IBP Journal Vol.35_No.1_2010

The IBP JournalI N T E G R A T E D B A R O F T H E P H I L I P P I N E S Board of Editors ROAN I. LIBARIOS Editor-in-Chief EDUARDO A. LABITAG Managing Editor DANILO L. CONCEPCION FLORIN T. HILBAY JAIME G. HOFILEÑA MARIO C.V. JALANDONI CONCEPCION L. JARDELEZA NASSER A. MAROHOMSALIC OSCAR G. RARO CARMELO V. SISON AMADO D. VALDEZ OLIVER B. SAN ANTONIO VINCENT PEPITO F. YAMBAO, JR. Associate Editors VICMUND Q. CAMACHO VIVIAN C. CAPIZNON EUMIR C. LAMBINO Staff Layout/Design VOLUME 35 NUMBER 1 (AUGUST 2010) CONTENTS Philippine Treaty Law and Practice J. Eduardo Malaya and Maria Antonina Mendoza-Oblena ....................... 1 An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma Merlin M. Magallona.................................................................................... 18 Defining Regulatory Spaces: Precautionary Principles, Regulatory Diversity, and the SPS Treaty of the WTO Agreement Marvic M.V.F. Leonen ................................................................................... 30 Revised Code of Corporate Governance: A Reactionary Approach Cesar L. Villanueva ....................................................................................... 40 Symbolic Speech in the Workplace Comments on NUWHRAIN v. Court of Appeals Florin Ternal Hilbay...................................................................................... 63 The Legal Regime Governing the Export of Filipino Workers Patricia R.P. Salvador Daway ..................................................................... 81 Global Climate Change and Recent Developments in Philippine Environmental Law Myrna S. Feliciano ........................................................................................ 93 An Environmental Writ: The Philippines’ Avatar Francis N. Tolentino ..................................................................................... 117 Revisiting the Philippine Educational System for Everyone’s Ref lection Rustico T. De Belen...................................................................................... 140 The IBP JOURNAL (ISSN 0118-9247) is an official publication of the Integrated Bar of the Philippines Subscription Rates (inclusive of postage): Php1,000.00 (local), US $20.00 (Foreign Individual), US $25.00 (Foreign Institution) Editorial Office Integrated Bar of the Philippines 15 J. Vargas Avenue, Ortigas Center, Pasig City 1600 Telephone: (632) 631-3014/18 Fax: (632) 634-4697 Website: www.ibp.ph Email: [email protected] The IBP Journal accepts papers dealing with legal issues and developments as well as socio- economic and political issues with legal dimensions. Only manuscripts accompanied by a soft copy (diskette, CD, e-mail, etc.), including an abstract and the curriculum vitae of the author, shall be accepted. All papers to be submitted must be signed. The articles published in the IBP Journal do not necessarily represent the views of the Board of Editors. Only the authors are responsible for the views expressed therein. SYNOPSIS (The Articles in this Issue) For this issue, the IBP Journal presents an eclectic selection of articles that presents both traditional and non-traditional analyses of important legal and constitutional issues. In “Philippine Treaty Law and Practice,” J. Eduardo Malaya and Maria Antonina Mendoza-Oblena trace the Philippine’s foreign policy objectives and expound on the various legal instrumentalities and processes by which the country enters into international agreements and obligations. Merlin M. Magallona (“An Essay on the Incorporation Clause of the Constitution as Juridical Enigma”) discusses the Incorporation Clause “enigma” under the Philippine Constitution, stating that the purpose of the Clause as shown by jurisprudence is to make international law principles binding on the Philippines. In the same way, however, “this function is needless because even without the Incorporation Clause under the doctrine of incorporation, the Philippines would still be bound by these principles.” Magallona then goes on to discuss hierarchies of norms under international law, differentiating between jus cogens norms, erga omnes obligations, and obligations under the UN Charter. Marvic M.V.F. Leonen’s “Defining Regulatory Spaces: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement” analyzes the meaning and elements of the Precautionary Principle and its application to international law instruments such as the World Trade Organization Agreement. In various decided cases, Leonen credits the WTO Appellate Body for contributing “to the clarification of the precautionary principle.” Cesar L. Villanueva in “Revised Code of Corporate Governance: A Reactionary Approach” analyzes the Revised Code of Corporate Governance vis-à-vis the older SEC Code of Corporate Governance and laments that “what stand out from the provisions of the Revised CG Code are not what new cutting-edge concepts were introduced, but rather what seminal provisions have been taken out from the provisions of the original SEC Code.” Villanueva critiques how the new Code has seemingly abandoned the Stakeholder Theory which was established by the older Code, though the principle can be seen in other sets of rules of other agencies. In “Symbolic Speech In The Workplace: Comments on NUWHRAIN v. Court of Appeals,” Florin Ternal Hilbay traces the modern legal history of free speech and the relationship between labor and capital, and examines the Supreme Court’s decision in NUWRAIN v. Court of Appeals, which involved a labor dispute between a hotel chain and its workers. He ends by posing a question: How should the courts draw the line between protected and unprotected speech in the workplace in the context of a contentious collective bargaining negotiation? Patricia R.P. Salvador Daway in “The Legal Regime Governing The Export of Filipino Workers” outlines the background of the labor situation in the country, provides statistics on Overseas Filipino Workers (OFWs), and explains why millions of Filipinos seek work abroad. She enumerates the statues and agencies relating to labor and concludes that “the problems facing OFWs are both in the national and international levels.” In their respective articles, Myrna S. Feliciano (“Global Climate Change and Recent Developments in Philippine Environmental Law”) and Francis N. Tolentino (“An Environmental Writ: The Philippines’ Avatar”) both discuss continuing challenges on the environment and the legal responses to environmental abuse and degradation. Feliciano details the numerous laws and government agencies involved in environmental protection. The judiciary has also not been left behind in crafting initiatives and regulations on the issue, but Feliciano concludes, “While the Philippines acts fast when it comes to signing international conventions and enacting laws to protect the environment, sadly, these measures are seldom enforced.” Tolentino meanwhile focuses on the role of the judiciary in addressing environmental concerns. He refers to a Writ of Gaia which “will be a purely Filipino invention.” The writ He states, “The promise of a Writ of Gaia and the adoption of the doctrine of continuing mandamus in the Philippine legal arena represent efforts to turn soft law into hard.” Lastly, in “Revisiting the Philippine Educational System for Everyone’s Reflection,” Rustico de Belen makes a presentation of education principles and trends from Filipino pre-history to the present. He stressed the need for education reform based on strong legal foundations. 1 VOLUME 35 NUMBER 1 (AUGUST 2010) DEFINING REGULATORY SPACES: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement Philippine Treaty Law and Practice J. Eduardo Malaya and Maria Antonina Mendoza-Oblena* In the book “The Idea of Law,” Professor Dennis Lloyd observed, “Every rule of international law imposes a legal fetter on national states in the international sphere, for this is the very sense and meaning of an international legal order.” 1 In a globalized world, nation-states are aptly described as independent within their respective borders but interdependent outside. The benefits of interaction and cooperation with other countries are generally beyond dispute. In the field of economics, for instance, a party raises his welfare much faster if he specializes in making a product and trades with another who makes another product than if the former makes those two products himself, as expounded by the principle of comparative advantage. The Philippines has interacted and cooperated with neighboring countries and the rest of the international community through the decades, and as of this writing, has concluded some 1,660 agreements with them since 1946. Immense opportunities are made possible by cooperation and exchanges with the international community, through the medium of agreements and other arrangements. For instance, entrepreneurs, exporters and other businesspersons can benefit from accords on trade access, investment promotion and protection, and avoidance of double taxation. Farmers, fisher folks and others may avail of foreign technical and development assistance. Students and the youth can tap educational and cultural exchange programs with other countries and international organizations. From a larger perspective, a well-informed understanding of Philippine foreign policy and the country’s rights, duties and commitments is best derived from an analysis of the treaties and other international agreements it has concluded. * J. Eduardo Malaya is Assistant Secretary for Legal Affairs of the Philippine Department of Foreign Affairs (DFA) and concurrently DFA Spokesman. He was the country’s Alternate Representative to the High-Level Legal Experts’ Group on matters arising from the ASEAN Charter (HLEG) in 2008-2009, and served as an adviser to the Philippine government panel for the peace negotiations with the Moro Islamic Liberation Front in 2009- 2010. A career foreign service officer with the rank of Chief of Mission Class II, he has economics (cum laude) and law degrees from the University of the Philippines. Maria Antonina Mendoza-Oblena is DFA Director for Treaties, and in 2009-2010, was a member of the Philippine HLEG delegation. A career foreign service officer, she has Bachelor of Music degrees in piano and music education (cum laude) from the University of Santo Tomas and a Juris Doctor from the Ateneo de Manila University. This article is adapted from the introductory chapter in the book “Philippine Treaties Index, 1946 - 2010,” published by the Foreign Service Institute in June 2010. 1 Dennis Lloyd, The Idea of Law (Reading, UK: Cox and Wyman Ltd, 1964), p 190. J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 2 IBP JOURNAL I. Philippine foreign policy objectives Philippine foreign policy is oriented towards the further enhancement of national security, the pursuit of economic diplomacy and the extension of full consular services to Filipino nationals wherever they may be. These three strands are called the “Three Pillars of Philippine Foreign Policy.” From February 2001 to the first half of 2010, during the presidency of Gloria Macapagal-Arroyo, the Philippines concluded some 393 agreements, notably eleven on the promotion and protection of overseas Filipino workers, ten tourism promotion agreements, nine investment promotion accords, eight health cooperation accords, six environmental conservation and protection agreements, and five on social security benefits. This record reflects the priority given these areas by the administration, especially on the welfare of overseas Filipinos, economic promotion and environment protection. Among the agreements are a number of free trade agreements entered by the Philippines and its ASEAN partners with the economies of major neighboring countries, the Philippine-Japan Economic Partnership Agreement, the Stockholm Convention on Persistent Organic Pollutants, arrangements for the headquarters of the ASEAN Centre for Biodiversity and the Worldfish Centre in the Philippines, and the accessions to the Convention against Torture and the Protocol Additional to the Geneva Conventions of 12 August 1949. Similar foreign policy priorities will most likely be pursued by the administration of President Benigno S. Aquino III, with added emphasis on human rights, international humanitarian law and anti-corruption. This study is a modest attempt at documenting the treaty law and practice at the Office of Legal Affairs (OLA) of the Philippine Department of Foreign Affairs (DFA). As will be discussed below, OLA is the official repository of the treaties entered into by the country. The office also provides legal guidance and support to the DFA and other departments and agencies of the Philippine government in the negotiation, signing and ratification of international agreements. This paper will examine the provisions of the Constitution which have relevance to treaty-making, and discuss the definition and coverage of the term “treaty,” the capacity of states to enter into treaties, both at the international and domestic law levels, and the categories of international agreements, also in the international and domestic law levels. These are followed by an analysis of the distinction between a Memorandum of Agreement (MOA) and a Memorandum of Understanding (MOU) in the international law sphere, and that between a treaty and an executive agreement in the domestic law sphere. Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 3 The study concludes with an examination of the steps in the treaty-making process, from the negotiation phase to a signed agreement’s entry into force. II. Parameters in the formulation and conduct of foreign policy The substantive content of Philippine foreign policy is anchored on the Constitution, specifically the precepts that in the country’s relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination, and that the country adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Thus: Article II, Section 2. The Philippines renounces was an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Article II, Section 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. The above is supplemented by the foreign policy priorities of the President of the Philippines, as the chief architect of foreign policy, and his Secretary of Foreign Affairs. On the other hand, the procedural dimension of foreign policy-making, which is the ambit of Philippine treaty law and practice, is based on the following: (a) The Philippine Constitution, specially Article VII, Section 21 which states, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate; (b) The ruling of the Supreme Court of the Philippines in Commissioner of Customs vs. Eastern Sea Trading, 2 which made a distinction between treaties and executive agreements, the latter requiring the ratification by the President 3 in order to take effect, and related jurisprudence; and (c) Executive Order No. 459, series of 1997, which sets the guidelines in the negotiation, conclusion and ratification of international agreements. 2 G.R. No. L-14279 (1961). 3 Executive Order No. 459, s. 1997, Section 7. J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 4 IBP JOURNAL III. Definition and Coverage of Treaties The term “treaty” is used in this study as defined in the Vienna Convention on the Law of Treaties, 4 Article 2 (1) of which states that: “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Under this definition, a treaty has the following elements: 5 1. An international agreement. To be a treaty, an agreement has to have an international character. 2. Concluded between states. A treaty is between states, governments or their agencies or instrumentalities acting on behalf of states. A treaty may be concluded by heads of states or governments, their ministries or other state agencies. 6 An agreement or contract between international or multinational companies, or between a state and such a company, is not a treaty. This is true, even when such an agreement provides that it shall be interpreted in whole or in part by reference to rules of international law. 7 3. In written form. 4. Governed by international law. This refers to the element of intent to create obligations under international law. If there is no such intention, the instrument is not a treaty. 8 5. Whether embodied in a single instrument or in two or more related instruments. Treaties can also be drawn up in less formal ways, such as through the exchange of notes. The Vienna Convention definition delimited treaties as between states. 9 However, states may also enter into treaties with international organizations. The latter class of agreements are governed by another set of rules, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. 10 4 Adopted on 22 May 1969 and entered into force on 27 January 1980. 5 Anthony Aust, Modern Treaty Law and Practice (2000), pp. 14-25. 6 Ibid., p. 16. 7 Ibid., p. 15. 8 Ibid., p. 17. 9 Ibid., p. 14. 10 Done in Vienna, Austria on 21 March 1986; not yet in force. Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 5 IV. Capacity to enter into treaties “Every State possesses capacity to conclude treaties,” according to Article 6 of the Vienna Convention on the Law of Treaties. In the Philippines, the President, as Chief Executive and head of state, has the power to conduct foreign relations. As chief architect of Philippine foreign policy, he has the power to make treaties. As described by Senator Arturo Tolentino, The President is the sole spokesman of the Government in foreign relations... He is the only official of this Government whose positions and views in our dealings with other countries are taken by other Governments as those of the Philippine Government. His is the only voice which other Governments will take as expressing the official stand of our Government. In short, he is the official channel of communication to which other Governments will listen to ascertain the position and views of the Philippine Government in our relations with them. 11 V. Nature of international agreements 12 In examining an international agreement, it is essential to identify the nature of the agreement in international law and domestic law. Under international law, the agreement may be in the form of a treaty or the less formal Memorandum of Agreement, which creates legally-binding rights and obligations on the parties, or a Memorandum of Understanding, which is a non-legally binding instrument. 13 Additionally, the agreement has to be examined whether it should be treated as a treaty in the context of Article VII, Section 21 of the Philippine Constitution, or an executive agreement, which only requires presidential ratification in order to enter in force and effect. A. In International Law Under international law, the negotiation, conclusion and ratification of treaties is governed by the Vienna Convention on the Law of Treaties and customary international law. 11 Arturo Tolentino, The President and the Batasan on Foreign Affairs, in The Powers of the Philippine President, as quoted by J. Eduardo Malaya, Conflict and Cooperation in the Crafting and Conduct of Foreign Policy, Philippine Law Journal, Vol. 84, p. 561. 12 OLA Office Order No. 02-07 - Guidelines in Reviewing International Agreements, in J. Eduardo Malaya, ed., Manual on Treaties Review (DFA-OLA, January 2008), p. 1. 13 Aust, p. 18. J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 6 IBP JOURNAL Treaty/Memorandum of Agreement vs. Memorandum of Understanding. In international law practice, the treaty/Memorandum of Agreement (MOA) format is used when the agreement describes the specific responsibilities of, or actions to be undertaken by the parties with the view to the accomplishment of their goals, 14 and the availability of a recourse to enforcement action in case of non-compliance with its terms. In contrast, the Memorandum of Understanding (MOU) format is used when the participants have agreed on general principles of cooperation, and though the parties are bound by its terms, pursuant to the principle of pacta sunt servanda, the understanding is not intended to be legally enforceable by one participant against the other. An MOU may list the obligations of both sides, but performance and compliance are on a best-effort basis. Rather than creating international legal rights and obligations, the intention of the participants is to record mutual understandings as to how they will conduct themselves. Thus, MOUs often contain broad goals and plans shared by the participants. Its terms are on a best-effort basis and are not legally enforceable. The MOU format is useful in certain situations. It is preferred for reasons of confidentiality and ease and convenience in concluding them. It is often used when dealing with sensitive defense and national security matters or to protect delicate commercial information, such as those accompanying air services agreements. 15 Since these are non-legally binding, there is also no international requirement to publish them. MOUs are usually effective upon their signature. In Philippine treaty practice, MOUs in the nature of declarations, implementing arrangements, letter of intent, joint communiqué and joint statement do not require presidential ratification to become effective. Nonetheless, MOUs whose texts denote an intent to be legally binding will require presidential ratification. 16 The title of the instrument does not, in itself, determine the nature or status of the instrument. What is determinative is whether the negotiating states intended the instrument to be legally-binding or not. It is only by examining the terms of an instrument can one determine its status. 17 The respective terminologies in treaty/MOA and MOU are different, notably the use of the word ”agree” in treaty/MOA and “decide, accept, or approve” in MOU. “Parties” in treaty/MOA are referred to as “Participants” in MOU. 14 OLA Memorandum dated 17 December 2007 - Treaty MOA and MOU Terminologies, in Malaya, Manual on Treaties Review, pp. 11-12. 15 Aust, pp. 34-39. 16 Ibid. 17 Aust, p. 20. Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 7 Negotiators and drafters of agreements should carefully choose the words they use, to properly indicate the intent to conclude a legally binding or non-legally binding instrument. OLA Office Circular dated 17 December 2007 lists these differing terminologies. President Gloria Macapagal Arroyo expressed a preference for MOA over MOU 18 as the agreed terms can clearly be relied upon. However, it need not be so at all times, particularly if the Philippines is not the one proposing the instrument, and also when it is necessary to maintain some flexibility in its implementation. Exchange of Notes. According to the Vienna Convention, a treaty may be “embodied in a single instrument or in two or more related instruments” 19 This phrase recognizes that the classic form for a treaty – a single instrument – has been joined by those drawn in less formal ways, such as exchanges of notes. In an exchange of diplomatic notes, a country transmits to another country an initiating Note which contains the elements of a proposed agreement. If the proposed terms are acceptable, the recipient country may transmit a reply Note conveying its consent to be bound by those terms. The agreement takes effect on the date of the reply Note. Many exchanges of notes are in the nature of MOU, but these could also constitute legally-binding treaty/MOA depending upon their substance. Due care has to be exercised. B. In Philippine Domestic Law The 1987 Constitution, Executive Order No. 459, s. 1997, and jurisprudence govern the subject in domestic law. The distinction drawn between a treaty and an executive agreement is based on the cases USAFFE Veterans v. Treasurer of the Philippines, et al 20 (1959), and Commissioner of Customs vs. Eastern Sea Trading (1961), where the Supreme Court made a distinction between a “treaty” as referred to in the Constitution and another class of agreements called “executive agreement.” According to the Court, International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well- established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. 18 Ibid. 19 Vienna Convention on the Law of Treaties, Article 2 (1). 20 105 Phil. 1030 (1959). J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 8 IBP JOURNAL The above ruling has been observed through the years, and the practice became codified when Executive Order No. 459, series of 1997 was issued by President Fidel V. Ramos. 21 According to the executive order, the Office of Legal Affairs, on behalf of the DFA, determines whether an agreement is an executive agreement or treaty. Thus: Section 9. The Department of Foreign Affairs shall determine whether an agreement is an executive agreement or a treaty. As noted by Senator Miriam Defensor-Santiago, Chairperson of the Senate Committee on Foreign Relations, “… it is the foreign affairs department which determines whether an agreement is an executive agreement on one hand; or a treaty on the other hand. This distinction is important, because while it is claimed that an executive agreement needs only ratification by the President, a treaty needs concurrence by the Senate. This distinction drawn between an executive agreement and a treaty is based on the 1961 case of Commissioner of Customs v. Eastern Sea Trading. 22 Treaty vs. Executive Agreement. Executive Order No. 459 defines “treaties” as “international agreements entered into by the Philippines which require legislative concurrence after executive ratification,” while “executive agreements” are “similar to treaties except that they do not require legislative concurrence.” 23 As noted in the Eastern Sea Trading ruling, a treaty would involve political issues or changes of national policy, or arrangements of permanent character. 24 An agreement which would conflict with existing laws and thus require amendment of said laws should be considered as a treaty requiring Senate concurrence. Those which may be in conflict with established national policy and require a change of said policy shall likewise be deemed as requiring Senate concurrence. Agreements which would require the enactment of a law for its implementation will also require Senate concurrence. Examples of agreements treated as treaties are those that provide tax exemptions, because only Congress may grant such exemption 25 ; grant privileges and immunities to individuals or international organizations, except diplomatic immunities and privileges for United Nations agencies and other international organizations which are by now the norm; provide direct allocation of funds, as this prerogative is exclusively lodged with Congress; and those that criminalize certain conduct, as only the legislature may pass a penal legislation. 21 See also Gonzalez v Hechanova, 9 SCRA 243; World Health Organization v. Hon. Aquino, 48 SCRA 242; and Joaquin Bernas, S.J., Foreign Relations in Constitutional Law (1995), pp 112-115. 22 Senator Miriam Defensor-Santiago, Procedure for Senate Concurrence to Treaties (2007), p. 2. 23 Executive Order No. 459, section 2 (b) and (c). 24 Commissioner of Customs v. Eastern Sea Trading (1961). 25 Tax exemptions may be made only under the authority of Congress in accordance with Article VI, Section 28 (2) of the Constitution and the Customs and Tariffs Code. Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 9 To be likewise treated as requiring Senate concurrence are those which may contravene established constitutional or national policies, such as the no imposition of the death penalty, no establishment of foreign military bases, 26 no resort to third- party tribunal in case of disputes, policy of freedom from nuclear weapons in Philippine territory, 27 the One-China policy, and the archipelagic doctrine with respect to the country’s maritime territory. 28 On the other hand, executive agreements are those that which “embody adjustment of details carrying out well-established national policies and tradition, involving arrangements of a more or less temporary nature.” 29 The distinction between treaties and executive agreements has no bearing in the international law sphere. Both are covered by the term “treaty” as defined in the Vienna Convention and thus equally binding, unless the instrument is in the nature of a MOU, as noted earlier. The following categories of agreements have been treated as executive agreements: air services agreement, cultural agreement, defense cooperation agreement, mutual logistics support agreement, scientific and technological cooperation agreement, economic cooperation agreement, agreement on gainful employment of spouses of members of diplomatic and consular missions; tourism cooperation agreement, investment promotion and protection agreement, labor promotion and protection agreement, maritime agreement, waiver of visa requirement agreement, and trade cooperation/facilitation agreements, such as those among ASEAN countries. 30 In contrast, the following have been treated as treaties which require presidential ratification and Senate concurrence: a) Status of forces agreement/Visiting forces agreement 31 b) Comprehensive free trade agreement/economic partnership agreement, which go beyond what the President is allowed to undertake unilaterally under Article VI, Section 28(2) of the Constitution and the Customs and Tariff Code c) Agreement on the avoidance of double taxation, since tax exemptions can be made only under the authority of Congress 32 26 Section 25, Article XVIII of the Constitution. 27 Section 8, Article II of the Constitution. 28 OLA Office Order No. 02-07, in Malaya, ed., Manual on Treaties Review, p. 2. 29 See Commissioner of Customs ruling. In U.S. jurisprudence, executive agreements fall under two categories: (1) agreements made purely as executive acts affecting external relations with or without legislative authorization, which may be called “presidential agreement,” and (2) agreements entered into pursuance of acts of Congress, which are designated as “Congressional-Executive Agreement” (Hackworth, International Law, Vol. 1, p. 380). 30 OLA Office Order No. 1 – 2007 dated 22 May 2007, in Malaya, Manual on Treaties Review), p. 13. 31 Section 25, Article XVIII of the Constitution. 32 See Article VI, Section 28 (4) of the Constitution. J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 1 0 IBP JOURNAL d) Agreement which establishes the headquarters of an international organization, with concomitant grant of immunities to the organization and its officials e) Agreement on the transfer of sentenced persons, since the exercise of criminal jurisdiction is based on the territoriality principle; and f) Other agreements, “especially multilateral conventions, involving political issues or changes of national policy or involve international arrangements of a permanent character,” pursuant to the Commission of Customs ruling. 33 Foreign Loan. There are three broad categories of agreements which do not fall within the realm of the Vienna Convention on the Law of Treaties and Executive Order No. 459, namely foreign loans, grants and commercial contract. These are governed by domestic law. The President is authorized under Article VII, Section 20 of the Constitution to contract or guarantee foreign loans, with the prior concurrence of the Monetary Board. Thus: Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. Foreign loans are generally entered into by the Department of Finance. Other Departments, including the DFA, may conclude them only with the endorsement from the finance department. As the Constitution prescribes a distinct negotiation and approval process, foreign loan agreements do not undergo the usual treaty ratification procedure. Grant/Official Development Assistance. The procedure for the conclusion of foreign grants and official development assistance (ODA) is governed by The Official Development Act of 1996 (R.A. No. 8182). These agreements require endorsement from the National Economic Development Authority 34 as these have to be in line with national development plans and particularly when there are requirements for local counterpart funding. 33 OLA Office Order No. 1 – 2007. 34 Official Development Act of 1996 (R.A, 8182). Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 11 Commercial or Private Contract. An agreement between the Government or any of its subdivisions/agencies and a private entity or an entity which is not a subject of international law is a commercial or ordinary contract. 35 Agreements of this type are not within the realm of the Vienna Convention on the Law of Treaties. In the authoritative book Modern Treaty Law and Practice, Anthony Aust describes the following as agreements which are governed by domestic law even if concluded between states: States can also contract with each other under domestic law. They may do so if the subject matter is exclusively commercial, such as the purchase of commodities in bulk… If a state leases land from another state for an embassy there will usually be an instrument under domestic law, such as a lease, though this may be granted pursuant to treaty… Treaties concerning loans may provide that the contractual arrangements for the loans shall be governed by the law of the lender state. 36 VI. Procedure in the Negotiation and Ratification of Agreements 37 A. Issuance of Full Powers or special authority Executive Order No. 459 38 provides the guidelines in the negotiation of international agreements and their ratification. As a matter of policy, the negotiation of treaties and executive agreements shall be coordinated with, and made only with the participation of the Department of Foreign Affairs (DFA). 39 Prior to the negotiation of a proposed international agreement, authorization should first be secured from the President by the lead government department or agency through the Secretary of Foreign Affairs. The DFA geographic office which covers the area or subject matter 40 is the conduit for securing the authorization. The request for authorization shall be in writing, proposing the composition of the Philippine negotiating delegation and recommending the range of positions to be taken by the delegation. 41 The negotiating positions are generally classified as “confidential.” The composition of any Philippine panel and the designation of its chairperson shall be made in coordination with the DFA. 42 35 Aust, p. 16. 36 Ibid., p. 24. 37 OLA Circular No. 01-07. 38 Issued November 25, 1997 by President Fidel V. Ramos. 39 Executive Order No. 459, section 1. 40 These are principally the Offices of American Affairs, Asian and Pacific Affairs, European Affairs and the Middle East and African Affairs, for bilateral agreements, and the Offices of ASEAN Affairs and the United Nations and other International Organizations, for multilateral agreements. 41 Executive Order No. 459, section 3. 42 Ibid., Section 1. J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 1 2 IBP JOURNAL For agreements requiring the concurrence of the Senate, the authorization shall be in the form of Full Powers and formal instructions. Full Powers, as defined in Executive Order No. 459, is “the authority granted by a head of State or Government to a delegation head enabling the latter to bind his country to the commitments made in the negotiations to be pursued.” 43 For agreements not requiring Senate concurrence, a written authorization from the President is sufficient. 44 A special authority is generally not required for the signing of a declaration, letter of intent, joint communiqué, joint statement and the other political documents. Signing of other types of MOUs whose texts indicate intent to be bound should require prior special authority. The issuance of Full Powers or written authorization is made by the President who may delegate this function to the Secretary of Foreign Affairs. 45 The following shall not be required Full Powers or written authorization prior to negotiating or signing an international agreement: 46 1. The Secretary of Foreign Affairs. 2. Heads of Philippine diplomatic missions, for the purpose of adopting the text of an agreement between the Philippines and the state to which they are accredited. 3. Representatives accredited by the Philippines to an international conference or to an international organization or one of its organs, such as the Philippine Permanent Representative to the United Nations or to ASEAN, for the purpose of adopting the text of a treaty in that conference, organization or organ. B. Negotiations When an agreement is proposed by another country or international organization for the consideration of the Philippines, or vice versa, the DFA geographic office which is responsible for the country’s relations with the other party, shall request the views of other relevant DFA offices and other government agencies, by convening inter-office/agency meetings or through referrals for the latter’s’ comments. 43 Ibid., Section 2 (d). 44 Ibid., Section 3. 45 Ibid., Section 4. 46 Ibid. Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 13 The lead office or agency then convenes a meeting of the members of the negotiating panel prior to the commencement of negotiations for the purpose of establishing the parameters of the negotiating positions. 47 No deviation from the agreed parameters shall be made without consultations with the members of the negotiating panel. 48 C. Signing of the Agreement In the case Pimentel vs. Executive Secretary, 49 the Supreme Court clarified that signing and ratification are two separate and distinct steps in the treaty-making process: If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where the ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. D. Ratification by the President After the signing of an agreement, the DFA geographic office transmits to OLA the original and/or certified true copy of the agreement. When transmitting the agreement, it is accompanied by the following, in line with DFA Department Order No. 21-99 dated 25 August 1999: 1. Certificates of concurrence of the agencies that participated in the inter-agency consultations and the negotiations; and 2. A summary of the benefits that will accrue to the Philippines once the agreement enters into force. OLA then prepares the draft memorandum for the President, for the signature of the Secretary of Foreign Affairs, recommending the ratification of the signed agreement. If the agreement requires Senate concurrence, a draft letter-endorsement from the President to the Senate President is enclosed. 47 Ibid., Section 5. 48 Ibid. 49 G.R. No. 158088 (2005). J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 1 4 IBP JOURNAL The original agreement is deposited with the Foreign Service Institute’s Carlos P. Romulo Library, which serves as the archives of these agreements and other papers. In its Pimentel ruling, the Supreme Court stated: Under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. The Senate does not ratify a treaty. It concurs in the President’s ratification of a treaty. 50 E. Concurrence of the Senate For international agreements that require the concurrence by the Senate of the ratification made by the President, the latter transmits the signed treaty to the Senate. The relevant DFA geographic office coordinates with the proponent/ implementing agency in preparing the policy papers, for the perusal of the Senate Committee on Foreign Relations, and in presenting and justifying the agreement during the concurrence hearings. The policy papers should contain information about the agreement that could address the frequently-asked questions during committee hearings, such as the nature, objective and other highlights of the agreement, its negotiating history, and the number of countries that have ratified the agreement, if it is multilateral in character. It shall likewise identify the benefits and relative importance of the agreement to the country. In the Senate, the treaty undergoes three readings, as follows: 51 The First Reading consists of reading the title of the treaty, after which the Senate President transmits it to the Committee on Foreign Relations. The committee has 15 members. Of the 15 members, ten seats are reserved for the majority party and five to the minority. In practice, every committee meets once a month. The Rules of the Senate require that notice of meeting, including the agenda, place and time of the meeting, shall be given three days in advance to committee members. 50 Santiago, Procedure for Senate Concurrence to Treaties, p.1 51 Rules of the Senate, Rule 36, titled “Concurrence in Treaties”; see also Senator Miriam Defensor Santiago, Procedure for Senate Concurrence to Treaties, p. 3. Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 15 At the committee hearing, the Secretary of Foreign Affairs or a senior DFA official will present the treaty and recommend concurrence, to be followed by the head or senior official of the proposing or implementing agency. Views on the proposed treaty from concerned sectors, if any, are heard. A committee report is then prepared. A report and its recommendation must be approved by a majority of the regular committee members, plus the ex-officio members. If the report is unfavorable, the proposed treaty is transmitted to the archives of the Senate, in which case it dies a natural death. It may be recalled that according to the Constitution, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. 52 During the Second Reading, the Chairperson of the Senate Committee on Foreign Relations delivers a sponsorship speech at the plenary session, to be followed by a formal debate. As noted by Senator Santiago, “Unlike a bill, a treaty is not subject to amendment…” 53 The Third Reading is limited to the reading of the title of the treaty. No treaty is considered concurred in by the Senate unless it has passed three readings on separate days, and printed copies are distributed to the Senators three days before its passage, except when the President certifies to the necessity of its immediate concurrence to meet a public calamity or emergency. The treaty is then submitted to final vote by yes and no. The votes of at least two-thirds of all the Members of the Senate are required for concurrence to a treaty. Accession, which is a method by which a state that is not among a treaty’s original signatories becomes a party to it, follows the same ratification/concurrence process. F. Declaration or Reservation It is possible for a party to a treaty to make an interpretative declaration at the time of signature or ratification of a treaty. A declaration is defined as follows: A unilateral declaration, however phrased or named, made by a State or by an international organisation whereby that State or organisation purports to clarify the meaning or scope attributed by the declarant to the treaty or to certain of its provisions. 54 52 Article VII, Section 21. 53 Santiago, p. 5. She added:”… although, as in the case of the controversial Japan-Philippine Economic Partnership Agreement, I shall recommend a conditional concurrence.” See also Joaquin Bernas, S.J., Foreign Relations in Constitutional Law (1995), p. 111: “The Senate might give its concurrence but impose conditions or reservations related to its content. In such an eventuality, renegotiations might become necessary.” 54 UN Doc. A/CN.4/491/Add, 4. Paragraph 361, as quoted in Aust, Modern Treaty Law and Practice, p. 102. J. Eduardo Malaya and Maria Antonina Mendoza-Oblena 1 6 IBP JOURNAL On the other hand, the Vienna Convention defines a reservation as: A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. 55 If the negotiating panel deems the making of a declaration or reservation as necessary, and the agreement, which is often of the multilateral type, allow a declaration or reservation upon signing, accession or on the deposit of the Instruments of Ratification, then a declaration or reservation can be drafted and then made on the signing, accession or ratification, or upon the deposit of the instrument of ratification. The making of a reservation or declaration may be part of the negotiating parameters of the negotiating panel. G. Notification after Ratification Upon its receipt of the Instrument of Ratification (and the Senate Resolution concurring in the ratification made by the President, if applicable), OLA notifies the concerned offices and agencies of the date of signature of the Instrument of Ratification as well as the date of the Senate Resolution, if applicable. OLA transmits a Note verbale to the embassy of the other contracting State, or the international organization, notifying the latter of the ratification of the agreement in order to determine the date of its entry into force. If the agreement requires that the original Instrument of Ratification be deposited with a depositary State or international organization for the agreement to enter into force, OLA transmits the original Instrument to the concerned DFA geographic office. The latter makes the deposit and informs OLA of the action taken, as well as the date of the entry into force of the agreement. H. Entry into Force All international agreements generally undergo the domestic legal requirements of ratification, 56 except those that implement existing agreements and foreign loan agreements and commercial contracts, as noted earlier. An international agreement enters into force only upon compliance with domestic ratification requirements. 55 Article 2 (1) (d). 56 Executive Order No. 459, Section 6 (a). Philippine Treaty Law and Practice VOLUME 35 NUMBER 1 (AUGUST 2010) 17 An agreement that provides that it will enter into force upon signature is considered as entering into force provisionally. Provisional entry into force is allowed only if it is shown that a pressing national interest will be upheld. In consultation with concerned agencies, the DFA determines whether an international agreement or any amendment thereto, shall be given provisional effect. 57 An international agreement, which requires the concurrence of the Senate, may not be given provisional effectivity, in keeping with Article VII, Section 21 of the Constitution. This study is a modest attempt at documenting the treaty law and practice at, and from the perspective of, the Philippine Department of Foreign Affairs. It is hoped that the study leads to a deeper understanding and appreciation of this dynamic field where constitutional law, public international law and foreign policy intersect. May it lead also facilitate an adept conduct of diplomacy in pursuit of the country’s interests in the community of nations. 57 Ibid., Section 6 (b). 1 8 IBP JOURNAL Marvic M.V.F. Leonen An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma Merlin M. Magallona* i. Principles of International Law as Philippine Law The Incorporation Clause of the Constitution reads in Section 2, Article II: The Philippines […] adopts the generally accepted principles of international law as part of the law of the land. […] It is by this provision that the Constitution incorporates a body of principles of international law into Philippine law. Since these principles are “part of the law of the land,” they are applied in domestic law as Philippine law. Intriguingly enough, if they assume the status of Philippine law, do they cease to be international law? The complexity of this problem has never been investigated and continues to generate confusion in the application of these principles, without scrutiny. Incorporation (or internalization) has given rise to the dual character of these principles. They remain in the nature of international law operating on the international plane governing the relations of States and other subjects of international law. At the same time, they are a category of national law binding upon subjects of Philippine law. The former may be referred to as objective international law and the latter Philippine practice of international law. Their respective modalities of operation in each legal system are not interchangeable; failure to observe this distinction resulting from their interchangeability becomes the crux. In particular, the application of these principles as national law in the context of international law operating on the international plane would give rise to an anomaly in judicial reasoning, as exemplified in the application of pacta sunt servanda. This principle of general international law mandates that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” 1 The ponencia in Tañada vs. Angara 2 invokes this principle as “part of the law of the land” in the Incorporation Clause, a case in which the very constitutionality of a treaty is under attack and the Supreme * Professorial Lecturer; Former Dean and Professor of Law, University of the Philippines College of Law. 1 As codified in Article 26 of the Vienna Convention on the Law of Treaties. 2 272 SCRA 18, at 66 (1997). This case pertains to the constitutionality of the Agreement Establishing the World Trade Organization (WTO) and the annexed agreements. 1 9 VOLUME 35 NUMBER 1 (AUGUST 2010) An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma Court is called upon to exercise its review power which empowers it to strike down a treaty as unconstitutional or invalid. 3 The “generally accepted principles of international law” as constitutionally internalized derive and continue to derive their content from objective international law. This process, over time, may create changes in the content or character of the principles on the international plane, causing discrepancy between the same principles in the two legal systems. Progress in the development of these principles on the international plane may occur at a pace faster than in Philippine practice of the same principles. On the international plane, progress is in terms of dynamics of general practice of States; whereas, in national law, through the exercise of judicial function by the Supreme Court. The problem of discrepancy, however, may fail to be recognized except in the awareness of the distinction between objective international law and Philippine practice. A peculiar feature of the law of the Incorporation Clause is that it is placed beyond the competence of national law to change its content nor to repeal it; a deliberate attempt to amend it in a manner incompatible with objective international law may alter its status as “generally accepted principles of international law” and, hence, may erode away the juridical basis of its status as national law. These consequences may be said to be the logical implications of the constitutional status that characterizes the Incorporation Clause principles. The heart of the enigma lies in the fundamental problem that the Incorporation Clause is designed by the Constitution as the transformative process by which a body of principles in objective interactive law becomes national law, but the identity of these principles as individualized is not known. It is a serious deficiency of a normative system to institute norms or principles as law, and in the same process what is constituted as law is deprived of its precondition of legality, namely, the individual identity of the principles in question, which lends it the necessary element of enforceability and effectiveness. “[G]enerally accepted principles of international law” in the Incorporation Clause is a categorization of international legal principles for the purpose of making them national law. Excluded from this category for this purpose are principles which are not “generally accepted.” This categorization becomes a constitutional directive to the effect that only principles within the scope of this category will be accorded the status of national law. More important, perhaps, is that it necessarily implies the grant of authority to identify the principles of rules that will be effectuated as national law. In this light, obviously, the whole category “generally accepted principles of international law” by itself cannot be intended to be invoked as applicable or enforceable law in support of a claim in a legal dispute. But it is the premise or justification for the status and application of each individualized principle if it is to operate as national law, without which such principle will not qualify as “part of the 3 See Section 5(2)(a), Article VIII of the Constitution. 2 0 IBP JOURNAL Merlin M. Magallona law of the land.” The category is provided as a criterion for identifying the operative rules which embody rights and duties. It makes no sense in having this category without individualizing the principles within its scope and there is no sense having the individual principles identified in the absence of such category. Categorization and individualization are integral to the whole, useless each without the other. This outlook gives clearer light to the view that the Incorporation Clause requires the exercise of the implied authority to identify the operative rules in terms of specific rights and duties by way of compliance with the constitutional mandate that the “generally accepted principles of international law” be made part of Philippine law. In other words, the Incorporation Clause being non-self-executory, there arises the duty to effectuate it, which leads to its execution through the identification of the individualized principles as thus determined as national law, and in the same process applies them in the resolution of a legal dispute. II. Problems in Execution of the Incorporation Clause In the exercise of its constitutional function, the Supreme Court has identified individual principles of international law in applying them as national law in a number of cases, in every instance showing that it is interpreting the “generally accepted principles of international law” under the Incorporation Clause. Thus, the Court in Mejoff vs. Director of Prisons 4 applies as national law the “right to life and liberty and all other fundamental rights as applied to all human beings,” proclaimed by the Universal Declaration of Human Rights, in relation to the fact that “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’.” 5 In Marcos vs. Manglapus, 6 the Court says: ”The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, as part of the law of the land.” 7 As illustrated in these cases, the modality applied in dealing with the Incorporation Clause is comprised of invoking the category of principles, identifying the individualized principle and applying it. If on the whole this modality has settled as established practice, as it does, then the identity of the national-law rules is determined by the exercise of judicial function, from which the following problems are: 4 90 Phil. 70 (1951). 5 As provided in the 1973 Constitution. 6 177 SCRA 668 (1959). 7 In denying the issuance of travel documents to the petitioners, the Court is apparently mindful of the restriction to this right under the International Covenant on Civil and Political Rights, pertaining to national security and public order. See Article 12(2) and (3) of the Covenant. 2 1 VOLUME 35 NUMBER 1 (AUGUST 2010) An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma How is the date of effectivity of these rules determined? Do they take effect simultaneously with the Incorporation Clause as part of the Constitution? If so, do they take effect in the absence of their identity and substantive content? If the individualized rules or principles derive the date of effectivity from the promulgation of the Supreme Court decision in which they are identified as national law under the Incorporation Clause, it may appear that their nature as operative rules comes into existence only after the fact, i.e., after the situation they are intended to govern has taken place. Necessarily, in effect, they are made to govern such a situation by the retroactive application of the Court’s decision, in contravention of the fundamental principle of legality. While the process of identification as a precondition for defining their nature as national-law rules may be conveniently passed on as a normal judicial function of interpretation, there remains the problem of constructive rule-making in which the act of identifying what is the law is a virtual creation of rules in national law. In the foregoing context, is the Supreme Court engaging in a judicial or legislative function? At any rate, in the last 60 years, less than 50 principles have been declared by the Supreme Court as within the scope of the Incorporation Clause. Mostly, however, they are covered by obiter dicta; invariably, there is no showing that they are made to correspond to the substantive content of general international law on the international plane. May Congress enact a catalogue of principles in implementation of the Incorporation Clause, as alternative to incorporation as a judicial act? It seems so extraordinary that what appears as a non-self-executory provision of the Constitution is subjected to “execution” by judicial function. Is it time that the process should now “cross the Rubicon that divides the judicial and the legislative powers,” to borrow the words of Lord Devlin? III. Philippine Practice in Supreme Court Decisions In an obiter in U.S. vs. Guinto 8 the Supreme Court contextualizes the Incorporation Clause in a larger theoretical frame: Sovereign immunity is one of the generally accepted principles of international law that we have adopted as part of the law of the land under Article II, Section 2 [of the Constitution]. Even without such affirmation, we would still be bound by the generally accepted principles under the doctrine of incorporation. Under this doctrine of incorporation, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its 8 182 SCRA 644 (1990). 2 2 IBP JOURNAL Merlin M. Magallona membership in the society of nations. Upon the admission to such society the state is automatically obliged to comply with these principles in relation with other states. Here, by a make-believe theoretical construction, a monist view is attributed to the character of the “generally accepted principles of international law” in the Incorporation Clause. The purpose of this Clause, according to Guinto, is to make such principles binding on the Philippines; but in the same breath it asserts this function is needless because even without the Incorporation Clause under the doctrine of incorporation the Philippines “would still be bound by these principles. In this mythical world, what appears as customary or general international law – of which the constituent norms are the generally accepted principles — appear as an imposition on States, helpless before the mechanical operation of a process by which the States are “automatically obliged to comply with these principles.” Certainly, as thus imagined, the Incorporation Clause becomes a surplusage and reduces the intent of the Constitution’s framers pertaining to it an idle play of words. The real world may instead be reflected in the perspective of the Permanent Court of International Justice as expressed in the Lotus Case (PCIJ, Series A, No. 10, 1927, p. 18), as follows: International law governs the relations between States. The rules of law binding upon States therefore emanate from their own free will as in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between those co-existing independent communities with a view to the achievement of common aims. It is true, as indicated in Guinto, that generally accepted principles of international law are binding on the Philippines without this affirmation in the Incorporation Clause. However, this pronouncement is made on the assumption that the object and purpose of the Clause is to make this body of principles binding on the Philippines — which may be a misconception. Independent of its Constitution, the Philippines is bound by obligations arising from general international law as a State, as a person in the international legal order. They are obligations that pertain to objective international law as it operates on the international plane. In this light, the rights and duties of the Philippines are created and are governed by international law. In general, they are binding on subjects of international law. This may have been the context of the binding character of the principles of international envisaged by Guinto. As a departure from this vantage point, the purpose of the Incorporation Clause is to internalize the principles of general international law into Philippines law, insofar as they are identified in their individualized nature. It is as national law that in domestic jurisdiction they create rights and duties binding on subjects of Philippine law. The transmutation of these principles into Philippine law gives way to the following consequences: 2 3 VOLUME 35 NUMBER 1 (AUGUST 2010) An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma 1. In Philippine jurisdiction, these principles are subordinated to the Constitution; their operation is subject to constitutional and legal standards. Indeed, they derive their operative validity from the Constitution by virtue of the proclamation in the Incorporation Clause that they are constituted as national law. This marks a radical departure from their legal status in the international sphere as constituent norms of objective international law in which they hold supremacy over the Constitution itself and statutory law. 2. The application of these principles as national law pertains to subjects or persons of Philippine law, comprising of individual natural persons and juridical entities, thus striking a difference from their status in the international order in which they govern the legal relations of States and other persons of international law. From this standpoint, it is inaccurate to assert, as does Tañada vs Angara, 9 that “[b]y the doctrine of incorporation, the country is bound by the generally-accepted principles of international law which are considered to be automatically part of our laws,” referring to the Incorporation Clause. In the first place, it is not by the doctrine of incorporation that the principles in question become national law, but by the proclamation of the Constitution. Secondly, it is not the Philippines that is bound by its own national law derived from such principles; rather, it is the Philippines that makes its law binding on persons within its jurisdiction. What is binding on the Philippines as a State are such principles operating as objective international law, not as its own national law. It is not at all out of context to refer to problems in regard to the application of objective international law within Philippine jurisdiction, as contrasted to the operation of principles under the Incorporation Clause. In Republic vs. Sandiganbayan, 10 the Supreme Court deals with what it describes as “interregnum,” the period after the abrogation of the 1973 Constitution by the “people power revolution” and before the installation of the 1987 Constitution, during which violations of human rights were allegedly committed. During the interregnum, says Republic, “a person could not invoke any exclusionary right [in evidence] under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum.” Nor was there an Incorporation Clause. Hence, Republic arrives at the following conclusion: We hold that the Bill of Rights under the 1976 Constitution was not operative during the interregnum. However, we rule that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum. 11 9 272 SCRA 18, at 66 (1997). 10 407 SCRA 10 (2003). 11 407 SCRA 10, at 51 (2003). 2 4 IBP JOURNAL Merlin M. Magallona Significantly, in applying the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as affirmed above, Republic explains that: […T]he Court considers the Declaration as part of customary international law, and that Filipinos as human beings are proper subjects of international law laid down in the Covenant. The fact is the [“people power”] revolutionary government did not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. 12 Absent the Incorporation Clause, Republic could not have applied human rights protection as national law derived from “generally-accepted principles of international law.” It applies the Declaration, or its constituent rights, (a) as customary international law and (b) not in the interest of Filipinos as citizens but as human beings, by these two factors signifying that Republic is applying objective international law on the international plane, not as Philippine law — the first phenomenon of its kind in Philippine jurisprudence. It is not clear how the protection under the Covenant would apply. In invoking it, Republic may be understood to mean that protection becomes operational on account of breach of obligations under the Covenant. But under the Covenant the relevant approach may consist in the invocation of State responsibility. Necessarily, this is to be addressed to the State Party who committed the internationally wrongful act. Republic fails to recognize this problem. Consider the absurdity Republic has created. A domestic court established by a national constitution administering justice on violation of human rights upon the petition of individual natural persons as subjects of international law, not national law, and therefore they derive rights and obligations from objective international law operating on the international plane as customary law. The perpetrators of human right violations must also necessarily be subjects of international law and they are parties to the dispute in which they are charged of having breached obligations created under international law. Logically, the court must have assumed the function of an international tribunal, but in truth it is an institution of national jurisdiction. Its judgment certainly has no bearing at all in the context of objective international law in which it assumes no validity. It remains integral to national law which defines the court’s jurisdiction. Its judgment binds no one in the international sphere; its application of principles of customary or general international law is of dubious validity in domestic jurisdiction because the Philippine legal system requires these principles to be internalized as national law as a sine qua non for application. 12 407 SCRA 10, at 58 (2003). Emphasis added. 2 5 VOLUME 35 NUMBER 1 (AUGUST 2010) An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma It must be underscored that what Republic means in reference to the legal status of Filipinos is that they are beneficiaries in human rights treaties which are concluded by States as subjects of international law. It is true that individual natural persons may become subjects or persons of international law but only under conventional international law, i.e., by treaty concluded by States, which define their rights and obligations. It is only by this process that they become bearers of international personality. In reference to the continued binding character of the Covenant during the interregnum, it would be less problematic if the distinction between State and Government is kept in mind. The State as a person in international law is not affected by internal changes in the Government even as such changes bring about a revision of fundamental law or restructuring of its institutions. The identity and continuity of the State in terms of its rights and obligations under international law is maintained despite “revolutionary” changes, such as those brought about by “people power.” Agustin vs. Edu 13 relates itself to the Incorporation Clause in the following manner: It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: “The Philippines […] adopts the generally accepted principles of international law as part of the law of the land [. . .T]”he 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. 14 One is likely to be bemused, if not amused, at the implication in Agustin that road signs and signals have become principles of law. Be that as it may, it makes no sense in referring to the Vienna Convention in its entirety as impressed with the character of “generally accepted principles of international law.” The nature and form of this category of principles defies reference to the entire international convention. By its nature as a source of law, the binding character of this Convention is restricted to its States Parties, in contrast to generally accepted principles of international law which are binding on all States. Agustin may even be taken to imply that the entire Convention becomes national law by virtue of the Incorporation Clause. But previous to Agustin, is it correct to suppose that the Convention been already transformal into “valid and effective” domestic law on account of the Treaty Clause of the Constitution? Agustin may have, in effect, made the Convention Philippine law twice. This seems to be true with respect to the right to return to one’s country under the International Covenant on Civil and Political Rights in Marcos vs. Manglapus 15 , and to the special duty of the receiving State to protect the diplomatic premises of the sending State under the Vienna Convention on Diplomatic Relations in Reyes vs. Bagatsing. 16 In both cases, the principles embodied in 13 88 SCRA 195 (1979). 14 Ibid., at 213. 15 Supra, note 6. 16 In both cases, the principles embodied in international conventions which are already binding on the Philippines as State Party are subsequently subsumed under the Incorporation Clause by which again they become part of Philippine law. 2 6 IBP JOURNAL Merlin M. Magallona international conventions which are already binding on the Philippines as State Party are subsequently subsumed under the Incorporation Clause. Philippine practice in this sense has the effect of importing treaty norms to the regime of Incorporation Clause principles, unmindful of the nature of these principles as customary or general international law, in contrast to the binding character of conventional or treaty norms as limited to the parties to it. IV. Incorporation Clause and the Hierarchy of Norms in International Law An inquiry into the hierarchy of norms in international law is intended to explore categories of law by way of determining some criteria for priority in the application of “generally accepted principles of international law.” To begin with, how is this phraseology to be interpreted? It is submitted that this phraseology is to be understood as the general rules of customary law or general international law, considered to be binding on all States. In the Lotus Case, cited above, the Permanent Court of International Justice describes this category as “expressed … by usages generally accepted as expressing principles of law.” The principles are within the scope of Article 38(1)(b) of the Statute of the International Court of Justice in referring to international custom as “general practice accepted as law.” They preclude rules which are binding only on a few or a small number of States. It is suggested that it is by reason of the binding character of these principles on all States that provides a decisive rationale to their status under the Incorporation Clause. 1. Out of the whole corpus of general international law, the Vienna Convention on the Law of Treaties creates the category of peremptory norms (jus cogens) which has acquired supremacy over treaties concluded in conflict with such norms. They have become the standard of validity of treaties. Article 53 of this Convention defines peremptory norms and describes their binding character with respect to treaties, thus: A treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. It is provided in Article 64 of the Convention that the emergence of a new peremptory norm is a ground for termination of treaties. 2 7 VOLUME 35 NUMBER 1 (AUGUST 2010) An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma The imperative character of obligations arising from a peremptory or jus cogens norm is applied beyond the law of treaties. Under the law of State responsibility, wrongfulness of an act in breach of these obligations is not in any way precluded or excused. 17 2. Principles or norms that embody erga omnes obligations are said to prevail over those which bind one State in relation to another State. In the Barcelona Traction Case, the ICJ declares: [….A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State . [. . .] By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection: they are obligations erga omnes. 18 In contemporary international law, erga omnes obligations are derived from “outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” 19 3. Obligations of Member States under the Charter of the United Nations are covered by the supremacy clause of Article 103. It provides: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreements, their obligations under the present Charter shall prevail. These obligations under the UN Charter are derived from the principles which are binding on Member States as well as on the UN Organization itself, among which are: (a) sovereign equality of States; (b) the duty to fulfil in good faith the obligations assumed by them “in accordance with the present Charter”; (c) the duty to settle international disputes in a peaceful manner; and (d) prohibition against the threat or use of force against the territorial integrity or political independence of any state, “or in any manner inconsistent with the Purposes of the United Nations.” (e) Universal respect for, and observation of, human rights and fundamental freedoms with distinction as to race, sex, language or religion. 20 17 See Article 26 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts prepared by the International Law Commission. 18 ICJ Reports, 1970, pp. 3, 32. 19 Id. 20 See UN Charter, Arts. 2, 55 and 56. 2 8 IBP JOURNAL Merlin M. Magallona In the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United nations, adopted by the UN General in Resolution 2625 (XXV) on 24 October 1970, the Member States in consensus accept and recognize that the following “constitute basic principles of international law:” (a) The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. (b) The principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. (c) The principle concerning the duty not to intervene in matters under the domestic jurisdiction of any state, in accordance with the Charter. (d) The principle of equal rights and self-determination. (e) The duty of States to cooperate with one another in accordance with the Charter. The principles catalogued above have been recognized by the international community as a whole as general international law. They embody obligations which every State owes to the international community. Hence, these obligations are properly regarded as erga omnes. Inevitably, by the nature of jus cogens norms they embody erga omnes obligations. Even as all erga omnes obligations may not be in the nature of jus cogens norms, jus cogens norms necessarily embody erga omens obligations. The juridical character of the jus cogens norms as well as of erga omnes obligations is deemed to be established by the international community as a whole. What may appear as in the theory of actio popularis is the formulation of the international Law Commission under its Draft Articles referred to above. Draft Article 33 defines the scope of the obligation of the responsible State as including those owed “to the international community as a whole.” A State injured by an internationally wrongful act, under Draft Article 42, is entitled to invoke the responsibility of another State on account of such act “if the obligation breached is owed to … the international community as a whole.” It becomes an internationally wrongful act not only against one State but injurious to the interest of the international community as a whole. 2 9 VOLUME 35 NUMBER 1 (AUGUST 2010) An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma V. Concluding Note The presentation in this essay is addressed to the problem as to the more concrete identification of what are “generally accepted principles of international law” which are constitutionally proclaimed as Philippine law under the Incorporation Clause. It may serve to provide a guideline by which this category of national law establishes its correspondence with relevant principles of general international law in terms of their substantive content, in the face of failure in Philippine practice to inquire into such correspondence, leading to arbitrary or whimsical assumption as to what might be the substantive content of the Incorporation Clause principles as determined by objective international law. It is an attempt to contribute to resolving the enigma that is the Incorporation Clause which declares that something is constituted as law, without telling us what it is in operational identity: In one corner, the Constitution hides a law that is non-law in public knowledge. 3 0 IBP JOURNAL Marvic M.V.F. Leonen Defining Regulatory Spaces: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement * Marvic M.V.F. Leonen ** “Humankind has not woven the web of life. We are but one thread within it. Whatever we do to the web, we do to ourselves. All things are bound together. All things connect.” ~Chief Seattle “When one tugs at a single thing in nature, he finds it attached to the rest of the world.” ~John Muir “Our environment, the world in which we live and work, is a mirror of our attitudes and expectations.” ~Earl Nightingale The Precautionary Principle encourages international actors not to hesitate to provide more protection to human, animal and plant life and their ecosystems against a perceived harm even in the absence of clear scientific proof. It is implicitly based on the acceptance that collective human knowledge may have not been able to fully comprehend with certainty, the consequences of all human activity. In all of its versions, it is therefore necessarily broad and encompassing. On the other hand, the World Trade Organization (WTO) through its Sanitary and Phytosanitary Safeguards (SPS) Treaty and the interpretations of its Appellate Body, while not necessarily disagreeing with the Precautionary Principle or its * Preliminary version, presented during the Third Asian Law Institute (ASLI) Conference: The Development of Law in Asia: Convergence versus Divergence, May 25 to 26, 2006, East China University of Politics and Law, Shanghai, Peoples Republic of China. ** Dean and Professor, College of Law, University of the Philippines; Professorial Lecturer, Department of Constitutional Law, Philippine Judicial Academy. The author invites comments through [email protected]. 3 1 VOLUME 35 NUMBER 1 (AUGUST 2010) DEFINING REGULATORY SPACES: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement objectives, has effectively limited its application. This is so because of the WTO’s concern that these measures may be used to unjustly or arbitrarily discriminate between goods or services on the basis of their origin or that these measures could be used as a disguised restriction to trade. In the WTO-SPS version, the Precautionary Principle is precise and limited to conditions stated in Article 5 Paragraph 7 of the treaty. The range of options to address perceived harm to human, animal, plant life and health as well as their ecologies therefore is now limited. Only limited regulatory diversity is allowed. The extent of this limit is mediated by science. More specifically, in the context of the WTO, the limit is determined by the Appellate Body’s tolerance of scientific interpretation. The current approach therefore transplants the politics of who can do more science, the availability of scientific analysis, and the dynamic of ownership of scientific approach into this area of international legal interpretation. The Broad Form: Precautionary Principle in its Environmental Versions Principle 15 of the 1992 Rio Declaration of the United Nations Conference on Environment and Development (“UNCED”) provides: “[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 1 (emphasis provided) This restatement of the Precautionary Principle seems to be generally accepted although more restrictive versions have been incorporated in various international legal instruments. 2 Commentators accept that there are at least four elements to this principle. 3 First, there must be appreciation of a degree and certainty of a danger that justifies a regulatory response. Second, there must be some understanding of the certainty of the perceived harm and the taking of a regulatory measure. Third, there must be some regulatory response. Finally, it is generally understood that this regulatory response is provisional and may be subject to better certainty in the nature and certainty of the risk and the effectivity of the measures that have so far been taken. 1 Rio Declaration on Environment and Development, Annex 1, principles, 15 U.N. Doc. A/CONF.151/5/Rev. 1 (1992), reprinted in 31 I.L.M. 874, 879. Referred to as the Rio Declaration. 2 See for instance the reviews in Applegate, John S., The Taming of the Precautionary Principle, 27 Wm. and Mary Environmental L. & Policy Rev. 13 (2002) and Sunstein, Cass R., “Beyond the Precautionary Principle,” Chicago Public Law and Theory Working Paper No. 38, January 2003 (available at http://www.law.uchicago.edu/academics/publiclaw/index.html last visited May 2006). 3 Applegate, note 2, at 18 to 20. 3 2 IBP JOURNAL Marvic M.V.F. Leonen The first element seems to suggest two dimensions. The body that takes a regulatory response must have some appreciation of the level of the seriousness of the harm. Furthermore, there must be acceptance of the quantity and quality of the information that provides the basis for the assessment of the possibility of occurrence of such harm. The acceptance of seriousness of the harm – as opposed to the harm itself – is essentially subjective. The seriousness of losing a threatened bird specie is different from establishing the fact that it is threatened. The seriousness of losing ecosystems in favor of producing mineral wealth, perhaps in an economic sense, is different from establishing the fact that mining does affect the environment. The possibility of the harm happening may not be as subjective and may be the subject of science and scientific methodology. It is basically a matter of risk assessment. Risk is the “probabilistic likelihood of an unplanned, undesired or unwanted event actually happening.” 4 Risk assessment involves hypothesizing cause and effect, designing and implementing experiments or quasi-experiments that control for other variables, measuring the results and mathematically quantifying the probabilities. Risk assessment therefore inherently involves scientific information, methodologies and analysis. The quantity of scientific research on the same question will raise questions relating to the replicability of the results and therefore would impact on the quality of later analysis and proof of the original claim as to cause and effect. Claims can be as simple as whether mature spotless apples carry bacteria causing fire blight or whether riding a motorcycle increases the chance of accidents to the rider. It can be as complex as whether residues in food of specific growth hormones artificially introduced in cattle have carcinogenic effect. In all these examples, one can imagine the issues relating to whether there is enough science, how specific they would be, the probabilities involved and how conclusive their findings. The challenge for policy makers therefore is less about how to assess but how people get informed, how to mitigate their impact and when the harm happens, how to apportion the liabilities. 5 Risk assessment therefore is different from risk communication and risk management. All these can involve science. The second element of the precautionary principle involves an examination of the possible effectivity of the mitigating measures. For instance, will wearing a helmet reduce injuries in case of motorcycle accidents; will banning the importation of all apples from a state that has experienced fire blight really protect the state taking this measure; and will banning the importation of all cattle from economies that allow the use of growth hormones reduce the possibility of contracting any kind of cancer. 4 Smith, S, Philipps, P.W.B., Kerr, W.A., and Khachatourians, G.G. Regulating the Liabilities of Agricultural Biotechnology 9, (CABI Publishing, 2004). 5 See Smith et al. at note 4, 9. 3 3 VOLUME 35 NUMBER 1 (AUGUST 2010) DEFINING REGULATORY SPACES: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement Even with the use of the best available scientific information, there will always be the inherent uncertainty of both the risk and the effectivity of mitigating measures. The Precautionary Principle addresses and hopes to increase the tolerance for uncertainty for purposes of taking regulatory measures to address a perceived harm and its imminence. The third element therefore requires the regulator to take a response. This may not always mean a prohibition against the human product or intervention. Depending on the quality of understanding and the degree of acceptance of the risk—the tolerance—there can be as many policy options as are creatively and politically possible. In other words, the precautionary principle does not sanction an attitude that looks at any innovation with suspicion. 6 At the very least, it declares that uncertainty—even scientific uncertainty—should not be used as an excuse from taking a cost effective measure to address a perceived harm on the environment. In other words, it is indeed better to be safe than sorry. The fourth element is implied from the principle. Since the measures are taken on the basis of the best available information, or even none at all, it can be argued that further calibration of the response would have to follow better information. Regulatory bodies may also learn from doing. Hence the process is iterative and the measures provisional. The precautionary principle does not define the required seriousness of the harm, its probability of occurrence, the measures that are to be taken and the level of certainty of the information on the basis of which they are taken. It does not also define the processes that must be put in place to learn from the implementation of the measures and for the regulatory bodies to update themselves in terms of the information taken. Hence, it is quite vague and provides an approach rather than clear directions to those who adopt it. The Restricted Form: Precautionary Principle in the WTO-SPS Version The WTO’s Appellate Body has dealt with unilateral environmental measures in the past that have an international impact. In the United States—Shrimp/Turtle case, the body upheld a US regulation that disallowed the importation of shrimp without a certification coming from its Bureau of Agriculture that it was caught in a way that did not further endanger five threatened species of turtles against a claim that the WTO regulations prevent “unilateral action.” 6 But see Cass, Sustein at note 2 where he argues that the precautionary principle in some of its versions do not make sense because among others it assumes the benign nature of ecosystems while also assuming the pathogenic nature of any human intervention. 3 4 IBP JOURNAL Marvic M.V.F. Leonen The Appellate Body read article XX of the GATT as an exception to the disciplines required in Article XI and article III. More specifically, it said that the GATT does not prohibit domestic measures that have an international effect when it “relates to the conservation of exhaustible natural resources.” However, noting the chapeau of article XX, it declared that the regulation was not WTO compliant as applied. Evidence showed that there was differential treatment in the compliance periods given to different member countries. The Appellate Body also found that there was an implied requirement that turtle excluder devices (TED) be used. It said that there were other relevant conforming means of shrimp farming which seemed not to have been recognized by the US inspectors. Hence, it found this practice a disguised restriction to trade and an unjustified discrimination against other shrimp farmers. In the United States Shrimp/Turtle case, the effect of specific shrimp farming methods on the further decline in the population of threatened turtle species was not raised as an issue. There was therefore no need to examine the scientific justification of this claim upon which the US measures were based. In the EC Asbestos case, the WTO Appellate Body took cognizance of the environmental consequences of the use of a product as part of its physical characteristic in determining whether it was a like product within the context of Article III of the GATT. The measure in question was a ban of all asbestos products by France. Canada’s complaint was, among others, based on the alleged discriminatory treatment between asbestos products and “like or directly substitutable goods” consisting of insulating material made in France. Since the carcinogenic potential of asbestos products had clear scientific basis, the Appellate Body ruled that although the economical utility of both products may be the same, it was considered different for purposes of regulation under Article III Paragraph 4 of the GATT. The scientific basis relating to the carcinogenic potential of asbestos does not seem to have been a grave issue in the EC Asbestos case. Implicit in these decisions is that a regulatory measure may consist of a total ban in the sale or use of a product within a domestic setting. The WTO regulations tolerate these measures and do not evaluate them on the basis of the preferences in regulatory measure or level of protection chosen by a member State. Trade rules seem to be agnostic to these environmental measures except when these constitute unjust discrimination of like products of a differing origin or would therefore be a disguised restriction to trade. 3 5 VOLUME 35 NUMBER 1 (AUGUST 2010) DEFINING REGULATORY SPACES: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement The SPS 7 treaty clarify the limits of sanitary and phytosanitary 8 measures taken by a WTO member. To prevent the abuse of these measures, at least three approaches are taken. Abuse of course would result when there is a showing that there is an unjustified or arbitrary discrimination or when there is a showing that the measures are disguised restriction to trade. First, the members have committed that all sanitary and phytosanitary measures are to be established and maintained only with sufficient scientific justification. 9 Second, the treaty allows international scrutiny with respect to whether there is discrimination among similar products. 10 Third, members should not impose restrictions on products of international origin that it would not impose on the same products internally. 11 This paper discusses in detail the first approach. The Appellate Body in the Australian-Salmon case distinguished between the level of protection 12 that a country chooses, the measures taken to achieve that measure 13 , and the scientific justification on which these measures are based. WTO Appellate Body cases affirm that the level of protection is still within the prerogative of a Member. This is principally based on the preamble 14 and Article 7 Agreement on the Application of Sanitary and Phytosanitary Measures 8 SPS Treaty, Annex A, paragraph 1 defines sanitary or phytosanitary measure as “Any measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease causing organisms in foods, beverages or feed stuffs; (c) to protect human life or health within the territory of the Member from risks arising from disease carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.” 9 SPS Treaty, article 2, paragraph 2: “Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of article 5.” 10 SPS Treaty, article 5, paragraph 5: “With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.” 11 SPS Treaty, article 5, paragraph 6: “Without prejudice to paragraph 2, article 3, when establishing or maintaining sanitary or phystosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility. 12 SPS Treaty, Annex A, paragraph 5 refers to this as both the “appropriate level of sanitary or phytosanitary protection” and is the same as “acceptable level of risk.” 13 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 20 October 1999, para. 200. The definition of “measures” are quite broad. In this case, it was used as a term for an instrument chosen by a state to attain or implement an objective. 14 SPS Treaty, first preambular clause: “Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between members where the same conditions prevail or a disguised restriction on international trade. 3 6 IBP JOURNAL Marvic M.V.F. Leonen 2, Paragraph 1 15 of the SPS treaty. However, the level of protection must now be explicitly stated by the state imposing the measure. It should not simply be implied and thus derived by a dispute panel on the basis of the measures that are before them. The requirement of a risk assessment in Article 5, Paragraph 1 16 is seen as a supplement and an amplification of the requirement that sanitary and phytosanitary measures cannot be established and maintained without adequate scientific justification. 17 Risk assessments are defined in Paragraph 4, Annex A of the Agreement as: “Risk Assessment - The evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.” Traditionally, the provision is interpreted to refer to two types of risk assessment: one involving the “entry, establishment or spread of a pest or disease,” and the other to the effects on health from “the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.” In the Australia—Salmon 18 case and for the first type of risk assessment, this provision was interpreted to require that the member must: (1) identify the disease or the adverse effect as well as the potential biological and economic consequences associated with the disease; (2) evaluate the likelihood of entry, establishment or spread of the disease; and (3) evaluate the likelihood of entry, establishment or spread of the disease according to the measure adopted. In addition, the member adopting the measure should be clear with respect to the desired level of protection. 15 SPS Treaty, article 2, paragraph 1: “Members have the right to take sanitary or phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this agreement.” 16 SPS Treaty, article 5, paragraph 1: “Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.” 17 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, supra footnote 19, at para. 130. 18 Ibid., at para.121. 3 7 VOLUME 35 NUMBER 1 (AUGUST 2010) DEFINING REGULATORY SPACES: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement To be “based on a risk assessment” requires having an “objective logical relationship” between the measures imposed and the risks involved. 19 This does not mean that there must be a showing, that regulatory bodies have subjectively taken the prior scientific studies into consideration before enacting the measure. 20 It does not even require that the regulatory body did the scientific studies. 21 It suffices that these studies exist and that there is some relationship to the measures taken. In fact, a member taking a measure may rely on the studies done by another member country. 22 The precautionary principle is seen as an exception to the first requirement and is triggered only when the scientific evidence is insufficient. 23 Thus in EC—Meat Hormones, the Appellate Body declared: The status of the precautionary principle in international law continues to be the subject of debate among academics, law practitioners, regulators and judges. The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear. We consider, however, that it is unnecessary, and probably imprudent, for the Appellate Body in this appeal to take a position on this important, but abstract, question… “It appears to us important, nevertheless, to note some aspects of the relationship of the precautionary principle to the SPS Agreement. First, the principle has not been written into the SPS Agreement as a ground for justifying SPS measures that are otherwise inconsistent with the obligations of Members set out in particular provisions of that Agreement. 19 See Appellate Body Report, EC – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/B/R, WT/DS48/AB/R, adopted on 16 January 1998, para. 189; Appellate Body Report, Australia – Measures Affecting Importation of Salmon, supra, footnote 19, at para. 123. 20 Ibid. 21 Ibid., at para.190. 22 SPS Treaty, article 9, paragraph 1: “Members agree to facilitate the provision of technical assistance to other Members, especially developing country Members, either bilaterally or through the appropriate international organizations. Such assistance may be, inter alia, in the areas of processing technologies, research and infrastructure, including in the establishment of national regulatory bodies, and may take the form of advice, credits, donations and grants, including for the purpose of seeking technical expertise, training and equipment to allow such countries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriate level of sanitary or phytosanitary protection in their export markets.” 23 SPS Treaty, article 5, paragraph 7: “In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organization as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.” 3 8 IBP JOURNAL Marvic M.V.F. Leonen Secondly, the precautionary principle indeed finds reflection in Article 5.7 of the SPS Agreement. We agree, at the same time, with the European Communities, that there is no need to assume that Article 5.7 exhausts the relevance of a precautionary principle. It is reflected also in the sixth paragraph of the preamble and in Article 3.3. These explicitly recognize the right of Members to establish their own appropriate level of sanitary protection, which level may be higher (i.e., more cautious) than that implied in existing international standards, guidelines and recommendations. Thirdly, a panel charged with determining, for instance, whether “sufficient scientific evidence” exists to warrant the maintenance by a Member of a particular SPS measure may, of course, and should, bear in mind that responsible, representative governments commonly act from perspectives of prudence and precaution where risks of irreversible, e.g. life-terminating, damage to human health are concerned. Lastly, however, the precautionary principle does not, by itself, and without a clear textual directive to that effect, relieve a panel from the duty of applying the normal (i.e. customary international law) principles of treaty interpretation in reading the provisions of the SPS Agreement.” Interestingly, in interpreting Article 11 of the Dispute Settlement Understanding (DSU), the Appellate Body has consistently held that the standard of review that panels can take when examining compliance with the requirements of the SPS is neither of two extremes. It is not always a “de novo” review. Neither does it always imply a “deferential” attitude towards the evaluation of made by a party to a dispute. “De novo” review implies that a dispute panel disregards the scientific claims and evaluation made by both parties and conducts its own inquiry into the matter. A “reasonable deferential” attitude on the other hand means that the panel will not conduct its own inquiry and simply depend upon the evaluation of the parties to the dispute. Consistently, the Appellate Body has declared that the panel has the discretion to determine the sufficiency of the claims made by the parties either by itself, through the employment of individual experts or the creation of expert working groups. In other words, the sufficiency of the scientific analysis and the conclusions made from various studies is left to the discretion of the panel. The panel also has the discretion to determine whether in fact, the scientific information is “insufficient” for purposes of Article 5 Paragraph 7 of the SPS treaty. 3 9 VOLUME 35 NUMBER 1 (AUGUST 2010) DEFINING REGULATORY SPACES: Precautionary Principles, Regulatory Diversity and the SPS Treaty of the WTO Agreement Conclusion The current content of the SPS Treaty within the WTO Agreements definitely defines the regulatory space for its members, at least with respect to measures that affect importation of goods and services coming from outside their borders. In a sense, the principle limits the sovereign options of governments, encourages them to increasingly deal with multilateral international organizations concerned with the formulation of minimum sanitary and phytosanitary standards and encourages the use of more science in mandatory risk assessments on which to base these measures. In the formulation of these minimum standards, states expectedly would use the latest scientific research and analysis to support their proposals. On an international level, the WTO Appellate Body has contributed to the clarification of the precautionary principle. Whether this clarity will contribute to sanitary or phytosanitary measures that are more objectively based on “scientific principles” or may further weaken the ability of smaller developing member states as against developed member economies or the transnational corporations with huge research budgets however remains to be seen. 4 0 IBP JOURNAL Merlin M. Magallona Revised Code of Corporate Governance: A REACTIONARY APPROACH * Cesar L. Villanueva** On July 15 2009, the REVISED CODE OF CORPORATE GOVERNANCE 1 (the “Revised CG Code”) came into effect to replace the 2002-vintage SEC Code of Corporate Governance 2 (the “original SEC Code”). The use of the term “Revised” in its title is meant to indicate that the Revised CG Code is primarily based on the existing structure and provisions of the original SEC Code, and therefore, the significance of the additions, deletions, changes and amendments contained in the Revised CG Code are supposed to take their real significance by way of comparison with the provisions of the original SEC Code. The Revised CG Code is supposedly the result of lobbying efforts from both the Philippine Stock Exchange (PSE) and the Institute of Corporate Directors (ICD) to incorporate reforms in the original SEC Code coming from hard lessons learned by directors and officers of covered corporations, as well as from the invaluable experiences of corporate governance practitioners under the regime of the original SEC Code. Our review of the Revised CG Code, and the initial feedback received from the field, is, to say the least, one of disappointment — Sayang! The feeling that one is left with after reading the Revised CG Code is that the great experiment of ushering into our jurisdiction modern corporate governance principles and practices has abruptly come to an end; and that we in the Philippines are retreating back to old, familiar grounds — the governance principles espoused under the century-old principles embodied in the Corporation Code. Indeed, what stand out from the provisions of the Revised CG Code are not what new cutting- edge concepts or provisions were introduced, but rather what seminal provisions have been taken out from the provisions of the original SEC Code. * The discussions contained in this paper are better appreciated when read in connection with the author’s book THE LAW AND PRACTICE ON: PHILIPPINE CORPORATE GOVERNANCE (Holy Angel University Press, 2009), and is issued formally as a supplement to said publication. ** Dean of the Ateneo de Manila School of Law, Professorial Lecturer in Corporation Law and Sales; Senior Partner, Villanueva Gabionza & De Santos Law Offices. 1 SEC Memorandum Circular No. 6, series of 2009. 2 SEC Memorandum Circular No. 2, series of 2002. 4 1 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH Coverage of the Revised CG Code The covered corporations under the Revised CG Code seem to be the same as those covered in the original SEC Code, which originally read as follows: “this Code . . . shall be applicable to corporations whose securities are registered or listed, corporations which are grantees of permits/licenses and secondary franchise from the Commission and public companies. This Code also applies to branches or subsidiaries of foreign corporations operating in the Philippines whose securities are registered or listed.” The original SEC Code then separately defined “public companies” to mean “any corporation with a class of equity securities listed in an Exchange or with assets in excess of Fifty Million Pesos (P50,000,000.00) and having two hundred (200) or more stockholders each holding at least one hundred (100) shares of a class of its securities.” The original SEC Code covered the following sets of “covered corporations,” thus: (a) Corporations whose securities are registered or listed, which includes the branches or subsidiaries of foreign corporations operating in the Philippines whose securities are registered or listed; (b) Public companies, i.e., those with assets in excess of Php50.0 Million, with at least 200 stockholders who own at least 100 shares of a class of its securities; (c) Corporations which are grantees of permits/licenses and secondary franchise from the SEC. which meant that the principles of corporate governance are made to apply, not to all corporations, but only those — which for lack of a better term, — we have dubbed as “public companies” and by reason of which the impact of their business enterprises on the public are deemed to be vested with a certain degree of “public interest” beyond those of their shareholders. It is the fact that the business of a public company affects not only the shareholders, but other components of the market or society, by which the principles of the Stakeholder Theory are intended to apply. The coverage clause of the Revised CG Code seems to have expanded the coverage of what are within “covered corporations” when it embedded the definition of “public companies” within said coverage clause, which now reads as follows: . . . this Revised Code of Corporate Governance . . . shall apply to registered corporations and to branches or subsidiaries of foreign corporations operating in the Philippines that (a) sell equity and/or debt securities to the public that are required to be registered with the Commission, or (b) have assets in excess of Fifty Million Pesos and at least two hundred (200) stockholders who own at least one hundred (100) shares each of 4 2 IBP JOURNAL Cesar L. Villanueva equity securities, or (c) whose equity securities are listed on an Exchange; or (d) are grantees of secondary licenses from the Commission. 3 which seems to indicate that even “branches or subsidiaries of foreign corporations operating in the Philippines that . . . have assets in excess of Fifty Million Pesos and at least two hundred (200) stockholders who own at least one hundred (100) shares each of equity securities,” are covered by our Revised CG Code, even when they do not sell equity and/or debt securities in the Philippines required to be registered with the SEC, or even when they have not listed any equity securities on an Exchange. This would include large American and European corporations having established branches or subsidiaries in the Philippines. Likewise, the sequencing seems to imply that the branches and subsidiaries of foreign corporations operating in the Philippines which “are grantees of secondary licenses from the Commission” are also covered by the mandatory provisions of the Revised CG Code. This would mean all branches of foreign corporations are covered since all such branches have been issued licenses to do business in the Philippines by the SEC. By virtue of their local operations in the Philippines, foreign companies would have to implement the provisions of the Revised CG Code to matters that are happening in their headquarters, since that is where the Boards and Management of foreign companies are located. We believe that as correctly enumerated under the original SEC Code, it is only in “branches or subsidiaries of foreign corporations operating in the Philippines whose securities are registered or listed,” where the provisions of the Revised CG Code should apply. This is an important consideration to keep in mind, since the Revised CG Code has imposed a heftier and more encompassive penalty for violation of its provisions, when compared to the original SEC Code. Finally, because the Revised CG Code has retained within its coverage those companies which “are grantees of secondary licenses from the Commission,” then it must stand to reason that the exclusive enumeration of those falling within this category under SEC Memorandum Circular No. 16, s. 2002, 4 still applies, namely: (a) finance companies; (b) investment houses; (c) brokers and dealers of securities; (d) investments companies; (e) pre-need companies; (f) stock and other securities exchanges. The point being made is that by retaining the coverage of the principles of corporate governance to public companies, or at least by expressly stating that its mandatory provisions are applicable only to “covered corporations” (“All covered corporations shall establish and implement their corporate governance rules in accordance with this Code”), the Revised CG Code is making it clear that it recognizes the public interests that pertain to covered corporations, as distinguished from all 3 Opening paragraph, Revised CG Code. 4 Guidelines on the Nomination and Election of Independent Directors. 4 3 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH other private and non-public companies whose business enterprises do not affect public interest, or whose business enterprises only affect private interests, mainly their stockholders. Abandonment of the “Stakeholder Theory” What is truly astounding in the Revised CG Code is the dropping of all reference to “stakeholders” and the “Stakeholder Theory.” The primary issue that ought to be settled with the coming into effect of the Revised CG Code is the obvious question – “Has there been an abandonment of the Stakeholder Theory, and a return to the near-exclusive application of the doctrine of maximization of shareholders’ value?” 1. Deletion of All Reference to “Stakeholders” Under the original SEC Code, the term “Corporate Governance” was defined to embody the Stakeholder Theory, thus — B. CORPORATE GOVERNANCE – REFERS TO A SYSTEM WHEREBY SHAREHOLDERS, CREDITORS AND OTHER STAKEHOLDERS OF A CORPORATION ENSURE THAT MANAGEMENT ENHANCES THE VALUE OF THE CORPORATION AS IT COMPETES IN AN INCREASINGLY GLOBAL MARKET PLACE. 5 The recognition that it was not only the shareholders of a public company, but also “creditors and other stakeholders” as having legal and business standing to “ensure that management enhances the value of the corporation,” officially ushered within the institution of Philippine public companies the Stakeholder Theory or the theory of enhancing the value of the corporation on a long-term basis for the benefit of all those affected by its business enterprise, as distinguished from the Shareholder Theory or the doctrine of maximization of shareholder value. The Revised CG Code has switched to a process-driven definition similar to that found in the IC Code of Corporate Governance Principles and Leading Practices, 6 but which in addition limits the coverage only to “stockholders” thus, — 5 Sec. I(B), original SEC Code of Corporate Governance; reformatted and with emphasis supplied. 6 IC Circular No. 31-2005, 26 September 2005, which defines “Corporate Governance” under Sec. I(1) as follows: “the system by which companies are directed and managed. It influences how the objectives of the company are set and achieved, how risk is monitored and assessed, and how performance is optimized.” 4 4 IBP JOURNAL Cesar L. Villanueva A) CORPORATE GOVERNANCE – THE FRAMEWORK OF RULES, SYSTEMS AND PROCESSES IN THE CORPORATION THAT GOVERNS THE PERFORMANCE BY THE BOARD OF DIRECTORS AND MANAGEMENT OF THEIR RESPECTIVE DUTIES AND RESPONSIBILITIES TO THE STOCKHOLDERS. 7 Whereas the IC Code specifically refers and defines “stakeholders” to include not only stockholders, but also “to the group of company owners, officers and employees, policyholders, suppliers, creditors and the community,” 8 the Revised CG Code has opted to drop every reference to “stakeholders” found in the original SEC Code. Thus, the provision under “General Responsibility” of Directors of covered corporations under the original SEC Code which provided that “a director assumes certain responsibilities to different constituencies or stakeholders, who have the right to expect that the institution is being run in a prudent and sound manner,” 9 has been entirely deleted in the Revised CG Code. The immediately quoted provision had been lifted by the SEC directly from BSP Circular No. 318, series of 2001, and we have also criticized its formal adoption into the original SEC Code as being rather dangerous because it ought to apply only to stakeholders of companies that hold the investments and savings of the public (such as banks and insurance companies). However, the deletion in the Revised CG Code may be interpreted to mean that only shareholders have standing with respect to the business operations of covered companies, as the new provision now reads: 1. GENERAL RESPONSIBILITY IT IS THE BOARD’S RESPONSIBILITY TO FOSTER THE LONG- TERM SUCCESS OF THE CORPORATION, AND TO SUSTAIN ITS COMPETITIVENESS AND PROFITABILITY IN A MANNER CONSISTENT WITH ITS CORPORATE OBJECTIVES AND THE BEST INTEREST OF ITS STOCKHOLDERS. x x x. 10 The use of the term “to foster the long-term success of the corporation,” which normally would have the same value and meaning as “enhancing the value of the corporation,” is one of the hallmarks of the stakeholder theory to focus Board and Management efforts toward long-term goals that protect the interests of all, if not most stakeholders, rather than the short-term seeking of profits which only enhances the interests of current shareholders, as they trade their shareholdings in the stock 7 Reformatted and with emphasis supplied. 8 Sec. I(18), IC Code of Corporate Governance Principles and Leading Practices. 9 Sec. II(5)(a), original SEC Code of Corporate Governance. 10 Article 2(F)(1), Revised CG Code; reformatted and with emphasis supplied. 4 5 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH market. The context of the afore-quoted provision that juxtaposes the “long-term success of the corporation” only in line with “the best interest of its stockholders” may be interpreted to mean an abandonment of the stakeholders theory under the Revised CG Code, and a return to the much narrow path offered by the maximization of shareholders’ equity as the only object of corporate governance. Furthermore, under Section II(5)(b) of the original SEC Code (on “Duties and Functions of the Board”) which provided that “to insure a high standard of best practice for the company and its stakeholders, the Board should conduct itself with utmost honesty and integrity in the discharge of its duties, functions and responsibilities,” 11 the current Article 2(F)(2) of the Revised CG Code has limited such duties and functions only “for the corporation and its stockholders.” 12 The revision effected under the Revised CG Code may be taken to mean that it is the current position of the SEC that the duties and functions of the Board of covered corporations, as well as their fiduciary obligations, now pertain solely to the company and its shareholders, a complete abandonment of the Stakeholder Theory. The duty imposed upon the Board of Directors of covered corporations under Section II(5)(b) of the original SEC Code to identify their stakeholders and the duty of accounting owed to them, thus — IV. IDENTIFY THE CORPORATION’S MAJOR AND OTHER STAKEHOLDERS AND FORMULATE A CLEAR POLICY ON COMMUNICATING OR RELATING WITH THEM ACCURATELY, EFFECTIVELY AND SUFFICIENTLY. THERE MUST BE AN ACCOUNTING RENDERED TO THEM REGULARLY IN ORDER TO SERVE THEIR LEGITIMATE INTERESTS. 13 has now been rendered to be merely a communication process under Article 2(F)(2) of the Revised CG Code to cover only the following: . . . IDENTIFY THE SECTORS IN THE COMMUNITY IN WHICH THE CORPORATION OPERATES OR ARE DIRECTLY AFFECTED BY ITS OPERATIONS, AND FORMULATE A CLEAR POLICY OF ACCURATE, TIMELY AND EFFECTIVE COMMUNICATION WITH THEM. 14 and clearly avoids the use of the term “stakeholders.” The duty imposed on the Corporate Secretary of a covered corporation under Section II(9) of the original SEC Code is that “he should work and deal fairly and objectively with all the constituencies of the corporation, namely, the Board, management, stockholders and other stakeholders. As such, he should be someone his colleagues and these constituencies can turn to, trust and confide with on a regular 11 Emphasis supplied. 12 Emphasis supplied. 13 Reformatted and emphasis supplied. 14 Reformatted and emphasis supplied. 4 6 IBP JOURNAL Cesar L. Villanueva basis,” 15 has been limited under Article 2(L) of the Revised CG Code only to the duty to “work fairly and objectively with the Board, Management and stockholders.” The provision under Section IV (Accountability and Audit) under the original SEC Code, referring to the Board’s obligation to stakeholders to — D. MAINTAIN A SOUND SYSTEM OF INTERNAL CONTROL TO SAFEGUARD STAKEHOLDERS’ INVESTMENT AND THE COMPANY’S ASSETS; 16 has effectively been replaced in the Revised CG Code with the provision that reads: Management should formulate, under the supervision of the Audit Committee, the rules and procedures on financial reporting and internal control in accordance with the following guidelines: x x x (ii) An effective system of internal control that will ensure the integrity of the financial reports and protection of the assets of the corporation should be maintained. x x x. 17 Finally, the provision of Section IV (on “Disclosure and Transparency”) of the original SEC Code that — THE BOARD SHALL THEREFORE, COMMIT AT ALL TIMES TO FULL DISCLOSURE OF MATERIAL INFORMATION DEALINGS. IT SHALL CAUSE THE FILING OF ALL REQUIRED INFORMATION FOR THE INTEREST OF THE STAKEHOLDERS. 18 has been entirely deleted in the Revised CG Code. All the foregoing indicate that the Revised SEC Code has taken a “rejection tone” of the Stakeholder Theory, and one may be led to the conclusion that has seen our Supreme Court holding that in the realm of Philippine Corporation Law, the Board of Directors and Management of every corporation owe fiduciary duties to the stockholders, and their main obligation is “to seek the maximum amount of profits for the corporation.” 19 15 Emphasis supplied. 16 Reformatted and with emphasis supplied. 17 Reformatted. 18 Reformatted and with emphasis supplied. 19 Premium White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103 (1993). 4 7 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH 2. Has the Stakeholders Theory Been Formally Rejected in Philippine Jurisdiction? On the broad issue of whether the Stakeholder Theory no longer has any formal application in Philippine jurisdiction, the answer is easier to give: “Definitely not!” It must be recalled that it was not the SEC that ushered the Stakeholder Theory in the Philippines with the promulgation of the original SEC Code, but rather the Bangko Sentral ng Pilipinas (BSP), with the promulgation a year earlier of a series of circulars, starting with BSP Circular No. 283, series of 2001, that defined who the stakeholders are in banking institutions and requiring of such institutions, their Board and Management, to exercise a high degree of diligence, and not just the diligence of a prudent man. The Supreme Court has, for more than a decade before the issuance of the BSP Circulars on Corporate Governance, characterized banking institutions as being “vested with public interest,” requiring of them, their Boards of Directors and officers, the exercise of diligence of the highest order, not only to their stockholders, but primarily to their clients, depositors and members of the public who deal with their facilities. In addition, the IC Code of Corporate Governance Principles and Leading Practices, formally recognizes that the “insurance business is imbued with public interest,” 20 and that “as a custodian (sic) of public funds, insurance corporations and insurance intermediaries shall ensure that their dealings with the public are always conducted in a fair, honest, and equitable manner.” 21 These principles adhere to the Stakeholder Theory. There is no doubt that the Stakeholder Theory, as a cornerstone of the regime of corporate governance, is very much alive and well for the key banking and insurance sectors of the Philippine capital market. With the promulgation of the Revised CG Code, do we then take it that in all other public companies, other than banking institutions, insurance companies, and insurance intermediaries, the Stakeholder Theory is thereby rejected as the capstone of corporate governance, with the affirmation that the maximization of shareholders’ value becomes once again the rule of thumb in measuring the duties, responsibilities and extent of personal liability of directors and officers of covered corporations? It must be stated formally that with the clear dropping of the Stakeholder Theory from the definition of Corporate Governance, and dropping of all references to stakeholders under the Revised CG Code, there is a strong argument before courts of law that the Stakeholder Theory as the legal basis of accountability for directors and officers of covered companies (except for banks, insurance companies and 20 Sec. II(B)(4), IC Code of Corporate Governance. 21 Sec. V, IC Code of Corporate Governance. 4 8 IBP JOURNAL Cesar L. Villanueva insurance intermediaries) can no longer be made to apply; and that “a director of a corporation holds a position of trust and as such, he owes a duty of loyalty to his corporation. . . As corporate managers, directors are committed to seek the maximum amount of profits for the corporation.” 22 Nevertheless, it is our proposition that notwithstanding the substantial changes effected in the Revised CG Code, the application of the Stakeholder Theory as a cornerstone to determine the nature and extent of the duties, responsibilities, as well as the personal liabilities of directors and officers of all public companies, continues to be a viable doctrine. Firstly, the official and unofficial pronouncements coming out of the responsible officers of the SEC do not indicate that they are pursuing a new corporate governance regime that rejects the Stakeholder Theory. Commissioner Raul J. Palabrica (who is credited to be the main author behind the revisions), writes in his column that the coverage of the Revised CG Code continues to be the same as under the original SEC Code, and that — The common denominator of these companies is they solicit investments from the public to help sustain their operation. Hence, their activities are considered imbued with public interest. The code consists of compulsory and recommendatory guidelines for the protection of the interests of the stockholders and other investors of covered companies. 23 In other words, the coverage of the Revised CG Code for public companies continues to acknowledge that it is the nature of the business enterprises of the covered companies (and not just their corporate medium) that imbues them with public interest. This confirms that it is not just the shareholders who fall within strictly intra-corporate relationships and are affected by the operations of the public companies, but also those who have invested in the companies in some other form (such as the case of policy holders, depositors, etc.), who receive protection under a stricter corporate governance regime. This is affirmed in Article 2 of the Revised CG Code, which provides as part of the “Rules of Interpretation” that — B) ALL DOUBTS OR QUESTIONS THAT MAY ARISE IN THE INTERPRETATION OR APPLICATION OF THIS CODE SHALL BE RESOLVED IN FAVOR OF PROMOTING TRANSPARENCY, ACCOUNTABILITY AND FAIRNESS TO THE STOCKHOLDERS AND INVESTORS OF THE CORPORATION. 24 The only problem created by the total dropping of the Stakeholder Theory under the provisions of the Revised CG Code is that it has effectively limited the 22 Prime White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103, 110-111 (1993). 23 Philippine Daily Inquirer, 03 July 2009, at p. B5; emphasis supplied. 24 Reformatted and with emphasis supplied. 4 9 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH coverage of “stakeholders” to those who have direct “investments” in public companies, similar to the financial involvement of stockholders, such as the case of depositors and other debt-holders of banking institutions, policy holders and debt- holders of insurance companies, and plan-holders of pre-need companies. All other stakeholders who do not have a direct financial investment in the companies, such as management and employees, customers, the community site, etc., are deemed to have no direct interest in the corporate enterprise, and the only manner by which they can sustain a legal standing as stakeholders is to prove that they pertain to the “public interest” coverage of the particular covered corporation upon which they seek to demand compliance with corporate governance principles. The net result of the revision effected under the Revised CG Code is to effectively narrow the coverage of who can claim to be stakeholders of a public company, to a commercial end — that the directors and officers of a public company owe a special duty to stockholders and other similar investors in the company to maximize profits for the long-term success of the corporation. Secondly, the revisions effected by the SEC under the final terms of the Revised CG Code may be taken to mean that the SEC has dropped all reference to stakeholders, not as a rejection of the Stakeholder Theory, but rather as a recognition that primary jurisdiction over the covered corporations pertains primarily to the corporate medium and the legal relationship that is created (i.e., the intra-corporate relationship); and that the underlying business enterprise is not for the SEC to supervise, but by the proper government agency so tasked under its charter. For example, although all banks and insurance companies can only be operated under a corporate medium, nevertheless, their underlying operations are primarily under the control and/or supervision not by the SEC, but by the BSP and the IC, respectively. It may be reckoned therefore that with the current version of the Revised CG Code, the SEC has taken the position that it is the government agency tasked with control and/or supervision of the industry that it is rightly vested with power, and obviously it is in the best position to define the terms of the Stakeholder Theory and determine those who are deemed to fall with the coverage of stakeholders. In other words, the SEC has defined the meaning and coverage of “Corporate Governance” under the Revised CG Code within the parameters that are clearly within its administrative jurisdiction, i.e., within the intra-corporate relationships of every covered corporation: (a) Between the SEC and the company, represented by its Board of Directors; (b) Between the Board of Directors and the stockholders; (c) Between the Board of Directors and Management. Within the realm of its special administrative jurisdiction, the SEC has, through the Revised CG Code, defined the meaning and essence of Corporate Governance for public companies in the manner and term it knows best — the maximization of 5 0 IBP JOURNAL Cesar L. Villanueva shareholders’ value: “Corporate Governance – the framework of rules, systems and processes in the corporation that governs the performance by the Board of Directors and Management of their respective duties and responsibilities to the stockholders.” 25 It has described the General Responsibility of the Boards of Directors of covered corporations within such parameters: “It is the Board’s responsibilities to foster the long-term success of the corporation, and to sustain its competitiveness and profitability in a manner consistent with its corporate objectives and the best interests of its stockholders.” 26 The terms of the Revised CG Code indicate that the code recognizes, apart from the stockholders of covered corporations, other stakeholders similarly situated — investors, in line with its recognition that under the Securities Regulation Code (SRC), it is the government agency that has been given direct supervision over public companies, for the protection of stockholders and other debt- and securities-holders, thus — “All doubts or questions that may arise in the interpretation or application of this Code shall be resolved in favor of promoting transparency, accountability and fairness to the stockholders and investors of the corporation;” 27 “To ensure a high standard of best practice for the corporation and its stockholders, the Board should conduct itself with honesty and integrity in the performance of, among others, the following duties and functions: x x x Establish and maintain an investor relations program that will keep the stockholders informed of important developments in the corporation. If feasible, the corporation’s CEO or chief financial officer shall exercise oversight responsibility over this program.” 28 The point being made is that the formal dropping of the Stakeholder Theory under the Revised CG Code should not be construed to mean that the SEC, as the supervising agency over all corporations in the Philippines, has rejected its application in our jurisdiction, but that it leaves it to the best judgment of the proper government agency of the particular industry or business sectors having jurisdiction to define the nature and extent of how they wish to adopt such theory. As the SEC has defined principles of Corporate Governance within the medium of public companies to cover the duties and obligations of the Board of Directors and Management to mean the maximization of the value of the investments of shareholders and other investors, so therefore other agencies, such as the BSP and the IC, have the right to so define the parameters of what constitute good corporate 25 Art. 1(a), Revised CG Code. 26 Art. 3(F)(1), Revised CG Code. 27 Art. 2(B) (on “Rules of Interpretation”), Revised CG Code. 28 Art. 3(F)(2), Revised CG Code. 5 1 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH governance within their industries and sectors that best suit the Stakeholder Theory to their own specific circumstances. This approach — that the corporate medium, apart from the underlying business enterprise, is not deemed to be vested with public interest beyond those that have a formal or commercial tie to it by way of equity or debt investment — seems to be in conformity with the SEC’s mandate contained in its sub-charter, namely Presidential Decree No. 902-A, which holds that: WHEREAS, in line with the government’s policy of encouraging investments, both domestic and foreign, and more active public participation in the affairs of private corporations and enterprises through which desirable activities may be pursued for the promotion of economic development; and, to promote a wider and more meaningful equitable distribution of wealth, there is a need for an agency of the government to be invested with ample powers to protect such investment (sic) and the public; WHEREAS, to achieve these national objectives, it is necessary to reorganize and restructure the Securities and Exchange Commission to make it a more potent, responsive and effective arm of the government to help in the implementation of these programs and to play a more active role in nation-building; It also means that the SEC has retreated (when compared to its original stance under the original SEC Code) from a positive role as the government agency that could imbue the corporate medium with the constitutional precept that although we recognize the institution of private ownership and property rights and “the indispensable role of the private sector,” 29 we nevertheless declare that property “bears a social function, and all economic agents shall contribute to the common good,” and always “subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.” 30 Thirdly, and perhaps the more important aspect when it comes to corporate practitioners and their clientele, is that apart from the language of the original SEC Code, the Supreme Court has in the field of jurisprudence, began to craft a doctrine of “Corporate Responsibility” that recognizes the existence of the duties and obligations of corporations, their Boards and Management, to sectors of society (apart from their shareholders) who are affected by their operations. Fairly recently, in Professional Services, Inc. v. Court of Appeals, 31 the Supreme Court held a hospital corporation liable for the medical malpractice or professional 29 Sec. 20, Art. II, 1987 Constitution. 30 Sec. 6, Art. XII, 1987 Constitution. 31 544 SCRA 170, 182 (2008). 5 2 IBP JOURNAL Cesar L. Villanueva negligence of a physician who was a member of its medical staff, thus — The challenged Decision also anchors its ruling on the doctrine of corporate responsibility. The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. This is because the modern hospital now tends to organize a highly- professional medical staff whose competence and performance need also to be monitored by the hospital commensurate with its inherent responsibility to provide quality medical care. Such responsibility includes the proper supervision of the members of its medical staff. Accordingly, the hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. 32 Unfortunately, the term doctrine of corporate responsibility was used in Professional Services, Inc., to mean “corporate negligence doctrine . . . These special tort duties arise from the special relationship existing between a hospital or nursing home and its patients, which are based on the vulnerability of the physically or mentally ill persons and their inability to provide care for themselves.” 33 And that is the essence of what is wrong under the regime of the Revised SEC Code: the Stakeholder Theory embodied in the original SEC Code was put to death too young in its life, even before it could be properly treated and allowed to bloom under Philippine corporate jurisprudence! In our book on Corporate Governance, we have discussed at length the shortcomings of the Stakeholder Theory and the pitfalls that faced the SEC in adopting it formally, but I certainly had not advocated its deletion. In a developing country like ours where the majority of the resources available to our people are in the hands of corporate entities (and also in the hands of government corporations), the great challenge was, and continues to be, that of evolving a doctrine that imbues the corporate medium with the “burden of a social function, and as an economic agent which should contribute to the common good.” With the SEC retreating from that challenge under the Revised SEC Code, the great social experiment in imbuing Philippine public companies with a social function that goes beyond the interests of their investors has been orphaned into the other fields outside of Philippine Corporate Law. And I always thought that the essence of “Corporate Governance” was in the term “corporate.” 32 Ibid, at p. 182. 33 Ibid, at p. 182, footnote 7. 5 3 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH System of “Independent Directors” Article 3(A) of the Revised CG Code strengthens the system of independent directors for Philippine public companies, as it provides that — ALL COMPANIES COVERED BY THIS CODE SHALL HAVE AT LEAST TWO (2) INDEPENDENT DIRECTORS OR SUCH NUMBER OF INDEPENDENT DIRECTORS THAT CONSTITUTES TWENTY PERCENT (20%) OF THE MEMBERS OF THE BOARD, WHICHEVER IS LESSER, BUT IN NO CASE LESS THAN TWO (2). ALL OTHER COMPANIES ARE ENCOURAGED TO HAVE INDEPENDENT DIRECTORS IN THEIR BOARDS. 34 In Philippine Corporate Law, there are now two systems of promoting good corporate governance, but ensuring that there is a check on the dominant role of the majority stockholders. First is the system of cumulative voting mandatory for all stock corporations under Section 24 of the Corporation Code, 35 which makes it mathematically possible for minority shareholders to pool their voting powers to a pre-computed number of nominees to ensure that they would have minority representation in the Board of Directors. Consonant with this principle, Section 28 of the Corporation Code provides that the majority stockholders have no power to remove a director elected by cumulative voting except for cause. 36 Second is the system of independent directors originally introduced for public companies under Section 38 of the Securities Regulation Code for all public companies to have “at least two (2) independent directors or such independent directors shall constitute at least twenty percent (20%) of the members of such board, whichever is the lesser.” The section defines an independent director as “a person other than an officer or employee of the corporation, its parent or subsidiaries, or any other individual having a relationship with the corporation, which would interfere with 34 Reformatted and with emphasis supplied. 35 Sec. 24, Corporation Code: “At all elections of directors or trustees, there must be present, either in person or by representative authorized to act by written proxy, the owners of the majority of the outstanding capital stock x x x and said stockholder may vote such number of shares for as many persons as there are directors to be elected or he may cumulate said shares and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal, or he may distribute them on the same principle among as many candidates as he shall see fit; Provided, That the total number of votes cast by him shall not exceed the number of shares owned by him as shown in the books of the corporation multiplied by the whole numbers of directors to be elected.” 36 Sec. 28, Corporation Code: “Any director or trustee of a corporation may be removed from office by a vote of the stockholders holding or representing two-thirds (2/3) of the outstanding capital stock, or if the corporation be a non-stock corporation, by a vote of two-thirds (2/3) of the members entitled to vote: x x x Provided, That removal without cause not be used to deprive minority stockholders or members of the right of representation to which they may be entitled under Section 24 of this Code.” 5 4 IBP JOURNAL Cesar L. Villanueva the exercise of independent judgment in carrying out the responsibilities of a director.” 37 In our book, we have discussed the shortcomings of the system of independent directors under the aegis of the original SEC Code which had formally adopted the Stakeholder Theory; that since all directors of a public company, whether executive, non-executive, minority representing, or independent director, are now bound with duties not only towards the stockholders but all other stakeholders, then the necessity for independent directors did not have a good case. With the apparent abandonment under the Revised CG Code of the Stakeholder Theory, and in fact an affirmation in its various provisions that the duties and responsibilities of directors and management of public companies is owned to stockholders and other investors, then the strengthening of the role of independent directors, as occupying a quasi-public position (i.e., one that represents the “public good” in Board proceedings) has taken a more meaningful role. Manual of Corporate Governance and the Penalty Provision Under Article 9 of the Revised CG Code (on “Commitment to Good Corporate Governance”), the SEC has continued with the requirement under the original SEC Code 38 that covered corporations must formally submit a manual of corporate governance on which they “shall establish and implement their corporate governance rules in accordance with this Code.” But unlike the original SEC Code which provided that failure to submit the manual is the only infraction that is penalized by a fine, the Revised CG Code under its Article 11 on “Administrative Sanctions” has expanded the penalty coverage to all violations of the Code, thus: Article 11: Administrative Sanctions A fine of not more than Two Hundred Thousand Pesos (Php200,000) shall, after due notice and hearing, be imposed for every year that a covered corporation violates the provisions of this Code, without prejudice to other sanctions that the Commission may be authorized to impose under the law; provided, however, that any violation of the Securities Regulation Code punishable by a specific penalty shall 37 Section 38 of the SRC is the only other section which treats of independent directors, and requires that the board of an exchange to include “no less than fifty one percent (51%) of the remaining members of the board to be comprised of three (3) independent directors and persons who represent the interests of issuers, investors, and other market participants, who are not associated with any broker or dealer or member of the Exchange for a period of two (2) years prior to his/her appointment,” and that “[n]o officer or employee of a member, its subsidiaries or affiliates or related interests shall become an independent director.” 38 Sec. IX, original SEC Code: “Failure to adopt a manual of corporate governance as specified therein shall subject a corporation, after due notice and hearing, to a penalty of Php100,000.00.” 5 5 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH be assessed separately and shall not be covered by the abovementioned fine. 39 Fines and other penalties imposed by the SEC are serious matters, not only because of the pecuniary repercussions, but more importantly under the Corporation Code, 40 and in the Revised SEC Code itself, 41 a violation may constitute a ground for the disqualification of a director, or constitute as “proper cause,” for his removal by the requisite vote of stockholders. 42 Although there is no doubt that the failure to comply with the requirement of filing the manual is punishable under Article 11 of the Revised CG Code, it seems difficult to see how any other “violation” thereof may be properly punished by a fine of Php200,000 “for every year that a covered corporation violates the provisions of this Code.” Firstly, instead of the fine being imposed on every violation of the provisions of the Revised CG Code, the penalty that is imposable is limited to “Php200,000 every year.” This would come to the dubious end that a covered corporation may commit various infractions under the Code, and only be liable to a maximum penalty of “Php200,000 per year.” Secondly, corporate governance principles and best practices are primarily to be followed or practiced by the directors and key officers of a covered corporation, and the infraction would be a personal liability on their part. And yet the provisions of Article 11 of the Revised CG Code apply the penalty only to a violation by the “covered corporation,” and not on the director or officer guilty of an offense under the Code. 39 Emphasis supplied. 40 Section 27 of the Corporation Code: “SEC. 27. Disqualification of directors, trustees or officers. – No person convicted by final judgment of an offense punishable by imprisonment for a period exceeding six (6) years, or a violation of this Code, committed within five (5) years prior to the date of his election or appointment, shall qualify as director, trustee or officer of any corporation. (n)” 41 Article 3(E)(1)(iv) of the Revised SEC Code provides “The following shall be grounds for the permanent disqualification of a director: x x x (iv) Any person who has been adjudged by final judgment or order of the Commission, court, or competent administrative body to have willfully violated, or willfully aided, abetted, counseled, induced or procured the violation of any provision of the Corporation Code, Securities Regulation Code or any other law administered by the Commission or BSP, or any of its rule, regulation or order;” Article 3(E)(2)(iii) of the Revised SEC Code provides that “The Board may provide for the temporary disqualification of a director for any of the following reasons: x x x (iii) Dismissal or termination for cause as director of any corporation covered by this Code. The disqualification shall be in effect until he has cleared himself from any involvement in the cause that gave rise to his dismissal or termination.” 42 Section 28 of the Corporation Code: “SEC. 28. Removal of directors or trustees. – Any director or trustee of a corporation may be removed from office by a vote of the stockholders holding or representing two-thirds (2/3) of the outstanding capital stock . . . Provided, That removal without cause not be used to deprive minority stockholders or members of the right of representation to which they may be entitled under Section 24 of this Code. (n)” 5 6 IBP JOURNAL Cesar L. Villanueva Thirdly, although the non-filing of the manual on corporate governance constitutes a situation that “a covered corporation violates the provisions of this Code” simply because the original provisions of the original SEC Code specifically covered only such violation, it is not clear what other violations may be punishable under Article 11 of the Revised CG Code. Atty. Gerard M. Lukban, the SEC Secretary, was quoted as saying that “The previous Code had provisions that use ‘may’. . . Here some were changed to ‘shall’ so they are no longer just recommendatory.” 43 That would mean that every provision of the Code that imposes an obligation with the use of the word “shall” would be a violation of the Revised CG Code that would be punishable with the find under Article 11 thereof. For example, under Art. 2(F), it is provided that — THE BOARD SHOULD FORMULATE THE CORPORATION’S VISION, MISSION, STRATEGIC OBJECTIVES, POLICIES AND PROCEDURES THAT SHALL GUIDE ITS ACTIVITIES, INCLUDING THE MEANS TO EFFECTIVELY MONITOR MANAGEMENT’S PERFORMANCE. 44 Obviously, compliance with the above-indicated duty may find its expression in the manual of corporate governance that a covered corporation submits to the SEC. But if the manual duly submitted does not contain one or some of the items enumerated, or what are submitted are not effective or complete, does that constitute a violation of the Revised CG Code, triggering the imposition, after notice and hearing, of the Php200,000 fine? Who is to judge what is “effective”? Another example would Article 6(B) of the Revised CG Code which reads — B) THE BOARD SHOULD BE TRANSPARENT AND FAIR IN THE CONDUCT OF THE ANNUAL AND SPECIAL STOCKHOLDERS’ MEETINGS OF THE CORPORATION. THE STOCKHOLDERS SHOULD BE ENCOURAGED TO PERSONALLY ATTEND SUCH MEETINGS. IF THEY CANNOT ATTEND, THEY SHOULD BE APPRISED AHEAD OF TIME OF THEIR RIGHT TO APPOINT A PROXY. SUBJECT TO THE REQUIREMENTS OF THE BYLAWS, THE EXERCISE OF THAT RIGHT SHALL NOT BE UNDULY RESTRICTED AND ANY DOUBT ABOUT THE VALIDITY OF A PROXY SHOULD BE RESOLVED IN THE STOCKHOLDER’S FAVOR. 45 43 Business World, 24 June 2009. 44 Reformatted and with emphasis supplied. 45 Reformatted and with emphasis supplied. 5 7 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH In a situation where there are issues in the implementation of by-law provisions on proxy, and the Board, upon advice of counsel, takes a position which is deemed restrictive of the right of a stockholder, would that trigger the imposition of the penalty under Article 11 of the Code? Would the fine be imposable against the covered corporation or against the members of the Board? Who is to say what is “unduly restrictive”? If we were to presume that the clear intention under Article 11 is that the penalty imposed would be personally against the offending director or officer, it would have a chilling effect on the exercise of business judgment on the part of the Board of Directors, and would even discourage qualified professional directors to accept appointment to public companies simply because they are not certain exactly what action or inaction would constitute punishable offense under said provision. There is a similar all-encompassing penalty clause under Section 144 of the Corporation Code, 46 and our comments on whether an imposition of penalty may be achieved thereunder are worth quoting in this paper: Looking at the language of Section 144 of the Corporation Code, it seems all-encompassive in nature as to impose criminal liability for “[v]iolations of any of the provisions of this Code or its amendments not otherwise specifically penalized therein.” . . . It is difficult to construe Section 144 of the Corporation Code to mean that all non-compliance with the provisions of the Corporation Code would be criminally punishable. For example, under Section 26 of the Corporation Code, it is provided that within thirty (30) days after the election of the directors, trustees and officers of the corporation, the secretary, or any other officer of the corporation, shall submit to the SEC, the names, nationalities and residences of the directors, trustees and officers elected. If a corporate secretary fails to comply with this provision, would he then be subject to a criminal penalty under Section 144? 46 SEC. 144. Violations of the Code.—Violations of any of the provisions of this Code or its amendments not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand (Php1,000.00) pesos but not more than ten thousand (Php10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than five (5) years, or both, in the discretion of the court. If the violation is committed by a corporation, the same may, after notice and hearing, be dissolved in appropriate proceedings before the Securities and Exchange Commission; Provided, That such dissolution shall not preclude the institution of appropriate action against the director, trustee, or officer of the corporation responsible for said violation: Provided, further, That nothing in this section shall be construed to repeal the other causes for dissolution of a corporation provided in this Code. 5 8 IBP JOURNAL Cesar L. Villanueva Such a construction would seem too harsh, and effectively discourages competent and well-meaning individuals from accepting positions within the corporate setting. It would then make the corporation a very unattractive medium for commerce. x x x In effect, the broad coverage of Section 144 is meaningless since it is applicable only to Section 74 of the Code. If that is the legal effect, then it could be argued that the Legislature, when it enacted Section 144 of part of the Corporation Code, had not intended it to be a practically useless provision since the penal sanctions provided therein could have effectively been stated in Section 74 if it is indeed the only violation applicable to said provision. However, such a position fails to consider that indeed Section 144 was meant to be the over-all penal sanction under the Code, if and when the Legislature deems it appropriate to impose a penal sanction for violation thereof not only based on the current provisions of the Code, but also “its amendments” in the future. It should also be noted that although a penal provision like Section 144 is usual in special laws, nevertheless, the implementation of the principle dura lex, sed lex to such penal provisions under most special laws is without controversy because the subject thereof is limited and the acts covered therein are clearly defined. Such position cannot be equated to Section 144, since the Corporation Code, indeed is a “code” that necessary covers a broad subject and almost innumerable acts. 47 47 VILLANUEVA, PHILIPPINE CORPORATE LAW (2001 ed.), at pp. 870 – 873. 5 9 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH ADR System for Public Companies The Revised CG Code has introduced as one of the “Duties and Functions” of the Board of Directors of a public company, the setting up of a system of dispute resolution, thus: F) Responsibilities, Duties and Functions of the Board x x x 2. Duties and Functions To ensure a high standard of best practice for the corporation and its stockholders, the Board should conduct itself with honesty and integrity in the performance of, among others, the following duties and functions: x x x . J) Establish and maintain an alternative dispute resolution system in the corporation that can amicably settle conflicts or differences between the corporation and its stockholders, and the corporation and third parties, including the regulatory authorities. x x x . 48 The establishment of an alternative dispute resolution system as part of the features of Philippine public companies is very laudable. The slow grind of the Philippine judicial process which has discouraged investments in the Philippine market has compelled even the Supreme Court to set up special commercial courts to handle corporate cases and issue special rules of procedure. In addition, the Supreme Court has formally adopted mediation proceedings that must be resorted to by the parties before formal judicial proceedings can be pursued. Perhaps the best way by which the SEC, being the government agency granted control and supervision over corporate media, can further advance the way toward an Alternative Dispute Resolution system for Philippine public companies is to set up a formal ADR Panel that can have mandatory enforcement in matters pertaining to conflicts or differences between corporations and their shareholders and investors. In a study done for the Asian Development Bank on the ADR system of the Philippines, it was determined that the most successful system is the Construction Industry Arbitration Council (CIAC), which was mandated through the decree 48 Reformatted. 6 0 IBP JOURNAL Cesar L. Villanueva powers of Pres. Ferdinand Marcos, and has become a reliable manner of resolving conflicts in the construction industry. The impetus behind the CIAC’s success lies in two factors, namely, (a) that it was statutorily mandated, so that construction industry players had no choice but to resort to arbitration and could not “rely” upon the slow grind of judicial proceedings to stymie legitimate complaints or claims; and (b) the arbitration process was being overseen by the construction industry’s own experts and leading advocates, who understood the business and technical nuances of the industry. Even well-trained RTC commercial court judges are really no match to the expertise that SEC officers, corporate and business practitioners have on issues and intricacies arising within the Philippine public companies system. Perhaps the SEC may oversee the establishment and operation of the “Public Companies Arbitration Council” and making resort to PCAC arbitration mandatory through the issuance of a formal SEC memorandum, pursuant to its “vast” quasi-legislative powers under Section 72 of the Securities Regulation Code, thus — SEC. 72. Rules and Regulations; Effectivity. - 72.1. This Code shall be self-executory. To effect the provisions and purposes of this Code, the Commission may issue, amend, and rescind such rules and regulations and orders necessary or appropriate, including rules and regulations defining accounting, technical, and trade terms used in this Code, and prescribing the form or forms in which information required in registration statements, applications, and reports to the Commission shall be set forth. For purposes of its rules or regulations, the Commission may classify persons, securities, and other matters within its jurisdiction, prescribe different requirements for different classes of persons, securities, or matters, and by rule or order, conditionally or unconditionally exempt any person, security, or transaction, or class or classes of persons, securities or transactions, from any or all provisions of this Code. 49 Failure on the part of the Commission to issue rules and regulations shall not in any manner affect the self-executory nature of this Code. x x x 50 49 Emphasis supplied. 50 Emphasis supplied. 6 1 VOLUME 35 NUMBER 1 (AUGUST 2010) Revised Code of Corporate Governance: A REACTIONARY APPROACH Conclusions In our work on Philippine Corporate Governance, we have demonstrated that authorities in other disciplines, particularly on Economics and Business Management, have pointed out that the philosophical basis of the Stakeholder Theory was itself not a perfected system — that it was still a work-in-progress. Therefore, it was very difficult under the original SEC Code to evolve a truly efficient system of corporate governance adopting the Stakeholder Theory, as contrasted from the maximization of shareholders’ value. One of the fundamental issues arising under the original SEC Code’s stakeholder doctrine, apart from recognizing that the Boards of Directors of public companies owe duties and obligations not just to the shareholders but to various stakeholders who are affected by the company’s business enterprise, was that the original SEC Code found it difficult to provide a hierarchy of values by which directors and Management of a covered corporation could properly measure compliance with their varied duties to their stakeholders. In other words, the original SEC Code was very good on broad principles ushering in the Stakeholder Theory, but was short on particulars on how the directors were going to meet their duties and responsibilities under such expanded constituencies. We thought then that faced with such a challenge, it was ingenious for the SEC to have provided in the original SEC Code that every covered corporation, in its manual of corporate governance, was mandated to identify its considered stakeholders and define the rights they may have against the company in the operation of its business, thus — iv. Identify the corporation’s major and other stakeholders and formulate a clear policy on communicating or relating with them accurately, effectively and sufficiently. There must be an accounting rendered to them regularly in order to serve their legitimate interests. Likewise, an investor relations program that reaches out to all shareholders and fully informs them of corporate activities should be developed. As a best practice, the chief financial officer or CEO should have oversight of this program and should actively participate in public activities. Under the aegis of such provisions in the original SEC Code, it would ensure to covered companies that as the Stakeholder Theory is formally adopted into Philippine jurisdiction, it did not turn out to be an open-ended affair where the Boards of Directors of public companies were not quite sure of the extent of their duties and responsibilities under a system of expanded constituencies, and be able 6 2 IBP JOURNAL Cesar L. Villanueva to define for themselves precisely what they considered to be the extent of the rights of such identified stakeholders. The afore-quoted provision, of course, no longer appears in the Revised CG Code, for instead of being able to evolve the system of stakeholdership for Philippine public companies, the SEC seems to have lost the heart and just decided to go back to the old corporate maxim that the duty of the Board of Director of every corporation is to maximize its profits. What began as a bold venture into a cutting-edge Corporate Governance system seems to have come to an end, at least insofar as the SEC is concerned. There was no denying that adopting the Stakeholder Theory as the cornerstone of our system of good corporate governance for Philippine public companies was no easy task; but considering the scarce resources that we have in this country, most of it in the corporate coffers, it was an adventure worth pursuing to a successful end. 6 3 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals Symbolic Speech In The Workplace Comments on NUWHRAIN v. Court of Appeals Florin Ternal Hilbay* Free speech is a term denoting that basket of doctrines in constitutional law referring to the extent of the right of an individual, organization, or corporate entity to engage in certain expressive or communicative activities in relation to the government, any of its officers, any entity assuming public or quasi-public status or any other matter that impacts public interest. As a core component of the Bill of Rights, it is traditionally categorized as a tool that serves to calibrate the various kinds of relationships that bind the individual and the State. A person may use free speech to criticize the government 1 or religious beliefs, 2 to sell or advertise a product 3 or an idea, 4 compel the disclosure of information 5 or immunize oneself from compelled disclosure, 6 read or disseminate “dangerous” ideas 7 or enjoy sexually explicit expression, 8 and express oneself through various forms of art. 9 Being an item of constitutional law, it is axiomatically regarded as forming part of the discourse of “the public,” as opposed to its opposite heuristic, “the private.” * ASSISTANT PROFESSOR & ENRIQUE CHAN PROFESSORIAL CHAIR IN LAW, UNIVERSITY OF THE PHILIPPINES, COLLEGE OF LAW. A.B. (University of Santo Tomas), Ll.B. (University of the Philippines), Ll.M (Yale Law School). This Article is an expanded work on the topic NUWHRAIN & Free Speech discussed in a lecture-forum titled “Strike-Ing Hairstyles: NUWHRAIN, Labor Rights & Free Speech” sponsored by the Institute of Human Rights on 8 July 2009. I thank Prof. Barry Gutierrez for the invitation to that lecture-forum. I thank Mary Anne Raniola and Tracy Ong for their assistance. 1 See United States v. Bustos 37 Phil. 731 (1918); Soliven v. Makasiar, 167 SCRA 393 (1988); Primicias v. Fugoso, 80 Phil. 75 (1948); Reyes v. Bagatsing, 210 Phil. 457 (1983); Bayan v. Ermita, 488 SCRA 226 (2006); Cox v. Louisina, 379 U.S. 536 (1965); People v. Perfecto, 43 Phil. 887 (1922). 2 See MVRS Publications, Inc., et al. v. Islamic Da’wah Council of the Philippines, Inc., et. al., 396 SCRA 210 (2003); Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529 (1996); Cantwell v. Connecticut, 310 U.S. 296 (1940); American Bible Society v. City of Manila, 101 Phil. 386 (1957). See also Ignacio v. Ela, 99 Phil. 346 (1956), (Concepcion, dissenting). 3 See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557 (1980); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977); Thompson v. Western States Medical Center, 535 U.S. 357 (2002); Lorillard Tobacco Corp. v. Reilly, 533 U.S. 525 (2001); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). 4 See Eastern Broadcasting Corporation v. Dans, 137 SCRA 628 (1985); Adiong v. COMELEC, 207 SCRA 712 (1992); Guingging v. Court of Appeals, 471 SCRA 196 (2005); Gonzales v. Commission on Elections, 137 SCRA 471 (1969); Chavez v. Gonzales, 545 SCRA 441 (2008); Soriano v. Laguardia, 587 SCRA 79 (2009); Terminiello v. Chicago, 337 U.S. 1 (1949); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Abrams v. United States, 250 U.S. 616 (1919). 5 See Valmonte v. Belmonte, 170 SCRA 256 (1989). 6 See Akbayan v. Aquino, 558 SCRA 468 (2008); Chavez v. PCGG, 360 Phil. 133 (1998); Neri v. Senate, 564 SCRA 152 (2008), Resolution on the Motion for Reconsideration (25 March 2008). 7 See Gitlow v. United States 268 U.S. 652 (1925), Holmes J., dissenting: “Every idea is an incitement. It offers itself for belief, and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement is the speaker’s enthusiasm for the result.” See also New York Times v. United States, 403 U.S. 713 (1971); Whitney v. California, 274 U.S. 357 (1927). 8 See Stanley v. Georgia, 394 U.S. 557 (1969); Ashcroft v. Free Speech Coalition, 535 U.S. 564 (2002); American Booksellers Association v. Hudnut, 771 F.2s 323 (7 th Cir. 1985); Schad v. Borough of Mount Ephraim, 452 U.S. 61(1981); Gonzales v. Kalaw-Katigbak, 137 SCRA 717 (1985). 9 See Burtsyn v. Wilson, 343 U.S. 495 (1952); People vs. Go Pin, 97 Phil 418 (1955); Gonzales v. Kalaw Katigbak, supra; Iglesia ni Cristo v. Court of Appeals, supra note 3; National Endowment for the Arts v. Finley, 524 U.S. 569 (1998). 6 4 IBP JOURNAL Florin T. Hilbay The reference to the dual categories of “the public” and “the private” as heuristic tools is meant to underscore the reality that, from a certain perspective, these baskets are in fact not so separate from each other, 10 and that, instead of being separately sealed or hermetically tight compartments, they are, in fact, quite porous and intertwined. The law on contracts, for example, falls under the category of the private and yet, no sooner do we start reading the provisions of the Civil Code than we realize that “the law” on contracts is an amalgamation of intensely public policies regulating entry, exit, as well as the terms and conditions of private contracting. 11 The more we look at those private law subjects in law school, the more we realize that they share more characteristics with public law than we have been made to realize by the artificial categories of the curriculum. Ultimately, it turns out that what we can do privately is parasitic on policies that always turn out to be directed towards some public objective. This reality is even more true in the case of labor law, which, among the general categories of law taught in law schools and as a separate subject in the bar examinations, is of a more recent vintage. This is evident in the provisions of the Civil Code, which, as revised in 1950, had a “new” section on “Contract of Labor” 12 10 See Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130 U. Pen. L. Rev. 1349 (1982). 11 A case in point is the Family Code, a subject taught as part of the civil law on private relations. But very little in the Family Code is “private” in the traditional sense that it is the parties that are given the right to choose. To be sure, most of the provisions in the code are state policies on property relations as well as entry and exit mechanisms. Those aspects of family life that may fall under the category of private choice—selection of spouse, number of children, decision to cohabit—are actually not regulated by the code. 12 ARTICLE 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. ARTICLE 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public. ARTICLE 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. ARTICLE 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid. ARTICLE 1704. In collective bargaining, the labor union or members of the board or committee signing the contract shall be liable for non-fulfillment thereof. ARTICLE 1705. The laborer’s wages shall be paid in legal currency. ARTICLE 1706. Withholding of the wages, except for a debt due, shall not be made by the employer. ARTICLE 1707. The laborer’s wages shall be a lien on the goods manufactured or the work done. ARTICLE 1708. The laborer’s wages shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance. ARTICLE 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer. ARTICLE 1710. Dismissal of laborers shall be subject to the supervision of the Government, under special laws. ARTICLE 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee’s own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee’s lack of due care contributed to his death or injury, the compensation shall be equitably reduced. ARTICLE 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer shall be solidarily liable for compensation. If a fellow worker’s intentional or malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff’s fellow worker. See also Section 3 (Contract for A Piece of Work) of the same title and chapter, Art.1713 et seq. 6 5 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals appearing under the chapter on “Work and Labor,” as part of Title VIII, which refers to “Lease.” While the category has an undercurrent of political incorrectness because of its objectifying tendency, it stands as a powerful symbol of what the relationship is all about. This is understandable given the history of labor law legislation in the Philippines, which, just like most other areas of law in the Islands, cannot be historicized without reference to its status as a colony. The relationship between labor and capital under the Spanish regime was a matter of civil—and therefore, private—law. 13 Just like any other item or good in the market, labor was for sale or lease as a form of property held by the laborer which can be bought by those who owned capital. This relationship was but a manifestation of the classical liberal model of the market economy in the 19 th century, where self- interested players in the system were presumed capable enough to take care of themselves because they were rational. Under the law on civil relations, the relationship between labor and capital was a matter of contract and stipulations between the parties were law between them. This meant, first, that the State was under obligation to respect the parties’ agreement which is protected by the non- impairments clause in the form of a constitutional norm 14 or a statutory right; and second, that in case of disagreement, the State was bound to enforce the contractual stipulations agreed upon by the parties. The most famous judicial statement embodying the philosophy behind the relationship between labor and capital is the case of Lochner v. New York, 15 where the U.S. Supreme Court declared unconstitutional a state criminal law regulating such relationship through the device of imposing maximum hours. According to the Court, the right to purchase or to sell labor is part of the liberty protected by the 13 See Spanish Civil Code of 1889, Book IV (Obligations & Contracts), Title VI (Contracts of Lease), Chapter III (Work & Labor). Section I, on Labor of Servants and Wage Earners provides— Art. 1583. This class of service may be contracted for a definite or indefinite period, or for any specific work. A hiring for life is void. Art. 1584. A domestic servant hired for a definite period and to be employed in the personal service of his master, or of the family of the latter, may leave the service or be discharged before the expiration of the term; but if the master dismisses the servant without sufficient cause, he shall indemnify him by paying him fifteen days’ wages in addition to the wages due. Art. 1585. In addition to the provisions contained in the preceding articles with respect to masters and servants those of the special laws and ordinances shall be observed. Art. 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time or for certain work cannot leave or be dismissed without just cause, before the fulfillment of the contract. Art. 1587. The dismissal of the servants, mechanics, artisans, and other hired laborers to whom the preceding articles refer gives the right to dispossess them of any implements or buildings of which they may have possession by reason of their duties. 14 CONST., art. III, § 10: “No law impairing the obligation of contracts shall be passed.” See Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934); Ortigas & Co. Limited Partnership v. Feati Bank And Trust Co., 183 Phil. 176 (1979). 15 198 U.S. 45 (1905). 6 6 IBP JOURNAL Florin T. Hilbay Due Process Clause, 16 and thus within the realm of private choice and protected from the intrusive force of public regulation. Events in the United States following the First World War, specifically the so- called Great Depression and the response to it—The New Deal—made policymakers rethink their confidence in the operation of laissez faire’s invisible hand. The industrial revolution created a lot of wealth that no society had ever produced before, but it did little to alleviate the sweatshop system and the institutionalized slavery it produced. This is why, when the market failed, people started looking up to the government for relief. Prolonged recession meant that the market, which was before entitled to full faith and credit, sometimes could not correct itself fast enough, if at all, to dampen and reverse the staggering human cost of an economic downturn. Roosevelt’s New Deal increased the size of government and introduced the administrative state whose hallmark was the regulatory bureaucracy that was meant to police the target concerns of the government—agriculture, securities, banking, infrastructure, and labor. 17 The notion of a liberal state was a creature of the deep mistrust of the kind of institutions that ruled peoples’ lives prior to the rise of the ideal of public accountability. The history of authoritarianism, monarchism, and theocracy in Europe made it essential for those who believed in basic individual freedoms—life, liberty, and property—to argue for statutes enumerating constraints against the use of public power. This fixation with the dangers inherent in governments of unlimited powers directed the focus of constitution-builders in structural limitations like the bill of rights. Through a system of rights, the government itself became the protector of liberty and the guarantor of fairness. Through the principle of universality of rights, the liberty of those with substantial and minimal amounts of property became concerns subject to the equal consideration of governments. Which is why, from this perspective, Lochner simply operationalized the effects of a certain philosophical tradition through the intervention of an activist court that sought to bar the government from experimenting on solutions to the economic crisis. This is also why, from a theoretical standpoint, the events of the 1930s were revolutionary insofar as it meant the blurring of the lines between the public and the private or a recasting of the relationship between the government and the people. Apparently, the Americans found out that the very institution that they could not trust was the very same institution they needed to trust if they wanted to respond 16 Id, at 57: The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in the slightest degree affected by such an act. 17 See Robert S. McElvaine, THE GREAT DEPRESSION (1993); William E. Leuchtenburg, FRANKLIN D. ROOSEVELT & THE NEW DEAL 1932-1940 (1963). 6 7 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals from the shock of a depression. In the specific case of labor, the effect was the creation of labor law as a specific area of legal discourse—with a separate jurisprudence and a separate set of experts. This event meant that the relationship between labor and capital would no longer be a matter of private law; instead, it would now assume a hybrid character whose various aspects are subject to both private choice and public policy. A Dangerous Equivalence The NUHWRAIN Decision. I introduce these remarks in the context of the Supreme Court’s decision in NUWHRAIN v. Court of Appeals, 18 which upheld the respondent court’s decision terminating the services of union officers for violation of the hotel’s grooming standards. 19 The case grew out of a labor dispute between NUWHRAIN and the management of Dusit Hotel. In 2000, the parties were negotiating a collective bargaining agreement. When a deadlock ensured, NUWHRAIN decided to file a notice of strike. Conciliation proceedings also failed, thereafter followed by a strike vote by the union. In the meantime, and within the mandatory 30-day cooling off period, some union members decided to go to work “sport[ing] closely cropped hair or cleanly shaven heads.” 20 The response of Dusit Hotel was to prevent these workers from entering the premises on the ground that they were in violation of the hotel’s grooming standards. 21 In retaliation, the union staged a picket outside the hotel premises. 22 Dusit Hotel responded by preventing other union members from entering the hotel, causing these workers to join the picket. 23 Suspension orders were then issued by the hotel in relation to the following charges: violation of the duty to bargain in good faith; illegal picket; unfair labor practice; violation of the hotel’s grooming standards; illegal strike; and commission of illegal acts during an illegal strike. 24 Eventually, the hotel terminated the services of twenty-nine (29) union officers and sixty-one (61) members, suspended eighty-one (81) employees for thirty days, forty-eight (48) employees for fifteen days, four (4) employees for ten days, and three (3) employees for five days. 25 The Supreme Court divided the issues into two, focusing on the question of whether or not the following acts were legal: first, reporting for work with bald or cropped hairstyle (18 January 2002); and second, the picketing of the hotel premises 18 570 SCRA 598, G.R. No. 163942 (11 November 2008). The full title of the case is National Union of Workers in the Hotel Restaurant and Allied Industries (NUWHRAIN-APL-IUF) Dusit Hotel Nikko Chapter v. Court of Appeals. 19 More precisely, the decision of the Court of Appeals was affirmed insofar as the union officers were concerned and modified with respect to the union members, who were reinstated without backwages. 20 Supra note 19, at 604. 21 Id. 22 Ibid. 23 Ibid. 24 Ibid. 25 Id, at 605. 6 8 IBP JOURNAL Florin T. Hilbay (26 January 2002). For purposes of analyzing the case, I shall focus on the first issue, which, in any case, is determinative of how the entire litigation turns. The Court listed down four justifications for upholding the dismissal of the employees— First, the Union’s violation of the hotel’s grooming standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the Hotel and was, therefore, not a protected action. 26 Second, the Union’s concerted action which disrupted the Hotel’s operations clearly violated the CBA’s “No Strike, No Lockout stipulation.” 27 Third, the Union officers and members’ concerted action to shave their heads and crop their hair not only violated the hotel’s grooming standards but also violated the union’s duty and responsibility to bargain in good faith. 28 Fourth, the Union failed to observe the mandatory 30-day cooling off period and the seven-day strike ban before it conducted the strike on 18 January 2002. 29 The Doctrinal Consequences of NUHWRAIN. Even from the standpoint of doctrine, NUHWRAIN should already be a matter of interest. This is because of the curious fact that the union members did not stop working until they were prevented by Dusit Hotel from entering the workplace when they showed up for work. What they did was to cut short or lose their hair. This is a very important fact considering the Labor Code’s definition of a strike under Art. 212(o) as “any temporary stoppage of work by concerted action of employees as a result of an industrial or labor dispute.” The reality is that the “concerted action of the employees” brought about by their “labor dispute” with the hotel is nowhere near how people would normally understand “temporary stoppage of work.” 30 To stop working temporarily means to refuse to perform the job for which one is hired, traditionally understood as not appearing in the workplace or, whether or not work is done in a space controlled by the employer, by not creating the product or performing the service one is engaged to do. “Stoppage” produces material consequences measurable in terms of the amount of products churned out by the factory or the loss of revenue arising out of non- performance of a service. In either case, the damage to the employer is evident given that the employees, though engaged in an economic tiff with the employer, are 26 Id, at 613. 27 Id, at 614. ARTICLE XXII—NO STRIKE/WORK STOPPAGE AND LOCKOUT. SECTION 1. No Strikes. The Union agrees that there shall be no strikes, walkouts, stoppage or slow-down of work, boycott, refusal to handle accounts, picketing, sit-down strikes, sympathy strikes or any other form of interference and/or interferences with any of the normal operations of the HOTEL during the life of this Agreement. 28 Ibid. 29 Id, at 615. 30 See Lapanday Workers Union v. NLRC 248 SCRA 95 (1995); Ilaw at Buklod ng Manggagawa (IBM) v. NLRC 198 SCRA 586 (1991); Airline Pilots Association of the Philippines v. Court of Industrial Relations 167 Phil. 14 (1977); Jacinto v. Court of Appeals, 281 SCRA 57 (1997); Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU, et al. v. Sulpicio Lines, Inc., 426 SCRA 319 (2004). 6 9 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals still under its employ and thus expected to produce or serve. But in NUWHRAIN, the employees did report for work and perform the task they were supposed to do, and there is nothing in the decision of the Court referring to any disturbance in the business of Dusit Hotel as a consequence of the employees’ appearing for work wearing hairstyles different from what they had before. Nor was there any insinuation that they performed at sub-par levels such that the revenue of the hotel was affected, even if slightly. We are therefore left with the question whether, in the absence of any material and calculable damage to the hotel, as shown in the evidence, the act of the unionists in expressing themselves through their hairstyle while performing the functions for which they were hired can justifiably constitute a strike within the meaning of the statute. This question takes on considerable value because, as shall be discussed in the next section, the act of the employees could be analogized with the concept of symbolic speech protected by the Free Speech Clause of the Constitution especially in the light of the historical privileging of the rights of labor in Philippine law. For starters, the Court’s reference to the various categories of an illegal strike does not really help and even undermines its conclusions. 31 Nowhere in the authoritative enumeration cited by the Court could one find anything close to what it wanted to justify. Teller’s enumeration was meant to generalize and was not directed at specific forms of striking; nor was it meant to guide judges in categorizing whether those concerted actions by employees that do not fall within the standard definition are legal or not. And so the only way the Court could justify its decision was by interpreting the action of the unionists and holding that it amounted to something beyond the common meaning attributable to the term, that is, by stretching the language and legislating a new standard of action. The most crucial paragraph of the Court’s decision is found below— In view of the Union’s collaborative effort to violate the Hotel’s Grooming Standards, it succeeded in forcing the Hotel to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments or service units, which in either way would disrupt the operations of the Hotel. This Court is of the opinion, therefore, that the act of the Union was not 31 The NUWHRAIN Court, citing Toyota Motor Phils. Corp. Workers Association v. National Labor Relations Commission, further citing Ludwig Teller, enumerates the so-called categories— (1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or (2) [when it] violates a specific requirement of law, [such as Article 263 of the Labor Code on the requisites of a valid strike]; or (3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or (4) [when it] employees unlawful means in the pursuit of its objective, such as widespread terrorism of non- strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or (5) [when it] is declared in violation of an existing injunction [such as injunction, prohibition, or order issued by the DOLE Secretary and the NLRC under Art.263 of the Labor Code; or (6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.” 7 0 IBP JOURNAL Florin T. Hilbay merely an expression of their grievance or displeasure but, indeed, a calibrated and calculated act designed to inflict serious damage to the Hotel’s finances or its reputation. Thus, we hold that the Union’s concerted violation of the Hotel’s Grooming Standards which resulted in the temporary cessation and disruption of the Hotel’s operations is an unprotected act and should be considered an illegal strike. 32 The operative word in the language of the Court is found in the last sentence: considered; and the rhetorical strategy for arriving at this conclusion is that of necessity. Looking at the facts of this case, one should immediately notice that the responsibility for the actual strike—the picketing itself—rests on the answer to the question: who is to blame for the escalation of this economic war? The hotel or the union? It goes without saying that if the union members actually did stop working, the Court would have simply applied the Teller formulation in a rather straightforward manner and this incident would have ended up as just another labor matter. But precisely because the unionists did not stop working until they were prevented from entering the premises of the hotel (because of their violation of the grooming standards), the Court had to preliminarily determine who was at fault for the eventual strike. The union says the refusal to allow them to work triggered the picketing, while the hotel asserts that the employees’ (some of them, at least) hairstyle was unacceptable. According to the Court, the effect of the union members sporting short hairstyle was to force the hand of the hotel, compelling it to bar the entry into the premises of employees who suited up for work. This strategy essentially foreclosed any possibility of resolving the issue of violation of the grooming standards separately from the problem of the picketing that ensued. Moreover, it allowed the Court to transfer to the employees the responsibility of the hotel for having prevented the workers from entering the premises. Lack of choice on the part of the hotel meant that the employees themselves sealed their faith by cutting short their hair. It is noteworthy, however, that strike is a form of action evoking dissent, and as such is similar to the action of the employees cutting short their hair, given the context of this case. But, at the same time, “strike” is a formally defined term under the Labor Code, with specific consequences very different from the consequences of protesting in any other manner. For example, a disgruntled group of employees who ends up distributing defamatory materials against their supervisor would be liable within the company for violation of some ethical standards and outside of it for civil damages or even violation of criminal laws. But a group of employees who engage in 32 Supra note 19, at 613-614. 7 1 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals an illegal strike suffer from liabilities defined by the Labor Code itself. 33 Under the law, employees are allowed to impair the operations of the employer in order to equalize the relationship between them. This is why the union is held to a higher standard of accountability for the illegal use of such a powerful weapon. This assumes, however, that the employees held liable did engage in a strike as defined by the statute whose defining characteristic is a temporary stoppage of work. Any other action of the employees that burdens or damages the employer is subject to rules other than the law on strikes. The doctrinal shift is therefore the creation of an equivalence between, on the one hand, concerted action which is not stoppage of work and, on the other, striking as traditionally understood under the Labor Code and so interpreted by the Supreme Court. In essence, what the Court has done is to expand the definition of a strike to cover any concerted action that purportedly damages the employer in the course of an economic dispute. Whereas before, the understanding was that strikes as defined by law were construed in the physical sense of people refusing to work and thus impliedly damaging the business of the employer. Today that definition has been modified to the extent that refusal to work may, as in NUWHRAIN, no longer be an element so long as damage to the employer as a consequence of the concerted action may be inferred. This is a momentous shift in the original balance of power between labor and capital insofar as the decision places the potential for greater punishment for collective activity not involving temporary work stoppage. In the specific case of NUWHRAIN, the cost of this judicial expansion is the decimation of the core of officers of the union, as it sanctioned the dismissal of twenty-nine (29) union leaders. It can be supposed that an equivalence can arguably be made in those instances where the employees do not stop working but nonetheless inflict damage on the employer, as if they did not work at all. Or where the employees use the opportunity to work precisely to mimic the effects of a strike. Definitely, workers who are ill- motivated can be as dangerous when they are inside the premises as when they are outside. But one would think that, given the potential dangers of legislating into the law an equivalence of this nature, the Court would have been more cautious and 33 Id, at 616-617: “What then are the consequent liabilities of the Union officers and members for their participation in the illegal strike? Regarding the Union officers and members’ liabilities for their participation in the illegal picket and strike, Art. 264 (a), paragraph 3 of the Labor Code provides that ‘[a]ny union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. . . .’ The law makes a distinction between union officers and mere union members. Union officers may be validly terminated from employment for their participation in an illegal strike, while union members have to participate in and commit illegal acts for them to lose their employment status. Thus, it is necessary for the company to adduce proof of the participation of the striking employees in the commission of illegal acts during the strikes.” (internal citation omitted). See also: Labor Code of the Philippines, Book V, Title 1, Chapter IV, Art. 272: Penalties. – (a) Any person violating any of the provisions of Article 264 of this Code shall be punished by a fine of not less than one thousand pesos (Php1,000.00) nor more than ten thousand pesos (Php10,000.00) and/or imprisonment for not less than three months nor more than three (3) years, or both such fine and imprisonment, at the discretion of the court. Prosecution for the same act under the Revised Penal Code, and vice versa. (b) Upon the recommendation of the Minister of Labor and Employment and the Minister of National Defense, foreigners who violate the provisions of this Title shall be subject to the immediate and summary deportation by the Commission on immigration and Deportation and shall be permanently barred from re-entering the country without the special permission of the President of the Philippines. 7 2 IBP JOURNAL Florin T. Hilbay erected standards to ensure the reasonableness of the judicial legislation. But we can search the decision in vain for any concrete basis for the damage to Dusit Hotel resulting from the presence of employees sporting short hair. According to the Court, “[t]he appearances of the Hotel employees directly reflect the character and well-being of the Hotel, being a five-star hotel that provides service to top-notch clients. Being bald or having cropped hair per se does not evoke negative or unpleasant feelings. The reality that a substantial number of employees assigned to the food and beverage outlets of the hotel with full heads of hair suddenly decided to come to work bald-headed or with cropped hair, however, suggests that something is amiss and insinuates a sense that something out of the ordinary is afoot. Obviously, the Hotel does not need to advertise its labor problems with its clients.” 34 This is partially true, and what is missing is, unfortunately, what also happens to be the most important. The hotel certainly has some right over the way its employees appear especially given the enterprise in which it is engaged. But this is only the beginning of the analysis, not the end. The hotel needs to establish several things: first, evidence that customers noticed something was in fact “amiss.” That the Court itself said that wearing short hair does not per se evoke “unpleasant feelings” means that the hotel must supplement its claim with evidence of negative reactions on the part of customers. This is even more relevant considering that hotels, by the nature of their business, cater to transients. Permanent residents of a locality might be more sensitive to radical changes in the way their neighbors look, but those who stay in hotels generally have no expectation of consistency in the looks of the employees that assist them. Second, the hotel should establish that the reaction of the customer was in fact negative. There are many ways of reacting to the novelty of seeing a good number of short- haired hotel employees—it might be that customers would think that this was pursuant to a new hotel policy; it might be curiosity, which may or may not lead to inquiry; in case they inquire, it might be sympathy or lack of sympathy; or they might show a stunning lack of interest. In the absence of a negative reaction, we cannot even begin to speak about whether the hotel suffered as a consequence of the concerted action. Third, the hotel must be able to establish damage, whether reputational or otherwise. Because the equivalence rests on the assumption that employees who show up for work to sabotage the employer are no different from those who stop working, it is indispensable that the employer is actually able to establish the damage and its extent. In the absence of material damage, the equivalence fails and the Court cannot consider the employees to have engaged in a strike. But because the Court actually does so in NUWHRAIN, we now have this dangerous equivalence as a standing precedent. So far, what I have done is focus on the doctrinal implications of this new understanding, limiting the analysis to its effect on existing jurisprudence and with no reference to an external or policy critique. This is intentional, as my purpose is to show that the decision is faulty not only (ultimately) from an external perspective 34 Id, at 613. 7 3 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals but also from an internal one. The use of doctrinal tools to study the case is meant to establish that, by the very terms of the current jurisprudence, the Court has veered away from settled understanding and quite dangerously so given its loose treatment of the equivalence between striking and working with the intention of publicizing one’s disagreements with an employer. In the next section, I try to push further this analysis by introducing a constitutional angle, in the form of an analogy, to this case. In sum, the idea is to look at the concerted action of the employees as a form of expression that is subject to some protection by the legislature, if not the constitution. This completes the picture I presented in the introduction which dealt with the public nature of labor law, and sets up the conclusion that workers have an analogous right to engage in certain types of protected speech, with the correlative insight that any form of regulation to sanction such expression should be subjected to some higher standard of scrutiny. Labored Speech I introduced this article with a discussion of the old critique about the wobbly dichotomy between the categories public and private in general, and in particular in the case of labor legislation. The purpose of this introduction was to establish the possibility of borrowing public law-type of analysis in private law, in the hope of expanding the parochialism of purely doctrinal critique and establishing the link between policy and doctrine. At the same time, the technique of analysis that follows is itself doctrinal, only this time focusing on constitutional law as applied to labor relations. This itself should allow for a wider lens with which to view the facts of NUWHRAIN, as constitutional law is more openly embracive of resorts to policy than labor law. Thus, in a limited sense, the section that follows is an external critique. Speaking but not speaking. Free speech is traditionally understood as the right to speak freely with the use of the word, whether through speech or in writing. 35 In addition, as part of the Bill of Rights, it is considered an important item in that basket of legal shields and swords the citizen can use against the State. It is thus generally held that the Bill of Rights mediates the relationship between State and citizen, but not between citizen and citizen. 36 The understanding that speech is about speaking and writing turns out to be very difficult to operationalize in cases that clearly involve expression, though not with the use of traditional implements such as the voice box or paper. For while it is true that the stereotypical manifestation of free speech is and has been about publishing one’s thoughts in speech or writing, it does not exhaust the possibilities for the creative use of the right. It is in these cases where the tug-of-war between the State and the citizen becomes more interesting. The reason for this is that whenever 35 Thomas Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION (1970). 36 See People v. Marti, 193 SCRA 57 (1991). 7 4 IBP JOURNAL Florin T. Hilbay the citizen engages in a traditional form of expression the State is held to a very high standard of justification for its attempts to regulate the content of that expression. Be it the incitement 37 or the clear and present danger 38 test, the State will find its case very difficult to win, given that content-based regulations raise a lot of judicial suspicion. 39 Most importantly, because traditional forms of expression usually do not use any medium within the control of government, regulators are left with nothing to regulate other than the content of the expression itself and thus without any plausible justification to intrude. However, the case is different when the speaker decides to use a regulated medium such as the airwaves 40 and certain public places 41 or when the expression is tied to an act that may itself be subject to regulation. 42 A species of the latter set of cases involve so-called symbolic speech or expression that is in the form of an act that does not make use of the voice box or writing device. In the United States, jurisprudence has developed with respect to these forms of expression, the effect of which has been the creation of a test for content-neutral forms of regulating speech with action components. Because these situations sometimes involve matters in which the government has some right to regulate, the test focuses not on the content of the act (which is still considered an expression) but on the legitimacy of the government’s regulation of the non-speech component of the act. The classic cases involving symbolic speech are those relating to the expression of anti-war advocates: United States v. O’brien 43 and Texas v. Johnson. 44 The O’brien case, after which the so-called O’brien test was named, involved resistance against the draft in the form of the destruction of the draft card. In some ways similar to Aguinaldo’s act of tearing of the cedula, the destruction of the draft card was meant to dramatize the quasi-slave status of a draftee. It so happened that in the case of Mr. O’brien, the congress amended the draft statute in order to penalize precisely such an act of destruction. Convicted for tearing his draft card, O’brien argued that his act was speech protected by the First Amendment which, in turn, covers “communication of ideas by conduct.” 45 The U.S. Supreme Court, while recognizing 37 Brandenburg v. Ohio, 395 U.S. 444 (1969), at 447: “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 38 Schneck v. United States, 249 U.S. 47 (1919); Dennis v. United States, 341 U.S. 494 (1951). 39 See Boos v. Barry, 485 U.S. 312, 334 (1988); Burson v. Freeman, 504 U.S. 191 (1992); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). 40 See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969). 41 See Bayan v. Ermita, supra note 2; Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). 42 See Virginia v. Black et al., 538 U.S. 343 (2003); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. Larue, 409 U.S. 109 (1972); Schneider v. State, 308 U.S. 147 (1939). 43 391 U.S. 367 (1968). 44 491 U.S. 398 (1989). 45 O’brien, supra at 376. 7 5 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals the speech component of the act, also held that the government had legitimate justification for criminalizing the intentional destruction of the card. As a form of compromise, it formulated what has become the canonical standard for scrutinizing content-neutral regulation. In essence, it is a level of scrutiny lower than strict scrutiny but higher than mere rational basis standard. The O’brien test holds that a government regulation is sufficiently justified— (a) if it is within the constitutional power of the Government; (b) if it furthers an important or substantial governmental interest; (c) if the governmental interest is unrelated to the suppression of free expression; and (d) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 46 The test is meant to strike a balance between the intertwined interests of the government over a particular object or medium, and the free speech rights of a speaker. In operation, the O’brien test is a way to determine (1) whether or not the regulation is directed at speech, and (2) if not so directed at speech, whether the regulation is justifiable even if it incidentally burdens speech. The consequence is that, if the regulation mainly targets the expressive content itself, the O’brien test is inapplicable even if the government may have some justifiable reason for passing the statute involved. This is exactly the case in Texas v. Johnson which involved the constitutionality of the petitioner state’s proscription against the “desecration of a venerated object.” 47 In this case, Gregory Lee Johnson was prosecuted for desecrating the American flag, which he burned on the occasion of the Republican National Convention in 1984. He challenged the constitutionality of the statute on the ground that he was engaged in symbolic speech. The U.S. Supreme Court upheld his claim and held that the statute was content-based, 48 which meant that the preservation of the flag as a symbol of nationhood and national unity, while commendable, could not be enforced through the criminal justice system without infringing free speech rights. It therefore subjected the State’s asserted interest in preserving the special symbolic character of the flag to the most exacting scrutiny. 49 Symbolic speech in labor relations. While private corporations such as Dusit Hotel are generally entitled to greater protection from government intrusion than are 46 Id, at 377. 47 Johnson, supra at 400. 48 According to the Court, “Johnson was prosecuted because he knew that his politically charged expression would cause ‘serious offense.’ If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law; federal law designates burning as the preferred means of disposing of a flag ‘when it is in such condition that it is no longer a fitting emblem for display,’ …and Texas had no quarrel with this means of disposal. The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others.” Id, at 411. 49 Id, at 412. 7 6 IBP JOURNAL Florin T. Hilbay public corporations, there are several reasons that justify applying, by analogy, the concept of symbolic speech and the test that comes with it, in the field of labor relations— First, the special consideration given by the Constitution to labor. The relationship between labor and capital has never been accepted in this jurisdiction as purely a matter of contract. Special regard has always been given, both at the level of the Constitution and of the law, to the position of labor given the radical inequality of its position in comparison with capital. Unlike many areas of private life that have been left untouched by the Constitution, labor law has traditionally been the specific target of constitutional norm-building. Doubtless this has to do with the problem of insurgency in the Philippines which has been viewed generally as rooted in the oppressed status of labor. Second, the regulatory history of the Philippines. As a jurisdiction with a long history of colonialism, it is understandable that the standard relationship between the public and the private will be one characterized by a longstanding tendency towards regulation. Unlike in the United States where government intrusion into private matters has traditionally been suspect both on pragmatic and ideological grounds, regulation in the Philippines through the use of police powers has generally been held sufficient to tilt the balance in favor of expansion of public powers. This is emphatically the case in respect of strikes, a highly regulated area of labor law. The ability to strike is a creation of law. By refusing to work, the workers are actually expressing their dissatisfaction over the economic conditions of their work. The traditional liberal response for this is that those unsatisfied with the conditions of their employment should pack up, leave, and find themselves another job. Through the recognition of the workers’ right to strike, the law recognizes the right of the workers to retain their employment while pressuring the employer to give in to their demands, and in the meantime allowing strikers to impair the employer’s operation and inflict damage. We may perhaps even go so far as to say that the right to strike is an implicit recognition of the employees’ investment in the employer’s enterprise, and that striking is merely a tool by which these investors are able to eke out their fair share of the profits of the business. Third, the close relationship between striking and speaking. The legal recognition of the right to strike is more than just a grant of the power to stop working and impair the employer’s business. It is also about the power to publicize certain aspects of the relationship between the employees and the outfit that they serve. When employees strike, they do not simply stop working. They usually engage in a public relations war with the employer through picketing, leafleting, and other means of communicating their economic concerns. In a way, this is equivalent to the right of the citizen to petition the government for redress of grievance. 50 50 CONST. art. III, §4; See De la Cruz v. Court of Appeals, 265 SCRA 299 (1996); Bangalisan v. Court of Appeals, 276 SCRA 619 (1997) ; Luzviminda De La Cruz v. Court of Appeals, 305 SCRA 303 (1999); Alipat v. Court of Appeals, 308 SCRA 781 (1999); Everdina Acosta v. Court of Appeals, 334 SCRA 486 (2000). 7 7 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals A strike is not narrowly confined to the affairs between the employer and the employees. Picketing and leafleting are in fact public demonstrations of the economic environment in a particular business. Striking employees do not only appeal to the owners of the firm; they are, in a real sense, also presenting their case to the public. In some ways, this relationship mimics that of the state and its citizens. When employees strike, they are in effect demanding a reconfiguration of their economic relations with the employer. In other words, they are engaging the employer in a battle for the terms of sharing of the wealth of the firm. Viewed in this light, it becomes easier to acknowledge the parallelism between the situation of striking employees and citizens engaging in expressive activities and petitioning the government for redress of grievances. If citizens are allowed to express themselves in symbols and are protected by the Constitution through the O’brien test, and the justifications offered above establish a plausible equivalence between speaking and striking, then the Court should be able to apply the same test insofar as the evaluation of the employer’s ability to sanction employees for their symbolic speech is concerned. I argue that this analogous application provides the Court with a better template for regulating the relationship between the employer and employees in this area of concern, especially given the strong normative concern of the Constitution towards labor. Cropped- hair As Symbolic Speech. Applying the O’brien test to weigh the justification for sanctioning the union employees involves fitting the elements of the standard to the actions of the employer in relation to what the employees did. This is a rather straightforward process, the goal of which is to articulate and highlight the reasonableness of the action of the employer in penalizing the employees for their concerted action which did not involve stoppage of work. For purposes of applying the test, we can restate the O’brien test in the following terms— Corporate regulation of employee’s conduct is reasonable: (a) if it is within the corporate powers of the business; (b) if it furthers an important or substantial business interest; (c) if the regulation is unrelated to the suppression of free expression; and (d) if the incidental restriction on alleged freedoms of the employees is no greater than is essential to the furtherance of that interest. Does Dusit Hotel have the power to sanction union members for sporting cropped hair? Following the amended O’brien test— (a) Does Dusit Hotel have the power to enact regulations controlling the way their employees look? Yes. It is generally conceded that the employer, especially one in the service sector, has the regulatory capacity to control the way its employees 7 8 IBP JOURNAL Florin T. Hilbay look through devices such as a dress code, uniform, etc. and this includes having some control over the way parts of the body are presented, as in this case, through the Hotel’s grooming standards. (b) Does Dusit Hotel’s grooming standards further its corporate interest? Yes. Dusit Hotel’s reputation rests heavily on two things—(1) the quality of the hotel’s building and facilities and (2) the kind of service offered by the management through its staff. The ability of hotels to provide service is immediately judged on the basis of the way the staff relates to its customers, and part of this performance is not only limited to carrying bags, saying customary niceties, giving directions, providing food and other hotel comforts. This performance also includes the visual presentation of the staff to the clients to create a distinctive and pleasing impact. The use of grooming standards to control this visual presentation is legitimately part of the hotel’s attempt to further its corporate interests. (c) Are the grooming standards, as applied to the collective action of the unionists, unrelated to their expression? No. In this case “free expression” relates to the right of the employees to legitimately air their grievances in a manner that does not amount to stoppage of work and does not result in damage to the employer. The fact that they are employees does not, by itself, impair their right to speak. Consider, for example, the action of an employee, or the union itself, in setting up a blog to report on the failed negotiation with Dusit Hotel. So long as no defamatory materials are involved and she is not so contractually bound, a strong argument is available for the position that the employee or the union is within her or its right in reporting and expressing sentiments about the failed negotiation. If it is accepted that the union, as an entity recognized by the labor code, or the employee, has the right to engage in expressive activities that do not impair their functions, then it becomes apparent that the sole basis of the sanction imposed by the hotel is to suppress the expressive activity of the employee or the union. Of course, this does not automatically mean that the employer is at fault or that the expressive activity is immune from regulation. The finding that the grooming standards, as imposed in the specific case of the hotel employees wearing cropped hair, are directed at the content of the expressive activity only means that the employer is held to a higher standard of justification for imposing the sanction. Its implication in this case is that the content-based regulation, as applied, must be justified on the ground that there is evidence of damage on the part of the hotel as a consequence of the expression being communicated, if at all it was so conveyed. Pursuant to this analysis, Dusit Hotel must establish the following evidence: (a) that the employees engaged in collective action; (b) that the intention was to impair the reputation of the hotel; (c) that such intention was communicated to the guests of the hotel; (d) that, as a consequence of the communication, the guests adversely reacted; and (e) the hotel suffered materially from this adverse reaction in terms of impaired goodwill and reputation or reduced sales. 7 9 VOLUME 35 NUMBER 1 (AUGUST 2010) SYMBOLIC SPEECH IN THE WORKPLACE Comments on NUWHRAIN v. Court of Appeals Compare this heightened standard with the decision of the Court and one immediately sees how casually the Court treated the rights of the employees to air their grievances in nonviolent form. Notice that in the decision, the Court three crucial, ungrounded assumptions: (a) that the intention of the members of the union was to impair the business of the hotel by sporting short haircut; (b) that such intention was so communicated to the clients of the hotel; and (c) that damage to the hotel’s reputation or finances ensued as a consequence of the collective action. (d) Is the incidental restriction on alleged freedoms of the employees no greater than is essential to the furtherance of that interest? No. In fact, the restriction amounts to a severe penalty in the form of expulsion or suspension from one’s employment which in effect is an injunction against expression. One can encapsulate the cost of freedom in this case by saying that because some of the unionists decided to cut short their hair, they eventually cut short their employment. This is an astoundingly stiff sanction and an unfair equivalence especially considering that those who bore the brunt of the sanction were the union leaders. This penalty produces the greatest possible chilling effect on the right of unionists, especially their leaders, to bring to bear the power of nonviolent expression into the negotiating table. Applying the re-modeled O’brien test to the situation at bar, we can see how potent the test is in terms of its ability to articulate the details of similar cases in relation to the larger policy questions involved. The great advantage of the test, as one can readily see, is that it forces the Court to weigh the competing claims of the parties not at a speculative level but at a factual level. Using this demand for a detailed articulation, one could make the two-pronged argument that because the sanction imposed by Dusit Hotel was directed solely at the expressive content of the employees’ cropped hair and that the interest sought to be protected by the hotel— prevention of damage to its reputation and goodwill—was not fully shown to have been placed in any concrete danger of impairment, the termination of the services of the employees was unwarranted. Conclusion The policy question that NUWHRAIN presents is this: how should the courts draw the line between protected and unprotected speech in the workplace in the context of a contentious collective bargaining negotiation? This is a very important question of policy given the competing recognition of the importance of capital and labor in the Constitution and the historical tension between them in Philippine society. One the one hand, employers have the right to protect their rights to property which includes the power to control, to a certain extent, both the expression and the appearance of those under their employ; on the other, the contract of employment does not transform employees into unthinking subjects with no capacity to express themselves especially in matters that relate to their welfare. Demarcating this line serves to notify both employers and employees of the rules of the game of economic 8 0 IBP JOURNAL Florin T. Hilbay resource management in the context of the desire of employees to attain dignity while serving the interest of capital. In this article, I have sought to critique the fundamental assumptions by the NUWHRAIN Court primarily by highlighting the analogously constitutional dimensions of the facts of the case. My conclusion is that the Court played it loose by simultaneously equating the actions of the employees with temporary stoppage of work—strike—and turning a blind eye to the non-violent, expressive content of such actions. Constructively, I propose that the court use the O’brien Test in similar cases in order to provide a more detailed justification for sanctioning or penalizing expression by organized labor. The function of the test is precisely to compel judges to articulate more clearly their assumptions that will ultimately serve both employers and employees with more concrete guidelines for determining the legality of their actions. 8 1 VOLUME 35 NUMBER 1 (AUGUST 2010) The Legal Regime Governing the Export of Filipino Workers The Legal Regime Governing the Export of Filipino Workers* Patricia R.P. Salvador Daway** I. Introduction United Nations Secretary-General Ban Ki-Moon encapsulates not only the saga but also the significant contributions of Migrant Workers in the following manner: For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their earnings have built houses, provided health care, equipped schools and planted the seeds of business. They have woven together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link between cultures, societies and economies. Yet, only recently have we begun to understand not only how much international migration impacts development, but how smart public policies can magnify this effect. Indeed, migration is a phenomenon, the importance and extent of which, affecting as it does huge numbers of people the world over cannot be overemphasized. In any country where opportunities for employment available to its ever-growing population are rather scarce, the natural reaction is for the unemployed and even the underemployed to look for the proverbial greener pastures abroad. It has been observed that the “natural progress of things toward improvement” is a natural consequence of “the uniform, constant and uninterrupted effort of every man to better his condition.” 1 More succinctly “(I)n every human being, there is a wish to ameliorate his own condition.” 2 Translated into more concrete terms, there is the “constant effort of most families to give their children a ‘better start’ than they enjoyed themselves.” 3 The Philippines has over eight (8) million overseas Filipinos in over 175 countries and territories worldwide, comprising about ten percent (10%) of the * A paper presented at the Regional Seminar on the Protection of Foreign Workers in Asia Taiwan Labor Law Association November 21-22, 2009 Taipei, Taiwan. ** Associate Dean, University of the Philippines College of Law and Supervisor, University of the Philippines Law Center. 1 Adam Smith, Wealth of Nations, Book II Chapter III. 2 Henry Hazlitt, The Conquest of Poverty, New York Foundation for Economic Education 1996 (1973) p. 159, quoting History of England, Thomas Babington Macualay. 3 Ibid, p. 160. 8 2 IBP JOURNAL Patricia R.P. Salvador Daway Philippine population and 20 percent (20%) of the labor force. 4 The latest census (July 2009) on Philippine population indicates a total of 97,976,603 Filipinos and to date, and the deployment average is 3,377 workers a day. The biggest issue which has bedeviled Overseas Filipino Workers (OFWs, for brevity) is their vulnerability to oppression and exploitation and all kinds of abuses. This raises the question of sufficiency of the laws and programs that the Philippines has in addressing the same. Moreover, the effects of migration are not limited to the OFWs themselves but extend to the social costs on the families that they leave behind, and to the country as a whole considering its reliance on remittances from OFWs. This paper will give a general background of the labor sector in the Philippines, before proceeding to the legal framework governing the deployment of OFWs and then, the effects of the OFW phenomenon. II. General Background A. The Labor Scene In The Philippines The official Labor Force Survey reveals that the number of unemployed persons as of July 2009 was estimated at 2.9 million. This translates to an unemployment rate of 7.6%. The survey indicates that “[o]f the estimated 59.5 million population 15 years old and over in July 2009, about 38.4 million persons were reported to be in the labor force. This translates to a labor force participation rate (LFPR) of 64.6 percent […] Of the estimated 35.5 million employed persons in July 2009, more than half (51.5%) worked in the services sector with those employed in wholesale and retail trade, repair of motor vehicles, motorcycles and personal and household goods sub-sector comprising the largest sub-sector (18.9% of the total employed). Workers in the agriculture sector accounted for 33.6 percent of the total employed, with workers in agriculture, hunting and forestry making up the largest sub-sector (29.5% of the total employed). Only 14.8 percent of the total employed were in the industry sector. Among the various occupation groups, laborers and unskilled workers comprised the largest proportion (33.0%) of the total employed population. Farmers, forestry workers and fishermen were the second largest group, accounting for 16.2 percent of the total employed population.” 5 The same survey reports that employed persons can be categorized into: wage and salary workers, own account workers and unpaid family workers. Wage and salary workers, which comprised 55% of the employed persons work for private households, private 4 L. Cadapan, “Fast Facts on Filipino Labor Migration,” Kanlungan Center Foundation, Inc. (Quezon City: 1999) 7-9 5 Census Press Release, taken from http://www.census.gov.ph/data/pressrelease/2009/1f0903tx.html, accessed on November 12, 2009 8 3 VOLUME 35 NUMBER 1 (AUGUST 2010) The Legal Regime Governing the Export of Filipino Workers establishments, government or government corporations and in own-family operated farm or business. Own-account workers comprised 33.9% while unpaid family workers comprised 10.8%. Those working for private establishments comprised the largest proportion, 40.8% while government workers including those working for government corporations comprised only 8.3 percent of the total employed. While workers in private households comprised 6.0%, the own account workers or self-employed comprised the majority (29.5% of total employed). 6 The survey classifies employed persons as either full-time workers or part- time workers. While full-time workers work for 40 hours or more, part-time workers work for less than 40 hours. As of July 2009, approximately 23.0 million employed persons (64.9%) were working full time, while 34.1% of the total employed worked part-time. 7 With respect to underemployed persons or those who express the desire to have additional hours of work in their present job or to have additional job or to have a new job with longer working hours, the survey estimates them at 7.0 million as of July 2009, placing the underemployment rate at 19.8%. The survey notes that most of the underemployed were working in the agriculture sector (44.1%) and services sector (40.3%) with those in the industry sector accounting for 15.6%. 8 As regards educational groups, the high school graduates comprised more than one-third (33.0%) of the unemployed, the college undergraduates comprised about one-fifth (21.5%), while the college graduates was estimated at 19.7%.” 9 However, data from the private sector paints a slightly different picture. According to the Social Weather Station, a highly reputable private non-stock, nonprofit social research institution, “[u]nemployment reached a record high of 34.2 percent in February[…] This means an estimated 14 million were unemployed, a considerable rise from the previous quarter’s 27.9 percent or estimated 11 million adults, according to the SWS’s First Quarter 2009 survey.” 10 B. The Rationale Behind Migration 1. On the part of the migrant workers In the article aptly entitled “Why Filipinos Prefer to Work Abroad” 11 the writer opines that “[t]he unstable economic and political situation in the Philippines is one of the major causes why most educated and highly skilled Filipinos prefer to work 6 Ibid. 7 Ibid. 8 Ibid. 9 Ibid. 10 SWS survey: Unemployment rate now at 34.2%, Philippine Daily Inquirer, First Posted 05:31:00 05/13/2009, taken from http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090513-204696/SWS-survey- Unemployment-rate-now-at-342, accessed on November 12, 2009. 11 Why Filipinos Prefer to Work Abroad?, http://www.ofw-connect.com/myarticle/why_work_overseas.htm, accessed on November 12, 2009. 8 4 IBP JOURNAL Patricia R.P. Salvador Daway abroad. Filipino workers could not see any hope from their leaders to achieve prosperity for the country.” Low salary rates is also a compelling reason. The writer adds that “[t]o get better education from reputable schools in the Philippines is not cheap for an ordinary Filipino but by the time a worker gets a job in the Philippines, he does not get paid enough to equal his investment on education. Due to this, most Filipino skilled workers get jobs abroad where salary [is] commensurate [to] education, skills, and experience. Sometimes, an OFW can be paid more if he takes a blue- collar job even if he is a degree holder. That is why a lot of degree-holder Filipinos work abroad as maids, sales ladies, construction workers and laborers. Most Filipinos would work on any job as long as it is decent and high paying.” The writer further avers that poor benefits offered in the Philippines is another reason for OFWs’ preference to work abroad. Thus, “[a] foreign-based company can give benefits to employees such as housing, food allowance, medical or health care, dental care, paid leave, or even educational benefits for children but in [the] Philippines, it is very rare to be employed and get most of these benefits.” 2. On the part of the Philippine government In a paper on OFWs and Overseas Migration Programs, 12 it was brought to fore that “[m]igration is not wholly a personal decision motivated by desire for capitalist accumulation, but also reflects the lack of development policies on the part of the government and the lack of satisfactory living and employment opportunities within the home country. […] [T]he government [has] deliberately promoted labor migration as a solution to unemployment and growing national accounts deficits.” The view has been advanced that the reliance on OFW remittances to boost the Philippine economy is the primary reason why the government supports, and institutionalizes, the deployment of Filipino workers abroad. C. Actual situations of OFWs in receiving countries According to Deployment Statistics 13 of the Philippines Overseas Employment Administration, the top ten destinations for both rehires and new hires in 2008 are as follows: 1. Saudi Arabia (28.3%); 2. United Arab Emirates (19.9%); 3. Qatar (8.7%); 4. Hong Kong (8.0%) 5. Singapore (4.3%); 6. Kuwait (4.0%); 7. Taiwan (4.0%); 8. Italy (2.3%); 9. Canada (1.8%); and 10.Bahrain (1.3%). Deployment to other destinations is at 17.4%. According to the same source, the top ten skills for new hires in 2008 are as follows: 1. Household Service Workers (14.8%); 2. Waiters, Bartenders and Related 12 De Guzman, O. Overseas Filipino Workers, Labor Circulation in Southeast Asia, and the (Mis)management of Overseas Migration Programs, taken from http://kyotoreview.cseas.kyoto-u.ac.jp/issue/issue3/article_281.html, accessed on November 12, 2009. 13 Overseas Employment Statistics, from http://www.poea.gov.ph/html/statistics.html, accessed on November 12, 2009. 8 5 VOLUME 35 NUMBER 1 (AUGUST 2010) The Legal Regime Governing the Export of Filipino Workers Workers (4.1%); 3. Charworkers, Cleaners (3.4%); 4. Professional Nurses (3.4%); 5. Caregivers and Caretakers (3.0%); 6. General Laborers/Helpers (2.9%); 7. Plumbers and Pipe Fitters (2.9%); 8. Wiremen-Electrical (2.6%); 9. Welders and Flame-Cutters (2.0%); and 10. Building Caretakers (2.0%). Newly-hired OFWs engaged in other skills are placed at 58.9%. As of 2008, Landbased OFWs comprise 78.83% (New hires at 30.50% and Rehires at 48.33%), while Seabased OFWs comprise 21.17%. As earlier stated, the daily deployment average is 3,377 workers. Of the new hires, 174,928 are male and 163,338 are female. D. The methods of their recruitment Article 18 of the Labor Code bans direct hiring by providing that: “No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor.” This means that the hiring of OFWs must be coursed through the Philippines Overseas Employment Administration (POEA) or through (a) private employment agencies or (b) private recruitment entities which, pursuant to national development objectives, may be allowed under the law to participate in the recruitment and placement of workers. Such participation will be subject to guidelines as may issued by the Secretary of Labor. (Labor Code, Articles 12[f], 13 [c] [d] [e] [f], 14 [a] and 25) The Labor Code regulates private sector participation through requirements pertinent to capitalization, registration fees, bonds and other licensing and reportorial requirements (Labor Code, Arts. 26-33). III. Legal FRAMEWORK A. Major Statutes Governing The Protection Of Ofws The primary statute governing labor standards and labor relations in the Philippines is the Labor Code which is a consolidation of labor and social laws. The Code is meant to afford protection to labor, to promote full employment, to ensure equal work opportunities regardless of sex, race or creed and to regulate the relations between workers and employers. It is also intended to promote human resources development and to insure industrial peace based on social justice. Likewise, the Philippines has a “Migrant Workers and Overseas Filipinos Act of 1995” (RA 8042), which institutes the policies of overseas employment and establishes a higher standard of protection and promotion of the welfare of not only the migrant workers themselves but likewise, their families and for that manner, other overseas Filipinos who are in distress. Most significant in the Labor Code and in the Migrant Workers Act are the provisions which penalize illegal recruitment. 8 6 IBP JOURNAL Patricia R.P. Salvador Daway Under the Labor Code, 14 any recruitment activities undertaken by non-licensees or non-holders of authority are illegal and punishable. It further provides that illegal recruitment, when committed by a syndicate or in large scale, shall be considered an offense involving economic sabotage. The Migrant Workers Act 15 broadens the scope 14 Art. 38. Illegal recruitment. a. Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article. b. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. c. The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. 15 SECTION 6. Definition. — For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non- licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or nonholder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; (e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment ; and (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. 8 7 VOLUME 35 NUMBER 1 (AUGUST 2010) The Legal Regime Governing the Export of Filipino Workers of illegal recruitment by punishing specific acts of illegal recruitment regardless of whether or not the person committing such act is a licensee or a holder of authority. Also of note in the Migrant Workers Act is its provision on deployment which states that: “The State shall deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection and the rights of overseas Filipino workers: (a) It has existing labor and social laws protecting the rights of migrant workers; (b) It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers; (c) It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and (d) It is taking positive, concrete measures to protect the rights of migrant workers (Section 4).” B. The Philippine Constitution Considering the inherent inequality between labor and capital, the framers of the fundamental law of the Philippines enshrined therein provisions which are aimed at leveling the playing field between them. Thus, the Constitution mandates the State to afford full protection to labor, whether based locally or overseas, organized or unorganized. The Constitution likewise mandates the promotion of full employment and equality of employment opportunities for all. Moreover, the Constitution guarantees the so-called seven primary or cardinal rights of all Filipino workers, to wit: (1) right to self-organization, (2) right to collective bargaining and negotiations, (3) right to peaceful concerted activities, including the right to strike in accordance with law, (4) right to security of tenure, (5) right to humane condition of work, (6) right to a living wage, and (7) right to participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. In the fairly recent en banc decision of the Supreme Court of the Philippines, it was held: Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. (Antonio M. Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., GR No. 167614; March 24, 2009) 8 8 IBP JOURNAL Patricia R.P. Salvador Daway C. International Convention The Philippines has signed and ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. As such, the said convention forms part of the law of the land. 16 As the title of the convention suggests, protection is afforded not only to the migrant workers themselves but to their families as well. It recognizes the principles and standards embodied in international instruments concerning human rights in general and migrant workers in particular. Included in the convention are employment rights, the right to freely choose employment, trade union rights, social security rights, the right to health, the right to housing, the right to family unity, the right to education, cultural rights, political rights, and residence rights. In theory, such convention is able to give full protection to migrant workers. However, it is noticeable that most receiving countries have not ratified the convention. Of the top ten destinations of OFWs enumerated previously, none has signed or ratified to date. 17 This implies that the receiving countries are not amenable to the idea of extending full protection and benefits to migrant workers. The problem of the protection of these workers remains in the absence of ratification of the receiving countries. D. Government Agencies in Charge of OFWs 1. Department of Labor and Employment (DOLE) The DOLE is the primary government agency mandated to promote gainful employment opportunities, develop human resources, protect workers and promote their welfare, and maintain industrial peace. 18 2. Overseas Workers Welfare Administration (OWWA) The OWWA is an attached agency of the DOLE. It is the lead government agency tasked to protect and promote the welfare and well-being of OFWs and their dependents. Its two-fold mandate is to deliver welfare services and benefits, and to ensure capital build-up and fund viability. Among its objectives are to: protect the interest and promote the welfare of OFWs in recognition of their valuable contribution to the overall development effort; facilitate the implementation of the provisions of the Labor Code concerning the responsibility of the government to promote the 16 Section 2 of Article II of the Philippine Constitution states that “The Philippines […] adopts the generally accepted principles of international law as part of the law of the land.” 17 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en, accessed on November 15, 2009. 18 Agency Profile from http://www.dole.gov.ph/profile/, accessed on November 12, 2009. 8 9 VOLUME 35 NUMBER 1 (AUGUST 2010) The Legal Regime Governing the Export of Filipino Workers well-being of OFWs; provide social and welfare services to OFWs, including insurance, social work assistance, legal assistance, cultural services, and remittance services; ensure the efficiency of collection and the viability and sustainability of the fund through sound and judicious investment and fund management policies; undertake studies and researches for the enhancement of their social, economic and cultural well-being; and develop, support and finance specific projects for the welfare of OFWs. 19 3. Philippine Overseas Employment Administration (POEA) The POEA is tasked to regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It is also tasked to formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements. In addition to its powers and functions, the POEA is tasked to inform migrant workers not only of their rights as workers but also of their rights as human beings, to instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights. 20 E. NGOs The Philippine Constitution institutionalized the so-called “non-governmental, community-based or sectoral organization” that promotes the welfare of the nation, encouraging its formation under Article II, Sec. 23 thereof. Accordingly, there are at present numerous non-governmental organizations (NGOs) which focus on providing protection and assistance to migrant workers. The NGOs protect rights of not only OFWs but also, of Filipino immigrants and their families as well as promote their welfare consistent with the Constitutional mandate. These help improve the politico-socio-economic conditions of OFWs through policy advocacy, information dissemination, networking, capacity building and direct assistance. Examples of these NGOs are the Center for Migrant Advocacy – Philippines (CMA) and the Katipunan ng Migranting Pilipino, Inc. (Japan). CMA is engaged in the gathering of information, conduct of studies on overseas migration and related concerns and information dissemination, among others. Kapisanan has been providing direct assistance to OFWs and their families including legal assistance to those faced with complaints which may lead to the cancellation of their working visas and eventually, their deportation from the country 19 About OWWA from http://www.owwa.gov.ph/index.php?page=about-owwa, accessed on November 12, 2009. 20 Section 23 of the Migrant Workers Act, as amended by RA 9422. 9 0 IBP JOURNAL Patricia R.P. Salvador Daway of employment. It has also been documenting the cases of Japan-based OFWs who received assistance from Kapisanan. F. Memoranda of Understanding with Foreign Countries In an article 21 posted on the website of the Office of the President, it was said that former President Gloria Macapagal-Arroyo’s international engagements have brought about several hiring agreements with foreign countries. It stated that among the countries that the President visited and which committed to hire more Filipino professionals and skilled workers are Qatar, Saudi Arabia, Canada, Australia, and Japan. The DOLE reported that the Philippine Government entered into a bilateral agreement with South Korea on the employment of Filipino overseas workers and that the Memorandum of Understanding signed between the DOLE and its Korean counterpart in May 2009 provided for the hiring of 5,000 Filipino workers in the Korean manufacturing industry and other sectors within the next ten months. The Philippines likewise entered into MOUs with Alberta, Manitoba, British Columbia and Saskatchewan. The common purpose of these MOUs is to clarify and articulate the participants’ intentions to promote and strengthen areas of cooperation in the fields of labor, employment and human resource deployment and development. However, these MOUs are not legally binding on the parties. This must be so considering that Section 21 of Art. VI of the Constitution provides that “(N)o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” IV. Critical Assessment Admittedly, the major advantage of sending workers abroad is financial, that is, the inflow of remittances. The Department of Economic Research forecasts that OFW remittances by the end of 2009 would amount to US$ 17.1 billion or a growth of 4% from the end-2008 level despite the global economic crisis. University of the Philippines Prof. Randy David in his column 22 published in the most widely circulated newspaper in the country today, the Philippine Daily Inquirer, attributes this fixation with remittances to the dire economic situation of the Philippines and the mass poverty among the people. David avers that “[l]ittle attention, if any, is paid to the proportion of OFW remittances that is set aside for investments in productive capacity. Nor is the government creating meaningful opportunities for OFWs to invest a good part of their earnings in entrepreneurial activity.” Moreover, “it has 21 Demand for Filipino workers abroad expected to hold up, 26 July 2009, from http://www.op.gov.ph/ index.php?option=com_content&task=view&id=25740&Itemid=, accessed on November 12, 2009. 22 David. R., Overseas employment and its effects (in the Philippine Daily Inquirer, 07/18/2009), from http:// opinion.inquirer.net/inquireropinion/columns/view/20090718-215995/Overseas-employment-and-its-effects, accessed on November 12, 2009. 9 1 VOLUME 35 NUMBER 1 (AUGUST 2010) The Legal Regime Governing the Export of Filipino Workers led to the entrenchment of an economic strategy based on labor export that tends to preclude planning for the long-term development of the national economy.” Remittances from workers abroad have become a short-term solution to the problem of finances, not only at the level of the family but more so, at the national level. This approach is problematic in that the Philippines does not seem to address the need to stabilize and improve internal employment conditions and opportunities. Reliance on deployment of workers abroad may pose problems in the future especially if the receiving countries get hit with financial crises which may lead them to lay off Filipino workers. True, we now live in a globalized world. But that does not preclude the necessity of strengthening internal programs especially when it comes to local employment and internal economic sustainability. Another serious concern attendant to the migration phenomenon is with regard to the families that are left behind, most especially the children. It has been reported 23 that about nine million Filipino children under the age of 18 are left behind by one or both parents to work tentatively or live permanently abroad (based on several studies done by non-governmental and government organizations). Although the quality of life, most importantly of the education, of OFWs and their families are improved by remittances, migration also has its social cost in that in the absence of the parents, “technological mechanisms like cellular phones and computers have become the default substitute to personal parenting.” Such modes of communication cannot, in any way, replace the relationship that is formed between the parent and the child when the parent is physically present. The report further reveals that migration of parents is indeed heart-breaking for children, making them long for parental care, get confused over gender roles, be vulnerable to abuse, and even develop consumerist attitudes.” In the extreme, migration may lead to the OFWs abandoning their families in the Philippines altogether. 24 As for the OFWs themselves, problems arise in the area of their protection and welfare abroad. One of the most prevalent issues is imprisonment. It has been reported in Inquirer.net 25 that “[s]ome 3,000 Filipinos are in jail in different countries around the world, according to the Department of Foreign Affairs.” According to the report, about 70% are detained on immigration-related charges, while the rest are detained for common crimes, including theft and drug trafficking. Another concern are the cases OFWs who are abused or maltreated by their employers, usually women domestic helpers who run away from their employers. This is a manifestation of the lack of force and effect of the Philippine laws for the protection of OFWs. As mentioned in a previous section, the Philippines is a 23 Tan, K.J.T., Leaving OFW children behind: Economic benefits vs social costs, from http://www.gmanews.tv/ story/134430/leaving-ofw-children-behind-economic-benefits-vs-social-costs, accessed on November 12, 2009. 24 See, D.A., Cases of abandonment of OFW families rising, October 11, 2007, from http://mb.com.ph/node/ 38315, accessed on November 12, 2009. 25 Esplanada, J.E., 3000 Filipinos in jail overseas, from http://globalnation.inquirer.net/news/breakingnews/view/ 20091110-235374/3000-Filipinos-in-jail-overseasDFA, accessed on November 12, 2009. 9 2 IBP JOURNAL Patricia R.P. Salvador Daway signatory, and has ratified, the ILO Convention on Migrant Workers. However, the lack of ratification on the part of receiving countries renders such convention seemingly useless. Further reform must be made for the protection of migrant workers, not only on the national level, but also in the international sphere. Without such international cooperation, the Philippines will continuously find itself helpless in protecting its workers abroad since it will always be limited by its need to appease the receiving nations, as it is heavily reliant on remittances from these countries. V. Conclusion The problems facing OFWs are both in the national and international levels. They affect the OFWs themselves, the families they leave behind, and the country itself. On the part of the OFWs, the lack of external cooperation leads to the continuous abuses and violation of rights of Filipino workers abroad, despite the best efforts of the Philippine government to protect its workers. On the part of the families left behind, the social cost of migration and separation are undeniable, as can be seen in the fragmentation of families of OFWs. On the national level, the problem of heavy reliance on foreign remittances prevails. At the end of the day, the economic standing of the Philippines relative to other nations is both the reason and the end of the OFW phenomenon. On the international level, the sheer magnitude of the number of migrant workers making the exodus from their States of origin makes it apparent that States of employment, most of which are the affluent first world countries, have become increasingly dependent on labor supplied by the struggling third world countries like the Philippines. Despite this, States of employment have been reluctant, even unwilling, to accept international standards concerning migrant workers’ protection. They fail to see that it is basically a symbiotic relationship that exists. It is akin to a partnership where both parties are obliged to contribute their share for the good of the partnership, which in turn will redound to the benefit of both parties and not just one of them. 9 3 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law Global Climate Change and Recent Developments in Philippine Environmental Law Myrna S. Feliciano* 1. Introduction The Philippines is a climate hotspot, vulnerable to some of the worst manifestations of climate change. As a developing country, with very little access to vital resources, it has a low ability to cope with disasters brought about by climate change impacts. All over the world, the impacts of such warming are diverse and alarming. Manifestations include wide spread retreat of glaciers and decrease in snow cover, change in heat content and chemical composition of the oceans, increase in sea level and aspects of the extreme weather events such as droughts, heavy rains, floods and the intensity of tropical typhoons as well as tornadoes. 1 Sea level rising threatens coastal areas, island ecosystems and low-lying communities. Provinces that are highly vulnerable to a 1-meter sea level rise include Zamboanga del Sur, Sulu and Palawan. 2 Climate change impacts as an additional pressure that could exacerbate the high rate of species extinction of plants and animals and current degradation of the Philippine ecosystem. Through our growing population, our thirst for natural resources together with climate change could help carry off 20% to 30% of all species before the end of the century. Thus, shaping an Earth that will be biologically impoverished. 3 The United Nations – organized Intergovernmental Panel on Climate Change (IPCC), the foremost scientific authority on the issue, stated in its most recent report that there is “new and stronger evidence that most of the global warming observed over the last 50 years is attributable to humans.” 4 Human activities that resulted in greenhouse gas concentrations are primarily fossil fuel use, deforestation, land use change and agriculture. * Director, Mandatory Continuing Legal Education Office, Supreme Court of the Philippines; Professor II, Philippine Judicial Academy and Professorial Lecturer, University of the Philippines, College of Law. 1 Greenpeace, The Philippines: A Climate Hotspot; Climate Impacts, 1 (April 2007). 2 Ibid., p. 6. 3 Bryan Walsh, “The New Age of Extinction,” Time Magazine, April 13, 2009, p.32. 4 IPCC Fourth Assessment Report: Climate Change, 2007. Available at http://www.ipecich/ipccreports/index.htm. 9 4 IBP JOURNAL Myrna S. Feliciano These greenhouse gases such as carbon dioxide (CO 2 ), methane (CH 2 ), nitrous oxide (N 2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (S f 6) produced by human activities cause the thinning of the ozone layer which protects us from UV and the cosmic rays of outer space. 5 For example, CFCs which are used as refrigerants and aerosol agents can release chlorine that further reacts with oxygen some thousands times over. Particulates affect visibility and health. Nitrogen when combined with water, ends up as acid rain. 6 Methane is formed when organic waste is decomposed in the absence of oxygen, as in landfills and dumpsites. The alarm was raised because of the significant thinning of the ozone layer over Antarctica. These CFCs and other gases which were eventually carried by the wind currents into the ozone layer reacted with the ozone molecules and broke down the gaseous umbrella at a rate faster they could be replenished, thus creating holes in Antarctica, Europe and the Arctic, thus leading to global warming and global climate change. 7 The impact of climate change specifically on the Philippines is disturbing because we have fewer resources to adopt. Our resources need special consideration due to the country’s extreme vulnerability. 8 According to a report in 2005: “The Philippine sector most affected by climate change is agriculture and food security. The report also indicated climate effects on the health sector because many of the biological organisms linked to the spread of infectious diseases are influenced by the fluctuations in climate variables. The infectious diseases include dengue fever, malaria, and cholera. Other climate change impacts include coral bleaching, fish kills, high mortality of cultured giant clams and red tide. One of the most discernible effects is the accelerated rise in sea level.” . . . Sea level rise due to thermal expansion is a threat to this country, given its archipelagic nature and long stretches of coast line. Rising sea levels may contaminate groundwater sources and expose communities to harsh storm surges.” 9 5 See Vienna Convention for the Protection of the Ozone Layer, March 22, 1985. The Philippines ratified it on July 17, 1991. The Montreal Protocol on Substances That Deplete the Ozone Layer, September 16, 1987 as amended in London (1990), Copenhagen (1992),Vienna (1995), Montreal (1997) and Beijing (1999); Kyoto Protocol, December 11, 1997 http://unfccc.int/kyoto_protocol/items2830, php Philippines ratified it on February 16, 2005. 6 PHILIPPINE JUDICIAL ACADEMY, GREENING THE JUDICIARY, 12-3 (2005). 7 Ibid., p. 13. 8 ROMMEL J. CASIS (ED.), EXPERTS DIALOGUE ON PHILIPPINE CLIMATE CHANGE POLICY; MITIGATION AND ADAPTATION MEASURES, 13 (2008) citing UNFCC Impacts, supra., note 4 at 5. 9 Ibid., p. 13, citing LEONCIO A. AMADORE, CRISIS OR OPPORTUNITY; CLIMATE CHANGE: IMPACT AND THE PHILIPPINES, 5-6 (Greenpeace, 2005). 9 5 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law 2. The Constitution and Global Treaties The 1987 Constitution views the environment and natural resources from three perspectives: as a human rights concern, as a social justice concern, and as a resource allocation concern. The human rights concern is found in Article III, Section 1 which states that “No person shall be deprived of life, liberty, or property without due process of law…” and in Article II, Section 16 which provides that “The State shall protect and advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature” as well as in Article II, Section 15 which states that “The State shall protect and promote the right to health of the people and instill health consciousness among them.” 10 As a social justice concern, there is a constitutional bias in favor of subsistence fishers, farmers, indigenous peoples and their organizations and to women who have suffered various forms of discrimination despite their contributions to various aspects of our national and social life. 11 As a resource allocation concern, the Constitution provides that natural resources are owned by the State, except agricultural lands or those that have become private by operation of law. It also enumerated modes of utilization of natural resources, i.e. direct utilization by the State, production-sharing, joint venture and co-production and small scale utilization. The country’s natural resources are for the exclusive enjoyment of Filipinos. However, the President may enter into agreements with foreign-owned corporations for large-scale exploration and exploitation of minerals, petroleum and other mineral oils. 12 The U.N. Framework Convention on Climate Change has been the center- piece of global efforts to combat global warming and the international community’s most essential tools in the struggle to promote sustainable development. This treaty was finalized in June 1992 as one of the instruments at the U.N. Conference on Environment and Development (UNCED) held at Rio de Janeiro. It was signed by 154 States and the European Community and entered into force on 21 March 1994. It reflected a compromise between those states which were seeking specific targets and timetables for emissions reductions, and those which wanted a skeleton Convention to serve as basis for future protocols. It established the principle of common but differentiated responsibility in international environmental law which requires international response measures aimed at addressing environmental problems but imposing different commitments from States and their respective capabilities. It also established (a) commitments to stabilize greenhouse concentrations in the atmosphere at a safe level over the long term; (b) a financial mechanism and a commitment by certain developed countries to provide financial resources for meeting 10 PHILIPPINE JUDICIAL ACADEMY, ENVIRONMENTAL LAW TRAINING MANUAL, 27-8 (2006). 11 Ibid., p. 29-30, citing CONST., Art. XII, sec. 2, par. 3; Art. XIII, sec. 7; Art. II, sec. 21; Art. XIII, sec 4; Art. II, sec. 22; Art. XII, secs. 5 & 6; Art. II, sec. 14; Art. XIII, secs. 14-16; Art. II, sec. 23. 12 Ibid., p. 31-2, citing CONST., art. XII, sec. 2; arts. XII, secs. 3-4 & 7. 9 6 IBP JOURNAL Myrna S. Feliciano certain incremental costs and adaptation measures; (c) two subsidiary bodies to the Conference of the Parties; (d) a number of important guiding principles; and (e) potentially innovative implementation and dispute settlement mechanisms. The Philippines has signed many global conventions which addressed the environment such as the protection of the ozone layer, 13 trade in hazardous wastes, 14 biological diversity, 15 climate change, 16 among others. Section 2, Article II of the Philippine Constitution provides that the Philippines adopts the generally accepted principles of international law as part of the law of the land. By the principle of incorporation, it is but proper that the Philippines implement the provisions of the environment treaties it has ratified. Therefore, an enumeration of the recent implementing statutes is in order. 3. Recent Implementing Environmental Statutes To address the global climate change and other international conventions which the Philippines has ratified and pursuant to the constitutional provisions, the following statutes were enacted. 3.1 Republic Act No. 8749 (1999) The Philippine Clean Air Act of 1999 is a comprehensive air quality management policy and program which encourages cooperation and self-regulation among citizens and industries through the application of market-based instruments, focuses primarily on pollution prevention, promotes public information and encourages informed and active public participation in air quality planning and monitoring, and formulates as well as enforces a system of accountability for short or long-term impact of a project, program or activity. 17 The rights of citizens are recognized as follows: 18 a. to breathe clean air; b. to use and enjoy all natural resources according to the principle of sustainable development; c. to participate in the formulation, planning, implementation and monitoring of environmental policies and programs and in the decision- making process; 13 See note 5. 14 Convention on the Control of Transboundary Movements of Hazardous Wastes, Basel, March 22, 1989. Philippines ratified it on October 21, 1993. 15 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992. Philippines ratified it on October 8, 1993. 16 U.N. Framework Convention on Climate Change, New York, May 9, 1992. Philippines ratified it on August 2, 1994. 17 Rep. Act No. 8749 (1999), sec. 3, 95 O.G. 6831 (Sept. 27, 1999). 18 Id., sec. 4. 9 7 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law d. to participate in any decision-making concerning policies, projects or activities that may have an adverse impact on the environment or public health; e. to be informed of the nature and extent of the potential hazard of any activity and to be served timely of any significant rise and any level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances; f. access to public records; g. bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel rehabilitation and clean up of affected area and to seek the imposition of penal sanctions against violations; and h. to bring action in court for the compensation of personal damages resulting from adverse environmental and public health impact of a project or activity. The law lays down pollution standards for different sources: stationary, motor vehicles, smoking and other mobile sources. 19 Note that in Section 5 of Republic Act No. 9211, otherwise known as the Tobacco Regulation Act of 2003, smoking is banned in public places such as playschools, educational institutions, youth hostels, recreational facilities; elevators and stairwells; buildings and premises of public and private hospitals, clinics, nursing homes and laboratories; locations where fire hazards are present, i.e., gas station storage areas for flammable or combustible materials; public conveyances and public facilities, i.e., airport and ship terminals, train and bus stations, restaurants and conference halls except for separate smoking areas; and food preparation areas. Republic Act No. 8749 also regulates the use of fuels, additives, substances, and pollutants, the most significant is the phasing out of leaded gasoline. 20 It also mandates the phasing out of ozone-depleting substances, reduction of greenhouse gas emissions, the reduction and elimination of persistent organic pollutants (POPs) such as dioxins furans, 21 and the regulation of the use of radioactive emissions. 22 Any affected person may file an administrative action with the DENR which, upon verified complaint or motu proprio institute administrative proceedings against any person violating standards or limitations provided by this law or any order, rule or regulation issued by the Department. 23 The law also establishes the filing of citizen suits against (a) any person who violates or fails to comply with the provisions of this Act or its implementing rules and regulations; (b) the Department or other 19 Id., secs. 6-25. 20 Rep. Act No. 8749 (1999), secs. 26-29. 21 Id., secs. 30-32. 22 Id., sec. 33. 23 Id., sec. 40. 9 8 IBP JOURNAL Myrna S. Feliciano implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or (c) any public officer who willfully or grossly neglects the performance of a duty enjoined by this Act or its implementing rules or regulations, or abuses his authority in the performance of his duty or improperly performs his duties under this Act or its implementing rules and regulations. However, no suit can be filed until after 30-day notice has been given to the public officer in the alleged violation concerned and no appropriate action has been taken thereon. Within 30 days, the court makes a determination if the complaint is malicious or baseless and shall accordingly discuss the action and award attorney’s fees and damages. 24 The court shall exempt such action from the payment of filing fees, except fees for actions not capable of pecuniary estimation and shall likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction. 25 A person has also the right to file any criminal or civil action, independent of the administrative action. 26 Since petitioners, complainants or public officers are always in danger of having a countersuit in order to prevent the implementation of this law, a Strategic Legal Action Against Public Participation (SLAPP) can be filed and the investigating prosecutor or the court makes a determination within 30 days whether such countersuit has been filed to harass, vex, exert undue pressure, or stifle such legal resources of the person complaining of or enforcing the provisions of this Act. Upon determination and evidence, the court shall dismiss the case and award attorney’s fees and double damages. 27 Finally, the law imposes various kinds and penalties for the three categories of violations, namely: (1) violation of standards for stationary sources; (2) violations of standards for motor vehicles; and (3) violations of other provisions of the Act which range from a maximum of P100,000 pesos or 10 years imprisonment to a minimum of P1,000 or 6 months and 1 day of imprisonment. In the case of Metropolitan Manila Development Authority (MMDA) v. Jancom, 28 the constitutionality of Section 20 wherein the ban on incineration was questioned before the Supreme Court. It was ruled that the said section does not absolutely prohibit incineration as a mode of waste disposal, rather only those burning processes which emit poisonous and toxic fumes are banned. 24 Id., sec. 41. 25 Id., sec. 40, last par. 26 Id., sec. 42. 27 Id., sec. 43. 28 G.R. No. 147465, January 30, 2002, 375 SCRA 320 (2002). 9 9 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law In Henares, Jr., et al. v. Land Transportation Franchising and Regulatory Board (LTFRB), et al., 29 petitioner challenged the Supreme Court to issue a writ of mandamus commanding the LTFRB and the Department of Transportation and Communication (DOTC) to require public utility vehicles (PUVs) to use compressed natural gas (CNG) as alternative fuel. Citing statistics, petitioners attempted to present a compelling case for judicial action against the bane of air pollution and related environmental hazards. Petitioners alleged that the particulate matters (PM) – complex mixtures of dust, dirt, smoke and liquid droplets caused detrimental effects on health, productivity, infrastructure and the overall quality of life. They averred that with hydrocarbons, oxide of nitrogen (NOx) it creates smog; with sulfur dioxide, it creates acid rain; and with ammonia, moisture and other compounds, it reacts to form nitric acid and harmful nitrates. Fuel emissions cause retardation and leaf bleaching in plants. Another emission, carbon monoxide (CO), when not completely burned but emitted in the atmosphere and then inhaled can disrupt the flow of oxygen in the blood. With prolonged exposure CO affects the nervous system and can be lethal to people with weak hearts. To counter the detrimental effects of CO, petitioner proposed the use of CNG as an alternative which is mostly methane containing small amount of propane and butane. It is colorless, odorless and considered the cleanest fossil fuel because it produces less pollutants than coal and petroleum. The Solicitor General commented that Section 3, Rule 45 of the Rules of Court which explains the writ of mandamus is not a proper remedy because it commands a tribunal, corporation or person to do an act that is required when he or it unlawfully neglects the performance of an act which the law specifically enjoins as a duty. The Solicitor General notes that nothing in RA 8749 prohibits the use of gasoline and diesel by owners of motor vehicles and the law does not mention CNG as an alternative fuel for PUVs. Moreover, it is the DENR which is tasked to implement RA 8749 and the Department of Energy (DOE) in Section 26 to set the specifications for all types of fuel and fuel-related products to improve fuel composition for improved efficiency and reduced emissions. Under Section 21, the DOTC is limited to implementing the emission standards for motor vehicles. The issues were two-fold: Do the petitioners have legal personality to bring their petition and should mandamus issue against respondents to compel PUVs to use compressed natural gas as an alternative fuel? The Supreme Court agreed that there is no dispute that petitioners have standing to bring the case before it. However, mandamus is unavailable to pinpoint the law that imposes an indubitable duty on respondents that will justify a grant of the writ of mandamus compelling the use of CNG for PUVs. It appears that the legislature should provide first the specific statutory remedy to the complex environmental problems based before any judicial recourse by mandamus is taken. The Petition was dismissed for lack of merit. 29 G.R. No. 158290, October 23, 2006, 505 SCRA 104 (2006). 100 IBP JOURNAL Myrna S. Feliciano 3.2 Republic Act No. 9003 (2001) The Ecological Solid Waste Management Act declares the policy of the State to adopt a systematic, comprehensive and ecological solid waste management program. 30 It defines solid waste as referring to all discarded household waste, commercial waste, non-hazardous, institutional and industrial waste, street sweepings, construction debris, agricultural waste and other non-hazardous, non-toxic solid waste. 31 In the implementation and enforcement of this Act, the local government units (LGUs) shall be primarily responsible. Segregation and collection of solid waste shall be conducted at the barangay level specifically biodegradable, compostable and reusable waste but the collection of non-recyclable materials and special wastes shall be the responsibility of the municipality or city. 32 Multi-purpose cooperatives or associations in every LGU can undertake projects under the provisions of the Act. 33 The barangay shall be responsible for ensuing 100 per cent collection efficiency from residential, industrial and agricultural wastes. 34 A ten-year Government Solid Waste Management Plan shall be prepared for the re-use, recycling and composting of wastes generated in their respective jurisdictions. 35 The plan shall identify the specific strategies and activities taking into account the following such as – availability and provision of properly designed containers or receptacles in selected collected points for temporary storage of solid waste; segregation of different types of wastes for re-use, recycling and composting, handling and transfer to processing or final disposal sites; and enforcement of ordinance to effectively implement the barangay collection system. 36 There shall be established a Materials Recovery Facility (MRF) in every barangay or cluster of barangays. The LGU recycling component shall describe methods for developing the markets for recycled materials and the feasibility of procurement reference for the purchase of such products as well as the determination of price preference to encourage its purchase. 37 No person owning, operating or conducting a commercial establishment in the country shall sell or retail any product that is not placed, wrapped or packaged in environmentally acceptable packaging. The National Solid Waste Commission shall determine a phase-out period after proper consultation with stake holders. Its 30 Rep. Act No. 9003 (2001), sec. 2. 31 Id., sec. 3(kk). 32 Id., sec. 10. 33 Id., sec. 13. 34 Id., sec. 17(a). 35 Id., sec. 16. 36 Rep. Act No. 9003 (2001), sec. 17(c). 37 Id., sec. 17(f)(3). 101 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law violation constitutes grounds for revocation, suspension, denial or non-renewal of the license of the establishment. 38 Republic Act No. 9003 was cited in the case of Province of Rizal, et al. v. Executive Secretary, Secretary of Environment and Natural Resources, et al. 39 The case arose at the height of the garbage crisis in Metro Manila and its environs when the Office of the President set aside some parts of the Marikina Watershed Reservation extending more or less 18 hectares since 1990 for use as sanitary landfill and similar waste disposal for the solid wastes of Quezon City, Marikina City, San Juan City, Mandaluyong City, Pateros, Pasig City and Taguig by virtue of Proclamation No. 635 dated August 28, 1995. As early as February 1989, the Sangguniang Bayan of San Mateo passed a resolution banning the creation of dumpsites for Metro Manila garbage and to suspend and hold in abeyance all or any part of the operation with respect to the San Mateo Landfill Dumpsite. No action by the concerned agencies was taken. Subsequently, the Community Environment and Natural Resource Office of DENR-4 submitted a Memorandum that the on-going dumpsite is in violation of Presidential Decree No. 705 or the Revised Forestry Code because it is located in the upper portion of the Marikina Watershed Reservation and must be totally stopped in order to save our healthy ecosystems therein, avoid much destruction, and loss of millions of public funds over the area. Nevertheless, the Department of Environment and Natural Resources (DENR) granted the Metro Manila Authority an Environmental Compliance Certificate but the Laguna Lake Development Authority (LLDA) opposed it because the dumpsites are within the watershed and due to heavy pollution, it increased the risk of diseases. Besides, such activities would negate government’s efforts to upgrade the water quality of Laguna Lake. Despite strong objections, the waste disposal operations continued. On July 22, 1996, petitioners filed before the Court of Appeals a civil action for certiorari, prohibition and mandamus with application for a temporary restraining order/writ of preliminary injunction. On June 13, 1997, the Court of Appeals denied the application for lack of cause of action. Hence, this review on certiorari of the decision. The Supreme Court directed the permanent closure of the San Mateo landfill and reversed the Court of Appeals’ decision. It noted two facts: the San Mateo site has adversely affected its environs and that the sources of water should always be protected. The Court declared that the circumstances under which Proclamation No. 635 was passed violated Republic Act No. 7160 (Local Government Code). The Court said: “Under the Local Government Code, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with 38 Id., sec. 30. 39 G.R. No. 129546, December 13, 2005, 477 SCRA 436 (2005). 102 IBP JOURNAL Myrna S. Feliciano the affected local communities, and prior approval by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal. The Court added that these concerns are addressed by Republic Act No. 9003 approved on January 26, 2001 which mandates the formulation of a National Solid Waste Management Framework which should include, among other things, the method and procedure for the phase-out and the eventual closure within 18 months from effectivity of the Act in case of existing open dumps and/or sanitary landfills located within an aquifer, groundwater reservoir or watershed area. Any landfill subsequently developed must comply with the minimum requirements laid down in Section 40, specifically that the site selected must be consistent with the overall land use plan of the local government unit and that the site must be located in an area where the landfill’s operation will not detrimentally affect sensitive resources such as aquifers, groundwater reservoirs or watershed areas. The petition was granted. Former President Gloria Macapagal-Arroyo set a June, 2009 deadline for LGUs to comply with RA 9003 which affirmed a December 2008 directive instructing all government agencies and LGUs to reduce waste volume by 50% within 6 months and thus cut emissions from dumps. Prior to this, the Environment Secretary issued in May 2008, a 6-month ultimatum for non-compliant LGUs to shut down over 1,000 polluting dumps long outlawed by RA 9003. To date, only 2,701 barangays out of 42,000 barangays nationwide have Materials Recovery Facilities (MRFs). In Metro Manila, only 435 barangays have MRFs. The metropolis has 1,695 barangays with waste diversion rate of only 28%. 3.3 Republic Act No. 9275 (2004) 40 The Philippine Clean Water Act of 2004 provides for a comprehensive water quality management consistent with the protection, preservation and revival of the quality of our fresh, brackish and marine waters. 41 It shall primarily apply to the prevention, abatement and control of pollution from water sources. To pursue sustainable development, it mandates the formulation of an integrated water quality management framework which depends heavily on LGUs because the DENR in coordination with the National Water Resources Board (NWRB) designates certain areas as water quality management areas using appropriate physiographic units such as watershed, river basins or water resources regions as criteria 42 and similar hydrological, hydro-geological, meteorological or geographic conditions. Said management area is governed by a board composed of mayors and governors of member local government units and representatives of relevant national government agencies, duly registered NGOs, water utility sector and the business sector. The governing board shall formulate strategies to coordinate policies necessary for 40 100 O.G. 5041 (Aug. 2, 2004). 41 Rep. Act No. 9275 (2004), sec. 2. 42 Id., sec. 5. 103 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law effective implementation in accordance with those established standards in the framework and to monitor compliance with the Action Plan as well as the preparation of a national program on sewerage and septage management. 43 Each LGU shall have the following powers and functions: a) monitoring of water quality; b) emergency response; c) compliance with the framework of the Water Quality Management Action Plan; d) to take active participation in all efforts concerning water quality protection and rehabilitation; and e) to coordinate with other government agencies and civil society and the concerned sectors in the implementation of measures to prevent and control water pollution. 44 The DENR shall gradually devolve to the LGUs, and to governing boards, the authority to administer some aspects of water quality management and regulation, including but not limited to, permit issuances, monitoring and imposition of administrative penalties, when, upon the DENR’s determination, the LGU or the Governing Board has demonstrated readiness and technical capability to undertake such functions. 45 A multi-sectoral group shall be established in each management area to effect water quality surveillance and monitoring network including sampling schedules and other similar activities. 46 The DENR shall require program and project proponents to put up an Environmental Guarantee Fund (EGF) as part of the environmental management plan attached to an Environmental Compliance Certificate (ECC). The EGF shall finance the maintenance of the health of the ecosystems and especially the conservation of watersheds and aquifers affected by the development, and the needs of emergency response, clean-up or rehabilitation of areas that may be damaged during, after and until the lapse of the period indicated in the ECC. The EGF may be in the form of a trust fund, environmental insurance, surety bonds, letters of credit, self-insurance and other instruments or combinations thereof. 47 The “polluter pays principle” is applied under this law because any person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards, shall be responsible to contain, remove and clean-up any pollution incident at his own expense to the extent the same water bodies have been rendered unfit for utilization and beneficial use. If he fails to do so immediately, the DENR and other concerned government agencies shall immediately conduct 43 Id., 44 Id., sec. 20. 45 Id., sec. 9, last par. 46 Id., sec. 5. 47 Id., art. 15. 104 IBP JOURNAL Myrna S. Feliciano containment, removal and clean-up operations but the expenses incurred must be reimbursed by the persons found to have caused the pollution. 48 1.1.1 Republic Act No. 9483 (2007) 49 In view of the extensive damage caused by the sinking of the tanker Solar 1 during rough weather, spilling its load of 2.1 million barrels of crude oil into the sea and along the Guimaras-Iloilo coastline, the Oil Pollution Compensation Act of 2007 was enacted. This law implements the provisions of the 1992 International Convention on Civil Liability for Oil Pollution Damage and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution damages, and provides penalties for violations thereof. It imposes strict liability for oil pollution damage on the owner of the ship at the time of the incident; or where the incident consists of a series of occurrences, at the time of the first occurrence. 50 Following the occurrence of a particular incident, the owner shall be required to constitute a fund for the total sum representing the limit of his liability with the Maritime Industry Authority (MARINA) to cover incidents causing liability. 51 All owners shall be required annually by MARINA to maintain insurance or other financial security for pollution damage in sums fixed by applying the limits of liability under this Act. 52 An action for compensation on account of pollution damage which occurred in the territory may be brought before the Regional Trial Court against the owner of the polluting ship or insurer or other person providing financial security of the said owner’s liability for pollution. A foreign corporation, partnership, association or individual whether or not licensed to transact business in the Philippines, providing such insurance or financial liability shall be considered doing business in the Philippines and shall be subject to the jurisdiction of the regular judicial courts of the country. 53 The Philippine Coast Guard shall investigate, motu proprio or through written undertaking of a complainant, any incident claim for compensation or violation of this Act, and shall file an appropriate action with the RTC. It shall likewise provide the complainant necessary technical evidence or any assistance, whether or not testimonial or documentary insofar as the claim for compensation or violation is concerned. 54 48 Id., sec. 16. 49 103 O.G. 6638 (Oct. 15, 2007). 50 Rep. Act No. 9483 (2007), sec. 6. 51 Id., sec. 11. 52 Id., sec. 12. 53 Id., sec. 17. 54 Id., sec. 17. 105 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law The filing of this action shall only require payment of filing fees equivalent to ten per centum (10%) of the regular Supreme Court rates. However, the indigent plaintiffs shall be exempt from payment of docket and other lawful fees, and of transcripts of stenographic notes. These fees shall be a lien on any judgment rendered in the case favorable to the indigent, unless the Court otherwise provides. 55 When compensation is not obtained or satisfied under the 1992 Civil Liability Convention, the claimant may seek compensation under the 1992 Fund Convention. The RTC shall furnish the IOPC Fund with its certified decision, together with pertinent documents on a claim for pollution damages. If it is insufficient to satisfy the claims of those who are entitled to compensation, the amount of compensation of each client shall be distributed pro rata. 56 The IOPC Fund may intervene as a party to any legal proceeding instituted against the owner of a ship or his guarantor under Art. IX of the 1992 Civil Liability Convention. 57 A novel principle was adopted by the Supreme Court in the case of Metropolitan Manila Development Authority, et al. v. Concerned Residents of Manila Bay in terms of enforcing environmental laws. 58 Respondents filed a complaint on December 29, 1999 before the RTC against several government agencies 59 for the clean-up, rehabilitation and protection of Manila Bay. The complaint alleged that the water quality of Manila Bay had fallen below the allowable standards set by the Philippine Environment Code. This environmental aberration stemmed from the reckless, wholesale, accumulated and ongoing acts or commission resulting in the clear and present danger to public health and in the depletion and contamination of marine life in Manila Bay, for which all the aforementioned government agencies must be held jointly and/or solidarily liable. Thus, they were collectively ordered to clean-up Manila Bay and to restore its water quality to Class B waters fit for swimming, skin diving and other forms of contact recreation. Respondents alleged that the continued neglect of petitioners in abating the pollution of Manila Bay constituted a violation of about nine environmental laws. Respondents, as plaintiffs, prayed that the petitioners be ordered to clean the Manila Bay and to submit a concerted plan of action for the purpose. The Regional Trial Court (RTC) rendered a decision in favor of respondents ordering the government agencies jointly and solidarily to clean up and rehabilitate Manila Bay and with the DENR as lead agency to submit a coordinated and concerted scheme of action for the rehabilitation and restoration of the Bay within 6 months. 55 Id., sec. 17, last par. 56 Id., sec. 18. 57 Id., sec. 19. 58 G.R. Nos. 171947-48, December 18, 2008. 59 Metropolitan Manila Development Authority (MMDA), Department of Environment and Natural Resources (DENR), Department of Education, Culture and Sports (DECS), Department of Health (DOH), Department of Agriculture (DA), Department of Public Works and Highways (DPWH), Department of Budget and Management (DBM), Philippine National Police (PNP), Maritime Group and Department of the Interior and Local Government (DILG). 106 IBP JOURNAL Myrna S. Feliciano Petitioners appealed to the Court of Appeals (CA) while the DENR and the other agencies filed their petition with the Supreme Court. The petitions were sent to the Court of Appeals for consolidation. In the main, petitioners argued that Presidential Decree No. 1152 related only to specific pollution incidents and does not cover cleaning in general. It raised concerns about the lack of funds for the purpose. The CA denied the appeal and affirmed the RTC decision in toto. Hence, the petition was filed based on the following issues: 1) Whether or not Sections 17 & 20 of PD 1152 envisage a clean-up in general or limited to specific pollution incidents. 2) Can petitioners be compelled by mandamus to clean-up and rehabilitate Manila Bay? The Supreme Court agreed with the respondents by stating that petitioner’s obligation to perform their duties as defined by law, on one hand, and how they are to carry out such duties on the other, are two different concepts. While the implementation of the MMDA’s mandated task may entail a decision-making process, the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature may be compelled by mandamus. The MMDA’s duty in the area of solid waste disposal is set forth in the Environment Code, RA 9003 and in its charter. Any suggestion that the MMDA has the option to perform its solid waste disposal-related duties ought to be dismissed for want of legal bases. A perusal of the other petitioners’ respective charters or similar enabling statutes and pertinent laws would yield this conclusion. These government agencies are enjoined, as a matter of statutory obligation, to perform certain functions directly or indirectly relating to the clean-up, rehabilitation, protection and preservation of Manila Bay. They are precluded from choosing not to perform these duties for the enabling laws and issuances are in themselves clear, categorical and complete as to what are the obligations and mandate of each agency under the law. As to the issue whether Sections 17 & 20 of the Environment Code included cleaning in general, the Court said: “When the Clean Water Act (RA 9275) took effect, its subject, Section 16 on Clean Up Operations amended the counterpart provision, (Sec. 20) of the Environment Code (PD 1152), Sec. 17 of PD 1152 continues, however, to be operational. Section 20 merely designates the DENR as the lead agency in the clean-up operations. As to the arguments that the definitions of “clean-up operations” and “accidental” spills in Section 62(g) & (h), Section 20 is limited only to “water pollution incidents” which are situations that presupposes the occurrence of specific pollution events requiring containment, removal and cleaning operations. However, Section 17 is not hobbled by such limiting definition because the phrases “clean-up,” “operations,” and “accidental spills” do not appear in said Section 17, not even in the Chapter where it is located. Section 17 requires them to act even in the absence of a specific pollution incident, as long as water quality was deteriorated to a degree where its state will adversely affect its usage. This section commands concerned 107 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law government agencies, when appropriate, “to take such measures as may be necessary to meet the prescribed water quality standard.” Section 17 of the Environment Code comes into play and the specific duties of the agencies to clean up are mandated even if there are no pollution incidents staring at them. Moreover, they seem to overlook the fact that the pollution of Manila Bay is of such magnitude that it is impossible to draw the line between a specific and a general pollution incident. Also, Section 16 of RA 9275, previously Section 20 of PD 1152, covers a general clean-up situation. The clean-up and/or restoration of Manila Bay is only an aspect and the initial stage of the long-term solution. After the rehabilitation process, it is imperative that wastes and contaminants found in the rivers, inland bays and other bodies of water be stopped from reaching Manila Bay. The Petition was denied and the CA and RTC decisions were affirmed but with modifications in view of subsequent developments or supervening events in this case. The DENR, as the primary government agency responsible for its enforcement and implementation, was directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for its rehabilitation, restoration, and conservation of Manila Bay at the earliest possible time. It was ordered to call regular coordination meetings with concerned government agencies to ensure successful implementation of the aforesaid plan of action in accordance with indicated completion schedules. The heads of petitioner agencies, in line with the principle of “continuing mandamus” shall, from the finality of this decision, submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision. Atty. Antonio A. Oposa, Jr. filed a motion to cite in contempt the government officials concerned for failure to report to the Supreme Court. 60 Except for the DENR and MMDA, which have submitted their reports, the Supreme Court ordered them to comment in ten days why they should not be cited in contempt. To date, there is a Technical Committee assisting the Supreme Court in assessing the report on the clean-up of Manila Bay. In Bangus Fry Fisherfolk, et al. v. Lanzanas, et al., 61 an ECC was issued in favor of respondent National Power Corporation authorizing the construction of a temporary mooring facility in Minolo Cove, Sitio Minolo, San Isidro, Puerto Galera, Oriental Mindoro, which has been declared as a mangrove area and breeding ground for bangus fry, an eco-tourist zone. Petitioners filed a complaint with the Regional Trial Court of Manila, for the cancellation of the ECC and for the issuance of a writ of injunction. The trial court dismissed the complaint for non-exhaustion of administrative remedies and for lack of jurisdiction to issue the injunctive relief. Hence, the filing of the petition in the High Court. 60 Alcuin Papa, “6 GMA Men to Face Contempt Raps: Eco-lawyer Presses Manila Bay Clean-up,” Philippine Daily Inquirer, August 24, 2009, p. A-1; A-10. 61 G.R. No. 131442, July 10, 2003, 405 SCRA 630 (2003). 108 IBP JOURNAL Myrna S. Feliciano In denying the petition, the Supreme Court ruled that the petitioner’s cause of action is the alleged illegality of the issuance of the ECC and such complaint is not capable of pecuniary estimation. It falls within the exclusive and original jurisdiction of the RTCs under Section 19(1) of Batas Pambansa Blg. 129, as amended by RA 7691. Anent the jurisdiction to issue injunctive writs, only the Supreme Court can do so under PD 1818 and later under RA 8975 which superseded it. The Court likewise ruled that petitioners bypassed the Secretary of the DENR when they immediately filed their complaint with the Manila RTC, depriving the DENR Secretary the opportunity to review the decision of his subordinate. Under the Procedural Manual for DAO 96-37 and applicable jurisprudence, petitioners’ omission rendered their complaint dismissible for lack of cause of action. The RTC decision was affirmed. 3.4 Republic Act No. 9367 (2007) The Biofuels Act of 2006 aims to reduce the country’s dependence on imported fuels with due regard to the protection of public health, the environment and natural resources. It mandates to develop and utilize indigenous renewable and sustainably- sourced clean energy sources as well as to mitigate toxic and greenhouse (GHG) emissions. 62 Thus, all liquid fuels for motors and engines sold in the Philippines shall contain locally-sourced biofuels components by setting time limits on the blending of bioethanol with gasoline fuel. 63 To encourage investments in the production, distribution and use of locally-produced biofuels, additional incentives are given such as specific and value-added taxes, exemption from waste water charges, and financial assistance from government institutions. To implement and monitor the supply and utilization of biofuels and biofuel blends as well as to recommend appropriate measures in cases of shortage of feedstock supply, a National Biofuel Board (NBB) is established, with the Secretary of the Department of Energy as Chairperson. 64 3.5 Republic Act No. 9513 (2008) To encourage the development and utilization of renewable energy resources and to accelerate the exploration and development of renewable energy resources as well as to increase the utilization of renewable energy by institutionalizing the development of national and local capabilities in the use of renewable energy systems, the “Renewable Energy Act of 2008” was enacted. 65 Since all stakeholders in the electric power industry contribute to the growth of the renewable industry, the National Renewable Energy Board (NREB) is created. 66 It shall set the minimum 62 Rep. Act No. 9367 (2007), sec. 2. 63 Id., sec. 5. 64 Id., secs. 7-10. 65 Rep. Act No. 9513 (2008), sec. 2. 66 Id., sec. 6. 109 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law percentage of generation from eligible renewable energy resources and determine to which sector a Renewable Portfolio Standard (RPS) shall be imposed on a per grid basis. To accelerate development, a feed-in tariff system for electricity produced from wind, solar, ocean, run-of-river hydropower and biomass is hereby mandated. 67 The Department of Energy (DOE) shall also establish the Renewable Energy Market (REM) and shall direct the Philippine Electricity Market Corporation (PEMC) to implement changes to the “Wholesale Electricity Spot Market” (WESM) in order to incorporate rules specific to the operation of the REM under the WESM. The PEMC shall establish a Renewable Energy Registrar which shall issue, keep, verify RE certificates corresponding to energy generated from eligible Renewable Energy facilities to be used for compliance with the RPS. 68 The DOE shall establish a Green Energy Option program which provides end-users the option to choose Renewable Energy resources as their sources of energy. The end-user who will enroll under this program should be informed by way of its monthly electric bill, how much of its monthly energy consumption and generation charge is provided by Renewable Energy facilities. These distribution utilities shall enter into net-metering agreements with qualified end-users who will be installing the RE system. 69 The government share on existing and new Renewable Energy development projects shall be equal to 1% of the gross income of Renewable Energy resource developers resulting from the sale of renewable energy produced and such other income incidental to it except for indigenous geothermal energy, which shall be 1.5% of gross income. 70 All Renewable Energy projects shall comply with existing DENR environmental regulations and/or that of any other concerned government agency. 71 General incentives for renewable energy projects and activities, including hybrid systems are income tax holidays, duty-free importation of Renewable Energy machinery, equipment and materials, special realty tax rates on equipment and machinery, net operating loss carry-over, corporate tax rate, zero percent value-added tax rate, cash incentive of renewable energy developers for missionary electrification, tax exemption of carbon credits and tax credit on domestic capital equipment and services. 72 3.6 Republic Act No. 9512 (2008), otherwise known as the “National Environmental Awareness and Education Act of 2008” The Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the 67 Id., sec. 7. 68 Rep. Act No. 9513 (2008), sec. 8. 69 Id., sec. 9. 70 Id., sec. 13. 71 Id., sec. 14. 72 Id., sec. 15. 110 IBP JOURNAL Myrna S. Feliciano Department of Social Welfare and Development (DSWD), in coordination with the DENR, Department of Science and Technology (DOST) and other relevant agencies, shall integrate environmental education in its school curricula at all levels, whether public or private, including barangay daycare, preschool, non-formal, technical vocational, professional level, indigenous learning and out-of-school youth courses or programs. Environmental education shall encompass environment concepts and principles, environmental laws, the state of international and local environment, local environmental best practices, the threats of environmental degradation and their impact on human well-being, the responsibility of the citizenry to the environment and the value of conservation, protection, and rehabilitation of natural resources and the environment in the context of sustainable development. It shall cover both theoretical and practicum modules comprising activities, projects, programs, including, but not limited to, tree planting, waste minimization, segregation, recycling and composting; freshwater and marine conservation; forest management and conservation; relevant livelihood opportunities and economic benefits and such programs and undertakings to aid in the implementation of the different environmental protection laws. 73 The DepEd, CHED, TESDA, DENR, DOST and other relevant agencies in consultation with the experts on the environment and the academe, shall lead in the implementation of public education and awareness programs on environmental protection and conservation through collaborative inter-agency and multi-sectoral effort at all levels. 74 The DENR has the primary responsibility of periodically informing all agencies concerned on current environmental updates, including identifying environmental education issues for national action and providing strategic advice on environmental education activities. The DepEd, CHED, TESDA, DENR, DOST, DSWD and barangay units shall ensure that the information is disseminated to the students. 75 The DOST is mandated to create programs that will ensure that students receive science-based quality information on environmental issues to encourage the development of environmental-friendly solutions, devices, equipment and facilities. 76 The CHED and TESDA shall include environmental education and awareness programs and activities in the National Service Training Program under Republic Act No. 9163 as part of the Civil Welfare Training Service component required for all baccalaureate degree courses and vocational courses with a curriculum of at least two (2) years. 77 73 Rep. Act No. 9512 (2008), sec. 3. 74 Id., sec. 6, 1 st par. 75 Id., sec. 6, 2 nd par. 76 Id., sec. 6, 3 rd par. 77 Id., sec. 4. 111 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law Capacity-building programs nationwide, such as trainings, seminars, workshops on environmental education, development and production of environmental education materials, teacher-education courses and related livelihood programs shall be implemented. 78 The month of November every year shall be known as “Environmental Awareness Month” throughout the Philippines. 79 3.7 Republic Act No. 9729 or the “Climate Change Act of 2009” As a party to the UN Framework Convention on Climate Change, the Philippines adopts the ultimate objective of the Convention which is the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system to be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. 80 This statute recognizes the vulnerability of the Philippine archipelago and its local communities, particularly the poor, women, and children to potential dangerous consequences of climate change such as rising seas, changing landscapes, increasing frequency and/or severity of droughts, fires, floods and storms, climate-related illness and diseases, damage to ecosystems, biodiversity loss that affect the country’s environment, culture, and economy. 81 This law mainstreams climate change into government policy formulations, establishes the framework strategy and program on climate change. Towards this end, the State adopts the principle of protecting the climate system for the benefit of humankind, on the basis of climate justice or common but differentiated responsibilities and the Precautionary Principle to guide decision-making in climate risk management. For this purpose, an independent and autonomous Climate Change Commission is established attached to the Office of the President. It shall be the sole policy-making body of the government which is tasked to coordinate, monitor and evaluate the programs and action plans of the government relating to climate change. 82 In view thereof, the State shall cooperate with the global community in the resolution of climate change issues including disaster risk reduction. It is also a policy of the State to incorporate gender-sensitive, pro-children and pro-poor perspectives in all climate change and renewable energy efforts, plans and programs. 83 78 Id., sec. 7. 79 Id., sec. 5. 80 Rep. Act No. 9729 (2009), sec. 2, 2 nd para. 81 Ibid. 82 Id., sec. 4. 83 Ibid. 112 IBP JOURNAL Myrna S. Feliciano The Climate Change Commission is composed of the President of the Philippines as Chairperson and three Commissioners to be appointed for a term of six years by the President, one of whom shall serve as the Vice-Chairperson and Executive Officer of the Climate Change Office. 84 It has an Advisory Board composed of the following: Secretaries of the Department of Agriculture, Energy, Environment and Natural Resources, Foreign Affairs, Health, Interior Local Government, National Defense, Public Works and Highways, Science and Technology, Social Welfare and Development, Trade and Industry, Transportation and Communication, Director-General of NEDA, Director-General of National Security Council; Chairperson of National Commission on Women; the Presidents of the Leagues of Provinces, Cities, Municipalities, Liga ng mga Barangay, Representatives each from the academe, business sector and non-governmental organizations and at least one of the sectoral representative from the disaster risk reduction community. The representatives shall be appointed by the President from a list of nominees by their respective groups for a term of six years unless withdrawn by the sector they represent. 85 Among the powers and functions of the Commission are: ensure the mainstreaming of climate change in synergy with disaster risk reduction into the national, sectoral and local development plans and programs; create an enabling environment that shall promote broader multi-stakeholder participation and integrate climate change mitigation and adaptation; formulate strategies on mitigating CHG and other anthropogenic causes of climate change; and formulate and update guidelines for determining vulnerability to climate change impacts and adaptation assessments and facilitate the provision of technical assistance for their implementation and monitoring. 86 A National Panel of Technical Experts of practitioners in disciplines related to climate change, including disaster risk reduction shall be constituted by the Commission. They shall provide technical advice to the Commission in climate science, technologies and best practices for risk assessment and enhancement of adaptive capacity of vulnerable human settlements to potential impacts of climate change. 87 The Commission shall also formulate a Framework Strategy on Climate Change which serves as a basis for a program of climate change planning, research and development, extension, and monitoring of activities to protect vulnerable communities from the adverse effects of climate change. It shall be formulated based on climate change vulnerabilities, specific adaptation needs and mitigation potential, all in accordance with international agreements. It shall be reviewed every three years, or as may be deemed necessary. 88 A National Climate Change Action 84 Id., sec. 8. 85 Id., sec. 5. 86 Id., sec. 9 87 Id., sec. 10. 88 Id., sec. 11. 113 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law Plan shall be formulated in accordance with the Framework. 89 Civic organizations, NGOs, academe, people’s organizations, the private and corporate sectors and other concerned stockholder groups shall assist in the development and implementation of the National Climate Change Action Plan in coordination with the Commission. 90 The Local Government Units (LGUs) shall be the frontline agencies in the formulation, planning and implementation of climate change plans in their respective areas, consistent with the Local Government Code, the Framework and the Action Plan. 91 Government agencies such as the DepEd, DILG, DENR, DFA, the Philippine Information Agency, as well as government financial institutions, are given their respective roles to ensure the effective implementation of the framework strategy and program on climate change. 92 4. Towards Environmental Justice Among the Principles on the Role of Law and Sustainable Development adopted at the Global Judges symposium held in Johannesburg, South Africa on August 20, 2002, is that “an independent judiciary and judicial process is vital for the implementation, development and enforcement of environmental law, and that members of the Judiciary, as well as those contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with, and the implementation of international and national environmental justice.” 93 On July 5-6, 2007, the Philippines participated in the Asian Justices Forum on the Environment – Sharing Experience to Strengthen Environmental Adjudication in Asia which was held at Mandaluyong City, with former Chief Justice Reynato S. Puno as keynote speaker. As a result, Chancellor Ameurfina A. Melencio-Herrera of the Philippine Judicial Academy made the following recommendations: 1. Designation of exclusive courts to handle environmental cases; 2. Expansion of jurisdiction of forestry courts; 3. Raffling of environmental law cases in the Court of Appeals; 4. Capacity-building programs to be conducted by PhilJA. Initially, all judges and clerks of court of first and second-level courts 94 were ordered to conduct an inventory of all environmental cases. Likewise, the Court of Appeals submitted a list of 74 DENR cases filed from November 2001 to June 2007. 89 Id., sec. 13. 90 Id., sec. 16. 91 Id., sec. 14. 92 Id., sec. 15. 93 Johannesburg Principles, par. 5. 94 OCA Circular No. 34-08, dated March 19, 2008. 114 IBP JOURNAL Myrna S. Feliciano As a result, the Supreme Court en banc passed a resolution 95 approving said recommendations by: 1. Designating 117 environmental courts; 45 forestry courts from the 101 courts so designated under Administrative Order No. 150-593, July 26, 1995; 48 1 st level courts and 24 2 nd level trial courts, to handle all types of environmental cases, including violations of the Fisheries Code (RA 8550) and violations of the NIPAS Act (RA 7586), among others, except those cases within the jurisdiction of quasi-judicial bodies; 2. Considering all single sala 1 st and 2 nd level courts as special courts to hear and decide environmental cases, in addition to their regular duties; 3. Raffling all appealed environmental cases in the Court of Appeals court-wide; and 4. Conducting capacity-building programs for the personnel of the aforesaid environmental courts and the appellate courts after the formal designation of said courts. Pursuant to this, the PhilJA proceeded with the training of judges using the Academy’s publications, namely, Greening the Judiciary; Learning Modules on the Environment (2005) and Environmental Law Training Manual (2006) which was published with the assistance of leading environmentalists. Ensuring that the third-generation human rights are upheld, the Supreme Court held a Forum on Environmental Justice: Upholding the Right to a Healthful and Balanced Ecology on April 16-17, 2009, simultaneously in Baguio, Iloilo and Davao Cities. Participants in the Forum included judges, non-government organization members, government representatives, the academe and other stakeholders. It has led to the signing of Multi-sectoral Memorandum of Agreement to further strengthen and implements of the country’s environmental laws. It also resulted in valuable inputs on the Draft Rule of Procedure for Environmental Cases, which reflects concerns and recommendations of all stakeholders and covers all stages of litigation. 96 On April 13, 2010, the Supreme Court en banc approved the Rules of Procedure for Environmental Cases, 97 effective April 29, 2010. The Rules govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules, and regulations. 98 95 A.M. No. 07-11-12-SC, dated November 20, 2007 as implemented by SC Adm. Order No. 23-08 dated January 28, 2008, Designation of Special Courts to Hear, Try and Decide Environmental Cases. 96 “High Court Convenes Forum on Environmental Justice,” 10 Bench Mark 1 (March 2009). 97 A.M. No. 09-6-8-SC, dated April 13, 2010. 98 Id., sec. 2. 115 VOLUME 35 NUMBER 1 (AUGUST 2010) Global Climate Change and Recent Developments in Philippine Environmental Law The salient features of the Rules are: 99 a. It liberalized locus standi and citizen’s suits; b. Speedy disposition of cases: Civil Cases. Procedural innovations are introduced at filing wherein all evidence supporting the cause of action should be submitted; certain pleadings have been prohibited under Summary Procedure; extensive use of pre-trial; use of affidavits in lieu of direct-examination and duration of trial abbreviated to one year, subject to extension for justifiable cause; Criminal Cases. Extensive use of pre-trial to clarify and simplify the issues, use of affidavits in direct-examination, abbreviated period of trial to one year; and authorizing the judge to enter a plea of not guilty in instances where the accused fails to appear at arraignment being a requisite for the availment of bail; Special Civil Actions. Two special writs are provided: the writs of kalikasan and continuing mandamus. In addition, the writ of kalikasan incorporates the prohibition of certain pleadings and given the same level of priority as the writs of habeas corpus, amparo, and habeas data. Summary proceedings have been adopted for the writ of continuing mandamus to facilitate speedy resolution. c. Consent Decree in order to avail the benefits of negotiating a settlement including the preservation of litigation resources and prevention of any further delay in the implementation of regulatory programs; d. Remedial measures: Environmental Protection Order (EPO) refers to an order issued by the Court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve, or rehabilitate the environment. It can be issued as a Temporary Environmental Protection Order (TEPO) as an ancillary remedy or permanent one (EPO). These two remedies are also available in criminal cases under the Rules; Writ of Continuing Mandamus; Writ of Kalikasan seeks to address the potentially exponential nature of large-scale ecological threats and the questions of jurisdiction arising from it by petitioning the Supreme Court or Court of Appeals; e. Application of the precautionary principle where full scientific certainty shall not be required of the party alleging environmental damage. The principle, however, does not apply in determining criminal liability. 99 Id., Rationale to the Rules of Procedure for Environmental Cases, p. 66-97. 116 IBP JOURNAL Myrna S. Feliciano 5. Conclusion While the Philippines acts fast when it comes to signing international conventions and enacting laws to protect the environment, sadly, these measures are seldom enforced. For example, officials need to pay more attention to country’s more than 800 rivers and river systems which are either vanishing or dying from physical, biological or chemical damage. Then there are the open dumps and the controlled dumps that should have ceased to exist in 2004 and 2006, respectively, as provided by RA 9003, but are still around and continue to pose real toxic threat to public health, the environment and climate. According to former DENR Secretary Lito Atienza, “A country’s progress would always be linked to its efforts in protecting and preserving the environment. We cannot talk of progress if we cannot clean up the environment. These laws are nothing but scraps of paper if we do not enforce them.” 100 Most current environmental problems are essentially the result of people’s activities and their attitude towards the socio-cultural and natural environments. Historically, individual and societal values have not always been in the best interest of preserving a high-quality environment. The present-day environmental crisis demands a change in attitude and values in order that initiatives can be taken to rescue the environment from total destruction. 100 “RA 9003 Just a Scrap of Paper,” Philippine Daily Inquirer, March 24, 2009, p. A-14. 117 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar An Environmental Writ: The Philippines’ Avatar Francis N. Tolentino* I. Introduction The Philippines was once described as follows: “A world you didn’t think still existed… [an] island paradise… Where tropical nights rain stars. Dazzling blue waters beckon to the pristine white sands bleached even whiter by the sun. And coconut trees bend to listen to the waves. Where life is an idyll and smiles are dreamy.” 1 The movie Avatar, released in 2009, is classified by critics as an epic science fiction film. 2 Yet, the scenes that it painted and the story that it exposed represent a factual milieu that is all too familiar to many nations. The movie narrated a spectacular world threatened by corporate greed and the classic battle between a corporation and the few who are willing to stand against it. In the movie, the good guys won, but for the Philippines, this ending remains bleak and farfetched, to say the least. In the last 40 years, increasing urbanization, illegal logging, mining operations, forest fires and population expansion 3 have led to the loss of a third of the Philippines’ forest cover. 4 Of the 1,196 known species of amphibians, birds, mammals and reptiles in the country, only about five percent (5%) are under some form of protection. 5 Moreover, overfishing and destructive fishing has decreased the quality of marine resources by 90%, amounting to an estimated cost of $420 million annually in lost revenues. 6 “Increasing water pollution is degrading the country’s groundwater, rivers, lakes, and coastal areas, and the quality of half of the country’s rivers fall below water quality norms. Ninety percent (90%) of sewage is untreated and not * AB Ateneo de Manila University; LLB Ateneo Law School, 1984; LLM University of London; SJD Candidate, Tulane University Law School (New Orleans, USA). 1 Philippine Airlines advertisement cited in Robin Broad and John Cavanagh, Plundering Paradise: The Struggle for the Environment in the Philippines (1993). 2 Avatar (2009), available at http://movies.yahoo.com/movie/1809804784/info (last visited Mar. 21, 2010). 3 World Bank Report on the Philippine Environment, http://web.worldbank.org/WBSITE/EXTERNAL/ C O U N T R I E S / E A S T A S I A PAC I F I C E X T / E X T E A P R E GT O P E N V I RO N ME N T / 0,,contentMDK:20266328~menuPK:3558267~pagePK:34004173~piPK:34003707~theSitePK:502886,00.html (last visited on 6 March 2010). 4 Forest Statistics in the Philippines, http://rainforests.mongabay.com/20philippines.htm (last visited 6 March 2010). 5 Id. 6 Environmental Problems in the Philippines, http://www.panda.org/who_we_are/wwf_offices/philippines/ environmental_problems__in_philippines/ (last visited 6 March 2010). 118 IBP JOURNAL Francis N. Tolentino disposed in an environmentally sound manner. Less than ten percent (10%) of the country’s total population is connected to sewers and others rarely maintain adequate on-site sanitation.” 7 Despite the increasing recognition of the immediate need to address these environmental concerns, inadequate enforcement of environmental laws still hounds the country. Because of the rapid destruction of the country’s natural resources, aggravated by near-sighted governmental polices primarily geared toward economic growth and development, those that suffer the most from this ecological backlash are those afflicted with abject poverty and the environment in general. For the Philippines, this means that the brunt of the consequences will be borne by 32.9% of the population, or about 27,616,888 citizens. 8 Mahesh Chander Mehta is not off the mark when he suggests that, in the Third World, the problems of environmental degradation have particularly worrisome overtones. He writes: “In its race for modernization, the Third World has blindly adopted the Western model for “development” – of capital and resource intensive industrialization, urbanization and mechanization, and chemicalization of agriculture – in a false belief that this type of rapid growth will eventually trickle down and eradicate poverty. As a consequence, we have paid a heavy price. Development that does not respect nature rebounds on man. Resources are exhausted, ecosystems collapse, species disappear, and people’s lives, health, livelihoods, and their very survival are threatened.” 9 These predicted crises have given birth to a new world view, which mandates government agencies and decision-makers to take into account environmental values together with other governmental considerations. Particularly, these urgencies have prompted the Philippine judiciary to take a more active role in the enforcement of environmental values and the protection of environmental rights. 10 In this paper, a proposed environmental writ will be referred to as the Writ of Gaia, a term borrowed from James Lovelocks’ Gaia Hypothesis, which classifies the planet earth as “not only an ecosystem with interconnected parts, but a whole living organism.” 11 It will also undertake to discuss the role of the judiciary in light of the national environmental policy, learnings and practices in different jurisdictions, and ultimately, aims to justify the need for its adoption for the advancement of the Filipinos’ constitutionally - guaranteed right to a healthy environment. 12 7 World Bank Report on the Philippine Environment, Supra Note 3. 8 Philippine Poverty Statistics, http://www.nscb.gov.ph/poverty/2006_05mar08/table_2.asp, (last visited 6 March 2010). 9 Dr. Parvaez Hassan and Azim Hazfar, Securing Environmental Rights Through Public Interest Litigation in South Asia, 22 Va. Envtl. L.J. 215 (2004). 10 Reynato S. Puno, Chief Justice of the Supreme Court, Delivered on the occasion of Philippine Constitution Day (Feb. 8, 2009). 11 Angelina P. Galang. The Philippine Environment in the Ecozoic Age: Principles of Environmental Science in the Philippine Setting 33 (2009). 12 Philippine Constitution, Art. II, S. 16. 119 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar II. The National Environmental Policy and the Public Trust Doctrine On a policy level alone, the Philippines is said to have one of the world’s most developed approaches to environmental protection and preservation. It is a fundamental State policy under Section 16, Article II of the Constitution, which provides that: 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 Supreme Court interpreted this policy as an actionable right in the landmark case of Oposa v. Factoran 13 The ponencia by Justice Davide characterized it, viz: 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- 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 for they are assumed to exist from the inception of mankind. Gatmaytan believes that this statement changed the way in which the Principles and State Policies in the Constitution were viewed and invoked. According to him: This statement is groundbreaking in that constitutional authorities in the Philippines have always believed otherwise. The Principles and State Policies of the Constitution are the political creed of the nation, which sets out the fundamental obligations of the government. “It is incumbent upon the people to demand fulfillment of these governmental duties through the exercise of the right of suffrage.” These principles may aid the courts in their determination of the validity of statutes or executive acts in justiciable cases, but Joaquin Bernas maintains that they were not intended to be self-executing principles ready for enforcement through the courts. They are, rather, directives addressed to the executive and legislative branches of the government. If there was a failure on their part to heed the directives, the people’s remedy would be political and not judicial. 14 13 G.R. No. 101083, 30 July 1993. 14 Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, citing Sinco (1962) and Bernas (1988), The Georgetown International Environmental Law Review, Vol. 15:457, p. 480 (2003). 120 IBP JOURNAL Francis N. Tolentino Beyond this express recognition in the Constitution, another principle which rationalizes the right of the people to invoke the right to a healthy environment can be found in the recognition of the public trust doctrine. In essence, this principle recognizes the role of the State as a trustee of common resources and preserves for the public its common use. Concomitant with this recognition is the imposition on the State the responsibility to protect what is considered as a public right. 15 The American case of Sierra Club v. Block involving wilderness is instructive: “Under the ‘public trust doctrine,’ which is a common law concept, all public lands of the nation are held in trust by the government by the people for the people of the whole country, with the government having the duty under the doctrine to protect and preserve the lands for the public’s common heritage.” 16 The origin of this doctrine can be traced to Roman law concepts of common property. “Under Roman law, the air, the rivers, the sea and the sea shore were incapable of private ownership.” 17 Since then, the “basic premise of the trust remains fundamentally unchanged.” 18 It serves two purposes: “it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources.” 19 More than the embodiment in the Constitution of the right to a healthy environment and the recognition that this right is enforceable in Philippine courts, the country’s environmental framework is also hailed as being “world class, formidable and robust.” 20 Often cited are the more recent legislations such as the Clean Air Act (1999), the Ecological Solid Waste Management Act (2000), and the Clean Water Act (2004), “lauded for laying down a comprehensive framework for air quality, solid waste and water quality management, respectively, in the place of piece-meal legislation that previously governed these matters.” 21 Despite this, the failure of the institutional and governance aspects of environmental protection has thwarted the ultimate goal of these legislative efforts: to provide effective solutions to environmental problems that have continually plagued the country. La Viña even commented that “since [the time that Oposa] was decided in 1994, the Philippines has lost more of its forest cover.” 22 15 Bryan A. Garner, Black’s Law Dictionary (8 th ed. 1999). 16 Sierra Club v. Block, 622 F. Supp. 842 (1985). 17 California State Lands Commission. The Public Trust Doctrine, available at http://www.slc.ca.gov/ policy_statements/public_trust/public_trust_doctrine.pdf (last visited 16 March 2010). 18 Id. 19 Id. 20 Antonio La Viña, The Future of Environmental Law and Governance, 83 PHIL LJ 388, p. 415 (2008). 21 Id., p. 415. 22 Id., p. 389. 121 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar It is in light of this inadequacy that environmental practitioners have turned to the judiciary and sought the adoption of a more practical and effective measure to complement the enforcement of existing constitutional, policy and legislative foundations. This, notwithstanding, the question remains: what authority does the judiciary have in addressing these shortfalls? III. The Role of the Judiciary Traditionally, judicial power has been restricted to the court’s authority “to settle actual controversies between real conflicting parties through the application of a law.” 23 However, since the celebrated case of Marbury v. Madison, 24 judicial power has been reinvented to include the duty to strike down laws in opposition to the Constitution. In the field of environmental law enforcement in the Philippines, judicial review is considered the major tool by which the Supreme Court has affected both its evolution and policy. La Viña writes that “the judiciary influences environmental management through its power of judicial review. Specifically, courts: adjudicate “conf licts and violations that arise out of the implementation and enforcement of laws dealing with the use of natural resources and impact of human activities on public health and the ecosystem,” and decide on the just apportionment of limited resources 25 . However, beyond the power of the Court to settle actual controversies presented before it, the Court likewise has the power to promulgate rules to guide future conduct. Under Sec. 5(5) of Art. VIII of the Constitution: “The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts…” 26 Yale Law Professor Peter H. Schuck, citing political scientist Richard E. Neustadt, points out: “the constitutional arrangements known as ‘separation of powers’ is really a messy system of separate institutions sharing power.” The boundary lines between what each of the branches may and may not do are all ill- defined, except in the clearest cases, these lines are politically and legally contestable, intensifying the competition over jurisdiction and power. xxx In such competitive systems, the courts are often the joker in the constitutional deck.” 27 23 Joaquin G. Bernas, S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary 937 (2003). 24 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803). 25 La Viña, Supra Note 20, p. 415. 26 Philippine Constitution, Art. VIII, S5(5). 27 Speech of Peter H. Schuck. Baldwin Professor of Law, Yale Law School, New Haven, CT, March 2004, available at http://islandia.law.yale.edu (last visited 25 March 2010). 122 IBP JOURNAL Francis N. Tolentino A. The Rule-making Power of the Supreme Court As presented above, the Constitution confers upon the Supreme Court the power to promulgate not only procedural rules in relation to the practice of law but encompasses an expanded rulemaking power in the enforcement of constitutional rights. 28 The rationale for this mandate was explained by Chief Justice Puno as a reaction by the drafters of the 1987 Constitution in their reexamination of the balance of powers between the three branches of government. He states: “The re-examination easily revealed under the then existing balance of power, the Executive, thru the adept deployment of the commander-in-chief powers, can run roughshod over our human rights. It further revealed that a supine legislature can betray the human rights of the people by defaulting to enact appropriate laws, for there is nothing you can do when Congress exercises its power to be powerless. It is for this reason and more, that our Constitutional Commissioners, deemed it wise to strengthen the powers of the Judiciary, to give it more muscular strength in dealing with the non- use, mis-use, and abuse of authority in government.” 29 It must be noted that the 1987 Constitution was drafted with a “mission to carry out the socio-economic agenda of the People Power revolution.” 30 At a time when political and social revolution were the foremost concerns, the authors of the Constitution sought to end judicial submissiveness and created a more empowered court, subject only to the limitation that this power cannot be exercised to alter substantive rights. 31 Since the right to a balanced and healthful ecology has been established as an actionable right, it then falls within the role of the courts to interpret this constitutional provision and provide a procedure for its enforcement. IV. Judicial Activism in India and the Doctrine of Separation of Powers An extension of the question on the authority of the judicial branch to unilaterally promulgate the proposed rules involves the challenge to overcome the objection that such rules violate the principles espoused under the doctrine of separation of powers. These warnings become more real than apparent when considered vis-à-vis the proactive stance taken by India’s courts in the enforcement of its laws. The evolution of the environmental law in India and the court’s role can be summarized, viz: 28 Philippine Constitution, Supra Note 26. 29 Chief Justice Reynato S. Puno, View from the Mountaintop, Keynote Speech at the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances – Searching for Solutions, Manila Hotel, July 16, 2007. 30 Raul S. Pangalangan. Chief Justice Hilario G. Davide, Jr: A Study in Judicial Philosophy, Transformative Politics and Judicial Activism. 80 PHIL LJ 538, p. 548 (2006). 31 Andres v. Cabrera, 127 SCRA 802 (1984). 123 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar “Prior to the late 1970s, the Supreme Court’s decisions were generally characterized by judicial restraint. It avoided confronting Parliament on issues of economic regulation and civil liberties, preferring to help establish the legitimacy of the Central government. It was not until the emergency period in the mid-1970s that the Court began to establish itself as a powerful activist force. In 1975, in response to charges of election fraud in the election of 1971, Prime Minister Indira Gandhi declared a state of emergency and suspended civil rights across the country to maintain control over her position. She forced a number of economic reforms through Parliament, as well as some more controversial legislation, including a constitutional amendment that confirmed her election in 1971. Stepping forward in such an uncertain era as a protector of the people, the Court intervened in the case of Indira Gandhi v. Raf Narain and declared the amendment unconstitutional. In the twenty-five years following the emergency period, the Supreme Court has continued to reinvent itself. Taking on the role of “the last resort of the oppressed and bewildered,” the Court initiated a period of judicial activism in a wide range of legal areas. One of the most important judicial reforms came with the establishment of public interest litigation (PIL), which enables any citizen to bypass ordinary legal proceedings and appeal directly to the Supreme Court to protect his/her fundamental rights. In the 1984 case of Bandua Mukti Morcha v. Union of India, Justice P. N. Bhagwati stated that if a person was physically or economically unable to approach the Court, he/she “may move the Court even by just writing a letter,” because the legal system would otherwise be inaccessible to some of its citizens.” 32 In the Bandhua case, the Court decided to “abandon the laissez-faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools” to make “fundamental rights meaningful for the large masses of people.” In this latter ruling, two major developments were declared by the Court. First, that the right to a healthy environment is a fundamental right and that in enforcing this right, the Courts liberalized the rule on standing. 33 Beyond these pronouncements, the Supreme Court of India is heavily criticized for its reaction in environmental litigation when it compensated for what the Court perceived as inadequacies in legislation by expanding its own rules and by creating “its own system of environmental protection....” 34 The strong stance taken by the Indian Supreme Court is evident in the 1998 Delhi Pollution case wherein the Court, embracing its activist role, issued a controversial order suo moto mandating the 32 J. Mijin Char, A Critical Examination of the Environmental Jurisprudence of the Courts of India, 10 Alb. L. Envtl. Outlook J. 197 (2005). 33 Id. 34 Id. 124 IBP JOURNAL Francis N. Tolentino conversion of the entire Delhi fleet of diesel-powered buses to compressed natural gas (CNG) 35 The Court’s ruling in this case was met with strong opposition and was criticized as a usurpation of the powers granted to other enforcement agencies. 36 S.P. Sathe, the director of the Institute of Advanced Legal Studies in Pune, India, commented that the Court’s action in this case was beyond “(Judicial) activism” but rather “. . . is excessivism” as the court undertook “responsibilities normally discharged by other co-ordinate organs of the government.” 37 This same objection is presented with regard to the proposed judicial reform. Since the environmental writ will be the product of the Supreme Court’s initiative, there is a danger that judicial power over environmental cases may be extended beyond the limits of the Court’s authority as embodied in the Constitution. It is feared that this unwarranted broadening of the powers of the Court will violate the doctrine of separation of powers and concomitantly, the system of checks and balances laid down to prevent arbitrary State action. Further, the dissenting opinion of a US Supreme Court Justice in the leading environmental case Sierra v. Morton is still relevant: “Ours is not a government by the Judiciary. It is a government of three branches, each of which was intended to have broad and effective powers subject to checks and balances. In litigable cases, the courts have great authority. But the founders also intended that the Congress should have wide powers, and that the Executive branch should have wide powers. All these offices have great responsibilities. They are not less sworn than are the members of the Court to uphold the Constitution of the United States.” 38 The invocation of the doctrine of separation of powers and the charge of judicial activism, however, fails to justify the abandonment of the proposed judicial reform. Besides the fact that it has been established that it is within the Court’s rule-making power to promulgate such rules, the opposition loses force when viewed in light of the history of two writs adopted and currently enforced by the Court – the Writs of Amparo and Habeas Data. Particularly, in the case of the Writ of Amparo, the same objections were raised and struck down as being misplaced and at best, inadequate. 35 S.C. Writ Pet. (Civil), M.C. Mehta v. Union of India (July 28, 1998) (No.13029/1985), available at http:// www.elaw.org/resources/text.asp?ID=1051 [hereinafter Delhi Pollution Case 1998]. 36 Armin Rosencranz and Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003). 37 S.P. Sathe, Judicial Activism: The Indian Experience, Wash. U. J.L. & Pol’y 29, 40 (2001). 38 405 U.S. 727 (1972). 125 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar V. Judicial Activism and The Writ of Amparo When the Rule on the Writ of Amparo took effect last October 24, 2007, 39 quick opposition emerged when “some have decried that the Supreme Court has become an ‘activist court,’ contrary to its traditional mandate of ‘passivity.’ 40 This objection, however, was quickly muted because of the majority consensus that the current rule to protect the right of the people to life, liberty and security, in place at that time, was viewed as inadequate, viz: “Presently, the writ of habeas corpus is unable to provide adequate protection to the right to life, liberty and security of the person since denial of custody by the respondent would usually lead to the dismissal of the petition. Moreover, the petition for habeas corpus is not the appropriate remedy where the person is arrested by the police who claimed to have released him but still continued to be missing.” 41 Pangalangan even painted judicial activism in a positive light when he described it as a different matter than ordinary activism identified with progressive social causes. He says: “Judicial activism, rather, refers to a judge’s readiness to use his court, his judicial decisions, or to use, in a more precise legal term, the power of judicial review, to advance substantive social or political causes. 42 Thus, the judicial attempt to fill the gaps in the procedural remedies to protect these constitutional rights was preferred and supported. The same situation presently exists in the development of the Rule on the Writ of Gaia. Since there are recognized procedural lapses in the enforcement of environmental laws, the more active role that the judiciary has taken should not be a deterrent to the adoption of these rules. As regards the invocation of the doctrine of separation of powers, the objections resonate the often-quoted fear that the participation of the Supreme Court will “dwarf the political capacity of the people.” 43 Since the judiciary is an independent branch, unelected through popular will, the judiciary’s decision was viewed as an unaccountable judgment that is more prone to abuse than the discretion exercised by the other branches of government. Therefore, the objection goes, allowing the 39 Supreme Court, A.M. No. 07-9-12-SC. 40 Felipe Enrique M. Gorzon Jr. and Theoben Jerdan C. Orosa. Watching the Watchers: A Look Into the Drafting of the Writ of Amparo 82 PHIL LJ 8 p. 11 (2008). 41 Id. 42 Pangalangan, Supra Note 30. 43 Flast v. Cohen, 392 U.S. 83, 120 (1968) (Douglas, J., concurring opinion, quoting J. Thayer, John Marshall 106, 107 (1901). 126 IBP JOURNAL Francis N. Tolentino Courts to legislate will be an additional and possibly an unrestricted avenue for possible abuse. However, it must be noted that an important conception about both the principles of separation of powers and checks and balances is that while the three branches of government are considered as independent from each other, the delimitation of their powers are not absolutely severed from each. Instead, they are interdependent and, at times, there may be a certain degree of blending of these allocated powers and functions. 44 Considering that all three branches work towards the same ends, it is impracticable, if not impossible, to maintain complete separation of each of the three branches. In the words of Justice Laurel, “The classical separation of governmental powers, whether viewed in the light of political philosophy of Aristotle, Locke or Montesquieu, or of the postulations of Mabini, Madison or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers.” 45 VI. The Nature and Functions of Writs In recent years, the Court has actively utilized its rule-making power through its adoption of the rules on two writs complementary to the writ of habeas corpus. Aside from the Writ of Amparo, which has already been described above, the Court also adopted the Rules on the Writ of Habeas Data. While these two writs were conceived to address extrajudicial and forced disappearances, the latter differs as it primarily addresses the concern of access to information, a privilege which the Writ of Gaia likewise seeks to provide. Before delving into the substantive content of the proposed writ, however, an overview discussion on nature and functions of writs is beneficial. In general, a writ is defined as a “court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.” 46 It has a long history, which can be traced to its formal origin, viz: “…to the Anglo-Saxon formulae by which the king used to communicate his pleasure to persons and courts. The Anglo-Norman writs, which we meet with after the Conquest, are substantially the Anglo-Saxon writs turned into Latin. But what is new is the much greater use made of them, owing to the increase of royal power which came with the Conquest.” 47 44 Vincente G. Sinco, Philippine Political Law: Principles and Concepts, 128 (1962). 45 Cited in. Reynaldo B. Aralar, Separation of Powers and Impeachment. 13 (2004). 46 Garner, Supra Note 15. 47 Id., citing W.S. Holdsworth, Sources and Literature of English Law 20 (1925). 127 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar One of the writs commonly seen as part of the common law of England is the Writ of Ne Exeat Regno. This writ is issued by the king when he wants to “prohibit any part of his subjects from going into any parts without license.” By virtue of this writ, “subjects owed an obligation to fight for the king and to ensure [that] they were available…” The purpose behind the issuance of this writ is to protect the interests of the State and to restrain departures of individuals owing taxes to the government. At present, in Pennsylvania and Illinois, this writ has evolved to contemplate cases setting equitable bail and restrain debtors from leaving the jurisdiction, at the suit of the private creditors. 48 Other examples of writs, which originated from the English government include: the Writ of Scire Facias, which was issued in the name of the king to show cause why patents of land should not be repealed or revoked; and the Writ of Procedendo Ad Justicium, which is issued when judges of any subordinate court cause delay to the parties, by not rendering judgment when they ought to do so. 49 Aside from these, this jurisdiction also has three major writs, which are relevant – certiorari, mandamus and injunction. Although these three are different in their nature and functions, (i.e., certiorari seeks to annul, mandamus seeks to mandate and injunction seeks to prevent) common to these writs is the lack of speedy, adequate, available remedy at law. They may be invoked only in cases where great and irreparable injury to the plaintiff is sought to be avoided. Similar to these remedies, the proposed Writ of Gaia seeks to “address violations of [environmental] laws involving ‘such magnitude as to prejudice public welfare,’ and for which the delay of a protracted trial must be urgently avoided. VII. The Writ of Gaia Unlike the Writ of Habeas Corpus, which is an English innovation, and the Writ of Amparo, which was first invoked in Latin America, the Writ of Gaia will be a purely Filipino invention. Chief Justice Puno himself confirmed this at a forum, saying that “we are proud to announce to the world that we have a writ that will protect our right to a balanced and healthy ecology which does not come from the West or Latin America. It will come from the Philippines itself.” 50 Some of the salient features and the needs that these proposals seek to address are discussed below. A. The Court-supervised Environmental Impact Statement The Writ of Gaia seeks to take advantage of the moribund Environmental Impact Statement (EIS) process currently in place in the country. Although 48 Id. 49 Id. 50 Edmer Panesa, “SC to Introduce Writ of Kalikasan,” available at http://www.mb.com.ph/articles/241225/sc-introduce- writ-kalikasan, 31 January 2010, (last visited 2 February 2010). 128 IBP JOURNAL Francis N. Tolentino promulgated in the 1970’s, the EIS System remains underutilized because of several weaknesses found in its implementation. Gatmaytan highlights these as follows: “First, there is a lack of capacity to fully appreciate the EIS especially in remote areas” because of the lack of sufficient expertise to carry out the responsibilities of agencies and LGUs contained in the laws. Second, there is a “lack of documentation available to prepare a comprehensive assessment” especially in identifying environmentally critical areas. Third, there are “rampant violations of the law” due to the insignificant penalties imposed under the system. Fourth, there is DENR reluctance “to deny environmental compliance certificates for investment projects because of the need to accelerate the flow of foreign investment into the Philippines.” Lastly is the presence of badly executed public participation and public consultations, which have created negative impacts on stakeholders especially the local communities adversely affected by the proposed project. Often, they are not “aware of the provisions on public participation and social acceptability of projects under the system’s implementing rules and regulations.” 51 The Rules on the Writ of Gaia seek to remedy these infirmities by mandating a court-supervised EIS to be conducted, which will command the responsible agencies to prepare an EIS strictly in accordance with the comprehensive requirements of the law. This EIS will, then, be evaluated by the court having jurisdiction over the petition to ensure that compliance thereto was not haphazardly made. Evaluation also ensures that the requirements of public participation and social acceptability of the project are met. The mandatory nature of this order seeks to remedy the hesitation of the national agencies to make a detailed statement, despite the political policy towards prioritizing investments and development rather than environmental concerns. In the end, the availability of this measure hopes to echo the US Supreme Court’s ruling on the case of Calvert Cliffs v. US Atomic Energy, 52 which requires that environmental values be considered together with other governmental concerns in assessing whether or not a project ought to continue and that “considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance.” 51 Gatmaytan, Supra Note14. 52 449 F.2d 1109, 149 U.S. App.D.C. 33 (1971). 129 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar Moreover, the court-supervised EIS will remedy the problem of inadequate access to vital environmental information necessary to be considered in the decision- making process. This will be achieved by requiring the respondent (both private and government) to provide such information to the responsible agency tasked to make the detailed EIS. In addition, provisions allowing for the court to order the production of documents vital to the petition as well as the provisions permitting the petitioner to inspect the premises and to conduct tests thereon, will also allow the responsible agency greater access to accurate information. This could also be used as a means to verify the information submitted to the court and the responsible national agencies by the respondent. Another weakness that this measure seeks to address is the lack of active public participation. This is especially important in the case of the local communities that are directly affected by the project since they have the greatest interests to preserve – that no significant and irreparable damage or risk be done to the environment. Thus, in the Writ of Gaia, public participation will be mandated by the court. It will even require comments made in the draft of the EIS to be attached to the final EIS. Through this provision, it is hoped that public participation will not be viewed merely as an inconvenient procedural requirement, but rather as a meaningful means to include the information gained from the public’s sentiment into the hands of the country’s decision-makers. B. The Environmental Protection Order and the Writ of Continuing Mandamus SC Administrative Order No. 23-2008, promulgated on 23 January 2008, designated 117 first and second level courts to serve as “green courts.” These green courts were given jurisdiction to hear, try and decide cases involving violations of environmental laws within their territorial jurisdictions. The Court followed this up with the Draft Rule of Procedure for Environmental Cases (“Draft Rules”), proposed in 2009. These proposed rules govern the procedure for civil, criminal and special civil actions before the designated green courts. 53 These rules are instructive as to their possible inclusion in the Rules on the Writ of Gaia. The Draft Rules provide for an Environmental Protection Order (EPO), defined as “a written order issued by the court directing or enjoining any government agency or person to undertake activities aimed at protecting, preserving, rehabilitating or restoring the environment during the pendency of the case involving a violation of an environmental law.” 54 This EPO may be temporary, as is provided under Rule 2, Section 3 of the Draft Rules, viz: 53 Draft Rule of Procedure for Environmental Cases, Rule 1, Section 3 (2009). 54 Draft Rule of Procedure for Environmental Cases, Rule 1, Section 6 (2009). 130 IBP JOURNAL Francis N. Tolentino SEC. 3. Provisional remedies. — If it shall appear from the verified complaint and its attachments that there is a prima facie violation of any environmental law, the court may issue ex parte a temporary EPO to be effective only for a period of twenty (20) days from date of issuance thereof. Within the said 20-day period, the court must order said party or person to file his or her comment and appear in a hearing on the prayer for a writ of preliminary EPO. The scheduled hearing shall be summary in nature. The court at its discretion, may ask clarificatory questions to the parties and their witnesses, who shall be placed under oath. The court shall immediately resolve the application for the prayer for a writ of preliminary EPO within the 20-day period based on the attachments to the complaint and statements or admissions of the parties during the hearing. A temporary EPO may be converted into one for continuing mandamus, in recognition perhaps, of the ruling in Metropolitan Manila Development Authority (MMDA), et al v. Concerned Residents of Manila Bay 55 Rule 5 Section 2 provides that: SEC. 2. Continuing mandamus. — The court may issue a writ of continuing mandamus directing the performance of a series of acts and is effective for an unlimited period of time. After judgment, the court may convert the temporary EPO to a writ of continuing mandamus. The court shall require the violator to submit quarterly periodic reports detailing the progress of the execution of the judgment. The court may also require the concerned government agency to monitor such progress. The writ shall terminate upon a sufficient showing that the order has been implemented to the satisfaction of the court in accordance with Section 14, Rule 39 of the Rules of Court. These provisional remedies may be availed of insofar as they may be applicable in criminal cases, in accordance with Rule 10 Section 1. The Court’s decision in MMDA v. Concerned Residents of Manila Bay, and consequently, the provision for continuing mandamus in the Draft Rules are important because they address a pertinent reality in environmental cases. It is difficult to identify a particular point in time when an environmental problem begins to become one. When the seriousness of the matter comes to light, the damage has usually already been done. Thus, if the Writ of Gaia is to be the mechanism by which continuing mandamus can be invoked, it cannot only be a way to remedy what is already a prima facie violation. There should also be a way by which the protection and preservation can 55 G.R. No. 171947-48, 18 December 2008. 131 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar be insured pro-actively and sought at the first instance, applying the precautionary principle as will be discussed in the subsequent sections. C. Delay in the Resolution of Environmental Cases Despite the designation of the Supreme Court of first and second level courts to serve as green courts, during a national conference held to discuss the environmental issues faced by the country’s courts, it was pointed out that more than 3,000 environmental cases remained unresolved nationwide. 56 Data from the environmental group Haribon Foundation as of January 2008 puts the exact number of pending environmental cases at 3,120, the hot spots being the Bicol region, Western Visayas and Region 4-B, composed of the provinces of Mindoro, Marinduque, Romblon and Palawan. They note that the filing of environmental cases has “increased tenfold from 1996 to 2008.” Of the total number of cases, 109 were filed before 1998, meaning that 3.5% of these have remained undecided after a decade. The numbers may not even be completely reflective, as Haribon has gleaned from statistics provided by the organization Alyansa Tigil Mina that there are more mining cases pending than what has been documented by the Philippine Judicial Academy. 57 The delay in the proper resolution of these cases makes the adoption of the Writ of Gaia imperative considering that the unimpeded damage done to the environment may merely result in a hollow victory for these cases. D. Locus Standi Threshold and Access to Justice In his speech, Chief Justice Puno also posed the question of “how further down should the courts lower the threshold on locus standi?” This question was propounded in the context of the pending case filed by the “resident sea mammals of the Tanon Strait,” against the Japan Petroleum Exploration Company, Ltd., which seeks to stop further offshore exploration in the interest of protecting the “petitioners” habitat. 58 In this regard, the Chief Justice expressed that it was necessary that any rule formulated must “strike a proper balance between the need to encourage citizen’s suits and the danger that unregulated citizens’ suits may bring about nuisance cases.” 59 56 Bordadora, Norman, SC Eyes New Writ to Speed Up Environmental Cases, 31 January 2010, available at http:// newsinfo.inquirer.net/ breakingnews/nation/view/20100131-250512/SC-eyes-new-writ-to-speed-up-environmental- cases (last visited 10 March 2010). 57 Marifel Moyano, Green Benches, 10 January 2008, available at http://www.haribon.org.ph/Topic/32/Green-Benches, (last visited 13 February 2010. 58 Reynato S. Puno, Chief Justice of the Supreme Court. Opening Remarks at the Forum on Environmental Justice: Upholding the Right to a Balanced and Healthful Ecology held on April 16-17 2009, at the University of the Cordilleras, Baguio City. 59 Id. 132 IBP JOURNAL Francis N. Tolentino Bonine writes that “standing to sue is the first step in access to justice.” 60 This is even more so in the field of environmental and other areas of public interest law, where citizen’s suits for enforcement make valuable and groundbreaking contributions. In recognition of this, many countries have liberalized their own rules on standing to sue, providing for these either in their Constitutions or in judicial decisions. The Philippine rules on standing to sue are merely procedural, and have been relaxed in cases of paramount or transcendental importance. Specifically, in Integrated Bar of the Philippines v. Zamora, 61 the Supreme Court en banc stated that: Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved. In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people. Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. In this case, the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. (xxx) …the legal controversy raised in the petition almost certainly will not go away. It therefore behooves the Court to relax the rules on standing and resolve the issue now, rather than later. What constitutes a “question of transcendental importance” is not categorically defined. However, Justice Florentino P. Feliciano has qualified this by indicating the following determinants: “(1) the character of the funds of other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.” 62 In 2007, Justice Consuelo Ynares-Santiago presented three options to address the legal issue of standing to sue in environmental cases. These were: First, complete liberalization of the rules on standing for environmental cases; Second, selective liberalization of rules, such as waiver of standing in cases of transcendental importance; and 60 John E. Bonine, Standing to Sue: The First Step in Access to Justice (School of Law, University of Oregon, 1999), in http://www.law.mercer.edu.elaw/standingtalk.html (last visited 6 March 2010). 61 G.R. No. 141284, 15 August 2000. 62 cited in Jumamil v. Café, et al, G.R. No. 144570, 21 September 2005. 133 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar Last, adoption of the rule that environmental cases are imbued with public interest, where rules on standing and cause of action may be interpreted liberally. 63 Justice Ynares-Santiago’s first option can be likened to the “open standing” provisions used by the Land and Environmental Courts in New South Wales, Australia. Under these, “any person may approach the court alleging a breach or threatened breach of environmental law.” 64 Their application has promoted public interest litigation and has encouraged the “reappraisal of the appropriateness of many of the established practices and procedures of the courts in determining litigation,” such as the rules on costs. The objection that such a liberal approach to standing presents a “danger that unregulated citizens’ suits may bring about nuisance cases” was not confirmed by the Australian experience. Justice Stein noted that the open standing provisions “never exceeded 20% of registrations for civil enforcement and judicial review” brought by individual citizens and NGOs in any year. If anything, the availability of open standing provisions “highlighted the significant procedural hurdles inhibiting access to the court in environmental cases,” such as the high of costs of litigation. 65 In the Philippines, “While many NGOs, POs, other community groups and environmental law practicioners have expressed [interest] in or are already currently engaged in environmental law enforcement, their inability to prosecute criminal actions constitute barriers to effective enforcement. Save for the provisions of the Clean Air Act and Ecological Solid Waste Management Act on citizen’s suits, there is no legal recognition of citizens’ right to bring actions for violations of environmental laws.” 66 The proposed Writ of Gaia seeks to address this and may be used as an avenue through which greater access to courts is provided by having more liberalized rule on standing. Accompanying the liberalized threshold on standing and as part of efforts to propel greater access to justice, the Writ of Gaia will also embody the principles pronounced in the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (otherwise known as the Aarhus Convention). The same principles enumerated therein are reiterated in Principle 10 of the Rio Declaration on Environment and Development, which calls for “public access at the national level to environmental information; access to public participation in the decision-making; and public access to judicial and administrative proceedings in environmental matters.” 67 63 Ynares-Santiago (2007) quoted in La Viña, Supra Note 20, p. 749-50. 64 Paul Stein, Major Issues Confronting the Judiciary in the Adjudication of Cases in Environment and Development, COURT SYSTEMS J, Special Edition, p. 216 (1999). 65 Id., p. 271-72. 66 La Viña, Supra Note 20, p.414. 67 World Resources Institute, World Resources 2002-2004: Decisions for the Earth, Balance, Voice and Power, Washington DC (2003). 134 IBP JOURNAL Francis N. Tolentino Again, it is the court-supervised EIS System of the Writ of Gaia that will act as the main mechanism that will give life to these declarations of principles. In the Philippines, “While the legal framework for public participation is already strong, one glaring flaw is the absence of an effective mechanism to enforce compliance with the requirements set by law.” 68 Therefore, it is proposed that the Writ of Gaia be employed in order to act as an effective deterrent and a speedy remedy against non-compliance with public participation requirements. E. Natural Resource Damage Liability Another feature, which the Writ of Gaia intends to advance is the inclusion in its provisions of the so-called Natural Resource Damage (NRD) Liability. Natural Resource Damage (NRD) Liability started as a directive of the European Union to prevent and remedy environmental damage by establishing a framework on environmental liability based on the polluter pays principle in international environmental law. 69 Essentially, the intent of the NRD provisions are to restore damaged resources to their original condition and forces the parties responsible for the contamination to clean it up at their own cost. 70 What started as a regional European custom, this principle is now increasingly accepted by the international community as it is now embodied under Principle 16 of the Rio Declaration on Environment and Development. NRD costs contemplate two components - primary and compensatory. These costs include the cost to restore premises near site including remediation (primary) and the cost for value of “lost use restoration activity including acquisition of equivalent.” 71 Although imposing financial liability, however, the nature of the action is remedial in nature. The goal of its imposition is not punitive but merely that of restoration. The damages sought to be compensated include the cost of replacing, restoring, or acquiring the equivalent of the environmental resource. 72 The same principle may be adopted in enforcing the Writ of Gaia. As a consequence of finding the respondent responsible for the environmental harm, in enforcing the writ the court may likewise enforce such measures aimed at protecting, preserving, rehabilitating, restoring or compensating for the damage or risk to the environment. Because of the high burden of costs associated with correcting 68 La Viña, Supra Note 20. 69 Hannes Descamps, DENR Belgium Legal Counsel, Addressed at the International Workshop on Environmental Damage by Black Seas University of Brest: Natural Resource Damage Assessment under the EC Directive on Environmental Liability (May 18-19, 2006). 70 Michael R. Hope, Natural Resource Damage Litigation under the Comprehensive Environmental Response, Compensation, and Liability Act, 14 Harv. Envtl. L. Rev. 189 (1990). 71 Id. 72 Sharon Shutler, NOAA Office of General Counsel for Natural Resources. Natural Resource Damages, available at http://coralreef.gov/injury/injury_helton_fall06.pdf (last visited on 16 March 2010). 135 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar environmental damage, the adoption of the NRD in the rules serves a dual purpose: first, it imposes the costs on the perpetrator themselves; and second, it alleviates societal costs associated with the continuous depletion of natural resources. F. Burden of Proof and the Precautionary Principle Chief Justice Puno likewise noted that proving damages in environmental cases was often difficult. This was because these were often based on statistics and probabilities and as such could not adequately predict future impacts and effects. In this regard, he suggested an exploration of the adoption of the precautionary principle. Tolentino traces the origin of this principle in the mid-1980s “as part of the domestic laws of the then West Germany.” He goes on to state that since then, it “has been incorporated in many international environmental treaties since 1983” and cites that the “1992 Bergen Ministerial Declaration on Sustainable Development in the ECE Region… was the first international instrument to consider the Precautionary Principle as part of customary international law, and therefore binding on all signatory states…” 73 The often-cited statement of this principle is found in the Rio Declaration of 1992. Principle 15 of the Declaration reads: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The precautionary principle was applied by the Indian High Court in the case of Andhra Pradesh Pollution Control Board vs. MV Nayudu. 74 In justifying the principle, the Judges referred to Charmian Barton, from the Harvard Law Review, as follows: “There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with “some” confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through Judicial and legislative means is necessary.” 75 73 Francis N. Tolentino, The Precautionary Principle: Closing the Gap between International Trade Law and Biotechnology (2009) (unpublished, Tulane Law School) (on file with author). 74 Appeal (civil) 368-371 of 1999 Appeal (civil) 372 of 1999 Appeal (civil) 373 of 1999. 75 Id. 136 IBP JOURNAL Francis N. Tolentino The adoption of this principle likewise shifted the burden of proof required for environmental cases. In these instances, a reversal was warranted, such that “it is necessary that the party attempting to preserve the status quo by maintaining a less- polluted state should not carry the burden of proof and the party, who wants to alter it, must bear this burden.” The risk of harm to the environment or human health was to be determined according to a “reasonable persons test.” Stated otherwise, The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment 76 . The Philippine Supreme Court can be said to have taken a similar approach in Hernandez v. National Power Corporation (NAPOCOR). 77 The Court issued an Injunction against NAPOCOR’s installation of transmission lines which would pass through the area where their homes were located. Studies showed that close proximity to the electromagnetic fields generated by these lines increased the incidence of illnesses such as cancer and leukemia. Justifying its issuance, the First Division, through Justice Chico-Nazario ratiocinated that: True, the issue of whether or not the transmission lines are safe is essentially evidentiary in nature, and pertains to the very merits of the action below. In fact, petitioners recognize that the conclusiveness of their life, health and safety concerns still needs to be proved in the main case below and they are prepared to do so especially in the light of some studies cited by respondent that yield contrary results in a disputed subject. Despite the parties’ conflicting results of studies made on the issue, the possibility that the exposure to electromagnetic radiation causes cancer and other disorders is still, indeed, within the realm of scientific scale of probability. (xxx) Lest we be misconstrued, this decision does not undermine the purpose of the NAPOCOR project which is aimed towards the common good of the people. But, is the promotion of the general welfare at loggerheads with the preservation of the rule of law? We submit that it is not. In the present case, the far-reaching irreversible effects to human safety should be the primordial concerns over presumed economic benefits per se as alleged by the NAPOCOR. Consistent with the ruling in Hernandez, Gatmaytan has made suggestions with regard to the quantum of evidence needed for the issuance of injunctive relief. He has proposed that the quantum of evidence be reduced to probable cause. As such, the applicants would only have to show that: 76 Id. 77 G.R. No. 145328, 23 March 2006. 137 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar …the acts they are attempting to enjoin would probably cause the damage they are attempting to prevent. The danger to the environment should be the primary consideration in these cases. To require a higher standard would risk the possibility that the environment would be irreversibly damaged while the courts attempt to resolve the merits of the case. 78 In addition, Gatmaytan also recommends “reducing the burden of proof required to determine liability for environmental damage.” The need to establish at least a preponderance of evidence may be discouraging to potential litigants, so he proposed lowering the burden of proof for civil liability to substantial evidence. Substantial evidence, as defined in Rule 133 Section 5 of the Revised Rules of Court, the quantum of evidence required for proceedings before administrative or quasi- judicial bodies, is the “amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion,” and as such is the “least demanding form in the hierarchy of evidence.” 79 Abano likewise makes suggestions to prove causation in latent disease cases, and in other actions that may be termed “environmental torts.” He acknowledges that establishing the connection between the act or omission and the injury caused is difficult, given the long-term effects of toxic substances and lack of definitive medical conclusions. In this regard, he suggests that resort be made to 3 methods: epidemiological studies, expert testimony and the strict liability principle. 80 Epidemiological data establishes the “fact that the substances are capable of producing the injuries suffered” and as such measures the probability that the injuries were caused by the substances in question. “The evidence offers at least a circumstantial evidence of proximate cause.” 81 This data is then supported by expert testimony in accordance with Rule 130 Section 49 of the Revised Rules of Evidence. The strict liability principle “imposes liability whether or not there is fault, negligence, malice or intent.” This principle is already existent in the New Civil Code and Consumer Act of the Philippines (R.A. 7394) with regard to product defects and liabilities. 82 Although Abano’s suggestions are anchored on examples from “toxic tort litigation”, and as such refer to issues such as exposure to toxic waste that has been improperly disposed of, it is not difficult to apply his recommendations in other cases wherein human health and well-being is an indicator for violations of environmental laws and standards. These instances include the harmful impacts of 78 Gatmaytan, Supra Note 14, p. 19-20. 79 Id. 80 Vivencio F. Abano, Environmental Tort: Cause of Action, Proof and Causation, PHIL JA J, Vol. 6 No. 20, p. 185 (2004). 81 Id. 82 Abano, Supra Note 76, p. 188. 138 IBP JOURNAL Francis N. Tolentino the chemicals generated by Acid Mine Drainage and mine tailings on the marine and river resources which local communities consume (as has been the case of Rapu- Rapu Island in Albay and on the island province of Marinduque) and the hazards posed by large scale energy projects (i.e., the proposed coal-fired power plant along the Saranggani Bay). CONCLUSION The promise of a Writ of Gaia and the adoption of the doctrine of continuing mandamus in the Philippine legal arena represent efforts to “turn soft law into hard.” 83 The principles in the statutes are no longer mere aspirations or pretty words, and the courts are no longer limited to what has generally perceived as obiter in Oposa. Environmental law is becoming substantive law, such that it now warrants rules that are all its own. Justice Ynares-Santiago explained this as follows: Environmental cases have features that differentiate them from ordinary civil and criminal cases. Treating them differently does not mean giving special favors or giving bias to environmental causes. Instead, it is recognition that the nature of environmental cases makes it difficult for injured parties to find redress. The special rules only try to correct the situation to balance the playing field. 84 The Supreme Court of India once said of public interest litigation: In public interest litigation, unlike traditional dispute resolution mechanisms, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party structure is merely bi-polar and the controversy pertains to the determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action, the proceedings cut across these traditional forms and inhibitions. 85 It is generally agreed that environmental litigation involves public law, even as it may seem to resolve private concerns. Natural resources cannot easily be replaced. The loss is not only to certain plant and animal life, but perhaps more importantly, to the capacity of the now polluted segments of the environment to regenerate and 83 Stein, Supra Note 64. 84 Ynares-Santiago (2007) quoted in La Viña, Supra Note 20. 85 Sheela Barse v. Union of India 3 SCC 596 (1986) cited in Bonine, Supra Note 60. 139 VOLUME 35 NUMBER 1 (AUGUST 2010) An Environmental Writ: The Philippines’ Avatar 86 Commonwealth of Puerto Rico v. The SS Zoe Colocotroni, 682 F.2d 652 (1 st Cir. 1980). sustain life for some time in the future. 86 This is what makes environmental judicial decisions all the more important. They are bigger than the now, so to speak. The only difference is that the environmental dilemma confronting us is not part of cinema’s world of make-believe. 140 IBP JOURNAL Francis N. Tolentino Revisiting the Philippine Educational System for Everyone’s Reflection* Rustico T. De Belen** Education is everybody’s business. The educational system in this country is presented and analyzed in this paper in the context of history, law and philosophy across Philippine history. It is viewed from a developmental perspective. This paper is also premised on the notion that the culture base of Philippine education is not simply the blending of Spanish and American civilizations that “account for the practical and ruggedly individualistic character of the people” (Elevazo and Elevazo, 1995: 2). It has also its indigenous underpinnings that Filipinos, particularly our leaders, should understand so that they can be truly proud of themselves and use it as a platform to change society. Understanding the culture base of Philippine education is vital to the realization of Filipino identity and the development of a responsible, productive and patriotic citizenry through education. Education is indeed an important aspect of public governance. It is the key to a progressive and upright society. Our system of education did not spring from a vacuum. It has historical, legal and philosophical roots. From a historical standpoint, the Philippine educational system has been regarded as a hybrid, reflecting the country’s cultural and colonial history. Education laws and policies that have been enacted and implemented throughout history can attest to this. As products of the particular historical, socio- economic, political and cultural conditions prevailing at the time of their passage, they have been made to serve or address the challenges and prospects faced by the country and society at those times (De Belen, 2003: 2). A simple perusal of the language of these laws and policies reveals the legal foundation of education. However, one must pierce into their legal texts and analyze the dominant political interests, policies, behavior and attitudes of both the rulers (the government) and the ruled (the people) to understand their historical and philosophical foundations (ibid., p. 5). * Some portions of this article were lifted from the book Educational Laws and Jurisprudence in the Philippines by Rustico T. De Belen to be published this year. ** BA (Political Science), UP Diliman; BSN, St. Dominic Savio College; MNSA, National Defense College of the Philippines; LLM, San Beda Graduate School of Law, and PhD (Peace and Security Administration), Bicol University Camp Crame Peace Program. He is currently the Deputy Director of the Supreme Court Mandatory Continuing Legal Education Office and was formerly the Assistant Secretary and OIC-Undersecretary for Policy Planning and Legal Affairs of the Department of Agrarian Reform (DAR). He is the author of several books: Education Laws and Jurisprudence (2010), Philippine Laws on Food, Drugs and Cosmetics (2010), Medical Jurisprudence (2009), Dental Jurisprudence (2009), A Praxis in Community Health Nursing (2008), Public Health Care for Community Development (2008), Nursing Law, Jurisprudence and Professional Ethics (2007), to mention a few. 141 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection Thus, to fully understand the legal, historical and philosophical bases of Philippine education over a period of time, it is essential to go beyond its constitutional mandate, statutory policies and jurisprudence in education. Observably, Philippine culture and society value education as a means to an end. This is probably one reason why the Philippines has one of the highest literacy rates in Asia and in the world. With their professional skills, proficiency in English, ability to learn foreign languages, adjust to diverse working environments, and adapt to new cultures, Filipinos are very much in demand in many parts of the world. However, it is not enough that we put a premium on education in words; it has to be translated into policies. Yes, education can serve as an engine of change and a road to a successful life. But our children deserve a true Filipino education that is founded on our own rich cultural heritage and values. They must be educated to know the cultural and colonial roots of the present Philippine education system and understand its ramifications for them to discern its true essence and philosophy, and develop their own philosophical perspectives of education. Elevazo and Elevazo (1995) support the author’s view on the study of the history and philosophy of Philippine education, thus: The existing philosophy’s historical roots have their anchors in the matrix of Philippine culture, experience and way of life, despite attempts by foreign colonial educators to transplant a philosophy from their respective cultures. It should be useful to have a clear understanding of philosophy’s culture base, the Filipino psyche as well as the ideals and aspirations of a people who, by accident of history, became known as Filipinos not by choice but by force of circumstances (p.1). This paper is divided into the following periods of education history: (a) pre- historic and early education history, (b) colonial, revolutionary and commonwealth period, (c) post-liberation Philippine education, and (d) post-EDSA educational system. Notably, the colonial, revolutionary and common wealth period covers the three important colonial periods in Philippine education history – Spanish, American and Japanese, the revolutionary and commonwealth periods of Philippine history. Pre-Historic and Early Education History The discovery of the Laguna Copperplate Inscription (LCI) which is dated around 900 AD highlighted the evidence of cultural links present between the Tagalog- speaking people of this time and the various contemporary civilizations in Asia, most notably the Middle Kingdoms of India and the Srivijaya empire. It also made 900 AD as the current demarcation line between prehistoric period and the early history of the Philippines. It heralded the earliest phase of Philippine history - the time between the first written artifact in 900 AD and the arrival of colonial powers in 1521. The prehistoric period (pre-900 AD) thus covers events prior to the earliest 142 IBP JOURNAL Rustico T. De Belen phase of Philippine history - the written history of what would become the Philippine archipelago. It is presented here to enhance the discussion of pre-historic and early education history of the Philippines. For emphasis, 900 AD is now the recognized date of the first surviving written record to come from the Philippines, the Laguna Copperplate Inscription (LCI), a copperplate measuring 8 x 12 inches which was recovered in a sand quarry at Barangay Wawa, Lumban, Laguna in 1989 (Tiongson, 2008). The plate has an inscribed date of Saka era 822, corresponding to April 21, 900 CE (Common Era). Written in the Kawi Script, it contains many words from Sanskrit, old Javanese, old Malay and old Tagalog. It is evidently a legal document because it released its bearer, Namwaran, from a debt in gold amounting to 1 kati and 8 suwarnas (865 grams) (ibid.). It also mentions Tondo, Pila and Pulilan in the area around Manila Bay and Medan (or rather, the Javanese Kingdom of Medang), Indonesia, apparently as places of trade or business during that time. The LCI and its Romanized transcription are shown below: Laguna Copperplate Inscription (900 AD) Romanized transcription Laguna Copperplate Inscription (900 AD, which was discovered in 1987, is said to be more advanced script than the other systems of writing thus far discovered in the country. Source: http://www.mts.net/~pmorrow/lcieng.htm, accessed on 04/22/10. 143 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection Philippine history has long recognized the influences of ancient ancestors such as Negritos, Indonesians and Malays in our system of education. Indigenous peoples and indigenous cultural communities are now the more politically-correct terms. Aside from these early groups who came and settled in the Philippines, there were also ancient foreign traders such as Chinese, Hindus, and Arabs who influenced the Filipino people’s way of life. The Malays are credited with bringing us their system of writing known as Alibata, the ancient Filipino alphabet, although some historians and anthropologists say that it came directly from the ancient Kavi script of Java, Indonesia. Nevertheless, the Spanish noticed that Malay natives could read and write with common scripts in Alibata. Translated as Baybayin in Filipino, Alibata had been used in the country even before 1567 as reported by Miguel López de Legazpi, “They [the Visayans] have their letters and characters like those of the Malays, from whom they learned them” (Scott (2), 1994: 94, 297). While Alibata has seventeen (17) symbols - 3 vowels and 14 consonants, the LCI is an even more advanced script in limited use in the country as far back as the year 900 A.D. On top of the LCI as a prime evidence of civilization during pre-Hispanic times, there are also evidences of developments in the Philippine archipelago from Stone Age cultures in 30000 BC to the emergence of advanced thalassocratic civilizations in the 4th century AD. The first evidence of the systematic use of Stone-Age technologies in the country is estimated to date back to about 50,000 BC, and this phase in the evolution of proto-Philippine societies is considered to have ended with the rise of metal tools in about 500 BC, although stone tools continued to be used past that date (Jocano, 2001: 108, 102). Notably, the LCI and other discoveries such as the Golden Tara of Butuan (a 4-pound gold statue of a Hindu-Malayan goddess, found in Mindanao in 1917) and the 14th century pottery and gold jewelry artifacts unearthed in Cebu are additional evidences of the kind of civilization that the Philippines had have during pre- and early history. The fossilized portions of a human skull and jawbone of three individuals, finished stone flake tools and waste core flakes carbon dated between 20,000 BC to 30,000 BC dug up at the Tabon Caves in Palawan further support the fact that there lived a people in the Philippines during prehistoric times whose civilization was approximately on a par with those that existed in other parts of the world. Jocano (1998) points out that: Alibata, ancient Filipino alphabet 144 IBP JOURNAL Rustico T. De Belen …there were people here in the (Philippine) archipelago during the prehistoric times. The descendants of these early groups are now known as Filipinos! Their accumulated experiences constitute of (sic) what we now know as Filipino culture (p.63). The period of Barangay states and thassalocratic (rule of the sea) trade (200AD- 900 AD) saw the movement of various indigenous peoples’ groups across the country which formed small political units known as a barangay, each headed by a Datu. Each barangay normally had a population of about 1000 families. Notable barangays with more than 1000 families are Zubu (Cebu), Butuan, Maktan (Mactan), Irong-Irong (Iloilo), Bigan (Vigan), and Selurong (Manila). It was during this period that the indigenous peoples and indigenous cultural communities (IPs/CCs) had a massive contact not only with people of neighboring barangays or communities but also from the other Southeast Asian and East Asian nations, making the era known for inter-island and international trade. It also led to the development of a socio-political and economic hierarchy with the rise of the Datu or ruling class; the Maharlika or noblemen; the Timawa or freemen; and the dependent class which is divided into two, the Aliping Namamahay (Slave) and Aliping Saguiguilid (Serfs). Added to this are the historical and anthropological accounts on the peopling of the Philippines such as the waves of migration, which were said to come from various parts of the Asian mainland and from three great Malayan empires – the Shri-Visayan, the Madjapahit and the Malayan empires during prehistoric times (Elevazo and Elevazo, 1995: 10). The ethos of the three great Malayan empires are believed “to have been influenced by the Hindu and Chinese cultures through contact in the trading of products and through inter-marriage long before any Europeans or Americans came to this part of the world” (ibid.). These people highly prized jars as symbols of wealth throughout South Asia, and later metal, salt and tobacco, and exchanged them with feathers, rhino horn, hornbill beaks, beeswax, birds nests, resin, rattan and others. Because of this, the IPs/ICCs in various parts of the Philippine archipelago had tremendous contacts with traders from China, India and Arab countries in earliest times. In fact, Arab missionaries came even before 1300 and inhabited Sulu, Tawi-Tawi and other parts of Mindanao (ibid.). They built a formidable culture base firmly grounded on Islam, thus the Spanish colonizers failed to subjugate them and impose their religious faith. In other parts of the country, some barangays were found to be under the de jure jurisdiction of one of several neighboring empires, among them the Malay Sri Vijaya, Javanese Majapahit, Brunei, Melaka empires, although de-facto had established their own independent system of rule. Trading links with Sumatra, Borneo, Thailand, Java, China, India, Arabia, Japan and the Ryukyu Kingdom flourished and led to the emergence of a thalassocracy due to international trade through the sea. There were numerous prosperous centers of trade that emerged between the 7 th century until the invasion of Spain in 1521, particularly in Manila, Pangasinan, Cebu, Iloilo, Butuan, to name a few. Unfortunately, almost all of these and other evidences of civilization were destroyed during the Spanish period. 145 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection With the remaining evidences of a civilization in the Philippines during the prehistoric period (pre-900AD) and early Philippine history (900 AD – 14 th Century AD), the indigenous philosophy of education may not be difficult to infer. This can be observed from the families, tribes, clans and kinship system that valued human life and had notions of honor and dignity. The development of prosperous barangays due to massive inter-island and international trade, on top of well-defined political organizations and definable culture during prehistoric times are testaments to the indigenous efforts and the capacity of indigenous peoples to educate themselves in their ways. Colonial, Revolutionary and Commonwealth Education Filipinos have been taught that these difficult and trying times are the periods of struggle and liberation of the Filipino people. No amount of resistance against colonization could prevent the colonizers from imposing and forcing upon us their systems of education. They inhabited our country and imposed upon the Filipino people their beliefs, value system, customs and traditions in all aspects of life. Their policies displayed a hybrid system of education through the amalgamation of local Philippine culture and their colonial impositions. However, they were faced with diverse views and struggles of patriotic Filipino leaders. Some unconditionally rejected and fought the colonizers, including the introduction of their systems of education. Others, however, simply accepted the foreign education systems through collaboration. There were also those who struggled for the integration of the indigenous culture and values into their foreign systems. Thus, this period of education history was marred by colonial indoctrination as the people were prevented to question or critically examine the teachings of colonizers, contrary to the present concept of education that allows critical self-evaluation and skeptical scrutiny of one’s teachings. Spanish Colonial Period. The Spanish colonial period (1521-1898) begins with the arrival of European-Portugese explorer Ferdinand Magellan in 1521 and ends in 1898. Spanish colonization drastically changed the indigenous system of education as tribal tutors were replaced by Christian Missionaries. The educational system was basically oriented towards propagation of the Catholic faith. It was elite-based, run by the clergy and served primarily the ruling class. Education was then a privilege that was never made available to the native Indios. The natives who were privileged to be educated under this system were exhaustively taught or indoctrinated to be loyal to the Spanish crown and blindly obey the conquistadores. Public compulsory education was initiated and implemented through the enactment the Educational Decree of 1863. The Education Decree of 1863 mandated a system of free, compulsory primary education. It decreed the establishment of primary school for boys and girls in each town under the responsibility of the municipal government; and a normal school for male teachers under the tutelage of the Jesuits. It included the compulsory teaching 146 IBP JOURNAL Rustico T. De Belen of the Spanish language. This system of education benefited largely the illustrados or those who came from affluent Filipino families that could afford to send their children to the limited number of secondary and tertiary schools (colegios) open to selected non-Spaniards. Although it did not reach most Filipinos, by 1898, enrollment in schools at all levels was said to have exceeded 200,000 students. In short, most native Filipinos were denied of such right and only a few who served as acolytes in church and servants to the Spaniards were lucky enough to receive Spanish education through the benevolence or forbearance of their masters. Citing the Joint Congressional Committee on Education Report entitled Improving the Philippine Education System (1949), Elevazo and Elevazo (1995) point out the underlying philosophical concerns of education during the Spanish period to be: (1) the development of knowledge of the Christian faith and ethics in preparation for the afterlife; (2) ability to read, write and count, and a command of fundamental tools and knowledge; (3) training for allegiance to the colonial rule of Spain; (4) vocational skills in agriculture and trade; and (5) ability to sing and read music primarily to participate in religious activities and secondarily for leisure (p.14). The overarching goal of the Spaniards in the Philippines was thus the evangelization of the Filipino. Observably, some native Filipinos, who were converted into the Catholic faith, practiced their new-found faith with their indigenous beliefs. Others, however, resisted everything Spaniard and fought for their liberation. They developed a philosophy of education based on their indigenous and secular orientation. The heroism of Jose Rizal and Andres Bonifacio reflects the two diverse conditions of Philippine education during the Spanish regime. Unlike Bonifacio who was known for being a self-educated native or “Indio,” Rizal was educated in the two prominent Spanish-run universities in the Philippines – Ateneo de Manila and University of Sto. Tomas – and earned a medical degree in Spain. He hated the Spanish cruelty to the natives as shown in his novels and essays. However, he wanted only justice under the rule of law of Spain, and went on to counsel against the revolution and refused to lend his name to it because he believed it was hopeless. On the other hand, in spite of his lack of formal education, Bonifacio led the most successful insurrection ever against Spain as he wanted nothing from the latter. The success of his rebellion was evidenced by the fact that it was dubbed as the “Philippine Revolution.” Bonifacio dreamed of one thing for the Filipinos - sovereignty. He wrote the Katipunan as the guiding document of the first truly Filipino government. He did not become the president of the first Philippine Republic as Aguinaldo was voted over him by the rich-dominated Tejeros convention, who believed that his lowly background made him unfit to lead the revolutionary government, and this country. Worse, upper class Spanish-educated Aguinaldo pursued the will of the Spaniards and signed the death warrant of Bonifacio. Some historians believe that the Katipunan must be proclaimed as the first Philippine Republic with Andres Bonifacio as the first president. Bonifacio first introduced the concept of the Philippine nation in Haring Bayang Katagalugan (“Sovereign Tagalog Nation”) which was replaced by Aguinaldo’s concept of Filipinas 147 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection after his election as President during the Tejeros convention on March 22, 1897 (Guerrero, et al., 1998: 166-167). The Tagalog Republic under the Katipunan revolutionary government (1896-1897) predated what is now known as the First Philippine Republic. The term Tagalog, although historically used to refer to an ethnic group, their language, and script, is not restricted to the Tagalog regions of Luzon, hence, it is equally embracing as Aguinaldo’s concept of Filipinas consisting of Luzon, Visayas and Mindanao (comprising the modern Philippines). Guerrero writes that Bonifacio and the Katipunan already had an all-encompassing view of the Philippine nation as evidenced by the Kartilla which defines “Tagalog” as “all those born in this archipelago; therefore, though Visayan, Ilocano, Pampango, etc. they are all Tagalogs” (Guerrero, 1996: 3-12). In the final analysis, only few Filipinos took advantage of the Spanish education system. The Spaniards deprived the native Indios like Bonifacio of their rights to education as they put up an unconditional resistance or struggle to be free, or to enjoy freedom in a sovereign nation. The Spaniards were preoccupied with their colonization efforts through forced political subjugation and evangelization of Filipinos to assuage their resistance and rebelliousness against the collection of forced tributes and the enforcement of forced labor, and to ward off protracted rebellions across the country (ibid., p. 18). Thus, educating the natives was their least priority, or not at all. The First Philippine Republic. The revolution period towards the end of the 19 th century was a momentous event in Philippine education history. It ended the long period of oppression and gave birth to the enjoyment of civil and political rights and the right to education. Article XXII of the Provisional Constitution written in Biak-na-Bato contained, among others, a provision on education: “Religious liberty, the right to association, the freedom of education, the freedom of the press, as well as freedom in the exercise of professions, arts, trades and industries are established.” The Malolos Constitution, which superseded the Provisional Constitution of Biak- na-Bato, clearly mandated the separation of Church and State, and decreed a system of free and compulsory elementary education. This officially declared the First Philippine Republic, which was formally established with the proclamation of the Malolos Constitution on Jan. 21, 1899. The First Republic endured until the capture and surrender of Aguinaldo to American forces on March 23, 1901, after which it was effectively dissolved. The Revolutionary Government pursued remarkable efforts to promote the education of the people after its establishment on June 12, 1898. It created a position of Director of Public Instruction under the Secretario de Fomento, to handle education matters. The schools maintained by Spain for more than three centuries were closed for the time being but were reopened on August 29, 1898. The Burgos Institute in Malolos, the Military Academy of Malolos (now the Philippine Military Academy), and the Literary University of the Philippines were established. In spite of the policy changes, the First Philippine Republic was left with no choice but to start with some elements of the existing educational institutions under Spanish colonial rule, 148 IBP JOURNAL Rustico T. De Belen particularly in higher education. Nonetheless, it excluded the teaching of religion at all levels and focused on the development of Filipino citizenship and nationalism. The philosophy of education during the revolutionary period was centered on freedom and “love of country within the context of love of God” (ibid., p.22). This Filipino value was the dominant theme of Andres Bonifacio’s “Duties of the Sons of the People” and Apolinario Mabini’s “Decalogue.” The First Philippine Republic was unfortunately short-lived, thus its philosophy on education failed “to reach full flowering and fruition” (ibid., p. 23). Nevertheless, it gave opportunities for those Filipino revolutionary heroes to espouse, albeit for a short time, the true aspirations, visions and values of Filipino education. These revolutionary heroes struggled for a government ran by Filipinos and protective of the interest and welfare of the Filipino people and the creation of a sovereign republic. Their essence of love of country was “so strong as to require even the supreme sacrifice of one’s life” (ibid.). They wanted a sovereign country founded on its rich cultural heritage, values and tradition. They envisioned an indigenous right- and culture-based educational system that every Filipino could be proud of. American Colonization Period. The Treaty of Paris on December 10, 1898 marked the beginning of another colonial regime in the Philippines. Concluded without participation of Filipino leaders, it ended the Spanish-American war and started a new era of another colonial master. It also put a price tag for the Filipino people as the Philippines was ceded to the United States by Spain for the paltry sum of US$20 million. Like any other transaction, one who pays the price expects something in return plus profits. In the process, the Americans disregarded the political rights of the Filipino people in this anomalous transaction as they did not even ask for their consent and took it upon themselves to decide the fate of the Filipinos. Aware of the Philippine struggle and the Filipinos’ hard-won freedom from Spain, the Americans did not allow us to savor this new found freedom, but made us believe that they came here to “civilize” us. They forced upon us parity rights agreements all in their favor, while we were swamped with propaganda and hypocrisy about their democratic ideals, particularly freedom, self-determination and self- governance. Some call it imperialism; others dub it as plain and simple greed. The US-sponsored military government in the Philippines used the First Philippine Commission as its instrumentality to impose their form of colonial governance in the country. It promulgated legal policies affecting all aspects of our lives, including education. With the mandate of then President Willian McKinley, the Commission was instructed to institute an adequate secularized and free public school system during the first decade of American rule, “to enable the people to become a “civilized” community” (ibid., p. 25). The free primary instruction carried with it the teaching of the duties of citizenship, simple livelihood and avocation as mandated by the Taft Commission per instructions of President McKinley. Chaplains and non-commissioned officers were assigned to teach in the country using English as the medium of instruction. 149 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection The American period was known for the establishment of a highly centralized public school system by virtue of Act No. 74, which was enacted by the Philippine Commission in 1901. Regarded as the first educational law under the American regime, and known as the first “organic school law” of the Philippines, it resurrected the public primary school system. The Americans patterned the Philippine public school system after their system of education. The Philippine public schools used American textbooks and reading materials to teach subjects in reading, writing, arithmetic, language, gardening, domestic science, American history, and Philippine history. There were very limited technical education courses for the Filipinos as the Americans did not want them to be educated beyond what they envisioned them to be. Vocational education focused on “gardening, carpentry, sewing, lace making, and almost everything that would ‘civilize’ the ‘uncivilized’ Filipino” (p. 27). In short, the “Americans took the responsibility of thinking for the Philippines, as did the Spaniards, and of charting their educational future” (p. 29). The implementation of Act No. 74 caused a heavy shortage of teachers in the country. Because of this, the Philippine Commission authorized the Secretary of Public Instruction to bring to the Philippines more than 1600 teachers from the United States, popularly called the Thomasites, between 1901 and 1902. These teachers were dispersed throughout the islands to establish barangay schools and teach the people. The Commission activated the Philippine Normal School (now the Philippine Normal University) to train Filipino teachers for the public schools to arrest the problem. In line with the system of governance, the Philippine Commission mandated the provincial governments to support the high school system and created special educational institutions, schools of arts and trades, agricultural schools, and commerce and marine institutes in 1902. In 1908, the Philippine Legislature approved Act No. 1870 which created the University of the Philippines. It enacted Act No. 2706, otherwise known as the Private School Law. It also passed the Reorganization Act of 1916 providing for the Filipinization of all department secretaries except the Secretary of Public Instruction. After two-and-a-half decades of American colonial government, the Monroe Survey Commission was created in 1925 to evaluate the Philippine educational system. The Monroe Commission found it deficient in the area of self-governance. Because of this, the American Undersecretary of Public Instruction formulated the policy that in “so far as the state is concerned, the primary aim of education is to prepare the individual to exercise the right of suffrage intelligently and to perform the duties of citizenship fully and honestly” (p.30). With this, the public education system focused its philosophy on the teaching of the rudiments of self-government, and the use of English as a common language. The Americans did not really want us to be free early on. All their efforts displayed their lack of sincerity in helping us to become a fully self-governing nation. Indeed, it was already late (only after it had been forced upon us for two decades) when they realized that they could not impose their system of education, as it would (as it did) undermine our cherished culture, values and aspirations. Sadly, the Americans failed to consider these important aspects of our humanity. 150 IBP JOURNAL Rustico T. De Belen Nevertheless, the concept of American education may be given credit for opening opportunities for the wealthy few who were given the privilege to study in the United States and learn the true essence of freedom and democracy. The masses of Filipinos who availed of their public school system in the country waited for so long before they were finally taught the true ideals of democracy, principles of justice and freedom, and the tenets of people participation in decision-making. The greatest essentials of the American education system were not transported in the Philippines during the American colonial period; if ever they were, they remained in the pages of their textbooks where they belonged because they were never taught and implemented. Commonwealth Period. From 1935 to 1946, the Philippines was considered a commonwealth and this system of government or political designation of the Philippines prevailed, although it was shortly interrupted during the Japanese occupation. Prior to 1935, the status of the Philippines was virtually undefined. Some called it an insular territory with non-commonwealth status. The history of the Philippine Commonwealth is similar to the Commonwealth of the Northern Mariana Islands (CNMI), a commonwealth in political union with the US. The difference is that the Northern Mariana Islands and the nearby island of Guam have remained as US territories even up to the present, as they occupy a strategic region of the western Pacific Ocean. Northern Mariana Islands, which is part of Micronesia, comprises the former Mariana Islands District of the Trust Territory of the Pacific Islands. It consists of three main islands—Saipan, Tinian, and Rota—and several small islands and atolls. It is located just north of Guam; Saipan lies about 125 miles northeast of Guam, but southernmost Rota is less than 50 miles from Guam. The Northern Mariana Islands, together with Guam to the south, compose the Mariana Islands. Historically, Spain began colonizing the said islands in 1668. Originally called Islas de Ladrones (Islands of Thieves), the Spanish renamed them in 1688 in honor of Queen Mariana of Spain. Spain sold the Marianas, as well as the Carolines and Marshalls, to Germany in 1899 to raise money after the Spanish-American War. In 1914, during World War I, Japan claimed jurisdiction over all these islands after entering the war on the side of the Allied Powers; it retained them officially under a 1919 mandate of the League of Nations. The US gained control of the islands through military victories in 1944, and established a military government following World War II. Thereafter, the islands were administered by the US as part of the United Nations Trust Territory of the Pacific Islands; thus, defense and foreign affairs remained the responsibility of the US. CNMI decided not to seek independence, but instead negotiated for territorial status in early 1970s. A covenant to establish a commonwealth in political union with the U.S. was approved in 1975. A new government and its constitution went into effect in 1978. Since then, CNMI has been regarded as a commonwealth in political union with the US without representation in the U.S. Senate, but it is represented in the US House of Representatives by a delegate (beginning January 2009 for the CNMI), who may vote in committee but not on the House floor. 151 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection On the other hand, the creation of the Philippine Commonwealth was envisioned under the Philippine Independence Act, popularly known as the Tydings- McDuffie Act. It provided for a ten-year transition period to independence, during which the Commonwealth of the Philippines would be established. The Commonwealth was officially inaugurated on November 15, 1935. It had its own constitution, which remained effective until 1973, and was self-governing, although foreign policy and military affairs remained under the responsibility of the United States and the passage of law by the legislature affecting immigration, foreign trade, and the currency system had to be approved by the United States president. At the outset, the US did not really intend to make the Philippines its territory like CNMI and Guam because they wanted to control only selected parts of this country through its military bases. Added to this was the resistance being put up by our leaders then who were against Americans. Be that as it may, the 1935 Constitution provided the framework and philosophy for public education system in the Philippines. Section 5, Article XIV provides that: Section 5. All educational institutions shall be under the supervision of and subject to regulation by the State. The Government shall establish and maintain a complete and adequate system of public education, and shall provide at least free public primary instruction, and citizenship training to adult citizens. All schools shall aim to develop moral character, personal discipline, civic conscience, and vocational efficiency, and to teach the duties of citizenship. Optional religious instruction shall be maintained in the public schools as now authorized by law. Universities established by the State shall enjoy academic freedom. The State shall create scholarships in arts, science, and letters for specially gifted citizens.(Underscoring supplied). Considering the foregoing constitutional mandate, Manuel L. Quezon, the elected President of the Commonwealth, formulated a system of guiding principles to serve as standards of behavior for the Filipino people, especially the youth. He issued Executive Order No. 17, now known as the Quezon Code of Ethics, reciting the foundational philosophy for the emerging system of Philippine education. It contains fundamental guidance on how to develop moral character, personal discipline, civic conscience, and the duties of citizenship. The first two principles therein are about faith in Divine Providence and Love of Country. The basic legal guidelines that actually implemented the constitutional provision on education under the 1935 Constitution were embodied in Commonwealth Act No. 586, which was enacted to substantially reform the public school system along the following principles: (1) to simplify, shorten, and render more practical and economical both the primary and intermediate courses of instruction so as to place the same within the reach of the largest possible number of school children; 152 IBP JOURNAL Rustico T. De Belen (2) to afford every child of school age adequate facilities to commence and complete at least the primary course of instruction; (3) to give every child completing the primary course an adequate working knowledge of reading and writing, the fundamentals of arithmetic, geography, Philippine history and government, and character and civic training; and (4) to insure that all children attending the elementary schools shall remain literate and become useful, upright, and patriotic citizens. The Commonwealth period which lasted for about seven years after it was inaugurated in 1935 was interrupted by the Japanese occupation. It thus wrote down an important milestone in the legal and philosophical history of Philippine education because education during this period was made available equally to the rich and poor, at least in principle. Japanese Colonial Period. Japan invaded the Philippines in 1942. The war- time educational objectives and philosophy of the Japanese Imperial Forces were pronounced on February 17, 1942 by its Commander-in-Chief, thus: (1) to make people understand the position of the Philippines as a member of the East Asia Co-Prosperity Sphere, the true meaning of the establishment of a New Order in the sphere and the share which the Philippines should take for the realization of the New Order, and thus to promote friendly relations between Japan and the Philippines to the furthest extent; (2) to eradicate the old idea of reliance upon the Western nations, especially the USA and Great Britain, and to foster a new Filipino culture based on the self-consciousness of the people as Orientals; (3) to endeavor to elevate the morals of the people, giving up the overemphasis on materialism; (4) To strive for the diffusion of the Japanese language in the Philippines and to terminate the use of English in due course; (5) to put an importance to the diffusion of elementary education and to the promotion of vocational education; and (6) to inspire the people with the spirit to love labor (Elevazo and Elevazo, 1995: 39-41, citing Circular No. 1, s. 1942, Bureau of Public Instruction). During this period, the Philippine Executive Commission established the Commission of Education, Health and Public Welfare, and schools were reopened in June 1942. The Japanese military administration immediately conducted re- orientation and re-training of Filipino pre-war teachers for the attainment of the above objectives. On October 14, 1943, the Japanese-sponsored Republic created the Ministry of Education. Under the Japanese regime, the teaching of Tagalog, Philippine History, and Character Education was reserved for Filipinos. Love for work and dignity of labor was emphasized. On February 27, 1945, the Department of Instruction was made part of the Department of Public Instruction. The Japanese 153 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection colonial regime supported elementary education and promoted vocational education, notable of this were livelihood training in fish culture and duck raising. It tried to immediately transform Philippine society through an educational system which was politically, economically, culturally and ideologically oriented toward the establishment of the East Asia Co-Prosperity Sphere. Thus, its philosophy of education was basically anti-American. As a whole, during this period (1941-1945), the Filipinos were taught how to be resilient in the face of adversities. While Filipino teachers were forced to teach war ideology and a Japanese brand of morality against the West, we saw the fierce resistance of the people in the countryside against the cruelty of the Japanese. With the lessons learned in the previous wars, the efforts of the Japanese to re-educate the Filipinos were confronted with contrived avoidance and circumvention in the process of implementation, if not actual physical combat in the countryside. The Japanese did not actually make a remarkable dent to the already deeply embedded Western-imposed educational system in the Philippines. The Philippine educational system during the colonial, revolutionary and commonwealth periods was also tainted with colonialism. But it was not easy for the colonizers to impose their systems of education as they were met with vicious resistance from the patriotic Filipinos. In the midst of adversity and war, education become a catalyst of change as it brought the best in some Filipinos, who developed and implemented legal education policies and philosophy resembling the rich history, culture, values and tradition of the Filipino people. Post-Liberation Philippine Education Some authors limit the discussion of post-liberation period of education from the time the Philippines was liberated from Japan in 1945 to the pre-Martial Law period (1945-1970). This part presents the state of the Philippine educational system during the Marcos regime. The succeeding discussions include the systems of Philippine education after World War until the end of the Marcos regime. The post- liberation Philippine educational system starts from the end of the four-year Japanese occupation or the termination of World War II and the restoration of the Philippine independence on July 4, 1946, during which the dominant philosophy of Philippine education to foster faith in democracy as a way of life. President Manuel Roxas, at the inauguration of the Third Philippine Republic on July 4, 1946, defined this direction of Philippine education pursuant to the mandate of the 1935 Constitution. Thereafter, Executive Order No. 94 was issued in 1947, which changed the Department of Instruction to the Department of Education. This period also saw the creation of the Bureau of Public and Private Schools in charge of the regulation and supervision of public and private schools. It marked the beginning of a new direction for the Philippine educational system as it was no longer boxed in, nor required to follow the US model. However, the Western system of education was already practically transplanted in the country. 154 IBP JOURNAL Rustico T. De Belen One important piece of legislation during this period was R.A. No. 896, otherwise known as the Elementary Education Act of 1953. It made compulsory the enrollment of a child the next school year following his/her seventh birthday and the requirement for him/her to remain in school until he completed elementary education, subject to the same exceptions provided under Commonwealth Act No. 586 and the said Act. It also restored Grade VII, provided that the pupils who were in Grade VI at the time of its implementation were no longer required to complete the seventh grade in order to be eligible for first year high school. Laws and policies on education were basically guided by Article XIV, Section 5 of the 1935 Constitution, thus: “All schools shall aim to develop moral character, personal discipline, civic conscience, and vocational efficiency, and to teach the duties of citizenship.” This constitutional proviso served as the essential principle of education during the Philippine Commonwealth. Notably, the right to education has been universally recognized since the Universal Declaration of Human Rights in 1948. Article 26 of the Declaration proclaims that: ‘Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory…education shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among racial or religious groups…’ This right has since been enshrined in various international conventions, regional treatises, national constitutions, statutes, and development plans of various countries of the world. For instance, recognizing the right of education as a basic human right, Article 2 of the first Protocol to the European Convention on Human Rights (1952) obliges all signatory parties to guarantee the right to education. The United Nations’ International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) guarantees this right under its Article 13. The Convention on the Elimination of All Forms Of Discrimination Against Women (CEDAW, 1979) and more recently, the Convention On The Rights of The Child (CRC, 1989) also include the right to education. The Philippines is a signatory to the foregoing United Nations’ conventions. However, the right to basic education has been formally recognized as a human right in the Philippines since 1935, with the enactment of the 1935 Constitution. The right to basic education as a human right means that basic education is something that the Filipino people are entitled to, which they can claim without having to pay for its access and the government is obliged to provide it for free. This constitutional policy has been pursued from post-liberation to the present. For clarity and guidance, the Department of Education (DepEd) summarizes the history and legal bases of the Philippine basic educational system starting from the Spanish colonial period to the present. Considering that the powers and functions of DepEd over vocational and technical education and training (TVET) and higher education (HE) ceased only in 1994, the table below applies to the legal history of post-secondary education (TVET and HE) from 1863 to 1994. 155 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection YEAR OFFICIAL NAME OFFICIAL LEGAL BASES OF DECS TITULAR HEAD 1863 Superior Commission Chairman Educational of Primary Instruction Decree of 1863 1901-1916 Department of Public Instruction General Act. No. 74 of the Superintendent Philippine Commission, Jan. 21, 1901 1916-1942 Department of Public Instruction Secretary Organic Act Law of 1916 (Jones Law) 1942-1944 Department of Education, Commissioner Renamed by the Japanese Health and Public Welfare Executive Commission, June 11, 1942 1944 Department of Education, Minister Renamed by Japanese Health and Public Welfare Sponsored Philippine Republic 1944 Department of Public Instruction Secretary Renamed by Japanese Sponsored Philippine Republic 1945 - 1946 Department of Public Instruction Secretary Renamed by the and Information Commonwealth Government 1946 - 1947 Department of Instruction Secretary Renamed by the Commonwealth Government 1947 - 1975 Department of Education Secretary E.O. No. 94 October 1947 (Reorganization Act of 1947) 1975 - 1978 Department of Education Secretary Proc. No. 1081, and Culture September 24, 1972 1978 - 1984 Ministry of Education Minister P.D. No. 1397, and Culture June 2, 1978 1984 - 1986 Ministry of Education, Minister Education Act of 1982 Culture and Sports 1987 - 1994 Department of Education, Secretary E.O. No. 117. Culture and Sports January 30, 1987 1994 - 2001 Department of Education, Secretary RA 7722 and RA 7796, Culture and Sports 1994 Trifocalization of Education Management 2001 Department of Education Secretary RA 9155, August 2001 – present (Governance of Basic Education Act) Source: http://www.deped.gov.ph/about_deped/history.asp, accessed 4/30/10. As the basic and fundamental law of the Philippine education, the 1935 Constitution, which was promulgated after the inauguration of the Philippine Commonwealth, was re-activated after the Japanese occupation. It governed our educational system for more than three decades. It was replaced by the 1973 Constitution as an offshoot of the declaration of Martial Law. President Marcos introduced a model of education based on the vision of a new society. He believed that the 1935 Constitution had “vestiges of colonialism” and was already irrelevant to the new society. Contrary to the colonial nature of the previous constitution, the 1973 Constitution was a product of the dictatorial rule. 156 IBP JOURNAL Rustico T. De Belen As a background, Proclamation No. 1081 was issued in 1972 in which the Department of Education became the Department of Education and Culture. On September 24 1972, by virtue of P.D. No 1, the Department of Education, Culture and Sports (DECS) was decentralized with decision-making powers shared among thirteen regional offices. The 1973 Constitution, which was ratified on January 17 1973, set out the three fundamental aims of education in the Philippines: (a) to foster love of country; (b) to teach the duties of citizenship; and (c) to develop moral character, self discipline, and scientific, technological and vocational efficiency (Tulio, 2008: 120). In 1978, by virtue of PD No 1397, the Department of Education and Culture became the Ministry of Education and Culture. Article XV, Section 8 of the 1973 Constitution defined and set the constitutional framework of the Philippine education system after martial rule, thus: Section 8. (1) All educational institutions shall be under the supervision of and subject to regulation by the State. The State shall establish and maintain a complete, adequate, and integrated system of education relevant to goals of national development. (2) All institutions of higher learning shall enjoy academic freedom. (3) The study of the Constitution shall be part of the curricula in all schools. (4) All educational institutions shall aim to inculcate love of country, teach the duties of citizenship, and develop moral character, personal discipline, and scientific, technological, and vocational efficiency. (5) The State shall maintain a system of free public elementary education and, in areas where finances permit, establish and maintain a system of free public education at least up to the secondary level. (6) The State shall provide citizenship and vocational training to adult citizens and out-of-school youth, and create and maintain scholarships for poor and deserving students. (7) Educational institutions, other than those established by religious orders, mission boards, and charitable organizations, shall be owned solely by citizens of the Philippines, or corporations or associations sixty per centum of the capital of which is owned by such citizens. The control and administration of educational institutions shall be vested in citizens of the Philippines. No education institution shall be established exclusively for aliens, and no group of aliens shall comprise more than one-third of the enrollment of any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their 157 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection dependents and, unless otherwise provided by law, for other foreign temporary resident. (8) At the option expressed in writing by the parents or guardians, and without cost to them and the government, religion shall be taught to their children or wards in public elementary and high schools as may be provided by law. In line with the said constitutional proviso, B.P. Blg. 232, also known as the Education Act of 1982, instituted an integrated system of education covering both formal and non-formal education at all levels. Section 29 of the Act mandated to upgrade education institutions’ standards to achieve quality education, through voluntary accreditation for schools, colleges, and universities. The voluntary accreditation of schools became very controversial when the CHED established the Institutional Quality Assurance Monitoring and Evaluation (IQAME) in 2005 for regulation of the existing accreditations of private schools. Because of this, former President Arroyo issued E.O. No. 705, on January 2, 2008, as amended by E.O. No. 705, which was issued on April 10, 2008. E.O. No. 705 subjected private schools not accredited by the Philippine Accrediting Association of Schools, Colleges and Universities (PAASCU) to the Institutional Quality Assurance Monitoring and Evaluation (IQAME) process. Sec. 1 of E.O. No. 705 was amended as follows: Section 1. Higher education institutions with programs accredited by the five existing accrediting agencies, namely: the Philippine Accrediting Association of Schools, Colleges and Universities (PAASCU), the Philippine Association of Colleges and Universities – Commission on Accreditation (PACU-COA), the Association of Christian Schools, Colleges and Universities – Accrediting Agency (ACSCU-AA), the Accrediting Agency of Chartered Colleges and Universities (AACUP), and the Association of Local Colleges and Universities – Commission on Audit (ALCU-COA), shall not be subjected by the Commission on Higher Education (CHED) under the process of Institutional Quality Assurance Monitoring and Evaluation (IQUAME), provided that these accrediting agencies conform with a set of common standards formulated by a Coordinating Council on Accreditation (CCA), hereafter to be established by the CHED.” The foregoing executive issuances are the very legal bases of CHED’s regulation of the accreditation of private schools. President Arroyo issued said executive issuances pursuant to her powers under the Constitution and Executive Order No. 292 (the Administrative Code of 1987). The president thus validly delegated her power to CHED by directing it to formulate common policies and standards for existing accrediting agencies to enhance and improve the quality of education in the country. However, Fr. Joaquin G. Bernas, S.J believes otherwise, contending that “accreditation shall be ‘voluntary in nature’.” (Sounding Board: CHED attempts ‘martial law over school accreditation, PDI, Dec. 209, 2009). He said that B.P. Blg. 158 IBP JOURNAL Rustico T. De Belen 232 (Education Act of 1982) and its implementing rules and Republic Act No. 7722 (CHED Act) did not give CHED the power to issue rules and regulations on accreditation. To make rules and regulations issued by administrative agencies valid, he enumerated three conditions that must be satisfied: “(1) there is a law delegating the rule-making power; (2) the delegating law contains standards for the executive agency to follow; (3) the rules stay within the standards set by the delegating law.” The CHED has been subsidizing the accrediting agencies in the accreditation of private schools, which have to pay certain fees to the accrediting bodies for their accreditation in accordance with law. With this and the said executive order mandating the accrediting agencies to conform with a set of common standards formulated by the Coordinating Council on Accreditation (CCA) of CHED, it is just proper as part of the sovereign function of the CHED to regulate higher education, including its accreditation, notwithstanding the fact that the law (B.P. Blg. 232) states that accreditation is voluntary, thus: Section 29. Voluntary Accreditation - The Ministry shall encourage programs of voluntary accreditation for institution(s) which desire to meet standards of quality over and above (the) minimum required for State recognition. Education is not a business or industry to be free of government restriction or regulation. It is not an economic activity that follows the laissez-faire theory. It is impressed with public interest. With the dismal performance of some accredited schools in various licensure examinations on top of the poor performance of accrediting agencies in the accreditation process as they have accredited only a few schools thus far, the government through CHED cannot close its eyes as it is mandated to ensure quality education. These are among the reasons for the necessity of regulating the accreditation of private schools. The CHED also wants to see to it that the millions of pesos allocated for those accrediting agencies are properly spent and accounted for. The authority to regulate the accrediting agencies is well within its sovereign function to fulfill its mandate to provide quality education for all. No less than the Supreme Court ruled that the administration and regulation of education is a sovereign function of the government to be exercised for the benefit of the public. Citing Laurel v. Desierto (430 Phil. 658; G.R. No. 145368, April 12, 2002), it defined public office as “the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public” (Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008). It also said that “Delegation of sovereign functions is essential in public office.” It ruled in the Serana case that: The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental 159 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit. Sections 16 and 17 thereof upgraded the obligations and qualifications required for teachers and administrators. Section 41 provided for government financial assistance to private schools. The Act also created the Ministry of Education, Culture and Sports. Although the law has some provisions showing biases against the private sector as the government’s strict control and supervision over schools affect primarily the private and not necessarily the public school system, it is a good law as it mandates the State to promote and maintain (1) the right of every individual to relevant quality education, regardless of sex, age, creed, socio-economic status, physical and mental conditions, racial or ethnic origin, political or other affiliation, (2) the equality of access to education as well as the enjoyment of the benefits of education by all its citizens, and (3) the right of the nation’s cultural communities in the exercise of their right to develop themselves within the context of their cultures, customs, traditions, interest and belief, and recognizes education as an instrument for their maximum participation in national development and in ensuring their involvement in achieving national unity (Sec. 3). Although the Philippine education system under the Marcos regime was subjected to intense opposition and protests from various sectors, particularly when it introduced the ideology for the new society in the basic education level through textbooks and other instructional materials, it produced the Education Act of 1982, a landmark piece of legislation that provided for the development of education in the country. President Marcos was also known for the passage of P.D. No. 1006, declaring teachers as professionals and teaching as a profession. This decree required all teachers to pass the Professional Board Examination for Teachers (PBET) before they were allowed to teach and provided for the creation of National Board for Teachers tasked to prepare and administer the PBET. Included in this was the passage of the Magna Carta for Public School Teachers that decreed the improvement of the socio-economic welfare of educators and their protection. In spite of this, the Filipino people found the imposition of the ideology of the new society into the educational system dictatorial and oppressive and they dramatized their protest on the streets leading to the 1986 EDSA revolution. With this, the ideology of the new society which President Marcos envisioned for the Filipino people to become responsible, productive and patriotic citizenry came to an end. Post-EDSA Educational System This period covers the period from the time President Corazon C. Aquino ascended to power up to the present. After President Aquino assumed the presidency, the 1987 Constitution was ratified on 2 February 1987. Section 3, Article XIV of 160 IBP JOURNAL Rustico T. De Belen the 1987 Constitution contains the ten elemental aims of education in the Philippines. Prior thereto, President Aquino issued Executive Order No. 117, reorganizing the Ministry of Education, Culture and Sports, in the process renaming the Bureau of Sports Development as the Bureau of Physical Education and School Sports, and the Bureau of Continuing Education as the Bureau of Non-Formal Education. The structure of DECS as embodied in EO No. 117 remained practically unchanged until 1994. Evidently, education plays a vital role to protect human rights, promote human dignity, and attain human progress. It is also an important instrument of socio- economic growth and sustainable development. This is precisely the main concern of Philippine education under the 1987 Constitution. Its focus is on the learner as the means and the end of development. It aims to address not only individual needs but also community needs. The duties of all educational institutions in relation to this mandate are clearly stated in Art XI, Sec. 3 (par. 2) of the 1987 Constitution: “They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.” The complementary roles of public and private educational institutions are thus recognized in the pursuit of the above objectives. The 1987 Constitution also envisions education as a tool for attaining the goals of social justice, unity, freedom, and prosperity. It wants to make education a tool of development as evidenced by its various provisions restating its commitment to national development. Art. II, Section 17 of the 1987 Constitution states that “The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. It seeks to make education a tool of equality and social justice making it free and accessible.” This shows that the 1987 Constitution regards education as a tool to achieve its aspiration to create a society of responsible, productive, self-fulfilling and patriotic citizens. It also intends to use education as an instrument of peace through the equalization of the socio-economic forces and the prevention of social division among the people. In fact, free public education is an attempt to narrow the gap between the rich and the poor. It has been enhanced with the enactment of Republic Act No. 6655 on 26 May 1988, providing for the Free Public Secondary Education Act of 1988. It specifically mandated free public secondary education commencing in the school year 1988-1989. It was followed by the passage of Republic Act No. 7323 on 03 February 1992, which provided that students aged 15 to 25 may be employed during summer or Christmas vacation with a salary not lower than the minimum wage. Sixty percent (60%) of the wage is to be paid by the employer and 40% by the government. The government has implemented the trifocal system of education with 161 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection the firm belief that it will improve universal access to quality education and the poor public governance in the Philippine educational system. The trifocal system of education in the Philippines had its impetus on the Congressional Commission on Education (EDCOM) dated December 28, 1991, entitled “Making Philippine Education Work: An Agenda for Reform,” specifically recommending the division of DECS into three agencies because of its findings on the declining state of the Philippine education system brought about by poor public governance, among other reasons. It found out that the quality of Philippine education is declining continuously as evidenced by the following observations: (1) Our elementary and high schools are failing to teach the competence the average citizen needs to become responsible, productive and self- fulfilling; (2) Colleges and technical/vocational schools are not producing the manpower we need to develop our economy; and (3) Graduate education is mediocre. It does not generate the research- based knowledge we need to create more jobs and to raise the value of production. According to the EDCOM Report, the two main reasons for the decline of Philippine education are (1) that we are not simply investing enough in our educational system, and (2) that our education establishments are poorly managed. The Philippines was then beset with restraining trends such as low performance of students, short investment in education, lack of policy direction in education, poor public and private education governance, etc. In line with this, the trifocal system of education was put in place through various legislations and policies. First, on May 18, 1994, Congress passed Republic Act No. 7722, the Higher Education Act of 1994, creating the Commission on Higher Education (CHED), which assumed the functions of the Bureau of Higher Education and the supervision of tertiary degree programs. Second, on August 25, 1994, Congress passed Republic Act No. 7796, the Technical Education and Skills Development Act of 1994, which created the Technical Education and Skills Development Authority (TESDA), which absorbed the Bureau of Technical-Vocational Education plus the National Manpower and Youth Council. TESDA supervises non-degree technical-vocational programs. DECS retained responsibility for all elementary and secondary education. Third, in August 2001, Congress passed Republic Act No. 9155, otherwise called the Governance of Basic Education Act, which renamed the Department of Education, Culture and Sports (DECS) as the Department of Education (DepEd) and redefined the role of field offices (regional offices, division offices, district offices, and schools). RA 9155 provides the overall framework for (1) school head empowerment by strengthening their leadership roles and (2) school-based management within the context of transparency and local accountability. The goal of basic education is to provide the school-age population and young adults with skills, knowledge, and values 162 IBP JOURNAL Rustico T. De Belen to become caring, self-reliant, productive and patriotic citizens. It redefines the roles of field offices (regional, division, district and schools). It also affirms free and compulsory education for children aged 7 to 12 years old, free but not compulsory for children aged 13 to 16 years old. Thus, the Philippine education system has been trifocalized since 1994, with the DECS, TESDA and CHED respectively administering the basic education, technical and vocational education and training (TVET), and higher education (HE). Challenges and Prospects The Philippines has been implementing a trifocal system of education for about two decades now. This is the right time to re-visit this system to correct its flaws because of the fact that it has not adequately addressed the issues and concerns of the Philippine education since its inception. The Philippines is now “off-track” with respect to its education commitments under the UN Millennium Declaration. Its goals to promote quality and excellence, to improve equal access to education, and to make human resource globally competitive remain to be seen. Evidently, the trifocal system of education has systematically failed to provide students with the necessary competence, skills, and preparation from basic education to post-secondary education. With this system, the government thus fails to achieve its mandate to make quality education accessible to all. The foundation of post-secondary education is basic education. We can only have quality education when we have good basic education. For this reason, CHED Chairperson Emmanuel Y. Angeles identified some pressing issues and concerns in education and proposed an action plan for the Philippine main education highway. In his paper presented during the Congressional Sub-Committee Budget Hearing held on September 22, 2008, at the Andaya Hall, South Wing, Batasan Complex, entitled “Higher Education for Global Competitiveness: Towards the New Higher Education Highway,” Chairman Angeles presented the following urgent issues and concerns affecting the Philippine educational system: (1) preparation for college work, (2) cohort survival rate, (3) performance in the licensure examinations, (4) accreditation, (5) faculty qualifications, (6) mismatch, (7) access and equity, and (8) government investment in education. He provided the following information in his paper: First reason why our educational system has not achieved what it must is the length of basic education, which is only ten years compared to the 12-year international standard; other 9 countries in ASEAN region have at least 12 years of basic education. The Philippines is thus the only country in the ASEAN region that has a 10-year basic education. This will surely affect our professionals for it would be very difficult for them to find jobs abroad because of the lacking required number of years in education. Chairman Angeles thus suggested that we have “to devote the 163 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection first two years of college in augmenting the inadequate preparation of the high school graduates for college work.” Second is the alarming drop-out rate. Statistics show that only 66 out of 100 students who enter first grade will finish Grade 6, only 58 of this 66 will continue with high school; 43 of this 58 who enter high school will finish high school; and only 14 of 43 high school graduates will graduate in college. Chairman Angeles saw the urgent need for “bridging the gap in the pupils’ preparedness for college work” and “ensuring acceptability of our professional graduates in the international/regional markets.” Third is the poor performance of college graduates in the licensure examinations. Data for the year 2007 show that the passing rate of students in the licensure examinations is only 38.72%. Chairman Angeles noted that only the Science discipline cluster has more than 50% cut-off, specifically 53% passing rate. Sadly, teacher education has a passing rate of only 28.28%. It means that only 28 out of 100 graduates of teacher education passed the 2007 licensure examinations for teachers. Fourth is the dismal state of accreditation in the country. At present, there are about 1,726 higher education institutions. Of this, 203 (12%) are public higher education institutions (PubHEIs) and 1,523 (88%) are private higher education institutions (PriHEIS). Of the 203 PubHEIs, 110 are state universities and colleges, 77 are local universities and colleges, and 16 are other government schools. Of the 1,523 PriHEIs, 1,262 are nonsectarian and 261 are sectarian. Again, 2007 data show that PubHEIs have 877,712 students; while PriHEIs have 1,687,822 students, respectively comprising 34% and 66% of 2,565,534 students enrolled for the year. Chairman Angeles observed that “only 388 HEIs have achieved standards over the minimum requirements of CHED and the rest – more than 1,300 (81%) are either just complying with the minimum standards or have not bothered to get their programs accredited.” Fifth is the lack of qualified faculty for higher education programs. The minimum requirement for higher education faculty is at a least master’s degree. CHED data show that for AY 2007-2008, only 9.65% of HEIs faculty have doctoral degrees and 32.33% have master’s degrees. Statistics for the previous academic years are almost the same, ranging from 9% to 10% (with PhD) and 31% to 34% (with MA/S). This demands nothing more than a comprehensive faculty development program for HEIs. Sixth is the mismatch between education and manpower requirements of the country. HEIs are producing more than 147,000 graduates every year. However, most of them cannot find jobs within three years after 164 IBP JOURNAL Rustico T. De Belen graduation because their competence and skills do not match the industries’ manpower requirements. Chairman Angeles noted that “wanting is the communication skills needed in the business processing and outsourcing (BPO) industry.” He also said that “the graduates’ proficiency in English and Math as well as skills in the use/application of the latest technologies are quite inadequate, if not totally lacking.” Seventh is access and equity in education. Education is always accessible for the rich, and not for the poor. Thus, when access to education is unfair, equity need not be overemphasized. Poverty has been a hindrance for most people to have access to quality education. For this reason, Chairman Angeles requested from Congress an additional budget to assist more poor and deserving students and improve access to quality education through scholarship grants and other forms of financial assistance. Eighth and last is the inadequate government investment in education. Compared with other Asian neighbors, the Philippines is lagging behind in terms of spending in education vis-à-vis the percentage of Gross Domestic Product (GDP). The total education budget’s share under the General Appropriations Act has been declining (19% in 1999 and a little over 11% in 2008 (See Philippine Daily Inquirer (PDI), 1/30/2010). Citing Wallace reports, the PDI also reported that “Our country’s Education budget is only between 2 percent to 2.5 percent of the country’s GDP, lower than the 4 percent to 5 percent recommended by UNESCO; Major East Asian economies allot 5 percent to 6 percent. The Philippines spends the least in educating its kids ($318 per child vs. Thailand’s $1,048)” (id.). The bulk of government budget to education goes to basic education (more than P150 billion). On top of this, the 2010 Education for All report states that “Education indicators for the Philippines are below what might be expected for a country at its income level and that extreme economic inequalities fuel education inequalities by pushing many children out of school and into employment.” With those alarming issues and concerns, it is time for the government to take decisive actions. The focus of the government to allocate more funds to TESDA, with more than P3M budget compared to CHED budget of about P1.5M (P1,587,096,000.00 for FY 2008, to be exact) may be misplaced. We cannot be a country of voc-tech people because we need to give opportunity for these people to improve their competence and skills and advance their career. We need to make up for the two-year deficit in basic education. And we need to harmonize our policies in post-secondary education to make it effective, cost-efficient and sustainable. It is true that it is very expensive for the government to add two more years for Philippine basic education to make it at par with the 12-year international standard. This issue has to be addressed in the post-secondary education, if not in 165 VOLUME 35 NUMBER 1 (AUGUST 2010) Revisiting the Philippine Educational System for Everyone’s Reflection the basic education sector. The 2-year deficiency in basic education can be corrected by adjusting the post-secondary education to prepare high school graduates for college work. Specifically, one suggestion is to add another two years as preparatory course for college education, also called the pre-college bridging program. The public will surely oppose this because this means additional expenses for them, and more, suspect that this is another scheme for private education institutions to profit more. We must be reminded that education teaches us that change is inevitable. In the process, it calls for critical evaluation and skeptical scrutiny of any change in education policy. CHED Chairman Angeles proposed a multi-track education system to make up for the 2-year deficit in basic education. This system will require the students graduating from high school to take aptitude tests to serve as basis for their classification into two groups: (1) those who will go to the pre-college or technical- vocational education and training (TVET) track; and (2) those who will go direct to the college/university track (HE track). This setup needs a well-developed and credible testing and evaluation to effectively determine the competence, skills and preparedness of high school graduates for admission in either the TVET or HE tract. Be that as it may, Philippine post-secondary education must address the needs of the industry without depriving our people the opportunity to further their professional education. The above issues and concerns are more than enough for our education policy-makers and legislators to review the Philippine educational system and develop a more responsive, effective, cost-efficient and sustainable system. In basic education, the DepEd can ensure the continuity and sustainability of elementary and secondary education in terms of programs and policies. The post- secondary education demands a similar setup to harmonize and make post-secondary education globally competitive, thus suggesting the merging of TESDA with CHED to form one higher education department. CHED is too small (in terms of manpower and resources) for too many clientele (students, institutions, faculty, etc.); while TESDA is too big for its limited clientele. The proposed system will reduce bureaucratic red-tape, save money, and ensure the continuity, efficiency and sustainability of post-secondary education. In the final analysis, with the lessons learned from the trifocal system of education, this is the time to correct it to promote quality and excellence, and improve access to education, and address the manpower needs of the country in a more effective, cost-efficient and sustainable manner. This can be done by instituting a dual system of education, with DepEd to maintain its supervision on basic education consisting of two stages, i.e., elementary education and secondary education, and a higher education department to assume jurisdiction over post-secondary education consisting of two tracks, i.e., TVET tract and HE track. This proposed system of education could ensure the successful completion of education from basic to higher education, enabling every citizen to get what they truly deserve – accessible, affordable and acceptable quality education. 166 IBP JOURNAL Rustico T. De Belen References Angeles, Emmanuel Y. Higher Education for Global Competitiveness: Towards the New Higher Education Highway. Quezon City: Commission on Higher Education, Office of the President, 2008. CHED Action Plan 2009-2010 on the Philippine Main Education Highway. Quezon City: Commission on Higher Education, Office of the President, 2009 De Belen, Rustico T. Laws on Indigenous Peoples: Implications to Peace Process. Unpublished Dissertation, Bicol Universisty Graduate School, 2003. Elevazo, Aurelio O. and Elevazo, Rosita A. Philosophy of Philippine Education. Mandaluyong City: National Book Store, 1995. Guerrero, Milagros; Encarnacion, Emmanuel; and Villegas, Ramon. Andres Bonifacio and the 1896 Revolution. Sulyap Kultura: National Commission for Culture and the Arts, 1996. Guerrero, Milagros and Schumacher, S.J., John. Reform and Revolution, Kasaysayan: The History of the Filipino People. Asia Publishing Company Limited, 1998. Jocano, F Landa. Filipino Prehistory: Rediscovering the Precolonial Heritage. Manila: Punlad Research House, Inc., 1998. Scott, William Henry (1). Prehispanic Source Materials for the Study of Philippine History. Manila: University of Santo Tomas Press, 1968. (2).Barangay, Sixteenth-Century Philippine Culture and Society. Quezon City: Ateneo de Manila University Press, 1994. 4th printing, 1999. Tiongson, Jaime F. Laguna Copperplate Inscription: A New Interpretation Using Early Tagalog Dictionaries, Paper presented at the 8th International Conference on Philippines studies, July 23-2006, 2008, PSSC, Quezon City. Tulio, Doris D. Foundations of Education 2. Mandaluyong City: National Book Store, 2008. MA. MILAGROS N. FERNAN-CAYOSA Governor for Northern Luzon FERDINAND Y. MICLAT Governor for Central Luzon AMADOR Z. TOLENTINO, JR. Governor for Southern Luzon JOSE V. CABRERA Governor for Bicolandia ROLAND B. INTING Governor for Eastern Visayas ROAN I. LIBARIOS Governor for Eastern Mindanao NATIONAL OFFICERS (July 2009 - June 2011) JUSTICE SANTIAGO M. KAPUNAN (Ret.) Officer-in-Charge Integrated Bar of the Philippines ROSARIO T. SETIAS-REYES National Director for Legal Aid ALICIA A. RISOS-VIDAL National Director for Bar Discipline DEAN PACIFICO A. AGABIN General Counsel RODOLFO G. URBIZTONDO Deputy General Counsel & Chief of Staff TOMAS N. PRADO National Secretary ESTER SISON CRUZ National Treasurer JAIME M. VIBAR National Executive Director MARIA TERESITA C. SISON GO Assistant National Treasurer Integrated Bar of the Philippines 15 J. Vargas Avenue, Ortigas Center, Pasig City 1600 Telephone: (632) 631-3014/18 Fax: (632) 634-4697 Website: www.ibp.org.ph Email: [email protected] BOARD OF GOVERNORS (2009-2011) JUSTICE SANTIAGO M. KAPUNAN (Ret.) Officer-in-Charge OLIVER B. SAN ANTONIO Public Relations Officer