Countries at the Crossroads 2005 - Philippines

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Author

Gabriella R. Montinola is associate professor of political science at the University of California, Davis. Her current research interests center on the quality of democratic governance in developing countries. She has written several articles on the causes of corruption and the conditions that promote the rule of law in the Philippines.

In May 2004, the Philippines held its third set of general elections since the restoration of democracy in 1986. The exercise demonstrated the progress the country has made in terms of ensuring democratic accountability. Voter turnout was relatively high; a multitude of parties contested elections; hundreds of thousands of volunteers monitored the polls on election day, and the public accepted the results with few objections. However, the conduct of elections also highlighted a number of issues that need to be addressed if citizens are to be fully represented through the electoral process. First, the continued absence of coherent party platforms makes it difficult for voters to determine what various parties represent and thus precludes meaningful electoral choice. Second, current campaign finance laws perpetuate the undue influence of economically privileged interests. Finally, the institution charged with the administration of elections, the commission on elections, is too weak to ensure the integrity of the electoral process.

These persistent weaknesses in the electoral process limit voters' ability to hold elected officials accountable and have implications for the government's performance in other respects. One serious implication is the persistence of corruption at almost every level of government. While successive administrations have taken steps to reduce opportunities for corruption since 1986, these have not been sufficient to control corruption, largely because elected officials have not shown sufficient political will to enforce anticorruption laws. Like previous administrations, the current government has introduced a number of anticorruption initiatives. Although many of them provide grounds for optimism, it is too early to evaluate their impact.

The picture in terms of civil liberties is similarly mixed. On the one hand, the government has taken legal steps to ensure that citizens enjoy the rights protected in the 1987 constitution. On the other hand, many of these constitutional and legal provisions have not been fully implemented. Hence, while the constitution guarantees citizens due process and protection from torture, cases of arbitrary arrest, disappearances, and torture of suspected insurgents and their sympathizers persist. Similarly, while citizens are free to join groups and mobilize for peaceful protests, government forces do not always exercise restraint when dispersing demonstrators. This civil rights record suggests that the government does not have adequate control of its security forces. Notably, the performance of security forces in protecting citizens from each other is also lacking. While violent crime has been decreasing since 1986, homicides, physical injury, theft, and rape occur with sufficient regularity to be of concern.

The government has enacted many laws promoting women's rights, and their presence in top government positions indicates that they have achieved some degree of equity. In contrast, minority groups, specifically Muslims and groups identified by the government as indigenous peoples, continue to perceive that their rights to land and economic opportunities are not respected. This perception underlies the current armed conflict between the government and Muslim insurgents and the recent clashes that have occurred between the government's security forces, on one hand, and indigenous peoples and their sympathizers on the other.

The Philippine judicial system is currently undergoing comprehensive reforms to increase its capacity to uphold the rule of law. The reforms are designed to enhance the judiciary's independence, efficiency, and impartiality. The judicial system shows signs of improvement in the former two goals. The Supreme Court recently demonstrated its independence by rendering high-impact rulings against the executive's interest; court delays have decreased slightly over the past five years. But it is still too early to determine whether the reforms will produce an impartial judicial system.

Lack of civilian control of the military is another obstacle to establishing the rule of law in the Philippines. In 2003, a group of junior officers and enlisted men attempted to overthrow the civilian government. While the rebels were eventually persuaded to return to the barracks peaceably, and the likelihood of a successful coup is extremely low given the record of rebellious military officers since 1986, such incidents are reminders of the weakness of the Philippine state. A state that is unable to resolve the grievances of the military and deter coup attempts once and for all is unlikely to be strong enough to uphold the rule of law.

Accountability and Public Voice – 4.46

The Philippines is a republic with a bicameral presidential system. As stipulated in the present constitution, which was adopted in 1987, the president and vice president are elected by popular vote for single six-year terms. Members of the upper house, the Senate, are also elected nationwide by popular vote. Members of the lower house, the House of Representatives are elected in two ways: 80 percent are elected by plurality vote from single-member districts, and the remainder are elected under a closed-list proportional representation system under party lists. However, no party is permitted to have more than three seats in the House under this system, so higher levels of support are not recognized.

President Gloria Macapagal-Arroyo was elected in May 2004 after having served out the remainder of Estrada's presidential term. Arroyo received 40 percent of the popular vote, a narrow victory over her closest contender. Arroyo's ruling party alliance currently holds 58 percent of seats in the Senate and 70 percent of seats in the House.

In the May 2004 elections, 74 percent of the more than 43 million registered voters went to the polls. The voters included over 230,000 overseas Filipino workers who, until the Overseas Absentee Voting Act was enacted in 2003, did not have the right to vote while out of the country.¹ The elections demonstrated the continued commitment of Filipinos to democracy. However, they also highlighted issues that need to be addressed if citizens are to be effectively represented through the electoral process.

One serious issue is the continuing weakness of Philippine political parties. Due in large part to electoral rules that encourage personality politics and the three-seat maximum for parties running under the party-list system, a dizzying array of parties contests elections in the Philippines. As in previous elections, the 2004 contest revolved around personalities rather than ideological platforms. Campaign rallies provided little information on parties' or candidates' policy positions. The absence of coherent platforms makes it difficult for voters to determine what various parties represent and thus precludes meaningful electoral choice.

A second issue concerns inequities in the financing of political parties and candidates. Although all parties and candidates have equal campaigning rights, the prohibitive cost of campaigns privileges wealthy candidates. The 1985 omnibus election code prohibits campaign contributions from specific individuals and entities, including financial institutions, public utility operators, government contractors, government civilian and military personnel, and foreigners and foreign corporations. But there are no limits on the size of contributions from individuals or entities not covered by the prohibition. Moreover, the code specifies limits on expenditures for election purposes, but enforcement of such limits is doubtful. Thus, economic elites continue to influence election results disproportionately.

A third issue concerns the weakness of the institution charged with administering elections: the commission on elections (COMELEC). The COMELEC's weakness was evident in its failure to fulfill three critical tasks. First, the COMELEC mishandled the automation of the country's voting system as specified in the Election Modernization Act of 1997. In May 2003, the COMELEC awarded the automation project to a technology firm without observing technical and legal requirements. The decision was challenged in court and ultimately nullified by the Supreme Court.² With no time to repeat the bidding process, the elections had to be held using the existing write-in ballot and manual vote-counting system. The manual system is extremely vulnerable to fraud, and as in previous elections, fraud was alleged during the tallying and shortly after the proclamation of the 2004 results. In the event, the electorate peaceably accepted the results, but only because nongovernmental organizations (NGOs) monitoring the elections expressed confidence in the results' validity.

Second, the COMELEC failed to ensure the accuracy and timely posting of voters' lists. The COMELEC received 1.2 billion pesos' (around US $21 million) worth of new technology to ensure that only those entitled to vote in the 2004 elections could do so. But on the eve of the elections, the COMELEC had not completed the voter validation process. The result was the disenfranchisement of voters whose names were missing from lists in precincts where they expected to vote. While this confusion did not result in "massive disenfranchisement," at least according to the officially designated nongovernment election-monitoring organization,³ it does raise concerns about the COMELEC's capacity to administer elections effectively.

Finally, the COMELEC failed in its obligation to ensure the security of candidates and voters during the election period. While police records show that there were fewer incidents of poll violence – 174 in 2004 as opposed to 267 in the previous general election – they also note that the number of deaths increased by 30 percent.⁴ Moreover, the insurgent National People's Army (NPA) was reportedly extorting permit-to-campaign fees in the areas that it controlled.⁵ While most election-related violence occurred in provincial towns or rural areas and may not have affected the results elsewhere, voters in areas where violence or the threat of violence existed were not free to make informed political choices and were thus effectively disenfranchised.

In sum, the country needs more programmatic parties, better enforcement of campaign finance regulations, and a more effective election monitoring commission if citizens are to be fully represented through the electoral process. That said, meaningful elections are only one component of democratic performance. It is also crucial that political actors be held accountable between elections. In this regard, the Philippines appears to have made considerable progress.

The Philippines' democratic accountability between elections is reinforced by the ability of each branch of government to check the abuses of power of the others. During the dictatorship of Ferdinand Marcos (1972-1986), neither the legislative nor the judicial branch could limit the power of the executive. Since then, both branches have demonstrated their ability to check the executive as well as each other. In December 2000, the legislature initiated impeachment proceedings against then-President Joseph Estrada for corruption, betrayal of the public trust, and culpable violation of the constitution. Twice in 2003 it initiated impeachment proceedings against the Supreme Court chief justice for misuse of funds under his control. None of these proceedings resulted in senate convictions. Ultimately, street demonstrations and the military's loss of confidence in Estrada compelled him to leave the presidential palace (see "Rule of Law"), while the proceedings against the chief justice were aborted. Nonetheless, the legislature's actions indicate that it has the capacity to expose and thereby limit abuse of power by other branches of government.

Another positive feature of the Philippines' democracy is its vibrant and politically engaged civil society. Civil society in the Philippines is strong largely for two reasons. First, the state does not subject NGOs and other civic organizations to onerous registration requirements, nor does the state harass donors and funders of these organizations. Second, since 1986 the government has not only tolerated input from civic groups but has actively incorporated civil society organizations into decision-making processes. The local government code adopted in 1991 mandates that representatives of accredited NGOs sit on local development councils and school boards. More recently, in 2003, the president signed into law a Government Procurement Act, which mandates that NGO and private-sector representatives sit on executive department bids and awards committees (BACs).⁶ With funding from the European Union, the government is starting to train volunteers from accredited civil society organizations to participate in these BACs. The increasing engagement of civil society in decision-making processes has promoted government accountability between elections.

Finally, democratic accountability in the Philippines is supported by active media. The media are free from direct state censorship. Allegations of corruption are given wide and extensive airing in news reports. Libel is considered a crime, but libel laws are not so onerous as to impede open criticism of state officials. State officials have reportedly attempted to control media content through informal contacts with journalists and editors, but these contacts appear not to have cowed the media.

This freedom of expression, however, is not as well protected by the state in rural areas as it is in the national capital region. Violence against journalists is not uncommon in provincial towns. Local government officials, local police, and military forces deployed in rural areas are often suspected of perpetrating this violence. In 2004 alone, 11 journalists were murdered after exposing government officials and security forces for corruption and other human rights violations.⁷ The Philippines ranks among the top five countries in terms of journalists killed in the line of duty between 1995 and 2004.⁸ To date, there have been few arrests and no convictions for crimes against journalists committed in past years.⁹ Such violence constitutes a form of indirect censorship and suggests that government officials are less accountable in the country's rural areas.

Recommendations

• The government should encourage the development of programmatic parties by increasing the proportion of party-list seats in the House of Representatives and eliminating the three-seat limit per party.
• The government should follow through on the automation of the vote-tallying process prior to the next elections.
• The government should hold political parties responsible for election-related violence committed by their party members, ensuring prompt investigation, prosecution, and punishment.
• A clear set of qualifications for COMELEC commissioners should be drawn up, and the appointment process for commissioners should be more transparent and open to the public.
• The government should respond promptly to summary executions of journalists and ensure appropriate prosecution and punishment of perpetrators.

Civil Liberties – 3.92

The Philippine constitution, which guarantees citizens extensive rights, was adopted in 1987. Since then, the government has taken additional legal steps to ensure that citizens enjoy these rights. While most Filipinos enjoy the rights in practice, constitutional and legal provisions are sometimes contravened in cases of suspected insurgents and their sympathizers, minority groups, and the poor due to the administration's weak control over the country's security forces.

The constitution guarantees protection against deprivation of liberty without due process and against torture. Indeed, as stipulated in the constitution, a Commission on Human Rights was created in 1987 with the power to investigate, on its own or upon complaint, violations of these protections as well as other civil and political rights. Yet arbitrary arrests, long-term detention without trial, and even torture persist, primarily in cases of suspected insurgents and their sympathizers.¹⁰ For example, in October 2003, a court ordered the release of 14 Muslim Filipinos who had been arrested in 2001 for sympathizing with a Muslim insurgent group. They had been illegally arrested; further, they alleged that they were tortured during detention. Yet no charges were filed against the alleged military perpetrators.¹¹ The case is not an aberration. From January to September 2004, 17 cases of torture involving 41 individuals were documented by the NGO Task Force Detainees of the Philippines (TFDP). In 2003, 20 cases were documented and the year before, 16.¹² These documented numbers are in all likelihood smaller than the actual incidence of torture. Legal impediments protect violators rather than victims. Torture victims must fulfill relatively strict evidentiary requirements in order to pursue their cases through the courts. Penalties provided for in existing laws fail to reflect the crime's grave nature. Few criminal cases have been filed against accused public officers, and conviction rates are extremely low.¹³

The government has also been deficient in responding to abductions and killings of peaceful activists, especially in regions where the government's security forces are in conflict with armed opposition groups. Many activists have been abducted or summarily executed by these armed groups, but by one estimate, more such crimes are perpetrated by the government's security forces or their vigilante supporters.¹⁴ From January to September 2004, TFDP documented 7 cases of summary executions and 12 cases of "disappeared" individuals. The victims had been vocal in their criticism of government policy.¹⁵

Citizens whose rights are violated by the state can legally petition for redress through the judicial system. But the judicial system, while in the process of reform, is still biased against those of little means (see "Rule of Law"). The poor majority often do not have the education and financial resources to help them navigate the legal system.

Prison conditions are cause for concern. The prison population has increased by 50 percent since 2002 – due in large part to harsher drug laws – but the resources of the penal system have remained the same. The result has been overcrowding and insufficient provision of basic necessities for prisoners.¹⁶ Moreover, despite many laws designed to protect children in custody, children continue to be detained with adults in these overcrowded facilities and are thus vulnerable to abuse by other prisoners.¹⁷ According to one children's rights group, at least 36 children per day are arrested and detained with adult prisoners.¹⁸ Women in detention also continue to be vulnerable to rape and sexual abuse. In 1997, the government examined plans to improve the conditions of women in detention, including separate facilities for female offenders supervised by female staff and an institutionalized monitoring mechanism including NGO visits to police stations and jails. To date, these plans have not been implemented.

The constitution enshrines the right to form associations for purposes not contrary to the law as well as the right to mobilize and advocate for peaceful purposes. The state does not compel citizens directly or indirectly to belong to particular associations. The wide array of organizations in the country indicates the substantial freedom of association that Filipinos enjoy. In 2003, over 20 percent of the total number of paid employees in the country belonged to trade unions.¹⁹ By one estimate, the country has over 70,000 NGOs actively advocating different causes,²⁰ although these NGOs are notably concentrated in Manila.

While citizens are free to join groups and mobilize for peaceful protests, the government often fails to exercise restraint when dispersing demonstrators. In July 2004, demonstrators called on the government to secure the release of a Filipino hostage in Iraq by recalling Philippine troops. Although the government ultimately responded to the demands of the demonstrators, more than 500 individuals were reported to have been hurt that day as security forces tried to disperse the crowd.²¹

The government has a relatively strong record with respect to freedom of conscience and belief. The vast majority of Filipinos are Roman Catholic (83 percent); Protestants make up 9 percent, Muslims 5 percent, and other faiths the remainder. While Catholics predominate in government, the state does not interfere in the appointment of religious leaders or the internal activities of other peaceful faith-related organizations, nor does it place restrictions on religious observance, religious ceremony, or religious education.

While they are free to practice their religion, Filipino Muslims' rights to land and economic opportunities generally have not been respected by successive governments. This history of discrimination underlies the current armed conflict between the government and Muslim groups, which essentially began in 1972. In an effort to address Muslim concerns, the architects of the 1987 constitution provided for the creation of an autonomous region in Muslim Mindanao (ARMM). But the establishment of ARMM did not end the insurgency because many Muslims as well as Christians in the region were dissatisfied with the way the region's boundaries were set and the region's lack of fiscal autonomy. Since then, successive governments have alternated between conciliatory and aggressive military tactics in dealing with the armed insurgents.

There are two distinct Muslim organizations whose stated goal is to establish an independent Islamic state in the southern Philippines: the Moro Islamic Liberation Front (MILF) and the Abu Sayyaf. Both are offshoots of the Moro National Liberation Front (MNLF), an older secessionist organization. Numerous times over the past decade, the MILF, which is estimated to have as many as 15,000 armed members,²² and the government have agreed to cease hostilities – but each time, fighting resumed shortly thereafter. This is in part due to the contradictory policies of the government. For example, even as the government advocated peace talks, the army attacked an MILF base in February 2003. Negotiations have also been complicated by revelations that members of an Indonesia-based group with links to al-Queda, Jemaah Islamiah (JI), have trained in MILF camps, despite statements by MILF leaders to the contrary. In February 2004, the parties met to discuss conditions for formal peace talks. As of September 2004, peace talks had not resumed (formal talks had occurred – and failed – in October 2001).²³ Meanwhile, militarization of the area due to the conflict has created many opportunities for violations of the rights of peaceful residents, both Muslim and Christian, in the area.

The Abu Sayyaf is estimated to have only a few hundred members. The government considers them nothing more than bandits – the organization is infamous for its use of piracy and ransom kidnapping to finance its activities – and has refused to negotiate with the organization. In part due to the Abu Sayyaf's past links with al-Queda, in 2001 the United States offered the Philippine government nearly US$100 million in military aid to eradicate them.²⁴ U.S. forces have also been deployed on two separate occasions between 2002 and 2003 to train, advise, and assist Philippine troops in their fight against the Abu Sayyaf. In April 2004, the government claimed to be close to eradicating the organization, but as of September 2004, the group's leaders remained at large.

Muslims are not the only group in the Philippines to perceive discrimination by successive governments. Between 15 percent and 20 percent of the population belong to distinct groups identified as indigenous peoples.²⁵ Until 1987, indigenous peoples' rights to their communal landholdings were not legally recognized, and the people were progressively dispossessed of their lands. Since then, the government has tried to accommodate indigenous peoples' concerns. The 1987 constitution recognizes indigenous communities' rights to their ancestral lands. In 1997, the government enacted the Indigenous Peoples Rights Act (IPRA), which created a commission – the national commission on indigenous peoples – to implement the rights guaranteed in the constitution. The constitution and the IPRA provide a solid framework for the promotion of indigenous peoples' rights, including to their ancestral lands. However, the state's commitment to protecting indigenous peoples' rights is questionable. The titling of ancestral land has occurred at a snail's pace.²⁶ Moreover, the government continues to promote mining projects that would displace indigenous peoples or degrade the environment surrounding their ancestral lands.²⁷

In contrast, the government has a reasonable record in the promotion of gender equity. Many laws promoting women's rights have been enacted since 1986. One of the most significant is the 1991 Women in Development and Nation-Building Act, which ensures that a substantial portion of official development assistance from foreign governments and multilateral organizations is set aside for agencies and programs that promote women's rights. The national government also employs policies, including relatively flexible time schedules and maternity leave, that promote recruitment and retention of women in the civil service.²⁸ While implementation of laws promoting women's rights could be more forceful, women have achieved some degree of equity in the Philippines. Two of the four presidents in the post-Marcos period have been women, although both were related to powerful men. The current president has appointed several women to head key executive departments and constitutional commissions. Among Filipino senators 17 percent are women, as are 14 percent of the members of the incoming 13th House of Representatives.²⁹ Filipino women constitute over 50 percent of civil service employees. Women continue to be underrepresented, however, at the higher levels of the civil service: They fill only 30 percent of positions at the executive/managerial level.³⁰

During 2003 to 2004, two new laws protecting the interests of women were enacted. The Anti-Violence Against Women and Their Children Act criminalizes violence against domestic partners and their children. The Anti-Trafficking in Persons Act establishes institutional mechanisms for the protection and support of trafficked persons, mainly women and children. It stipulates penalties not only for offenders, but also for legal officers and medical practitioners who fail to protect the privacy of trafficking victims.³¹ It remains to be seen whether the new laws will be implemented in such a way as to deter these crimes.

The Philippine government formally recognizes people with disabilities as a sector of society that has traditionally been disadvantaged in terms of access to basic services, in large part due to their extreme poverty. In an effort to address the concerns of the country's poor majority, including people with disabilities, the government established a National Anti-Poverty Commission (NAPC) in 1998. The NAPC, which is composed of representatives from national government agencies, local governments, and basic sectors of society identified as traditionally disadvantaged, meets regularly to develop and review government anti-poverty projects, including those specifically targeted at people with disabilities. While some progress has been made in integrating these people into mainstream society – in large part due to the efforts of NGOs – they continue to face problems of access to basic social services, housing, education, and employment.³²

Recommendations

• Allegations of torture and violations of due process should be investigated promptly and fully, and the government should ensure appropriate prosecution and punishment.
• Laws designed to protect children in custody should be strictly enforced. Female offenders should have separate facilities supervised by female staff.
• Peace talks between the government and the MILF should be resumed, and the autonomous region of Muslim Mindanao should be given genuine fiscal autonomy.
• The titling of indigenous peoples' lands should be expedited. Guidelines should be established for compensating indigenous peoples whose titles are revoked for governmental use.
• Training for law-enforcement personnel should include techniques on negotiating with demonstrators in order to reduce the use of force. Law enforcement personnel determined to have used force indiscriminately should be appropriately punished.

Rule of Law – 3.30

The Philippines' performance in rule of law, including an independent, impartial, and well-functioning judicial system and civilian control over the military, is mixed. The Philippine judiciary's vulnerability to political influence is a persistent concern. The source of this influence varies at different court levels. At the highest levels, such as the Supreme Court, the Sandiganbayan (Anti-Graft Court) and the Court of Appeals, politicization occurs during the appointment process. Justices and judges are appointed by the president, who must choose from a list of at least three individuals nominated by a judicial and bar council (JBC). The JBC is composed of four ex officio members – the chief justice, the secretary of justice, a senator, and a member of the house – and four regular members from the Integrated Bar of the Philippines (IBP), the official organization composed of all lawyers in the country. The inclusion in the appointment process of professional lawyers from the IBP was intended to limit the influence of politicians over judicial appointments. But because IBP members in the JBC are appointed by the president with the consent of the commission on appointments, which is composed of members of each congressional house, it is unclear whether this goal has been achieved. Thus, while almost all justices and judges nominated by the JBC and ultimately appointed by the president meet generally accepted minimum qualifications, the judiciary, especially justices at the higher-level courts, vulnerable to charges of political influence when they rule on high-profile cases.

Politicization of lower court decisions is typically due not to the appointment process but to local courts' lack of resources. Because of the meager budget of the judicial branch, salaries of local court personnel, including judges, are not competitive with those of similar positions in the private sector. To compensate for this problem, local government units are authorized to augment the salaries of local court personnel. As these allowances are disbursed at the discretion of local governments, the latter have the opportunity to place undue pressure on judges.

These concerns notwithstanding, high-court justices are evidently able to resist political pressures. In November 2003, the Supreme Court declared the second impeachment case initiated by a group of legislators against the high court's chief justice unconstitutional (see "Accountability and Public Voice"). Although this case may have been politically motivated, the action by the Supreme Court was a genuine demonstration of its independence, and the legislature accepted the decision.

High-court justices have also been able to resist political pressures from the executive branch. In 2004, the Supreme Court declared null and void several substantial contracts between government agencies and private corporations.³³ In addition, the high court dismissed a petition to disqualify Fernando Poe, Jr., from the presidential race of 2004. Poe was incumbent president Gloria Arroyo-Macapagal's strongest rival for the presidency. These examples demonstrate both the ability and the willingness of the judiciary to limit the powers of other branches of government. Moreover, recent developments suggest that lower-court judges should be better able to resist pressures from local government officials. In 2003, congress enacted a bill, the Judiciary Compensation Act, that increased local court judges' salaries and allowances.

A more serious problem in the administration of justice is the inability of courts to resolve disputes in a timely manner. Delays in case resolution deny the affected parties justice and discourage victims from seeking redress. A study performed in 2002 showed that criminal cases can take as long as five and a half years to be decided, while cases involving corruption of government officials take over nine years.³⁴ It should be stressed that these delays are generally not due to the incompetence of judges; they are largely due to the high rate of judge vacancies vis-a-vis the increasing number of cases filed and the primitive case-flow management systems and poor equipment used by courts.

In 2001, the current Supreme Court chief justice launched a comprehensive reform program designed, among other goals, to improve the efficiency of the judicial system. While the reforms have not yet been fully implemented, courts are already showing some improvement in their disposition of cases. Although the total number of cases filed each year is increasing, the average number of cases disposed of as a percentage of total cases filed in all courts around the country increased from 59 percent in 1999 to 70 percent in 2003.³⁵

The most serious problem of the Philippine judicial system is its lack of impartiality. In general, the system favors individuals with political connections or wealth. The problem is particularly acute because of the extremely unequal distribution of wealth and power in the country. Prosecution of high-ranking government officials is rare; conviction is even rarer. As the current ombudsman acknowledges, no "big fish" has been successfully prosecuted in at least 15 years.³⁶ In a 2004 survey, only 40 percent of respondents agreed with the statement: "Whether rich or poor, people who have cases in court generally receive equal treatment."³⁷ There is some basis to the majority's perception. People of higher economic status run less risk of being arrested, prosecuted, and convicted of crimes. They have the resources to hire top lawyers and/or bribe legal officers. In criminal trials, while all those prosecuted are presumed innocent until proven guilty and are provided with counsel if it is beyond their means, implementation of these rights depends on the accused's knowledge and ability to assert his or her rights. Poor defendants with little education and/or a weak command of English are often unable to understand their counsel, who generally use legal terms and speak in English.³⁸ The chief justice's comprehensive reform program currently under way is designed to address this problem, but it is still too early to tell if they will do so.

Lack of civilian control of the military is also an obstacle to establishing the rule of law in the Philippines. Since 1972, the military has engaged periodically in overt political activity. For example, in 2001 besieged by demonstrators calling for his resignation, Estrada decided to abandon the presidential palace when senior military officers made clear their intention to support then-vice president Arroyo as the new head of government. As recently as July 2003, a group of junior military officers organized a rebellion to overthrow the government. While the rebels were eventually persuaded to return to the barracks peaceably, the incident indicates the state's vulnerability to military intervention. A fact-finding commission created to investigate the incident found that the coup attempt had involved months of planning, which had occurred under the noses of senior military officers and civilian officials. Notably, the commission also discovered that groups identified with former president Estrada and former senator and retired colonel Gregorio Honasan supported the rebels.³⁹ This suggests that elements in the military may be influenced by non-state actors as well.

While the government generally refrains from infringing on individuals' property rights, the time it takes to resolve civil cases, which typically involve disputes over property, renders these rights relatively insecure. According to a World Bank study, on average more than a year is required to enforce a contract and more than five and a half years to resolve bankruptcy disputes through the courts.⁴⁰

Recommendations

• More resources should be devoted to ensure that poor defendants are provided with appropriate counsel, and that citizens in rural areas have easier access to courts.
• Salaries of judges should be increased in order to attract sufficient numbers of qualified individuals to fill judge vacancies.
• Alternative dispute resolution mechanisms should be promoted in order to alleviate the backlog of cases in court dockets.
• Non-state actors and/or civilian political leaders suspected of promoting and supporting rebellion among military ranks should be vigorously investigated and prosecuted.

Anticorruption and Transparency – 3.50

Since the restoration of democracy in 1986, the Philippines has experienced major changes that theoretically should have reduced opportunities for corruption. One significant change has been the reduction in the state's role in the economy. Since 1986, nearly 500 state-owned enterprises have been privatized, and several critical sectors of the economy have been deregulated. Nominal tariff rates are now within ceilings set by the World Trade Organization.⁴¹ Another important change has been the increased transparency of government decision-making processes, including the executive budget-making process. While the legislature may only reduce appropriations recommended by the executive, the budget now requires legislative approval and is routinely subjected to meaningful review. Congressional budget committee hearings and plenary debates are open to the public and are regularly attended by the media. Furthermore, expenditure accounts are available to citizens upon written request.

Despite these positive longer-term developments, both high-level and petty corruption remain pervasive, largely due to weak enforcement of anticorruption laws. The reasons for this failure vary across different auditing and investigative bodies. The internal audit division of the country's tax collection agency, the bureau of internal revenue (BIR), is highly inefficient. From January 2001 to May 2004, 140 corruption charges were filed against 136 BIR personnel. As of June 2004, the division had resolved only 20 cases.⁴² This slow pace in processing charges, whatever the reason, contributes to the perception that BIR officials can engage in corruption with relative impunity. In public opinion surveys, the BIR consistently ranks as one of the most corrupt departments within government.⁴³

In contrast, the personnel of the commission on audit (COA), the independent body charged with auditing government expenditures, are generally considered highly competent. In 2003, the current COA chairman was selected to be a member of the United Nations Board of Auditors, and 36 veteran COA auditors were selected to be part of the UN auditors pool.⁴⁴ But COA's authority is limited to exposing anomalies. The commission does not have the authority to punish or prosecute corrupt officials.

The main agency charged with prosecuting as well as investigating corruption cases is the office of the ombudsman (OMB). The constitution guarantees the OMB's political independence: The ombudsman serves a seven-year, fixed term of office with no possibility of reappointment and is removable only by impeachment. However, the OMB's record indicates that institutional independence does not guarantee efficacy in the fight against corruption. Under the leadership of the first ombudsman (1988-1995), the OMB was notoriously inefficient. By the end of 1994, the office had a backlog of 14,652 cases.⁴⁵ The second ombudsman's record (1995-2002) was no better. Indeed, confidence in his integrity dropped so low that impeachment proceedings were initiated against him for bribery and betrayal of the public trust.

In response to these persistent problems, several steps the current government has taken to combat corruption provide grounds for optimism. First, between 2003 and 2004, the government increased the OMB's budget, allowing the agency to double the number of its prosecutors. While no big fish have yet been convicted, the OMB has used the additional resources to investigate relatively mid-level government officials more thoroughly. This appears to have improved the OMB's performance: The agency's conviction rate rose from 6 percent in 2003 to 14 percent in 2004.⁴⁶ This suggests that the OMB is capable of combating corruption, given committed leadership and adequate resources.

Second, Arroyo has established a novel anti-graft institution: a "Lifestyle Checks Coalition," composed of the heads of government departments, intelligence-gathering units, prosecuting agencies including the OMB, and representatives of civil society organizations. The most innovative aspect of this initiative is the institutionalization of the public's role in identifying government officials whose lifestyles appear inconsistent with their officially declared income and assets. With funding from the European Union, the government has been training volunteers from accredited NGOs to perform these lifestyle checks. Notably, there does not appear to be a shortage of volunteers willing to join the coalition, despite the fact that they can expect no compensation from the government for their services and the country has no whistle-blowers act to protect those who expose corrupt officials.

Third, the government is continuing to reduce bureaucratic regulations and registration requirements, thereby further reducing opportunities for corruption. Over the past two years, it has streamlined review and approval procedures for government contracts, reduced the number of signatories required for licenses and permits, and reduced the number of documentary requirements to participate in government-sponsored programs.⁴⁷

Finally, the government is taking steps to increase transparency further. Two main developments stand out. First, in 2000, the government launched an online system for procurement. As of June 2004, more than 7,000 suppliers and 2,500 government units had registered with the system, and more than 45,000 new bid notices and 7,000 awards had been posted online. The second phase of this project – actual online bidding and trading – is expected to be operative by September 2005.⁴⁸ With the establishment of an online record of all bids and awards, this measure should make it easier to monitor the competitiveness of the procurement process.

Second, in 2004, the government secured funding from foreign donors to create a publicly available data bank of public officials' statements of assets, liabilities, and net worth.⁴⁹ Although citizens have a constitutional right to view such statements, the latter are currently difficult to obtain. Record-keeping practices of the different government agencies vary; in some agencies, documents are available only haphazardly, and if government agencies choose to withhold or delay access to information, the only recourse is to petition the Supreme Court for redress of an unconstitutional act. By facilitating access to public officials' financial statements, the data bank will eliminate the need to go to court and facilitate detection and prevention of corruption.

Recommendations

• The government should ensure appropriate prosecution and punishment of high-ranking government officials by devoting more resources to the office of the ombudsman contingent on continued improvement in the agency's performance.
• A law providing legal protections for whistle-blowers should be adopted.
• A freedom of information act providing clear penalties for the unlawful denial of access and destruction of records should be adopted.

Notes

1 Ellene A. Sana, "The OAV Law: Defend and Amend, Guarantee Its Continued Exercise," Kasama 18, 2 (2004), http://www.cpcabrisbane.org/Kasama/2004/V18n2/OAV.htm.

2 Information Technology Foundation of the Philippines, et al. v. Commission on Elections, et al. (Philippine Sup. Ct. No. 159139, 13 January 2004).

3 National Citizen's Movement for Free Elections (NAMFREL). In the same report, NAMFREL estimates that "disenfranchisement may have run as high as two million voters." "The Terminal Report to NAMFREL Operation Quick Count 2004" (Manila: NAMFREL, 30 June 2004).

4 Christina Mendez, "Political Groups Are Closely Watched for Destabilization," Philippine Star, 20 May 2004, http://www.newsflash.org/2004/02/hl/hl100384.htm.

5 Christian V. Esguerra, "PNP fears bloody polls; 125 private armies identified," Inquirer News Service, 18 March 2004, http://www.inq7.net/nat/2004/mar/18/nat_1-1.htm.

6 "SONA Updates: As of 30 June 2004," (Manila: State of the Nation Address [SONA] Updates), http://www.gov.ph/sona/SONAUpdates_30June2004.pdf.

7 Sonny Evangelista, "We Want Concrete Actions To Stop the Killing of Journalists, Media People Tell President Arroyo," AsiaNews.it, 17 November 2004.

8 "Journalists Killed in the Line of Duty: Statistics for 1995-2004" (New York: Committee to Protect Journalists, n.d.), http://www.cpj.org/killed/Ten_Year_Killed/stats.html.

9 "Philippines – 2004 Annual Report" (Paris: Reporters Without Borders, 5 March, 2004), http://www.rsf.org/print.php3?id_article=10089.

10 "Philippines: Torture Persists: Appearance and Reality within the Criminal Justice System" (London: Amnesty International [AI], 24 January, 2003), http://web.amnesty.org/library/Index/ENGASA350012003?open&of=ENG-PHL.

11 "2004 Report: Philippines" (AI), http://web.amnesty.org/report2004/phl-summary-eng.

12 "Cases of Torture Under the Arroyo Government" (Manila: Task Force Detainees of the Philippines, n.d.), http://www.tfdp.org/resources/1statistics.htm.

13 "Philippines: Torture Persists" (AI), 28-31, http://web.amnesty.org/library/Index/ENGASA350012003?open&of=ENG-PHL.

14 "Human Rights Record of the Philippines: Spectacular on Paper" (New Delhi: Asian Centre for Human Rights, 2003), 7-9.

15 Aurora Corazon A. Parong, M.D., "Martial Law, 32 Years Hence: Lessons From Our Past, Challenges for Our Present" (Manila: Philippine Human Rights Update, June 2004), http://www.tfdp.org/resources/ar_martiallawspeechsept04.pdf.

16 Sonny Evangelista, "A prison system on the verge of collapse," Asianews.it, 22 October 2004, http://www.asianews.it/view.php?l=en&art=1747.

17 "2004 Report: Philippines," (AI), http://web.amnesty.org/report2004/phl-summary-eng.

18 "Philippines: Alternatives to Jail Sought for Kids [News]" (Hong Kong: Asian Human Rights Commission), Asia Child Rights Weekly Newsletter 3, 3 (21 January 2004), http://acr.hrschool.org/mainfile.php/0162/261.

19 "Extent of Unionism" (Manila: Philippine Department of Labor and Employment), Labstat Updates 8, 13 (October 2004).

20 Caroline Hartnell, "The Philippines: Self-Regulation on Trial," Alliance 8, 4 (December 2003), http://www.allavida.org/alliance/alliancehome.html.

21 . See House Resolution No. 75, introduced by six members of the House of Representatives, http://www.bayanmuna.net/legislation/reso/HR_75.htm.

22 "Southern Philippines Backgrounder: Terrorism and the Peace Process," Asia Report no. 80 (Singapore/Brussels: International Crisis Group, 13 July 2004).

23 "Mindanao Peaceweaves call for the formal resumption of peace talks" (Davao City, Philippines: Initiatives for International Dialogue, 27 September 2004), http://www.iidnet.org/adv/mda/2004/peaceweavers_ontalks.htm.

24 "Terrorism in the Philippines: The Jolo Conundrum," The Economist, 22 November 2001.

25 The Philippine Indigenous Peoples Rights Act (IPRA) defines indigenous peoples as "homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, become historically differentiated from the majority of Filipinos."

26 "Indigenous Issues" (New York: United Nations Economic and Social Council, Commission on Human Rights, 5 March 2003, http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/568f8e64e2800006c1256cf7005d2593/$FILE/G0311521.pdf.

27 See, for example, "Mindoro Nickel Project MPSA Reinstated" (London: Mines & Communities, 24 March 2004), http://www.minesandcommunities.org/Action/press300.htm; Ma. Elisa P. Osorio, "High Court upholds mining law," Manila Times, 2 December 2004.

28 Assistant Commissioner Mary Ann Z. Fernandez, "Diversity Policies and Practices in the Civil Service: The Philippine Experience" (Chicago, Ill.: International Public Management Association for Human Resources, Annual Conference, 9-13 September 2003).

29 Calculated by the author from lists of senate and house members available on the web sites for each house of congress.

30 Mary Ann Z. Fernandez, "Diversity Policies ..." (International Public Management Association for Human Resources).

31 "Prioritizing Women's Issues: 12th Philippine Congress" (Pasig City, Philippines: Center for Legislative Development), Legislative Women's Watch, May 2004.

32 Foundation for International Learning, "Identifying Disability Issues Related to Poverty Reduction: Philippines Country Study" (Manila: Asian Development Bank, 2002).

33 "High Impact Supreme Court Decisions" (Manila: Transparent Accountable Governance, n.d.), http://www.tag.org.ph/judiciaryWatch/high_impact.htm.

34 Rosemary Hunter, "Philippines Case Decongestion and Delay Reduction Project" (Washington, D.C.: World Bank, 2002), http://www1.worldbank.org/publicsector/legal/CDDRPpresentation.ppt.

35 "Statistics on Public Order, Safety and Justice" (Manila: National Statistical Coordination Board, 1 July 2004), http://www.nscb.gov.ph/secstat/d_safety.asp.

36 "Ombudsman's Briefing Paper on its Anti-Corruption Program," presentation by Simeon V. Marcelo at the Combatting Corruption Conference, Makati, Philippines, 22 September 2004.

37 Mahar Mangahas, "A Public Opinion Survey on the Courts: Philippines 2003" (Manila: Asian Development Bank, International Symposium on Judicial Independence, 7 August 2003).

38 "Report on RETA 5856: Legal Literacy for Supporting Governance – 'Legal Empowerment: Advancing Good Governance and Poverty Reduction'" (Manila: Asian Development Bank, 2001).

39 "The Report of the Fact Finding Commission," pursuant to Administrative Order No. 78 of the President of the Republic of the Philippines" (Manila: Information Site on Philippine Politics and Government, 30 July 2003), http://www.i-site.ph/Record/FFFC-Report/FactFinding%20AO78%20Report%20-%20Part%201.PDF.

40 "Snapshot of Business Environment – Philippines" (Washington, DC: World Bank, 2005), http://rru.worldbank.org/DoingBusiness/ExploreEconomies/BusinessClimateSnapshot.aspx?economyid=153.

41 "Country Commerce: Philippines" (New York: Economist Intelligence Unit, 2004).

42 "SONA Updates: As of 30 June 2004," (SONA), http://www.gov.ph/sona/SONAUpdates_30June2004.pdf.

43 Social Weather Survey, annual public opinion surveys performed by Social Weather Stations (Quezon City, Philippines: Social Weather Stations), http://www.sws.org.ph.

44 "PICPA installs Chair Carague in Accountancy Hall of Fame" (Manila: Commission on Audit), COA News 4, 8 (November-December 2003).

45 Cecile C.A. Balgos, "Ombudsman," in Sheila S. Coronel, ed., Pork and Other Perks: Corruption and Governance in the Philippines (Metro Manila: Philippine Center for Investigative Journalism, 1998).

46 "Anti-Corruption" in Medium-term Philippine Development Plan 2004-2010 (Metromanila, Philippines: Philippines National Economic and Development Agency, 2004), 249-53.

47 "SONA Updates: As of 30 June 2004" (SONA), http://www.gov.ph/sona/SONAUpdates_30June2004.pdf.

48 Ibid.

49 "Philippines, World Bank Ink Grant to Support Ombudsman's Anti-Corruption Activities" (World Bank, Press Release, 21 October 2004), http://www.worldbank.org.ph/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/PHILIPPINESEXTN/0,,contentMDK:20270207~menuPK:333002~pagePK:141137~piPK:141127~theSitePK:332982,00.html.