Paper 8

Philippines

Mateo A. Lee, Jr.
Deputy Director National Council for the Welfare of Disabled Persons Department of Social Welfare and Development Philippines

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The designations employed and the presentation of the material in this paper do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The opinions, figures and estimates set forth in this paper are the responsibility of the author(s), and should not necessarily be considered as reflecting the views or carrying the endorsement of the United Nations. The mention of firm names and commercial products does not imply the endorsement of the United Nations.

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Contents 8. 8.1. Philippines Overview of the domestic legislative framework on disability in the Philippines ....... 5 8.1.1. The 1987 Philippine Constitution ......................................................................5 8.1.2. The Magna Carta for Persons with Disabilities .................................................6 8.1.3. Other legislation on disability in the Philippines ..............................................7 Assessment of the domestic legislative framework on disability in light of the harmonization with the CRPD.............................................................................................. 9 8.2.1. Definition ...........................................................................................................9 8.2.2. Equality and non-discrimination (CRPD, article 5).........................................10 8.2.3. Women with disabilities (CRPD, article 6) ......................................................11 8.2.4. Children with disabilities (CRPD, article 7) ....................................................12 8.2.5. Accessibility (CRPD, article 9) .........................................................................12 8.2.6. Right to life (CRPD, article 10).........................................................................13 8.2.7. Recognition before the law, legal capacity and decision-making (CRPD, article 12) ..........................................................................................................13 8.2.8. Access to justice (CRPD, article 13) .................................................................14 8.2.9. Liberty and security of the person (CRPD, article 14) .....................................15 8.2.10. Freedom from torture or cruel, inhuman or degrading treatment or punishment (CRPD, article 15); Freedom from exploitation, violence and abuse (CRPD, article 16); Protecting the integrity of the person (CRPD, article 17) ..........................................................................................................16 8.2.11. Liberty of movement and nationality (CRPD, article 18) ................................16 Issues and obstacles in harmonizing the domestic legislative measures with the CRPD, including the requirements under articles 4 (1)(a) and 4(1)(b).......................... 18 National bodies to monitor the implementation of the CRPD ....................................... 18 Recommendation for actions for harmonization of domestic laws with the CRPD ... 19 References .............................................................................................................................. 19

8.2.

8.3. 8.4. 8.5. 8.6.

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ABBREVIATIONS ATMs CRPD Magna Carta NCCDP NCDA NCWDP Automated Teller Machines Convention on the Rights of Persons with Disabilities Magna Carta for Persons with Disabilities National Commission Concerning Disabled Persons National Council on Disability Affairs National Council for the Welfare of Disabled Persons

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8.1.

Overview of the domestic legislative framework on disability in the Philippines

1. The Philippine legal system is influenced primarily by the Spanish and American legal systems. This is because the Philippines were under Spanish and American colonial rule for more than 300 years. The Philippine laws such as those regarding family relations and obligations, contracts and succession, including the Civil Code, are substantially patterned after the civil code of Spain. On the other hand, public law, notably constitutional law, administrative law and the law concerning public offices, among others, are based to a great extent on American legal traditions. 8.1.1. The 1987 Philippine Constitution

2. The 1987 Constitution contains provisions which protect the voting right of persons with disabilities as follows: “The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot” (Philippines 1987, article 5, section 2(a)). 3. The Constitution also provides for sectoral representation in the House of Representatives, through a party list system either by selection or election from various sectors. Specifically, it states that: (1) “The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations; (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector” (Philippines 1987, article 6, section 5). 4. During the time of President Aquino, persons with disabilities were considered to be included in the “other sectors” mentioned by the law and the sector of persons with disabilities was represented in the House of Representatives. 5. The Republic Act No. 7941 further provides that “the State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and

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6. The Constitution also mandates the State, through the National Government, to provide and adopt an integrated and comprehensive approach to health development and endeavor to make essential goods, health and other social services available to all people at affordable cost. It provides that “there shall be priority for the needs of the under-privileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers” (Philippines 1987, article 13, section 11). 7. In addition, the Constitution further states that the State shall establish a special agency for persons with disabilities for their rehabilitation, self-development and selfreliance and their integration into the mainstream of society (ibid., article 13, section 13). 8. Furthermore, the Constitution emphasizes that all Filipino children shall have access to quality education. In fact, it compels all parents to send their children to elementary education. It means that elementary education for all children is compulsory and public elementary education is free from any tuition fees, without sacrificing the quality of education offered. The Constitution also provides adult citizens, persons with disabilities and out-of-school youth with training in civics, vocational efficiency and other skills (Philippines 1987). 8.1.2. The Magna Carta for Persons with Disabilities

9. In 1992, the then National Council for the Welfare of Disabled Persons (NCWDP) advocated for the passage of rights-based legislation and for an anti-discrimination measure known as the “Magna Carta for Persons with Disabilities” (Philippines 1992) (Magna Carta). This law grants persons with disabilities access to: (1) Suitable employment training and livelihood including vocational counselling and rehabilitation; (2) Quality education from the elementary, secondary, tertiary and post graduate education with the provision for financial assistance to deserving students; (3) Comprehensive health services to include training of medical and paramedical personnel in providing for the health needs of persons with disabilities such as provisions and manufacturing of orthotic and prosthetic appliances and other mobility aides or assistive devices; and (4) Provisions of auxiliary social services which include substitute family care for abandoned and neglected persons with disabilities, family counselling and acquisition of assistive devices through local government units. 10. The law further requires that all television media provide inset and subtitling features in public affairs programme covering significant events of public importance. A barrier free physical environment is also promoted. For example, persons with disabilities are to be allowed to drive motor vehicles customized to their needs, supplementing Batas Pambansa Bilang 344, or the Accessibility Law. 11. The Magna Carta also protects the right of persons with disabilities to vote by requiring the Government to provide accessible polling precincts and authorizing nearest of

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12. Further, the rights of persons with disabilities to organize and to form associations not contrary to law, as well as the right to assemble peaceably and to petition the Government for redress of grievances are protected under this law. In addition, the Magna Carta for Persons with Disabilities requires that children with disabilities shall be admitted by all educational institutions and refusal to admit them constitutes a violation of the law (Philippines 1992). The rest of the provisions include anti-discrimination in the area of employment, medical examination, transportation and public accommodation for access to goods and services. The Magna Carta also mandates the Government to ensure that housing and recreational facilities are accessible and available to persons with disabilities. 13. On April 30, 2007, Republic Act No. 9442, an Act amending Republic Act No. 7277, was signed into law by President Gloria Macapagal-Arroyo. The title of the Republic Act No. 7277 was amended to read as the "Magna Carta for Persons with Disability", and all references in the original law to "disabled persons" were likewise amended to read as "persons with disability"(Philippines 2007, section 4). The law also provides for penalties for vilifying and subjecting a person to public ridicule on account of disability, stating: “No individual, group or community shall execute any of these acts of ridicule against persons with disability in any time and place which could intimidate or result in loss of self-esteem of the latter”(ibid., section 2). It adds that: “Any individual, group or community is hereby prohibited from vilifying any person with disability which could result into loss of selfesteem of the latter”(ibid.) This law provides persons with disabilities the privileges of 20 per cent discount on all purchases of basic services. These include medicine and also a 5 per cent discount on the purchase of basic necessities and commodities. 8.1.3. Other legislation on disability in the Philippines

14. Since 1981, when the United Nations declared the International Year of Disabled Persons, the Philippine Government has opened up a wider range of negotiations of opportunities for persons with disabilities. 15. The National Commission Concerning Disabled Persons (NCCDP), established by former President Ferdinand Marcos under the Office of the President by Presidential Decree No. 1509, coordinates and integrates all programmes of the Government, including those related to non-governmental activities, to address effectively the needs of persons with disabilities. Significantly, the Presidential decree includes the following passage, expressing its full support of an ECOSOC resolution on persons with disabilities and establishing the NCCDP. “Declaration of Policy. The Government of the Republic of the Philippines hereby declares its full acceptance and support for the United Nations Economic and Social Council Resolution on May 6, 1975, particularly the following portion: ‘BELIEVING that the problem of disability is an appreciable component of the economic and social

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condition of every country and, consequently, that programs to prevent disability and to rehabilitate the disabled are an essential part of comprehensive plans for economic and social development, responsibility for which must be assumed by Governments working, as appropriate, with non-governmental organization” (Philippines 1978, section 1). "Creation of the National Commission Concerning Disabled Persons. There is hereby created a National Commission, hereinafter referred to as the ‘Commission’, which shall be under the supervision and control of the Office of the President of the Philippines” (ibid., section 2). “Powers and Functions of the Commission. (a) To monitor and evaluate all projects, programs and activities pertaining to the welfare of the handicapped and to take appropriate steps to insure that they comply with established priorities, standards and guidelines”(ibid., section 4). 16. The programmes for persons with disabilities are under the jurisdiction of various Government agencies. The Department of Social Welfare and Development is responsible for vocational training, rehabilitation including counselling and other social services. The Department of Education is responsible for special education at the elementary and high school level. Accessible transportation is under the Department of Transportation and Communication. The Department of Public Works and Highways, together with the Building Officials in the Local Government Units nationwide is responsible for making roads, buildings, parks, and other such infrastructure for the public use accessible. This is pursuant to Batas Pambansa Bilang 344 or the Accessibility Law (Philippines 1982a). The Commission on Higher Education is mandated under the Magna Carta to ensure universities and colleges provide persons with disabilities with access to the higher education level (Philippines 1992). This includes scholarships, accessible facilities and such other reasonable accommodation. 17. The Department of Labor and Employment is responsible for providing persons with disabilities vocational training and suitable employment. The Magna Carta states “that Equal Opportunity for Employment —No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. Five percent of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons”(ibid., section 5). The law further states that “Vocational Rehabilitation — Consistent with the principle of equal opportunity for disabled workers and workers in general, the State shall take appropriate vocational rehabilitation measures that shall serve to develop the skills and potentials of disabled persons and enable them to compete favorably for available productive and remunerative employment opportunities in the labor market. The State shall also take measures to ensure the provision of vocational rehabilitation and livelihood services for disabled persons in the rural areas. In addition, it shall promote cooperation and coordination between the government and nongovernmental organizations and other private entities engaged in vocational rehabilitation activities. The Department of Social Welfare and Development shall design and implement-training programs that will provide disabled persons with vocational skills to enable them to engage in livelihood activities or obtain gainful employment. The Department of Labor and Employment shall likewise design and conduct training programs geared towards providing disabled persons with skills for livelihood” (ibid., section 9).

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18. The National Council on Disability Affairs (NCDA), under Executive Order No. 709 is the focal agency that co-ordinates all these programmes for persons with disabilities in the above-mentioned national Government agencies (Philippines 2008). The purpose is to ensure maximization of existing limited resources and to avoid red tape and duplication of services. In other words, the Government is approaching the needs of the people on a sectoral basis. Under the existing legislation, persons with disabilities are treated as belonging to one special sector. For example, there are laws protecting women, children, older people, the urban poor, indigenous people, peasant farmers and fisher folk. Similarly, for this study the laws that protect persons with disabilities as a sector or as a distinct group of people in Philippine society are presented. 19. The NCCDP, which became the NCWDP under the Aquino administration and which was last renamed as the NCDA in the Arroyo administration in 2008, is the Government arm which focuses on policy plan formulation, research and data collection, advocacy, monitoring and evaluation of programmes and services relating to persons with disabilities. 20. In 1982, the then NCCDP contributed to the passage of the Accessibility Law, mandating all Government and non-government establishments for the public use to provide accessible facilities, to enhance the mobility of Filipinos with disabilities and to move towards a barrier free physical environment (Philippines 1982a). 21. In 1989, the then NCWDP pushed for the passage of Republic Act No. 6759, a law declaring August 1 of each year as the “White Cane Safety Day”. This is an awareness raising measure to provide the public with an understanding of the proper way to assist persons with visual impairments in their day-to-day mobility using white canes (Philippines 1989). 22. The legislation listed were the Government’s response to approaching the needs of persons with disabilities, as a group. Now having ratified the Convention on the Rights of Persons with Disabilities (CRPD), the above laws, together with the Philippines Constitution, will be the fundamental foundation of the Government’s initiatives to harmonize domestic laws with the CRPD. 8.2. Assessment of the domestic legislative framework on disability in light of the harmonization with the CRPD 8.2.1. Definition

23. The Magna Carta defines ”persons with disabilities” as “those suffering from restriction or different abilities as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being”(Philippines 1992, section 4(a)). Disability is to mean “1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical functions of an individual or activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment”(ibid., section 4(b)). 24. Clearly, this definition includes mental and intellectual disability, other than physical and sensory disability because the restrictions suffered by the individual in his/her activities can be the result of mental or physical impairment. For example, a person with impaired psychosocial functioning whether due to biologically drawn disorders or to accidents may

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25. However, the definition does not include the relationship of the individual’s ability to perform an activity and its interaction in the environment. The limitation in the performance of an activity in the definition is confined merely to a limitation as a result of an impairment, which is medical in nature and does not include physical and attitudinal barriers. The legislation does intend to have a social model definition of the concepts of disability as expressed in the declaration of policy, “to facilitate integration of disabled persons into the mainstream of society, the State shall advocate for and encourage respect for disabled persons. The State shall exert all efforts to remove all social, cultural, economic, environmental and attitudinal barriers that are prejudicial to disabled persons”(ibid., section 2(e)). However, this policy objective is not reflected in the definition. 26. Under the Philippines legislation, the English words “handicap” and “disabled person” are used interchangeably. For example, the Labor Code of the Philippines defines “handicapped workers” as “those whose earning capacity is impaired by age or physical or mental deficiency or injury” (Philippines 1974a, article 78). Alternatively, “disability” is defined by the Republic Act No. 8291, the law that governs the welfare benefits of Government workers, as follows “Any loss or impairment of the normal functions of the physical and/or mental faculty of a member which reduced or eliminates his/her capacity with his/her current gainful occupation or engage in any other gainful occupation”(Philippines 1997b). “Handicap” and “disability” under these legislation are perceived as the result of impairment that reduces the individual capacity to earn or to engage in gainful employment. Therefore, these are compatible with the definition under the Magna Carta. 8.2.2. Equality and non-discrimination (CRPD, article 5)

27. The Magna Carta explicitly prohibits discrimination on the grounds of disability in (1) employment (Philippines 1992, section 32), (2) transportation (ibid., section 34) and (3) use of public accommodations and services (ibid., section 36). However, the legal remedy for violation of these provisions is not well defined. There is only one case (Philippines 1999b) that reached the Supreme Court since 1992 that deals with the violations of this law, pertaining to illegal dismissal and to payments of appropriate minimum wages. 28. Meanwhile, with reference to specific measures to achieve de facto equality, Republic Act No. 9442 grants 20 per cent discount to persons with disabilities in the purchase of goods and services such as: hotel accommodation, food and beverages served by restaurants and other foods centres, recreation and amusement such as theatres, entertainment houses, and other similar establishments, dental and medical services and land, sea and air transportation fares. In addition, there is also a discount on the purchase of medicines, whether branded or generic as well as a 5 per cent discount on basic foods and commodities sold in various grocery stores nationwide (Philippines 2007a). The law is an attempt to assure persons with disabilities that they will have access to basic services at an affordable cost. Under the law, educational assistance to persons with disabilities is also a part of the programme. This is in addition to other scholarship programmes established by other laws that include persons with disabilities in pursuit of tertiary and post graduate education. 29. Various circulars were also issued by different Government agencies to ensure compliance with the accessibility law by providing the minimum requirements for accessible

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30. The Magna Carta also introduced the concept of reasonable accommodation to enhance participation and integration of persons with disabilities into the mainstream of society. “Reasonable Accommodation” is to include “(1) Improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons; and (2) Modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provision of auxiliary aids and services, and other similar accommodations for disabled persons”(Philippines 1992, section 4(h)). 31. This concept of reasonable accommodation has, however, not been imbedded as an underlying principle in the implementation of the law concerning discrimination on account of disability. In fact, the law did not include denial of reasonable accommodation as a part of discrimination on disability. Furthermore, “disproportionate burden” as a concept is not well defined in the law; consequently there is no realization in the implementation to the point that reasonable accommodation has never been understood even by the Government officials engaged in the programmes and services for persons with disabilities. 8.2.3. Women with disabilities (CRPD, article 6)

32. The Philippine Constitution recognizes the role of women in nation building and it ensures the fundamental equality before the law of women and men (Philippines 1987, article 2, section 14). However, this remains a principle that is yet to be realized by women with disabilities in this country, especially those in rural areas. Women with disabilities still do not have the freedom of choice to decide for themselves. For example, girls with disabilities in the barrios have less opportunity to go to school for elementary education than boys with disabilities because of the over-protectiveness of their parents, mobility problems and the community’s attitude towards women and girls in general. Filipino families in rural areas have a tradition of protecting women from outside abuse, resulting in their confinement at home. This tradition works in most cases as a disadvantage rather than a benefit for women with disabilities. They often cannot go to school or to other places by themselves. This is especially so if the family situation makes it difficult to provide women with disabilities with a companion. As a consequence, they have no choice but to stay at home. This marginalizes women with disabilities more than men with disabilities.

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33. In order to address women with disabilities in difficult situations, the Government has engaged in various programmes and several advocacy measures. The Department of Education has a non-formal and distance education programme. They identify children with disabilities through personal visits of their itinerant teachers in the barrio to be part of the programme (Philippines 1982b). Further, NCDA is advocating for Community-Based Rehabilitation to be adopted as a nationwide strategy of local government units, in order to facilitate the inclusion of women with disabilities into mainstream society and the removal of all types of barriers that hinder full participation of persons with disabilities. (Philippines 2005). 8.2.4. Children with disabilities (CRPD, article 7)

34. The Child and Youth Welfare Code requires that: “All children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors”(Philippines 1974b, article 3) The law includes disability as one of the factors. The law also has a chapter on children with disabilities. However, it requires amendments especially in relation to the definition of disability, as well as in the classification of the different types of disability including the language used to describe persons with disabilities. The language used in this law is no longer consistent with the evolving concept of disability. 35. The rights of the child, enumerated under article 3 of this Code, such as the right to education and the right to protection against exploitation are consistent with the principles of the CRPD. However, with respect to the programms and services for children with disabilities provided by the law, there is still the concept of segregation and institutionalization and not inclusion. The law mandates special classes for children with disabilities, separate from other children, especially in public schools. “Where needs warrant, there shall be at least special classes in every province, and, if possible, special schools for the physically handicapped, the mentally retarded, the emotionally disturbed, and the specially gifted. The private sector shall be given all the necessary inducement and encouragement to establish such classes or schools”(ibid., article 74). Further, most children with disabilities in rural areas are taken to institutions which the law encourages to be built, rather than being allowed to live in the community. 8.2.5. Accessibility (CRPD, article 9)

36. The Accessibility Law states that: “In order to promote the realization of the rights of disabled persons to participate fully in the social life and the development of the societies in which they live and enjoyment of the opportunities available to other citizens, no license or permit for the construction, repair or renovation of public and private buildings for public use, educational institutions, airports, sports and recreation centers and complexes, shopping centers or establishments, public parking places, work-places and public utilities, shall be granted or issued unless the owner or operator thereof shall install and incorporate in such building, establishment, institution or public utility, such architectural facilities or structural features as shall reasonably enhance the mobility of disabled persons such as sidewalks, ramps, railings and the like. If feasible, all such existing buildings, institutions, establishments, or public utilities may be renovated or altered to enable the disabled persons to have access to them”(Philippines 1982a, section 1). The law further requires that: “In the case of public conveyance, devices such as the prominent display of posters or stickers shall be used to generate public awareness of the rights of the disabled and foster understanding of their special needs. Special bus stops shall be designed for disabled persons.

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37. In this Accessibility Law, there are provisions for persons using a wheelchair or crutches, as well as persons with visual or hearing impairments. However, there are no facilities specifically addressing the needs of persons with intellectual disabilities, such as ramps, signage, designated parking areas, accessible toilets and non-skid floorings of walkways and comfort rooms as the minimum requirements for buildings and private establishments for public use. 38. The implementing rules and regulations of this law specify the type of requirements of accessibility for persons with hearing and visual impairments. For example, emergency signal lights should be provided for persons with hearing impairments, while an audio system or an alarm, in case of emergency is a requirement for persons with visual impairments. Instances of non-compliance are penalized either by imprisonment or payment of fines or both and some administrative penalties are also imposed such as revocation of licenses in the case of architects and engineers, or cancellation of business permits in the case of business establishments. 39. In terms of accessibility to information, the Philippine Constitution recognizes the significance of information. It provides that: “The State recognizes the vital role of communication and information in nation-building” (Philippines 1987, article 2, section 24). This provision of the Constitution is the basis for persons with disabilities to demand the Government and business establishments to provide assistive technology, to enhance information dissemination to benefit persons with disabilities. For example, in the train systems particularly the Light Rail Transit and the Metro Rail Transit, which are in the upper ground level, people with visual impairments are demanding audio systems and large screen monitors so that they can easily identify the stations. 8.2.6. Right to life (CRPD, article 10)

40. The Philippine Constitution does not distinguish between groups or classes of people or where the individual belongs in society with regard to protection of life, liberty and property. The fundamental law provides protection to the right to life of all citizens regardless of class distinctions: “The State values the dignity of every human person and guarantees full respect for human rights” (ibid., article 2, section 11). Further, it provides that “the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception”(ibid., article 2, section 12). In addition, the Constitution provides that: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws”(ibid., article 3, section 1). This provision ensures all Filipino citizens protection of his/her right to life regardless of being with disabilities or without disabilities. Under Philippine Law abortion is a criminal offence. 8.2.7. Recognition before the law, legal capacity and decision-making (CRPD, article 12)

41. Under the Civil Code, not all types of persons with disabilities can exercise capacity to act on an equal basis with others. For example, persons with “insanity” and with “imbecility” and in the state of being “deaf-mute” are restricted from exercising full capacity

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42. With respect to financial transactions and property rights, the laws allow the appointment of a guardian to ensure that the best interest of persons with disabilities is protected. The Civil Code provides that: “In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection”(ibid., article 24). In Article 1327 of the Civil Code of the Philippines, it further provides that “the following cannot give consent to a contract: (1) Unemancipated minors, (2) Insane or demented persons, and deaf-mutes who do not know how to write”(ibid., article 1327). In addition, the Code provides that: “Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval”(ibid., article 1048). 43. The language used in the Civil Code, such as “demented persons” and “deaf-mutes” are descriptions of the types of disabilities which are not consistent with the CRPD. Also, legal capacity under the Civil Code of persons with disabilities is determined by whether or not the individual has a level of education. For example, the Civil Code provides that a “deaf-mute” or individual with hearing impairments who knows how to read and write has the right to enter into a contract or give their consent to a contract, in contrast with “deaf– mute” who do not know how to read and write and who can only act through an agent (ibid., article 1048). It does not consider the individual’s capacity to understand documents if they are explained to him/her by somebody else. There is no opportunity for persons with disabilities who do not know how to read and write to gain equal recognition before the law as other persons. Therefore, under this context, there is a need that the Civil Code be amended to be harmonized with article 12 of the CRPD. 8.2.8. Access to justice (CRPD, article 13)

44. Persons with disabilities in the judicial system are also given equal rights with others under existing legislation. However, what hinders them to access to justice in a swift manner is the limited support mechanism in the judicial system to pauper litigants. Persons with disabilities are mostly considered to be pauper litigants. This is because a large percentage of persons with disabilities are poor and can hardly meet their daily subsistence costs. This is the case especially for those living in rural areas. They find it difficult to go to courts because of the transportation barriers and they do not have the financial resources for their fares, food and accommodation, since most courts are situated in urban areas. In addition, most of the courts have no accessible facilities to assist individuals with disabilities seeking justice, despite the issuance of Philippine Supreme Court Circular No. 46-95 requiring that: “Judges should take the proper measures to fully realize the policy set forth in the Accessibility Law or the B.P. 344 with the view of providing disabled persons convenient access to courtrooms holding sessions, if absolutely necessary, on the ground floor or court houses” (Philippines 1995a).
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In reality, most voters with disabilities cannot participate in any election even if they are of “sound mind” because of physical, environmental and attitudinal barriers.

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45. All persons with disabilities in the Philippines are allowed to participate in every phase of the judicial process. However, persons with certain types of disability are deemed to lack legal authority to undertake certain activities by prohibitive legislation. For example a person with visual or hearing impairments can execute a will as long as they are of sound mind but they cannot be a witness to the execution of a will (Philippines 1959, articles 820 and 798). Also, a person with intellectual disability cannot make a will (ibid.). 46. According to a resolution of the Philippine Supreme Court, persons with hearing impairments are now given sign language interpreters to assist them in their cases (Philippines 2004). Unfortunately, there is no national standardized sign language in the Philippines which could facilitate the testimonies by persons with hearing impairments. As a consequence, sign language interpretation is always a subject of disagreement between opposing parties in the courts whenever persons with hearing impairments are involved in cases. 47. Individuals with visual impairments are often aided by live assistance such as readers. There is no Supreme Court Circular that would require courts to provide live assistance, or other sources of information in alternative formats to help individuals with visual impairments in their court cases. The Magna Carta provides that: “The court may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this Act: (a) granting temporary, preliminary or permanent relief; (b) providing an auxiliary aid or service, modification of policy, practice or procedure, or alternative method; and (c) making facilities readily accessible to and usable by individuals with disabilities”(Philippines 1992, section 45). However, despite the foregoing mandate, especially, letters (b) and (c), referring to auxiliary aids and services as well as making facilities readily accessible and usable, these services are not readily available in the judicial system. Therefore, there is a need to amend Section 45, letter (b) and (c) of the Magna Carta, to ensure access to justice for persons with disabilities, within the scope of the CRPD. 8.2.9. Liberty and security of the person (CRPD, article 14)

48. Philippines law, primarily the Constitution under the Bill of Rights, ensures protection to all citizens from the deprivation of liberty, without due process of law. The Constitution provides that: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws”(Philippines 1987, article 3, section 1). This protection applies also to all citizens with disabilities. There is no law that would warrant the deprivation of liberty of a person on account of disability. It is also a declared policy that no person should be confined in a hospital or in an asylum or be subjected to medical examination without his/her consent. In fact, there is a need for a court order to subject any litigant involved in a case to physical and mental examinations. The Rules of Court of the Philippines provide that: “The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made”(Philippines 1964, rule 28, section 2). Deprivation of liberty or confinement in a hospital or asylum is allowable only when there is a danger or threat to public order or upon a lawful order of the court.

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8.2.10. Freedom from torture or cruel, inhuman or degrading treatment or punishment (CRPD, article 15); Freedom from exploitation, violence and abuse (CRPD, article 16); Protecting the integrity of the person (CRPD, article 17) 49. Philippines law does not allow torture. The Constitution provides that: “No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used…. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited”(Philippines 1987, article 3, section 12(2)). However, there is no mechanism of facilities and programmes to monitor the situations or conditions of persons with disabilities who are in jail, mental hospitals, asylums and other similar institutions. 8.2.11. Liberty of movement and nationality (CRPD, article 18) 50. The Constitution provides that: “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law”(ibid., article 3, section 6). In addition, there is no law prohibiting people with disabilities acquiring nationality or taking up residency in the country, as long as the person applying meets all the qualification requirements. 8.2.12. Living independently and being included in the community (CRPD, article 19) 51. Congress enacted the Accessibility Law to make the physical environment accessible in order to enable persons with disabilities to live as freely and independently as possible in the community. The Magna Carta also declares: “Disabled persons are part of Philippine society, thus the State shall give full support to the improvement of the total well being of disabled persons and their integration into the mainstream of society. Toward this end, that State shall adopt policies ensuring the rehabilitation, self-development and self-reliance of disabled persons. It shall develop their skills and potentials to enable them to compete favorably for available opportunities”(Philippines 1992, section 2(a)). Further, it is stated that “Disabled persons shall have the same rights as other people to take their proper place in society. They should be able to live freely and as independently as possible. This must be the concern of everyone – the family, community, and all government and non-government organizations. Disabled person’s rights must never be perceived as welfare services by the government” (ibid., section 2(b)). 8.2.13. Personal mobility (CRPD, article 20) 52. With respect to personal mobility, the Magna Carta provides that: “The State shall ensure that marginalized persons are provided with the necessary auxiliary services that will restore their social functioning and participation in community affairs. Toward this end, the Department of Social Welfare and Development shall develop and implement programs on auxiliary social services that respond to the needs of marginalized disabled persons”(ibid., section 21).

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8.2.14. Freedom of expression and opinion, and access to information (CRPD, article 21) 53. The section of the Constitution concerned with Freedom of Expression stipulates that: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances”(Philippines 1987, article 3, section 4). Further, the Magna Carta provides that: “Television stations shall be encouraged to provide a sign language inset or subtitles in at least one newscast program a day and special programs covering events of national significance”(Philippines 1992, section 22). Unfortunately, persons with disabilities can hardly access information because there is no law requiring all public services to adopt an alternative and accessible types of information such as sign language, Braille, tactile communication, written and audio form communication. A national sign language has not been adopted in the school system for persons with hearing impairments. There is no available information in accessible format in the country that is free. 8.2.15. Respect for privacy (CRPD, article 22) 54. Privacy of communication is also enjoyed by persons with disabilities. This applies even for those living in rehabilitation institutions. This guarantee is enshrined in the Bill of Rights of the Philippine Constitution which provides that: “(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law; (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding"(Philippines 1987, article 3, section 3). The difficulty, however, is that the absence of available accessible alternative communication formats. Most people with disabilities still need the assistance of others for their communication requirements. 8.2.16. Health, education, habilitation and rehabilitation, employment and adequate standard of living and social protection 55. With reference to articles on the rights to health, education, habilitation and rehabilitation, employment and adequate standard of living and social protection of the CRPD, all are being addressed by existing legislation, particularly the Magna Carta. The only gap in the programme is the prioritization of the budget allocation of Government agencies. There are still many persons with disabilities who do not have access to basic services. The income security programme is only available to people with disabilities who have retired from work and who are members of the Social Security System and the Government Service Insurance System. These constitute only a small percentage of the population of persons with disabilities. 56. Persons with disabilities, whether rich or poor, are entitled to enjoy the benefit of having their own family life. They can marry and raise their own children in an atmosphere of fairness and equality with others under the relevant laws. Nevertheless, persons with intellectual disabilities have less opportunity for the exercise of this right, due to attitudinal and environmental barriers. 57. Forced labour is prohibited under the Constitution which provides that: “No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted”(ibid., article 3, section 18(2)).

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58. Persons with disabilities have also access to sports and cultural activities under legislation. However, because of economic, environmental and attitudinal barriers, they cannot fully participate in all Government programmes especially those in rural areas. There are not enough cultural materials that are readily available in accessible formats. Sports activities and facilities are limited to urban areas. 8.3. Issues and obstacles in harmonizing the domestic legislative measures with the CRPD, including the requirements under articles 4 (1)(a) and 4(1)(b) 8.3.1. Generalities of existing laws on disability resulting in ineffective implementation of programmes

59. The laws and the implementing rules are subject to various interpretations. This has implications on the outcome and implementation. For example, a total of 1 per cent of the budget of the National Government Agencies is supposed to be allocated to programmes for persons with disabilities and senior citizens. The sector of persons with disabilities believe that they can use the money for their projects, while the Government states that the 1 per cent of the budget is already incorporated in all their programmes relating to disability and senior citizens. This general concept of 1 per cent implementation is creating disunity between the sector of persons with disabilities and the Government, resulting in difficulties to obtain cooperation necessary for the harmonization of domestic law with the CRPD. 8.3.2. Affirmative action in the private sector that is not supported by the majority of persons with disabilities

60. This issue can be explained in the case of establishing high levels of assistive technologies. For example, there is a Senate Bill for Automated Teller Machines (ATMs) for visually impaired people (Tieng 2008). At present, it is not gaining much support because there are few persons with visual impairments who are using ATMs. Further, the statistical data relevant to the banking sector’s decision to purchase ATMs with accessible devices for persons with visual impairments does not exist. Harmonization of the legislation relevant to technological requirements with the CRPD appears difficult unless the economic power of persons with disabilities is quantitatively recognized in society. 8.3.3. Absence of a strong lobby group from the disability sector 61. It is estimated by the NCDA that there are around 400 self-help groups of persons with disabilities in the country. However, 90 per cent of the self-help groups have no stable source of funding support, neither from the Government nor from the private sector. The reason could be that the self-help groups have no continued leadership training programme to ensure the emergence of qualified leaders with disabilities. Most leaders with disabilities, especially in rural areas, have no skills for sourcing funds and for organizational development, so much so that most of them are focused only on their self-security. Therefore, a weak sector of persons with disabilities cannot lobby to gain support from the Government officials and to achieve harmonization of the domestic laws with the CRPD. 8.4. National bodies to monitor the implementation of the CRPD

62. A number of national bodies are mandated to monitor the implementation of the CRPD. President Arroyo issued Administrative Order No. 163 to strengthen the function of the Presidential Human Rights Committee (PHRC), including formulation of the Human Rights Action Plan for the Eight Core Human Rights Treaties ratified or to be ratified by the

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63. Further, the Commission on Human Rights is to conduct education campaigns and recommend harmonization of domestic laws with the CRPD to Congress. The Commission on Human Rights is also to monitor the Government’s compliance with the international treaty obligations on human rights. Finally, the NCDA is to serve as a national working body to promote and monitor implementation of national laws and international commitments. 8.5.  Recommendation for actions for harmonization of domestic laws with the CRPD The Human Rights Agenda for the National Human Rights Action Plan and Programme should be revised to adequately reflect the CRPD. New and specific legislation should be enacted to address the gap in the provision of services as well as the facilities available in society to be supported by national and local government agencies. The Accessibility Law and the Magna Carta should be reviewed as soon as possible to respond to the growing demand for equality of persons with disabilities to achieve integration into the mainstream of society and to guarantee programmes adhere to inclusive development and are appropriately funded. Specifically, the Accessibility Law should be amended to include facilities for people with intellectual disabilities. References

8.6.

Defensor-Santiago, Miriam (2008). House Bill No. 4217, An Act Making Automated Teller Machines Accessible to the Visually Impaired (Senate of the Philippines). Philippines (1949). Republic Act No. 386, the Civil Code of the Philippines, An Act to Obtain and Institute the Civil Code of the Philippines, 18 June, accessed from www.chanrobles.com/civilcodeofthephilippines.htm#REPUBLIC%20ACT%20NO.%20386 on 2 February 2010. __________ (1964). Rules of Court, Supreme Court, 1 January, accessed from http://sc.judiciary.gov.ph/court%20issuances/rules/index.php on 2 February 2010. __________ (1974a). Presidential Decree No. 442, As Amended, A Decree Instituting a Labor Code Thereby Revising and Consolidating Labor and Social Laws to Afford Protection to Labor, Promote Employment and Human Resources Development and Insure Industrial Peace Based on Social Justice, accessed from www.dole.gov.ph/labor_codes.php?id=35 on 2 February 2010. __________ (1974b). Presidential Decree No. 603, the Child and Youth Welfare Code, 10 December, accessed from www.chanrobles.com/childandyouthwelfarecodeofthephilippines.htm on 2 February 2010.

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__________ (1978). Presidential Decree No. 1509, Creating the National Commission Concerning Disabled Persons and for Other Purposes, accessed from www.lawphil.net/statutes/presdecs/pd1978/pd_1509_1978.html on 1 February 2010. __________ (1982a). Batas Pambansa Bilang 344 or the Accessibility Law, An Act to Enhance the Mobility of Disabled Persons by Requiring Certain Buildings, Institutions, Establishments and Public Utilities to Install Facilities and Other Devices, accessed from www.architectureboard.ph/uploads/1212969359-BP344%20(1983).pdf on 2 February 2010. __________ (1982b). Batas Pambansa Bilang 232, "Education Act of 1982", An Act Providing for the Establishment and Maintenance of an Integrated System of Education. __________ (1987). Constitutions of the Republic of the Philippines. __________ (1989). Republic Act No. 6759, An Act Declaring August One of Each Year as “White Cane Safety Day in the Philippines” and for Other Purposes. __________ (1992). Republic Act No. 7277, "Magna Carta for Disabled Persons", An Act Providing for the Rehabilitation Self-Development and Self-Reliance of Disabled Persons and their Integration into the Mainstream of Society and for Other Purposes, accessed from www.chanrobles.com/republicactno7277.htm on 2 February 2010. __________ (1995a). Philippine Supreme Court Circular No. 46-1995, Accessibility of Courtrooms to Disabled Persons, 18 September. __________ (1995b). Republic Act No. 7941, An Act Providing for the Election of Party-List Representatives through the Party-List System, and Appropriating Funds Therefore. __________ (1997a). Republic Act No. 8293, An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for Other Purposes. __________ (1997b). Republic Act No. 8291, “The Government Service Insurance System of 1997”, An Act Amending Presidential Decree No. 1146, As Amended, Expanding and Increasing the Coverage and Benefits of the Government Service Insurance System, Instituting Reforms Therein and for Other Purposes. __________ (1999a). Administrative Order No. 101, Directing the Department of Public Works and Highways, the Department of Education, Culture and Sports, and the Commission on Higher Education to Provide for Architectural Facilities or Structural Features for Disabled Persons in all State Colleges, Universities and other Public Buildings. __________ (1999b). Marites Bernardo, et al. vs. National Labor Relations Commission and Far East Bank and Trust Company-G.R. No. 122917, July 12, Supreme Court. __________ (2004). Philippine Supreme Court Memorandum Order No. 59-2004, Authorizing the Court Administrator to Act on and Approve Requests of Lower Courts for the Hiring of Sign Language Interpreters, 10 September.

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__________ (2005). Executive Order No. 437, Encouraging the Implementation of Community-Based Rehabilitation (CBR) for Persons with Disabilities in the Philippines. __________ (2006). Administrative Order No. 163, Strengthening and Increasing the Membership of the Presidential Human Rights Committee, and Expanding Further the Functions of said Committee, December 8. __________ (2007a). Republic Act No. 9442, An Act Amending Republic Act No. 7277, Otherwise Known as the “Magna Carta for Disabled Persons, and for Other Purposes”, 24 July, accessed from www.ops.gov.ph/records/ra_no9442.htm on 2 February 2010. __________ (2007b). Executive Order No. 676, Transferring the National Council for the Welfare of Disabled Persons (NCWDP) from the Department of Social Welfare and Development (DSWD) to the Office of the President. __________ (2008). Executive Order No. 709, Redefining the Functions and Organizational Structure of the National Council for the Welfare of Disabled Persons Which is Renamed as the National Council on Disability Affairs and Attached to the Office of the President, and Amending for the Executive Order No. 676 (2007) and Executive Order No. 232 (1987). Tieng, William Erwin C. (2008). Senate Bill No. 2664, An Act Granting Exemptions from Securing Permission from the Publisher or Copyright Owner of Printed Materials to Reproduce the Same in a Specialized Format for the Exclusive Use of Blind or Visually Impaired Individuals, Amending for this Purpose Section 185 of Republic Act No. 8293, Otherwise Known as the “Intellectual Property Code of the Philippines”, and for Other Purposes (House of Representatives, Philippines).

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