18th February 2009, U.P. Law Center
On 18th February 2009 was organized a Multi-stakeholders forum and dialogue on Economic, Social & Cultural Rights in the Philippines to popularize the Concluding Observations of the Committee regarding the Philippine ESC Rights Report.
CONTENTS
- ECONOMIC, SOCIAL AND CULTURAL RIGHTS: CONCEPT
- ESCR RIGHTS: PROCESSES
- THE CONCLUDING OBSERVATIONS
- OPEN FORUM
- Workshop Group #1: RIGHT TO BASIC SERVICES: FOOD, HEALTH, ESSENTIAL SERVICES (WATER & POWER), EDUCATION
- Workshop Group #2: RIGHT TO HOUSING
- Workshop Group #3: RIGHT TO WORK
ECONOMIC, SOCIAL AND CULTURAL RIGHTS: CONCEPT
Prof. Nymia Pimentel-Simbulan
Prof. Simbulan started with defining the rights enunciated in Articles 6 to 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), tracing these rights from the Universal Declaration of Human Rights (UDHR), specifically Articles 22 to 27. This class of rights, also referred to as second generation rights, comprise the second “cornerstone” of the rights regime envisioned in the UDHR.
By nature, Simbulan discussed further, economic, social and cultural (ESC) rights require “progressive realization” – pertaining to the responsibility of the State to develop national plans with targets, allocate maximum resources available, secure international assistance and cooperation, and implement laws, policies and programs without undue discrimination – as well as “justiciability” – the quality of the right itself being vindicated in an action filed in local courts against the State for non-compliance.
It was emphasized that the responsibility of the State is not to ensure perfect compliance, but essentially to prioritize basic services over defense spending and illegitimate or odious debt servicing. The availability of corresponding judicial remedies for ensuring State compliance however is constrained by the Philippines’ limited experience in filing suits of this nature, compared to other countries like India and some European nations. Philippine courts are perceived as not so receptive or capacitated to act; and judicial determination is hampered by the lack or insufficiency of parameters and indicators of violations.
Proceeding to the common elements of ESC rights, Prof. Simbulan discussed “Availability”, “Accessibility”, “Acceptability” and “Quality” as benchmarks or indicators of State compliance with the normative contents of these rights. The presence in sufficient quantity of functioning facilities, materials, resources and services mean that ESC rights are made within the reasonable reach of the people, physically, economically (affordable) and free of other intangible barriers such as discriminatory treatment. The implementation and technologies for the exercise of these rights, in turn, must be acceptable to the people themselves, by being culturally appropriate, as well as sensitive to gender, sex and religious considerations. Finally, the normative quality of these rights depend on their being of sound scientific basis, capable of safe and effective use.
Prof. Simbulan ended with a hopeful reference to the recent adoption of the Optional Protocol (OP) to the ICESCR, which established a complaint mechanism through the Committee on Economic Social and Cultural Rights of the United Nations, where individual groups may hold state parties accountable at the international level provided local administrative remedies have been exhausted. The OP has yet to be ratified, however.
ESCR RIGHTS: PROCESSES
Prof. Virginia Dandan
As a current member and former chairperson of the UN Committee on Economic Social and Cultural Rights (CESCR), Professor Virginia Dandan was the best person to elucidate on the processes observed in the said committee. She first discussed how members of the CESCR are chosen – nomination by State parties then election by the ECOSOC – in order to highlight the principle that once elected, CESCR members become independent of and no longer represent their respective State parties.
Once they ratify the ICESCR, State parties bear the obligation of submitting a report on its compliance with the normative commands of the convention and related international law, within two (2) years from ratification and every five (5) years thereafter. Unfortunately, the Philippines had failed to submit its report for three consecutive reporting cycles, and if not for the one-time “amnesty” of the CESCR, allowing State parties who have so far failed to comply with the reportorial requirement, to make-up by submitting a single report for the whole period of delay. In addition, where before the CESCR required separate reports for the each review cluster (economic, social and cultural clusters), a shift was made in favor of a consolidated report.
Upon receipt of the State party’s report, it is translated to the working languages of the committee. After having read the report, the committee then adopts a List of Issues and assigns a Rapporteur from among its members. The List of Issues is directed at the State party for it to respond point by point on the concerns raised by the members of the committee. A dialogue between the CESCR, the State parties and concerned civil society groups as well as UN specialized agencies ensue, covering three meetings, on the average. The meetings are open to the public, but the committee also opts to hold a closed meeting with a State party. When the issues have been thoroughly discussed, the committee proceeds to adopt, paragpraph by paragraph, the Concluding Observations, which serve as the basis for the succeeding reporting cycle.
In the case of the Philippines’ recent report, the committee noted with satisfaction positive steps taken by the State party, but lamented the fact that the latter, despite the long period of non-submission, had submitted a report that lacked an explanation as to the challenges and difficulties that led to such delay.
Prof. Dandan also expressed elation at the adoption of the Optional Protocol, which she characterizes as a necessary consequence of the evolution of human rights instruments, from the UDHR, to the mother document setting forth the primordial vales of equality, non-discrimination and inclusion, to the specific protocols. The Optional Protocol to the ICESCR establishes a “communications procedure”, essentially a mechanism for bringing complaint against non-compliant State parties to the CESCR.
For its part, the CESCR, in tandem with other UN specialized agencies and bodies, recently came up with innovations on treaty-specific reporting guidelines. The main thrust of the reform is the requirement to submit a “common core document” to all the committees containing all the common elements sought to be seen by these treaty bodies. Aside from the common core document, specific committees also would receive treaty-specific reports.
THE CONCLUDING OBSERVATIONS
Dir. Karen Dumpit
Commission on Human Rights (CHR) Director Karen Dumpit sees the Concluding Observations on the Philippine Report as an effective tool in the campaign/advocacy to improve compliance with ESCR goals. For example, the CHR has noted the positive response of the Supreme Court through the Philippine Judicial Academy in addressing the matter of rendering ESC rights justiciable in Philippine courts. Other government agencies like the Department of Agrarian Reform have, in response to CHR’s reference to observations pertinent to their respective functions, promised to take ESC rights into account in their program development and policy making activities.
The CHR also takes pride in the fact that during the recent presentation at the CESCR of the Philippine report, all constituencies – the State party, civil society and the national human rights institution – had been represented. In fact, for the first time in the history of the CESCR, the Chair of the national human rights institution was permitted to directly address the committee while the State party delegation was presenting the report, highlighting the independence of the CHR.
OPEN FORUM
Court Administrator (CA) Jose Perez pointed out the Supreme Court’s own initiatives in line with economic, social and cultural rights, such as the recent national forum on access to justice, the promulgation of new rules for small claims cases, institutionalization of judicial dispute resolution and alternative dispute resolution/mediation, and the writs of amparo and habeas data.
The representative from the Department of Labor and Employment (DOLE) inquired as to the availability “on demand” of updated information on the judiciary’s disposition of human rights cases, to which CA Perez answered by pointing out that as to technology, the Court has adopted a computerized court management and information system in pilot courts, but by and large the Court is still working to achieve the kind of “on demand” updating described by the DOLE representative, considering the highly complex nature of litigation.
A non-governmental organization (NGO) representative asked about the status of efforts by the Court to review the writ of amparo in order to make it more attuned to reality. CA Perez pointed out that the process of review necessitates a rather long process, but the Justices of the Supreme Court are steadfast in their commitment to ensure the efficacy of the writ of amparo as a human rights tool.
A representative of the Presidential Committee on Human Rights (PCHR) sought to clarify the apparent conflict between the Concluding Report and the CESCR’s public statement during the report presentation on the matter of compliance with the next report cycle, whether the Philippines need to submit individual reports on cluster areas or a consolidated report. Prof. Dandan suggested that they clarify the issue with the CESCR itself, considering that the committee had indeed made a statement during the presentation to the effect that the State party need only to submit a consolidated report. The PCHR also informed the body that it is constant communication with other agencies in coming up with a database government human rights-related issuances, policies and initiatives.
A representative from the Department of Foreign Affairs manifested that the consensus among lead agencies of the Philippine government favors adoption of the Optional Protocol, but the “ticklish issue” as they see it is the concern of the Department of Justice on the rather unclear and tenuous justiciability of ESC rights.
Another NGO observed the lack of specific statements on the right to food and food security.
Other NGOs and the National Economic Development Authority (NEDA) representative also noted the apparent gaps, overlaps and conflicts between the ICESCR and other treaties such as International Labor Organization (ILO) Conventions, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child. Prof. Dandan acknowledged that the ICESCR is an imperfect document, as are all UN treaties, even the UDHR. But it is the responsibility of civil society and State parties alike, she stressed, to raise these issues and lobby persistently for their rectification. As to the overlapping coverage, Prof. Dandan opined that the ability to distinguish between ESC rights and Civil and Political rights is a rather subjective process, influenced by one’s cultural, educational and political background. For herself, an artist, the dividing line is rather clear and it is her goal to see that line blurred if not erased, for talking about human rights, one should look at both the cause and the effect.
WORKSHOP GROUPS
There was difficulty in dividing the plenary into workshop groups because of the issues raised and the representations in attendance. Three issues, however, clearly emerged: basic services, housing, work/labor, and justiciability. Hence, groupings were based on these issues.
The workshop groups were asked to discuss the following points. First, what are the needed policy reforms, programs and actions for the improved implementation of ESC rights? Second, what are the difficulties or gaps that hinder compliance with UNCESCR recommendations? And, third, how can government agencies and civil society work together to live up to the duties under the ICESCR? What are the areas of cooperation and action points in relation to this last question?
Workshop Group #1: RIGHT TO BASIC SERVICES: FOOD, HEALTH, ESSENTIAL SERVICES (WATER & POWER), EDUCATION
Needed Policy Reforms, Programs and Actions
1. Review of laws/policies. Existing laws and policies have to be reviewed to determine if they are still applicable at present, or if they should be repealed. The following must be identified:
- a. Laws/policies that can be used in enforcing ESC rights.
- b. Laws/policies that are in conflict with ESC rights and/or other laws – particularly Executive Orders.
- c. What policy reforms are further needed.
2. Lobby for pending bills. Look into pending legislations that will impact ESC rights on basic services for possible advocacy/lobby plans. For example, the Magna Carta for the Poor; for health, the Reproductive Health bill and the Patients Rights bill; for food, the Food Security Act and the Mandatory Food Labeling.
3. Some specific policy reforms.
- a. Reformulate Internal Revenue Allocation (IRA) distribution. The current IRA distribution favors some areas – for example, the National Capital Region, while neglecting the others. IRA distribution should not be based solely on income and population; it must look into the developmental needs of the regions.
- b. Extend Comprehensive Agrarian Reform Program (CARP) and retain the compulsory mode of land acquisition. The Agrarian Reform Law finished last December 2008, but the CARP has been extended for another six (6) months. The compulsory mode of land acquisition, however, has been taken out of the CARP and only voluntary offer for sale (VSO) has been retained. Unfortunately, landowners will not volunteer to give out their lands. The only good thing about the turn of events is that President Arroyo was not able to sign. Department of Agrarian Reform Secretary Pangandaman gave an order not to process agrarian reform applications anymore, and just finish the ones which are already pending.
- c. Micro-financing for the urban poor. There should be policies to address micro-financing for the urban poor, to support their livelihood. This proposal should be in the right to work component, but there are issues raised regarding the matter of micro-financing, such as interest rates and who should regulate micro-financing programs and activities.
- d. Legislate to establish and implement the right to water. Access to water is an issue especially for the urban poor. Applications for water connection are not being approved by public utility companies, partly because of right of way problems. There are even cases when the property owners who do not allow right of way for water connections are government agencies. Further, the right should include the aspect of water quality; that is, it should be a right to clean and safe water.
- e. Develop a general comment on land for food security. The comment should emphasize agrarian reform – although food security also calls for security of fisherfolks on the seas and shores.
- f. Protect watershed areas from applications for mining license.
- g. Remove automatic appropriation for debt servicing. Instead of being used to pay for the interests incurred by the public debt, the public funds should be put to providing basic services for the people.
Gaps and Difficulties in Implementing ESC Rights
1. Limited national budget.
2. Policymakers with conflicting interests. This is particular illustrated in the matter of CARP. The fact that many of the members of Congress are landowners creates difficulty – if not impossibility – in implementing a genuine agrarian reform because their interest as landlords conflict with the interests of agrarian reform.
3. State neglect of obligation: privatization of basic services. ESC rights cannot be fully implemented because of private investment concerns. Privatization of basic services (such as water, light and health services) makes these services expensive and inaccessible to the poor. State responsibility and obligation should be retained in ensuring the realization of ESC rights.
4. Informal settlers discriminated by application requirements. Requirements for power and water connections (i.e. land titles, lease contracts, residency permits, demolition plans, right of way, etc.) make it virtually impossible for informal settlers to access service through legal means.
Areas for Cooperation between Government and Civil Society
1. Data sharing and reporting. This should be regular; for example, quarterly. Data such as on malnutrition and hunger, should be included.
2. Monitoring. Implementation of projects and compliance with budgetary allocations, should be monitored. Transparency mechanisms should be established.
3. Advocacy. Specific NGOs and government agencies can cooperate to come up with advocacy plans together with CHR.
4. Advisory assistance. NGOs may coordinate with CHR in monitoring cases of ESC rights violations.
Workshop Group #2: RIGHT TO HOUSING
Needed Policy Reforms, Programs and Actions
1. Moratorium on demolitions. There is currently a CHR en banc resolution imposing a moratorium on demolitions. The moratorium is to last until such time that the government will have the capacity to comply with the guidelines on demolitions. It is just a CHR resolution, however, and the other government agencies will probably ignore the moratorium. Hence, there is need for an executive order, local legislations and memoranda of understanding among government agencies, in order to ensure that the moratorium will be followed.
2. Master list of urban poor settlers and housing beneficiaries. Local Housing Boards should prepare such master list – which should have been done back in 1992 – in order to settle the factual issue of who are professional squatters and who are legitimate beneficiaries of subsidized housing.
3. Strict implementation of EO No. 708. This EO was enacted to ensure compliance with regulations on demolition. There is a debate as to whether the regime under EO No. 708 should just be strengthened or the mandate should be transferred to the jurisdiction of an independent body, since mayors are the ones who issue permits for demolitions.
4. Transfer of the clearing house function to an independent clearing house.
5. Full implementation of UDHA. Particularly in terms of inventory of lands, identification of sites, and registration of beneficiaries.
6. Training of judges and prosecutors. There are many cases in court which do not prosper due to the judges’ and prosecutors’ lack of knowledge and understanding of ESC rights.
Gaps and Difficulties in Implementing ESC Rights
1. Lack or absence of law to implement the moratorium on demolitions.
2. Lack of shelter plans during demolitions.
3. Lack of political will. This is particularly true when those who are tasked to implement are in the same political parties as the politicians who are in power.
4. Corruption and debt servicing eating up the public funds.
5. Lack of cooperation on the part of local government units (LGUs). There is lack of assistance from the part of LGUs in the implementation of socialized housing program. LGUs also lack the technical capacity for the implementation.
6. Proclamation of lands as housing sites. Proclamation of government lands for socialized housing programs is a doable solution and must be implemented. Lands already proclaimed as housing sites must be utilized immediately because there is the danger that the proclamations might be subsequently reversed. At the same time, other lands that can also be proclaimed as housing sites must be identified.
Areas for Cooperation between Government and Civil Society
1. Monitoring and reporting. NGOs are already doing monitoring and reporting of cases of eviction; government should also do it.
2. Consultations with stakeholders. There should be meaningful consultation with the different stakeholders as to development programs.
Workshop Group #3: RIGHT TO WORK
Needed Policy Reforms, Programs and Actions
1. Address the persistently high unemployment and underemployment rates.
- a. Job generation through an increase of investments and provision of tax holidays.
- b. Emergency employment program for workers displaced due to global financial crises.
2. Increase the wage levels.
3. Protection of disadvantaged and informal workers.
- a. Reform package for an increased age requirement and increased wages of household service workers.
- b. For the self-employed and the disadvantaged and informal sectors, an integrated services for livelihood assistance program, a youth entrepreneurship support program, and a livelihood program for the parents of child workers.
4. Policies on overseas employment. While amendments to RA No. 8042 by RA No. 9422 strengthened the regulatory functions of the Philippine Overseas Employment Agency (POEA), there is a paradigm shift in the function of POEA. Per AO No. 247, the shift is from regulation to full blast marketing of overseas Filipino workers (OFWs). Meanwhile, however, Filipino migrant workers are being discriminated upon. Bilateral agreements or arrangements must be entered into first prior to deployment of OFWs.
Gaps and Difficulties in Implementing ESCR
1. Short-term programs. Project-based job generation cannot sustain families, especially during economic crises. Jobs that are good only for a few months lead to the question of security of tenure. The trend towards contractualization leaves workers without protection.
2. Security of tenure and contractualization.
3. Protection to workers: insurance policies.
4. Protection to overseas workers. Even those deployed to Filipino employers, diplomats and consuls.
5. Lack of POLOs and welfare officers vis-à-vis the number of OFWs. The Philippines has consulates, but at a ratio of only one (1) labor attaché for every 90 thousand OFWs. This ration dilutes the quality of service given to OFWs. The irony is that the government markets OFWs but the protection mechanisms are not keeping up. Rampant contract violns – have policies but implementation?
6. Rampant contract violations. There are policies regarding this, but implementation is another question.
Areas for Cooperation between Government and Civil Society
1. Revisit the Labor Code. Identify the gaps in labor laws, particularly the provisions on security of tenure and contractualization, and the possible remedies for those gaps. Also, study the possibility of including the informal sectors of the economy in the Labor Code’s coverage. They need protection, especially when they can no longer work.
2. Request the assistance of the UN for the observance/implementation of the ICESCR, especially in the countries where OFWs are deployed. The Philippines has good labor laws; but their reach is only within the Philippine territory. Even with bilateral agreements, violators in other countries cannot be reached and so they disregard our laws. But then, again, perhaps what is needed is to improve the local economy so that it can sustain families and worker no longer have to do mass migration.
3. Inward looking development. Foreign investments are here, but the jobs they create are short-term. It is, thus, problematic to depend on foreign investments. It is better to enhance and enrich the resources of the region: one town – one product approach.
Workshop Group #4: JUSTICIABILITY
Points of Observation
1. Regarding CONCOB Point 12, most lawyers are unaware of ESC rights. Training and seminars will help them develop an understanding of ESC rights.
2. Regarding interpretation of laws, the judiciary interprets the laws. Unless there is legislation to inform the judges of the elements of ESC rights, judges will determine the interpretation of ESC rights.
3. Regarding gender sensitivity, the Philippine Judicial Academy (PHILJA) has already taken action regarding how persons and positions are to be addressed or designated in CEDAW-based non-discriminatory terms. For example, “chairperson” instead of “chairman”.
4. Regarding access to justice in family courts, the Chief Justice issued a directive to look into the problems of family courts. The PHILJA has the wheels on justice program that go to localities and inquire people in the field about the legal and judicial issues they face in family courts.
5. Regarding Muslim personal laws, the matter of looking into the definition and interpretation of polygamy should be left to the authorities of Islam.
6. Regarding anti-trafficking of persons, there is a handbook on R.A. No. 9208.
7. Regarding abortion, abortion is absolutely penalized in the Philippines; but doctors should be allowed to perform abortion in certain situations.
8. Regarding research and publication, there is need for more research that will become basis for the strengthened ESC rights programs of the judiciary.
Needed Policy Reforms, Programs and Actions
1. Sustained, continued training of duty bearers.
2. Research on the part of the judiciary and law schools. Because the subject matter of ESCR is not included in the curricula of many – if not all – of the law schools in the country, research would enable law students to gain an understanding of ESC rights. This, in turn, would enable them, when they become lawyers, to better defend the ESC rights of their future clients.
3. Legislation to include penalties. There is need to enact laws that would define penalties for violation of ESC rights, so as to enable individuals to seek redress and claim remedies. For example, no one is being penalized for violations of the UDHA, even though this law is almost always violated. For UDHA to have teeth, there should be penal provisions. Also, a new CHR charter should strengthen it and give it quasi-judicial authority – since the CHR has only investigative power at present.
4. New charter for a strengthened CHR.
5. National Human Rights Action Plan. This plan should be enacted as a commitment to human rights and should reflect the priorities of the Philippines in terms of human rights.
Gaps and Difficulties in Implementing ESCR
1. Interpretation of local laws. When courts interpret local laws, they do not go beyond municipal law to invoke the ICESCR.
2. Issue-based NGOs have difficulty in participating in the education and training process. NGOs can be valuable in the education and training process because they can give the real picture of what us happening on the ground level.
3. Lack of monitoring. There is inadequate monitoring of the impact of training on the day-to-day decisions of the judges and other duty bearers. There should also be database on data gathered from the monitoring.
4. Training of lawyers and students. Most of the curricula of law schools do not cover human rights and should be revised to include the subject. The human rights content of MCLE should also be examined in terms of quality and substance. It may even be best to expand human rights education beyond the judiciary and law school, by including college and high school students and their teachers.
5. Some of the violators are government agencies. From this situation, the dilemma of how to make them accountable arises. But, perhaps, they are not aware that they are committing human rights violations; so it may be best to focus on educating them. International pressure might also help in making the agents of the state accountable.
6. The Public Attorney’s Office (PAO) is already overburdened. The PAO is supposed to provide legal service for the underprivileged; but its lawyers are already handling too many cases. Hence, the poor do not have lawyers to raise their ESC rights issues in courts.
Areas for Cooperation between Government and Civil Society
1. National Human Rights Action Plan. The government can draw up and implement the plan.
2. Legal Advocacy. The CHR should present cases in court for justiciability issues. Barangay Human Rights Action Officers should also advocate for rights on the ground level.
3. More judicial activism.
4. Focus on preventive measures, instead of responding to violations ex post facto. It may be possible to come up with one-stop shops for the informal sector, similar to the justice-on-wheels courts. In this undertaking, the participation of LGUs must be engaged.
5. Define parameters of justiciability. This will give instruction as to when ESC rights violations can be raised in courts. This also necessitates the defining of elements of such violations.
6. Designation of human rights lawyers. This is needed since PAO lawyers are already overworked with their present mandate.
COMMENTS AND OBSERVATIONS
1. The common points raised by the workshop groups are: (1) training; (2) monitoring; (3) data banking; (4) implementation of laws; and (5) enactment of new, with review of existing, legislations.
2. Regarding the transfer of clearing house, it was commented that this matter was already brought to UN ESCR Commission; but it was acknowledged that compliance cannot be fully guaranteed.
In reaction to such comment, it was remarked that LGUs should also comply with their duties. They have duties (the listing of beneficiaries, identification of relocation sites, inventory of sites, and so on) that are not being lived up to. In the name of development, many evictions and demolitions are being undertaken. These demolitions are given compliance certificates by LGUs even if the legal guidelines on demolitions are violated. The underprivileged then ask, how are we going to police the LGUs when they are the ones who commit the violations? The poor are saying, give it to an independent body; it can be given back to PCUP. PCUP responds that they will agree to such proposal, but LGUs should also do their share. It is a challenge, needing advocacy.
Another reaction to the comment stated that this is an example of how an expansion of the CHR’s powers can help. It can reverse the doctrine of the Simon case.
3. On legislation to define elements of ESC rights violations, it was commented that Supreme Court decisions are not necessary to make ESC rights justiciable. Take for example the right to a healthy ecology. At present, we have a Supreme Court that is progressive regarding human rights. There are two sources of justiciability: the Constitution and jurisprudence. What is needed is for NGOs to point out to government agencies that ESC rights are already interpreted in general comments, cases, etc. What is merely needed is to translate thes interpretations to local conditions. There are already many laws addressing ESC rights; although, maybe these laws do not have human rights framing (i.e. the normative content). Note that, in international law, justiciability is no longer an issue. The Philippines just lacks compliance. As for remedies, there are remedies available – for example, mandamus – if only we can dissect these remedies vis-à-vis violations.
4. Discussion of Articles III and XIII of the Constitution may be necessary. Maybe some lawyers can help the basic sectors, for reduced lawyer’s fees, regarding their ESC rights cases.
5. As to an independent body to replace the PCUP, the officials in that independent body should not come from the real estate sector, for there would obviously be a conflict of interest.
6. Regarding remedies to demolitions, the Supreme Court’s writ of amparo may have to be strengthened.
