Philippine Law and Society Review Volume 2, Number 1

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PHI LI PPI NE

LAW SOCI ETY REVI EW  S EPT EMBER2013 VOL UME2NO.1

EDITORIAL BOARD Editor in Chief Florin T. Hilbay Board of Editors Dean Pacifico A. Agabin Dean Raul C. Pangalangan Editorial Staff Emerson S. Ba単ez Aileen T. Estoquia

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TABLE OF CONTENTS Note from the Editor……………………………………………1 The Creation of the Bangsamoro: Issues, Challenges, and Solutions Antonio LaViña…………………………………………..……….3 A Perspective on Human Rights Lawyering in the Philippines: A Conversation with Attorney Romeo Capulong Gill H. Boehringer………………..………………………….......45 An Assessment of the Implementation of Republic Act No. 9344 or the Juvenile Justice and Welfare Reform Act by Local Government Units in Luzon Michelle San Buenaventura-Dy…............................................. .74

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NOTE FROM THE EDITOR  LAW IS AN enterprise burdened by the weight of time. We look ever backwards in order to glean authority that would guide the present. Part of law’s cachet lies in its claims to relevance and permanence—that the strictures we contemplate and commit to paper will transcend human limitations. And yet, rarely do lawyers look beyond the moment’s contests to contemplate the laws historical roots and its ramifications into the future.

For this issue of the Philippine Law and Society Review, we seek to breach the temporal divide with articles that take a longer view of the law. At the time of writing, almost a year has passed since the signing of the historic Bangsamoro Framework Agreement. Despite this early victory, negotiations remain a protracted process, with both sides expressing their frustration.

Dean Antonio La Viña’s The Creation of Bangsamoro: Issues, Challenges, and Solutions, a survey of the Agreement’s historical precedents and the past failures of the peace process, is a timely reminder of what is at stake in each difficult, tentative step to peace, particularly in the light of the recent chaos in Zamboanga involving the Moro National Liberation Front (MNLF).

The late Romeo Capulong was a human rights lawyer even before the label became fashionable. Many take on the mantle of pubic lawyering as if it were a chic accessory—a ticket to raise one’s public profile for a more lucrative private practice, or a rewarding official appointment. But “Ka Romy” was the genuine article; he made it his life’s work to represent those who have the least. Gill Boehringer’s interview with Ka Romy is at once a memoir of a life well-lived, and a field guide for lawyers interested in following a great man’s example.

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Lastly, An Assessment of the Implementation of Republic Act No. 9344 or the Juvenile Justice and Welfare Reform Act by Local Government Units in Luzon presents the results of a large-scale empirical study conducted by the University of the Philippines Law Center and the Department of Social Welfare and Development. The study goes beyond the confines of the legal and jurisprudential text to see how the law operates in the field, and presents recommendations on how the law may continue to serve its objectives in the future.

Often, the law manifests itself as a constant stream, to be grasped and dealt with in the oppressive present. It is our hope that this issue and other future issues of the PLSR can invite students of the law to explore its more vibrant environs.

FLORIN T. HILBAY Editor in Chief

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The Creation of the Bangsamoro: Issues, Challenges, and Solutions ANTONIO LAVIĂ‘A

I.

OVERVIEW

DECADES OF WAITING and failed experiments failed to dampen the earnest desire of the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) 1 to forge a new peace agreement, the Bangsamoro Framework Agreement, which was signed on October 7, 2012. 2 This historic agreement provides for a roadmap towards comprehensive peace in Mindanao. In referring to it, President Benigno Aquino III paraphrased the famous words of Neil Armstrong, the first man to land on the moon, in saying that the country and Mindanao has not only taken a step forward but a giant leap for peace.

The Bangsamoro Framework Agreement provides for a transition from the Autonomous Region in Muslim Mindanao (ARMM) to the New Autonomous Political Entity (NAPE) known as the Bangsamoro, which both parties agreed to create under the Decision Points on Principles signed last April 24, 2012. 3 This is a breath of fresh air considering that the often interrupted peace A Muslim secessionist group which has pushed for the independence of Mindanao for decades. Its claims are largely grounded on the historical rights of the original Muslim inhabitants in the island.

2 Available at http://pcdspo.gov.ph/downloads/2012/10/20121007-GPHMILF-Framework-Agreement.pdf (last accessed September 23, 2013).

3 Available at http://opapp.gov.ph/resources/gph-milf-decision-pointsprinciples-april-2012 (last accessed September 23, 2013).

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process, initiated by several administrations, seems to have been dragging interminably for a very long time. At times it gave the impression that the differences between the parties were simply insurmountable and the problem in Mindanao incapable of a peaceful solution, while the sufferings of the Mindanaoans became more unbearable as warring factions continued to engage in armed confrontation. This landmark peace pact will hopefully silence the guns and give the inhabitants in the conflict areas their well-deserved peace and prosperity after years of warfare.

The Bangsamoro Framework Agreement is characterized as the “mother agreement,” a roadmap containing a set of principles and values that would guide the process for the final political settlement with the MILF. As such, the details will be worked out in future negotiations between the parties. The resulting agreements will then be attached as annexes to form integral parts of the agreement.

II.

PRECEDING AGREEMENTS

Numerous episodes of failed peace negotiations underline the difficulty of coming up with a peaceful solution to the conflict in the South. It is a complicated process that attempts to resolve centuries-long historical injustices—from colonization, annexation of the Moro homeland, numerous government policies that led to the minoritization of the indigenous peoples in the region, and other unjust practices and policies by the State which are being perpetuated up to the present. This same history of injustice created deep-seated bias, prejudice, and animosity among all stakeholders, including the State, indigenous minorities, and the Christian communities in the Mindanao. The conflict is marked by the sheer density of interests, such that no simple model of solution could be proposed.

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The Tripoli Agreement of 1976 4 listed 13 provinces to be included in the formation of an autonomous government in Mindanao. It was not, however, properly implemented because of differences in the interpretation of the form of autonomy. The problem of implementation was compounded by former President Ferdinand Marcos himself who held a referendum which seemed to indicate opposition to the inclusion of certain provinces.

Marcos never implemented the agreement as envisioned. Instead, he used the dual strategies of co-opting traditional Muslim leaders and encouraging MNLF leaders to go back to the fold of the law through the offer of government perks and government largesse.

Essentially therefore, the roots of the conflict remained unaddressed.

During the administration of former President Corazon Aquino, however, the Autonomous Region in Muslim Mindanao (ARMM) was finally created on August 1, 1989 through the enactment of Republic Act No. 6734, otherwise known as the ARMM Organic Act, in pursuance with the constitutional mandate to provide for an autonomous region in Muslim Mindanao. 5 This law was further amended by R.A. 9054 in 2001.

Again, ARMM was comprehensively repudiated by the Bangsamoro after it proved to be a model of failed governance. At present, the ARMM is but a vehicle by traditional politicians for political aggrandizement, failing as it does to create social and economic impact on the lives of the Muslims and the indigenous peoples in the South. The hostilities continued.

Available at http://pcdspo.gov.ph/downloads/2012/10/Tripoli-AgreementDecember-23-1976.pdf (last accessed September 23, 2013).

5 Sec. 15, Art. X, 1987 Constitution.

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On January 20, 1994, the Joint Guidelines and Ground Rules for the Implementation of the 1993 Interim GRP-MNLF Ceasefire Agreement6 was signed. It mandated the government to authorize MNLF forces to carry their firearms within MNLFidentified areas, and for the government forces to carry firearms only in the performance of their official functions.

On September 2, 1996, the Final Peace Agreement was signed during the presidency of President Fidel Ramos. 7 The agreement skewed closely to the Tripoli Agreement and provided for transitional political and economic structures towards a new regional autonomous government by 1999. It also provided for the integration of about 7,500 MNLF combatants into the military and police. However, the agreement was met with stiff resistance from Christian leaders and groups who saw it as a dangerous precedent. Gradually, the agreement died a natural death when it was overtaken by events which shifted focus away from it.

But perhaps the lowest point in the country’s quest for peace in the region involved the fiasco on the Memorandum of Agreement on the Ancestral Domain (MOA-AD) 8, which was initialed on July 27, 2008. The formal signing of the agreement was aborted when the Supreme Court issued a temporary restraining order and subsequently declared the agreement unconstitutional. 9 Available at http://opapp.gov.ph/sites/default/files/Interim%20GRPMNLF%20Ceasefire%20Agreement%20(1993).pdf (last accessed September 23, 2013).

7 Available at http://pcdspo.gov.ph/downloads/2012/10/Final-PeaceAgreement-MNLF-September-2-1996.pdf (last accessed September 23, 2013)..

8 Available at http://pcdspo.gov.ph/downloads/2012/10/MOA-%E2%80%93Ancestral-Domain-August-5-2008.pdf (last accessed September 23, 2013)..

9 Province of North Cotabato v Republic, G.R. Nos. 183591, 183752, 183893, 183951, October 14, 2008.

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The MOA-AD had provided for the creation of the Bangsamoro Juridical Entity (BJE), which had authority and jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro, defined as the present geographic area of ARMM. These are the areas of Lanao del Sur, Maguindanao, Sulu, TawiTawi, Basilan, and Marawi City. Also included were the municipalities and the barangays in Lanao del Norte, North Cotabato, Zamboanga City, and Iligan City that voted for inclusion in the ARMM in the 2001 plebiscite.

As to local governance, the relationship between the Central Government and the BJE was that of “association,” which means that both shared authority and responsibility.

The provisions of the MOA-AD vested BJE with the status of an associated state, a concept that is not recognized under our present Constitution. It ran counter to the national sovereignty and territorial integrity of the Republic. Much of the present controversy revolved around this issue.

The Court also ruled that the peace panel committed grave abuse of discretion when it “failed to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.”10 With respect to the indigenous cultural communities and indigenous peoples (ICCs/IPs), the Court held that the MOA-AD “failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act [Indigenous People’s Rights Act of 1997], which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. The IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.”

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Ibid.

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Apart from being irreconcilable with the Constitution, the Court also said that the agreement contravened R.A. No. 9054 or the Organic Act of the ARMM, which clearly delineated the terms “Bangsamoro” and “Indigenous People” as separate and different from each other. However, the MOA-AD lumped the two as one and the same.

Likewise put into question was the President’s power to conduct peace negotiations. The petitioners argued that this power was not explicitly mentioned in the Constitution, but the Court held “the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.”11 Why the Bangsamoro is different from the BJE. Unlike the MOA-AD which generated a massive uproar of protest by inhabitants in the affected areas, spearheaded by the local executives and other Christian communities, and which reverberated throughout the archipelago, there is a universal acceptance and support to the Bangsamoro Framework Agreement among Christian and Muslims alike. With the new agreement, there is no significant objection against the proposed governance arrangement, either in Congress or by the international community, which has expressed its unqualified support to the agreement. 12 Even the breakaway Muslim armed groups such as the Bangsamoro Islamic Freedom Fighters (BIFF)13, Ibid.

See http://www.gmanetwork.com/news/story/278370/news/nation/worldwelcomes-phl-milf-peace-deal-politicians-mnlf-subdued (last accessed September 23, 2013).

13 See http://www.gmanetwork.com/news/story/269168/opinion/blogs/biffndash-a-new-force-to-reckon-with (last accessed September 23, 2013).

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which previously launched terrorist activities following the scrapping of the MOA-AD, have decided to assume a wait-andsee attitude.

One of the main objections pointed out by the Supreme Court in declaring the MOA-AD unconstitutional was the failure of the Presidential Adviser on the Peace Process to carry out the pertinent consultation process as mandated by Executive Order No. 3, RA 7160 or the Local Government Code of 1991, and RA 8371, otherwise known as the Indigenous People’s Rights Act of 1997. The Court observed that the furtive process by which the MOA-AD was designed and crafted ran contrary to and in excess of its legal authority, and amounted to a whimsical, capricious, oppressive, arbitrary and despotic exercise of authority. 14 The Court further said that it illustrated a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

This time guided by the October 2008 decision, the GRP and MILF committed to work together in order to ensure the widest acceptability of the Bangsamoro Basic Law drafted by the Transitory Commission and the core areas mentioned in the previous paragraph, through a process of popular ratification among all the Bangsamoro areas for their adoption. Additionally, they stipulated that an international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate, and in conformity with international standards. 15 Under the new agreement, the proposed Transition Committee, composed mostly of citizens of Bangsamoro descent, will draft a proposed basic law creating the Bangsamoro region which will replace the ARMM. The Bangsamoro Basic Law will be crafted in consultation with members of Congress. Once it is passed, a plebiscite will be conducted, to be participated in by the 14 15

Supra note 8.

Paragraph 2, Art. V, Supra note 2.

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people who will be affected by the new Bangsamoro entity. The extensive process of public consultation under the new agreement is much unlike the MOA-AD which was shrouded in secrecy.

The Court had also emphasized in its October 2008 decision that the MOA-AD went beyond the bounds of the 1987 Constitution and the laws. According to the Court, the problem was not only the specific provisions of the agreement, but the very concept underlying them, such as the associative relationship envisioned between the GRP and the BJE. The Court said that the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

On the other hand, the Framework Agreement does not call for a new identity like the BJE which must be created outside the flexibilities of the present constitution. As understood in the new Framework Agreement, the State continues to exercise sovereign powers, without prejudice to the inclusion of other powers which may in the future be agreed upon by the parties, including defense and external security, foreign policy, common market and global trade, and the like. These same powers are also granted to the State by the ARMM Organic Law. Again, much like the ARMM under R.A. 9054, the Bangsamoro entity shall also be granted judicial and revenue-generation powers, and a just and equitable share in the fruits of national patrimony.

All transitional processes will be undertaken within the bounds of the Constitution and pertinent laws of the Philippines.

All told, the Bangsamoro is not a separate political entity; its territory will remain part of the Philippines and its inhabitants part of the Filipino nation. The powers granted to it are within the concept of autonomy, nothing more. Clearly, this is a radical departure from the MOA-AD which contemplated a BJE akin to a sub-state, thus implying a move towards independence. For obvious reasons, the State cannot allow the violation of the national integrity provisions of the Constitution.

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As clarified by the Chief Negotiator of the Peace Panel, now Supreme Court Justice Marvic Leonen, the commitments made by the government are within the parameters of the Constitution, or within the flexibilities of the existing Constitution. He added that while part of the powers of the 15-member Transition Commission will be “to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the parties whenever necessary without derogating from any prior peace agreement, there is no commitment there that such a proposal is going to be acted upon by Congress. 16 As envisioned, the Bangsamoro will not infringe the Constitution since it will merely replace the ARMM, the creation of which was mandated by the Constitution and Republic Act 9054.

Even the ministerial form of government, which to many may not be a familiar concept, does not necessarily call for a constitutional amendment since it merely relates to the provisions of autonomy which is still within the constitutional framework.

Again as explained by Leonen, it is akin to a parliamentary government where genuine political parties will “dominate and try to capture seats that are allocated maybe to various geographical areas or probably representing certain sectors”17 and from which they select their chief minister, but stressed that they would still be under the supervision of the President.

Clearly, the Bangsamoro is not the BJE. Both the GPH and the MILF would have been extremely conscious of the MOA-AD fiasco and averse to running the risk of engaging in extensive negotiations only to come up with an agreement that will fail judicial scrutiny because it violates the Constitution. Nonetheless,

See http://newsinfo.inquirer.net/285476/charter-change-next-peace-stepsantiago (last accessed September 23, 2013).

17 Ibid.

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we shall see whether the Basic Law that will be passed by Congress is compatible with the Constitution.

III.

TEXTUAL ANALYSIS OF THE BANGSAMORO FRAMEWORK AGREEMENT

A. THE BANGSAMORO The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM). The Bangsamoro is the new autonomous political entity (NPE) referred to in the Decision Points of Principles as of April 2012. (I. Establishment of the Bangsamoro, par. 1) What is Bangsamoro? Essentially, the Parties to the agreement have agreed to establish a new autonomous political entity to be known as the Bangsamoro. But what does Bangsamoro mean? “Bangsamoro” is a combination of two words – Bangsa and Moro. Bangsa is a Malay term for people or nation and Moro is a Spanish term after the Afro-Berber Moors who were expelled during the Reconquista from the Iberian Peninsula in 1492. The contemporary Bangsamoro is of recent vintage, having been first used in the early 1970s when the “Top 90” Muslim youth who underwent military training in West Malaysia formed a secessionist organization known as the MNLF, which had a standing army called the “Bangsa Moro Army.”

While the term “Moro” is originally a pejorative term borne out of racial and religious prejudice, it came to refer to the people mainly from Sulu, certain parts of Mindanao, and Palawan who share a common Islamic faith, ethos, and beliefs.

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In time, Bangsamoro evolved from an ethno-linguistic terminology into one referring to a legal and political entity. It reflects the Muslim people’s struggle for equality and selfdetermination. The newly signed Framework Agreement is thus an attempt to heal the wounds from centuries of discrimination, prejudice, bigotry, and dispossession of a people’s historical birthright and restore to them the dignity that they truly deserve.

While some might have serious misgivings about the use of the term “nation of the Moros” because it may be construed as a tacit refusal to relinquish aspirations for independence, the adoption of the term must be seen not as assertion of independence, but as a response to the desire of the Bangsamoro people for peace, freedom founded on parity of esteem, and equal treatment for their identity, ethos, and aspirations.

Replacing the ARMM. President Aquino branded the ARMM as a failed experiment and justifiably so. 18 Official abuse and corruption may be endemic in the country, but there is a nagging perception that it is more systemic and severe in the ARMM. Since its establishment in 1991, a total of P123.6 billion has been allocated to the ARMM, yet the region remains one of the poorest and most underdeveloped in the country. 19 Corruption, lack of state capacity in dispensing basic services and needs, and weak state institutions undermine governance. Corruption is not necessarily unique to Mindanao, but conditions unique to Mindanao help exacerbate the problem: the proliferation of armed groups, political warlordism, the Muslim secessionist movement, and extreme poverty. Poverty and a lack of economic opportunity leave communities vulnerable to dependence on political warlords for income and sustenance.

18 See http://www.gov.ph/2012/10/07/speech-of-president-aquino-on-theframework-agreement-with-the-milf-october-7-2012.

19 See http://rp1.abs-cbnnews.com/nation/09/26/11/senators-ask-how-willarmm-spend-p124b-budget.

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Money lost to corruption could have been spent on basic education, primary health care, and alternative livelihood initiatives in grassroots communities in Mindanao. The Ampatuan Massacre on November 23, 200920 is a tragically visible example of how warlordism and corruption has imperiled good governance in Mindanao.

Reactions to the ARMM are mixed at best. The inability of the ARMM to deliver basic services has been attributed to its overdependence on the Central Government for budgetary support. As with most local government units, the ARMM’s Internal Revenue Allotments are often tied to political considerations. This practice is most accentuated in the case of Mindanao.

In its Audit Performance Summary Report, the Commission on Audit, in its investigation of more than 61,000 government agencies in 2011, highlighted anomalies that mostly occurred in the 2007-2009 period. Based on the report, the biggest items were P1.862 billion in cash advances to two government treasurers in Maguindanao province and P1.123 billion in payments to “spurious” suppliers in ARMM. According to the COA report, the P1.123 billion for public works went to suppliers and contractors with no documents or used fake ones.

The same report also indicated that certain individuals made P1.86 billion in cash advances, with one encashment amounting to P98.25 million in one day, despite a rule that all payments must be in checks. 21 Up to 98 percent of its P20 billion annual budget went to personnel services.

See http://www.gmanetwork.com/news/story/177821/news/specialreports/theampatuan-massacre-a-map-and-timeline (last accessed September 23, 2013).

21 See http://www.manilatimes.net/index.php/news/top-stories/32622-p101billion-lost-during-arroyo-rule-coa (last accessed September 23, 2013).

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Shortages, unaccounted public funds, and disregard of normal accounting procedures remain serious accountability concerns. The extent of corruption in the ARMM was best described by Senator Franklin M. Drilon, who said that there were a lot of ghosts in ARMM: ghost employees, ghost teachers, ghost students, ghost internally displaced persons, ghost voters, ghost contractors, ghost gasoline stations, and many more." He was referring to the fictitious and non-existing persons and transactions used to cover up various anomalies in the region. 22 The ARMM also failed because of seriously defective organizational setup and faulty bureaucratic practices. In his book, Benedicto Bacani points out some of the illegal and unethical practices ailing the ARMM bureaucracy: 23 •

•

• • • • • •

The Regional Governor holds office in the Manila Liaison Office. He only comes to the ARMM office in Mindanao to act as tour guide for foreign visitors.

Those who desire the signature of the Regional Governor has to spend a fortune in going to Manila.

Heads of agencies/departments are always traveling to Manila.

Overlapping of appointments.

Illegal termination under the guise of Absence without Leave (AWOL).

Difficulty in exercising the contempt power of the Civil Service Commission.

Multiple positions being held by top officials of the ARMM. High percentage of employees with administrative cases.

See http://www.senate.gov.ph/press_release/2012/0911_drilon1.asp BENEDICTO BACANI, BEYOND PAPER AUTONOMY: THE CHALLENGES IN SOUTH PHILIPPINES 79 (2004).

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National government approved plantilla positions versus locally created positions (appointment by political patronage).

• Poor records management.

• Unstable peace and order situation.

• ARMM areas are widely dispersed and noncontiguous.

• Mismanagement of funds and resources.

• Indiscriminate resort to the Ombudsman’s processes.

• Many “15-30” employees (where employees only come to the office to collect their salaries on the 15th and 30th day of the month).

An important challenge therefore for the Bangsamoro is to ensure that there will be no repeat of the failed ARMM experiment. Ultimately, the success or failure of the Bangsamoro is contingent on its ability to improve the lot of the people within its territory, and the first critical step is to institutionalize accountability and transparency in governance, evolve an effective and efficient bureaucracy that will deliver goods and services to the people, and guarantee that public funds go where they should be. In this regard, institutions within the Bangsamoro must be made compatible with the peculiar cultural and demographic conditions of the place.

B. MINISTERIAL FORM OF GOVERNMENT The government of the Bangsamoro shall have a ministerial form. The Parties agree to entrench an electoral system suitable to a ministerial form of government. The electoral system shall allow democratic participation, ensure accountability of public officers primarily to their constituents and encourage formation of genuinely principled political parties.

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The electoral system shall be contained in the Bangsamoro Basic Law to be implemented through legislation enacted by the Bangsamoro Government and correlated with national laws. (I. Establishment of the Bangsamoro, par. 2) The provinces, cities, municipalities, barangays and geographic areas within its territory shall be the constituent units of the Bangsamoro. The authority to regulate on its own responsibility the affairs of the constituent units is guaranteed within the limit of the Bangsamoro Basic Law. The privileges already enjoyed by the local government units under existing laws shall not be diminished unless otherwise altered, modified or reformed for good governance pursuant to the provisions of the Bangsamoro local government code. (par. 3) The relationship of the Central Government with the Bangsamoro Government shall be asymmetric. (par. 4) Constitutional Amendment? The Bangsamoro will adopt a ministerial form of government. 24 Under this set-up, representatives will be elected to the assembly, which will then elect its leader called the “Chief Minister.� This arrangement is touted to reduce the overdependence of the Bangsamoro Government on the Central Government and avoid the problems that befell the ARMM. Be that as it may, what is in a ministerial form of government that makes it different from the government set-up under the present ARMM? Will it be a case of the same dog with a different collar? How will this form of government be more 24

Section 2, Article I of the Framework Agreement.

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effective, more accountable, and more responsive than the present ARMM, which has a regional governor and regional legislative assembly? These must be explained and clarified to the public in order to inspire a renewed hope and trust in the new system of government.

The failure of the ARMM to deliver basic services is also attributed to its overdependence on the Central Government with respect to budgetary support. This is why the negotiating parties decided to replace it altogether with the Bangsamoro. The Bangsamoro relationship with the Central Government is also asymmetrical; that is, it takes a different form from the existing relationship between the Central Government and other local government units.

However, even though the relationship between the Central Government and the Bangsamoro Government is asymmetrical in character, the government panel insists that the establishment of the Bangsamoro will not require constitutional amendment. The panel argues that while the Constitution calls for an autonomous region in Muslim Mindanao, it does not specify the kind of autonomous government that should be established, which means that it is broad enough to include a ministerial form.

Leonen said that Article 10 of the 1987 Constitution, which contains the provisions on autonomy, 25 does not prohibit a ministerial form of government in an autonomous area. 26 To some, this may be stretching a bit the Constitutional provisions on autonomy. An Organic Law that provides for a ministerial form of government and an asymmetrical relationship can open itself up to constitutional attack since it runs counter to The provisions on autonomy are found in Sections 15, 16, 17, 18, 19, 20 and 21, Ibid.

26 See http://www.gov.ph/2012/10/09/for-the-record-leonen-says-no-need-forcha-cha-to-implement-framework-agreement-october-9-2012 (last accessed September 23, 2013).

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the unitary presidential setup mandated by the 1987 Constitution.

Nonetheless, the parties themselves acknowledge the necessity of a constitutional amendment by including, as one of the functions of the Transitory Commission, “to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreements.” 27 The Transition Commission may discuss and propose constitutional change, but ultimately the decision rests on Congress. Will constitutional change pass muster in Congress?

Should Congress decide that amending certain provisions of the Constitution is necessary, how soon can this be done? What mode will be used? Will it be through constituent assembly or constitutional convention? Will amendment or revision be done before 2016 when the nation goes to the polls to elect the next president? How will the constitutional process affect the timetable for the implementation of the Comprehensive Agreement?

To change or not to change the Constitution is a fundamental and inevitable question that Congress, the President, and the negotiating parties will have to face. In Province of North Cotabato vs. GRP Peace Panel, 28 the Supreme Court warned that no one has the power to commit to amend the Constitution to make it conform to any agreement: “The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents almost consummated the act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion.”

The repercussions of a repeat of the MOA-AD fiasco are simply too dire to contemplate. It will dissipate whatever Par. 4(b), Art. VII, Bangsamoro Framework Agreement.

Province of North Cotabato v Republic, G.R. Nos. 183591, 183752, 183893, 183951, October 14, 2008.

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goodwill and trust that the negotiating parties have nurtured over the years and drive the MILF to more radical measures.

Be that as it may, this author proposes several legal avenues that may be explored as means of territorial rearrangement. This includes: 29 a. Adopting a type of “contemporary constitutionalism” Contemporary constitutionalism espouses the view that the Constitution is a form of accommodation of cultural diversity, following the conventions of mutual recognition, consent, and cultural continuity. The concept is further derived from “treaty constitutionalism,” similar to the case between the Aboriginal peoples of North America and the British Crown who negotiated as “equal, self-governing nations,” fostering relations of protection and interdependency. Santos (2001) also puts forth the system of “one country, two systems,” such as the current set-up between Hong Kong and China. b. Through the Local Government Code - Even though the areas specified by in the Framework Agreement are included in the core territory, a plebiscite must be conducted for their formal inclusion into the Bangsamoro. The LGC contains the following: “Sec. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a 29 Antonio G.M. La Viña and Pauleen Gorospe, Prospects for the Formation of The Bangsamoro, MINDANAO HORIZONS, Vol. 5.

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majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (Comely) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.”

Furthermore, RA 9054 includes the following: “Any amendment to or revision of this Organic Act shall become effective only when approved by majority of the votes cast in the plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.” c. Other means for territorial rearrangement without conducting a plebiscite are identified by Donato (2008): “In any case, it is important to note that the constitutional and statutory requirements for the delimitation and realignment of territory may substantially and materially differ, depending on whether the purpose is for national government administration (at the regional level), local government jurisdiction (at the same regional level), or constitution of a component state in a larger federal state again (at the equivalent regional level)…

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“(a) For purposes of exercising national executive functions at the regional level, provinces and cities may be covered, without need for any plebiscite, at the reasonable discretion of the President through the issuance of an executive order, or by action of Congress through legislative enactment, subject only to appropriate justification based on geography and demography “(b) For purposes of establishing a local government unit at the regional level, the inclusion of provinces or cities must be approved by the people affected in a plebiscite conducted in accordance with the 1987 Constitution “(c) For purposes of constituting a component state under a federal set-up, the necessary amendments or revisions to the Constitution must be approved by the requisite majority of all the people in a plebiscite for the purpose.”

Aside from this, as stated in the Organic Act of 2001, the Bangsamoro can enact its own local government code and administrative code in accordance with the Constitution. d. Section 18, Article X of the 1987 Constitution states that in establishing a local government unit at the regional level, “the inclusion of provinces or cities must be approved by the people affected in a plebiscite conducted in accordance with the 1987 Constitution.”

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Real Autonomy. ARMM leaders complain that the devolution of powers by the national agencies is selective and slow. 30 It is selective because what has been devolved are the personnel of line agencies and not the budget allocation for the projects of ARMM which is still being controlled by the national government.

This arrangement resulted in a very large bureaucracy but with no budget to finance its projects. There can be real autonomy only if the Bangsamoro is granted substantive devolved powers that on its own and with minimal support from the national government will enable it to perform its mandate of promoting peace and development within its territory. This means a rationalized bureaucratic structure adequately empowered to effectively perform their mandate.

As provided, the privileges already enjoyed by the local government units under existing laws, primarily that provided by the Local Government Code, shall not be diminished unless otherwise altered, modified, or reformed for good governance, pursuant to the provisions of the Bangsamoro local government code. In other words, the devolved powers already granted to LGUs which may in the future become part of the Bangsamoro will not be diminished but will continue to be enjoyed by them, subject to modification by the Bangsamoro local government code when necessary to improve the delivery of government service.

C. THE BASIC LAW 1. The Bangsamoro shall be governed by a Basic Law. 2. The provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties.

3. The Basic Law shall reflect the Bangsamoro system of life and meet internationally accepted standards of governance.

30

Supra note 23 at 42.

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4. It shall be formulated by the Bangsamoro people and ratified by the qualified voters within its territory.

The Bangsamoro will be governed by a Basic Law to be passed

by Congress and ratified by qualified voters of the affected areas in a plebiscite. Again, this underscores the fact that there is an ardent attempt by the parties to comply with the processes provided by the existing Constitution.

It would be more informative if the phrase “consistent with all the agreement of the Parties” is fully explained, which the author believes will be adequately clarified in the ensuing negotiations.

Do these refer to the annexes that are yet to be negotiated by the parties? Or do they refer to prior agreements, if any? These “agreements of the Parties” must be fully explained to the public for us to better judge their social and legal acceptability. Why the emphasis on the “agreements of the parties,” which appear on different parts of the Framework Agreement, rather than the Constitution? While there is no reason to doubt that the Constitution is the cornerstone of the Framework Agreement, it would dispel vagueness and suspicions if the agreement and its annexes would clearly spell out categorically the primordial role of the fundamental law in the Bangsamoro.

D. POWERS OF THE BANGSAMORO 1. The Central Government will have reserved powers, the Bangsamoro Government shall have its exclusive powers, and there will be concurrent powers shared by the Central Government and the Bangsamoro Government.

The Annex on Power Sharing, which includes the principles on intergovernmental relations, shall form part of this Agreement and guide the drafting of the Basic Law.

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2. The Central Government shall have powers on: a. Defense and external security b. Foreign policy c. Common market and global trade, provided that the power to enter into economic agreements already allowed under Republic Act No. 9054 shall be transferred to the Bangsamoro d. Coinage and monetary policy e. Citizenship and naturalization f. Postal service This list is without prejudice to additional powers that may be agreed upon by the Parties.

3. The Parties recognize the need to strengthen the Shari’ah courts and to expand their jurisdiction over cases.

The Bangsamoro shall have competence over the Shari’ah justice system.

The supremacy of Shari’ah and its application shall only be to Muslims.

4. The Bangsamoro Basic Law may provide for the power of the Bangsamoro Government to accredit halal­‐certifying bodies in the Bangsamoro.

5. The Bangsamoro Basic Law shall provide for justice institutions in the Bangsamoro. This includes: a. The competence over the Shari’ah justice system, as well as the formal institutionalization and operation of its functions, and the expansion of the jurisdiction of the Shari’ah courts; b. Measures to improve the workings of local civil courts, when necessary; and c. Alternative dispute resolution systems.

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6. The customary rights and traditions of indigenous peoples shall be taken into consideration in the formation of the Bangsamoro’s justice system.

This may include the recognition of indigenous processes as alternative modes of dispute resolution.

We recall that the Bangsamoro Juridical Entity (BJE) of the MOA-AD was adjudged to be a sub-state, and contemplated to have an associative relationship with the Central Government—a strange animal insofar as the present Constitution is concerned.

The legality of the whole concept of the proposed sub-state however becomes tenuous because what is specified in the 1987 Constitution is an autonomous region, not a sub-state or a juridical entity. It requires a significant overhaul of the Constitution which must be amended and ratified by the Filipino people since it envisions a federal system of government.

The Bangsamoro, on the other hand, according to Leonen, will function well within the strictures of the 1987 Constitution. It will be governed by a statute to be passed by Congress, and will not be independent from the national government, which shall continue to exercise non-negotiable specified powers such as foreign policy, defense and external security, coinage, and citizenship. The list of powers to be exercised by the Central Government is not exclusive since, as provided, the parties may in the future agree on additional powers should they find the need to do so. Nonetheless as envisioned, the State shall continue to determine the policy directions on certain critical aspects of governance which the Bangsamoro legislative assembly cannot encroach upon. This underscores the fact that while the Bangsamoro is fully autonomous in character, it still forms part and parcel of the Philippine Republic.

As provided in Sections 3-6 in Art. III of the Framework Agreement, the Bangsamoro will have competence over the

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Shari’ah justice system. The supremacy of the Shari’ah and its application shall only be to Muslims. The Basic law shall also take into consideration the customary rights and traditions of indigenous peoples in the formation of the Bangsamoro justice system.

This is in recognition of the multi-ethnic character of the region comprised of the Lumad communities, the Islamized Moros or Bangsamoro, and the settler communities and their descendants. The first two are largely the indigenous inhabitants of the region; the latter are 20th century migrants from Luzon and the Visayas. According to the 2000 census, the Lumad, made up of more than 30 ethno-linguistic groups, comprise about 8.9 percent of the total Mindanao population, while the population of Bangsamoros’ 13 Islamized ethno-linguistic groups is approximately 18.5 percent of the region’s inhabitants. 31 Thus, the Shari’a justice system and integration of customary laws are essential components of indigenous conflict resolution mechanisms. The adoption of culture sensitive educational environment will be responsive to the unique demographics of the area.

According to both parties, based on existing laws, the Shari’a courts, created specifically for the effective administration and enforcement of the Code of Muslim Personal Laws, have limited jurisdiction and needs to be expanded. It must be stressed that the Shari’a courts is subject to the administrative supervision of the Supreme Court and shall remain part and parcel of the judicial system of the country.

31 Rudy Rodil, Mindanao: A Historical Overview, in CHALLENGES TO HUMAN SECURITY IN COMPLEX SITUATIONS at 15 (Merlie Mendoza & Victor Taylor, eds. Asian Disaster Reduction and Response Network 2010).

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E. REVENUE -GENERATION AND WEALTH -SHARING 1. The parties agree that wealth creation (or revenue generation and sourcing) is important for the operation of the Bangsamoro.

2. Consistent with the Bangsamoro Basic Law, the Bangsamoro will have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to limitations as may be mutually agreed upon by the Parties.

This power shall include the power to determine tax bases and tax rates, guided by the principles of devolution of power, equalization, equity, accountability, administrative simplicity, harmonization, economic efficiency, and fiscal autonomy.

3. The Bangsamoro will have the authority to receive grants and donations from domestic and foreign sources, and block grants and subsidies from the Central Government.

Subject to acceptable credit worthiness, it shall also have the authority to contract loans from domestic and foreign lending institutions, except foreign and domestic loans requiring sovereign guaranty, whether explicit or implicit, which would require the approval of the Central Government.

4. The Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water,

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covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.

5. The Bangsamoro may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. This shall be without prejudice to the power, authority and duty of the national Commission on Audit to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality, including GOCCs. 6. The details of revenue and wealth sharing arrangements between the Central Government and the Bangsamoro Government shall be agreed upon by the Parties. The Annex on Wealth Sharing shall form part of this Agreement.

7. There shall be an intergovernmental fiscal policy board composed of representatives of the Bangsamoro and the Central Government in order to address revenue imbalances and fluctuations in regional financial needs and revenue-­‐raising capacity. The Board shall meet at least once in six (6) months to determine necessary fiscal policy adjustments, subject to the principles of intergovernmental relations mutually agreed upon by both Parties. Once full fiscal autonomy has been achieved by the Bangsamoro then it may no longer be necessary to have a representative from the Central Government to sit in the Board. Fiscal autonomy shall mean generation and budgeting of the Bangsamoro’s own sources of revenue, its share of the internal revenue taxes and block grants and subsidies remitted to it by the central government or any donor.

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8. The Parties agree that sustainable development is crucial in protecting and improving the quality of life of the Bangsamoro people. To this end, the Bangsamoro shall develop a comprehensive framework for sustainable development through the proper conservation, utilization and development of natural resources. For efficient coordination and assistance, the Bangsamoro legislative body shall create, by law, an intergovernmental body composed of representatives of the Bangsamoro and the Central Government, which shall ensure the harmonization of environmental and developmental plans, as well as formulate common environmental objectives.

The successful implementation of this provision is critical for two reasons. First. To avoid a repeat of ARMM which failed because of the inability of the local governance to generate significant income from local sources that would redound to the benefit of its inhabitants. According to estimates, ARMM was able to generate only about 5% of its income from local sources, while its remaining income come from the national government. This overdependence on the Central Government is the reason why, despite being granted devolved powers, the ARMM continues to be plagued by the ills of the patronage system.

Second. To rectify the historical wrongs that engender land disputes in the South. After everything has been said and done, ultimately, the basic problem that underlies the conflict in Mindanao is control of the land, and by extension, the rich natural resources found therein. To the Bangsamoro, an acceptable political solution is to rectify what they perceive as historical wrongs committed against them by Christian-dominated colonial and post-colonial governments and restore to them the lands which are theirs by historical right.

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In the Framework Agreement, the Bangsamoro will have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to limitations as may be mutually agreed upon by the Parties. Moreover, it shall have the authority to receive grants and donations from domestic and foreign sources, and block grants and subsidies from the Central Government. It shall also have a just and equitable share in the revenues generated through the exploration, development, or utilization of natural resources obtaining in all the areas and territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.

These same powers are also granted to local government units under the Local Government Code.

Insofar as the Bangsamoro is concerned, the details, such as the formula for revenue-sharing, will be threshed out by the parties themselves, subject to the limitations set by the Constitution and existing laws.

In formulating the annexes for revenue-sharing, the parties must pay special attention to the following constitutional provisions, inter alia: •

•

32

Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy.

Such taxes, fees, and charges shall accrue exclusively to the local governments. 32 Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas in the manner provided by law,

Section 5, Art. X, 1987 Constitution.

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•

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including sharing the same with the inhabitants by way of direct benefits. 33 All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. 34 The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain35 and, The provisions on Autonomous Regions. 36

In a separate article, the author discusses some of the potential flash points related to the matter of disposing resources in the Bangsamoro territory. 37

Section 7, Art. X, Ibid.

Sec. 2, Art. XII, Ibid.

35 Sec. 5, Art. XII, Ibid.

36 Sections 15-20, Art. X, Ibid.

37 Supra note 29.

33 34

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Resource-rich areas are always objects of contention, especially in their management. There are two that could be potential sources of conflict within the Bangsamoro territory. Tuminez (2008) identifies the Liguasan Marsh as a source of possible disagreement.

The Liguasan Marsh is a 45,000-hectare marshland occupying parts of Maguindanao, North Cotabato, and Sultan Kudarat. The marsh is said to hold large deposits of oil and gas which will bring much needed revenue for the region. Tuminez also cites the Sulu Basin, another haven of oil and gas reserves, as a potential source of conflict.

Aside from economic motivations, certain political interests are also attached to the management of resources. In the past, many provinces and districts were created in order to ensure that such resources remain in the hands of political elites. Most of these families also took advantage of the legitimizing mechanisms of the state to acquire and strengthen their conglomerates.

For accountability, the Bangsamoro may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. This local system of accountability may be adopted over and above the exercise by the Commission on Audit its power, authority, and duty to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality.

The principal objective of this article is to achieve full fiscal autonomy defined therein as the generation and budgeting of Bangsamoro’s own sources of revenue, its share of the internal revenue taxes, and block grants and subsidies remitted to it by the

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central government or any donor. The success of this arrangement will be gauged on whether the Bangsamoro is able to attain fiscal autonomy without relying so much on the largesse of the national government, and whether it is able to harness the resources within its territorial jurisdiction to better the lot of its constituents.

F. TERRITORY 1. The core territory of the Bangsamoro shall be composed of: a. The present geographical area of the ARMM; b. The Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite; c. The cities of Cotabato and Isabela; and d. All other contiguous areas where there is a resolution of the local government unit or a petition of at least ten percent (10%) of the qualified voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro as mentioned in the next paragraph.

2. The Parties shall work together in order to ensure the widest acceptability of the Bangsamoro Basic Law as drafted by the Transitory Commission and the core areas mentioned in the previous paragraph,

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through a process of popular ratification among all the Bangsamoro within the areas for their adoption.

An international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate and in conformity with international standards.

3. Areas which are contiguous and outside the core territory where there are substantial populations of the Bangsamoro may opt anytime to be part of the territory upon petition of at least ten percent (10%) of the residents and approved by a majority of qualified voters in a plebiscite.

4. The disposition of internal and territorial waters shall be referred to in the Annexes on Wealth and Power Sharing.

5. Territory refers to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain and the atmospheric space above it. Governance shall be as agreed upon by the parties in this agreement and in the sections on wealth and power sharing.

6. The Bangsamoro Basic Law shall recognize the collective democratic rights of the constituents in the Bangsamoro.

The core territory of the Bangsamoro consists of: a) the present geographical area of the ARMM; b) the Municipalities of Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap that voted for inclusion in the ARMM during the 2001 plebiscite; (c) the cities of Cotabato and Isabela (previously

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not included in the ARMM); and, (d) all other contiguous areas where there is a resolution of the local government unit or a petition of at least ten percent (10%) of the qualified voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro. 38 At present, ARMM is composed of the provinces of Basilan (except Isabela City), Lanao del Sur, Maguindanao, Sulu, and Tawi-Tawi. Previously, it included Shariff Kabunsuan until July 16, 2008 when the Supreme Court declared unconstitutional the "Muslim Mindanao Autonomy Act," which created the province.

By virtue of Republic Act 9054, passed in 2001 for the expansion of the ARMM, Marawi City (situated within Lanao del Sur) and the province of Basilan (excluding Isabela City) joined the ARMM. The territory envisioned under the Framework Agreement is much smaller than that proposed by the MOA-AD which included around 735 Muslim majority areas and “Special Intervention Areas” of around 1,500 villages. Nonetheless, it is also important to clarify the term “contiguous” because this may spell whether certain areas will or will not be included in the Bangsamoro. While the term contiguous ordinarily means adjacent, in the context of the Framework Agreement, does this refer to include only landlocked areas, or does it also contemplate even those separated by narrow bodies of water?

G. BASIC RIGHTS 1. In addition to basic rights already enjoyed, the following rights of all citizens residing in the Bangsamoro bind the legislature, executive and judiciary as directly enforceable law and are guaranteed: 38

Article V, Bangsamoro Framework Agreement.

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a. Right to life and to inviolability of one’s person and dignity; b. Right to freedom and expression of religion and beliefs; c. Right to privacy; d. Right to freedom of speech; e. Right to express political opinion and pursue democratically political aspiration; f. Right to seek constitutional change by peaceful and legitimate means; g. Right of women to meaningful political participation, and protection from all forms of violence; h. Right to freely choose one’s place of residence and the inviolability of the home; i. Right to equal opportunity and nondiscrimination in social and economic activity and the public service, regardless of class, creed, disability, gender and ethnicity; j. Right to establish cultural and religious associations; k. Right to freedom from religious, ethnic and sectarian harassment; and l. Right to redress of grievances and due process of law.

2. Vested property rights shall be recognized and respected. With respect to the legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenure or their marginalization shall be acknowledged.

Whenever restoration is no longer possible, the Central Government and the Government of the Bangsamoro shall take effective measures for adequate

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reparation collectively beneficial to the Bangsamoro people in such quality, quantity and status to be determined mutually.

3. Indigenous peoples’ rights shall be respected.

4. The Central Government shall ensure the protection of the rights of the Bangsamoro people residing outside the territory of the Bangsamoro and undertake programs for the rehabilitation and development of their communities.

The Bangsamoro Government may provide assistance to their communities to enhance their economic, social and cultural development.

Basic Rights. Note that the rights listed in the Agreement are in addition to the rights already enjoyed by the people. Worth mentioning are certain rights that are explicitly articulated in the new Agreement which may not be found in Art. 3 of the 1987 Constitution. These include the right of women to meaningful political participation and protection from all forms of violence, and the right to freedom from religious, ethnic, and sectarian harassment. The latter right is significant considering the ethnolinguistic diversity in the region which may be susceptible to religious intolerance.

Also significant under this article is the provision which guarantees respect for vested property rights and recognition of the legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, and customary land tenure or their marginalization, including those of the indigenous peoples.

As previously intimated, the problem in the South is deeply rooted in land conflicts. The much-lauded Indigenous People's Rights Act (IPRA) Law of 1997 recognizes the rights of indigenous

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people to their ancestral domain. While IPRA provided a measure of protection against unlawful evictions of indigenous peoples from their territories, yet it is far from being the silver bullet to the land ownership issues confronted by the Lumad.

Further, the implementation of IPRA poses serious challenges due to overlaps with other laws, such as environment and natural resources and forestry laws and the provisions on resource access and tenure. In the midst of budgetary constraints, the effective enforcement of its provisions is basically contingent on the internal capacities of the indigenous communities and the extent of external support given to them.

While the rights of indigenous peoples and vested property rights “shall be recognized and respected,” non-Muslims may entertain serious misgivings because the corresponding Basic Law will be drafted by an all-Bangsamoro Transition Committee.

Nonetheless, future negotiations between the GRP and the MILF must therefore seriously keep in mind existing laws on land tenure, including IPRA. A good starting point is to disaggregate the land claim disputes and their underlying causes, and define with more clarity the legal parameters of the Bangsamoro homeland, ancestral domain, indigenous peoples rights, land titles, vested rights, and some other concepts and principles like innocent purchaser in good faith, the conflicting interpretation of which continue to spawn land disputes in the Land of Promise— land disputes which, if not legally settled, are more often than not, resolved through the barrel of a gun.

G. TRANSITION AND IMPLEMENTATION Under this article, the following shall take place: • Creation of a Transition Commission to work on the drafting of the Bangsamoro Basic Law.

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• Passage of the Basic Law into law by Congress • Upon promulgation and ratification of the Basic Law, which provides for the creation of the Bangsamoro Transition Authority (BTA), ARMM is deemed abolished.

• All devolved authorities shall be vested in the Bangsamoro Transition Authority during the interim period. The ministerial form and Cabinet system of government shall commence once the Bangsamoro Transition Authority is in place.

• The Bangsamoro Transition Authority will be immediately replaced in 2016 upon the election and assumption of the members of the Bangsamoro legislative assembly and the formation of the Bangsamoro government.

H. NORMALIZATION The Parties agree that normalization is vital to the peace process. It is through normalization that communities can return to conditions where they can achieve their desired quality of life, which includes the pursuit of sustainable livelihoods and political participation within a peaceful deliberative society.

The aim of normalization is to ensure human security in the Bangsamoro. Normalization helps build a society that is committed to basic human rights, where individuals are free from fear of violence or crime and where long-held traditions and value continue to be honored. Human insecurity embraces a wide range of issues that would include violation of human and civil rights, social and political injustice and impunity.

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The MILF shall undertake a graduated program for decommissioning of its forces so that they are put beyond use. In a phased and gradual manner, all law enforcement functions shall be transferred from the Armed Forces of the Philippines (AFP) to the police force for the Bangsamoro.

As stated, the aim of normalization is to ensure human security in the Bangsamoro. The police system in the Bangsamoro shall remain to be civilian in character, accountable under the law for its action, and responsible both to the Central Government and the Bangsamoro Government, and to the communities it serves.

At this stage, the MILF will undertake a graduated program for decommissioning of its forces. In a phased and gradual manner, all law enforcement functions will be transferred from the Armed Forces of the Philippines (AFP) to the police force for the Bangsamoro. The article also provides a commitment by both to work towards the reduction of arms and control of firearms in the area and the disbandment of private armies and other armed groups.

Normalization will certainly be difficult. For centuries, the South has been a haven for lawless elements and a hotbed of armed rebellion spawned by years of economic and political marginalization and injustice. Armed groups operating outside the law abound, and so do unlicensed firearms which do not only proliferate but are too accessible. The challenge is not only how to establish a professional police organization that will restore peace and order in the region but also how to prevent the reemergence in the future of similar armed groups that will instigate and wage another rebellion against the established system.

For starters, there is a need to reach out to existing armed Muslim groups, including Nur Misuari’s MNLF and the BIFF, both of which refuse to recognize or are lukewarm about the Agreement between the GPH and MILF. To fail is not an option.

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Without peace and security, there will be no investments, local or foreign; without peace and security there will be a breakdown of governance which can only bode a repeat of the ARMM misadventure; without peace and security, what is certain is the perpetuation of the perennial poverty which will breed more despair and trouble in the South. Neutralizing and disarming armed groups and lawless elements in the region will take a while, but with determination, it is doable.

In the end, normalization can only be had if all stakeholders are able and willing, and with utmost sincerity and genuine desire, work together towards this goal.

IV.

CONCLUSIONS

One thing that should be kept in mind in future negotiations are the commitments made during previous agreements including those made in the Tripoli Agreement signed on December 23, 1976 between the GRP and MNLF, and the Final Agreement on the Implementation of the 1976 Tripoli Agreement signed on September 2, 1996.

It would be ironic indeed if governing the Bangsamoro becomes untenable only because of the re-emergence of disgruntled Muslim armed groups like the MNLF and BIFF who might feel left out and totally ignored by the whole process. Did the Framework Agreement totally abrogate the Tripoli Agreement and 1996 peace agreement, or does the new agreement merely serve to complement the previous one? Or is the just concluded agreement a reboot of the 1996 peace agreement considering the pronouncement by the President that the ARMM was a failed experiment? How may the MNLF and other armed Muslim factions with legitimate grievances take part in the peace process?

Other equally important considerations include the protection and preservation of existing rights of the indigenous

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peoples and Christian communities within the Bangsamoro who may, rightly or wrongly, feel apprehensive about the whole process. How will the parties prevent the Bangsamoro from deteriorating into another ARMM in terms of accountability of its public officials? How will Bangsamoro attain full and genuine autonomy?

A holistic and comprehensive approach to the Moro problem is a must in order to achieve a settlement that is truly final and enduring; one that will bring a lasting peace in the troubled South. A piece-meal solution will simply not do; it will only create a different crop of disgruntled groups that will sow more troubles in the future and negate whatever gains thus far achieved.

Without doubt the newly signed peace accord is a historic political document. Despite almost insurmountable differences, the two parties focused on their commonalities to arrive at a mutually agreeable peaceful solution to the Bangsamoro problem.

It is significant that after several decades, the MILF, the largest armed group representing the Bangsamoro people, has finally relinquished its desire to secede and establish a separate State.

With this new agreement, MILF has finally decided that even with autonomy the aspirations of the Muslim people can be achieved as long as it is genuine and responsive to the needs of their people.

Of course, the conduct of the coming negotiations will be long and hard. Surely, the devil is in the details. Assembling the nuts and bolts may yet prove more difficult than drafting the mother agreement itself. The Framework Agreement is but a roadmap, a blueprint of sorts that must be fleshed out in the forthcoming negotiations. Along the way, disgruntled groups, those whose entrenched interests are threatened and those who feel left out, will register their objections or even repudiate the whole process altogether. In the end, the key to success of the Bangsamoro is the unqualified support of all stakeholders –

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including the national government, Muslims and non-Muslims in the region, the MILF and other armed groups, the Lumads, and the local government units - in order to give peace a chance.

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A Perspective on Human Rights Lawyering in the Philippines: A Conversation with Attorney Romeo Capulong GILL H. BOEHRINGER*

Atty. Romeo Capulong was a co-founder and Director of the Public Interest Law Center (PILC) for many years in Manila, Philippines. He was also the founder of the National Union of Peoples’ Lawyers, also in the Philippines, and Ad Litem Judge for the International Criminal Court for the former Yugoslavia. He died on September 16, 2012.

This conversation took place at the PILC office in August 2008.

GB: I would like to get the benefit of your long experience in law to get a clearer understanding of progressive lawyering in the Philippines.

RC: To discuss progressive lawyering properly, we must always keep in mind the concrete conditions at a specific time in a specific country.

Gil H. Boehringer is Former Dean of Macquarie Law School, Macquarie University in Sydney, Australia, and Former Director of the Center for the Critical and Historical Study of the Common Law.

*

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GB: And we must consider the cultural traditions in and outside the legal system, and as they interact?

RC: Yes, those traditions are both important. While we have a long history of progressive lawyering of a sort, what we have today is the resultant, the offspring of that historical experience.

First, the specific experience of the past and how it is understood; and second, the response of the people to the specific conditions they confront in the present.

GB: There seems to be a number of different modes of progressive lawyering arising from that experience.

RC: Yes. There are various terms that we use which suggest different understandings or emphasis: progressive lawyering, alternative lawyering, peoples’ lawyering, human rights lawyering, legal aid lawyering—which can be public (Public Attorney’s Office under the Department of Justice), or pro bono from law firms, or through community organizations.

GB: And of course, public interest lawyering.

RC: Yes, that is our rubric. We started about 20 years ago, institutionalizing it in the PILC. In my view, all of the types of lawyering we have mentioned are subsumed under the broad concept of lawyering in the public interest. The modus operandi is of course differentiated across a broad spectrum.

GB: Could you say something here about the traditional practice of law in this country?

RC: There could be a lot said. But let me make it succinct without comprehensively covering the subject. When we talk of traditional or mainstream legal practice, we are aware of several things, from logic, and from our experience.

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First, as members of a profession, they are in a position to make very significant amounts of money. Therefore, it is not surprising in an individualistic and competitive economic system such as what exists now, that they are driven by money.

Second, like other professionals, indeed people with education generally, they are mis-educated. They are not taught that they have a duty, a calling, especially in view of their important position in the social-political structure, to use their knowledge and skills to help others in a common struggle for social justice.

GB: I suppose that for the most part, they have little understanding of and less interest in such a struggle, nor how a lawyer might contribute.

RC: In this country, perhaps unlike Australia or some other advanced capitalist country, even the privileged class, including those in the profession of law, cannot be unaware of the very widespread social injustice which exists. They also cannot be unaware of the continuing struggle to rectify the injustices. This is so precisely because important parts of the struggle are waged in the courts and by lawyers, singly or acting in concert with others, such as legal and other activists, to bring about change in the conditions which create injustice.

GB: So in such a context, some lawyers, or intending lawyers, come to a point where they must decide what is the proper direction in which to take their career, or their life.

RC: Some, a small minority, do make a choice to put their expertise to good use in the struggle.

GB: I suspect there is an increasing number here making that choice. The worsening conditions for the mass of people, and the overt resistance to a corrupt regime would likely appeal to some

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of the idealistic young law students and graduates of your many law schools. And there seems to be institutional structures for them to work within.

Even in a country like Australia, there are significant social injustices which bring an increasing number of young lawyers into what we might generally call “community lawyering.” When I arrived in that country in late 1974, there was a very small sector of such law work. And there was a great deal of burnout, as there were so few and so much to be done. It was almost impossible to make a career of it. But today there are about 250 community legal centers and a number of other modes of “community lawyering,” so there is now a career structure and more are making the choice to go in that direction.

RC: Here, there is a great deal of public interest lawyering, and there certainly are many more young people who have become involved than when I began legal practice years ago. This is, of course, the result of the accumulated experience of our people and the present socio-political, economic conditions in which our youth are coming to maturity. Of course it must be said that there are different degrees of commitment to the struggle of the people.

This is always true, of course. If you ask for 100% of their time lawyering in that way, it would be a tiny minority. At this Center, that is what we do and have done since it was established in 1986.

GB: How would you sum up the work of the Center?

RC: Our fundamental task is, through our legal work, to raise the awareness of the people, especially the poor. Which of course is about 70% of our nearly 90 million population!

GB: Awareness of what in particular?

RC: Of the nature of the system we live in. We might say, the structures we are enclosed in.

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GB: So that there is a political awareness that injustice is not just due to some incompetent or even corrupt individuals.

RC: Yes, and that is a difficult task here where the media makes a lot of noise about one scandal after another. There are big profits to be made in that. But we try to show the systemic nature of the corruption which is so pervasive in our society. And, taking another current issue, we reveal and explain the increasing militarization of our government institutions and programs.

GB: Yes, I have looked at that a little. Mrs. Arroyo is surrounded by military and ex-military personnel, and many important positions and programs are under the direction of military types.

RC: We try to show the people that the present conditions, in which exploitation is massive—the rich growing richer, the poor growing poorer—calls forth repression. And that leads to many of the incidents such as extra- judicial killings and disappearances, in which we are asked to lead the legal challenge against what are largely government operations. Such anti-people attacks are mainly aimed at those who are active in trying to organize and protect the people from extensive violation of their rights as workers and as citizens.

GB: And in so doing you also will be exposing the injustices which exist in, or flow from, the legal subsystem?

RC: Yes, the legal system is tilted against the poor and exploited.

But that does not mean we do not try to win victories in legal struggles. People learn from defeats, as it can lead to a deeper understanding of the system, including the government and the judiciary, when justice is refused in the face of a clear case which demands it. But they also learn from victories!

GB: In what way?

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RC: Because the victories do not come easily, and normally come from popular mobilization.

GB: As Marx demonstrated in his discussion of the struggles over the Factory Acts which brought some reforms to the conditions of English workers. He was quite positive about such mobilization.

RC: In our struggles, we emphasize the importance of popular mobilization. This is crucial, especially in the circumstances here where not only are we fighting on the terrain of the State, but our opponents do not hesitate to deploy intimidation, harassment, and even deadly force when challenged.

We work closely with the people, normally in groups, and this provides an opportunity for us to explain the nature of the law, its contradictory and problematic nature. And of course, we leave them no illusions about the general reflection in the law of society’s dominant interests.

GB: I have read some of your speeches to various groups in which you make these points, even to the Integrated Bar of the Philippines! Which suggests that the contradictions in law run deeply throughout the legal system here, including within the legal profession.

I also noted in a seminar on law and social justice at the College of Law at the University of the Philippines—there were academics and lawyers, human rights and other social activists, and client groups from various sectors such as trade unionists, peasants, and fisherfolk. It must be a very exciting, with very dangerous milieu in which to work, and rewarding.

RC: There are rewards other than financial, and our young lawyers and paralegals do find their work highly satisfying.

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GB: So an important part of your work is demonstrating how popular mobilization produces the leverage within the law which occasionally makes it tilt in the direction of the people.

RC: Yes. Even under the Martial Law of the Marcos regime, when the tilt was very strong against the people. Many leading lawyers were in fact detained.

GB: How did that play out?

RC: There were many lawyers, of course, who were still able to practice, and they had an important role in small, day-to-day cases in which they challenged illegalities and abuses, often relating to detentions and brutal treatment, and were based mostly on technical issues.

GB: So Martial Law did not mean there was simply arbitrary procedures and no law?

RC: Right. Marcos was a dictator, but like most, he wanted to be seen to be acting for the good of the people, the nation. And in doing so he needed to portray his actions as being lawful. Thus he always contended that he had acted constitutionally, in the circumstances, when he proclaimed Martial Law in September 1972. In the years following, there were some actions the lawyers could take, just as there were in South Africa under Apartheid.

GB: The idea being that acting “under the color of law” provides legitimacy to the regime, or at least allows its supporters to believe that what is being done is justified by some interest other than the self-interest of those in power.

RC: He had to give the appearance, in general, of acting legally.

And of course we know that Marcos was a very good lawyer, proud of his capacity to argue cases successfully, including the case in which he was convicted for the murder of his father’s

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political opponent, Julio Nalundasan. He won that on appeal, arguing the case himself before the Supreme Court. Justice Jose Laurel commented: “to send this young man to jail would be to deny the country of a brilliant lawyer.�

Marcos was always very aware of the power of law and the idea of justice. So he played on the desire of the people for a better society in which they could receive justice. He was able to convince many of his plans for a New Society, at least for awhile.

But in the end he was found out.

GB: Were the progressive lawyers organized in those days, what was their institutional base for resistance to the regime?

RC: There was the Civil Liberties Union of the Philippines. That was the main organization. Senator Jose Diokno, one of the leading lawyers in the country, was the President. He was detained at the very beginning of Martial Law. Later, a number of other organizations emerged.

GB: I believe the Civil Liberties Union had been formed in the 1930s, and that throughout the 1930s and into the late 1940s and 1950s, there were progressive lawyers working to protect the masses. I believe, especially on behalf of the peasants and their unions, against the landlords and the state in the aftermath of the Second World War, and the transition to independence.

RC: Those were very difficult times for the progressive movements, the workers, fisherfolk, and especially the peasants, as they were hammered by the military, with the support of the Americans who feared a communist uprising and the reconstitution of Philippine society. There also were terrible actions against the people by the private armies of the landlords.

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GB: Perhaps we could look at the institutional basis for public interest lawyering in the contemporary period which seems, in some ways, not all that different from the days of Marcos.

RC: The current regime has a bad record for human rights abuses, and the “tilt” against the ordinary people still exists. On the other hand, there are well-organized social movements with many activists who support the people, and that includes a vibrant public interest legal sector. The first place to start in considering the lawyers’ role in the Philippines is the Constitution. It provides that no one is to be denied access to the courts due to lack of funds.

This has established what we might call a cultural tone which influences ideas about legal representation. There is a broad mandate that the poor must have access to the courts in a meaningful way. Of course this requires legal assistance. Thus, in normal circumstances, there is in effect, a requirement for the State to provide institutional and programmatic responses.

The government provides a Public Attorney’s Office under the Department of Justice. And the private sector has responded in a variety of ways, including pro bono work by both large and small firms and individual lawyers.

There is a large paralegal sector which complements these initiatives, as well as those in the public, but non-governmental sector where their role is exceedingly important.

In that public sector, there are numerous initiatives, including this Center, the National Union of Peoples’ Lawyers, FLAG [Free Legal Assistance Group], MABINI [Movement of Attorneys for Brotherhood, Integrity, and Nationalism], and University public interest lawyering centers. These take different forms, as do a number of others, either permanent or ad hoc, which deal with specific issues.

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And of course, in the various sectoral organizations, for example, the unions of workers (government and private), peasants, and fisherfolk—there are lawyers working on specific issues, but also joining in broader work which affects all or several sectors.

GB: That is a broad spectrum. In some countries it might be considered, in regard to much of what you have described, just basic legal aid, without any significant political dimension. What is different in the Philippines?

RC: For us, public interest lawyering means that the central driving force is being part of the overall political struggle. That is the ultimate contribution we make. In the practice of our profession, we try to find the appropriate blend of our type of lawyering and the overall political strategy.

But I must stress that it is complicated by our commitment to the basic principle: to ensure to the extent possible within the legal system that justice is rendered to our clients.

GB: I remember the 1955 anti-communist and racist Hollywood film Trial, with Arthur Kennedy as a duplicitous communist lawyer, where the opposite scenario was presented. It was, of course, a reactionary attack on the progressive lawyers in the National Lawyers Guild and the others who were defending progressive causes against state repression. The victim in the film, the client and his mother, were portrayed as being used to increase support for the larger political “cause.” It was a quite insidious film.

RC: That would be a Hollywood plot, and of course that was the McCarthyite period when progressives were “blacklisted” and could not work in the film industry.

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But such a scenario would not happen here. In each case, the political struggle must be a subordinate priority. Clients cannot be sacrificed and used as a tool for the “greater struggle.”

This would be immoral. It is totally unacceptable. I do not know the circumstances in America to which the film may be referring, but I would say it is open to serious doubt—a propaganda effort.

It certainly would not be a tactic used in our work. And I might add, having worked as a lawyer in New York for many years, I saw nothing of that amongst the progressive lawyers I met.

Here, of course, there has been so much injustice in the courts that we do not have to manufacture “lost causes” to raise the consciousness of the people.

GB: Can we talk a bit about the work of the Public Interest Law Center?

RC: The two main areas of our work are: first, the violation of civil and political rights, and second, the violation of social, economic, and cultural rights. We have a tripartite approach: litigation; advocacy work outside the courts; and community education, working mostly through groups such as peasant, worker, and fisherfolk unions.

GB: Is there a specialty for which the Center is known?

RC: Yes. Human rights advocacy.

GB: How is this all financed?

RC: We raise our own financial resources. We are self-reliant. We do not accept money from outside sources, i.e. foundations.

GB: I know that in the USA this kind of work is sometimes funded by law cases, such as a tort case, where the contingency fee could be quite large.

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RC: We have that here, too. We have in fact taken on some tort cases which, through the contingency fee system, have resulted in significant funding for the Center.

GB: Could you say something about the background of public interest lawyering in the Philippines? You must have seen a good bit of the development.

RC: Well, I was doing voluntary work with the Free Legal Assistance Group (FLAG) in the 1970s, and I was one of the founders of the PILC. But we must remember that legal assistance for the poor, the exploited, and oppressed has a very long history in this country.

GB: Yes, I have been looking at the early 20th century. There were lawyers doing cases for the poor, for people who got caught up in the Philippine American War, even American soldiers who were on the wrong side of the occupying American regime. Ironically, one of those lawyers was Eber C. Smith, an American who seems to have had a general law practice located in Intramuros, Manila.

In doing some research on the resistance to the Americans, I came across the case of Macario Sakay, the great political/military leader who was induced by the Americans to surrender in 1906. He was deceived by the Americans who offered him and his followers immunity. But when these brave nationalists were disarmed, they were arrested and tried, and Sakay and his chief lieutenants were executed. It was, of course, a show trial. They did not intend to let him off. One of his lawyers was Ramon Diokno, who I believe was the father of Senator Jose Diokno, whom you mentioned above.

RC: There is indeed a long tradition, not surprising in view of the repression our people have suffered for centuries under colonial

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forces, secular and other. It is true that many of our leaders in the Revolution against the Spaniards and the war against the Americans had studied law, and some had practiced it, if only briefly or intermittently. Mabini, of course, is one who stands out.

GB: And of course there was the context: the Americans established a form of liberal, bourgeois administration, although very bureaucratic. And of course very much under their control, e.g. the Supreme Court had a majority of Americans sitting on it for years. Thus they were trying to act “under the color of law” so that the Filipino elite would support them and assist in running the country. It seems there was a good deal of legal activity—what we might call “politico-legal” activity—as the two “partners” cooperated but also sparred to gain their own advantage. Much of this sparring was through the legal system.

RC: The American “rule of law” colonial state and the Filipino struggle for justice were in a sense conjoined as you suggest, and for our purposes here, it is important to note that one of the provisions in the 1935 Constitution, under which we would ultimately get formal independence, states that “free access to the courts shall not be denied to any person by reason of poverty.” I suppose that could be unique in the history of the world’s Constitutions. It certainly was early.

GB: Yes, even in the USA this was not seen as a right until the Supreme Court decided the great case Gideon v. Wainwright in 1963, about which Anthony Lewis wrote his wonderful book Gideon’s Trumpet.

To see it in the colonial Constitution is striking, and perhaps symbolic of the mode of colonial rule adopted by the US. Again, it shows the importance of understanding the legal system as a subsystem of the larger governance system, for we should remember that there is the other, dark side of American dominance of the Philippines: from the dreadful, brutal war of

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1899 onwards, to their interference in the following decades with peasant struggles, the brutal repression of the anti-Japanese guerrillas (HUKs) at the end of World War II, and the continuing interference in Philippine political and economic affairs since your independence in 1946 to the present time.

RC: That provision has remained in all subsequent Constitutions.

GB: Yes, I noted that it was in the Marcos-imposed Constitution of 1973. I was surprised to find in that document the establishment of the Office of the Ombudsman as well as the Sandiganbayan, the special anti-graft court.

RC: Well, Marcos wanted to be seen as creating the institutions for a “New Society,” a law-based, reformed society. And he was under pressure because of the increasing dissatisfaction with his regime and the way in which he had extended his term in office.

We can see here some similarities to the present situation in our country. But, of course, these were always seen as tools to be used for his purposes, in his struggles with those who were not his allies. They were not intended to “clean out” graft, corruption, or governmental abuses.

GB: I suppose his concept of “authoritarian democracy” gives us a better understanding now of what his “reforms” were really intended to achieve.

RC: Of course we had had a lot of experience with authoritarian and repressive tendencies before and since Marcos, as you point out. In response, we have had lawyers, what we used to call civil rights lawyers, who challenged the State and spoke for the people.

We mentioned the Civil Liberties Union of the Philippines, back in the 1930s, which continued into the post-War period. Jose Diokno was one of its leaders. There were others—Claro Recto

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and Lorenzo Tanada—all Senators, and strong nationalists who fought on the legal and political fronts, against not only the abuses of the State, but also American neo-colonial policies and actions.

But the peak of progressive lawyering was in the Marcos period, especially after the Martial Law declaration in September 1972. The repression was immediate and comprehensive. Human rights violations and physical and other abuses escalated rapidly: killings, “disappearances,” mass detentions merely on suspicion, or to intimidate the victims and others and to keep potential leaders away from their followers.

GB: How did lawyers respond?

RC: As you can imagine, it was quite a shock to people to have the military unleashed on the people and their organizations. For some time they were not well-organized. This applied to most of the bourgeois leadership—any who were in the broad Opposition.

And, of course, lawyers’ leaders, such as Diokno, were in detention.

Marcos initially justified Martial Law by declaring that there was an emergency situation. He had previously suspended the writ of habeas corpus, and now went another step to dictatorial rule, citing the threat offered by communist rebellion and the war with Moro forces in Mindanao.

But, there were many unsung heroes throughout the country, lawyers who worked with the poor—peasants and workers—in trying to protect their lives, their rights, and their livelihood.

GB: And there must have been many cases emerging regarding “subversive” elements and organizations.

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RC: There were many cases involving suspected revolutionaries, largely of the Communist Party of the Philippines, and of course, those accused of supporting them in one way or another.

Remember, through his Presidential Decrees, Marcos had outlawed most freedoms—of the media, of the people to organize.

Most organizations were proscribed. In those circumstances there were many ways of violating the law!

GB: So it was difficult to practice progressive lawyering, or even to organize lawyers to do it.

RC: It was, but gradually things got going. The Association of Major Religious Superiors of the Philippines (AMRSP) set up the Task Force Detainees in 1974. AMRSP had been established in 1955 and were influenced by liberation theology. They were close to the progressive forces in the Opposition. They investigated reports of torture and illegal detention—abuses of various kinds.

GB: I have seen their work and references to it as “the leading watchdog on arbitrary repression in the country, heavily influencing Amnesty International’s damning 1977 report on the conditions under Martial Law.* RC: When he was released from detention in 1974, Senator Diokno founded a new organization, the FLAG which was to work with the AMRSP on these issues. The CLUP was given new life, with Diokno also in the leadership, and they produced the stinging critique of the Marcos regime and its policies in The State of the Nation After Three Years of Martial Law (1975). That was at the level of the public, national ideological struggle.

At the level where ordinary people experienced the regime of Martial Law, there were countless, now nameless, faceless lawyers who continued to work for their communities all over the W. SCOTT THOMPSON, THE PHILIPPINES IN CRISIS: DEVELOPMENT AND SECURITY IN THE AQUINO ERA, 1986-1992 (St. Martin’s Press, 1992).

*

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country. They did what they could in different small tactics and techniques to fight the repression of the Marcos regime. And all of this has contributed to the cumulative experience of Filipino peoples’ lawyers.

GB: And today, how is that experience manifested, applied?

RC: For example, we have the Public Attorney’s Office, with perhaps 1,500 lawyers. They are public attorneys for the people, the common man/woman. They work in a great tradition, one of which they are aware. If you were to talk to them, you would find that they are progressive, they are sympathetic to our struggle, for the most part. Even if they are not when they start out, it is inevitable that at least there is a strong chance they will become progressive on the job. This is because in our country, despite the mis-education of our people, the reality is far from the ideology.

There is tremendous injustice, inequality, and rampant exploitation. It is the common people who suffer. And these public lawyers come to understand that their work is a part of the general struggle for social justice. If achieved, that would be a “New Society” worth having!

GB: I am interested to know how you see the integration of progressive lawyering into the larger context of struggles for social justice. In a sense, I am trying to understand what we might call the Filipino model of peoples’ lawyering.

RC: First, there must be integration. You cannot be an effective progressive lawyer unless you have a good working relationship with the larger progressive movement. We need to take cases for organized groups. These groups are, of course, organized by forces in political struggle. Except for the cases we take to derive funding, as mentioned above, we do not take individual cases. We refer them to law firms which we know are specialists and naturally, have a record of being pro-people, with integrity.

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GB: There is a lot of discussion in the country about corruption in the legal system—in the legal profession and in the courts.

RC: Yes, it is a big problem, though nothing new. Judges are bribed, and other government officials, both in and out of the legal arena. It seems often that it is the lawyers who are involved in the bribing, as well as in accepting the bribes. For a whole range of problems in the judicial sector, the common solution is to buy your way out. It is a known, and even proven, fact of life here.

GB: Of course we know that it is not just a problem here. It is a problem in most Third World countries. Perhaps in different, less blatant ways, it is also a problem in the advanced capitalist countries.

RC: With regard to integration, we should mention the trade union movement. As you know, we have large, central institutions in the different sectors: for workers, the May First Movement, or KMU; the KMP for peasants; the Pamalakaya for fisherfolk. In these centers, there are small legal units which deal with the issues affecting unions and their members. That is the more day-to-day conflicts with employers, police, and other governmental authorities.

However, for the more general cases involving human rights of the people, generally, they will refer cases to this Center and other organizations such as the NUPL. And of course the Center and the NUPL, and others, have a wide range of lawyers to whom referrals can be made if we need to spread the load.

Each center, certainly this one, acts as the legal arm of a number of social movement organizations. Thus there would be a wide range of actions in which we would be taking a part. We might, for example, be involved with a number of political groups in challenging the constitutionality of the Visiting Forces Agreement, at the same time handling cases involving the families

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of activists who have been killed or disappeared or abused, or tortured by the military, including the police. These sorts of cases would be brought to us by an organization such as KARAPATAN, or one of the trade union centers. About half of the extra-judicial killings and disappearances involve union activists.

GB: And you use different methods, I believe.

RC: Yes, as I mentioned above, we have a three-pronged approach. We may litigate, especially constitutional issues, or we may seek relief, now using the new measures brought in by our progressive Chief Justice Reynato Puno, that is the writ of amparo and the writ of habeas data. Or we may engage in advocacy, by submitting research reports we have prepared, or commissioned, on human rights violations; or we may even secure independent reports from outside, even international bodies. We also do various projects for community legal education, e.g. the conference you referred to.

GB: That was a marvelous experience for me, and I am sure for hundreds of others who had the opportunity to attend. I noted that many who came were from the organizations we have been discussing, and that they presented papers on the legal issues confronting them. Even some very small children were there with their mothers. It was a very convivial atmosphere with a strong sense of solidarity.

RC: You will have heard our Chief Justice discussing his new program of Justice on Wheels, the idea being to get people out of prisons by taking the courts to the institutions where they are confined in order to cut the delays in our creaking system. This has benefited thousands already. To have that kind of leadership from the top of the judicial tree is refreshing!

GB: I did find that impressive. And I also was surprised, but quite pleased, to hear him speak just after you had made your

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presentation, which was a thorough critique of the injustice which the Filipinos suffer daily under the unequal political system in which they live, often at the hands of the legal system. He said, “I agree with everything the previous speaker just said.� I thought that was remarkably frank, and highly unlikely to be heard from a Chief Justice in Australia or the USA! RC: He has been exceptional. Of course he is not a favorite of the incumbent President. But he is surrounded by her appointees and has increasingly been consigned to the minority in very important cases in the past few years.

GB: As a legal academic, I am interested in the law schools here.

There seems to be a rich tradition of University education, going way back to the 16th century. Law teaching in this country, however, came later. It seems to have emerged in the 19th century.

As in most countries, and I suppose all colonies, it was an education of the elite. How much have the law schools contributed to public interest lawyering?

RC: A good question. The curricula are very traditional. As you know, Filipino graduates must pass the bar exam in order to practice law. It is based on the American model. Except that here we do not have exams on a state or province level. There is one set of exams, which must be taken in Manila. It is very difficult to pass. Many do not.

GB: I believe it is very expensive, since the exam is given on four successive weekends during September. That means a lot of extra expense, especially if you are from the provinces, and a reduced income in that month.

RC: Indeed. And extra expense, and/or reduced income during the months leading up to September as the students prepare. The bar then is a very important determinant of who gets to practice law, but also what understanding of law the successful candidates

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will likely have. It is based on the traditional subjects and ideology of the law. So there is pressure on the Universities and the law schools to prepare their students for that exam. High priority must be put on the subjects that will be examined by the Bar. The result is a dearth of public interest law subjects.

Further, most legal academics here are also practitioners.

Some of these would be engaged in public interest lawyering, but I think not many. But they will be expected to teach what the students will be examined on.

GB: I have spoken to a Dean of a law school outside Manila. He was a practitioner. He did not seem remotely interested in discussing the teaching I was doing after I told him my course was The Common Law Tradition, and that I had for years taught the History and Philosophy of Law! Of course there would be deans in many law schools around the world who might react in the same way! But I have noticed that here in Manila, outside too, there are some positive developments—visiting scholars teaching Human Rights law, professors directing research on current issues such as constitutional and human rights issues, and centers for community legal assistance and research.

RC: Yes, there are some encouraging developments. Still marginal to the curriculum perhaps, but an important part of the milieu of the law program.

GB: The Bar exam system does present problems. In Australia, we have the English system where the profession makes known what “areas” of law we must teach, and reviews the law programs periodically, but there is no general exam like the bar exam after graduation. Thus we have more freedom to teach what we want, particularly through a large number of elective units. Another factor in our favor is that we teach double-degrees, so that a law

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graduate takes a law degree along with another degree in a fiveyear program.

In theory then, I guess I would say that educational ideals are more easily mustered against strictly professional goals in our legal education. Nevertheless, very substantial battles have had to be fought against the pressures towards narrow, strictly professional education as opposed to a “liberal” or “humanities” educational approach. While the Critical legal Studies movement made some headway in a number of law schools, including my own, Macquarie University, this was achieved only after considerable struggle.

RC: That is interesting—the struggle at the workplace. There is no getting away from it.

GB: Of course, what I have come to realize is that the curriculum is only a small part of the influence on law students. It is the context in which the student studies, and in which the student emerges into the world of legal practice. It is the material experiences which allow the ideas and traditions to be weighed up, reconsidered, and adopted in a synthesis of ideology, knowledge and post-study practice.

Thus, in the case of Australia, the development of the Critical Legal Studies and successor movements in the 1970s and after, together with the blossoming of the many progressive social movements and the consciousness of human rights issues, including the environment, has meant that Australian Law Schools offer a great range of subjects, including public interest lawyering (with practical components, e.g. getting credit towards the degree by working with one of many community legal centers, or the Public Interest Law Centre in Sydney).

What is particularly important is that the student now has a career path in which to continue in public interest lawyering.

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But, one thing I have noticed is that there is a limit to the political commitment, indeed the critical understanding of the capitalist system in which they work. So that limit means that lawyering in the public interest in the Australian context is very much limited by the general conditions in which people, lawyers, and others, live and work.

The conditions are not sufficiently radical or extreme to produce the revolutionary lawyers who I meet in significant numbers in the Philippines. Thus emphasizing the point you initially made about the concrete conditions being fundamental in developing the consciousness and commitment of peoples’ lawyers.

RC: That is interesting. It seems we have a long way to go in our law schools, by comparison. But our socio-political conditions are such that our young law graduates develop and maintain a high level of commitment to the larger struggle for social justice.

GB: Yes, we must look to the specific conditions in each society and try to remove those barriers to critical understanding and political commitment which is vital for real peoples’ lawyering. I guess we could say that in Australia, the law school environment, including the curriculum, can be important in getting students on the right track, and they can now find in the community centers a career which allows them to develop their commitment and understanding.

However, two other factors must be considered: first, the present lack of the strong radical critique of capitalism which spawned those critical movements of the 1970s. An international dimension here might be mentioned—the critique which developed in American universities in the 1960s as a result of the confluence of the Civil Rights movement and the anti-Vietnam War struggle. Second, though not unrelated, is the lack of a strong, mass-based Left which confronts the State—be it

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“conservative” or “social democratic”— and the social injustices which it aids in reproducing.

Of course we do not have anything like the blatant and severe repression and exploitation which confront the progressive lawyers of the Philippines. Thus, they have an understanding and commitment missing in countries such as Australia. There is a harder, even revolutionary edge to it; and with three dozen lawyers assassinated in the past decade, a courageous dimension our lawyers have not had to experience.

That I and other outsiders have been so impressed by what is being done here by the peoples’ lawyers is, of course, a measure also of the anti-people policies of successive governments, including the current regime, perhaps the worst, of Gloria Macapagal Arroyo.

RC: There is no doubt that our path has been a bloody one, and the lawyers have contributed much in the ongoing struggle.

Happily, we seem able to continue to fill our ranks with young people who are willing to sacrifice for the cause they believe in.

Part of the reason for that brings us back to the issue of integration. There is a strong connectivity here, across a community of progressives. Their life is spent working with others, as part of a broad, collective community striving together to make a better world for all.

GB: I recognize what you are saying in the wonderful spirit I have found amongst the progressive lawyers and the others with whom they are interconnected in the various social movements here. It seems a very dense civil society, and the lack of “western” individualism is noticeable, and refreshing.

Which makes my next question seem a bit strange perhaps, but I think personal stories are important in understanding the dynamics of the development of the commitment to working for

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others as a public interest lawyer. We can think of it as the dialectics of personal and political development.

RC: I grew up in Nueva Ecija, a province of central Luzon. I went to the University of the Philippines to do law, and came out in 1957. At that time I was, I suppose, a typical law graduate. That is, I took up the traditional practice of law. Although I have to say that in land cases, I had a preference for the tenants. My father was a tenant farmer and I know how he struggled.

GB: As it happens, I am doing some research on conditions in Nueva Ecija, back in the time of the Philippine-American War, and through the 1930s and into the early 1950s, so I have some idea how repressive and exploitative the landlords were in dealing with and controlling the peasants and their organizations throughout Central Luzon. I think it is not a coincidence that in such areas the masses have supported rebellions over the years.

Central Luzon is well-known, and much written about, for its revolutionary tradition. And progressive lawyers, I believe.

RC: Yes, all true, but of course we must come back to the specific circumstances, the individual experiences. In my case, it means that my class background, and my University experience were not as one, they were shall we say, not in alignment. So to speak, my left foot was with the progressive sector, while my right foot was with the establishment, the elite. This contradiction and its effect upon my understanding, my political consciousness, remained.

As we know from studies, this leads to a very ambiguous view of one’s position in the social structure, with potential resolution in several directions.

But in my early career, into the 1960s, the situation was relatively calm. So for me it was a long road. Though I was attracted to radical ideas and activism, it can take time for this to be internalized, for it to become subjective rather than objective, external, and at arm’s length.

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GB: It is interesting for me, as I was in the US Navy, at Subic Bay in 1956 and 1958, and traveled a bit, up to Baguio and even down to Cebu City. The Philippines seemed a wonderful, peaceful country to us.

RC: The defeat of the HUKs and the ferocious repression of the peasant movements had left the country—the peasants, quiescent.

For some years in the late 1950s and into the 1960s, the country was somewhat de-politicized. The calm before the storm. But I was to feel the storm in due course.

In 1973, I was elected from my province to be a delegate to the Constitutional Convention. This was originally an idea of the Opposition, but Marcos could see advantage to himself. As today, there was much genuine talk of bringing about changes to the Constitution, the then 1935 Constitution, the product of the American colonial experience.

Marcos, like the supporters of President Gloria MacapagalArroyo today, saw it as a way to avoid a likely election defeat in 1973 by extending his term under a new Constitutional arrangement. His political future was in doubt after Opposition forces gained some unity and emerged stronger than ever from the 1971 legislative elections. Of course, after the Plaza Miranda bombing in August 1971, he had suspended habeas corpus, and then in September 1972 he declared Martial Law, and began to rule by decree.

GB: What had happened to you, if anything, just after Martial Law was implemented?

RC: Upon declaration of Martial law, I went into hiding. My office was raided. I was on their list as I was known to belong to a “Progressive Bloc.” As things worked out, my union colleagues

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arranged for me to be placed under “house arrest,” rather than into detention. Altogether, I was raided three times.

GB: So what was your response to this?

RC: I finally decided to flee. In 1975, I went to New York City and was admitted to the Bar there. I had my family with me. I did some teaching at the City University of New York Law School, which gave priority to students from poor backgrounds who would not be able to afford the other law schools. And I was involved in expatriate Filipino activity—anti-Marcos work. As late as 1979, I was still associated with the traditional politicians— TRAPOS we call them—one being Ninoy Aquino. In some ways, he was the leader of the traditional parliamentary Opposition, and certainly a TRAPO. But things were quite complicated, in a state of flux. He was in talks with almost everyone, Marcos’s people, the other TRAPOS, the Church and it is said, the Communist Party of the Philippines.

GB: But you were radicalized at some point. How did that happen?

RC: At that time, because of the Vietnam war, and the Civil Rights movement preceding it, New York City was politically alive. A part of this was the politicized Filipino expatriate network. It was a buzz living there. At first I did a lot of walking around, and found that there was a rich supply of cheap Left literature which I immersed myself in. And I interacted with people of various Left tendencies—Marxists and others. That is when I really started to connect with the anti-Marxist support groups.

Like many before me in such circumstances, I realized I had a choice to make. You have to lead a meaningful life. It was a gradual development. I had to pass a big barrier. But I did. I decided I would devote my lawyering to the progressive cause.

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After nearly a dozen years in New York, I returned to the Philippines to help in the peoples’ struggle for social justice.

GB: And the PILC emerged then?

RC: We set up the PILC in 1986, and I have been the Director and lead attorney since that time.

GB: How would you sum up that experience?

RC: It has to be looked at realistically. We have had, even after the end of the Marcos regime, rather limited judicial space here. Our task, along with others we have mentioned (e.g. the NUPL) is to broaden that space. I believe that under the present politicaleconomic system, this task is never completed, but must be continuously struggled for. Those are the concrete conditions in which we are forced to operate, and we must study and analyze them constantly and without false understandings based in subjective “hopes.”

I believe some progress has been made. We have had some victories in the Supreme Court. We work hard to achieve those victories—against rich, powerful and sometimes even threatening opposition. It is therefore uplifting. It is important for the young lawyers, and others who have made the choice to head in our direction rather than to follow the money trail of the traditional professional. It is tough going, especially when there are substantial resources, legal and other, arrayed against us. Tilt does exist in our legal system.

GB: And what of the defeats? The progressive practice of law is, sad to say, littered with defeats.

RC: Even the defeats have a positive side. For example, when Marcos was challenged in the courts about the legitimacy of his Martial Law regime—even though the Supreme Court found,

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narrowly and rather ambiguously, in his favor, it was a sign that he was not going to be able to do entirely as he pleased, that it was in that sense a warning shot fired across the bow.

Another positive effect is at the level of political understanding, which is important for anti-hegemonic work in the future. Defeats enable our clients to more fully appreciate the nature of the system under which they live. Thereafter they have no or fewer illusions about the institutions which govern them.

Thus, those institutions have less sweeping legitimacy, and this made it more difficult for the dictator to mobilize the people behind his quest for hegemony.

GB: They have learned what an American Marxist lawyer, Prof.

Wythe Holt, refers to as systemic “tilt” in the legal system, and which certainly exists pervasively in such an unequal society as is the Philippines.

RC: Of course, the angle of “tilt” is not fixed. Sometimes we can even push the balance over in the direction of the poor, the exploited, and the oppressed.

GB: That is what we must continue to fight for as peoples’ lawyers. I must thank you for your commitment to that cause over many years, and wish you and your lawyering comrades the best in the coming struggles.

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An Assessment of the Implementation of Republic Act No. 9344 or the Juvenile Justice and Welfare Act

by Local Government Units in Luzon MICHELLE SAN BUENAVENTURA-DY*

Purpose This study aims to determine whether Republic Act 9344 is being fully implemented by local government units in Luzon, so as to find out whether proper implementation of the law will already address the problems currently being attributed to it.

Problem This law has been under a lot of scrutiny from both lawmakers and the public ever since it was enacted in 2006, with some saying that the lowering of the age of criminal responsibility and the exemption of children aged 15 years old and below from criminal Lead researcher for the project. Dy is a Law Education Specialist at the Institute of Government and Law Reform of the UP Law Center. The interviews were conducted by teams from the Department of Social Work and Development, and teams from the UP Law Center, composed of Venus Mejia, Michelle Arias, Patrick Salazar, Katrina Nessa Abad, Raisia Rojas, Mary Ann Ra単ola, Alyssa Carmelli Castillo, Sophia Mo, Sandra Magalang, and Aileen Estoquia. *

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responsibility have contributed to an increase in the number of crimes committed by children. These observations have led lawmakers to propose amendments to the law, including proposals to lower the age of criminal responsibility, or to repeal it altogether.

Findings The results of this study showed that RA 9344 is not being fully implemented in local government units in Luzon. Most of its provisions that require action from the local chief executive (LCE), the Local Social Welfare and Development Officer (LSWDO), and the barangays are not being complied with by all the respondents in the study, as shown by the low percentage of compliance in each area of the survey.

Conclusions The respondents listed reasons for their inability to fully implement the law, among which are: financial constraints, lack of personnel, lack of knowledge, and lack of training on RA 9344, particularly at the barangay level.

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INTRODUCTION THE JUVENILE JUSTICE Welfare Act or Republic Act 9344 was enacted in 2006 to protect the best interests of Filipino children, 1 in recognition of their vital role in nation-building, 2 their right to assistance, including special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development, 3 and pursuant to international standards in child development and child protection, including those laid down in the United Nations Convention on the Rights of the Child. 4 This law mandated local government units, including provinces, cities, municipalities, and barangays, with duties to administer juvenile justice in their jurisdictions, including the creation of local councils for the protection of children. 5 Today, seven years after the effectivity of RA 9344, the Institute of Government and Law Reform of the University of the Philippines Law Center sought to assess the implementation of the law. The Institute first conducted a survey among local government units in the cities and municipalities in Metro Manila. 6 However, upon learning of the Institute’s project, the Policy Development and Planning Bureau, the research arm of the Department of Social Work and Development (DSWD), proposed a partnership to expand the scope of the project to cover the entire Luzon. The DSWD has a five-year research agenda which

Sec. 2(b), RA 9344.

Sec. 2(a), Ibid.

3 Sec. 2, Ibid.

4 See full text at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (last accessed September 23, 2013).

5 Sec. 15, RA 9344.

6 The team was unable to survey the city of Muntinlupa due to difficulties it encountered in getting in touch with its Local Social Welfare Development Office (LSWDO).

1 2

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identified an assessment of the implementation of RA 9344 as one of its highest priority research. Thus, the present project was born.

The research team, composed of staff from both the Institute and DSWD, visited selected local government units all over Luzon, and interviewed local officials as to their compliance to the provisions of RA 9344 in their implementation of the law.

PROBLEM AND ITS SETTING RA 9344 aims to protect the best interests of Children in Conflict with the Law (CICL) by ensuring that Philippine laws on child protection conform to international standards. 7 It raised the age of exemption of children from criminal responsibility, from nine years old under Article 12 of the Revised Penal Code (RPC), to 15 years old. It also provided that children ages 15 to 18 years old be exempted from criminal charges if they are shown to have acted without discernment. Under the old provision in the RPC, the discernment test was used only on children between nine years old to 15.

This law provides that the priority of the State is for CICLs to undergo intervention or diversion programs instead of being prosecuted. Children 15 years of age or under are subject to intervention programs. 8 For children above 15 years old but below 18 years old, it is necessary to determine whether they have discernment so as to determine the appropriate action for them.

Those who acted without discernment are also subject to intervention programs, whereas those who acted with discernment are required to undergo diversion programs without

7 8

Supra, note 4.

Sec. 6, RA 9344.

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the necessity of court proceedings as long as the conditions provided by the law are met. 9 If the CICL does not qualify for diversion, or if the CICL or his or her parents or guardian does not agree to diversion, or if the prosecutor determines that diversion is not appropriate based on the assessment and recommendation of the social worker, then legal action may be had. 10 Failure of the CICL to comply with the terms and conditions of the contract of diversion also gives the offended party the option to institute legal action. 11 The law also provides that children 15 years old and below who are taken into custody of the law are to be immediately released to their parents or guardian, or in their absence, to their nearest relative. 12 Only when they are found by the LSWDO to be abandoned, neglected, or abused by their parents, or when the parents do not comply with the prevention program will a petition for involuntary commitment be filed. If a case has been filed against the CICL, institutionalization or detention pending trial is resorted to only as a last resort. 13 Even after a court finding of guilt, imprisonment is not automatic for CICLs; there can be automatic suspension of sentence, 14 discharge, 15 probation as an alternative to imprisonment, 16 and confinement in agricultural camps and other training facilities in lieu of confinement in a regular penal institution. 17 Despite the good intentions of lawmakers, however, certain sectors have called for amendments or the total repeal of the law Sec. 23, Ibid.

Sec. 33, Ibid.

11 Sec. 26, Ibid.

12 Sec. 20, Ibid.

13 Sec. 36, Ibid.

14 Sec. 38, Ibid.

15 Sec. 39, Ibid.

16 Sec. 42, Ibid.

17 Sec. 51, Ibid.

9

10

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for various reasons. Some call for the lowering of the age of criminal responsibility, while others criticize its implementation.

Others point out that crime syndicates have abused this law by exploiting children and by using them to carry out their illegal activities. They are of the view that RA 9344 did not benefit children, but instead enabled the abuse of children for illegal ends.

On the other hand, it could be that critics are just too quick to condemn the law. RA 9344 has been in effect for only six years; thus, it may be too early to say whether it has been effective or whether it has met its objectives. Moreover, it has not even been fully implemented in many areas in the country, hence amendment may be premature.

OBJECTIVES OF THE STUDY There is a need to assess how the agencies tasked with the duty to implement RA 9344, particularly the LGUs, have implemented it.

It is the objective of this study to determine if the LGUs have been able to implement the law to the letter, and if not, to determine the cause, including the problems and issues that the LGUs encountered in implementing the law, and then come up with solutions to address those issues.

SCOPE AND LIMITATIONS OF THE STUDY The study focused on obtaining information on the manner by which LGUs in Luzon implement RA 9344. A sample population of LGUs in Luzon was surveyed to: (a) determine the extent to which they have implemented the law, (b) identify the problem areas in implementation, (c) determine what is hindering full implementation of the law, and (d) determine what can be done to assist or enable the LGUs.

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The study did not focus on the effectivity of the law in preventing children from committing crimes, nor on the effectivity of the law in rehabilitating the children in conflict with the law and then reintegrating them back into society.

METHODOLOGY Questionnaires were prepared for key officials in each LGU: the Local Social Welfare and Development Officer (LSWDO), a member of the Barangay Council for the Protection of Children (BCPC), and the Local Chief Executive (LCE) or a representative of the local government unit. The questions were formulated in order to determine whether the LGUs have been able to comply with the provisions of the law, and to identify the issues or problems that LGUs encountered in implementing the law.

CONCEPTUAL/THEORETICAL FRAMEWORK This study aimed to show that among the possible reasons for the apparent ineffectiveness of the law is the inability of LGUs to fully implement its provisions. The research team determined the extent to which the LGUs have been able to comply with the requirements of RA 9344, and for the areas where compliance is incomplete, to identify the factors that contribute to their failure to fully implement the law.

REVIEW OF RELATED LITERATURE Several studies have been conducted on RA 9344, among which is a report 18 published by PREDA Foundation19 which identified the

JESSICA KNOWLES, STILL BEHIND BARS: CHILD INCARCERATION AND JUVENILE JUSTICE POLICY IN THE PHILIPPINES, PREDA Foundation Report 18

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demographics (age, gender, geography, education, economic) from where CICLs most commonly originate.

It also identified the gaps in the implementation of RA 9344, especially where it concerns the rights of CICLs from being incarcerated with adults, and from being abused by the police.

The report also gives an account of the situation of CICLs in youth detention homes, and included testimonies of CICLs which reveal that their lives in detention homes vastly differ from the ideals embodied in the law.

RESEARCH DESIGN The current research followed the same strategy and development plan of its predecessor. The survey questionnaires for the local chief executive (LCE), the LSWDO, and the barangay council for the protection of children (BCPC), which were all used in the research for Metro Manila were also used for this study, but with a few additional questions. The questions were based on the provisions of RA 9344 and its Implementing Rules and Regulations (IRR) on the duties and responsibilities of the LGU, its Barangays, and its Local Council for the Protection of Children (LCPC).

Out of the 753 LGUs in Luzon (excluding Metro Manila), 132 or 17.53% of the total number was included in the sample.

This number was then proportionately distributed according to (July 2010). Available at http://www.preda.org/main/archives/still-behindbars.pdf (last accessed September 23, 2013).

19 The People’s Recovery, Empowerment and Development Assistance (“PREDA”) Foundation is a human rights social development organization based in the Philippines. See http://www.preda.org/en/(last accessed September 23, 2013).

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province. To get the sample, the team used the non-probability purpose sampling technique to identify the cities and municipalities with CICL cases, based on the initial information given by LSWDOs. However, considering the proximity and the cost, the provinces of Romblon and Batanes were excluded by the research team. The research team was however able to visit 144 cities and municipalities in Luzon.

The respondents consisted of City/Municipal Social Welfare Development Officers (CSWDOs/MSWDOs), LCEs, and BCPCs in Luzon.

The research used both qualitative and quantitative methods. The procedures for gathering qualitative data included survey interviews and document reviews. The team went either in small groups or individually in visiting cities and municipalities.

After the conclusion of the data-gathering process, all the questionnaires were submitted to the Institute for encoding and processing of the data.

Instrumentation There were three (3) sets of survey questionnaires, each designed for LCEs, LSWDOs and BCPCs. The questions were based on the provisions of RA 9344 and its Implementing Rules and Regulations (IRR) on the duties and responsibilities of the LGUs, Barangays, and its Local Council for the Protection of Children (LCPC).

Statistical Treatment of Data Data Analysis and Interpretation After the data-gathering and processing, the team evaluated and interpreted the responses as well as the results of the survey data.

The team classified, analyzed, interpreted and presented findings

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in textual and tabular form, utilizing Microsoft Excel for data analysis. The outputs were largely descriptive statistics. The frequency distribution, average mean, and cross-tabulations of results were used in this study.

This report was then presented to LGU officials who were invited to a forum at the UP Law Center during the Juvenile Justice and Welfare Week last October 22, 2012.

THE ROLE OF THE LOCAL GOVERNMENT UNIT IN IMPLEMENTING RA 9344 A. Policy – the LCPC RA 9344 provides for a council in every local government unit which has the duty of creating a blueprint or plan for delinquency prevention and which oversees its implementation. 20 This is called the Local Council for the Protection of Children (LCPC). 21 For provinces, it is called the Provincial Council for the Protection of Childern (PCPC); for cities, the City Council for the Protection of Children (CCPC); for municipalities, the Municipal Council for the Protection of Children (MCPC); and for barangays, the Barangay Council for the Protection of Children (BCPC). 22 In this survey, the local chief executive (the city or municipal mayor, as the case may be) in his or her capacity as the head of the LCPC,23 or his or her appointed representative, was asked about the compliance by their respective LCPCs to their functions as set forth in the law.

Sec. 15, RA 9344.

Rule 18.c, IRR. 22 Rule 15.a, Ibid.

23 Rule 15.c, Ibid.

20 21

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Under the IRR, the LCPC has the following duties and responsibilities: 24 1. Serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of the Comprehensive Juvenile Intervention Program as provided in Rule 18 below, and to oversee its proper implementation; 2. Coordinate with and assist the LGUs in calling on all sectors concerned, particularly the childfocused institutions, NGOs, people’s organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs; 3. Coordinate with LGUs in the annual review and assessment of the comprehensive juvenile intervention programs; 4. Coordinate with and assist the SK in the formulation and implementation of juvenile intervention and diversion programs in the community; 5. Provide coordinative linkages with other agencies and institutions in the planning, monitoring and evaluation of juvenile intervention and diversion programs in the community;

24

Rule 15.d, Ibid.

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6. Assist the Punong Barangay in conducting diversion proceedings in cases provided under Section 23(a) of the Act and Rule 43.b below; 7. Assist the Local Social Welfare and Development Officer (LSWDO) in the development of the appropriate diversion program as provided under Section 23(b) of the Act; 8. Institute together with schools, youth organizations and other concerned agencies the community-based programs on juvenile justice and welfare initiated by LGUs; 9. Conduct capability building programs to enhance knowledge and skills in handling children’s programs; 10. Establish and maintain a database on children in the local government. Specifically, for the purpose of this Act, the LCPCs shall maintain a database of children in conflict with the law, which shall include the children who undergo intervention, diversion and rehabilitation programs and after-care support services; 11. Document best practices intervention and prevention;

on

juvenile

12. Advocate and recommend local legislations promoting child survival, protection, participation and development, especially on the quality of television shows and media prints and coverage, which are detrimental to children, and with appropriate funding support;

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13. Conduct an inventory of all NGOs serving children in conflict with the law and mobilize them as resources for the effective implementation of the Act; 14. Review existing policies of units providing services to children in conflict with the law, determine the barriers to access to these services, and take the necessary action to improve access to these services.

The BCPCs are also required to perform the following functions as set forth in Presidential Decree No. 603, or the “The Child and Youth Welfare Code” [“P.D. 603”] and Republic Act No. 8980, or the “ECCD Act.”25 1. Encourage the proper performance of the duties of parents, and provide learning opportunities on the adequate rearing of children and on positive parent-child relationship; 2. Assist parents, whenever necessary in securing expert guidance counseling from the proper governmental or private welfare agency; 3. In addition, it shall hold classes and seminars on the proper rearing of children. It shall distribute to parents available literature and other information on child guidance. The Council shall assist parents, with behavioral problems whenever necessary, in securing expert guidance counseling from the proper governmental or private welfare agency; 4. Coordinate the activities of organizations devoted to the welfare of children in coordination 25

Ibid.

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with the Sangguniang Kabataan and secure their cooperation; 5. Protect and assist children at risk; and 6. Take steps to prevent juvenile delinquency and assist parents of children with behavioral problems so that they can get expert advice.

B. The CJIP LGUs are mandated to formulate their own comprehensive juvenile intervention program (CJIP)26, based on the National Juvenile Intervention Program developed by the Juvenile Justice and Welfare Council (JJWC). 27 They are also required to annually review and assess their implementation of their CJIPs and submit the assessments to the JJWC. 28 The IRR sets forth the components 29 of the CJIP: a. In-depth analyses of the problem and inventories of programs, services, facilities and resources available; b. Well-defined responsibilities for the government agencies, both member and coordinating, institutions and personnel as well as nongovernment agencies involved in intervention and prevention efforts;

Sec. 18, RA 9344, Rule 18, IRR. Rule 17.a, Ibid.

28 Supra note 18.

29 Rule 17.b, IRR. 26 27

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c. Mechanisms for the appropriate coordination of intervention and prevention efforts between governmental and non-governmental agencies; d. Policies, programs and strategies based on prognostic studies to be continuously monitored and carefully evaluated in the course of implementation; e. Methods for effectively reducing the opportunity for children to commit offenses; f. Community involvement through a wide range of services and programs; g. Close interdisciplinary cooperation between the national government and the local governments, with the involvement of the private sector representative citizens of the community to be served, and concerned government agencies as well as the judiciary in taking concerted action to prevent commission of offenses by children; h. Participation of children in intervention and prevention policies and processes, including recourse to community resources, youth self-help, and victim compensation and assistance programs; and i. Specialized personnel at all levels (e.g., social workers, prosecutors) and their respective roles in the juvenile justice and welfare system.

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The Sangguniang Kabataan (SK) also has a role in the formulation and implementation of juvenile intervention and diversion programs in the community. 30 C. Funding RA 9344 has two provisions mandating LGUs to set aside funds for its implementation. Section 15 requires all barangays, municipalities, and cities to allocate 1% of its internal revenue allotment (IRA) for the implementation of the programs of the LCPC. 31 Section 50 also provided that the LGUs, together with the national government, should bear the expenses for the care and maintenance of a CICL whose parents or guardian are unable to provide support. 32 Under Rule 99 of the IRR, LGUs are also mandated to set aside an amount in their annual budget for the implementation of their CJIPs, which has been specifically distinguished from the one percent (1%) IRA provided in Sec. 15. 33 D. Infrastructure There are two types of institutions which the law requires to be established for the benefit of the CICLS: the youth detention home34 and the youth rehabilitation center. 35 LGUs are mandated to exert all efforts to build the youth detention homes, where CICLs may be detained when necessary during trial, 36 within five years from the effectivity of RA 9344.37 Sec. 17, RA 9344.

Sec. 15, RA Ibid.

32 Sec. 50, RA 9344, Rule 100.a, IRR. 33 Rule 99, IRR. 34 Sec. 49, RA 9344.

35 Sec. 53, RA Ibid.

36 Sec. 36, RA Ibid.

37 Rule 76.d, IRR. 30 31

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The youth rehabilitation centers are to be established by DSWD in every region of the country 38 for the rehabilitation of CICLs with suspended sentences. 39 E. Diversion, Intervention, Rehabilitation and Reintegration The LGUs are mandated by RA 9344 to institute communitybased programs on juvenile justice and welfare. 40 The objective of these programs is to “respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families.�41 There are three levels of these programs: primary, secondary and tertiary intervention. 42 Intervention Intervention is a series of activities designed to address issues that caused the child to commit an offense, 43 or programs resorted to for children who committed an offense who are exempt from criminal liability. 44 These are children 15 years or below, or are between 15 years old and 18 years old but were found to have acted without discernment. 45 Intervention may take the form of an individualized treatment program, which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social wellbeing. 46

Supra note 27.

Rule 77.a, IRR. 40 Sec. 19, RA 9344.

41 Rule 19.a, IRR. 42 Ibid.

43 Section 4 (l), RA 9344.

44 Rule 36, IRR. 45 Sec. 6, RA 9344, Rule 35, IRR. 46 Supra note 35.

38 39

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To determine whether the CICL and the parents/guardians/person having custody are complying with the terms and conditions of the intervention program, and to allow the LSWDO to evaluate the effectiveness of the intervention program, the CICL and the parents are required 47 to regularly report to the LSWDO. In case of failure to comply with the intervention program, the LSWDO may petition for the involuntary commitment of the CICL. 48 Diversion Diversion is an alternative, child-appropriate process of determining the responsibility and treatment of a CICL on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. 49 As provided in Rule 41 of the IRR, pursuant to Section 23 of RA 9344, CICLs who are above 15 years but below 18 years of age and acted with discernment, and CICLs who committed an offense the penalty for which is imprisonment of not more than 12 years, 50 undergo diversion. Those who did not qualify for diversion , those who did not agree to diversion, and those cases which the prosecutor, along with the assessment and recommendation of the social worker, determine to be inappropriate for diversion, will be subject to prosecution as provided in Section 33. 51 If the CICL is qualified for, agrees to undergo diversion, and signs the contract of diversion, 52 he or she undergoes Rule 38, IRR. Rule 39, Ibid.

49 Sec. 4(i), RA 9344.

50 Sec. 37, RA 9344, Rule 41, IRR. 51 Sec. 33, RA 9344.

52 Sec. 26, Ibid.

47 48

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diversion depending on the crime committed that the child committed 53, and always under the supervision of the LSWDO. 54 Like intervention programs, the CICLs undergoing diversion and their parents are required to report to the competent authority imposing the diversion program at least once a month for the evaluation of the effectiveness of the program. 55 Community-based rehabilitation and reintegration All LGUs are mandated under Section 55 to establish communitybased programs that focus on rehabilitation and reintegration of the CICL into the society, 56 of the purpose of which is to provide “CICLs with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive members of their communities.�57 They are intended to be community-based to prevent disruption in their education or means of livelihood, prevent separation from their parents or guardians who make up their support system, facilitate their rehabilitation, and encourage community support and involvement, and minimize the stigma attached to CICLs by not detaining them in jails. 58 CICLs with suspended sentences are eligible to undergo community-based rehabilitation. 59

Sec. 23, Ibid.

Supra note 45.

55 Rule 51.a, IRR. 56 Sec. 55, RA 9344.

57 Sec. 44, Ibid.

58 Sec. 54, Ibid.

59 Sec. 52, RA 9344, Rule 73.b, IRR, Rule 73.c, IRR. 53 54

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After-care support services When a court dismisses a CICL’s case for good behavior as recommended by a DSWD social worker, the LSWDO is required to provide after-care services to the CICL for at least six (6) months, 60 the objective of which is to facilitate social reintegration, prevent re-offending and make the children productive members of the community.

F. The LSWDO Among the duties of an LGU in its function as an implementor of RA 9344 is to appoint a local social welfare and development officer (LSWDO), who assists CICLs. 61 The following are the duties of the LSWDO: 1. Obtain physical custody of the CICL within eight (8) hours from apprehension 62; 2. Prepare a case study report on the child; 3. Determine the appropriate intervention and prevention programs in consultation with the child and the person having custody over the child; 4. determine if the child is abandoned, neglected or abused by his/her parents for purposes of filing a petition for involuntary commitment if necessary; 5. In the event the parent or guardian does not agree to the request for temporary custody of the child, the LSWDO shall carefully review the case of the child and file a petition for involuntary commitment when

Sec. 56, RA 9344.

Sec. 16, RA Ibid.

62 Sec. 21, RA 9344, Rule 25, IRR. 60 61

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6.

7.

8.

9.

10.

11.

12.

13.

14.

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sanctioned by law, in accordance with P.D. 603 and the SC Rule on Commitment of Children; 63 Determine discernment64; Determine the appropriate intervention and prevention programs 65; Formulate, implement and supervise the 66 implementation of diversion programs ; Supervise the implementation of community-based rehabilitation programs 67; Provide after-care support services 68; Monitor compliance with intervention programs 69; Conduct case conference and periodic visits to determine compliance 70; Petition for involuntary commitment of CICL in case of failure to comply with intervention programs 71; Issue certification of failure of CICL to comply with diversion program. 72

G. The BCPC The BCPC also has an active role in the proper implementation of RA 9344 at the barangay level. Aside from the functions of the LCPC, it is also mandated under the Child and Youth Welfare Code and RA 8980 to perform the following: 73

Rule 31.c, IRR. Rule 34.b, Ibid.

65 Rule 34.e, Ibid.

66 Supra note 45, Rule 45.a, IRR. 67 Rule 73.c, IRR. 68 Supra note 50.

69 Supra at note 39.

70 Ibid.

71 Rule 39, IRR. 72 Sec. 26, RA 9344.

73 Rule 15.d, IRR. 63 64

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1. Encourage the proper performance of the duties of parents, and provide learning opportunities on the adequate rearing of children and on positive parent-child relationship; 2. Assist parents, whenever necessary in securing expert guidance counseling from the proper governmental or private welfare agency; 3. In addition, it shall hold classes and seminars on the proper rearing of children. It shall distribute to parents available literature and other information on child guidance. The Council shall assist parents, with behavioral problems whenever necessary, in securing expert guidance counseling from the proper governmental or private welfare agency; 4.

Coordinate the activities of organizations devoted to the welfare of children in coordination with the Sangguniang Kabataan and secure their cooperation; 5. Protect and assist children at risk; and 6. Take steps to prevent juvenile delinquency and assist parents of children with behavioral problems so that they can get expert advice.

The BCPC and the barangay also have direct contact with the CICLs, as the Katarungang Pambarangay also formulates and supervises diversion proceedings in certain instances. 74 In cases where there is no diversion, the barangay forwards the records of the CICL to the law enforcement officer, prosecutor or the appropriate court. 75

74 75

Sec. 24, RA 9344, Rule 43.c, Rule 43.d, IRR. Sec. 27, RA 9344.

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SURVEY FINDINGS A.

Survey of Local Chief Executives

Out of the 144 cities and municipalities visited by the team, they were able to interview 126 local chief executives or their representatives. For the other localities, the LCE or a representative of the LCE was not available for interview at the time of the visit.

The first question was on whether the City or Municipal Council for the Protection of Children (CCPC/MCPC) of the LGU is organized, as mandated in Section 15. 76 Of the 126 LCEs or their representatives interviewed, 109 (86.51%) answered yes.

Organization of LCPC

13%

LCPC organized LCPC not organized

87%

Out of this number of organized LCPCs, six (6) were not functional. Three LGUs (2.38%) meet at least once a week, 25 (19.84%) meet at least once a month, 28 (22.22%) meet at least once

76

Sec. 15, Ibid.

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a quarter, 9 (7.14%) meet twice a year, 5 (3.97%) meet once a year, while 19 (15.08%) have no regular scheduled meetings and meet only as the need arises (i.e. when there are CICL cases to be discussed). Of this number, three LCPCs has had no meeting yet for the year 2012. However, there are also LCPCs which also meet as the need arises, in addition to having scheduled meetings (6 LCPCs or 4.76%).

Frequency of LCPC Meetings 30

28 25

25

20

At least once a week At least once a month At least once a quarter

15

Twice a year Once a year

9

10

5 5

3

0 1

The respondents were also asked whether they have complied with Section 16, which requires that LGUs appoint a duly licensed social worker as its local social welfare and development officer. 77 Of the 126 respondents, 121 (96.03%) said that they have appointed a social worker assigned to CICL cases.

77

Sec. 16, RA 9344.

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Appointment of SW to Handle CICL Cases

4%

Appointed SW Did not appoint SW

96%

Another question was whether there was a Comprehensive Juvenile Intervention Program instituted in their localities, as mandated in Section 18 of the law. 78 Thirty-nine (39 or 30.95%) said they have a Comprehensive Juvenile Intervention Program.

Establishment of a CJIP

31%

With CJIP Without CJIP

69%

Section 18 also provides that the implementation of the CJIP should be reviewed and assessed by the LGU every year. Of the 126 respondents, 34 (26.98%) of those with CJIP answered that they conducted an annual review/assessment of the CJIP.

78

Sec. 18, Ibid.

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Review and Assessment of CJIP

27%

Reviews and assesses CJIP Does not review and assess CJIP

73%

As regards the budget, Section 15 provides that one percent of the internal revenue allotment of barangays, municipalities and cities be allotted to the LCPC. Of the 126 respondents, 51 (40.48%) answered that they allocated funds to implement the CJIP, while 93 (73.81%) stated that they pay a portion of the expenses for the care and maintenance of the CICLs in cases where the parents cannot pay for the expense. 79 Allocation of Funds to Implement CJIP

40%

Allocates funds Does not allocate funds

60%

79

Sec. 50, Ibid.

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Expenses for Care and Maintenance of CICLs

26%

Pays portion of expenses Does not pay portion of expenses

74%

However, there is a discrepancy between the response to the question on whether the LGU has instituted a CJIP, which has a positive response of 39 or 30.95%, vis-a-vis 51 (40.48%) respondents who said they allocate funds for its implementation.

This is because there are LGUs that have no CJIPs but are allocating funds for their children- or CICL-oriented programs.

LCPCs are also mandated to coordinate with the Sangguniang Kabataan in the formulation and implementation of juvenile intervention and diversion programs in the community. 80 Of the 126 respondents, 52 (41.27%) said they comply with this provision.

80

Sec. 17, Ibid.

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Coordination with SK in Implementation of Programs

41%

Coordinates with SK Does not coordinate with SK

59%

The respondents were also asked questions about the duties and responsibilities of the LCPC as set forth in Rule 15d of the Implementing Rules and Regulations. Eighty-two out of 126 respondents (65.08%) said that their LCPC coordinate with other agencies and institutions that plan, monitor and evaluate juvenile intervention and diversion programs in the community, as set forth in Rule 15d (5) of the IRR.

Coordination with other Agencies and Institutions

35%

Coordinates Does not coordinate

65%

The same percentage (65.08%) claim that they assist the LSWDO in the development of diversion programs, as mandated in Rule 15d (7) of the IRR.

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Assist LSWDO in Development of Programs

35%

Assists Does not assist

65%

Seventy-five out of 126 respondents (59.52%) claim that they institute, together with schools, youth organizations and other concerned agencies, the community-based programs on juvenile justice and welfare, as mandated in Rule 15d (8) of the IRR. Institution of Community-Based Programs

40%

Institutes Does not institute

60%

Fifty-nine out of 126 respondents (46.83%) also said that they conduct capability building programs to enhance knowledge and skills in handling children’s programs, as provided in Rule 15d (9).

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Capability-Building Programs

47% Conducts capability-building programs Does not conduct capability-building programs 53%

Twenty-seven out of 126 respondents (21.43%) stated that they document best practices on juvenile intervention and prevention, as provided in Rule 15d (11).

Documentation of Best Practices

21%

Documents best practices Does not document best practices

79%

Ninety-one out of 126 respondents (72.22%) answered that they advocate and recommend local legislations promoting child survival, protection, participation and development, as mandated in Rule 15d (12).

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Advocacy and Recommendation of Local Legislation

28%

Advocates and recommends local legislation Does not advocate and recommend local legislation

72%

Fifty-eight out of 126 respondents (46.03%) answered that their LCPC conducts an inventory of all NGOs serving children in conflict with the law and mobilize them as resources for the effective implementation of the law, as provided in Rule 15d (13).

Inventory of NGOs

46% Conducts inventory of NGOs Does not conduct inventory of NGOs 54%

Sixty-eight out of 126 respondents (53.97%) said that their LCPC reviews existing policies of units that provide services to CICLs, determine the barriers to access these services, and take the necessary action to improve access to these services, as mandated in Rule 15d (14) of the IRR.

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Review of Existing Policies

46% Reviews existing policies Does not review existing policies 54%

B. Survey of LSWDOs Out of the 144 LGUs visited, the team was able to interview 139 social workers from the Local Social Welfare and Development Office (LSWDO) in the LGUs. 1. On maintaining a database of CICLs Rule 15d (10) of the IRR of RA 9344 requires that LCPCs establish and maintain a database on CICLs, and indicate whether these children are undergoing intervention, diversion, and rehabilitation programs and after-care support services.

Because it is the LSWDO that handles these programs and services for the CICLs, the LSWDOs were asked whether they maintain a database of CICLs, and whether the databases contain information on the children who undergo intervention, diversion and rehabilitation programs and after-care support services. Of the 139 LSWDOs, 97 (69.78%) claim to maintain a database on CICLs, 63 (45.32%) include data on apprehension, 79 (56.83%) include data on intervention, 73 (52.52%) include data on

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diversion, 50 (35.97%) include data on rehabilitation, and 47 (33.81%) include data on after-care services.

LGUs Which Maintained CICL Database

30%

Maintained CICL Database Did Not Maintain CICL Database

70%

Table 1. Information included in CICL Database Information included in CICL Database Apprehensions 63 (45.32%) Intervention 79 (56.83%) Diversion 73 (52.52%) Rehabilitation 50 (35.97%) After-care services 47 (33.81%)

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Information Included in CICL Database 90 79

80 70

73 63

60 50 50

Apprehensions 47

Intervention Diversion

40

Rehabilitation After-care services

30 20 10 0 1

2. Crimes most commonly committed by CICLs The LSWDOs were asked to rank crimes in the order of highest incidence of commission by CICLs in their jurisdiction. They were asked how they would rank crimes against property (i.e. robbery, theft, swindling, arson, malicious mischief), crimes against persons (physical injury, rape, homicide, murder, etc.), crimes against security (i.e. trespass to dwelling, grave threats), violations of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002, and offenses against decency and good customs (i.e. grave scandal, vagrancy) in terms of highest incidence of commission, with 1 being the crime most often committed by CICLs and 5 being the least committed crime.

The 139 LSWDOs surveyed ranked the crimes as follows: Table 2. Ranking of Crimes Committed by CICLs Crimes against 1.17 117 LGUs (84.17%) selected property it as rank 1 Crimes against 2.37 65 LGUs (46.76%) selected persons it as rank 2 Crimes against 3.36 29 LGUs (20.86%) selected security it as rank 3 Violations of Drugs 3.46 21 LGUs (15.11%) selected Act it as rank 4

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against 3.88

22 LGUs (15.83%) selected it as rank 5

Ranking of Crimes Committed by CICLs 140 120 100

Frequency

1 80

2 3

60

4 5

40 20 0 Crimes against property

Crimes against persons

Crimes against security

Violations of Drugs Act

Offenses against decency

Type of Crime

3. Number of social workers working on CICL cases The team sought to determine the number of social workers working on CICL cases. Section 16 requires that all LGUs appoint a duly licensed social worker as its local social welfare and development officer, who is tasked in assisting CICLs..81 Out of the 139 LSWDOs interviewed, data shows that 137 LGUs or 98.56% have appointed at least one social worker to focus on CICL cases. There appears to be compliance only with the minimum, as 132 of the 139 LGUs or 94.96% have only five or less social workers working on CICL cases. Based on the data on number of social workers, the average number of social workers per LGU in Luzon is 2.1. Forty-two LGUs have only one social worker, while 46 have only two social workers.

SEC. 16. Appointment of Local Social Welfare and Development Officer. - All LGUs shall appoint a duly licensed social worker as its local social welfare and development officer tasked to assist children in conflict with the law.

81

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This indicates that there are LGUs with undermanned social welfare and development offices, as CICL cases are not the only concern of LSWDOs. Appointment of SWs to Handle CICL Cases

1%

Appointed SW Did Not Appoint SW

99%

4. Determination of Discernment of CICL Discernment is the mental capacity to understand the difference between right and wrong and its consequences. 82 The LSWDO determines discernment83, and the DSWD prescribes tools to determine discernment. Out of 139 LSWDOs, 119 or 85.61% use the DSWD-prescribed discernment tools, 84 whereas 14 (10.07%) use their own discernment tools. Four (2.88%) use other tools. Five LSWDOs (3.6%) do not determine discernment.

Table 3. How LSWDOs Determine Discernment Prescribed by DWSD 119 (85.61%) Own tools 14 (10.07%) Other tools 4 (2.88%) Does not determine discernment 5 (3.6%)

Rule 34.a, IRR. Rule 34.b, Ibid.

84 Rule 34.c, Ibid.

82 83

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Tools Used in Determining Discernment 140 120

119

100 Prescribed by DWSD

80

Own tools Other tools

60

Does not determine discernment

40 20

14 5

4 0 1

5. Determination of Age of CICL While it is the law enforcement officer who determines the age of the CICL, the last paragraph of Sec. 7 also states that in all proceedings, “law enforcement officers, prosecutors, judges and other government officials,� which includes LSWDOs, should exert all efforts at determining the age of the CICL. 85 Out of 139 respondents, 69 (49.64%) use the baptismal certificate of the CICL to determine his/her age, in the absence of a birth certificate. Sixty (43.17%) use the school ID, 59 (42.45%) use dental examination/records, 50 (35.97%) rely on the testimony of the parents or guardians, while 46 (33.09%) rely on the appearance of the child. The other means used are: school records (7 or 5.04%), testimony or information from neighbors (6 or 4.32%), NSO/local civil registrar records (4 or 1.44%), medical/physical examination/records (3 or 2.16%), affidavit of two disinterested persons (3 or 2.16%), and barangay records (2 or 1.44%). Two or 1.44% of LSWDOs do not determine age.

85

Sec. 7, RA 9344.

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Table 4. How LSWDOs Determine Age of CICL Baptismal certificate 69 (49.64%) School ID 60 (43.17%) Testimony from parents/guardians 50 (35.97%) Appearance of child 46 (33.09%) Dental exam/records 59 (42.45%) School records 7 (5.04%) Affidavit of two disinterested persons 3 (2.16%) Records in barangay 2 (1.44%) NSO/local civil registrar 4 (1.44%) Testimony/information from neighbor/ 6 (4.32%) barangay Medical/physical exam/record 3 (2.16%) Does not determine age 2 (1.44%)

How Age Is Determined 80 Baptismal certificate

70

School ID 60

Testimony from parents/guardians Appearance of child

50

Dental exam/records School records

40

Affidavit of two disinterested persons Records in barangay

30

NSO/local civil registrar Testimony/information from neighbor/ barangay

20

Medical/physical exam/record 10

Does not determine age

0 1

2

6. Establishment of a Youth Detention Home Under Section 49, 86 LGUs are required to have a Youth Detention Home where CICLs waiting for the disposition of their cases may be confined, although they may also be established by private or 86

Sec. 49, Ibid.

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non-government institutions accredited by the DSWD. Under Rule 76d, LGUs are expected to exert efforts to establish such youth homes within five (5) years from effectivity of the law. Out of the 139 LGUs surveyed, only 16 or 11.51% have Youth Detention Homes established at the time of the survey.

LGUs with Youth Detention Homes

12%

With YDH Without YDH

88%

Of the LGUs that do not have Youth Detention Homes, 65 or 46.76% bring the CICLs to the police station for handling, 33 (23.74%) allow them to stay at the LSWDO or the Barangay Hall, while the rest bring them to either one of the following: Table 5. Where CICLs Are Brought in the Absence of a YDH Police station 65 (46.76%) LSWDO 33 (23.74%) City/municipal jail 5 (3.6%) Returned to custody of 37 (26.62%) parents/guardians Residence of MSWDO/barangay 12 (8.63%) chairman RRCY 7 (5.04%) DSWD 3 (2.16%) NTSB 3 (2.16%) Bahay Pag-Asa 2 (1.44%)

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Where CICLs are Brought in the Absence of a YDH 70

65

60 Police station 50

LSWDO City/municipal jail 37

40

Returned to custody of parents/guardians

33

Residence of MSWDO/barangay chairman

30

RRCY DSWD NTSB

20

Bahay Pag-Asa

12 10

7

5

3

3

2

0 1

Other specific places indicated were: Silungan Center, NGO, Detention center for women, Task Force Lingkod Bayan, Prosecutor’s office, AV room at Mayor’s office, PREDA, Barangay Women and Children’s Desk, Crisis Intervention Center, Public Safety Department, religious sector, temporary shelter, Bahay Kalinga, Hablon-Dawani Rehab Center, MSWDO Drop-in Home, or a capable custodian.

7. Establishment of a Youth Rehabilitation Center Under Section 53, 87 the DSWD is mandated to establish youth rehabilitation centers in each region of the country. Out of the 139 LGUs interviewed, 13 (9.35%) have Youth Rehabilitation Centers at the time of the survey. In the absence of a Youth Rehabilitation Center, 8 (5.76%) bring the CICLs for rehabilitation to the Youth Detention Home, 15 (10.79%) bring them to the LSWDO, while the rest bring the CICLs to the following:

87

Sec. 53, Ibid.

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Table 6. Where CICLs Are Brought In The Absence of a YRC Youth Detention Home 8 (5.76%) LSWDO 15 (10.79%) RRCY (CAR, Reg. 1, Reg. 2, Sorsogon) 50 (35.97%) Returned to custody of 20 (14.39%) parents/guardians Police Station 7 (5.04%) DSWD Detention Home 4 (2.88%) NTSB 3 (2.16%) PREDA 3 (2.16%) Jail 2 (1.44%) Boystown 2 (1.44%) Lingap Center 2 (1.44%) Tahanan ng Kabataan ng Laguna 2 (1.44%) Boystown 2 (1.44%) Barangay Chairman 2 (1.44%) Where CICLs are Brought in the Absence of a YRC 60 Youth Detention Home 50

LSWDO

50

RRCY (CAR, Reg. 1, Reg. 2, Sorsogon) Returned to custody of parents/guardians Police Station

40

DSWD Detention Home NTSB

30

PREDA Jail

20 20

10

Boystown

15 8

Lingap Center Tahanan ng Kabataan ng Laguna

7 4

3

3

Boystown 2

2

2

2

2

2

Barangay Chairman

0 1

Other specific places indicated were: St. Louis University Home for Children; SDC; Task Force Lingkod Bayan; Amor Village; RCHI; Tarlac Home for Girls; school principals; Hablon-Dawani; DSWD Home for Boys; BJMP facility; Marillac Hills; Nayon ng Kabataan; Regional office; Center for boys and girls; Women and Children’s Desk; released on recognizance.

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8. Available Diversion Programs 88 The respondents were asked to list all the diversion programs that their LGU is offering, in order to determine what diversion programs are most resorted to by LGUs in Luzon. The following is a list of the diversion programs offered by the respondents: Table 7. Diversion Programs Offered by the LGUs Diversion Program No. of LGUS Community service 58 (41.73%) Counseling (CICL and/or family) 56 (40.29%) Educational programs/assistance/ALS 27 (19.42%) Livelihood/skills training program, either 21 (15.11%) for CICL only or CICL and their parents Regular reporting/monitoring of 20 (14.39%) activities Religious/spiritual activities 19 (12.95%) Community activities (tree- 17 (12.23%) planting/cleaning/chores) Financial assistance 14 (10.07%) Economic activities 8 (5.76%) Parent effectiveness sessions 8 (5.76%) School/home visits 8 (5.76%) Restitution 8 (5.76%) Psychosocial therapy 6 (4.32%) Sports activities/kids camp 6 (4.32%) Care, guidance and supervision orders 5 (3.6%) Values formation 4 (2.88%) Case conference/mediation 4 (2.88%) Family redirection/dialogue/meeting 3 (2.16%) Logbook 3 (2.16%) Agreements 2 (1.44%)

88

Sec. 31, Ibid.

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Diversion Programs Offered by LGUs

Community service Counseling (CICL and/or family)

70 Educational programs/assistance/ALS 60

58

56

Livelihood/skills training program, either for CICL only or CICL and their parents

50

Regular reporting/monitoring of activities

40

Religious/spiritual activities

30 20 10

Community activities (treeplanting/cleaning/chores)

27 21 20 19

Financial assistance 17 14

Economic activities 8

8

8

8

6

6

5

4

0

4

3

3

2

Parent effectiveness sessions School/home visits

1

Other diversion programs resorted to by LSWDOs and LGUs include: legal assistance, change of address of CICL, plano sa buhay, curfew, avoiding bad vices, follow-up of cases with teachers, family redirection, referral to other agencies for appropriate services, amicable settlement, membership in Pag-Asa Youth Association.

9. Reporting of CICL for evaluation of effectiveness of Diversion Programs: Under Section 26 of the law, the CICL undergoing diversion is required to report at least once a month to the competent authority imposing the diversion program to allow the latter to evaluate the effectiveness of the program. 89 One hundred one (72.66%) LSWDOs require the CICL and his/her parents/guardians to report for evaluation of the effectiveness of the Diversion Program for diversions at the law enforcement and prosecution level, in compliance with Section 26 and Rule 51b90 of the IRR.

89 90

Sec. 26, RA 9344, Rule 51.a, IRR. Rule 51.b, IRR.

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Reporting of CICL for Evaluation of Effectiveness of Diversion Program

Did not report for evaluation, 38, 27% Reported for Evaluation Did not report for evaluation Reported for Evaluation, 101, 73%

10. Monitoring/follow-up mechanism to ensure compliance with diversion programs It is also the duty of the LSWDO to come up with a monitoring and follow-up mechanism 91 to ensure compliance to the contract of diversion, and to determine the progress of the CICL. The LSWDOs were asked to list and relate the monitoring and followup mechanisms that they use to determine compliance to the diversion program and evaluate the progress of the CICL They answered as follows:

Table 8. Monitoring/Follow-up Mechanism Monitoring/follow-up mechanism No. of LGUs Home visits 60 (43.17%) Coordination with/monitoring and 31 (22.3%) reporting by barangay Regular reporting of CICL and/or 30 (21.58%) parents (weekly/monthly/quarterly) Interview/follow-up with 21 (15.11%) 91

Rule 51.b, Ibid.

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parents/barangay/school Barangay/community visits Attendance Follow-up of turnover case School visit Counseling Logbook Interview Case conference Contract

14 (10%) 7 (5.04%) 4 (2.88%) 4 (2.88%) 3 (2.16%) 3 (2.16%) 3 (2.16%) 2 (1.44%) 2 (1.44%)

The other monitoring/follow-up mechanisms they mentioned were: consolidation of report of BCPC, PNP and MSWDO; interview; youth-based organization; day-care work; after-care plan; social case study; written communications with RRCY on status of CICL; accomplishment report; sports activities; compliance report; diaries; meeting; and barangay records.

Monitoring/Follow-up Mechanism

Coordination with/monitoring and reporting by barangay

70

Regular reporting of CICL and/or parents (weekly/monthly/quarterly)

60 60

Interview/follow-up with parents/barangay/school

50

Barangay/community visits Attendance

40 31

30

Follow-up of turnover case

30 21 20 10

Home visits

School visit 14

Counseling 7 4

4

3

3

0

3

2

2

Logbook Interview

1

One LSWDO said that there is no monitoring or follow-up done once the CICL is released to the custody of the parent.

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11. Failure to comply with contract of diversion The failure of a CICL to comply with the contract of diversion has consequences, as it gives the offended party the option to institute the appropriate legal action, or refer the case to the law enforcement officer or prosecutor. 92 Sixty-eight (48.92%) out of the 139 LSWDOs said that their LGUs have CICLs who failed to comply with the contract of diversion.

Failure of CICL to Comply with Contract of Diversion

49% Failed to comply Complied 51%

When asked how they handled non-compliance to the contract of diversion, the LSWDOs answered as follows: Table 9. Handling of failure to comply with diversion contract No. of LGUS Home visit/visit to parents/barangay 6 (4.32%) visit memo to parents 5 (3.6%) report to court 5 (3.6%) 92

Rule 51.c, Ibid.

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Counseling and PES case conference follow-up on implementation Talk to CICL/parents remind/insist on need for diversion involuntary commitment/RRCY Case to be refiled

5 (3.6%) 4 (2.88%) 4 (2.88%) 3 (2.16%) 3 (2.16%) 2 (1.44%) 2 (1.44%)

Other methods indicated were: substitute activities; BCPC monitors CICL; visit to the center; restart diversion; refer to PNP; monitoring; ALS; formal education; and youth camp community service.

How Failure to Comply with Contract of Diversion is Handled 7 6 6 Home visit/visit to parents/barangay visit 5

5

5

memo to parents

5

report to court 4

4

Counseling and PES

4

case conference 3

3

follow-up on implementation

3

Talk to CICL/parents 2

2

2

remind/insist on need for diversion involuntary commitment/RRCY Case to be refiled

1 0 1

12. Available Intervention Programs The respondents were asked to list all of the intervention programs offered by their LGU. The following is a list of the intervention programs offered by the respondents 93:

93

Section 4 (l), RA 9344.

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Table 10. Intervention Programs Offered by LGUs Intervention Program No. of LGUS using Counseling 61 (43.88%) Educational 40 (28.78%) programs/assistance/ALS Livelihood/ skills training or 38 (27.34%) assistance Community service 22 (15.83%) Financial assistance 20 (14.39%) Parent effectiveness sessions/therapy 16 (11.51%) Spiritual formation/activities 16 (11.51%) MSWDO/BCPC involvement 15 (10.79%) Youth 13 (9.35%) programs/activities/associations Medico-legal/psychological 13 (9.35%) evaluation Sports activities 10 (7.19%) Parent/family therapy sessions 9 (6.47%) Home visit 7 (5.04%) Restitution 5 (3.6%) Case conference 4 (2.88%) Positive discipline 3 (2.16%) Household chores 3 (2.16%) Other intervention programs they indicated were: information dissemination, comfort giving, guide the CICL to intervention program, storytelling games, ERPAT sessions, gender sensitivity trainings, coordinate with school principals, plano sa buhay, trainings/information in IEC, temporary shelter, and provision of support services.

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Intervention Programs Offered by LGUs Counseling

70

Educational programs/assistance/ALS

61

Livelihood/ skills training or assistance

60

Community service Financial assistance

50

Parent effectiveness sessions/therapy 40

40

Spiritual formation/activities

38

MSWDO/BCPC involvement Youth programs/activities/associations

30 22 20

Medico-legal/psychological evaluation 20

Sports activities 16

16

15

13

Parent/family therapy sessions

13 10

10

9

Home visit 7

5

4

3

Restitution

3

Case conference

0

Positive discipline 1

Household chores

13. Evaluation of effectiveness intervention programs

and

compliance

with

The CICL and the parents are required to report regularly to the LSWDO for evaluation of the effectiveness of and compliance with the intervention programs. 94 Of the 139 LSWDOs, 98 (70.50%) claimed that they required the CICL and their parents to comply with this reporting requirement.

Reporting for Evaluation of Effectiveness of Intervention Program

41, 29%

Reported for Evaluation Did not Report

98, 71%

94

Rule 38, IRR.

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14. Case conference and periodic visits The LSWDO is also required to conduct case conference and periodic visits to determine compliance with intervention programs. 95 One hundred and three (74.10%) of those surveyed claimed that they comply with this requirement.

Case Conference and Periodic Visits by LSWDO

36, 26%

Conducted case conference and periodic visits Did not conduct case conference and periodic visits

103, 74%

15. Problems and Issues The LSWDOs were asked to identify which among the problems and issues listed in the questionnaire they encountered in implementing RA 9344. Respondents were allowed to select more than one.

Table 11. Problems Encountered in Implementing RA 9344 Lack of personnel 87 (62.59%) Lack of infrastructure 82 (58.99%) Lack of training 71 (51.08%) Financial 68 (48.92%) Lack of organizational/governmental 38 (27.34%) support 95

Ibid.

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Problems Encountered in Implementing RA 9344 100 90

87 82

80 71 70

68 Lack of personnel

60

Lack of infrastructure

50

Lack of training 38

40

Financial Lack of organizational/governmental support

30 20 10 0 1

Lack of personnel was the most prevalent problem identified by the respondents, with 87 LSWDOs or 62.59% identifying the same, followed by lack of infrastructure (82 or 58.99%),lack of training (71 or 51.08%), financial (68 or 48.92%), and lastly, lack of organizational or governmental support, identified by 38 LSWDOs or 27.34%.

That lack of personnel is the problem most identified by the LSWDOs is supported by the data on the number of social workers in the city or municipality, which shows that 132 of the LGUs or 94.96% have only 1-5 social workers, that 42 LGUs (30.21%) have, in fact, only one social worker, and 46 (33.09%) have only two social workers. This difficulty presents itself more starkly in cities and municipalities with high incidences of CICLs. Lack of infrastructure refers to the lack of Youth Detention Homes and Youth Rehabilitation Centers. The respondents also noted the need for temporary shelters in their cities and municipalities where they can house the CICLs upon apprehension while their cases are still being processed, before they are released to their parents or guardians.

Lack of training refers the lack of training of the BCPC and the law enforcement officers, which leads to improper handling

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procedures. For instance, the respondents said there are law enforcers who do not inform them when a CICL is apprehended, and that there are barangays who handle the CICLs themselves and only inform them when the barangay fails to effect a settlement between the CICL and the offended party.

Other problems or issues identified were the following: Table 12. Other Problems and Issues Identified Problem No. of LGUS No separate budget/no budget 7 (5.04%) No YDH/YRC 5 (3.6%) CICL used by syndicate/adults 5 (3.6%) Resolution of court case takes too long 4 (2.88%) Lack of training 4 (2.88%) Parents tolerate commission of crime 4 (2.88%) LSWDO not informed 3 (2.16%) Social workers’ workload 3 (2.16%) No police orientation 3 (2.16%) MCPC not functioning 3 (2.16%) Ayaw ng executive 3 (2.16%) Community acceptance 3 (2.16%) Not familiar with the law 2 (1.44%) Lack of coordination 2 (1.44%) Problem with discernment test 2 (1.44%) Recidivism 2 (1.44%) Interpretation of RA 9344 2 (1.44%) LSWDO always in transition due to 3 (2.16%) replacement of workers Expand YDH 2 (1.44%) CICL knows it won’t be jailed 1 (0.72%) Inactive LCPC 1 (0.72%) Not familiar with the law 1 (0.72%)

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Other Problems and Issues Identified

No separate budget/no budget No YDH/YRC

8 CICL used by syndicate/adults

7 7

Resolution of court case takes too long 6 5

Lack of training

5

5 4

4

Parents tolerate commission of crime

4

4 3

3

3

3

3

3

LSWDO not informed

3

3 2

2

2

2

Social workers’ workload

2

2 1

1

1

No police orientation

1 MCPC not functioning 0 Ayaw ng executive

1

Aside from the five problems in the questionnaire, the respondents were allowed to identify other problems that they encounter in implementing RA 9344. The top answer is lack of funding (“no budget”). The LSWDOs said this is a problem because the LSWD office incurs a lot of expenses in implementing RA 9344, such as transportation to and from the homes of the CICL, transportation to and from the court, and other operating expenses. One LSWDO said their office does not use the DSWD discernment test because they do not even have the funds to photocopy the test.

They are also concerns that CICLs are being used by syndicates and adults to commit crimes because they cannot be jailed, and that diversion and intervention programs would not work on reforming the CICL because there is an adult corrupting the CICL. 16. Suggestions The respondents were also asked for their suggestions to improve the implementation of the law. These were their suggestions:

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Table 13. Suggestions to Improve Implementation of RA 9344 Suggestion No. of LGUS Train/inform/involve stakeholders 36 (25.9%) Review/lower age of criminal 27 (19.42%) liability/discernment Enhanced YDH/YRC/ per province 25 (17.99%) YDH/YRC More staff focused on CICLs 22 (15.83%) More funding 17 (12.23%) Amend law 9 (6.47%) Enhanced Services/programs for CICLs 7 (5.04%) Enhance discernment test 7 (5.04%) Enhance diversion programs 6 (4.32%) Activate LCPC 5 (3.6%) Advocacy 5 (3.6%) Temporary shelter 4 (2.88%) Parental liability 4 (2.88%) Hazard pay for SW 3 (2.16%) Technical assistance 2 (1.44%) Enhance SK involvement 2 (1.44%) Enhance handling of CICLs 1 (0.72%) Suggestions to Improve Implementation Train/inform/involve stakeholders

40

Review/lower age of criminal liability/discernment

36

Enhanced YDH/YRC/ per province YDH/YRC

35

More staff focused on CICLs 30

More funding

27

Amend law

25 25 20

Enhanced Services/programs for CICLs

22

Enhance discernment test 17

Enhance diversion programs Activate LCPC

15

Advocacy 10

9

Temporary shelter 7

7

6

5

5

5

Parental liability 4

4

3

0

2

2

Hazard pay for SW 1

Technical assistance Enhance SK involvement

1

Enhance handling Â

The top suggestion was to train, inform, or involve stakeholders. This includes the BCPC, law enforcers, the local

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chief executives, and the community. According to LSWDOs, law enforcers and BCPC members were not yet familiar with the law, and were not yet knowledgeable on handling CICLs. They also said that there are local chief executives who are biased against the law, resulting in lack of support to programs for CICLs. The LSWDOs also said that there is a need to educate the community about the law, and make everyone more involved in community projects and programs.

The next most suggested measure was the lowering of the age of criminal responsibility or discernment. Strictly speaking, however, lowering the age of criminal responsibility would not directly affect the manner in which LGUs implement the law, because it delves into the wisdom of the law. Depending on the formulation, lowering the age of criminal responsibility would only increase the number of CICLs undergoing diversion compared to intervention. Also, this may be a function of the discernment test, as there were respondents who suggested reviewing the test. According to LSWDOs, the discernment tests taken always indicated that CICLs acted with discernment. They are of the opinion that the discernment tests currently being used either may not be accurate in showing discernment, or that children 15 to 18 years of age today are really already capable of determining whether their actions are right or wrong.

C. Survey of BCPCs Each LSWDO interviewed was asked to refer a barangay within their jurisdiction which could be a respondent to the survey on the BCPC implementation of RA 9344. Out of 144 LGUs visited, the team was able to interview representatives of 137 BCPCs.

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1. Organization of the BCPC Out of the 137 barangays, 125 (91.24%) claimed that the BCPC was organized in compliance with Section 15. 96 Of this number, 93 (67.88%) BCPCs (74.4% of barangays with organized BCPCs) conduct regular meetings. Only one BCPC (0.73%) meets at least weekly, 51 (37.23%) BCPCs meet at least once a month, 11 (8.03%) BCPCs meet at least twice a month, 30 (21.9%) only meet at least once a quarter, 12 (8.86%) meet twice a year, and four (2.92%) meet once a year.

Whether BCPC is Organized

9%

BCPC organized BCPC not organized

91%

96

Sec. 15, RA 9344.

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Table 14. Frequency of BCPC Meetings Frequency of meetings (whether regular or not) At least once a week 1 (0.73%) Twice a month 11 (8.03%) At least once a month 51 (37.23%) At least once a quarter 30 (21.9%) Twice a year 12 (8.76%) Once a year 4 (2.92%)

Frequency of BCPC Meetings 60 51 50

At least once a week

40

Twice a month 30

At least once a month

30

At least once a quarter Twice a year

20

Once a year 12

11 10

4 1 0 1

Twenty BCPCs (14.6%) do not meet regularly, but meet only as the need arises (i.e. when there are CICL cases to be discussed).

Four (2.92%) BCPCs, in addition to their regularly scheduled meetings, also meet when there is a need.

2. Maintenance of a Database on CICLs Rule 15d (10) of the IRR requires that LCPCs establish and maintain a database on CICLs, which should indicate who are undergoing intervention, diversion, and rehabilitation programs and getting after-care support services. Out of the 137 BCPCs, 77 (56.20%) maintain a database on CICLs, and 49 (35.77%) or 63.64% of those that maintain databases include CICLs who undergo

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intervention, diversion and rehab and after-care support. Thirtyseven (37) are in the form of logbooks or blotters; some which are police blotters, while some keep their database in a logbook together with records of adult offenders. Thirty-six (26.28%) maintain databases that include information on apprehension, 46 (33.58%) on intervention, 39 (28.47%) maintain databases that include diversion, 25 (18.25%) maintain databases that include rehabilitation, and 29 (21.17%) maintain databases that include after-care support services.

Maintenance of CICL Database

44%

Maintained database Did not maintain database 56%

Table 15. Information included in database Information included in database apprehension 36 (26.28%) intervention 46 (33.58%) diversion 39 (28.47%) rehabilitation 25 (18.25%) after-care support services 29 (21.17%)

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Information Included in CICL Database 50

46

45 40

39 36

35 29

30 25 25

apprehension intervention diversion rehabilitation

20

after-care support services

15 10 5 0 1

3. Crimes most commonly committed by CICLs The barangays were asked to rank crimes in the order of highest incidence of commission by CICLs. They were asked how they would rank crimes against property (i.e. robbery, theft, swindling, arson, malicious mischief), crimes against persons (physical injury, rape, homicide, murder, etc.), crimes against security (i.e. trespass to dwelling, grave threats), violations of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002 and offenses against decency and good customs (i.e. grave scandal, vagrancy), with 1 being the crime most often committed by CICLs and 5 being the least committed crime.

Out of the 137 barangays , crimes against property emerged as the type of crime most committed by CICLs, with an average ranking of 1.34, with 95 out of 137 barangays ranking it as number 1 (69.34%). The second is crimes against persons, with an average ranking of 2.41, 18 (13.14%) ranked it as no. 2. Crimes against decency came in third, with an average ranking of 2.81, 5 (3.65%) ranked it as no. 3, while crimes against security came in fourth (3.1 average rank). Drug-related crimes are the least committed (3.31 average rank).

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Table 16. Ranking of Crimes Committed by CICLs by Frequency Overall ranking of crimes (rank) Crime Average No. which selected Ranking Crimes against 1.34 95 (69.34% ranked it as no. 1) property Crimes against 2.41 18 (13.14% ranked it as no. 2) persons Offenses against 2.81 5 (3.65% ranked it as no. 3) decency Crimes against 3.1 12 (8.76% ranked it as no. 4) security Violations of Drugs 3.31 13 (9.5% ranked it as no. 5) Act

Crimes Committed by CICLs 100

95

90 80 70

Frequency

1 60

2

50

3 4

40

5 30

23 18

20 10

13 8

4

1

4

7

7

5

9

8

12 6

8

5

9

9

13

14 9

10 5

4

0 Crimes against property

Crimes against persons

Crimes against security

Violations of Drugs Act

Offenses against decency

Types of Crime

4. 1% IRA share and Work/Financial Plan Under Section 15, 97 barangays are required to allot 1% of their IRA for the strengthening and implementation of their comprehensive juvenile intervention programs. Out of the 137 BCPCs, 49 97

Ibid.

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(35.77%%) utilize their IRA share to implement RA 9344. Only 66 (48.18%) out of 137 barangays have a Work/Financial Plan as required by the law.

Utilization of 1% IRA

36%

Utilized 1% IRA Did not utilize 1% IRA

64%

They were also asked how the 1% IRA share is spent or allocated.

Out of the 137 BCPCs, 51 (37.22%) spent it on trainings and seminars, 35 (25.55%) spent the fund on books and educational materials, 31 (22.63%) used it for personnel expenses, while 26 (18.98%) spent it on infrastructure.

Table 17. How 1% IRA is Spent Trainings/seminars 51 (37.23%) Books, educational materials 35 (25.55%) Personnel 31 (22.63%) Infrastructure 26 (18.98%)

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How 1% IRA is Spent 60 51 50

40

35

Trainings/seminars

31 30

Books, educational materials 26

Personnel Infrastructure

20

10

0 1

5. Coordination with LSWDO in Community-based Rehabilitation Programs

implementation of and Reintegration

The barangays were asked whether they coordinate with the LSWDO in the implementation of community-based rehabilitation and reintegration programs, as required under Rule 73c of the IRR. 98 Ninety-five (69.34%) claimed that they coordinate with the LSWDO in the implementation of community-based rehabilitation programs, and 79 (57.66%) claimed that they coordinate with the LSWDO in the implementation of community-based reintegration programs.

98

Rule 73.c, IRR.

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Coordination with LSWDO in Implementation of Community-Based Rehabilitation Programs

31%

Coordinated with LSWDO Did not coordinate with LSWDO

69%

Coordination with LSWDO in Implementation of Community-Based Reintegration Programs

42%

Coordinated with LSWDO Did not coordinate with LSWDO 58%

6. Coordination with the LSWDO in the implementation of Diversion and Intervention Programs The barangays were asked whether they coordinate with the LSWDO in the implementation of diversion and intervention programs. Sixty-seven (48.91%) claimed that they coordinate with the LSWDO in the implementation of diversion programs, 99 while 73 (53.28%) claimed that they coordinate with the LSWDO in the implementation of intervention programs.

99

SEC. 26, RA 9344.

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Coordination with LSWDO in Implementation of Diversion Programs

49% Coordinated with LSWDO Did not coordinate with LSWDO 51%

Coordination with LSWDO in Implementation of Intervention Programs

47% Coordinated with LSWDO Did not coordinate with LSWDO 53%

7. Sangguniang Kabataan’s (SK) Involvement in the implementation of community-based rehabilitation and reintegration programs, diversion and intervention programs The respondents were also asked whether the SK in the barangay were actively involved in the implementation of communitybased rehabilitation and reintegration programs, diversion and intervention programs, and if they were, the extent of its

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involvement, as required under Section 17. 100 Ninety-two (67.15%) claimed that the SK is actively involved, particularly in sports and recreation (96 or 70.07%), socio-cultural activities (60 or 43.8%), in the allocation of funds (46 or 33.58%), and in capability trainings (35 or 25.55%).

Table 18. SK Involvement in RA 9344 Implementation Sports and recreational activities 96 (70.07%) Sociocultural activities 60 (43.8%) Allocated funds 46 (33.58%) Capability trainings 35 (25.55%)

Involvement of SK in Program Implementation

33%

SK involved SK not involved

67%

100

Sec. 17, Ibid.

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SK Involvement in RA 9344 Program Implementation 120

100

96

80 Sports and recreational activities 60

Sociocultural activities

60

Allocated funds

46

Capability trainings 35

40

20

0 1

8. Problems encountered in implementation of law The respondents were asked to identify which among the following problems and issues they encountered in implementing RA 9344.

Table 19. Problems Encountered in Implementing RA 9344 Problems encountered in implementing RA 9344 Financial problem 79 (57.66%) lack of training for personnel 63 (45.99%) lack of infrastructure 41 (29.93%) lack of personnel 30 (21.9%) lack of organizational or 21 (15.33%) governmental support

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Problems Encountered by BCPCs in Implementing RA 9344 90 80 70

79

63

60

Financial problem lack of training for personnel

50 41

lack of infrastructure

40

lack of personnel 30

lack of organizational or governmental support

30 21 20 10 0 1

Financial problem was the problem most identified by respondents (79 barangays or 57.66%), followed by lack of training (63 barangays or 45.99%), lack of infrastructure (41 barangays or 29.93%), lack of personnel (30 or 21.9%) and lastly, lack of organizational or governmental support, which was identified by 21 LGUs or 15.33%.

Financial problems, which is the top answer selected by BCPCs, ties in with the figure earlier discussed showing that only 49 or 35.77% utilize the 1% IRA share to implement RA 9344, and that only 51 or 40.48% of the cities and municipalities allocated funds to implement the CJIP. The respondents also said that sometimes, the entire 1% IRA share is not allocated strictly to RA 9344 matters alone, but shared with other expense items such as gender or child rights.

The next problem most selected by the BCPC respondents was lack of training for personnel on RA 9344 The respondents were aware of and admit to the lack of training in implementing the law. In fact, there were a number of survey questionnaires that were not completely answered by some respondents because they were not familiar with the law. Eight or (5.84%) admitted that they were not familiar with the law.

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The respondents were also asked to identify what other problems or issues they encountered in implementing the law aside from those enumerated. Their answers were: Table 20. Other Problems and Issues Identified Problem No. of barangays Parents tolerate commission of crime 13 (9.49%) No YDH/YRC 9 (6.57%) CICL knows it won’t be jailed 9 (6.57%) Not familiar with the law 8 (5.84%) Recidivism 8 (5.84%) CICL used by syndicate/adults 6 (4.38%) Community acceptance 2 (1.46%) LCPC not functioning 2 (1.46%) Lack of community acceptance 2 (1.46%) Lack of coordination 1 (0.73%) Lack of support from the local chief 1 (0.73%) executive

Other Problems Encountered 14

13

12

Parents tolerate commission of crime No YDH/YRC

10

9

CICL knows it won’t be jailed

9 8

Not familiar with the law

8

8

Recidivism CICL used by syndicate/adults

6 6

Community acceptance LCPC not functioning Lack of community acceptance

4 2

2

Lack of coordination

2

2

1

1

Lack of support from the local chief executive

0 1

The biggest problem identified by respondents was parents’ tolerance of their children in committing crimes. This could be

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due to the fact that parents are physically absent, as in the case of children with OFW parents. There are also parents who have given up on disciplining their children as they are no longer able to control and discipline them. This increases the challenges faced by the LSWDOs and the BCPC, as they cannot rely on the parents or guardians to ensure that the CICL complies with the terms of the diversion contract and provide guidance to the CICL. The responsibility of disciplining and ensuring compliance with the contract of diversion now falls on them.

Another problem is that, according to the respondents, CICLs already know that they cannot be jailed according to the law, and this knowledge gives them confidence in committing crimes and in facing law enforcement officers and the BCPC. While the JJWC has said that there is no solid data or evidence on this, the BCPCs pointed out that CICLs are being used by crime syndicates or by adults to commit crimes because they cannot be jailed. In fact, there are claims that CICLs have copies of their birth certificates readily in their pockets, such that upon apprehension they are ready to present the same to the apprehending authorities as proof of their minority.

9. Suggestions on how to improve implementation of the law The respondents were also asked for their suggestions to improve the implementation of the law. Their suggestions were as follows: Table 21. Suggestions to Improve Implementation of RA 9344 Suggestion No. of barangays Review/lower age of criminal 40 (29.2%) liability/discernment Train/inform/involve stakeholders 35 (25.55%) Parental liability 13 (9.49%) More funding 12 (8.76%)

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Enhance diversion programs Enhanced YDH/YRC/ per province YDH/YRC Amend law Temporary shelter Advocacy Enhance CICL handling Services/programs for CICL More staff focused on CICLs Enhance discernment tool/psychologist

10 (7.3%) 10 (7.3%) 9 (6.57%) 4 (2.92%) 3 (2.19%) 3 (2.19%) 3 (2.19%) 2 (1.46%) 2 (1.46%)

Suggestions to Improve Implementation 45 40

Review/lower age of criminal liability/discernment

40

Train/inform/involve stakeholders

35 35

Parental liability More funding

30

Enhance diversion programs Enhanced YDH/YRC/ per province YDH/YRC

25

Amend law 20 15

Temporary shelter 13

Advocacy 12 10

10

10

Enhance handling 9

Services/programs for CICL 4

5

More staff focused on CICLs 3

3

3

2

2

Enhance discernment tool/psychologist

0 1

The top suggestion was to lower the age of criminal responsibility. As stated earlier, however, lowering the age of criminal responsibility would not directly affect the manner in which LGUs implement the law, and it delves into the wisdom of the law. Depending on the formulation, it would only increase the number of CICLs undergoing diversion compared to intervention.

This response of the BCPCs could also be a reflection of their lack of full understanding of the objectives of RA 9344 with respect to prioritizing restorative justice rather than punitive

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justice, considering that the provisions of the law have not been fully disseminated to the barangays and other stakeholders.

The second most suggested solution was to train/inform/involve stakeholders, which is also a reflection of the lack of full dissemination of RA 9344 to the LGUs. ISSUES AND RECOMMENDATIONS 1. Organize the LCPC in every LGU One hundred and nine (109 or 86.51%) cities and municipalities have organized the LCPCs , but only about half of which (53.17%) hold regular meetings; in fact, 7.14% meet twice a year while 3.97% meet only once a year. Nineteen (19) or 15.08% only meet as the need arises, i.e. when there are CICL cases to be discussed.

At the BCPC level, 125 (91.24%) barangays claim that their BCPC is organized, 93 (67.88%) of which hold regular meetings.

There were BCPCs which only meet as the need arises (20 or 14.6%). One reason mentioned by numerous respondents is the constant change in the composition and leadership of the LCPC with every change in administration every three years. Thus, these LCPCs may change as often as once every three years, laying it susceptible to discontinuity in terms of policies and programs.

There are times where a change in administration renders a formerly organized and functional LCPC inactive.

The LCPC, as stated earlier, is the entity in the local government unit which coordinates with and assists the LGU in the adoption of its CJIP, and which oversees its implementation.

Considering that full and proper implementation of RA 9344 requires the coordination of several units and personnel in the LGU and the efficient allocation of funds to finance the programs

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and the expenses attendant to implementing the law, it is essential that the LCPC is organized and functioning properly.

Furthermore, an LCPC directing, coordinating and overseeing the implementation of the law is more desirable because of its composition. At the level of the city or municipality, the CCPC or MCPC is composed of the mayor, the chairperson of the Sangguniang Panlungsod/Pambayan Committee on Women and Family, the DILG field officer, the LSWDO, DepEd Division Superintendent/District Supervisor, Planning and Development Officer, Budget Officer, Health Officer, Nutrition Officer, PNP Director, Treasurer, LIGA ng mga Barangay President, Child representative, and at least 3 representatives of NGOs, while at the BCPC level it is composed of the Punong Barangay as chair, with a barangay kagawad who is the chair of the Women and Family Committee, a barangay nutrition scholar, daycare worker, health nurse/midwife, health worker, DepEd principal/Teacherin-charge, chief tanod, SK Chairperson, child representative, PTA president or representative, and NGO representative. With these members who collectively have the knowledge to formulate the appropriate programs and to implement them, it is expected that all aspects of the implementation of the law will be attended to.

With respect to compliance with the duties and functions of the LCPC, it was found that only 59 LGUs or 46.83% conduct capability-building programs to enhance the knowledge and skills of the personnel handling children’s programs. This is not so much an issue at the city or municipal level considering that 121 or 96.03% of those surveyed appointed a LSWDO. However, these kinds of programs are essential at the barangay level, as the barangays have a lot of functions and responsibilities under the law and its IRR. This study shows that barangays are unprepared and ill-equipped at present to perform those functions and responsibilities.

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With respect to documenting the best practices on juvenile intervention and prevention, only 27 or 21.43% perform this function. Documentation of best practices is very important because the elected officials of the LGU may change every three years, which could result in lack of continuity of the programs of the previous administration. This is a major obstacle in effectively addressing the problem of juvenile crime. Documenting best practices would also serve as a guide for future LCPCs in formulating new programs.

The study also showed that only 58 LGUs or 46.03% conduct an inventory of the NGOs that serve CICLs in their localities and mobilize them as resources. This is an area that may need to be studied, as NGOs are not just alternative detention or rehabilitation centers. They can do so much more for the LGUs in terms of providing trainings, information dissemination, and assistance in the development of programs and policies on RA 9344.

Only 68 or 53.97% of LGUs review existing policies of units that provide services to CICLs to determine the barriers to access to these services, and take the necessary action to improve these services. This means that only roughly half of the LGUs take the opportunity to assess the manner by which they implement the services, determine what, if any, are the obstacles to full and effective provision of these services, and come up with solutions to these obstacles.

In view of the essential role of the LCPC in the effective implementation of RA 9344, this project recommends that the DILG ensure that all LCPCs are organized and functioning. It is important to emphasize to the LGUs that RA 9344 is not only about dealing with CICLs who commit crimes, but that it also prescribes the implementation of programs aimed at the preventing of crimes committed by children.

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Thus, even LGUs with no CICL cases should be covered by the law and should be required to organize their LCPCs and to come up with a CJIP. It is recommended that the DILG, in cooperation with the JJWC ensure the compliance of all LGUs with this requirement, first, by issuing a Memorandum Circular requiring strict compliance by all LGUs, and second, by coming up with a mechanism to monitor compliance by the LCPCs of their functions and responsibilities. The mechanism may be some form of a scorecard or report card issued regularly by DILG field offices where the DILG, JJWC, and the LGUs themselves will be able to tell, at one glance, which areas of implementation they have failed to comply with. The results of the monitoring should be reporting to the JJWC, in line with its function to oversee the implementation of RA 9344.

There is also a need to address the implication of the local elections every three years and its effect in the membership and functioning of LCPCs. The LCPCs should be considered as a continuing body, not one which has to be organized every time there is a change in its membership. If this is the mindset for the LCPC, there would be no more instances where an LCPC which is organized and active in some years will be become inactive and not functioning once there is a change in administration and appointees. The matter of its organization and functioning should not depend merely on the whim or caprice of the local chief executive. There may be changes to the programs and projects, but the LCPC as a body should survive and thrive regardless of changes in its composition. It is recommended that immediately after every local election, upon the assumption of office of the local chief executive, the DILG issue a Memorandum Circular requiring the LGUs to organize and convene the LCPCs. This will ensure that the LCPC is organized in every LGU.

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2. Comprehensive Juvenile Intervention Program Only 39 cities and municipalities or 30.95% of the LGUs surveyed have a CJIP. The CJIP sets out important matters on the implementation of RA 9344, such as the roles and responsibilities of the officials involved in the prevention and intervention efforts for the CICLs, and the programs to be implemented for intervention and prevention, to name a few. It is a comprehensive guide for the LGUs in implementing the law, especially with respect to crime prevention among children. Thus, the low 30% compliance of the LGUs with the requirement to formulate the CJIP is a sad statistic in effective juvenile crime prevention. It indicates lack of preparation in dealing with CICLs. With respect to funding for the implementation of the CJIP, only 51 cities and municipalities or 40.48% of the sample size allocated funds to implement the CJIP or, in the absence of which, their equivalent juvenile welfare programs. This failure to allocate funds shows the lack of foresight and planning and lack of prioritization of juvenile welfare programs.

Furthermore, only 34 cities and municipalities or 26.98% conduct an annual review or assessment of their CJIP. While the cities and municipalities surveyed answered that they review and assess their respective CJIPs, the JJWC said that very few, if any, LGUs submit the written review and assessment as required under Section 18. This review and assessment of the CJIP is essential to enable the respective LGUs to determine whether their programs are effective, and will help uncover gaps in the implementation of RA 9344. It will also give the JJWC information on the effectiveness of the programs implemented by the LGUs, and allow them to come up with suggestions if any problems or issues are identified. It is therefore recommended that the JJWC come up with the template for the written assessment of the CJIP, disseminate the same to the LGUs through the DILG, and require through strict compliance from the LGUs through the DILG.

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Under Section 18, it is the duty of the JJWC to come up with a NJIP and to receive the yearly CJIP written review and assessment submitted by the LGUs. It is thus recommended that the DILG issue a Memorandum Circular to all LGUs requiring their compliance with Section 18, and for the DILG and JJWC to monitor which LGUs complied with the requirements. The compliance date may be included in the proposed scorecard or report card of compliance as adverted to in the LCPC section.

3. Utilization of 1% IRA Based on the responses of the BCPC respondents, only 49 or 35.77% of the barangays surveyed utilize the 1% IRA share to implement the law. There were BCPCs that were unaware that the law requires the LGU to allocate 1% of the IRA for such purpose.

At the time the research was conducted, the DILG had not yet issued Memorandum Circular No. 2012-120 dated July 4, 2012, which required all LGUs to, among others, appropriate 1% of their IRA for the implementation of the programs of their LCPCs. There were BCPCs that were aware of the 1% IRA allotment or were unable to utilize the entire amount for the purpose, as they had a lot of other programs for which their IRA had to be allocated.

There were also BCPCs that were able to allot the entire 1% for RA 9344 purposes, but the fund was insufficient. Near the end of the data-gathering phase of this study, the DILG issued the said Memorandum Circular, which reminds all LGUs of the requirement to allot 1% IRA share for the implementation of the programs of the LCPC. It is thus recommended that the DILG and JJWC track compliance of the LGUs to the said Memorandum Circular, and to include this matter in the proposed scorecard or report card monitoring mechanism to determine compliance.

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4. Maintaining a CICL database Based on the data collected, 69.78% of LSWDOs (cities/municipalities) maintain a CICL database. However, this number does not record all the required information. For BCPCs, only 77 or 56.20% maintain a CICL database, out of which only 50 or 36.5% include data on apprehensions, intervention, diversion, rehabilitation and after-care support. Of this number, around 37 (27%) BCPCs keep the data in a logbook or blotter. Some do not have their own database and rely on police blotters, while others maintain the CICL information in a logbook along with information on adult offenders. There were BCPCs that do not maintain a CICL database because they have no or very few CICL cases [10 barangays claimed to have no CICL cases for the year; 14 claimed to have very few CICL cases (1-2 only)].

The importance of maintaining a proper and complete CICL database cannot be sufficiently underscored, as the JJWC and all the other agencies and instrumentalities tasked with implementing and overseeing the implementation of RA 9344 need accurate data and statistics in order to be able to come up with the correct and applicable policy decisions. The lack of a complete and dependable database impairs the decision-making capabilities of all enforcers the law. Policies, programs and decisions can only be effectively made if they are based on correct information.

It is important that barangays and LSWDOs (for the cities and municipalities) keep complete and updated records on CICLs as required under Rule 15d (10) of the IRR. A complete database will assist the LGUs in keeping track of their CICL cases and their progress, as well as keep them in the loop on CICL trends. It would also make it easier for the LGUs to report accurate data, and make it easier for the JJWC to get hold of the data required in their conduct of studies and research on RA 9344, and assist them

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and the other agencies involved in coming up with appropriate and responsive policies. It is recommended that the DSWD and/or the DILG issue a Memorandum Circular setting forth a template for the LGUs to follow in maintaining their CICL database, and to require the LGUs to submit a copy of the database to the JJWC every year. This will ensure that LGUs maintain a uniform, complete, and accurate database, and which also ensures that the JJWC has complete and accurate data on the number of CICL cases as well as the programs they are undergoing for diversion and intervention.

5. Shortage of social workers One-hundred twenty-one (121 or 96.03%) of the mayors of the cities and municipalities included in the study have appointed a local social welfare and development officer, as required by Sec. 16 of the law. This is a very high compliance rate. However, based on the responses in the survey, the average number of social workers per LGU is only 2.1. This indicates minimum compliance with the provisions of the law. Moreover, 132 LGUs or 94.96% of the cities and municipalities have only 1-5 social workers. Fortytwo (42 or 30.21%) cities and municipalities have only 1 social worker, and 46 (33.09%) have only two.

That this minimal number of personnel is a problem is supported by the fact that 87 or 62.59% of LSWDOs said that lack of personnel is one of their problems in implementing RA 9344.

This is compounded by the fact that local social workers have a myriad of duties and responsibilities on social welfare and development, in addition to juvenile welfare The lone local social worker is more often than not overwhelmed and hardly able to attend to all the needs of the social welfare and development office of the city or municipality. In fact, there were LSWDOs in the study who commented that even with three social workers, one of which is dedicated solely to CICL concerns, they are still

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undermanned, such that the other two social workers had to assist. This is most probably a common scenario in cities and municipalities with a high number of CICLs. The research team was also told that some cities and municipalities appoint social workers who are not licensed by the Professional Regulation Commission (PRC). It is thus recommended that the DSWD look into this matter to ensure the professionalism of the social workers, determine if there are really appointments made in contravention of the law, and to remind LGUs of the qualifications standards required to be met by the LSWDO. It is also recommended that the DSWD conduct a study to determine the ideal social worker-to-population ratio and disseminate the said information, which the LGUs may consult in determining the number of social workers to appoint.

6. Lack of YDHs Of the 139 LSWDOs surveyed, only 16 or 11.51% have Youth Detention Homes as required by Section 49 of RA 9344. This means that around 90% of the cities and municipalities do not have their own YDH, and thus have to bring their CICLs required to be detained in some other place.

Thus, contrary to the prohibition in Rule 28a of the IRR which provides that a CICL should not be locked up in a detention cell and should not be detained in the provincial, city or municipal jail, five (3.6%) bring the CICLs to the city or municipal jail. The LSWDOs also mention the need for a temporary shelter where they can place CICLs while they are processing the case.

These difficulties are reflected in the responses of 82 (58.99%) of the LSWDOs, who answered that lack of infrastructure is a major problem encountered in implementing RA 9344.

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Among the reasons cited for the lack of a Youth Detention Home are lack of funds to establish and maintain it, and the lack of a suitable location to build one. There are also LGUs that do not prioritize the YDH because they have very few or no CICL cases, which makes it financially impractical.

There were recommendations to establish provincial YDHs instead of requiring one for each city or municipality. This would address the issue of lack of funds and of building a YDH in a city or municipality where there are very few or no CICLs. However, the number of CICL cases vary per LGU. There are LGUs with very few to no CICL cases, and there are LGUs with a high incidence of CICLs. Also, requiring LSWDOs to travel to a different city or municipality to visit the CICLs detained in the provincial YDH would be financially difficult for them, as they are already budget-strapped. If this approach is to be considered, it is recommended that the DSWD and JJWC come up with a mapping of CICL incidences to determine the recommended size and housing capacity of a YDH in a given province.

The respondents also pointed out the need for youth detention homes that would function not only as detention cells, but to become houses where the CICLs are taken cared of, and where they could avail of services aimed at reforming them, such as psychosocial therapy, with a psychologist being assigned to the YDH, or educational and livelihood services where they can be educated and trained.

There should also be an effort to segregate the first-time offenders from the repeat offenders. This will ensure that the repeat offenders, who presumably have more knowledge and experience in committing crimes, will not be able to influence the first-time offenders toward more criminality and prevent the diversion and intervention programs from achieving their goals of reform and reintegration.

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7. Lack of training and information at the LSWDO and at the barangay level The study also found that knowledge, information, and training on RA 9344 has not yet completely trickled down to the barangay level. Seventy-one LSWDOs (51.08%) replied that lack of training is a problem in implementing the law, particularly at the barangay level. Similarly, 63 BCPCs (45.99%) state that lack of training is a problem in the implementation of RA 9344. In fact, there were BCPC respondents who were unable to answer most of the questions because they were not familiar with the law. Most of the suggestions on how to improve the implementation of RA 9344 was to train, inform, involve the stakeholders on the provision of the law (36 responses or 25.9%), and 35 (25.55%) of BCPCs answering the same. In fact, the LSWDOs indicated their need for trainings and seminars on RA 9344, and some have made requests for such trainings and seminars to be initiated in their localities.

One of the main comments of both the LSWDOs and the barangays was the need for more training and information dissemination on the law for barangays and police who handle CICLs. The survey showed that there were respondents at the barangay level who were unfamiliar not only with the procedures and processes under the law but even with the substance of the law. Effective implementation cannot be achieved if those who have the duty to implement it are unfamiliar with the policy behind the law and the processes, procedures and programs that they need to perform for the CICLs. To achieve this purpose, there are several options. One is to require the JJWC or the DILG to conduct the trainings or seminars, in line with its duties and functions under Section 9

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(i). 101 Another is to coordinate with NGOs or other governmental institutes in coming up with trainings and seminars, and have these entities conduct the trainings and seminars themselves.

There are already some NGOs who perform these services in partnership with the LGUs. It is also recommended that some sort of primer or guidebook be made available to the barangays, to serve as their guide in implementing RA 9344. This addresses not just the need to disseminate information and impart knowledge on processes and procedures, but also will help them recall what they learned in trainings and seminars. Furthermore, it will also address the issue of continuity. As the composition of the BPCPC may change after every election, there is a need for constant updating and orientation of the new members. Having a primer or guidebook will give the new BCPC members the information that they need to implement the law properly even in the absence of training seminars, or while they are waiting for such trainings and seminars to be made available.

In the trainings or seminars, it is also recommended that the trainers pay special attention to diversion and intervention programs. Respondents have expressed concern on two matters concerning the implementation of diversion and intervention programs, the first of which is guidance on what community service is acceptable to impose on CICLs, and the other is guidance on what intervention and diversion programs are suited for “recidivist� CICLs, or the repeat offenders.

It is also recommended that the trainings and seminars stress the importance of having a CJIP and diversion and intervention programs in place even if the locality has no CICL cases at Section 9 (i) on the duties and functions of the JJWC: (i) To initiate and coordinate the conduct of trainings for the personnel of agencies involved in the administration of the juvenile justice and welfare system and the juvenile intervention program;

101

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present. These programs are not intended to merely respond to the existence of CICLs in the locality, but are also intended for the prevention of juvenile crimes. Thus, it is appropriate not only for places with CICL cases, but even for those which do not have such cases. It is important that the barangays, even those without CICL cases, be prepared to handle such cases, instead of being caught unaware and unprepared when a CICL case crops up.

The LSWDOs also admitted that they lack training on the law. It is therefore recommended that DSWD, JJWC and/or DILG institute training programs and refresher courses for LSWDOs and other officials in the local social welfare office.

8. Diversion and Intervention Programs There were two issues that were raised with respect to diversion and intervention programs. First, respondents said that they would like to secure guidelines on what are the acceptable modes of community service that can be imposed as diversion and intervention programs. There are cities and municipalities which include community service in their diversion and intervention programs, but are unable to fully implement the programs as they have doubts on the extent of service they can require from the CICLs. There is a need to inform them of the limitations, if any, of requiring community service from the CICLs without becoming liable for exploitation of child labor.

Second, LGUs are seeking guidance on what programs may be imposed on the so-called “recidivists,” or those CICLs who commit crimes more than once. There are BCPC members and LSWDOs who see “recidivism” as a problem because they see it as a failure of the intervention or diversion program. They see no assurance that requiring the CICL to undergo the same program a second or third time would reform the CICL.

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It is recommended that the JJWC and DSWD include in their research and studies as to what diversion and intervention programs may prove effective in reforming CICLs and prevent them from committing crimes again. The results of these should be disseminated to the LSWDOs and the BCPCs to guide them in their formulation of diversion and intervention programs. This will ensure a higher success rate, instead of requiring CICLs to undergo random programs which may prove ineffective.

It is also recommended that the DSWD and/or the JJWC conduct or commission an in-depth research study with the CICLs themselves as the subjects, in order to understand more thoroughly the factors which compel them to become repeat offenders. Gaining this kind of knowledge will greatly assist the stakeholders in determining how to prevent juvenile crimes.

9. Crimes most committed Based on the responses of LSWDO and BCPC respondents, crimes against property are crimes most committed by CICLs. In fact, 14 (10%) of LSWDOs and 34 (24.82%) of BCPCs indicated that crimes against property are the only crimes committed in their localities.

This may be an indication that poverty is one of the main reasons why CICLs commit crimes, as cited by respondents as possible cause of juvenile crimes. The other possible causes mentioned were: out-of-school youths, lack of parental supervision (whether due to neglect or because the parents are absent, i.e. OFWs), and the negative influence of violent computer games.

It is recommended that the JJWC and/or the DSWD, perhaps in consultation with the medical community, conduct a study to determine what intervention and diversion programs are more suited to and would address the needs of CICLs who commit property-related crimes. The results of this study should be disseminated to the barangays and LSWDOs. It would serve as

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a guide in handling this type of crime, and also give officials an idea how to prevent children at risk from committing such crimes.

10.

Parental Tolerance and Liability

One of the problems pointed out by both LSWDO and BCPC respondents in is the lack of parental supervision, parental neglect, and even parental tolerance of the crimes committed by their children. The lack of parental supervision may be a result of physical absence, or because they have given up trying to supervise their children because they can no longer “control� the actions of their children. These situations have led the respondents to suggest that parents be held liable for the acts of the CICLs. It is also noted that a number of the respondents have parent effectiveness sessions and family therapy as part of their diversion and intervention programs. It is recommended that the LGUs strengthen this aspect of their CJIP. This study also recommends that the DSWD and the JJWC to determine which LGUs utilize these programs and to recommend these programs to other LGUs which currently do not have these in their roster.

It is worth noting that the last paragraph of Section 6 of RA 9344 provides that the exemption from criminal liability does not include exemption from civil liability. While alternative modes of dispute resolution is highly encouraged by the law, it does not preclude the offended parties from demanding restitution, which should be highly encouraged to at least provide some deterrence to the CICLs, and their parents from neglecting to supervise them, from committing crimes.

11.

Research on CICLs

In order to gain more information and data on CICLs, the effectivity of the intervention and diversion programs, the root causes why CICLs commit crimes, the reasons why there is CICL

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“recidivism�, and such other matters relative to RA 9344, it is also recommended that the JJWC perform its function under Rule 11d of the IRR on research and evaluation, specifically number 1, which mandates the JJWC to collect relevant information and conduct continuing research support evaluations and studies.

By getting these information, the JJWC will have data for distribution to its member agencies to help them in formulating policies and programs designed to address a specific situation.

12.

Lowering of the age of criminal responsibility

Twenty-seven LSWDOs (27 or 19.42%) and 40 BCPCs (29.2%) suggested lowering the age of criminal responsibility. As earlier noted, however, lowering the age of criminal responsibility is not a means to improve the implementation of the law.

This study recommends that an appropriate study be done involving child psychologists and/or experts, if the aim is to determine what the appropriate age is for which a child may be held criminally liable for the commission of a crime.

CONCLUSION The study found that the provisions of RA 9344 are not yet being fully implemented by LGUs in Luzon. While 86.5% of the LGUs surveyed have organized LCPCs, only 30.95% have come up with a CJIP. However, whether or not the LGU has a CJIP, LGUs (40.48%) still allocated funds for the implementation of juvenile welfare programs. Only 26.98 conduct review and assessment of their CJIP; however, not all of them submit the written assessment of the CJIP to the JJWC as required by the law.

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There are also not enough social workers to perform all the duties required to fully implement the law. While 96.03% LGUs appointed social workers for CICL cases, this study reveals that lack of personnel is a top problem (62.6%) in implementing RA 9344. The LSWDOs suggest to hire more staff focused on CICLs (22 or 15.83%).

There is also a lack of the infrastructure needed to effectively implement RA 9344. Only 11.5% of the LGUs surveyed have established Youth Detention Homes, and only 13 (93.5%) LGUs have a Youth Rehabilitation Centers. Because of this, there are some LGUs which detain CICLs in jails, which is prohibited by law. Problems also arise because LSWDOs and barangay officials have difficulty determining where to temporarily place CICLs while their cases are undergoing evaluation.

Even the task of maintaining complete databases are not fully complied with by the LSWDOs and the barangays. There appears to be a need for a uniform and complete “form� which the LGUs may follow in keeping databases.

Another issue is that not all LCPCs are able to utilize the 1% IRA mandated by the law for the implementation of RA 9344.

Only 35.7% are able to do this. There were LGUs that were not aware of this provision; whereas others who were aware and were able to get the allotment had to deal with insufficient funds.

Moreover, there appears to be a need to adequately inform and train the implementers in the LGUs about RA 9344 as well as their duties and responsibilities.

When asked what obstacles they encountered in properly implementing the law, the LSWDOs see lack of personnel and infrastructure as top contributors, whereas the officials at the barangay level said it was lack of training for them and information on the matter and insufficient funds.

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ABOUT THE JOURNAL The Philippine Law and Society Review is a peer-reviewed journal published biannually by the U.P. College of Law, in collaboration with scholars from various units of the U.P. System. It aims to publish manuscripts that articulate the intersection between law and other disciplines, such as history, philosophy, economics, anthropology, sociology, gender studies, literature, and politics.

It is currently only released by the College online, but there are plans to release the journal in print.

HOW TO SUBMIT Contributions and inquiries may be sent to phil.lawandsocietyreview@gmail.com.

Manuscripts should be submitted in Microsoft Word or Rich Text format, and with proper footnoting.

Inquiries may also be coursed through the Institute of Government and Law Reform at Room 106, Bocobo Hall, UP Law Complex, UP Diliman, Quezon City, or you may call 920-5514 local 202-203, or text 09294916442 / 09425754175.

Published manuscripts are entitled to an honorarium.

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