and ordered that the case be remanded with the instruction that the petitioners amend their petition including the impleading as defendants of the holders of timber licenses. The case, however, is seminal in that it clearly asserts that litigation about socio-economic and cultural rights is not excused from the justiciability requirements of demandable rights and locus standi. Moreover, I agree with the more precise essay of Justice Feliciano who requires that the demandable right be not abstract but concrete, not generalized but specific, which in turn can lead to determination of the existence of locus standi on the basis of direct injury.

2. Cruz v. Flavier There are, in the 1987 Constitution, at least eight provisions intended to protect cultural communities: The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. II,22. 146THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. VI,5(2). The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. XII,5. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. XIII,6. The State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. XIV,17. 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 147 AND CULTURAL RIGHTS

The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities. XVI,12. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. X, 15. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: 1. Administrative organization 2. Creation of sources of revenues 3. Ancestral domain and natural resources 4. Personal, family, and property relations 5. Regional, urban and rural planning development 6. Economic, social and tourism development 7. Educational policies 8. Preservation and development of the cultural heritage 9. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. X,20 Because of this, the Aquino administration signified a shift from integration of the cultural communities to preservation of 148THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 their distinctive culture. Thus she created the Office of Muslim Affairs, Office for Northern Cultural Communities and Office for Southern Cultural Communities. For its part, Congress took a major step towards protecting cultural communities by enacting the Indigenous Peoples’ Rights Act, R.A. 8371. But when the constitutionality of the Act was challenged before the Supreme Court, the fourteen sitting Justices divided evenly, voting 7 to 7. The principal bone of contention were the provisions of the Republic Act implementing Article XII, Section 5 which says: The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of the indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. The right enunciated in the constitutional provision as implemented by IPRA was challenged as a violation of the regalian doctrine. The bulk of the IPRA debate was on the existence of a legal right to ancestral domain and ancestral land. The affirmative side asserted that the indigenous peoples were private owners of ancestral domain and ancestral land on the basis of “native title.” Native title is defined by IPRA as referring “to pre-conquest rights to the land and domains which, as far back as memory reaches, have been held under private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish conquest”. (Section 3[l]). The title, however, is a limited title. It does not include the right to alienate. Nor does it include title to minerals 2002] JUSTICIABILITY OF SOCIO-ECONOMIC 149 AND CULTURAL RIGHTS found in the land. Nor indeed does it exclude the State from disposing of the natural resources. As far as justiciability, therefore, it is clear that Cruz v. Flavier also requires the existence of a concrete, legal right in the efforts to protect the interests of indigenous cultural communities. Cruz v. Flavier also involved the issue of standing. But the issue was raised not against those on the side of indigenous peoples, but against the petitioners challenging the constitutionality of IPRA. The separate opinion of Justice Mendoza, who also voted for dismissal of the case, was all about the lack of standing of the petitioners, one of whom was former Justice Isagani Cruz. Mendoza saw no direct injury threatening the petitioners. Following the strict doctrine on standing, Mendoza said: The judicial power vested in this court by Art. VIII, §1 extends only to cases and controversies for the determination of such proceedings as are established by law for the protection or enforcement of rights, or the prevention, redress or punishment of wrongs. In this case, the purpose of the suit is not to enforce a property right of petitioners against the government and other respondents or to demand compensation for injuries suffered by them as a result of the enforcement of the law, but only to settle what they believe to be the doubtful character of the law in question. Any judgment that we render in this case will thus not conclude or bind real parties in the future, when actual litigation will bring to the Court the question of the constitutionality of such legislation. Such judgment cannot be executed as it amounts to no more than an expression of opinion upon the validity of the provision of the law in question. I do not conceive it to be the function of the Court under Art. VIII, §1 of the Constitution to determine in the 150THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

abstract whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of legislative and executive departments in enacting IPRA. Our jurisdiction is confined to cases or controversies. No one reading Art. VIII, §5 can fail to note that, in enumerating the matters placed in the keeping of the Court, it uniformly begins with the phrase, “all cases…” The statement that the judicial power includes the duty to determine whether there has been a grave abuse of discretion was inserted in Art. VIII, §1 not really to give the [J]udiciary a roving commission to right any wrong it perceives, but to preclude courts from invoking the political questions doctrine in order to evade the decision of certain cases even where violations of civil liberties are alleged. For his part, Justice Kapunan, although he voted for the dismissal of the case, anchored standing, as Justice Vitug did, on the transcendental importance of the issue, a basis which the Court more and more readily uses these days. Justice Mendoza, on the other hand, adheres to the strict view that a: [p]ersonal stake enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the specific set of facts undergirding his grievance.

III. CONCLUSION To summarize then, what are the requirements for the justiciability of a claim based on socio-economic or cultural rights? The requirements are not different from those for the justiciability of other claims. First, there must be a legal right that is concrete and specific. Second, there must be a violation of that right. Third, there must be a person claiming direct injury, except in those instances where the matter in issue of transcendental importance. Reflecting on the Concept of Justiciability∗ ∗ ∗ Fr. Ranhilio C. Aquino, PhD, JurDr

I. THE LOOP AND THE CONCERN ...... 152 II. THE ACT OF JUDGING AND HUMAN COOPERATION ...... 153

* Delivered at the Philippine Judiciary Workshop on Economic, Social and Cultural Rights, on September 12, 2001, at PHILJA, Tagaytay City. ∗∗ Fr. Ranhilio C. Aquino, PhD, JurDr, is the Head of the Academic Affairs Office of the Philippine Judicial Academy and Chair of its Department of Jurisprudence and Legal Philosophy. He holds a Doctor of Philosophy, major in Philosophy degree, and was awarded a Post-Doctoral Research Fellowship by the Superior Institute of Philosophy of the Catholic University of Louvain in Belgium. He also holds a Doctor of Jurisprudence degree, major in International Law from the Columbia Pacific University in California. He was Vice-Dean of the Graduate School of the University of Santo Tomas and coordinator of its graduate law program. He authored several books such as A Philosophy of Education, Man at Worship: A Philosophy of Religion, Philosophy of Law, Intellectual Property Law, besides papers and lectures in philosophy and in law delivered locally and abroad. He has likewise regularly written for The Lawyer’s Review and has annotated for Supreme Court Reports Annotated. He is presently Parish Priest at St. Rose of Lima Parish, Annafunan, Tuguegarao, Cagayan Valley, and a Professor of law at the Cagayan Colleges Tuguegarao, College of Law, and the graduate program for philosophy, De La Salle University. 152THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

I. THE LOOP AND THE CONCERN

1. There is a very interesting loop that Baker v. Carr, 369 U.S. 186 (1962) suggests. I shall quote the U.S. Supreme Court: Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. Put more directly, whether a matter is for the court to pass upon or not is something that the Court must first pass upon! 2. Justiciability, on the one hand, limits the reach of judicial power. What is not justificable is beyond the province of the courts. On the other hand, it enhances it, for whether or not an issue is justificable or political (to use its classic antonym) is itself a justiciable question. 3. Justiciability is a legitimate theoretical and juridical concern when one deals with economic, social and cultural rights. Thomas Buergenthal deftly characterizes the differences between the Civil and Political Rights Covenant engendered by the Universal Declaration on Human Rights, and the dealing with Economic, Social and Cultural Rights. 4. “The obligations which a State Party assumes by ratifying this Covenant (on Economic, Social and Cultural Rights) differ very significantly from the requirement of immediate implementation found in the Civil and Political Covenant xxx As this language (the language of Article 2,1) indicates, by ratifying the Covenant, a State does not undertake to 2002] REFLECTING ON THE 153 CONCEPT OF JUSTICIABILITY give immediate effect to the rights it enumerates. Instead the State obligates itself merely to take steps ‘to the maximum of its available resources’ in order to achieve ‘progressively the full realization’ of these rights.” (International Human Rights, Nutshell, 44)

II. THE ACT OF JUDGING AND HUMAN COOPERATION

5. I will assume as non-controversial the rather unpretentious thesis that justiciability is “amenability to the act of judging” by the institution of the courts. I shall, however, draw from the insight of Paul Ricoeur on “The Act of Judging” which, with characteristic freshness of perspective, he offers in one of his latest books, The Just (Le Juste). 6. The act of judging has its context in that social effort to arrive at a rational consensus through the institution or phenomenon of society called the court. “Rational” and “consensus” are the two terms to which I wish invite more than just passing attention. “Justiciability” submits an issue to that kind of resolution mediated by courts that apply laws. Of late, there has been much whining about the technicalities in which courts, it is complained, allow themselves to be enmeshed. This, of course, is to miss the whole point to “justiciability.” When an issue is within the province of the judicial power of State, it is dealt with and resolved by reference to the specific set of norms—or technical precepts—called laws. In this sense, “justiciability” is circumscribing and confining. 7. Ricoeur finds four conditions for the act of judging in its judicial form—in other words, for justiciability. These are: 154THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

7.1 the existence of written law; 7.2 the presence of an institutional framework - courts, appeal courts, etc.; 7.3 the intervention of qualified, competent, independent persons who are charged with judging; 7.4 a course of action constituted by the trial or judicial process, where the pronouncement of judgment constitutes the endpoint. 8. There seems to be expert agreement that the rights set forth in the Covenant on Economic, Social and Cultural Rights are “programmatic and promotional” (Brownlie, Principles of Public International Law, 4th Ed., 572), and that therefore an “evolving programme is envisaged depending upon the goodwill and resources of States rather than an immediate binding legal obligation with regard to the rights in question” (Shaw, International Law, 3rd Ed., 198). This makes it especially challenging to introduce justiciability in this context. What is incontestable is that justiciability will depend in large measure on the degree of specificity, consequent to treaty obligations, with which municipal law provides the standards by which courts can adjudge claims. Justiciability before the International Court of Justice, on the basis of Article 38 of the Statute of the Court, will be co-extensive with the executory character of treaty provisions, with the evolution of international custom recognizing binding law, or even the emergence of peremptory norms in the sphere of social, economic, and cultural rights. 9. Again, however, there is a loop here, for the more resolutely our courts address themselves to social, economic, and 2002] REFLECTING ON THE 155 CONCEPT OF JUSTICIABILITY cultural rights, the more certainly usable judicial standards evolve for every act of judging. Ricoeur reflects, seeks the rule for a new case, and states the law in terms of a singular situation, while opening the way for a whole new course of jurisprudence. Rethinking our notion of standing, and with it maturing in our concepts of enforceable or demandable rights, are two ways of being more resolute. 10. Justiciability, at the same time, must be that salutary reminder to the judge and community alike that it is the “force of the law” that brings the debate between contending parties (the exchange of briefs and memoranda, pleadings and rejoinders) to an end, an exchange and a debate that could very well go on indefinitely. Justiciability, if it must be a preferable alternative to the brute force the law was crafted to evade, must be the heightened practice of discourse and of the rationality it presupposes. 11. The act of judging can also be considered as the institutionalization of distributive justice. To submit the justiciability of an issue is to assert that the goods with which it is concerned are susceptible of distribution, i.e., delimiting the goods of one from the goods of another, or of correction when there is something askew about the distribution. 12. While on the one hand, the provisions of the International Covenant on Economic, Social and Cultural Rights do not allow for definite standards or measures of compliance as do the provisions of the Civil and Political Rights Covenant, it is not too difficult to see that such rights as the right to dispose of natural wealth and resources, the rights to work and to favorable working conditions, the right to form labor associations, the right 156THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

to social security, the right to education and other rights as are guaranteed by the Covenant are justiciable, i.e., they are subject to the institutionally framed distributive determination of the courts. 13. As regards economic and social rights, one can distinguish two levels of justiciability: there are rights that one State may claim against another, obviously calling for the intervention of international courts and tribunals administering and applying international law; there are also rights that an individual in a State may claim against other individuals, or even against his own government. 14. The litigation process—adjudication, in other words—is actually a structured, stylized form of a more elementary social phenomenon: conflict. One transfers to the courtroom and subjects to the ritual of judicial process the conflict that would otherwise express itself in other forms, violence primordial among them. Considering an issue justiciable is therefore expressing the preference for discourse over violence. At the same time, that there is something precarious about the option for adjudication is clear, for where citizens and States despair over the unreliability or incompetence of adjudication, then the attractiveness of the speedier outcome of violent confrontation becomes more difficult to resist. 15. Significantly, many times more pressing than what may seem to be elemental civil and political rights are economic and social rights. More Filipinos now are more concerned about the right to work than the right to vote, and a right to their share of whatever prosperity our society may enjoy than the complexities of the Miranda warnings. But justiciability does not have to do directly with an ideal order where all 2002] REFLECTING ON THE 157 CONCEPT OF JUSTICIABILITY share according to their needs and contribute according to their capacity! Rather, justiciability addresses injustice – where one of the parties cries, “Unfair.” Justiciability, therefore, is the pursuit of justice through the protest against injustice. 16. Justiciability, however, places a heavy burden on the court and on the judge for its finality is “recognition.” Let us, for now, leave out of the picture sore losers and unreasonable contenders. When a court decides, however, the end result should be that winning and losing parties alike recognize the rule by which the outcome is reached. The usefulness of the concept of justiciability is closely linked with the integrity of the judge, the rationality of the legal system, and the competence and credibility of the judicial institutions. 17. But the distribution that justiciability effects makes sense only if all share in common goods and common values. Ultimately, then, justiciability leads institutional procedure to social cooperation, to the formation of a community, be it a national community or a world community, not only in postponing the terrible hour of bloodshed, but also in drawing all to that common treasury that consists also of social, economic and cultural rights. 18. The act of judging that justiciability makes possible is maintaining that delicate balance between too close an encounter, such as one has in disorderly and violent conflict, or too distant a dealing which one has an ignorance, hate and scorn. Non-Discrimination and Participation: Gender and Children Issues∗

Prof. Myrna S. Feliciano∗∗

I. INTRODUCTION ...... 159 II. CONSTITUTIONAL POLICIES ...... 162 III. TREATIES AND INTERNATIONAL AGREEMENTS ...... 165 IV. NON-DISCRIMINATION ...... 168 A. Job Discrimination B. Violence Against Women V. P ARTICIPATION ...... 185 VI. CONCLUSION ...... 187

∗ Delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 14, 2001, at PHILJA, Tagaytay City. ∗∗ Appointed as Commissioner of the National Commission on the Role of Filipino Women (NCRFW) and presently the Associate Dean of the U.P. College of Law and concurrent Director of the Institute of Judicial Administration of the University of the Philippines Law Complex, Professor Myrna S. Feliciano is well known in legal and judicial circles. Aside from a law degree, she holds a Master of Library Science degree from the University of Washington and did specialized studies in legal research. She also holds a Master of Laws degree from Harvard University. She has been consultant to several groups both governmental and non-governmental, foremost among which are the Senate Policy and Studies Group of Congress, the Department of Foreign Affairs Sub-Committee on Legal Issues, and the Committee on Legal and Political Issues 2002] NON-DISCRIMINATION AND PARTICIPATION: 159 GENDER AND CHILDREN ISSUES

I. INTRODUCTION It is said that the discrimination and oppression suffered by women are brought by society’s perception of the difference between men and women biologically (sex) and their differences culturally, i.e., roles, position in social structure, etc. (gender). Although women and men have innate biological differences, cultures have interpreted and elaborated differences into a set of social expectations about what behaviors and activities are appropriate and what rights, resources and power they possess.1 For example, women are given the primary responsibility of child-bearing and rearing which have been the cause of her restriction and limitation with regard to employment and other activities. Discrimination against Filipino women can also be brought about by her social class and the society which is intrinsic to the class to which the woman belongs such as women workers, peasant women and professionals.2 Despite considerable advances in gender equality in the recent decades, gender disparities in rights constrain the sets of choices available to women in many aspects of life often limiting their

of the National Preparatory Committee for the World Conference on Women, as well as to various projects of the United Nations on women and gender issues. She chairs the Department of Legal Method and Research of the Philippine Judicial Academy.

1. E NGENDERING DEVELOPMENT: THROUGH GENDER EQUALITY RIGHTS, RESOURCES AND VOICE 2 (World Bank, 2001). 2. S. Floro and N. Luz, Sourcebook for Philippine Women in Struggle 10 (Center for Women Resources Library) as cited in M.S. Feliciano and R. Rikken, Sociolegal Status of Women in Selected DMCs Philippines (1998). 160 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 ability to participate in or benefit from development. Poverty further exacerbates these gender disparities. Let us look at the Filipina’s situation today:3 a. The population of women and men is almost equal- 50.4% for men and 49.6% for women. b. Women are greatly outnumbered in the labor force- 37.9% for women and 62.1% for men. c. In agriculture and forestry, women constitute 17.0% of the workforce while men constitute 83.0%. d. Women constitute 6.7% of the fishery sector while 93.3% are men. e. In the manufacturing sector, men constitute 55.6% while women constitute 44.4%. Of the 1,104,429 workers, 51,934 are male managers and executives, while females number only 1,576. f. In the wholesale and retail trade, women constitute 42.8% out of a total of 51,456 workforces. g. Women constitute 43.8% of the 165,099 workers in the hotel and restaurant trades, 51.3% of them are managers and executives. h. In the area of health and social work, of the 59,926 workers, women constitute 70.5%. i. Women workers in the informal sector are estimated at 5 million. Contractual workers have more than doubled from 134,000 in 1994 to 401,000 in 1997.

3. National Statistics Office, Gender Quickstat, as of December 2000. 2002] NON-DISCRIMINATION AND PARTICIPATION: 161 GENDER AND CHILDREN ISSUES j. There have been a marked trend towards the feminization of migration with women comprising the majority (55.8%) of the new hires for land-based overseas employment, winding up as entertainers, performing artists, domestic helpers, medical workers, caregivers and other service workers; more than half of whom are college graduates, showing a high probability of deskilling. k. In 1997, 451 deaths of migrants were recorded (148 women); 251 came home physically ill (124 of whom were women); and 122 returned mentally ill (84 of whom were females). There is no existing government services or comprehensive social security packages to assist returning OFWs who have been ill abroad, especially women survivors of violence and abuse. l. Since 1997, some 143,611 Filipinas went abroad ostensibly to join their fiancés, but ended up in prostitution houses controlled by syndicates. m. A total of 6,697 gender-based crimes against women and 5,790 child abuse cases have been reported to the Philippine National Police from January to July 2001. Of these cases, 3,878 or 58% were physical injuries, most of which occurred in the homes. This is higher by 21% compared to the 3,080 cases of the same period last year. This is followed by rape with 1,073 (16%), which is higher by 37% as compared to the 676 cases of the same period last year. n. On child abuse cases, rape registered a total of 2,164 representing 37% of all crimes committed against children during the first seven months of this year. 162 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

o. Very few women have benefited from land registration, which reveal that only 5,145 women as compared to 23,310 men received Certificates of Land Ownership (CLOAs). p. According to the Commission on Elections, women, last year, held 27 seats or 12.4% of the total seats in the House of Representatives. In 1998, women occupied 15.4% of the executive and legislative levels in contrast to the 84.6% by men. q. Government reproductive health concerns have expanded beyond maternal and child health to include fertility regulation, sexual health, infertility, motherhood and child survival, but these services have been hampered by factors such as meager budget, lack of qualified personnel, religious dictum, poverty and ill-health. Even if there is a national commitment to gender equality through our laws, systemic obstacles stand in the way of translating such equality into reality. Moreover, the country’s capacity for effective implementation and enforcement is often limited because statuses could, in part, conflict with more dominant traditional or religious structures within the country and, in part, due to absence or weakness of administrative agencies.

II. CONSTITUTIONAL POLICIES

The 1987 Philippine Constitution provides that, as a policy, the State values the dignity of every human person and guarantees full respect for human rights.4 Article III of the Bill of Rights states in Section 1 that:

4. Art. II, Sec.11. 2002] NON-DISCRIMINATION AND PARTICIPATION: 163 GENDER AND CHILDREN ISSUES

No person shall be deprived of life, liberty, or property without due process of law, nor any person be denied the equal protection of the laws. More specific provisions on women are found in Article II, Section 14 which provides that: The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men And in Article XI, Section 14, when it mandates that: The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. For the children, the Constitution mandates their welfare and protection in the following provisions: Article II, Section 12 declares that State protects the life of the child from the moment of conception and mandates support for the upbringing of the youth: The State recognizes the sanctity of the family and shall protect and strengthen the family as a basic autonomous institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government. Article II, Section 13 further states: 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 164 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

in the youth patriotism and nationalism and encourage their involvement in public and civic affairs. To this end, in Article XIII, Section 11 states: [States shall adopt] x x x an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the unprivileged sick, elderly, disabled, women, and children, The State shall endeavor to provide free medical care for paupers. (Emphasis supplied) To ensure education in the primary and secondary levels and vocational training for out-of-school youth, Article XIV, Section 2, states that the State shall: (2) Establish and maintain a system of free public education in the elementary and high schools levels. Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age. x x x (5) Provide adult citizens, the disabled and out of school youth with training in civics, vocational efficiency, and other skills.” (Emphasis supplied.) The right of the youth to environment conducive to their proper growth is mandated in Article XV, Section 3, which states: The State shall defend: x x x (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. 2002] NON-DISCRIMINATION AND PARTICIPATION: 165 GENDER AND CHILDREN ISSUES

III. TREATIES AND INTERNATIONAL AGREEMENTS

International law has framed gender equality as part of a larger global concern on basic freedoms and human rights. International standards prescribed by the general human rights instruments by the United Nations commencing with the Universal Declaration of Human Rights in 19485 followed by the International Covenant on Civil and Political Rights6 to the International Covenant on Economic, Social and Cultural Rights, all of which the Philippines is a signatory - reiterated the principle of equality irrespective of sex. The International Covenant on Economic, Social and Cultural Rights (ICESCR) reiterates the guarantees of the Universal Declaration of Human Rights and ILO Instruments respecting the right to work (Art. VI); right to fair conditions of work which includes equal remuneration for work of equal value, safe and healthy working conditions and reasonable limitation of working hours (Art. VII); right to form trade unions (Art. VIII); and right to social security (Art. IX). It also has provisions on protection and assistance to the family, maternity leave and protection of children from economic and social exploitations (Art. X); right to adequate standard of living (Art. XI); right to enjoy highest attainable standard of physical and mental health (Art. XII); right to education (Arts. XIII & XIV); and right to take part in cultural life and enjoy the benefits of science, technology, and intellectual property (Art. XV). This is essential because “full economic rights” properly contemplates not only

5. A/RES/217A (III), 10 December 1948. 6. 999 UNTs 171. The Philippines signed the Realities on 19 December 1996. 166 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 the right to work, but also to make proper investment of the returns therefrom, the ultimate, being to empower women in economic activities. Although the above covenant lays down a comprehensive set of rights to which all persons, including women, are entitled, it was necessary to have a separate legal instrument for women because the mere fact of their “humanity” has not been sufficient to guarantee women the protection of their rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the United Nations General Assembly on 23 December 19797 and is considered the definitive legal instrument regarding respect for and observance of the human rights of women. Addressing a variety of issues in the public and private spheres, the Convention entered into force on 3 September 19818 . As of December 1999, 165 States, including the Philippines, had become parties by ratification or accession. The basic legal norm of the Convention is the prohibition of all forms of discrimination against women. This norm cannot be satisfied merely by the enactment of gender neutral laws. It addresses a wide order of women’s concerns in the private and public spheres, and provides a mechanism for assessing the status of women in the enjoyment and exercise of their fundamental rights. Subjects covered by CEDAW are: a. Appropriate and temporary special measures to combat discrimination (Art. IV)

7. A/RES/34/180. 18 December 1979. 8. 249 UNTS 13. 2002] NON-DISCRIMINATION AND PARTICIPATION: 167 GENDER AND CHILDREN ISSUES b. Modifying social and cultural patterns (Art. V) c. Suppressing exploitation of women (Art. VI) d. Equality in nationality laws (Art. IX) e. Equality in education (Art. 10) f. Equality in employment and labor rights (Art. X1) g. Equality in access to health facilities (Art. XI1) h. Finance and social security (Art. XII1) i. Rural women (Art. X1V) j. Equality in legal and civil matters (Art. XV) and k. Equality in family law (Art. XVI) On the other hand, the Convention on the Rights of the Child (CRC) entered into force on September 1990, which the Philippines ratified on July 1990. There are four general principles enshrined in the CRC: a. Non-discrimination (Art. II) b. Best interests of the child (Art. III) c. Right to life, survival and development (Art. VI) d. Views of the child (Art. XII) Other provisions of the CRC which deal on ESC rights are: a. Protection of children from physical or mental harm and neglect, including sexual abuse or exploitation (Art. XIX) b. Protection from economic exploitation and from labor (Art. XXXII) c. Protections from the illegal use of drug and drug trafficking (Art. XXXIII) 168 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

d. Elimination of child trafficking (Art. XXXV) e. Appropriate treatment or training for recovery and rehabilitation of abused children (Art. XXXVII) Article II, Section 2 of the 1987 Constitution serves as authority for the inclusion of international conventions, agreements and protocols as part of Philippine Law. The provision states that “the Philippines adopts the generally accepted principles of international law as part of the law of the land.” Since international law is internalized in our legal system by incorporation, it follows that the Philippines is bound to observe the rules of international conventions it has ratified.9 According to the Supreme Court, these treaties have the force and authority of legislative enactments.10

IV. NON-DISCRIMINATION

To many people, discrimination connotes “favoritism”, “bias” or “prejudice” in simple terms. However, Article 1 of CEDAW explicitly acknowledges the broad-ranging “discrimination against women” by the following definitions as:

9. Agustin v. Edu. G.R. No. L-49112, February 2, 1979, 83 SCRA 198 (1979); Guerrero’s Transport Services, Inc. v. Blaylock Transportation Services Employees Association- KILUSAN, G.R. No. L-41518, June 1976, 71 SCRA 621 (1976). 10. Singh v. Collector of Customs, G.R. No. 13669, October 25, 1918, 38 Phil. 867 (1918); Abbas Elections v. Commission on Elections, G.R. Nos. 89651 & 89965, November 10, 1989, 179 SCRA 287 (1989); Philip Morris, Inc. v. Court of Appeals, G.R. No. 91332, July 16, 1993, 224 SCRA 576 (1993). 2002] NON-DISCRIMINATION AND PARTICIPATION: 169 GENDER AND CHILDREN ISSUES

… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field. In contrast to the International Bill of Rights which simply refers to “distinction” or “discrimination” on the basis of sex, this definition gives a detailed explanation of discrimination which encompasses any difference in treatment on the grounds of gender which: a. Intentionally or unintentionally disadvantages women; b. Prevents society as a whole from recognizing women’s rights in both the domestic and public spheres; or which c. Prevents women from exercising human rights and fundamental freedoms to which they are entitled.

A. Job Discrimination

Article X1 of the Women’s Convention also states clearly that the right of women to work is basic and inalienable, and that States-Parties must guarantee women the same employment rights and opportunities as men - a free choice in selecting a profession, and equality in remuneration and all work-related benefits.11 On the other hand, ILO Convention No. 111, as ratified by the Philippines in May, 1960, defines discrimination to include:

11. Art. XI, par. 1 (a-d). 170 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

(a) any distinction, exclusion or preference made on the basis of race, color, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation; and (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupations as may be determined by the member concerned after consultation with representative employees’ workers’ organizations, where such exist, and other appropriate bodies.12 Note that the ILO Convention No. 111 does not ban discrimination based on “interest” job requirements.13 It also concludes with a statement that “special measures of protection or assistance” provided for in other ILO Conventions and recommendations “shall not be deemed to be discrimination.”14 In keeping with its responsibility pursuant to the Women’s Convention, the Philippine Government integrated in the Labor Code by defining acts of employers that are considered discriminatory to women. Article 135 thus provides that: [I]t shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.

12. Art. I, (1). 13. Art. I, (2). 14. Id., Art. 6. 2002] NON-DISCRIMINATION AND PARTICIPATION: 171 GENDER AND CHILDREN ISSUES

The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value. (b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes.15 Under the Implementing Rules dated January 16, 1990, work of equal value refers to: [A]ctivities, jobs, tasks, duties or services [that] workers or employees are required or called upon to perform and which are identical or substantially identical. Payment of a lower compensation or benefits to a female employee does not constitute a failure to comply with this section, if the difference between the rates of pay is based on length of service or seniority, on location or geographical area of employment, or any factor other than sex, and the factors on which the difference is based would normally justify such difference in rates of pay. Note that the words of the law imply that if the discrimination is not based solely on account of the woman’’’ s sexx, it may just be allowed. For example, if the discrimination is based on her sex and her marital status, or her sex and her age, or her sex and her residence, etc., the discrimination may escape scrutiny simply because the gender factor is coupled with other grounds, no matter how superficial. The Implementing Rules also reinforces this concept when it states that:

15. LABOR CODE, Art. 135, as amended by R.A. No. 6725 (1989). 172 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

[W]hen the difference between the rates of pay is based on length of service or seniority, on location or geographical area of employment, or any factor other than sex, the factors on which the difference is based would normally justify such difference in rates of pay. To be aware of signs pointing to possible discrimination, the Service Employees International Union of Canada prepared a Pay Equity Bargaining Guide which provides the following indicators for discrimination. Discrimination exists when: a. Job patterns are segregated on the basis of sex, thereby enabling the employer to follow different pay practices by reason of certain jobs catering specifically to women as there are other jobs predominantly catering to men. b. Women are crowded into a few jobs while men are spread across a wide range of jobs. c. An employer assigns different job titles to essentially the same job and then proceeds to fill one job with women primarily and one with men. d. An employer lays off women with more seniority than men in job classifications with the justification that men are “primary breadwinners” and therefore must be laid off last. e. An employer avoids promoting women to higher positions. f. Job descriptions contain sex-specific language. Under Article 136 of the Code: [E]mployers cannot lawfully require as a condition of employment or for continuation of employment that a woman shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman shall be deemed 2002] NON-DISCRIMINATION AND PARTICIPATION: 173 GENDER AND CHILDREN ISSUES

resigned or separated from employment. Neither can an employer actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.16 Note that under Section 7 of R.A. 8972 (the Solo Parents’ Welfare Act of 2000), “no employer shall discriminate against any solo parent employee with respect to terms and conditions of employment.” The following cases deal more on marriage stipulations as a condition of employment: 1. Claudine D. Zialcita v. Philippine Air Lines, Case No. R04-3-3398-76, February 20, 1977 (Office of the President decision). Plaintiff, an international flight stewardess was dismissed for getting married because of a company policy that the attendants must be single and that their employment would be automatically terminated in the event that they subsequently get married. The Secretary of Labor rejected the position of the airline company that pregnancy was an inevitable consequence of marriage and that service would be adversely affected. He stated: This position is based on a tradition-bound, but factually inaccurate assumption. To get married does not necessarily mean to get pregnant. On the other hand, getting married or remaining single is not a guarantee against pregnancy. One can get pregnant without being married, in the same way, one can get married without getting pregnant. If married flight attendants become inefficient, a valid basis for dismissal would then be available which is not true in this case.

16. LABOR CODE, Art. 136. 174 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

On appeal, the Office of the President affirmed the Secretary of Labor’s decision and stated the incompatibility of the respondent’s policy with the codal provision of the law as early as March 13, 1973 when Presidential Decree No. 148 was promulgated. As to the respondent’s position that its policy of non-marriage was based on Articles 52 and 216 of the Civil Code on the preservation of marriage as an inviolable social institution, according to the office, this was pure conjecture not based on actual conditions, considering that, in this modern world, sophisticated technology has narrowed the distance from one place to another. Moreover, respondents overlooked the fact that married flight attendants can program their lives to adapt to prevailing circumstances and events. Article 136 was not intended to apply only to women employed in ordinary occupations [or] it should have categorically expressed so the sweeping intendment of the law, be it on special or ordinary occupations, is reflected in the whole text and supported by Article 135 that speaks on non-discrimination on the employment of women. However, no awards of back wages were made in this case, but simply reinstatement.

2. Olympia Gualberto, et al. v. Marinduque Mining Industrial Corporation, C.A. – G.R. No. 52753-R, June 28, 1978, 23 C.A. 2d 529 (1978). Plaintiff, while still single, was employed in 1971 by defendant as company dentist in its Surigao Nickel Project. When she married Roberto Gualberto, an electrical engineer in the same project, the company informed her that they considered her resigned, invoking a policy of the firm to consider, due to lack of facilities of women 2002] NON-DISCRIMINATION AND PARTICIPATION: 175 GENDER AND CHILDREN ISSUES at Nonoc Island, Surigao. They further claimed that plaintiff was employed in the project with the verbal understanding that her services would be terminated when she get married. Her husband who alleged that he was forced to resign because of his wife’s illegal dismissal, claimed moral, exemplary and other damages. The lower court ordered the Mining Company to pay Php12,000 plus Php2,000 as attorney’s fees and costs. Hence, this appeal. The Court of Appeals ruled that the efforts of the defendant to distinguish between a verbal pre-employment agreement of the project engineer and the plaintiff on one hand, and the company, on the other hand, is not tenable because the pre- employment agreement is void. Also, the supposed letter of resignation based on the same considerations is equally illegal and thus, void. The agreement is an example of discriminatory chauvinism. Acts which deny equal employment opportunities to women simply because of their sex are inherently odious and must be struck down. Throughout the records of the case that the prohibition against marriage and the resignation letter on account of marriage were only for women employees. Male employees were not enjoined from marriage. Judgment appealed was affirmed with costs against defendant- appellant.

3. Philippine Telegraph and Telephone Company v... National Labor Relations Commission (NLRC), G.R. No. 118978, May 23, 1997, 272 SCRA 596 (1997). Grace de Guzman was initially hired by petitioner as a supernumerary project worker “for a fixed period from November 21, 1990 to April 20, 1991 vice Tenorio who went on maternity leave. Thereafter, her services as reliever was again engaged by 176 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 petitioner from July 19 to August 8, 1991. On September 2, 1991, she was asked to join the company as a probationary employee for a period to cover 150 days. In the job application form, she indicated that she was single although she had contracted marriage, a few months earlier, that is, on May 26, 1991. Such representation had also been made in the previous two successive reliever agreements. Later, when the company learned about her married status, they required private respondent to explain the discrepancy and reminded her about the company’s policy of not accepting married women for employment. De Guzman stated that she was not aware of PT&T’s policy regarding non-acceptance of married women for employment at the time and that she had not deliberately hidden her true civil status. Nonetheless, the company dismissed her on January 29, 1992, which she readily contested by filing a case of illegal dismissal, coupled with a claim for non- payment of cost-of-living allowances (COLA) before the Regional Arbitration Board of the National Labor Relations Commission (NLRC). The labor arbiter handed a decision that De Guzman had already gained the status of a regular employee and thus was illegally dismissed. Therefore, her reinstatement, plus payment of the corresponding back wages and COLA, were correspondingly ordered. On appeal, the NLRC upheld the decision of the labor arbiter with the qualification that De Guzman deserved to be suspended for three months in view of the dishonest nature of her acts, which should not be condoned. Hence, this petition for certiorari before the Supreme Court. The Court ruled that the petitioner’s policy of not accepting married women or considering as disqualified from work any 2002] NON-DISCRIMINATION AND PARTICIPATION: 177 GENDER AND CHILDREN ISSUES woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination afforded all women workers by our labor law and by no less than the Constitution. Contrary to the petitioner’s assertion that it dismissed private respondent from employment on account of her dishonesty, the record disclosed clearly that her ties with the company were dissolved principally because of the company’s policy that married women were not qualified for employment in PT&T and not merely because of her supposed acts of dishonesty. Verily, private respondent’s act of concealing the true nature of her status from PT&T could not be properly characterized as willful or in bad faith because she wanted to retain a permanent job in a stable company. While loss of confidence is a just cause of termination of employment, it should not be stimulated or used as a subterfuge for causes, which are improper, illegal or unjustified. The Supreme Court, through Justice Regalado, articulated: The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II on the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary thereto, Section 3 of Article XIII (the progenitor whereof dates back to both the 1935 and 1973 Constitutions) pointedly requires the State to afford full protection to labor and to promote full employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIII mandates that the State shall protect working women through 178 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

provisions for opportunities that would enable them to reach their full potential. Corrective labor and social laws on gender inequality have emerged with more frequency in the years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country’s commitment as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The Court observed that De Guzman had gained regular status at the time of her dismissal. That her dismissal would be affected just when her probationary period was winding down clearly raised the plausible conclusion that it was done in order to prevent her from earning security of tenure. However, as she had undeniably committed an act of dishonesty in concealing her status, the three-month suspension imposed by the NLRC must be upheld to obviate the impression that such act should be condoned. Thus, her entitlement to back wages, which shall be computed from the time her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her three-month suspension. Petition was dismissed for lack of merit with double costs against petitioner.

B. Violence Against Women At its 11th Session in 1992, the CEDAW Committee extended the general prohibition on gender-based discrimination to include gender-based violence in General Recommendation No. 19 where it is defined in paragraph 6 as: 2002] NON-DISCRIMINATION AND PARTICIPATION: 179 GENDER AND CHILDREN ISSUES

Violence that is directed at a woman because she is a woman or that affects women disproportionately. It includes acts which inflicts physical, mental or sexual harm or suffering, threats of such acts, coercion, and other deprivations of liberty… The Committee affirmed that violence against women constitutes a violence of the internationally recognized human rights - regardless of whether the perpetrator is a public official or a private person. The responsibility of States Parties under the Convention extends to eliminating gender-based discrimination by any person, organization or enterprise. State responsibility may therefore be involved not only when a government official is involved in an act of gender-based violence, but also when the State fails to act with due diligence to prevent violation of rights committed by private persons or to investigate and punish such acts of violence, and to provide compensation. The U.N. Declaration on the Elimination of Violence Against Women affirmed this General Recommendation in 1993.17 It defines: [V]iolence against women as any act of gender-based violence that results in or is likely to result in physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life. Article 2 further elaborates the definition: Violence against women shall be understood to encompass, but not limited to the following: a. Physical, sexual and psychological violence occurring in the family, including battery, sexual abuse of female

17. U.N. Gen. Assembly A/RES/48/104, 20 December 1993. 180 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence related to exploitation; b. Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions, and elsewhere, trafficking in women and forced prostitution; and c. Physical, sexual and psychological violence perpetrated/ condoned by the State, wherever it occurs. To comply with its commitments under CEDAW, the following laws were passed: a. Republic Act No. 6955 (1990) outlaws the practice of matching Filipino women for marriage to foreign nationals either on a mail order basis or through introduction for a fee; b. Republic Act No. 7309 (1992) awards compensation not exceeding P10,000 to victims of unjust imprisonment or detention and victims of violent crimes including rape; c. Republic Act No. 7610 (1992) provides special protection of children against abuse, exploitation and discrimination; d. Republic Act No.7659 (1993) imposes the death penalty on certain heinous crimes such as rape when committed with certain attendant circumstances; e. Republic Act. No. 7877 (1995) makes sexual harassment unlawful in the employment, education and training environment; 2002] NON-DISCRIMINATION AND PARTICIPATION: 181 GENDER AND CHILDREN ISSUES f. Republic Act No. 8353 (1997) redefines rape to include sexual assault; g. Republic Act No. 8505 (1998) provides rape victims assistance and protection and contains a rape shield provision. Still, these laws are inadequate. It necessitates the passage of major laws to address domestic violence and the illegal trafficking of women. An issue which concerns everybody is the problem of domestic violence. The most endemic forms of domestic violence are wife abuse, or more accurately, abuse of women by intimate male partners, and child abuse. Contrary to the view that the family is a haven of love and support, data around the world tend to confirm that women and children are at risk in their [own] homes than anywhere else. Moreover, domestic violence is a hidden problem and it is difficult to estimate its actual incidence in the household because its admission of its existence is an assault on the integrity of the family. In a 1997 study of intra-family violence conducted by the University of the Philippines Center for Women’s Studies (UP- CWC), a total of 1,000 documented cases of intra-family violence were obtained from files of government, non- governmental organizations, hospital and shelter homes located in various parts of the country covering the period from 1994 to the first quarter of 1996. The study revealed the following: Physical assault of women and children, who were the common victims, occurred most frequently (36.9% or one out of three cases), sexual abuse an alarming second (26.7% or one out of four), and third, economic abuse (17.3%). These abuses occurred in various combinations. 182 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Physical assault was often accompanied by verbal and economic abuse. The victims experienced violence repeatedly at varying periods of time in the hands of the same or different household members such as the male spouse, the father, who was the most frequent abuser, the mother, the siblings, the in-laws or the employers, in the case of domestic helpers. Almost all victims (98%) were women.18 Although repeated physical violence or grossly abusive conduct directed against the spouse or child is one of the grounds by which legal separation may be obtained,19 the acts constituting domestic violence is not a crime. A survey of Philippine cases would reveal that it is replete with cases concerning child abuse, but it is only when we examine cases of parricide do we find cases of wife battery.20 Republic Act No. 8369 (1997) mandated the establishment of a family court in every province or city in the country. It has exclusive original jurisdiction over cases of domestic violence against: 1. Women – which are acts of gender-based violence that result, or are likely to result in physical, sexual or

18. BREAKING THE SILENCE: THE REALITIES OF FAMILY VIOLENCE IN THE PHILIPPINES AND RECOMMENDATIONS FOR CHANGE, 8-9 (UNICEF, U.P. Center for Women’s Studies Foundation, 1997). 19. Family Code, Art. 55. 20. People v. Canja, 86 Phil. 522 (1950); People v. Samson, G.R. No. 14110, March 29, 1963, 7 SCRA 478 (1963); People v. Boholst-Caballero, G.R. No. 23249, November 25, 1974, 61 SCRA 180 (1974); People v. Dimacali, G.R. No. 68036, August 31, 1984, 153 SCRA 454 (1987); People v. Lorenzo, G.R. No. 110107, January 26, 1995, 240 SCRA 624 (1995). 2002] NON-DISCRIMINATION AND PARTICIPATION: 183 GENDER AND CHILDREN ISSUES

psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman’s personhood, integrity and freedom of movement; and 2. Children - which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. If an act constitutes a criminal offense, the accused shall be subject to criminal proceedings and the corresponding penalties.21 The problem lies in that there is no crime of domestic violence and if the courts apply the provisions of the Revised Penal Code, the different offenses of parricide, physical injuries, etc. are all inadequate because there are no specific remedies to protect the victim and to rehabilitate the spouse-perpetrator. Recently, the Supreme Court, speaking through Justice Artemio V. Panganiban, recognized the “battered woman syndrome” as a viable plea within the concept of self-defense. In People v. Genosa,22 an urgent omnibus motion was filed in connection with the automatic review of a Regional Trial Court judgment which found the accused wife guilty of parricide aggravated by treachery and sentenced her to death. Since the Court could not properly evaluate her “battered-woman- syndrome” defense absent expert testimony on her mental and emotional state at time of the killing and the possible psychological cause and effect of her fatal act, the case was remanded to the trial court for the reception of expert psychological and/or psychiatric

21. Sec. 5 (k). 22. G.R. No. 135981, September 29, 2000. 184 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 opinions on the “battered woman syndrome” plea and to forthwith report to the Court with copies of the Transcript of Stenographic Notes and relevant documentary evidence. The family is the linchpin of gender, reproducing it from one generation to the next. As we have seen, family life in a violent environmental is not just, either to women or children. Moreover, this is not conducive to the rearing of citizens with a strong sense of justice. However, in spite of all the rhetoric about equality between men and women, the traditional views still prevail in the family. In this connection, the following observation of Prof. Deborah L. Rhode is very relevant to this issue: Family violence is a symptom as well as a cause of women’s subordination. As long as women are economically dependent on men, and both sexes are socialized to accept male aggression and female passivity, abuse will remain pervasive. Changing the conditions that foster violence requires changing cultural perspectives and priorities. It demands sustained challenges to media presentations, educational programs, and social service. In order for women to leave an abusive relationship, they must be able to support themselves and their children. Ensuring opportunities for economic independence will require restricting a vast range of social policies regarding employment, education, divorce, legal services, childcare, housing and welfare. Only as women achieve equality in the public sphere are they likely to break patterns of aggression and submission in the private sphere. Challenging these patterns must be a crucial part of any

23. JUSTICE AND GENDER 244 (1989). 24. C.C. Machinnon, Reflections on Sex Equality Under the Law, 100 YALE L.J. (1991). 2002] NON-DISCRIMINATION AND PARTICIPATION: 185 GENDER AND CHILDREN ISSUES

societal strategy to control violence. Failure to find more effective responses to domestic violence in this generation will intensify our problems in the next.23

V. PARTICIPATION It has been often said that “no woman had a voice in the design of the legal institutions that rule the social order under which women, as well as men, live. Nor was the interest of women as sex represented.”24 However, if we consider that women and girls constitute one half of the world’s population, one third of its labor force and two-thirds of the world’s work hours, how come they are denied even the most basic needs and decencies? When we discuss the world’s problems such as war, poverty, disease, overpopulation, ecological deterioration, refugees and the abuse of children and the elderly, we often ignore that those who suffer from these problems are women who are not consulted about their conditions and their possible solutions. Legal, social and economic rights provide an enabling environment in which women and men can participate productively in society, attain a basic quality of life and take advantage of the new opportunities that development affords. Greater equalities in rights is also consistently and systematically associated with greater gender equality in education, life expectancy and political participation - effects independent of income.25 As far as participation is concerned, Filipino women have the right to suffrage, but this has not been translated into a woman’s vote or a “united vote for electoral candidates, female or male, whom women believe will take up the cause of women.” Furthermore, there is a low level of participation of women in decision- making positions in the national or local government.

25. ENGENDERING DEVELOPMENT, supra note 1. 186 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Republic Act No. 7941, otherwise known as the Party-List Law, was signed into law on March 31, 1995 pursuant to Section 5, Article VI of the 1987 Constitution. This enabling law allocates 20% of the 250 seats in the House of Representatives for small political parties and twelve sectoral groups which include women. In the 1998 elections, six women organizations and parties were accredited by the Commission on Elections (COMELEC). Only two groups, Abanse Pinay and Akbayan, won one seat each because they did not reach the percentage share of votes required for a seat. In the 2001 elections, 154 organizations and parties were accredited by COMELEC but the Ang Bagong Bayan–OFW Labor Party 26 filed a petition for the disqualification of thirty (30) organizations arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented, not the mainstream political parties, the non-marginalized or overrepresented. The Supreme Court, through Justice Panganiban, remanded the case to the COMELEC to determine after evidentiary hearings whether they comply with the requirements of the law among which is: The political party, sector, organization must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. Since the parties which were disqualified obtained a substantial percentage of votes, the women organizations lost the election. It has been observed that the low-level of awareness of the party-list, the loopholes in the law itself, the inexperience and the

26. G.R. Nos. 147589 & 147613, June 26 2001. 2002] NON-DISCRIMINATION AND PARTICIPATION: 187 GENDER AND CHILDREN ISSUES lack of funds of the party-list groups, as well as the pressure of traditional politics, all accounted for the poor outcome of the election. The strengthening of regional and local government units (LGUs) was made through the enactment of Republic Act No. 7169 or the Local Government Code of 1991 by devolving to them certain powers hitherto exercised by the national government. It is also significant in terms of ensuring that the concerns of women are considered in the legislative process at the municipal, city, and provincial levels. As provided under Sections 446, 457 and 467 of the Local Government Code, the Sangguniang Bayan (Municipal Council), Sangguniang Panlungsod (City Council), Sangguniang Panlalawigan (Provincial Council), respectively, shall be composed, among others, of three sectoral representatives each, coming from the women, agricultural/industrial, and other sectors, including the urban poor, indigenous cultural communities, or disabled persons. To date, this has not been realized because the COMELEC has reasoned out that there is no law or budget to implement it. Note that where women are present only in small numbers, they may be marginalized and find it difficult to promote group interests. For this reason alone, it may take time before women articulate their gender interests effectively in the most strategic forums.

VI. CONCLUSION

Notwithstanding all these government initiatives, women still encounter de facto practices that give rise to hardships. Urgent attention is needed to learn the real causes of women’s difficulties. A thorough examination of the inadequacy of some laws as well as the impact of the legislation on gender relations is in order. 188 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

There is also a need to put in place monitoring mechanisms and indicators in order to measure the effects of government policies and programs. There has been a growing consensus that sustainable development requires an understanding of the respective roles of women and men within the community and their relations to each other. With the gender and development approach, improving the status of women is no longer considered solely an issue for women, but is a goal the attainment of which, requires active participation of both women and men. The Human Right to Participation∗ Dr. Clarence J. Dias∗∗

I. ELABORATING THE CONTENT OF THE RIGHT TO PARTICIPATION ...... 189 II. REALIZING THE RIGHT TO PARTICIPATION ...... 199

I. ELABORATING THE CONTENT OF THE RIGHT TO PARTICIPATION

The right to participation is crucial to any human rights-based approach to sustainable human development. Indeed, the

∗ Delivered at the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 12, 2001, at PHILJA, Tagaytay City. ∗∗ Dr. Clarence J. Dias is the President of the International Center for Law in Development, a Third World NGO concerned with human rights in the development process. He holds doctoral degrees in law from Bombay University and Cornell University and practiced law before the High Court of Bombay. He was Consultant to various UN agencies; Resource Person at the Informal Experts Workshop on Human Rights in Development Assistance convened by the Development Advisory Committee of OECD in Paris in February 1996; and Chair of the Meeting of Experts on Economic, Social and Cultural Rights. For the past six years, he has been the UN expert from the Office of the High Commissioner on Human Rights to the annual Asia- Pacific Inter-Governmental Workshop on Regional Human Rights Arrangements. He is also presently Consultant to UNDP on the implementation of its policy on Integrating Human Rights with Sustainable Human Development. 190THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 human right to participation is seen as an essential component of the human right to development (as elaborated in the 1986 UN Declaration on the Right to Development). Yet, it is interesting to note that at its inception, the right to participation was not defined in terms of its relationship to development. The UN Charter does not, in its preamble, make any reference to a human right to participation. The Universal Declaration of Human Rights (UDHR) does state, in Article 21, that “[e]veryone has the right to take part in the government of his country, directly or through freely chosen representatives.” This focus on political participation continues in Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which recognizes the right “to take part in the conduct of public affairs, directly or through freely chosen representatives,” but restricts this right solely to “citizens.” Article 1 of both the ICCPR and the ICESCR (International Covenant on Economic, Social and Cultural Rights) recognizes the right of “all peoples” to “freely determine their political status and freely pursue their economic, social and cultural development.” The ICESCR also recognizes, in Article 15, “the right of everyone to take part in cultural life.” The International Convention on the Elimination of All Forms of Racial Discrimination recognizes both the political and cultural aspects of participation. Article 5 prohibits racial discrimination in all its forms and calls on States Parties to guarantee the right of everyone “to participate in elections” and “to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.” Article 5 also recognizes “the right to equal participation in cultural activities.” The Convention on the Rights of the Child (CRC) does not directly recognize the right to participation of the child. It does, however, establish as its guiding concept, “the best interests 2002] THE HUMAN RIGHT TO PARTICIPATION 191 of the child” (Article 3), which can form a justification for participation. Moreover, Article 12 emphasizes that “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” and provides, particularly, that the child “be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child.” Article 9 provides a similar right in respect of proceedings to separate a child from his or her parents against their will and requires that “all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” Not surprisingly, the most detailed provisions of the right to participation, in any of the six core UN human rights conventions are found in CEDAW or the Convention on the Elimination of All Forms of Discrimination Against Women, which recognizes:

the right to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies (Article 7.a.)

 the right to participate in the formulation of government policy and the implementation thereof (Article 7.b.)

 the right to participate in non-governmental organizations and associations concerned with the public and political life of the country (Article 7.c.)

the opportunity to represent their governments at the international level and to participate in the work of international organizations (Article 8)

the right to participate in recreational activities, sports and all aspects of cultural life (Article 13.c.) 192THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

the right to participate in all community activities (Article 14.2.f.)

the right to participate in the elaboration and implementation of development planning at all levels (Article 14.2.a.)

the right to participate in and benefit from rural development Arguably, as a result of prohibition against all forms of discrimination, the above rights of participation will be available to all men as well, and will be deemed to be read into the core UN human rights treaties. The right to participation is also found in the regional human rights instruments. Thus, for example, the African Charter on Human and Peoples Rights recognizes the right of citizens “to participate freely in the government” of their country (Article 13); and it also recognizes the “right to existence” (Article 20). The American Convention on Human Rights recognizes, in Article 23, “the right to participate in Government” for all citizens and this includes the right to vote, the right to take part in the conduct of public affairs, and the right to equal access to public service. The Cairo Declaration on Human Rights in Islam recognizes, in Article 23, that “everyone shall have the right to participate, directly or indirectly in the administration of his country’s public affairs.” The European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols to the convention make no explicit recognition of the right to participation and this is also the case with the European Social Charter. By far the most detailed and best-developed provisions on the right to participation are to be found in the African Charter 2002] THE HUMAN RIGHT TO PARTICIPATION 193 for Popular Participation in Development. The International Conference on Popular Participation in the Recovery and Development Process in Africa was held in Arusha, United Republic of Tanzania from 12 to 16 February 1990. It was a rare collaborative effort among African people’s organizations, the African governments, non-governmental organizations, and the United Nations agencies in the search for a collective understanding of the role of popular participation in the development and transformation of the region. The conference was attended by over 500 participants from a wide range of African people’s organizations including, in particular, non- governmental, grassroots, peasant, women’s and youth organizations and associations, trade unions and others. It also included representatives of African governments, agencies of the United Nations system, non-African non-governmental organizations, regional, sub-regional and inter-governmental organizations, bilateral donors and multilateral organizations, as well as specialists, both from within and outside Africa. The conference adopted the African Charter for Popular Participation in Development, excerpts from which are cited below:

 We affirm that nations cannot be built without the popular support and full participation of the people, nor can the economic crisis be resolved and the human and economic conditions improved without the full and effective contribution, creativity and popular enthusiasm of the vast majority of the people.

 In our sincere view, popular participation is both a means and an end. As an instrument of development, popular participation provides the driving force for collective commitment for the determination of people-based development processes and willingness by 194THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

the people to undertake sacrifices and expend their social energies for its execution. As an end in itself, popular participation is the fundamental right of the people to fully and effectively participate in the determination of the decisions which affect their lives at all levels and at all times.

 We believe, strongly, that popular participation is, in essence, the empowerment of the people to effectively involve themselves in creating the structures and in designing policies and programmes that serve the interests of all as well as to effectively contribute to the development process and share equitably in its benefits.

 We strongly believe that popular participation is dependent on the nature of the State itself and the ability of the Government to respond to popular demand. Since African Governments have a critical role to play in the promotion of popular participation, they have to yield space to the people, without which popular participation will be difficult to achieve.

 We believe that for people to participate meaningfully in their self-development, their freedom to express themselves and their freedom from fear must be guaranteed. This can only be assured through the extension and protection of people’s basic human rights.

 We want to emphasize the basic fact that the role of the people and their popular organizations is central to the realization of popular participation. The African Charter then goes on to lay down basic strategies, modalities and actions for effective participation in development at several levels:

 governments

 people and their organizations 2002] THE HUMAN RIGHT TO PARTICIPATION 195

 international community

 NGOs and VDOs (voluntary developmental organizations)

 media and communications

 women’s organizations

 organized labor

 youth and students and their organizations The African Charter also proposes the use of the following indicators (which are not exhaustive) for measuring progress in the implementation of the Charter:

 The literacy rate, which is an index of the capacity for mass participation in public debate, decision-making and general development processes.

 Freedom of association, especially political association, and the presence of democratic institutions, such as political parties, trade unions, people’s grassroots organizations and professional associations, and the guarantee of constitutional rights.

 Representation of the people and their organizations in national bodies.

 The Rule of Law and social and economic justice, including equitable distribution of income and the creation of full employment opportunities.

 Protection of the ecological, human and legal environment.

 Press and media freedom to facilitate public debate on major issues. 196THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

 Number and scope of grassroots organizations with effective participation in development activities, producers and consumers cooperatives and community projects.

 Extent of implementation of the Abuja Declaration on Women (1989) in each country.

 Political accountability of leadership at all levels, measured by the use of checks and balances.

 Decentralization of decision-making processes and institutions. The Copenhagen Declaration and Programme of Action of the World Summit for Social Development also contains several commitments to participatory rights and processes as part of “a favorable national and international political and legal environment” for social development and identifies the following actions as “essential”:

 Ensuring the Rule of Law and democracy and the existence of rules and processes to create transparency and accountability for all public and private institutions and to prevent and combat all forms of corruption, sustained through education and the development of attitudes and values promoting responsibility, solidarity and a strengthened civil society.

 Encouraging decentralization of public institutions and services to a level that, compatible with the overall responsibilities, priorities and objectives of governments, responds properly to local needs and facilitates local participation.

 Establishing conditions for the social partners to organize and function with guaranteed freedom of 2002] THE HUMAN RIGHT TO PARTICIPATION 197

expression and association, and the right to engage in collective bargaining and to promote mutual interests, taking due account of national laws and regulations.

 Establishing similar conditions for professional organizations and organizations of independent workers.

 Promoting political and social processes inclusive of all members of society and respectful of political pluralism and cultural diversity.

 Strengthening the capacities and opportunities of all people, especially those who are disadvantaged or vulnerable, to enhance their own economic and social development, to establish and maintain organizations representing their interests and to be involved in the planning and implementation of government policies and programmes by which they will be directly affected.

 Ensuring full involvement and participation of women at all levels in the decision-making and implementation process and in the economic and political mechanisms through which policies are formulated and implemented.

 Removing all legal impediments to the ownership of all means of production and property by men and women.

 Taking measures to ensure that every human person and all peoples are entitled to participate, to contribute to and to enjoy economic, social, cultural and political development; encouraging all human persons to take responsibility for development, individually and 198THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

collectively; and recognizing that States have the primary responsibility for the creation of national and international conditions favorable for the realization of right to development, taking into account the relevant provisions of the Vienna Declaration and Programme of Action.

 Strengthening the ability of civil society and the community to participate actively in the planning, decision-making and implementation of social development programmes, by education and access to resources. From the above survey of UN and regional human rights instruments, it is clear that considerable work lies ahead in elaborating the political, economic, social and cultural aspects of the content of the right to participation. Moreover, participation is both a means and an end. Participation is a means for realizing a number of other human rights such as, for example, the right to health or the right to education. But participation is also an end in itself, and a human right, as is evident from the text of the instruments cited above. The indivisibility and inter-relatedness of all human rights is especially well brought out by the right to participation. Several other human rights such as freedom of speech, expression, movement, assembly and organization are all crucial to the exercise of the right of participation. Moreover, participation, to be real, must be informed participation, and this implicates freedom of information and the right to know. In addition to elaborating the content of the right to participation, it is also important to elaborate the means through which the right to participation can be exercised. Political participation can be exercised indirectly or directly. The right to vote is important, but so, too, are devolution and decentralization. 2002] THE HUMAN RIGHT TO PARTICIPATION 199

Participation requires resources and capacities. Participation entails costs and time. Hence, access to and rights to resources are vital to the right to participation. It is also important to elaborate the duties correlative to the right to participation. These are the familiar duties to respect, protect, promote and fulfill. The duty to promote participation will involve both capacity building as well as creation of procedural opportunities (e.g., environmental impact assessments) and an enabling environment (e.g., through the laws governing freedom of association and freedom of information). The duty to respect rights of participation would involve both transparency as well as the removal of obstacles to participation. The duty to protect participation involves a watchdog role on the part of the State. The duty to fulfill involves the obligation to take steps to build capacities as well as to provide opportunities for participation. It is important to stress, therefore, that the correlative duties are both immediate and progressive, and may involve either positive and negative acts. There are obligations of conduct as well as obligations of result.

II. REALIZING THE RIGHT TO PARTICIPATION

As with any other human right, realization of the right to participation will involve many tasks for many players. Both governmental and non-governmental actors have roles to play in promoting awareness of the importance as well as the opportunities for participation. Both governmental and non- governmental organizations have roles to play in implementation of the right, especially with regard to capacity building for participation. A key implementation task for governments is to create and maintain an enabling legal environment as is suggested in the Copenhagen Declaration of the World Summit 200THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 for Social Development. UNDP can clearly contribute through its programmes on governance and the OHCHR (Office of the High Commissioner on Human Rights) can also clearly contribute through its programme on national institutions for the promotion and protection of human rights. Considerable work remains to be done with respect to monitoring: both conceptually and in terms of actual monitoring of the right to participation. Violations of the right to participation need to be conceptualized as including exclusion, denial and discrimination, as well as other forms of violations. In addition to monitoring violations of the right to participation, it is important to monitor progressive realization as well. This will enable determinations to be made with regard to both obligations of conduct as well as obligations of result. Finally, and most importantly, there are tasks relating to remedies and enforcement in cases where the right to participation is being denied or infringed. The right to participation is, indeed, a most fundamental human right and is key to the realization of several other human rights, especially those whose progressive realization can be advanced through sustainable human development. As Terence Jones, the UN Resident Coordinator and UNDP Resident Representative in Malawi states in his paper to this conference, “Participation is, in many ways, the key to release the power of fusion between development and human rights.” In his view, “[t]he right to participation represents an opportunity for a holistic fusion of the operational and normative aspects of development and human rights approaches.” It is, indeed, an opportunity that must not go unheeded. Highlights of the Workshop Proceedings∗

Justice Ameurfina A. Melencio Herrera (ret.)∗∗

I. INTRODUCTION ...... 202 II. HIGHLIGHTS ...... 204 A. Justiciability B. Role of the Judiciary in the Application of ESC Rights and the Constitution: Experiences in India and the Philippines C. Judicial Application Session D. Administrative and Judicial Application Session E. Access to Justice: Transparency, Accountability and Affordability

* Delivered at the Closing Ceremonies of the Philippine Judiciary Workshop on Realizing Economic, Social and Cultural Rights, on September 14, 2001, at PHILJA, Tagaytay City.

** Justice Ameurfina A. Melencio Herrera (ret.) has been the indomitable Chancellor of the Philippine Judicial Academy (PHILJA), the education arm of the Supreme Court of the Philippines, since March 1996. She was Associate Justice of the Supreme Court from 1979 to 1992, where she chaired the Second Division from 1988, and Associate Justice of the Court of Appeals chairing the Eighth Division from 1973 to 1979. Justice Herrera graduated Valedictorian and Cum Laude at the University of the Philippines College of Law, where she obtained her Bachelor of Laws degree. She became Bar Topnotcher when she took her Bar Examinations, ranking first with a score of 93.85%. 202THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

F. Rights, Obligations and Remedies: International and Domestic Experiences G. Non-Discrimination and Participation: Gender and Children Issues H. Social Action Litigation III. CONCLUSION ...... 211

I. INTRODUCTION

This is the first Judiciary Workshop undertaken by the Philippine Judicial Academy, or PHILJA, on Economic, Social and Cultural Rights, and the first time that the topic is introduced to Philippine Judges. We understand that it is also the first in Asia, and that there is every intention to replicate it in other jurisdictions using the format and training materials introduced in this Workshop. PHILJA undertook this activity with the assistance of the UNDP and in cooperation with the UN High Commissioner for Human Rights. PHILJA was fortunate to have had the guidance and close collaboration of former Chief Justice P.N. Bhagwati of India and Regional Adviser for the Asia and Pacific Region, as well as Dr. Clarence Dias, President of the International Center for Law and Development. They participated actively in all sessions contributing greatly to their substantive portion. Dean Virginia B. Dandan, Chairperson of the International Committee on Economic, Social and Cultural Rights (ICESCR), added to the wealth of information shared with the participating judges. Chief Justice Hilario G. Davide, Jr. authorized the attendance of three (3) Justices from the Court of Appeals, led by its recently appointed Presiding Justice; fifteen (15) Executive Judges from the National Capital Judicial Region, thirteen (13) from Luzon, ten (10) from the Visayas, and ten (10) from Mindanao. 2002] HIGHLIGHTS OF THE 203 WORKSHOP PROCEEDINGS Central to the Workshop was a human rights approach to development tied in to the key role of the Judiciary in achieving this new approach and, promoting and protecting human rights through the justice system. A given was that all human rights are indivisible, and of equal importance for human dignity, and that economic, social and cultural rights are of crucial relevance for the effective exercise of civil and political rights, and vice versa. Admittedly, in the past, more attention has been given to civil and political rights, on the one hand, than to economic, social and cultural rights, on the other. It has been realized, however, that not only are they indivisible, but that they need and complement each other. If we consider as success indicator the enhancement of the participants’ conceptual and practical understanding and ability to address economic, social and cultural rights and willingness to apply them in the work of judging, the rating would be that the Workshop was a real success. Reacting to the practical exercises with hypotheticals given on the second day, Chief Justice Bhagwati complimented the participating judges highly when he said that they can be considered as among the best in Asia. The Workshop started with the basics – an understanding of the substance, the process and the applicability of international norms on economic, social and cultural rights, particularly, the International Covenant on Economic, Social and Cultural Rights, and the jurisprudence emanating from the International Committee on Economic, Social and Cultural Rights. An overview of the UN Human Rights System was also given. 204THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

II. HIGHLIGHTS

A. Justiciability

The Workshop met the issue of justiciability of economic, social and cultural rights squarely. Fr. Bernas summarized the requisites for justiciability of ESC rights as (1) a demandable legal right, (2) a violation of that right, and (3) a person injured except if the matter happens to be one of transcendental importance. Chief Justice Bhagwati stressed that India has a Bill of Rights and a Declaration of Policies, which are not necessarily per se enforceable, but that its Supreme Court has interpreted the constitutional “right to life” to cover even food, housing, health, and environment. This, he said, emphasizes the creative and the activist functions of a judge, guided by social justice and human rights. Fr. Aquino, for his part, explained that the matter of “justiciability” limits the reach of judicial power but, at the same time, enhances judicial power because to determine justiciability is part of judicial power. He cited the Supreme Court Decision in Harvey v. Defensor Santiago, which resorted to the Declaration of Principles in the Philippine Constitution in the absence of a specific law on pedophilia.

B. Role of the Judiciary in the Application of ESC Rights and the Constitution: Experiences in India and the Philippines

In discussing the experience in India, Chief Justice Bhagwati mentioned that through judicial creativeness and judicial activism, India has been able to bring ESC rights within the fold of human 2002] HIGHLIGHTS OF THE 205 WORKSHOP PROCEEDINGS rights. He mentioned, among others, the cases of (1) Sonia Gandhi, which held that the right to travel cannot be curtailed; (2) the “women’s shelter case,” brought by two professors, where the Supreme Court of India ordered the improvement of the abominable conditions in the protective home; (3) and the “blinding case” brought by an NGO, where the Supreme Court ordered that the people blinded by the police should be sent to a school for the blind. He concluded by saying that the Judiciary must be fearless in the discharge of its functions; build up jurisprudence by incorporating human rights norms that have received broad acceptance by the international community; and that human rights should be meaningful to people and to the vulnerable in society. Thus, the Supreme Court of India has been referred to, not so much as such, but as the Supreme Court for Indians. In expounding on ESC rights in Philippine Courts, Justice Leonardo A. Quisumbing started with Article II of the Philippine Constitution on the Declaration of Principles and State Policies, Section 2 of which “adopts the generally accepted principles of international law as part of the law of the land.” He stressed that human rights are inherently ours simply because we are human. Justice Quisumbing cited the early case of Villavicencio v. Lukban, penned by Justice Malcolm, which upheld the freedom of locomotion and granted the writ of habeas corpus; although in Rubi v. Mindoro, Justice Malcolm sustained an ordinance aimed at a cultural minority. Also, the cases of (1) Asuncion v. MeTC which fined a judge Php10,000.00 for having violated human rights; (2) Mejoff v. Director of Prisons, which held that the right to liberty applies to Filipino citizens and foreigners alike; (3) the Borovsky case which quoted the Universal Declaration of Human Rights even if the ink thereon had hardly 206THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 dried and its universal application to all, including “un borracho”; and (4) Hilao v. Marcos, which granted damages for wrongful death against the family of a former head of State. He also stressed the rule-making power of the Philippine Supreme Court and its impact on the protection and enforcement of constitutional rights. He, however, also cited early cases where the provisions of the Universal Declaration of Human Rights were not applied in a case involving the validity of the Retail Trade Nationalization Law (Lao Ichong v. Hernandez). In closing, he stressed that, under the Davide Watch, the Judiciary remains vigilant in order that fundamental freedoms and human rights are protected and promoted; and that “in our time, positive guarantees of ESCR (as much as, if not more than, political and civil rights) could no longer be ignored or left unrealized. The hour is late…,” he emphasized.

C. Judicial Application Session

This touched on a comparative examination of international experiences in developing national jurisprudence on economic, social and cultural rights covering the European Court, the Inter- American Court, including the experiences from India and South Africa. The speakers were Chief Justice Bhagwati, and Dr. Clarence Dias who brought his thorough knowledge and expertise to bear and discoursed breezily from one court to another.

D. Administrative and Judicial Application Session

This traced the development of Administrative Law relative to ESC rights with the objective of reviewing administrative 2002] HIGHLIGHTS OF THE 207 WORKSHOP PROCEEDINGS remedies in agencies where relief against violation of ESC rights is possible. Again, there was an examination of experiences of India and of the Philippines on the issue. Dean Pacifico Agabin stressed the need for the Judiciary to shift technique insofar as human rights are concerned. He cited the Workmen’s Compensation Act as illustrative of how an administrative process has been used as an instrument not only for redesigning the economic system, but also to effect a shift in decisional technique from the judicial passive method to the administrative active method. He mentioned that while civil and political rights require only restraint on the part of the State, ECS rights are programmatic requiring a law and the establishment of administrative agencies. Chief Justice Bhagwati advanced a novel concept when he recommended that legal aid be considered as a basic human right. He also mentioned the three A’s that are necessary, namely, awareness, assertiveness, and availability of resources. He also mentioned that the principle behind administrative law is natural justice and that no one should be condemned unless given an opportunity to be heard; that one must keep an open mind because “to err is human, but to perpetuate an error is no heroism.” He further emphasized that discretion by administrative agencies must not be unfettered and unregulated because it is a ruthless tyrant, referring to Shakespeare’s Macbeth and the line that it should be “curbed, cabined and confined.”

E. Access to Justice: Transparency, Accountability and Affordability

Professor Marvic Leonen spoke of Alternative Law Groups (ALGs) and various concepts of justice; the challenges that ALGs 208THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 face; the consideration of law practice as empowering and not simply as a trade or business; and the formulation of judicial and extra-judicial reforms. He has also recommended a continuing systematic and institutionalized dialogue between the Bar and basic sectors. So also did he ask for the reinterpretation of processes that effectively remove judicial redress to marginalized sectors and communities. He went further to suggest the review of Bar subjects, including the elimination of Taxation, and the inclusion of Agrarian Reform, Environmental Law, Feminist Jurisprudence and Urban Poor Laws. He then asked for opening consciousness to Alternative Law Groups and accommodating social issues so that courts are not lured to the “slot machine” process of deciding cases. Chief Justice Bhagwati spoke of the Indian experience along parallel lines. He related that after the stark native poverty in some areas of his country and seeing so many deprived of access to justice for long years, it led him to a change of thinking and providing access to justice to this poor specimen of humanity. Accordingly he worked to provide them with legal aid and the formation of a commission for the purpose to be more dynamic. He advocated Preventive Legal Aid Program that will not be confined to litigation alone. The components of his program were alternative dispute resolution mechanisms, legal aid clinics in universities, paralegal training, public involvement, and research. The whole process was revolutionized, he said. He even brought people’s courts to resolve disputes in different rural areas with the help of many others. He then spoke of the need for transparency: how judges are behaving, their conduct in and out of the courtroom, since all these affect the people’s perception of the administration of justice. 2002] HIGHLIGHTS OF THE 209 WORKSHOP PROCEEDINGS Accountability is also very important, he said, accountability to conscience and the law, to the people of the country whom we are expected to serve, and not to the government. He also raised the problems of media who sometimes overstep limits with unfounded allegations. Truth, he said, is no defense for contempt of court.

F. Rights, Obligations and Remedies: International and Domestic Experiences

On this topic, Chief Justice Bhagwati invoked social action litigation, reiterating that poor people lack resources to approach the courts. He mentioned that locus standi stands on the way of people’s approach to courts, and that we should give way to a larger doctrine. The problem would be how to get the evidence since NGOs have limited resources. Social action litigation is a national remedy in India, he added. It has spread to Bangladesh, Nepal and other countries as well. He also spoke of public interest litigation in public interest cases brought by public-spirited individuals. Judicial aberrations exist, he warned, but the strategy should not be discarded for those reasons alone where there is violation of basic rights. Dean Dandan vented her frustration since, despite seven years of work, the draft Optional Protocol on ESCR has not yet been adopted because of lack of appreciation by the States. Atty. Rene Sarmiento advanced the view that the Judiciary should not be merely passive and a mere adjudicator of clashing claims, but that it should be innovative. Judicial activism, he said, can be an important strategy to overcome all forms of oppression, and exploitation which is unjustifiable in any model of social development. 210THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

He suggested the adoption of the “ley de amparo,” which is a versatile instrument covering habeas corpus, injunction, declaratory judgment, and even appeal.

G. Non-Discrimination and Participation: Gender and Children Issues

This session focused on the examination of administrative and judicial processes in the light of basic principles of human rights, including State responsibility under CEDAW and CRC, especially considering that the latter contains all kinds of rights including the right to participation, through its guiding concept on “the best interests of the child.” ESCR is also very strong in CRC, Dr. Dias stated. Professor Feliciano, a sought-after speaker on Women and Children, discoursed on the subject and the imbalance in the participation of women and children. She stressed the limitation of their ability to participate in or benefit from development, with poverty exacerbating gender disparities. She also spoke on job discrimination, citing leading cases, and violence against women. She emphasized that legal, social and economic rights provide an enabling environment in which women and men can participate productively in society, attain a basic quality of life and take advantage of the new opportunities that development affords. Gains have been achieved, she said, but women still encounter de facto practices that give rise to hardships. Dr. Dias pointed out that the right to participation is a most fundamental human right and is key to the realization of several other human rights. He cited that the human right to participation is crucial to any human rights based approach to sustainable human development, and that the CEDAW contains the most detailed 2002] HIGHLIGHTS OF THE 211 WORKSHOP PROCEEDINGS provisions of the right to participation. The Judiciary, he said, can help promote, protect, and fulfill the right to participation. He challenged all to total commitment to the right to participation.

H. Social Action Litigation

There was a change in schedule for the last session. The participants were divided into three teams: (1) the Social Action Team; (2) the Domestic Remedy Team; and (3) the International Remedy/ Relief Team. They were given three hypothetical problems to solve. The solutions were reported out by rapporteurs and critiqued by Resource Persons, all of whom congratulated the teams for their outputs. The reports showed a working knowledge of basic rights, the remedies to seek from the Philippine Commission on Human Rights, or administrative agencies, or the Courts.

III. CONCLUSION

In this Judiciary Workshop, we have been toured through the landscapes of Civil and Political Rights, Economic, Social and Cultural Rights, the experiences in India and the Philippines, and European countries as well. It has been a hectic three-day activity, but we trust that it has been found fruitful and fulfilling, especially in the realization of rights through development. We reiterate our appreciation to the UNDP, through Mr. Terrence Jones, its able representative, who is here with us tonight; the Office of the High Commissioner of Human Rights, former Chief Justice Bhagwati, Dr. Clarence Dias, Professor Dandan, all experts in Human Rights, for having guided us through and 212THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 withstanding the intense schedule. I just hope that they did not feel “exploited.” We thank Chief Justice Davide for coming over to inspire us all, and especially for having given his blessings to this landmark undertaking, and for his indispensable support. The first step in training has been undertaken by PHILJA. The next step will be in the Court of Appeals, with the permission of its Presiding Justice. And, hopefully, we will be able to take the seminars to different judicial regions. Of course, a great deal will also depend on the Evaluations still to be submitted. The role of the Judges is clear, in the Philippines, in India, and in other countries as well – to call on their inner resources of mind and spirit to achieve a Judiciary that is independent, efficient, effective, and protective of liberties and of citizens’ rights. Universal Declaration of Human Rights

Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948

Preamble

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief, and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, and have determined to promote social progress and better standards of life in larger freedom, 214THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2002] UNIVERSAL DECLARATION OF HUMAN RIGHTS 215

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3 Everyone has the right to life, liberty and security of person.

Article 4 No one shall be held in slavery or servitude. Slavery and the slave trade shall be prohibited in all their forms.

Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6 Everyone has the right to recognition everywhere as a person before the law.

Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 216THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law.

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11 1. Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. 2. No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed.

Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour 2002] UNIVERSAL DECLARATION OF HUMAN RIGHTS 217 and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 218THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

Article 18 Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19 Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20 1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association. 2002] UNIVERSAL DECLARATION OF HUMAN RIGHTS 219

Article 21 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right to equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government. This will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage, and shall be held by secret vote or by equivalent free voting procedures.

Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an 220THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect 2002] UNIVERSAL DECLARATION OF HUMAN RIGHTS 221

for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28 Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 222THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969, in accordance with Article 19

The States Parties to this Convention, Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in cooperation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin, Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination, 224THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 [XV]) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end, Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 [XVIII]) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person, Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State, Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, 2002] ELIMINATION OF ALL FORMS 225 OF RACIAL DISCRIMINATION Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination, Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960, Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end, Have agreed as follows:

PART I

Article I 1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 226THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non- citizens. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. 4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. Article 2 1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: a. Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that 2002] ELIMINATION OF ALL FORMS 227 OF RACIAL DISCRIMINATION all public authorities and public institutions, national and local, shall act in conformity with this obligation; b. Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; c. Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; d. Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; e. Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. 2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. 228THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 3 States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. Article 4 States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia: a. Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; b. Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; c. Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. 2002] ELIMINATION OF ALL FORMS 229 OF RACIAL DISCRIMINATION Article 5 In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: a. The right to equal treatment before the tribunals and all other organs administering justice; b. The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; c. Political rights, in particular the right to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; d. Other civil rights, in particular: i. The right to freedom of movement and residence within the border of the State; ii. The right to leave any country, including one’s own, and to return to one’s country; iii. The right to nationality; iv. The right to marriage and choice of spouse; v. The right to own property alone as well as in association with others; vi. The right to inherit; 230THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

vii. The right to freedom of thought, conscience and religion; viii.The right to freedom of opinion and expression; ix. The right to freedom of peaceful assembly and association. e. Economic, social and cultural rights, in particular: i. The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remuneration; ii. The right to form and join trade unions; iii. The right to housing; iv. The right to public health, medical care, social security and social services; v. The right to education and training; vi. The right to equal participation in cultural activities. f. The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks. Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. 2002] ELIMINATION OF ALL FORMS 231 OF RACIAL DISCRIMINATION Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

PART II Article 8 1. There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) consisting of eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from among their nationals, who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as of the principal legal systems. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by the States Parties. Each State Party may nominate one person from among its own nationals. 3. The initial election shall be held six months after the date of the entry into force of this Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a 232THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties. 4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 5. a. The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee; b. For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee. 6. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. (amendment (see General Assembly resolution 47/111 of 16 December 1992); status of ratification) 2002] ELIMINATION OF ALL FORMS 233 OF RACIAL DISCRIMINATION Article 9 1. States Parties undertake to submit to the Secretary- General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this Convention: a. Within one year after the entry into force of the Convention for the State concerned; and b. Thereafter every two years and whenever the Committee so requests. The Committee may request further information from the States Parties. 2. The Committee shall report annually, through the Secretary General, to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of the reports and information received from the States Parties. Such suggestions and general recommendations shall be reported to the General Assembly together with comments, if any, from States Parties. Article 10 1. The Committee shall adopt its own rules of procedure. 2. The Committee shall elect its officers for a term of two years. 3. The secretariat of the Committee shall be provided by the Secretary General of the United Nations. 4. The meetings of the Committee shall normally be held at United Nations Headquarters. 234THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 11 1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. 2. If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State. 3. The Committee shall deal with a matter referred to it in accordance with paragraph 2 of this article after it has ascertained that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged. 4. In any matter referred to it, the Committee may call upon the States Parties concerned to supply any other relevant information. 5. When any matter arising out of this article is being considered by the Committee, the States Parties concerned shall be entitled to send a representative to 2002] ELIMINATION OF ALL FORMS 235 OF RACIAL DISCRIMINATION take part in the proceedings of the Committee, without voting rights, while the matter is under consideration. Article 12 1. a. After the Committee has obtained and collated all the information it deems necessary, the Chairman shall appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention; b. If the States parties to the dispute fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission not agreed upon by the States parties to the dispute shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its own members. 2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States parties to the dispute or of a State not Party to this Convention. 3. The Commission shall elect its own Chairman and adopt its own rules of procedure. 4. The meetings of the Commission shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Commission. 236THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

5. The secretariat provided in accordance with Article 10, paragraph 3, of this Convention shall also service the Commission whenever a dispute among States Parties brings the Commission into being. 6. The States parties to the dispute shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary- General of the United Nations. 7. The Secretary-General shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States parties to the dispute in accordance with paragraph 6 of this article. 8. The information obtained and collated by the Committee shall be made available to the Commission, and the Commission may call upon the States concerned to supply any other relevant information. Article 13 1. When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute. 2. The Chairman of the Committee shall communicate the report of the Commission to each of the States parties to the dispute. These States shall, within three months, inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission. 2002] ELIMINATION OF ALL FORMS 237 OF RACIAL DISCRIMINATION 3. After the period provided for in paragraph 2 of this article, the Chairman of the Committee shall communicate the report of the Commission and the declarations of the States Parties concerned to the other States Parties to this Convention. Article 14 1. A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. 2. Any State Party which makes a declaration as provided for in paragraph I of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies. 3. A declaration made in accordance with paragraph 1 of this article and the name of any body established or indicated in accordance with paragraph 2 of this article shall be deposited by the State Party concerned with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General, but such a withdrawal shall not affect communications pending before the Committee. 238THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

4. A register of petitions shall be kept by the body established or indicated in accordance with paragraph 2 of this article, and certified copies of the register shall be filed annually through appropriate channels with the Secretary-General on the understanding that the contents shall not be publicly disclosed. 5. In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months. 6. a. The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications; b. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. 7. a. The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where 2002] ELIMINATION OF ALL FORMS 239 OF RACIAL DISCRIMINATION the application of the remedies is unreasonably prolonged; b. The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner. 8. The Committee shall include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements of the States Parties concerned and of its own suggestions and recommendations. 9. The Committee shall be competent to exercise the functions provided for in this article only when at least ten States Parties to this Convention are bound by declarations in accordance with paragraph I of this article. Article 15 1. Pending the achievement of the objectives of the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) of 14 December 1960, the provisions of this Convention shall in no way limit the right of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies. 2. a. The Committee established under Article 8, paragraph 1, of this Convention shall receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of this Convention in their consideration 240THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

of petitions from the inhabitants of Trust and Non- Self-Governing Territories and all other territories to which General Assembly resolution 1514 (XV) applies, relating to matters covered by this Convention which are before these bodies; b. The Committee shall receive from the competent bodies of the United Nations copies of the reports concerning the legislative, judicial, administrative or other measures directly related to the principles and objectives of this Convention applied by the administering Powers within the Territories mentioned in subparagraph (a) of this paragraph, and shall express opinions and make recommendations to these bodies. 3. The Committee shall include in its report to the General Assembly a summary of the petitions and reports it has received from United Nations bodies, and the expressions of opinion and recommendations of the Committee relating to the said petitions and reports. 4. The Committee shall request from the Secretary-General of the United Nations all information relevant to the objectives of this Convention and available to him regarding the Territories mentioned in paragraph 2 (a) of this article. Article 16 The provisions of this Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination laid down in the constituent instruments of, or conventions adopted by, the United Nations and its specialized 2002] ELIMINATION OF ALL FORMS 241 OF RACIAL DISCRIMINATION agencies, and shall not prevent the States Parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them. PART III

Article 17 1. This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention. 2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary- General of the United Nations. Article 18 1. This Convention shall be open to accession by any State referred to in Article 17, paragraph 1, of the Convention. 2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 19 1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twenty-seventh instrument of ratification or instrument of accession. 242THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. For each State ratifying this Convention or acceding to it after the deposit of the twenty-seventh instrument of ratification or instrument of accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or instrument of accession. Article 20 1. The Secretary-General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by States at the time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary-General that it does not accept it. 2. A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it. 3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary- General. Such notification shall take effect on the date on which it is received. Article 21 A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary General. 2002] ELIMINATION OF ALL FORMS 243 OF RACIAL DISCRIMINATION Article 22 Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement. Article 23 1. A request for the revision of this Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request. Article 24 The Secretary-General of the United Nations shall inform all States referred to in Article 17, paragraph 1, of this Convention of the following particulars: a. Signatures, ratifications and accessions under Articles 17 and 18; b. The date of entry into force of this Convention under Article 19; c. Communications and declarations received under Articles 14, 20 and 23; d. Denunciations under Article 21. 244THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 25 1. This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States belonging to any of the categories mentioned in Article 17, paragraph 1, of the Convention. International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 Entry into force: 3 January 1976, in accordance with Article 27

Preamble The States Parties to the present Covenantenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under 246 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles:

PART I Article 1 1. All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II Article 2 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with 2002] INTERNATIONAL COVENANT ON ECONOMIC, 247 SOCIAL AND CULTURAL RIGHTS a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Article 4 The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. 248 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant. 2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III Article 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. 2002] INTERNATIONAL COVENANT ON ECONOMIC, 249 SOCIAL AND CULTURAL RIGHTS Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: a. Remuneration which provides all workers, as a minimum, with: i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; ii. A decent living for themselves and their families in accordance with the provisions of the present Covenant. b. Safe and healthy working conditions; c. Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; d. Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays. Article 8 1. The States Parties to the present Covenant undertake to ensure: a. The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the 250 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; b. The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; c. The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; d. The right to strike, provided that it is exercised in conformity with the laws of the particular country. 2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. 2002] INTERNATIONAL COVENANT ON ECONOMIC, 251 SOCIAL AND CULTURAL RIGHTS Article 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. Article 10 The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for 252 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed: a. To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; b. Taking into account the problems of both food- importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need. Article 12 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: 2002] INTERNATIONAL COVENANT ON ECONOMIC, 253 SOCIAL AND CULTURAL RIGHTS a. The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; b. The improvement of all aspects of environmental and industrial hygiene; c. The prevention, treatment and control of epidemic, endemic, occupational and other diseases; d. The creation of conditions which would assure to all medical service and medical attention in the event of sickness. Article 13 I. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and furthe the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: a. Primary education shall be compulsory and available free to all; b. Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by 254 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

every appropriate means, and in particular by the progressive introduction of free education; c. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; d. Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; e. The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. 2002] INTERNATIONAL COVENANT ON ECONOMIC, 255 SOCIAL AND CULTURAL RIGHTS Article 14 Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all. Article 15 1. The States Parties to the present Covenant recognize the right of everyone: a. To take part in cultural life; b. To enjoy the benefits of scientific progress and its applications; c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. 4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields. 256 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

PART IV Article 16 1. The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein. 2. a. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant; b. The Secretary-General of the United Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialized agencies insofar as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments. Article 17 1. The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned. 2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant. 2002] INTERNATIONAL COVENANT ON ECONOMIC, 257 SOCIAL AND CULTURAL RIGHTS 3. Where relevant information has previously been furnished to the United Nations or to any specialized agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice. Article 18 Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities. These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs. Article 19 The Economic and Social Council may transmit to the Commission on Human Rights for study and general recommendation or, as appropriate, for information, the reports concerning human rights submitted by States in accordance with Articles 16 and 17, and those concerning human rights submitted by the specialized agencies in accordance with Article 18. Article 20 The States Parties to the present Covenant and the specialized agencies concerned may submit comments to the Economic and Social Council on any general recommendation under Article 19 or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein. 258 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 21 The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant. Article 22 The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant. Article 23 The States Parties to the present Covenant agree that international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned. Article 24 Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United 2002] INTERNATIONAL COVENANT ON ECONOMIC, 259 SOCIAL AND CULTURAL RIGHTS Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant. Article 25 Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART V Article 26 1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant. 2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession. 260 THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 27 1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession. 2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession. Article 28 The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions. Article 29 1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary- General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval. 2002] INTERNATIONAL COVENANT ON ECONOMIC, 261 SOCIAL AND CULTURAL RIGHTS 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes. 3. When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted. Article 30 Irrespective of the notifications made under Article 26, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph I of the same article of the following particulars: a. Signatures, ratifications and accessions under Article 26; b. The date of the entry into force of the present Covenant under Article 27 and the date of the entry into force of any amendments under Article 29. Article 31 1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in Article 26. International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 Entry into force: 23 March 1976, in accordance with Article 49

Preamble The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under 2002] INTERNATIONAL COVENANT ON 263 CIVIL AND POLITICAL RIGHTS a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles:

PART I

Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II

Article 2 1. Each State Party to the present Covenant undertakes to 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 264THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: a. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; c. To ensure that the competent authorities shall enforce such remedies when granted. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. 2002] INTERNATIONAL COVENANT ON 265 CIVIL AND POLITICAL RIGHTS Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 266THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon 2002] INTERNATIONAL COVENANT ON 267 CIVIL AND POLITICAL RIGHTS or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 8 1. No one shall be held in slavery; slavery and the slave- trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. a. No one shall be required to perform forced or compulsory labour; b. Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; c. For the purpose of this paragraph the term “forced or compulsory labour” shall not include: i. Any work or service, not referred to in subparagraph (b), normally required of a person 268THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; ii. Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; iii. Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; iv. Any work or service which forms part of normal civil obligations. Article 9 1. 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. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 2002] INTERNATIONAL COVENANT ON 269 CIVIL AND POLITICAL RIGHTS 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. a. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; b. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. 270THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal 2002] INTERNATIONAL COVENANT ON 271 CIVIL AND POLITICAL RIGHTS established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: a. To be informed promptly, and in detail in a language which he understands, of the nature and cause of the charge against him; b. To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; c. To be tried without undue delay; d. To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in 272THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

any such case if he does not have sufficient means to pay for it; e. To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; f. To have the free assistance of an interpreter if he cannot understand or speak the language used in court; g. Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has, by a final decision, been convicted of a criminal offense and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. 2002] INTERNATIONAL COVENANT ON 273 CIVIL AND POLITICAL RIGHTS Article 15 1. No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed. If, subsequent to the commission of the offense, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Article 16 Everyone shall have the right to recognition everywhere as a person before the law. Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and 274THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: 2002] INTERNATIONAL COVENANT ON 275 CIVIL AND POLITICAL RIGHTS a. For respect of the rights or reputations of others; b. For the protection of national security or of public order, or of public health or morals. Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 276THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. Article 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. Article 24 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality. 2002] INTERNATIONAL COVENANT ON 277 CIVIL AND POLITICAL RIGHTS Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: a. To take part in the conduct of public affairs, directly or through freely chosen representatives; b. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; c. To have access, on general terms of equality, to public service in his country.

Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. 278THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

PART IV

Article 28 1. There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided. 2. The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience. 3. The members of the Committee shall be elected and shall serve in their personal capacity. Article 29 1. The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in Article 28 and nominated for the purpose by the States Parties to the present Covenant. 2. Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the nominating State. 3. A person shall be eligible for renomination. Article 30 1. The initial election shall be held no later than six months after the date of the entry into force of the present Covenant. 2002] INTERNATIONAL COVENANT ON 279 CIVIL AND POLITICAL RIGHTS 2. At least four months before the date of each election to the Committee, other than an election to fill a vacancy declared in accordance with Article 34, the Secretary- General of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months. 3. The Secretary-General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties to the present Covenant no later than one month before the date of each election. 4. Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary General of the United Nations at the Headquarters of the United Nations. At that meeting, for which two-thirds of the States Parties to the present Covenant shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. Article 31 1. The Committee may not include more than one national of the same State. 2. In the election of the Committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems. 280THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 32 1. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these nine members shall be chosen by lot by the Chairman of the meeting referred to in Article 30, paragraph 4. 2. Elections at the expiry of office shall be held in accordance with the preceding articles of this part of the present Covenant. Article 33 1. If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the Secretary-General of the United Nations, who shall then declare the seat of that member to be vacant. 2. In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the Secretary-General of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect. Article 34 1. When a vacancy is declared in accordance with Article 33 and if the term of office of the member to be replaced does not expire within six months of the declaration of the vacancy, the Secretary-General of the United Nations 2002] INTERNATIONAL COVENANT ON 281 CIVIL AND POLITICAL RIGHTS shall notify each of the States Parties to the present Covenant, which may within two months submit nominations in accordance with Article 29 for the purpose of filling the vacancy. 2. The Secretary-General of the United Nations shall prepare a list in alphabetical order of the persons thus nominated and shall submit it to the States Parties to the present Covenant. The election to fill the vacancy shall then take place in accordance with the relevant provisions of this part of the present Covenant. 3. A member of the Committee elected to fill a vacancy declared in accordance with Article 33 shall hold office for the remainder of the term of the member who vacated the seat on the Committee under the provisions of that article. Article 35 The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities. Article 36 The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant. Article 37 1. The Secretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations. 282THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure. 3. The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva. Article 38 Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously. Article 39 1. The Committee shall elect its officers for a term of two years. They may be re-elected. 2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that: a. Twelve members shall constitute a quorum; b. Decisions of the Committee shall be made by a majority vote of the members present. Article 40 1. The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: a. Within one year of the entry into force of the present Covenant for the States Parties concerned; b. Thereafter whenever the Committee so requests. 2. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the 2002] INTERNATIONAL COVENANT ON 283 CIVIL AND POLITICAL RIGHTS Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant. 3. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence. 4. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. 5. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article. Article 41 1. A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a 284THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

declaration. Communications received under this Article shall be dealt with in accordance with the following procedure: a. If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter; b. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State; c. The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged; d. The Committee shall hold closed meetings when examining communications under this article; 2002] INTERNATIONAL COVENANT ON 285 CIVIL AND POLITICAL RIGHTS e. Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant; f. In any matter referred to it, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information; g. The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/ or in writing; h. The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report: i. If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; ii. If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned. 286THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph I of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. Article 42 1. a. If a matter referred to the Committee in accordance with Article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission). The good offices of the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant; b. The Commission shall consist of five persons acceptable to the States Parties concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission 2002] INTERNATIONAL COVENANT ON 287 CIVIL AND POLITICAL RIGHTS concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members. 2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a State Party which has not made a declaration under Article 41. 3. The Commission shall elect its own Chairman and adopt its own rules of procedure. 4. The meetings of the Commission shall normally be held at the Headquarters of the United Nations or at the United Nations Office at Geneva. However, they may be held at such other convenient places as the Commission may determine in consultation with the Secretary-General of the United Nations and the States Parties concerned. 5. The secretariat provided in accordance with Article 36 shall also service the commissions appointed under this article. 6. The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information. 7. When the Commission has fully considered the matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned: 288THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

a. If the Commission is unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter; b. If an amicable solution to the matter on tie basis of respect for human rights as recognized in the present Covenant is reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached; c. If a solution within the terms of subparagraph (b) is not reached, the Commission’s report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned; d. If the Commission’s report is submitted under subparagraph (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission. 8. The provisions of this article are without prejudice to the responsibilities of the Committee under Article 41. 9. The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary- General of the United Nations. 2002] INTERNATIONAL COVENANT ON 289 CIVIL AND POLITICAL RIGHTS 10. The Secretary-General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned, in accordance with paragraph 9 of this article.

Article 43 The members of the Committee and of the ad hoc conciliation commissions which may be appointed under Article 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 44 The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

Article 45 The Committee shall submit to the General Assembly of the United Nations, through the Economic and Social Council, an annual report on its activities. 290THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

PART V Article 46 Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant. Article 47 Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART VI

Article 48 1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to the present Covenant. 2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article. 2002] INTERNATIONAL COVENANT ON 291 CIVIL AND POLITICAL RIGHTS 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States which have signed this Covenant or acceded to it of the deposit of each instrument of ratification or accession. Article 49 1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession. 2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession. Article 50 The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions. Article 51 1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General of the United Nations shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of 292THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval. 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes. 3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted. Article 52 Irrespective of the notifications made under Article 48, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph I of the same article of the following particulars: a. Signatures, ratifications and accessions under Article 48; b. The date of the entry into force of the present Covenant under Article 49 and the date of the entry into force of any amendments under Article 51. 2002] INTERNATIONAL COVENANT ON 293 CIVIL AND POLITICAL RIGHTS Article 53 1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in Article 48. Optional Protocol to the International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 Entry into force: 23 March 1976, in accordance with Article 9

The States Parties to the present Protocol, Considering that in order further to achieve the purposes of the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) and the implementation of its provisions, it would be appropriate to enable the Human Rights Committee set up in part IV of the Covenant (hereinafter referred to as the Committee) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. Have agreed as follows: Article I A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol. 2002] OPTIONAL PROTOCOL 295 CIVIL AND POLITICAL RIGHTS Article 2 Subject to the provisions of Article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration. Article 3 The Committee shall consider inadmissible any communication under the present Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant. Article 4 1. Subject to the provisions of Article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant. 2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. Article 5 1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned. 2. The Committee shall not consider any communication from an individual unless it has ascertained that: 296THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

a. The same matter is not being examined under another procedure of international investigation or settlement; b. The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. 3. The Committee shall hold closed meetings when examining communications under the present Protocol. 4. The Committee shall forward its views to the State Party concerned and to the individual. Article 6 The Committee shall include in its annual report under Article 45 of the Covenant a summary of its activities under the present Protocol. Article 7 Pending the achievement of the objectives of resolution 1514 (XV) adopted by the General Assembly of the United Nations on 14 December 1960 concerning the Declaration on the Granting of Independence to Colonial Countries and Peoples, the provisions of the present Protocol shall in no way limit the right of petition granted to these peoples by the Charter of the United Nations and other international conventions and instruments under the United Nations and its specialized agencies. Article 8 1. The present Protocol is open for signature by any State which has signed the Covenant. 2. The present Protocol is subject to ratification by any State which has ratified or acceded to the Covenant. Instruments of ratification shall be deposited with the Secretary- 2002] OPTIONAL PROTOCOL 297 CIVIL AND POLITICAL RIGHTS General of the United Nations. 3. The present Protocol shall be open to accession by any State which has ratified or acceded to the Covenant. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession. Article 9 1. Subject to the entry into force of the Covenant, the present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or instrument of accession. 2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession. Article 10 The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions. Article 11 1. Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the 298THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that at least one third of the States Parties favours such a conference, the Secretary- General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval. 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes. 3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment which they have accepted. Article 12 1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect three months after the date of receipt of the notification by the Secretary-General. 2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to 2002] OPTIONAL PROTOCOL 299 CIVIL AND POLITICAL RIGHTS any communication submitted under Article 2 before the effective date of denunciation. Article 13 Irrespective of the notifications made under Article 8, paragraph 5, of the present Protocol, the Secretary-General of the United Nations shall inform all States referred to in Article 48, paragraph I, of the Covenant of the following particulars: a. Signatures, ratifications and accessions under Article 8; b. The date of the entry into force of the present Protocol under Article 9 and the date of the entry into force of any amendments under Article 11; c. Denunciations under Article 12. Article 14 1. The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in Article 48 of the Covenant. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 Entry into force: 3 September 1981, in accordance with Article 27(1)

The States Parties to the present Convention, Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights, Considering the international conventions concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women, 2002] ELIMINATION OF ALL FORMS OF 301 DISCRIMINATION AGAINST WOMEN Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women, Concerned, however, that despite these various instruments, extensive discrimination against women continues to exist, Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity, Concerned that in situations of poverty women have the least access to food, health, education, training and opportunities for employment and other needs, Convinced that the establishment of the new international economic order based on equity and justice will contribute significantly towards the promotion of equality between men and women, Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women, Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual cooperation among all States irrespective of their social and economic systems, general and complete disarmament, in particular 302THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women, Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields, Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole, Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women, Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations, Have agreed on the following: 2002] ELIMINATION OF ALL FORMS OF 303 DISCRIMINATION AGAINST WOMEN PART I

Article I For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: a. To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; b. To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; c. To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; 304THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

d. To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; e. To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; f. To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; g. To repeal all national penal provisions which constitute discrimination against women. Article 3 States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 4 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards. These measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2002] ELIMINATION OF ALL FORMS OF 305 DISCRIMINATION AGAINST WOMEN 2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory. Article 5 States Parties shall take all appropriate measures: a. To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; b. To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases. Article 6 States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

PART II

Article 7 States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of 306THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 the country and, in particular, shall ensure to women, on equal terms with men, the right: a. To vote in all elections and public referenda, and to be eligible for election to all publicly elected bodies; b. To participate in the formulation of government policy and the implementation thereof, and to hold public office and perform all public functions at all levels of government; c. To participate in non-governmental organizations and associations concerned with the public and political life of the country. Article 8 States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations. Article 9 1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 2. States Parties shall grant women equal rights with men with respect to the nationality of their children. 2002] ELIMINATION OF ALL FORMS OF 307 DISCRIMINATION AGAINST WOMEN PART III

Article 10 States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: a. The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas. This equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; b. Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality; c. The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging co-education and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods; d. The same opportunities to benefit from scholarships and other study grants; e. The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particulary those aimed at reducing, at the earliest possible time, any gap in education existing between men and women; 308THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

f. The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely; g. The same opportunities to participate actively in sports and physical education; h. Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning. Article 11 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: a. The right to work as an inalienable right of all human beings; b. The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; c. The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; d. The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; 2002] ELIMINATION OF ALL FORMS OF 309 DISCRIMINATION AGAINST WOMEN e. The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; f. The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: a. To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; b. To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; c. To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; d. To provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of 310THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

scientific and technological knowledge and shall be revised, repealed or extended as necessary. Article 12 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. Article 13 States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: a. The right to family benefits; b. The right to bank loans, mortgages and other forms of financial credit; c. The right to participate in recreational activities, sports and all aspects of cultural life. Article 14 1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their 2002] ELIMINATION OF ALL FORMS OF 311 DISCRIMINATION AGAINST WOMEN families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. 2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: a. To participate in the elaboration and implementation of development planning at all levels; b. To have access to adequate health care facilities, including information, counselling and services in family planning; c. To benefit directly from social security programmes; d. To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency; e. To organize self-help groups and cooperatives in order to obtain equal access to economic opportunities through employment or self-employment; f. To participate in all community activities; g. To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform, as well as in land resettlement schemes; 312THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

h. To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

PART IV

Article 15 1. States Parties shall accord to women equality with men before the law. 2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. 3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. 4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile. Article 16 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: a. The same right to enter into marriage; 2002] ELIMINATION OF ALL FORMS OF 313 DISCRIMINATION AGAINST WOMEN b. The same right to choose a spouse freely and to enter into marriage only with their free and full consent; c. The same rights and responsibilities during marriage and at its dissolution; d. The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children. In all cases the interests of the children shall be paramount; e. The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; f. The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. In all cases the interests of the children shall be paramount; g. The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; h. The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. 314THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

PART V

Article 17 1. For the purpose of considering the progress made in the implementation of the present Convention, there shall be established a Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee) consisting, at the time of entry into force of the Convention, of eighteen and, after ratification of or accession to the Convention by the thirty-fifth State Party, of twenty-three experts of high moral standing and competence in the field covered by the Convention. The experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. 3. The initial election shall be held six months after the date of the entry into force of the present Convention. At least three months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties. 2002] ELIMINATION OF ALL FORMS OF 315 DISCRIMINATION AGAINST WOMEN 4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two-thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who have obtained the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 5. The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years. Immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee. 6. The election of the five additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth ratification or accession. The terms of two of the additional members elected on this occasion shall expire at the end of two years, the names of these two members having been chosen by lot by the Chairman of the Committee. 7. For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee. 8. The members of the Committee shall, with the approval of the General Assembly, receive emoluments from United Nations resources on such terms and conditions 316THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

as the Assembly may decide, having regard to the importance of the Committee’s responsibilities. 9. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention. Article 18 1. States Parties undertake to submit to the Secretary- General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect: a. Within one year after the entry into force for the State concerned; b. Thereafter at least every four years and further whenever the Committee so requests. 2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention. Article 19 1. The Committee shall adopt its own rules of procedure. 2. The Committee shall elect its officers for a term of two years. Article 20 1. The Committee shall normally meet for a period of not more than two weeks annually in order to consider the 2002] ELIMINATION OF ALL FORMS OF 317 DISCRIMINATION AGAINST WOMEN reports submitted in accordance with Article 18 of the present Convention. 2. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. (amendment, status of ratification) Article 21 1. The Committee shall, through the Economic and Social Council, report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties. Such suggestions and general recommendations shall be included in the report of the Committee together with comments, if any, from States Parties. 2. The Secretary-General of the United Nations shall transmit the reports of the Committee to the Commission on the Status of Women for its information. Article 22 The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their activities. The Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities. 318THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

PART VI

Article 23 Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: a. In the legislation of a State Party; or b. In any other international convention, treaty or agreement in force for that State. Article 24 States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention. Article 25 1. The present Convention shall be open for signature by all States. 2. The Secretary-General of the United Nations is designated as the depositary of the present Convention. 3. The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 4. The present Convention shall be open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 26 1. A request for the revision of the present Convention may be made at any time by any State Party by means of 2002] ELIMINATION OF ALL FORMS OF 319 DISCRIMINATION AGAINST WOMEN a notification in writing addressed to the Secretary- General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request. Article 27 1. The present Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary- General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying the present Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession. Article 28 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary- General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received. 320THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 29 1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. 2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation. 3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations. Article 30 The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the Secretary-General of the United Nations. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 Entry into force: 26 June 1987, in accordance with Article 27 (1)

The States Parties to this Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that those rights derive from the inherent dignity of the human person, Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms, Having regard to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, 322THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975, Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world, Have agreed as follows:

PART I

Article 1 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2002] CONVENTION AGAINST TORTURE 323

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. Article 3 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Article 4 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. Article 5 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 in the following cases: 324THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

a. When the offenses are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; b. When the alleged offender is a national of that State; c. When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offenses in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph I of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. Article 6 1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in Article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. 3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately 2002] CONVENTION AGAINST TORTURE 325

with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides. 4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in Article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction. Article 7 1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offense referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in Article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in Article 5, paragraph 1. 3. Any person regarding whom proceedings are brought in connection with any of the offenses referred to in Article 4 shall be guaranteed fair treatment at all stages of the proceedings. 326THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 8 1. The offenses referred to in Article 4 shall be deemed to be included as extraditable offenses in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offenses in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offenses. Extradition shall be subject to the other conditions provided by the law of the requested State. 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offenses as extraditable offences between themselves subject to the conditions provided by the law of the requested State. 4. Such offenses shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with Article 5, paragraph 1. Article 9 1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offenses referred to in Article 4, including the supply of all evidence at their disposal necessary for the proceedings. 2002] CONVENTION AGAINST TORTURE 327

2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10 1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. 2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

Article 11 Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12 Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. 328THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 13 Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. Article 14 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law. Article 15 Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. Article 16 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article I, when such acts 2002] CONVENTION AGAINST TORTURE 329

are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

PART II

Article 17 1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members 330THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture. 3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties. 5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article. 6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the 2002] CONVENTION AGAINST TORTURE 331

remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment. 7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. (amendment (see General Assembly resolution 47/111 of 16 December 1992); status of ratification) Article 18 1. The Committee shall elect its officers for a term of two years. They may be re-elected. 2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that: a. Six members shall constitute a quorum; b. Decisions of the Committee shall be made by a majority vote of the members present. 3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention. 4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure. 332THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

5. The States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 of this article. (amendment (see General Assembly resolution 47/111 of 16 December 1992); status of ratification) Article 19 1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request. 2. The Secretary-General of the United Nations shall transmit the reports to all States Parties. 3. Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee. 4. The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with Article 24. If so requested 2002] CONVENTION AGAINST TORTURE 333

by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph I of this article. Article 20 1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned. 2. Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently. 3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory. 4. After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Commission shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation. 334THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

5. All the proceedings of the Committee referred to in paragraphs I to 4 of this article shall be confidential, and at all stages of the proceedings the cooperation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with Article 24. Article 21 1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure; a. If a State Party considers that another State Party is not giving effect to the provisions ofthis Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months afler the receipt of the communication the receiving State shall afford the State which sent the 2002] CONVENTION AGAINST TORTURE 335

communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter; b. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State; c. The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention; d. The Committee shall hold closed meetings when examining communications under this article; e. Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission; 336THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

f. In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information; g. The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/ or in writing; h. The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report: i. If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; ii. If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned. 2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A 2002] CONVENTION AGAINST TORTURE 337

declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. Article 22 1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. 2. The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention. 3. Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or 338THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

statements clarifying the matter and the remedy, if any, that may have been taken by that State. 4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned. 5. The Committee shall not consider any communications from an individual under this article unless it has ascertained that: a. The same matter has not been, and is not being, examined under another procedure of international investigation or settlement; b. The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective reliefto the person who is the victim of the violation of this Convention. 6. The Committee shall hold closed meetings when examining communications under this article. 7. The Committee shall forward its views to the State Party concerned and to the individual. 8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification 2002] CONVENTION AGAINST TORTURE 339

to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the SecretaryGeneral, unless the State Party has made a new declaration. Article 23 The members of the Committee and of the ad hoc conciliation commissions which may be appointed under Article 21, paragraph I (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations. Article 24 The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.

PART III

Article 25 1. This Convention is open for signature by all States. 2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary- General of the United Nations. 340THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 26 This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 27 1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force onthe thirtieth day after the date of the deposit of its own instrument of ratification or accession. Article 28 1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in Article 20. 2. Any State Party having made a reservation in accordance with paragraph I of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations. Article 29 1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The SecretaryGeneral shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they 2002] CONVENTION AGAINST TORTURE 341

favor a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favors such a conference, the SecretaryGeneral shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance. 2. An amendment adopted in accordance with paragraph I of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes. 3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted. Article 30 1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from thc date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. 342THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. Each State may, at the time of signature or ratification of this Con vention or accession thereto, declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by paragraph I of this article with respect to any State Party having made such a reservation. 3. Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations. Article 31 1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary- General . 2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective. 3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State. 2002] CONVENTION AGAINST TORTURE 343

Article 32 The Secretary-General of the United Nations shall inform all States Members of the United Nations and all States which have signed this Convention or acceded to it of the following: a. Signatures, ratifications and accessions under Articles 25 and 26; b. The date of entry into force of this Convention under Article 27 and the date of the entry into force of any amendments under Article 29; c. Denunciations under Article 31. Article 33 1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States. Convention on the Rights of the Child

Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989

Entry into force: 2 September 1990, in accordance with Article 49

Preamble The States Parties to the present Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom, Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, 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, 2002] CONVENTION ON THE RIGHTS OF THE CHILD 345

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular, in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in Articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in Article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and 346THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,” Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration, Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international cooperation for improving the living conditions of children in every country, in particular, in the developing countries, Have agreed as follows:

PART I

Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. Article 2 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their 2002] CONVENTION ON THE RIGHTS OF THE CHILD 347

jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members. Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well- being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. 348THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation. Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Article 6 1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. Article 7 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their 2002] CONVENTION ON THE RIGHTS OF THE CHILD 349

obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. Article 8 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re- establishing speedily his or her identity. Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities, subject to judicial review, determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal 350THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall, of itself, entail no adverse consequences for the person(s) concerned. Article 10 1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their 2002] CONVENTION ON THE RIGHTS OF THE CHILD 351

own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention. Article 11 1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. 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. Article 13 1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, 352THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. 2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: a. For respect of the rights or reputations of others; or b. For the protection of national security or of public order (ordre public), or of public health or morals. Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Article 15 1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. 2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order 2002] CONVENTION ON THE RIGHTS OF THE CHILD 353

(ordre public), the protection of public health or morals, or the protection of the rights and freedoms of others. Article 16 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. Article 17 States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: a. Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of Article 29; b. Encourage international cooperation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources; c. Encourage the production and dissemination of children’s books; d. Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; 354THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

e. Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18. Article 18 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children. 3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2002] CONVENTION ON THE RIGHTS OF THE CHILD 355

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow- up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. Article 20 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall, in accordance with their national laws, ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption, or, if necessary, placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: a. Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance 356THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; b. Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; c. Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; d. Take all appropriate measures to ensure that, in inter- country adoption, the placement does not result in improper financial gain for those involved in it; e. Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. Article 22 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her 2002] CONVENTION ON THE RIGHTS OF THE CHILD 357

parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent inter-governmental organizations or non-governmental organizations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention. Article 23 1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. 358THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development 4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries. Article 24 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2002] CONVENTION ON THE RIGHTS OF THE CHILD 359

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: a. To diminish infant and child mortality; b. To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; c. To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; d. To ensure appropriate pre-natal and post-natal health care for mothers; e. To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; f. To develop preventive health care, guidance for parents and family planning education and services. 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. 4. States Parties undertake to promote and encourage international cooperation with a view to achieving 360THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries. Article 25 States Parties recognize the right of a child who has been placed by competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement. Article 26 1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child. Article 27 1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development. 2002] CONVENTION ON THE RIGHTS OF THE CHILD 361

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall, in case of need, provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements. Article 28 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: a. Make primary education compulsory and available free to all; b. Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; c. Make higher education accessible to all on the basis of capacity by every appropriate means; 362THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

d. Make educational and vocational information and guidance available and accessible to all children; e. Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries. Article 29 1. States Parties agree that the education of the child shall be directed to: a. The development of the child’s personality, talents and mental and physical abilities to their fullest potential; b. The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; c. The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may 2002] CONVENTION ON THE RIGHTS OF THE CHILD 363

originate, and for civilizations different from his or her own; d. The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; e. The development of respect for the natural environment. 2. No part of the present article or Article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority, or who is indigenous, shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. Article 31 1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child, and to participate freely in cultural life and the arts. 364THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity. Article 32 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties, shall, in particular: a. Provide for a minimum age or minimum ages for admission to employment; b. Provide for appropriate regulation of the hours and conditions of employment; c. Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international 2002] CONVENTION ON THE RIGHTS OF THE CHILD 365 treaties, and to prevent the use of children in the illicit production and trafficking of such substances. Article 34 States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall, in particular, take all appropriate national, bilateral and multilateral measures to prevent: a. The inducement or coercion of a child to engage in any unlawful sexual activity; b. The exploitative use of children in prostitution or other unlawful sexual practices; c. The exploitative use of children in pornographic performances and materials. Article 35 States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. Article 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare. Article 37 States Parties shall ensure that: a. No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age; 366THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

b. No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; c. Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; d. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. Article 38 1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child. 2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. 3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have 2002] CONVENTION ON THE RIGHTS OF THE CHILD 367

attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest. 4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. Article 39 States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self- respect and dignity of the child. Article 40 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: 368THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

a. No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; b. Every child alleged as or accused of having infringed the penal law has at least the following guarantees: i. To be presumed innocent until proven guilty according to law; ii. To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defense; iii. To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; iv. Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; v. If considered to have infringed the penal law, to have the decision and any measures imposed in 2002] CONVENTION ON THE RIGHTS OF THE CHILD 369

consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; vi. To have the free assistance of an interpreter if the child cannot understand or speak the language used; vii. To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: a. The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; 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 offense. 370THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 41 Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in: a. The law of a State Party; or b. International law in force for that State.

PART II

Article 42 States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike. Article 43 1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided. 2. The Committee shall consist of ten experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems. 3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. 2002] CONVENTION ON THE RIGHTS OF THE CHILD 371

Each State Party may nominate one person from among its own nationals. 4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention. 5. The elections shall be held at meetings of States Parties convened by the Secretary-General at the United Nations Headquarters. At those meetings, for which two-thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years. Immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting. 7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform 372THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

the duties of the Committee, the State Party, which nominated the member, shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee. 8. The Committee shall establish its own rules of procedure. 9. The Committee shall elect its officers for a period of two years. 10. The meetings of the Committee shall normally be held at the United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly. 11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention. 12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide. Article 44 1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights: 2002] CONVENTION ON THE RIGHTS OF THE CHILD 373

a. Within two years of the entry into force of the Convention for the State Party concerned; b. Thereafter every five years. 2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned. 3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided. 4. The Committee may request from States Parties further information relevant to the implementation of the Convention. 5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities. 6. States Parties shall make their reports widely available to the public in their own countries. Article 45 In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention: a. The specialized agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled 374THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

to be represented at the consideration of the implementation of such provisions of the present Convention as may fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children’s Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; b. The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children’s Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications; c. The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child; d. The Committee may make suggestions and general recommendations based on information received pursuant to Articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties. 2002] CONVENTION ON THE RIGHTS OF THE CHILD 375

PART III

Article 46 The present Convention shall be open for signature by all States. Article 47 The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. Article 48 The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 49 1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession. Article 50 1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of 376THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one-third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval. 2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. 3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted. Article 51 1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. 2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary- General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General 2002] CONVENTION ON THE RIGHTS OF THE CHILD 377

Article 52 A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General. Article 53 The Secretary-General of the United Nations is designated as the depositary of the present Convention. Article 54 The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty

Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989

The States Parties to the present Protocol, Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights, Recalling Article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and Article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, Noting that Article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable, Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, Desirous to undertake hereby an international commitment to abolish the death penalty, Have agreed as follows: 2002] ABOLITION OF THE DEATH PENALTY 379

Article 1 1. No one within the jurisdiction of a State Party to the present Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction. Article 2 1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. 2. The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime. 3. The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory. Article 3 The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with Article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol. 380THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 4

With respect to the States Parties to the Covenant that have made a declaration under Article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.

Article 5

With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.

Article 6 1. The provisions of the present Protocol shall apply as additional provisions to the Covenant. 2. Without prejudice to the possibility of a reservation under Article 2 of the present Protocol, the right guaranteed in Article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under Article 4 of the Covenant. 2002] ABOLITION OF THE DEATH PENALTY 381

Article 7 1. The present Protocol is open for signature by any State that has signed the Covenant. 2. The present Protocol is subject to ratification by any State that has ratified the Covenant or acceded to it. Instruments of ratification shall be deposited with the Secretary- General of the United Nations. 3. The present Protocol shall be open to accession by any State that has ratified the Covenant or acceded to it. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 8 1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession. 2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession. 382THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Article 9

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 10

The Secretary-General of the United Nations shall inform all States referred to in Article 48, paragraph 1, of the Covenant of the following particulars: a. Reservations, communications and notifications under Article 2 of the present Protocol; b. Statements made under Articles 4 or 5 of the present Protocol; c. Signatures, ratifications and accessions under Article 7 of the present Protocol: d. The date of the entry into force of the present Protocol under Article 8 thereof.

Article 11 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in Article 48 of the Covenant. Case Studies

I. STATE OF CONSTANCIA ...... 383 II. STATE OF GANLANDIA ...... 384 III. STATE OF T ERUKA ...... 386 IV. STATE OF SANDOLINA ...... 387 V. C ITY OF MAHARLIKA ...... 388 VI. BARANGAY LORENZO, LAGUNA ...... 389 VII. STATE OF BERNITA ...... 391

I. STATE OF CONSTANCIA

Constancia is a developing state which maintains Special Economic Zones (SEZ) in order to attract local and foreign investors to put up factories under preferential investment terms or incentives. Corporations operating within the SEZ need not follow employment and environmental standards applicable in other parts of the country. For instance, the minimum wage of employees in the SEZ may be lower in comparison with those employees outside the SEZ. Employees in the SEZ are not even allowed to form unions. Zoraida is an employee of E-Max Company, a joint venture between local and foreign businessmen, which operates a factory staffed mostly by women. The staff is required to work from 12 to 14 hours per day, six days per week. On account of these long working hours, Zoraida has decided to place her child with her parents who live in their village far away from the SEZ. She sees her daughter once or twice a year only. She sends most of her meager income to her parents for the support of her child. Working conditions inside E-Max are very poor. There is no air- 384THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 conditioning and the fans made available to them provide inadequate air circulation. The employees have no breaks during the day and are locked into the building during their shift. The factory is visited occasionally by the Health and Safety Inspection Officer from the government, but the latter often ignores the abysmal working conditions. The company Manager provides the Officer with a small cash gift every month, in exchange for his silence. Questions: 1. Identify the ESC rights violated. 2. What suggestions/recommendations do you propose to address the violation?

II. STATE OF GANLANDIA

Flora belongs to an indigenous community inhabiting the northern highlands of the State of Ganlandia. She works near the village where she grew up and has an enjoyable working situation. She attended a local agricultural college and still studies as an “apprentice” with a village elder to learn about plants that grow in the local rainforest: food plant and those that can provide medicine. The national education system allowed her to study what she was most interested in, and she was able to find a good job in her chosen field. She works for a not-for-profit research park that studies and preserves local plants, and shares knowledge of these plants with students and other visitors. As part of her work, Flora cooperates with an indigenous community in the highlands to preserve traditional medicinal plants and wild food crops, as well as wisdom about them. 2002] CASE STUDIES 385

With the help of a few local and international development aid organizations, Flora and the people she works with have set up an institute that studies traditional knowledge of plants and conducts research and education on them. Flora and her co-workers once shared their knowledge freely. But some foreign scientists who took away knowledge of traditional medicine now claim that their corporation owns the exclusive right to sell drugs based on local medicinal plants. The foreign corporation did not give any credit or money to the institute or to the indigenous community who was the original source of knowledge. Flora and her people also had to deal with cattle ranchers who want to clear part of the forest traditionally used by her people. They derive a high percentage of their livelihood from the animals and plants of the rainforest, supplemented by small farms. The indigenous people do not have a registered legal title to their land. In fact, most of them believe that nature belongs to the Creator and that it should just be shared and not “owned.” Existing laws permit the ranchers to claim tribal lands as their own. The ranchers can become official landowners of an area simply by occupying it, paying a fee to the government, and filing the correct papers in the Land Office. Another plan for the rainforest is to use a part of it as a nature park with the help of an international aid agency. Some members of the indigenous community might be employed showing animals and plants to tourists, but more would lose access to their traditional ways of life, and many would be excluded from traditional areas. There was no consultation at all with the people before this “ecotourism” was planned. Questions: 1. Identify the ESC rights violated. 386THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

2. What suggestions/recommendations do you propose to address the violation?

III. STATE OF TERUKA

Teruka ratified the ICESCR sometime in the late ‘80s. It submitted an Initial Report to the Committee and the latter gave its concluding observations. Teruka has not provided the Committee with any information on the measures it has taken with regard to the suggestions and recommendations made by the Committee in its concluding observations. Many of the issues referred to in the 1994 concluding observations remain subjects of concern. No legislative, judicial and administrative measures have yet been adopted by Teruka to give effect to many provisions of the ICESCR. There are continuing delays with regard to the adoption of a new Labor Code aiming at the unification of existing labor legislation. Certain issues contained in the draft Labor Code, such as the minimum age for labor and working conditions, are not in conformity with ILO Convention No. 138 (minimum age for admission to employment), and No. 182 (abolition of the worst forms of child labor), which Teruka has not yet ratified. Children born out of wedlock are persistently discriminated and frequently abandoned by their parents, and lack legal protection under the Personal Status Code and Family Law. The situation of streetchildren is alarming considering that 22% of them are under the age of five. Teruka has a high rate of maternal and infant mortality. It has not adopted a national strategy and action plan of health, and the health coverage provided by the State does not cover more than 20% of the population. Finally, less than 50% of children of both sexes are being regularly educated and the level of attendance in primary school is low. The access 2002] CASE STUDIES 387 of young girls to education is considerably more limited particularly in the rural areas which accounts for the fact that adult illiteracy is 65% for women as against 40% for men. Questions: 1. Identify the ESC rights violated. 2. What suggestions/recommendations do you propose to address the violation?

IV. STATE OF SANDOLINA

Sandolina is a state which is currently plagued by political instability, poor management, galloping inflation and rampant corruption. It has about seven key cities where millions of people live in makeshift houses without adequate water facilities. Access to these urban poor communities is difficult on account of the lack of planning of the settlements. Many of the settlers come from the provinces and have abandoned their work in the farmlands due to low income and productivity. During the rainy season, the settlements are flooded and it is not uncommon that diseases spread quickly among the residents, particularly the children. The Department of Human Settlement of Sandolina decided to relocate these communities in a nearby province. Those who refused to be relocated were evicted forcibly. Some women residents were even verbally abused, beaten and raped. About 250,000 street traders were affected by the eviction. Their merchandise and shelters had been destroyed without any compensation. The association of urban poor dwellers in several cities filed a petition in court seeking relief against the actions of the Department of Human Settlement. 388THE PHILJA JUDICIAL JOURNAL [VOL. 4:12

Questions: 1. Identify the ESC rights violated. 2. What suggestions/recommendations do you propose to address the violation?

V. CITY OF MAHARLIKA

The city of Maharlika wanted to build a “People’s Park” in a city-owned lot adjoining a busy national highway. After a month’s notice, before dawn, city authorities sent a demolition team which immediately proceeded to tear down the stalls, sari-sari stores and carinderia, as well as temporary shanties. A confrontation took place as the shanties’ residents tried desperately to defend their homes and meager belongings. Taking the cudgels for the subjects of ejectment, a social action group, Mamamayan, assisted by Alternative Law Advocates (ALA), urgently reported the situation to the Philippine Commission on Human Rights (CHR) asserting and detailing violations of human rights which needed immediate redress. Among the allegations are: children deprived of shelter, food, clothing and medicine; women sexually harassed and manhandled; families’ meager belongings destroyed and looted; police brutality, lack of systematic relocation action plan. Questions: A. For the Social Action Team 1. What rights are deemed violated? 2. Specifically, what economic, social and cultural rights would you cite? 2002] CASE STUDIES 389

3. What principles or instruments of human rights would you invoke? 4. What relief/remedy would you seek from the (Philippine) Commission on Human Rights, from administrative agencies, and/or the Courts? B. Domestic Remedy Team: CHR, Administrative Agencies, Courts 1. What relief/remedy could you grant based on existing rules, laws or treaties? 2. Assume that the CHR conducted an investigation and hearing of CHR Case No. 2000-01 entitled, “Fermin, et al. v. Quiambao, et al.” Mayor Nomis filed a special civil action for prohibition at the Supreme Court. You are now the Supreme Court. How would you rule given the constitutional provision on the powers and functions of the CHR? C. International Remedy/Relief Team: International Bodies and Procedures 1. What international procedure can the social action group invoke? 2. What relief/remedy could you grant? 3. What would you ask the government to do?

VI. BARANGAY LORENZO, LAGUNA

The residents of Barangay Lorenzo in the Province of Laguna have petitioned the President urging that she suspend negotiations with the IMF on a loan agreement for $40 billion due to be signed next month, and that she convene a public hearing 390THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 throughout the country over the next eight weeks to ascertain what should be the basis of future negotiations. Four years ago, when the last IMF loan of $3 billion had been made, the government required to undertake a structural adjustment program with serious cuts in public spending. During that period, the Barangay has witnessed the closure of two state-funded hospitals and all of the primary schools in the Barangay have shown various signs of decline. Malnutrition in the Barangay, and indeed in the Province, has increased seriously. Large areas of land under cultivation of rice have been converted to an industrial petrochemical park under the successor to the CALABARZON industrial development plans. The water level in the lake has gone down by two feet and this has devastated fish stocks. Ground water is heavily polluted with hazardous effluents from the petrochemical plants and can no longer be used for rice cultivation. Eviction notices have been served on the communities at the perimeter of the petrochemical industrial zone since there are plans for expanding the zone by encouraging other industries to locate there as well. The residents of Barangay Lorenzo have approached the Laguna Human Rights Task Force (a coalition of provincial NGOs) and the U.P. Los Baños for assistance in bringing appropriate judicial, administrative and legislative actions. The Bishop of Laguna has issued a pastoral letter urging province- wide support for the residents of Barangay Lorenzo. The Lorenzo Morning Star newspaper has published a weekly series of articles profiling the problems. 2002] CASE STUDIES 391

VII. STATE OF BERNITA

The State of Bernita has limestone quarries in a hilly part of its territory spread over the slopes of the hills as also over their topmost portion. The State has given these limestone quarries for quarrying operations to a joint venture company X, formed by a Philippine company and a Japanese enterprise. The hills which contain the limestone deposits are covered partly by forests. There is a law enacted by the State which forbids culturing of trees without the permission of forest officials of the State. Company X has not obtained any permission from the State officials and without obtaining such permission, it has started cutting trees and decimating the forests for clearing the site of quarrying. It is carrying on quarrying operations in an indiscriminate and reckless manner so that underground water springs are drying up and a lot of debris is falling on the ground affecting the fertility of the soil of the fields at the foot of the hills. Company X is employing indigenous workers, including women, who are paid salaries far below the minimum wage prescribed by law, but the workers have no choice because otherwise they would be jobless and starve. The workers have to work long hours exceeding eight hours which is the maximum prescribed by law. Workers, particularly women, have to carry heavy loads of stone which is quarried. There is no living accommodation provided to the workers who have to live in small impoverished hutnuts without any proper toilet facilities. They are not provided with clean drinking water, and they are required to work and live in abominable conditions. There are instances of rape and sexual harassment of women workers by supervisory staff. They have to use explosives for carrying out quarrying operations, but no safeguards are provided and in the 392THE PHILJA JUDICIAL JOURNAL [VOL. 4:12 course of operations, some workers are injured, even killed. They are not allowed to join any trade unions and are engaged only as temporary workers. They are exploited and they want to leave, but they cannot do so because Company X has kept armed guards with a view to preventing them from leaving and extracting work from them. Questions: 1. What are the rights of the workers which are violated and what is their remedy since they are not in the position to pursue any remedy on account of their helpless situation? 2. Can any action be taken on their behalf ? 3. Can the community whose water resources are drying up and the farmers whose lands are rendered infertile complain of violation of any of their human rights and if so, what remedies can they pursue?