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Philippine Democracy Assessment Rule of Law and Access to Justice 1 Philippine Democracy Assessment Rule of Law and Access to Justice AUTHORS Edna E.A. Co Nepomuceno Malaluan Arthur Neame Marlon Manuel Miguel Rafael V. Musngi © 2010 by Action for Economic Reforms 2010 © 2010 by International Institute for Democracy and Electoral Assistance (International IDEA) This report was developed by Action for Economic Reform as part of a project entitled Philippine Democracy Assessment: Rule of Law and Access to Justice. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Contents Applications for permission to reproduce or translate all or any part of this publication should be made to: Action for Economic Reforms Unit 1403, 14th Floor, West Trade Center 132 West Avenue, Quezon City Telefax: (632) 4265626 Acronyms and Abbreviations vi E-mail: [email protected] / Website: www.aer.ph Foreword viii International Institute for Democracy and Electoral Assistance Preface xi (International IDEA) SE-103 34 Stockholm, Sweden Phone + 46 8 6983700 / Fax + 46 8 202422 1. Introduction and Framework 1 E-mail : [email protected] / Website: http://www.idea.int 2. Institutions 19 Book design: Ariel Manuel 3. Access to Justice 77 Cover art and design: Joanna Ruiz 4. Emerging Challenges Facing the Rule of Law: From the Global to the Local 115 The National Library of the Philippines CIP Data 5. Public Perception 173 Recommended entry: 6. Concluding Statements 211 Philippine democracy assessment : rule of Appendix 219 law and access to justice / authors, Edna E. A. Co . [et al.] — Quezon City : Action for Economic Reforms, Inc. Index 222 and International Institute for Democracy and Electoral Assistance Contributors 231 (IDEA), 2010. p. ; cm. ISBN 978-971-92014-7-2 1. Rule of law—Philippines. 2. Justice, Administration of—Philippines. 3. Political questions and judicial power—Philippines. 4. Judicial review—Philippines. I. Co, Edna E. A. KPM1726 340.11 2010 P102010815 Acronyms and Abbreviations IBP Integrated Bar of the Philippines ICC International Criminal Court ICC Indigenous Cultural Community ICG International Crisis Group ICJ International Commission of Jurists IDMC Internal Displacement Monitoring Centre IDP internally displaced people/person Acronyms and Abbreviations IHL International Humanitarian Law ILO International Labour Organization IP Indigenous People IPRA Indigenous Peoples Rights Act JBC Judicial and Bar Council JI Jemaah Islamyah ADR Alternative Dispute Resolution JMC Joint Monitoring Committee AFP Armed Forces of the Philippines Libertas Lawyers League for Liberty AHJAG Ad-Hoc Joint Action Group MDG Millennium Development Goals ALG Alternative Law Groups, Inc. MILF Moro Islamic Liberation Front APJR Action Program for Judicial Reform MNLF Moro National Liberation Front ARMM Autonomous Region of Muslim Mindanao MOA-AD Memorandum of Agreement on Ancestral Domain ASG Abu Sayyaf Group NCIP National Commission on Indigenous Peoples BJE Bangsa Moro Juridical Entity NCRFW National Commission on the Role CEDAW Convention on the Elimination of All Forms of of Filipino Women Discrimination Against Women NDF National Democratic Front CHR Commission on Human Rights NGO non-governmental organisation CJ Chief Justice of the Supreme Court NPA New People’s Army CPJ Committee to Protect Journalists OSG Office of the Solicitor General CPR calibrated pre-emptive response PAO Public Attorney’s Office CPP Communist Party of the Philippines PCIJ Philippine Center for Investigative Journalism CSC Civil Service Commission PLEB People’s Law Enforcement Board DFA Department of Foreign Affairs PNP Philippine National Police DILG Department of the Interior and Local Government RP Republic of the Philippines DOJ Department of Justice SCAW Supreme Court Appointments Watch EJK extrajudicial killing SWS Social Weather Stations FLAG Free Legal Assistance Group UN CEDAW Committee on the Elimination of Discrimination FPIC free, prior and informed consent Against Women GOCC Government-Owned and Controlled Corporation UN CERD UN Committee on the Elimination GRP Government of the Republic of the Philippines of Racial Discrimination HiiL Hague Institute for the Internationalisation of Law UN CRC UN Committee on the Rights of the Child HSA Human Security Act UN ODC United Nations Office on Drugs and Crime IALAG Interagency Legal Action Group vi vii Foreword strong commitment to integrity as the rule of law is also a very fragile dimension of democracy, which requires constant citizen scrutiny and is exceptionally sensitive to perceptions of fraud or corruption. Democracy’s future, however, is increasingly perceived as not only depending on democratic institutions and processes but also on capacity to deliver on its promises: Foreword to deliver freedom, equality, peace, security, prosperity and a better quality of life for all citizens. This quality of life embodied in the idea of democracy is inseparable from the rule of law, including access to justice and human rights. As credibility of democracy in many countries is increasingly undermined by unlawful behaviour of those in charge of protecting the rule of law - by incumbents The rule of law is critical for democracy’s sustenance and who manipulate constitutions and electoral laws to extend survival. In a democracy, those who govern not only their hold on power, by the lack of transparency in the receive their mandate from the people but also govern on relations between politicians and influential business behalf of the people. Control lies with the people, and entrepreneurs, etc. - respect for the rule of law is citizens should enjoy political equality in exercising that increasingly perceived as an area in which democracy control over decisions and decision makers. It is with this needs to improve its functioning and delivery. promise of collective control, equality, freedom, justice and Beyond formal institutions and processes, democracy’s peace that democracy has witnessed unparalled support delivery and credibility also depends on an active and growth in the last few decades. In countries ruled by engagement of citizens. Active citizenship has to be authoritarian regimes, this promise remains a motivating nurtured and supported by an institutional framework force for political change. Democracy needs institutions that facilitates a culture of openness for plural and and laws: to define and regulate the actions and powers contradictory discourses where reform priorities are of both citizens and rulers; to define and protect the rights debated and defined. Those who experience democracy on of citizens; to determine ways and means through which a daily basis, citizens, have to be at the forefront of citizens will elect and effectively control their government; evaluating its performance and articulating reform to ensure political equality; and to create an environment priorities. of freedom and security. In pursuing its democracy building mandate, the While democratic transitions may have their founding International Institute for Democracy & Electoral Assistance events, the building and consolidation of democracy is a (International IDEA), has used approaches that not only seek long term process that takes years, if not decades. to strengthen democratic institutions and processes but also Typically, the consolidation of the rule of law, as a key support active citizenship. It is against this background that, ingredient of democracy, is one of those processes that in 2000, International IDEA developed a reform oriented require time, persistence and patience. It involves the and context sensitive State of Democracy assessment development of knowledge, capacity and expertise, the methodology (SoD) for citizens to evaluate the quality and establishment of functional institutions and the deepening performance of their democracies. It is in this context that of a legal democratic practice and culture. It requires a viii ix International IDEA is proud to have partnered with Action for Economic Reforms in support of the Rule of Law & Access to Justice assessment conducted by the Philippine Democracy Assessment team. This is the fourth assessment in six years in which Philippine citizens, ably led by Professor Edna Co, have contextualized and applied International IDEA’s SoD assessment methodology to assess a dimension of Philippine democracy. Other assessments are Free & Fair Elections and Preface the Democratic Role of Political Parties (2004); Minimising Corruption (2007) and Economic & Social Rights (2007). An assessment on the rule of law and access to justice Martin Van Weerdenburg becomes timely when citizens and citizen groups raise Acting Secretary General questions on the extent to which the Philippines observe International IDEA and uphold the rule of law and whether these rules do indeed enable people an access to justice. This is especially important for those who seek and need justice more. Not a few sectors and citizens, including political observers, have noted a general weakening of public institutions. This assessment serves to validate such observation and to raise deeper questions on the state of the country’s rule of law, justice and human rights. Whilst the assessment examines the rule of law as exemplified in institutions and the various pillars of justice, it also unravels the political and cultural texture of the rule of law, and brings up the complexity of upholding it and attaining justice and human rights, all of which intertwine