Transcript WOMEN AND THE LAW AND CHILDREN’S RIGHTS – THE PHILIPPINE

WOMEN AND THE LAW AND
CHILDREN’S RIGHTS – THE
PHILIPPINE EXPERIENCE
By
Myrna S. Feliciano
MCLE Executive Director
Professor II, Philippine Judicial Academy
Professorial Lecturer, U.P. College of Law
 2000 CENSUS
Population – 76,504,077
38.5 million or 50.36% are males
38.0 million or 49.64% are females
‫٭‬15-49 years – 51.04% females of
child-bearing
‫ ٭‬43.89% single (52.94% males;
47.06 females
‫ ٭‬45.66% are married
‫ ٭‬10.45% - widowed, separated,
divorced
(75.72% females; 24.28% males)
Age Group
0-14 years – 37.01%
15-64 years – 59.16%
65 over – 3.83%
Every 100 persons of working age
supports 63 young dependents and 6 old
dependents.
Female headed household – 15.4%
with average size of 4 persons
19 years or younger – 36.3 million
5-17 years – 3.5 million work under grueling
conditions
HISTORICAL BACKGROUND
Pre-Spanish times – women held in high
esteem
Spanish times – reoriented as docile,
obedient and virtuous
American era – introduced universal
education social reforms
Today – high level of education and
relative independence in combining work
and family
However, this veneer of achievement--- masks strong patriarchal institutions, practices
and attitudes predominant in Philippine society
-- relationship regulated by stereotypes and double
standards
- females are weaker and submissive vis-àvis males is stronger and aggressive
- women as caregivers and homemakers
- men as breadwinners & heads of families
LEGAL REFORMS AFFECTING WOMEN
1987 Constitution, Art. II, sec. 14. The
State recognizes the role of women in
nation-building and shall ensure the
fundamental equality before the law of
women and men.
Philippine Development Plan for Women
(PDPW), 1989-1992
Philippine Plan for Gender-Responsive
Development (PPGD), 1995-2005
Research project on “A Gender Analysis of
Philippine Laws” – 14,959 statutes
UN Convention on the Elimination of All
Forms of Discrimination Against Women
(CEDAW)
Philippines ratified it on 05 August 1981
AMENDMENT OF DISCRIMINATORY
STATUTES
1. RA 6725 (1989) – amending Art. 135 of
Labor Code – “unlawful for any employer
to discriminate any woman employee with
respect to terms and conditions of
employment solely on account of her sex.”
2. Labor Code
• Art. 136 – Prohibits precondition for
employment not to get married
• Art. 137 – prohibits the discharge of women on
account of her pregnancy
Cases: Zialcita v. PAL, DOLE Case No.
R04-3-3399-76, May 27, 1976;
PT&T Co. v. NLRC, G.R. No. 118978, 23
May 1997
3. RA 7192 (1991) – “Women in
Development and Nation-Building Act”
- Women of legal age shall have:
- capacity to act and enter into
contracts, security and credit
arrangements
- access to all government and private
sector programs, loans and non-material
resources
- opportunities to enroll in all military
schools of AFP & PNP
- join social and cultural clubs
- avail of social security, i.e. SSS,
GSIS, & PAG-IBIG through their spouses
- ensure substantial portion of foreign
assistance funds be allocated to women
support programs
4. RA 7322 (1992) – increased maternity
benefits given to women workers in the
private sector and equalized maternity
benefits given to public sector under the
Revised GSIS Act.
5. RA 8187 (1996) – Paternity Leave Act
which entitles fathers 7 days leave for
first 4 deliveries of legitimate spouse with
whom he is cohabiting
6. RA 8042 (1995) – Migrant Workers &
Overseas Filipinos Act
- codification and institution of policies of
overseas employment
- establishment of a higher protection
and promotion of welfare of migrant
workers and their families and overseas
Filipinos in distress
- limited countries of deployment to jobs
that required skilled workers
- gives both documented and
undocumented workers equal protection
and treatment
- other provisions from funding to illegal
recruitment
- deregulation of the labor migration
industry
VIOLENCE AGAINST WOMEN AND
CHILDREN
UN Declaration on the Elimination of
Violence Against Women (VAW)
Any act of gender-based violence that
results in or is likely to result in physical,
sexual or psychological harm or suffering
to women, including threats of such acts,
coercion or arbitrary deprivation of liberty,
whether occurring in public or private life.
Encompasses but not limited to:
a. Physical, sexual and psychological
violence occurring in the family, including- battering
- sexual abuse of female children in the
household
- dowry-related violence
- marital rape
- female genital mutilation
- other traditional practices harmful to
women
- non-spousal violence; and
- violence related to exploitation
b. Physical, sexual and psychological
violence occurring within the general
community, including:
- rape
- sexual abuse
- sexual harassment
- intimidation at work in educational
institutions and elsewhere
- trafficking in women, and
- forced prostitution
c. Physical, sexual and psychological
violence perpetrated or condoned by the
State, whenever it occurs.
RA 8353 or Anti-Rape Law of 1997
Rape is committed:
1. By a man who shall have carnal
knowledge of a woman under any of the
following circumstances:
a. Through force, threat or
intimidation;
b. When the offended party is
deprived of reason or otherwise
unconscious
c. By means of fraudulent
machination or grave abuse of authority;
and
d. When the offended party is
under 12 years of age or is demented,
even though none of the circumstances
mentioned above be present
2. By a person, who, under any of the
circumstances mentioned in par. 1, shall
commit an act of sexual assault by
inserting his penis into another person’s
mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of
another person (Art. 266-A)
Now a crime against persons
2nd paragraph is gender neutral
If legal husband is offender, the subsequent
forgiveness of the wife extinguishes the crime
or penaltyDoes not apply if marriage is void ab initio
- subsequent valid marriage between offender
and offended party extinguishes the crime or
penalty
- death penalty imposed if victim is under 18
years and offender is parent, step-parent,
guardian, relative by consanguinity or affinity
within 3rd degree or common-law spouse of the
parent of the victim
* Death penalty abolished by RA 9346 (2006)
B. RA 8505 or the Rape Victim
Assistance & Protection Act of 1998
Establishment in every province and city a
rape crisis center located in a government
hospital or health clinic or a suitable place
- providing rape victims with psychological
counseling, medical and health services,
including medico-legal examination
- securing free legal assistance for rape
victims
- assisting rape victims in the investigation
- ensuring privacy and safety of rape
victims
- providing psychological counseling and
medical services to victim’s family
- developing and undertaking a training
program for law enforcement officers,
lawyers, medico-legal officers, social
workers and barangay officials on human
rights and responsibilities, gender
sensitivity and legal management of rape
cases
- adopting and implementing programs for
the recovery of rape victims
*DSWD is lead agency in establishment and
operation of these centers
- specifies procedure which a police
officer, an examining physician and
prosecutor must follow upon receipt of a
complaint of rape
* women’s desk established in every
police precinct and investigated by a
police woman
* physician and prosecutor must be
females
* right to privacy of offended party and
accused
> information on their identities
cannot be disclosed
- rape shield provision– In prosecutions for
rape, evidence of complainant’s past
sexual conduct, opinion thereof and
his/her reputation shall not be admitted
unless, and only to the extent that the
court finds that such evidence is material
and relevant to the case.
- DSWD crisis intervention units in 15
regions and 24-hour hotline and
counseling services
- NBI– one-stop crisis unit in some of its
regional offices
- 3 Homes called “The Haven”– residential
care, including food, medical care,
psychological services, referrals for legal,
psychiatric and training in livelihood skills.
C. RA 9208 or Anti-Trafficking in Persons
Act of 2003
- Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially
Women and Children Supplementing the
UN Convention Against Transnational
Organized Crime
- Inter-Agency Council Against Trafficking
(IACAT)
*DOJ as lead agency
Main Features:
- Definition of Trafficking—covers a wide range
of activities that are carried out for the purpose
of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or
debt bondage, removal or sale of organs
whether any of these happened in the country or
abroad or whether the victims are Filipino
nationals or foreigners trafficked to the
Philippines
- Redefines prostitution as “any act,
transaction, scheme or design involving
the use of a person by another, for sexual
intercourse or lascivious conduct in
exchange for money, profit or any
consideration, with the criminal liability
assigned to those who promote it through
trafficking in persons.
- Consent of a trafficked person to the
intended exploitation shall be irrelevant.
- Penalties:
* Use of trafficked person—
1st offense—6 months community
service and fine of P50,000
2nd & subsequent offenses–
imprisonment of 1 year & fine of P100,000
* Acts of Trafficking– 20 years
imprisonment, fine of P1-2 Million
^ to recruit, transfer, transport,
harbor, provide or receive a person under
pretext of domestic or overseas
employment, training or apprenticeship for
purposes of prostitution, sexual
exploitation, forced labor, slavery,
involuntary servitude or debt bondage.
^ to introduce or match for money,
profit or material, economic or other
consideration any person or Filipino
woman to a foreign national for the above
purposes
^ to offer or contract marriage, real
or simulated for the above purposes
^ to undertake or organize tours or
travel plans consisting of tourism
packages or activities for utilizing and
offering persons for prostitution,
pornography or sexual exploitation
^ to hire a person to engage in
prostitution or pornography
^ to adopt or facilitate the adoption
of persons for the above purposes
^ to recruit, hire, adopt, transport
or abduct a person, by means of threat or
use of force, fraud, deceit, violence,
coercion, or intimidation for the purpose of
removal or sale of organs of said person
^ to recruit, transport or adopt a
child to engage in armed activities in the
Philippines or abroad.
*Acts that promote trafficking in persons–
15 years imprisonment and fine of P500,000.00
^ to knowingly lease or sublease, use
or allow to be used any house, etc.
^to produce, print or distribute
unissued, tampered, fake counseling certificates,
registration stickers or a certificate or sticker as
proof of compliance with government regulatory
and predeparture requirements
^ to advertise, publish, print,
broadcast, or distribute or cause the
advertisement, publication, printing,
broadcasting or distribution by any means,
including use of information technology
and the internet or any propaganda
material that promotes trafficking in
persons
^ assist in facilitating of clearances and
necessary exit documents for pre-departure
registration and services for departing persons
for the purpose of trafficking in persons
^ assist or help in the exit and entry of
persons from/to country at international and
local airports, territorial boundaries and seaports
who have fraudulent travel documents
^ to confiscate, conceal or destroy
passports or travel documents or
belongings of trafficked persons to prevent
them from leaving the country or seeking
redress for government agencies.
^ knowingly benefit, financial or
otherwise or make use of the labor or
services of a person held in involuntary
servitude, forced labor, etc.
* Qualified Trafficking– life
imprisonment and fine of P2 million to 10
million
^ when trafficked person is a child
^ when adoption is effected
through RA 8043 (Inter-Country Adoption
Act of 1995)
^ when crime is committed by a
syndicate or in large scale (3 or more
persons conspiring syndicate, 3 or more
persons, individually or as a group – large
scale)
^ offender is ascendant, parent,
sibling or guardian who exercised authority
or committed by public officer or employee
^ trafficked person is recruited to
engage in prostitution with any member of
the military or law enforcement agencies
^ when offender is a member of
military or
^ when by reason or on occasion
of the act, the offended party becomes
insane, suffers mutilation or is afflicted with
HIV or AIDs
* Violation of confidentiality – 6 years
imprisonment and fine of P500,000 to1
million
VENUE– where offense was committed or
where any of its elements occurred or
where the trafficked person actually
resides at the time of the commission of
the offense
FINES– placed in a Trust Fund for
rehabilitative and integration program of
victims, mandatory programs under the
law and information programs
Rights of Trafficked Person:
- right to privacy
- mandatory services – government
provides emergency shelters, counseling,
free legal, medical or psychological
services, livelihood and skills training and
educational assistance
Legal Remedies
- criminal action
- civil action for damages
- confiscation and forfeiture of proceeds
and instruments
- administrative action (closure,
cancellation of permits, suspension or
dismissal from service)
Services and Programs:
- DFA– resources and facilities and close
networking with agencies here and
overseas
- DOLE– monitor, document and report
cases
- DOJ– special prosecutors and priority in
witness protection program (RA 6981)
- DSWD– rehabilitative and protection
programs
- NBI– apprehension measures of
suspected traffickers
- PNP– surveillance, investigation & arrest
- POEA– pre-employment and predeparture seminars
D. RA 9262 (2004) or Anti-Violence Against
Women and Their Children
- Violence Against Women and Their Children-“Any act or a series of acts against a woman
who is his wife, former wife or against a woman
with whom the person has or had sexual or
dating relationship, or against her child, whether
legitimate or illegitimate, within or without family
abode, which result in physical, sexual,
psychological harm or suffering, or economic
abuse including threats of such acts, battery,
assault, coercion or arbitrary deprivation of
liberty”
- Recognizes “battered woman syndrome (BWS)
* refers to a scientifically defined pattern of
psychological and behavioral symptoms found in
women living in battering relationships as a
result of cumulative abuse
- women suffering from BWS do not
incur any criminal or civil liability
notwithstanding the absence of any of the
elements for justifying circumstances of
self-defense under the RPC
Case: People v. Genosa, G.R. No.
135981, Jan. 15, 2004
- courts to be assisted by expert
psychologists or psychiatrists
- not disqualified from having custody
of her children
- being under the influence of alcohol,
illegal drug or other mind-altering
substance not a defense by the
perpetrator
Notable Features
- issuance of protection orders
* barangay (15 days) by punong
barangay or barangay kagawad
* courts– temporary protection orders
(30 days) and permanent protection orders
- public crime and broader enumeration of
persons eligible to file petition for
protection orders
* offended party
* parents or guardians
* ascendants, descendants or collateral
relatives within the 4th civil degree of
consanguinity or affinity
* officers or social workers of the DSWD or
LGUs
* police officers preferably those in charge of
women and children’s desks
* Punong Barangay or Barangay Kagawad
* lawyer, counselor, therapist or health care
provider of petitioner
* 2 concerned responsible citizens who has
personal knowledge of the offense committed
- An application for a protection order –
family court, RTC, MetTC, MTC, MCTC
which have jurisdiction over the place of
petitioner
- All TPOs and PPOs enforceable anywhere
in the Philippines (violation-P5,000 to
P50,000 and/or 6 months imprisonment)
- Conduct hearing in 1 day and if TPO is due to
expire, renew for another 30 days until final
judgment
- not deny the issuance of PPO on the
basis of lapse of time between act of
violence and filing of petition
- priority over all other proceedings
- violation of POs – contempt of court,
Rule 71, Rules of Court
- During hearing, respondent’s non-appearance
or lack of lawyer despite proper notice not a
ground for postponement. Court appoints
counsel for respondent and proceeds with
hearing
- Court allows ex parte presentation of evidence
- Court shall allow the introduction of any history
of abusive conduct of respondent
- bond to keep the peace with two sureties
- reliefs available to the offended party
- decide within 30 days after termination of
hearing on the merits
Victim’s Rights
- treated with respect and dignity
- avail of legal assistance from PAO
- support services from DSWD, LGUs and DOH
- paid leave of absence up to 10 days
- non-payment of filing fees and other court fees
- confidentiality of VAW cases
Inter-Agency Council on Violence Against
Women and their Children – 11
government agencies to establish
programs and projects to eliminate VAWC:
DSWD, NCRFW, CSC, CWC, DOJ, DILG,
PNP, DOH, DepEd, DOLE & NBI
IV. Children’s Rights
UN Convention on Rights of the Child
classifies the following children’s rights:
a. survival rights
b. protection rights
c. development rights
d. participation rights
A. RA 7610 or Special Protection of
Children Against Child Abuse and
Discrimination Act
- views child principals or accessories in
crimes as victims of abuse or exploitation
- Acts of child abuse
a. child prostitution and other sexual
abuse
b. Child trafficking
c. Obscene publication and indecent
shows
d. Other acts or neglect, abuse, cruelty
or exploitation prejudicial to the child’s
development including those covered by
PD 603, art. 59, pedophilia or use a street
child to:
- beg or use begging as a means of
living
- act as conduit or middleman in drug
trafficking or pushing; or
- conduct any illegal activities
Abused Child subject to protective custody of
DSWD immediately
- attending physician or nurse required to make
oral and written report to DSWD within 48 hours,
failing to do so fine of P2,000
- teachers and administrators in public schools,
probation officers and government lawyers
whose work involves dealing with children–
required to report all incidents of child abuse
Who can file complaints:
- offended child
- parent or guardian of minor
- officers or social workers of licensed
child-minding institutions and DSWD
- barangay chairman
- at least 3 concerned responsible citizens
of the place where violation occurred
Cases:
- People v. Larin, G.R. No. 128777, Oct. 7,
1998
- Alonte v. Savellano, Jr., G.R. Nos.
131652 & 131728, March 9, 1998
- People v. Calma, G.R. No. 127126, Sept.
17, 1998
Rights of Child Victims
- Confidentiality of identity (People v.
Cabalquinto, G.R. No. 167692, Sept. 19,
2006)
- Priority of scheduling and continuous trial
- proceedings to be heard in judges
chambers
Rule on Examination of a Child Witness
- guardian ad litem
- support person
- separate waiting area
- comfortable court environment for the child
- child allowed to use anatomically correct dolls,
puppets, drawings, etc.
- use of screens, one-way mirrors or other
devices to shield child from accused
- use of videotaped deposition
- live-link television testimony
RA 9231 (2004) -- amends art. VIII on Child
Labor of RA 7610
- below 15 years old- sole responsibility of
parents/guardians and only members of
family employed
- should not endanger child’s life,
safety, health and morals
- primary and secondary education
- employment in public entertainment
through cinema, theater, radio or other
forms of media- employment contract with
parents, child’s consent and DOLE
approval
- ensure protection, health, safety,
morals and normal development of child
- measures to ensure child’s
exploitation or discrimination taking into
account remuneration, duration and
working time arrangement
- subject to approval and supervision, a
continuing program for training and skills
for the child
- secure a work permit from DOLE
Work Hours
- children below 15 years- not more than
20 hours a week but not more than 4
hours a day
- not allowed to work between 8 pm-6 am
- children 15 and below 18- not more than
8 hours but not more than 40 hours a
week
Child’s income belongs to him/her in
ownership:
- set aside primarily to support education
or skills acquisition
- secondarily to collective needs of family
but not more than 20% of child’s income
- both parents administer child’s income
and property
- Trust fund set for at least 30% of child’s
income to at least P200,000 annually
* semi-annual accounting to DOLE
Prohibitions Against Worst Forms of Labor
- all forms of slavery in RA 9208 such as
sale and trafficking, debt bondage and
serfdom, forced or compulsory labor,
recruitment for use in armed conflict, use,
procuring or exposing a child for
prostitution or for pornographic
performances especially in the internet
- use, procuring a child for illegal or illicit
activities including production and
trafficking of drugs and volatile substances
- work whereby its nature or
circumstances is hazardous or likely to be
harmful to health, safety and morals of
children
- exposes the child to physical, emotional
or sexual abuse or work which is found to
be lightly stressful psychologically or may
prejudice morals and work performed
underground, underwater or at dangerous
heights or involves use of dangerous
machinery, equipment, tools such powerdriven or explosive power-actuated tools
- exposes the child to physical danger
such as but not limited to dangerous feats
of balancing and physical strength or
contortion in circus, manual transport of
heavy loads and work performed in
unhealthy environment exposing child to
hazardous working conditions
- no child shall be employed as a model in
any advertisement directly or indirectly
promoting alcoholic beverages,
intoxicating drinks, tobacco or its byproducts, gambling or any form of violence
or pornography
DepED formulate and implement relevant
effective course designs and education
programs, including non-formal ones
Complaints on cases for unlawful acts:
- offended party
- parents or guardians
- ascendant or collateral relative within 3rd
degree of consanguinity
- officer, social worker or representative of
child-caring institution
- DSWD officer or social worker
- barangay chairman of the place where
violation occurred or where child is
residing
- at least 3 concerned responsible citizens
where child is residing or employed
Family courts and in places where there are no
RTC and MTCs have concurrent jurisdiction
Procedure:
- preliminary investigation within 30 days from
date of filing
* if prima facie case- filed within 48 hours
- trial of cases terminated by court not later than
90 days from filing
Victim exempted from payment of filing fees and
right to free legal, medical and psychological
services provided by the State
Fines and penalties treated by court as a Trust
Fund to be administered by DOLE
- used exclusively for costs of rehabilitation and
integration into mainstream of society of victims
- financial programs and projects to prevent acts
of child labor
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