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Assistance for the formulation of EU support to the rule of law in the Philippines
FWC BENEFICIARIES 2013 - LOT 7: Governance and Home Affairs EuropeAid/132633/C/SER/multi
1. BACKGROUND a) State of play of the sector In spite of being a democracy since 1986, good governance in the Philippines is an important objective. The formal machinery of a democratic state (checks and balances, rule of law, fundamental freedoms, a liberal market economy, and a free press) embodied in the 1987 Constitution exists within an oligarchic, elite-driven and very unequal socio-economic and political reality that affects most of the state's institutions. Political and economical dynasties have been ever present at most levels of power. In this context tainted by patronage politics and cronyism, violence (including in the framework of two communist and Muslim insurgencies), human rights violations, corruption, unaccountability and impunity remain important issues although some notable improvements have been achieved under the new administration of President Aquino since he came into power in the middle of 2010. Reflecting this long-standing background, governance indicators for the Philippines still remain low in particular for the rule of law which continues to be a distant reality. Since 1998, the percentile rank of the Philippines in the Worldwide Governance Indicators for the Rule of Law1 has always been within the lower half and notwithstanding an improvement between 2005 and 2006 has actually come back in 2012 to a score of 36 out of 100, close its lowest level in 2004. This is to be compared with a regional average of 53.8/100 and an income average of 34.1/100. Likewise, according to the 2012 World Justice Project Rule of Law Index2, the country remains well in the lower half of the global 97-country ranking (average of 63.875/97), at the bottom quarter of the 14-country regional ranking (average of 10.75/14), but in the first half, although at the end, in the 23-country income group ranking (average of 10/23). With the expansion of the countries surveyed (from 66 to 97 for the global-, from 13 to 14 for the regional-, and from 16 to 23 for the income group-ranking), the ranking of the Philippines slightly deteriorated except for the income group ranking. A close look at the different factors behind the indicators in both report reveals that the country scores lowest on fundamental rights, the absence of violence/law and order, as well as civil and criminal justice. The most recent data from the WJP Rule of Law Index (2012) show a slight progress with regard to fundamental rights but a slight downturn with respect to order and security as well as civil and criminal justice compared to 2010. From an economic perspective, trends are however more positive. 111th on average in the 'institutions' pillar of the Global Competitiveness Index (GCI) in 2010-2011, the country leapfrogged to an average of 81 in 2013-2014. Improvements are noted in the rankings for judicial independence; efficiency of
The WGI is a research project of the World Bank since 1996 to develop crosscountry indicators of governance. The WGI consist of six composite indicators of broad dimensions of governance covering over 200 countries since 1996/ These indicators are based on several hundred variables obtained from 31 different data sources, capturing governance perceptions as reported by survey respondents, nongovernmental organizations, commercial business information providers, and public sector organizations worldwide. 2 The World Justice Project (WJP) Rule of Law Index is a quantitative assessment tool which started in 2008, offering a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. See www.worldjusticeproject.org.
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the legal framework in settling disputes and challenging regulation; and diversion of public funds. Yet again, progress has been much lower regarding business costs of violence, organised crime, and police services reliability. Against the political, social, and economic backdrop of the Philippines referred to above, this poor performance in the field of the rule of law is mostly due to the dysfunctional implementation and enforcement of the laws and rights provided in the constitutional and legislative framework rather than to inadequacy of the latter. Central to this issue is a justice system that is beset by a number of rampant structural, institutional and operational problems. These inter-related issues include: i) serious resource shortages (judiciary gets less than 1% of national budget); ii) lack of fiscal autonomy and independence; iii) high vacancy rates (around 25% in courts and the national prosecution service; iv) insufficient integrity and corruption; v) politicised system of appointments; vi) inefficient human resource development mechanisms; vii) inefficient administrative structures; viii) cumbersome operating procedures; ix) dysfunctional financial management systems; x) deficient information, education, and communication mechanisms; xi) limited monitoring, evaluation, and oversight; xii) poor public confidence; and xiii) lack of coordination. This further translates into more specific shortcomings and weaknesses that altogether make the formal justice system largely inaccessible, inefficient and ineffective, and unaccountable. With regard to the issue of accessibility, the following 2009 figures and statistics are telling: around 50% of the public believes that is very hard to fight for their rights (the perception is similar across income groups); 45% of the public believes that rich and poor do not receive equal treatment; 70% that taking a case to court costs more money and time than they can afford; 53% that the judge would not understand poverty-related problems; and 56% that a pro-poor judgment would not be enforced3. But even if it was 'theoretically' accessible to the poor, the justice system would most probably not be successful at providing the appropriate remedy. 2010 Data in relation to the criminal justice system's efficiency are indeed worrying and point to widespread impunity: only 20% of cases filed in law enforcement agencies are prosecuted in courts and only 25% of them result in conviction (in effect a 5% conviction rate which drops down to 1% for extra-judicial killings - EJKs - and enforced disappearances - EDs); it takes an average of 3 years to process a case in courts (over 5 years for the whole criminal process); 34.72% of cases are delayed in lower court (assuming that they are so after two years); 2009 disposition (outflow/inflow) and clearance (outflow/pending) rates in lower courts were of 83% and 42% indicating increasing backlog; inmate congestion increased from 42% in 2004 to 65% in 2010 with 95% of local jail populations (imprisoned in terrible conditions) under preventive detention; and recidivism increased from 5 to 19% in 2004-2010. With regard to accountability, statistics are scarcer. As a matter of fact however, information, communication, education, monitoring, evaluation, oversight, and disciplinary systems are very weak, if not inexistent, resulting in a lack of transparency and confidence as well as low performance. According to the survey referred to above for instance, 85% of respondents believe they know little or very little about the justice system, 35% have little or very little confidence in court decisions; and 62% think that bribery would be resorted by the opponent to win the case. A fundamental reason behind the issues of accessibility, impunity and unaccountability and the underperformance of the justice system itself is the insufficient capacity of oversight bodies and the civil society to exact accountability and demand justice for the improper implementation, enforcement, and application of laws and regulations. As there is not enough external pressure and no or little sanctions or punishment, decision-makers, politicians, civil servants, and ordinary citizens do not feel
Alternative Law Groups, Study Series 4, Research on the Poor Accessing Justice, 2008 & Social Weather Stations surveys, 2007 and 2009. While respondents were equally divided across geographic and gender lines, a vast majority of them (95%) came from low and lowest income group.
the need to fulfil their duties and obligations and are not deterred to violate the law up to the commission of a crime. Although indicators for the rule of law score low for the Philippines as a whole, there are important variations per region and provinces with some being particularly underperforming. This includes notably the conflict-affected areas of Mindanao and more specifically the Autonomous Region of Muslim Mindanao (ARMM) which, in the words of the President and of the incumbent governor themselves, is a failed experiment. One of the reasons for this failure is the lack of progress in strengthening the rule of law which is more fundamentally one of the root causes of the four-decade long Muslim insurgency in the South of Mindanao for enhanced autonomy. The human rights situation in particular is an important issue. Besides the concerns linked to the conflict between the Government and the Moro Islamic Liberation Front, gross and widespread violations are committed by local warlords that dominate the political and legal cultures. Of particular concern are 'ridos' which are violent clan feuds between powerful families over land, honour and other issues. Human rights have no space in those families unmitigated power-wielding governance to the detriment of the Moro people. b) Perspectives for the sector Stigmatising the previous administration for its poor track records in governance and its numerous abuses, incumbent President Aquino got elected in May 2010 on his commitment to decency, honesty, transparency and the fight against corruption, poverty, and impunity. The son of popular democracy 'icons' Cory (former President) and Ninoy (assassinated political opponent of former dictator Marcos) Aquino, he engaged with the Filipino People in a Social Contract to achieve inclusive rapid economic growth anchored on the two overarching themes of good governance and anti-corruption. Translating his vow to "transform the justice system from one that money and connections can buy to a truly impartial system of institutions that deliver equal justice to rich or poor", the Philippine Development Plan (PDP) for the years 2011-2016 gives a prominent place to the rule of law as one of the four priorities of the governance agenda. With the view to restore public trust and confidence in the justice system and a socio-economic environment prone to economic investments, the plan identifies 9 priorities. Those are: (i) strengthening the oversight bodies; (ii) fostering effective and speedy resolution of cases; (iii) reducing the cost of litigation; (iv) avoiding law suits involving government contracts; (v) enhancing staff integrity and competence; (vi) increasing resources; (vii) improving access to justice; (viii) promoting alternative dispute resolution; and (ix) institutionalising existing justice sector coordination mechanisms. Each priority is then break-downed into different actions, some very specific, some very general. Giving credence to his commitment to the rule of law, President Aquino appointed well-respected governance champions in key positions of government, including the Secretary of the Justice and the Secretary of Interior and Local Government in his cabinet, as well as the Chair of the Commission on Human Rights. Within his crusade against corruption targeting in the first place the former President and her alleged cronies, he also secured the resignation of the Ombudsman in April 2011 following the vote of the House to impeach her and the effective impeachment of the Chief Justice in December of the Supreme Court in December 2011. Three years and a half after having assumed office, namely more than halfway through his mandate, the President has thus done a great deal in restoring public trust in the leadership of key justice institutions. Beyond vetting the system from its most corrupt elements thereby paving the way for reforms, concrete improvements in the accessibility and functioning of the justice system fall however short from expectations as reflected in the most recent data for the rule of law indicators referred to above. In particular, the progress in the implementation of the priorities of the PDP for the rule of law remains slow and no significant impact can yet be reported.
Besides the caveat that the impact of governance reform cannot necessarily be felt in the short to medium-term, there are two main inter-linked reasons for that which stem from a tendency to adopt short-term, piece-meal, and isolated solutions to structural problems requiring sustained and coordinated efforts. On the one hand, this is due to a lack of adequate reform strategies and implementation plans to translate long-term objectives into practice. This is true as much for specific institutions as it is for the sector as a whole. Reform agendas give the proper directions to take and roughly identify the resources needed. However, they usually do lack a strategic implementation plan with appropriate financing plans, time tables, and monitoring and evaluation frameworks for a comprehensive and accountable implementation. On the other hand, the other closely related reason is the lack of strong coordination mechanisms between the interdependent stakeholders of the highly interconnected justice system. Reforms operated in one dimension of the justice process will only have an impact if reforms are also carried out in other critical dimensions of that process. The rule of law chapter of the PDP is a case in point. Although it gives the right priorities to focus on, some of the proposed interventions for each of them remain too superficial and isolated to achieve the intended long-term impact. Furthermore, it is still not supported by proper working plans for its implementation by the end of the current administration in 2016. The formulation of such plans and later on their implementation do however require the close collaboration of all relevant actors since the envisaged reforms are either linked to one another or are sector-wide in nature. These issues are nevertheless generally acknowledged and progress is underway, in particular with regard to sector-wide coordination. Inter-institutional policy dialogue at the level of Government takes place within the Justice Sector Coordination Council created in 2010 and chaired by the Chief Justice of the Supreme Court, the Secretary of Justice, and the Secretary of Interior and Local Government. Under their leadership and impulse from the donor community, including the EU, this forum is gradually transforming from a mere information-sharing to a real policy-making body. It has been working on the development of a sector-wide Strategic Plan of Action (SPA) for the period until 2020. Aimed at addressing common issues cutting across all sectors of the justice system and agencyspecific challenges that have a global impact, the document still in a draft version provides the framework for reforms that are sector-wide in nature. With an estimated budget of $200 million ($5 M grants, $45 M loans, and $150 M from national budget) for the initial 5 years, it prioritises 5 key areas with corresponding expected results: good governance in the justice sector; prevention and reduction of crime, speedy resolution of cases; restorative justice; and equal and inclusive access to justice. However, this document still needs a significant amount of work to become a credible working tool but it takes the right direction and fills a long-standing need for a global sector-wide plan of action which is recognised by the sector stakeholders, first and foremost by the Chief Justice. Complementing this overarching document are few institution-specific reform programmes. For the executive, the two main ones are the 2011-2016 Development Plan of the Department of Justice and the 2005-2015 Integrated Transformation Programme as part of the Patrol Plan 2030 of the Philippine National Police. While providing a good policy framework, these strategies are, as mentioned above, too output-driven and lack coherent budgets and monitoring and evaluation systems making their implementation fragmented. For the judiciary, the Chief Justice who assumed office in August 2012 is currently putting together her Judicial Reform Agenda that is set to be presented in the first quarter of 2014. With three procedural reforms adopted within one month in office, she has already demonstrated a reform-oriented approach. This gives hope that the Supreme Court will re-assume its leadership role in the reform of the sector as was the case with the defunct 2001-2006 Action Programme for Judicial Reform, the sole ever close to sector-wide reform agenda whose implementation has however remained rather limited. A crucial element for the success of the justice system reform that is strongly emphasised in the PDP is the need to strengthen oversight bodies and to expand citizens' participation in governance. Chapter 7 specifically refers to the need to pursue the passage of a charter for the Commission on Human Rights (CHR) to enable it to perform its comprehensive monitoring function independently and with more resources. As it puts it, this shall contribute to the strengthening of the rule of law, government accountability and transparency and lead to reforms and changes in policies, programs, and actions
consistent with international standards. The same chapter also calls for the sustainment and deepening of partnerships between government and civil society organisations (CSOs) at all levels of governance. It further underlines the many hindrances that they face to perform their functions which included in particular the lack of proper access to information. From a regional perspective and regarding the conflict-affected areas of Mindanao more specifically, it is too early to outline concrete perspectives with respect to the rule of law. As a matter of fact, the President has been successful in re-establishing the conditions for peace hence for the rule of law since the Parties just successfully concluded their negotiations. Following the completion last January 2014 of the last annex to the Framework Agreement signed in October 2012, the Parties are about to officially sign a Comprehensive Peace Agreement. The concrete policies that will be adopted and the measures that will be implemented by the new political entity are thus not yet known. The Framework Agreement and its annex on normalisation which is the most important when it comes to the rule of law make it clear nevertheless that the rule of law will be at the centre of the transition and peacebuilding process. The Parties will notably work towards enhanced autonomy in the field of justice and policing. Those will be key success factors for the consolidation of peace in the future Bangsamoro (the regional autonomous entity set to replace the ARMM following the forthcoming conclusion of the Comprehensive Peace Agreement). However, even more central to this will be the cross-cutting issue of human rights. Achieving piece and alleviating poverty will require responsive human rights-based policies and plans to set the course of development in a holistic and accountable manner. Cognizant of this, in 2012, that is eleven years after its creation, the regional government of the ARMM created the Regional Human Rights Commission (RHRC). As set in its strategic plan 20132015, the new body's primarily goals are to institutionalise human rights in the Bangsamoro (the new political entity set to replace the ARMM as per the forthcoming comprehensive peace agreement between the Government and the Moro Islamic Liberation Front); enable communities to assert their rights; protect the rights of persons of special concerns; and incorporate human rights in the peace process. In October 2013, the RHRC and the CHR forged a strategic partnership in which they commit to cooperate for the protection and promotion of human rights within the jurisdiction of the ARMM. c) Ongoing support to the sector Apart from the EU, there are within the field of the rule of law only two main donors that are involved in justice sector support and another two in human rights protection and promotion. The EU and other donors' actions are the following: Through the ongoing EUR 10 million EPJUST II programme implemented by the Department of the Interior and Local Government, the EU works with almost the entire set of justice system stakeholders to help address 7 out of the 9 priorities identified in the PDP. Focussing particularly on the issues of unequal access to justice for the poor and vulnerable people and of political killings of human rights and social activists, it has three main components with the respective purpose to i) increase accessibility; ii) fight impunity; and iii) enhance transparency and accountability. Until the end of the incumbent administration's mandate, the programme aims to achieve the following eight expected results: For component 1: i) increased availability of adequate legal information and education; ii) increased access to better legal assistance; iii) greater sensitivity and understanding of issues affecting the poor and disadvantaged by justice providers; iv) more and better use of alternative dispute resolution mechanisms as cheaper and quicker means of delivering justice; For component 2: v) more comprehensive and in-depth investigation of major crimes for more material evidence; vi) Quicker criminal justice process through a better management of cases; vii) more efficient and effective protection of witnesses for testimonial evidence; and
For component 3: viii) better internal monitoring and evaluation of institutional and individual performance and strengthened external oversight. Although it mainly focuses on the judiciary, the other big player in the justice sector is USAID which through its US$ 20 million 'Judicial Strengthening to Improve Court Effectiveness (JUSTICE)' programme for the period 2012-2017 aims to i) reduce docket congestion; ii) computerise courts; iii) strengthen Government contract enforcement; iv) strengthen the enforcement of Intellectual Property Rights; and v) support integrity and confidence-building measures for the judiciary through public perception surveys. Following the completion of a major loan programme, the Asian Development Bank (ADB) is currently only running an AUS$ 1 million technical assistance programme to strengthening the capacity of the judiciary and justice sector agencies. The project notably supports the case (and jail) decongestion initiatives together with USAID and assists the JSCC secretariat with a short-term technical consultant preparing the legal instrument for the institutionalization of the JSCC. Regarding human rights, besides the EPJUST II programme and grants to CSOs under the EIDHR, the EU also provides support under the instrument for stability in the framework of its support to the peace process in Mindanao. Through an 18-month project implemented by the United Nations Development Programme (UNDP) until mid-2015, assistance worth EUR1.2 million is extended to the ARMM RHRC to i) develop its institutional and policy-making capacity; ii) establish monitoring centres; and iii) build its monitoring and awareness building capacity through community engagement. Spain, through a EUR 2.75 million AECID programme, supports the strengthening of the Commission on Human Rights by i) capacitating its staff, ii) developing a monitoring system to track the human rights situation; iii) upgrading its facilities and equipment; iv) supporting the Barangay Human Rights Action Centers; and v) strengthening its Human Rights Resource and Education Center. AusAID also has a number of ongoing projects which notably include i) strengthening the case management system of the CHR in coordination with AECID; ii) supporting human rights education and baseline data gathering by the ARMM RHRC; and ii) CSO-led case monitoring mechanism. 2. DESCRIPTION OF THE ASSIGNMENT In the light of the foregoing and given the importance of the rule of law as a driver of inclusive growth and poverty reduction in particular in a middle-income country like the Philippines, the EU has decided to include it as one of two focal sectors for its bilateral cooperation within the financial perspectives 2014-2020. While this support will be nationwide in scope, part of it will have to focus on the envisaged autonomous region of the Bangsamoro in the framework of the peace process between the Government and the Moro Islamic Liberation Front either in global or specific programmes. As an initial intervention, the EU Delegation has identified a programme for adoption in the 2014 Annual Action Programme for the Philippines. The proposed action aims to strengthen the rule of law by increasing the efficiency, effectiveness and accountability of the formal justice system. Taking into account the Government priorities as well as other donor's and EU interventions, it is suggested to do so by focusing on four inter-linked areas, namely i) the strengthening of sector-wide coordination mechanisms and development of sector-wide long-term reform agenda; ii) the decongestion of courts and the development of an integrated case management system; iii) the development of modern administrative and financial systems and procedures; and iv) the reinforcement of oversight institutions (human rights ones including in the ARMM/Bangsamoro) and CSOs. These areas have the underlying objective to pave the way for a sector-wide justice reform that could be supported through sector budget support in 2017. Global objective
The global objective is to help devise relevant support to the Filipino justice sector in order to strengthen the rule of law as a key driver of economic growth and poverty alleviation. Specific objective(s) The specific objective is to assist the EU Delegation in the validation and formulation of a proposed programme as part of the 2014 Annual Action Programme for the Philippines. Requested services The expert team is requested to:
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14)
Analyse the current situation in the Philippines as far as the justice sector, in general, and sector-wide issues, in particular, are concerned; Validate the relevance and assess the political, legal, and financial feasibility of the proposed programme's objectives and activities notably in the light of their compatibility with ongoing and future initiatives of Filipino stakeholders and other international donors; Establish priorities amongst the proposed activities accordingly; Elaborate on the proposed activities in terms of objective, content, budget, and implementation modalities; Identify and formulate new potential activities as relevant and feasible; Assess the existing capacity of the stakeholders involved and identify their needs for technical assistance at national, regional and local level for the proper implementation of the proposed programme; Design implementing modalities for the various components of the proposed programme in strict accordance with the Development Cooperation Instrument and other applicable EU policies and regulations; Identify the assumptions underpinning the proposed programme and assess the possible risks to its implementation and sustainability; Recommend measures to improve the sustainability of the proposed programme beyond the end of the implementation period; Analyse the possible implications of the proposed programme for cross-cutting issues including gender and environment; Appraise the stakeholders understanding of the conditions for EU sector budget support; Organise meetings with all relevant stakeholders; Organise (including taking care of the contractual and logistical arrangements and covering the costs) and facilitate the organisation of one multi-stakeholder consultation/debriefing; Take minutes for all meetings and consultations.