CHR MANDATE OVER ECONOMIC, SOCIAL AND

CULTURAL RIGHTS (ICESCR)

ISSUE:
I. GENERAL FRAMEWORK WITHIN WHICH THE COVENANT IS
IMPLEMENTED
2. Whether the Covenant is regarded as a generally accepted principle
of international law in accordance with Section 2, Article II of the
Constitution.
Whether Covenant provisions have been invoed before, directly
or enforced by, the courts.
!oes the protection and pro"otion of #SC rights fall within the
"andate of the C$%& vis'('vis the decision in Si"on vs. C$%.
&rovide concrete e)a"ples, if any.
CHR RESPONSE:
Whether the Covenant is regarded as a generally accepted principle of
international law in accordance with Section 2, Article II of the
Constitution.
*nder the +,-. Constitution, it is a declared State &rinciple that the
&hilippines adopts the generally accepted principles of international law as
part of the law of the land.
+
/his is nown as the principle of incorporation.
$ence, in theory, there should be no issue as to the application of
international hu"an rights instru"ents in the country as an accepted law.
$owever, practical constraints prevent the &hilippines fro" directly
applying provisions of international hu"an rights instru"ents without
relevant do"estic legislations translating the sa"e considering that there is
adherence to the principle that there is no cri"e when there is no law
punishing it or nullum crimen sine poena lege.
/his boils down to the issue of the 0usticiability of #SC rights.
1
&aragraph 2, Section II, &hilippine Constitution
1
In 1ove"ber 2223, the Co""ission on $u"an %ights hosted a
Conference-Workshop for Judges and Lawyers on the Justiciability of
Economic, Social and Cultural ights in Southeast !sia.
Atty. 4arvic 5eonen, the current !ean of the *niversity of the
&hilippines College of 5aw, citing Si"on vs. C$%, has the following to say
on the issue6
/he proble" is not only how to "ae re"edies for
violations of #SC% plain, speedy and ade7uate 8*/ whether or
not there is an available re"edy. 1ot only is there no court or
tribunal in the &hilippines "andated to try on an e)clusive
basis, cases involving #SC%, the 0usticiability of #SC% is not
7uite settled. 9or one, unless there is a statute providing
sanctions and penalties for violations of each provision
touching upon an #SC%, it would appear that one cannot 0ust
go to court, invoe an #SC% de"and that he be accorded the
benefits, or recover da"ages, for a violation of such right.
Whether Covenant provisions have been invoed before, directly or
enforced by, the courts.
Indeed, &hilippine 0urisprudence is scant in acnowledging and
invoing provisions of the international covenants. $owever, the
Co""ission can cite one case wherein the Supre"e Court raised the
provisions of the International Covenant on #cono"ic, Social and Cultural
%ights in its argu"ents in favor of the petitioners.
/he case is International School Alliance of #ducators :ISA#;,
petitioner, "s. $on. 5eonardo 8. <uisu"bing in his capacity as the Secretary
of 5abor and #"ploy"ent= $on. Cresenciano 8. /ra0ano in his capacity as
the Acting Secretary of 5abor and #"ploy"ent= !r. 8rian 4accauley in his
capacity as the Superintendent of International School'4anila= and
International School, Inc., respondents.
2
8asically, the petitioners in the case raised the issue of grant of higher
pay to foreign'hired teachers as co"pared to their local'hired counterparts in
international schools in the country.
In resolving in favor of the local'hired teachers, the Supre"e Court
ruled that6
/hat public policy abhors ine7uality and discri"ination is
beyond contention. >ur Constitution and laws reflect the policy
against these evils. /he Constitution in the Article on Social
?ustice and $u"an %ights e)horts Congress to @give highest
2
A.%. 1o. +2--3B, ?une +, 2222
2
priority to the enact"ent of "easures that protect and enhance
the right of all people to hu"an dignity, reduce social,
econo"ic, and political ine7ualities.@ /he very broad Article +,
of the Civil Code re7uires every person, @in the e)ercise of his
rights and in the perfor"ance of his duties, CtoD act with 0ustice,
give everyone his due, and observe honesty and good faith.@
#nternational law, which springs from general principles
of law, likewise proscribes discrimination. $eneral principles
of law include principles of e%uity, i.e., the general principles of
fairness and &ustice, based on the test of what is reasonable.
'he (ni"ersal )eclaration of *uman ights, the #nternational
Co"enant on Economic, Social, and Cultural ights, the
#nternational Con"ention on the Elimination of !ll +orms of
acial )iscrimination, the Con"ention against )iscrimination
in Education, the Con"ention ,-o. .../ Concerning
)iscrimination in espect of Employment and 0ccupation - all
embody the general principle against discrimination, the "ery
antithesis of fairness and &ustice. 'he 1hilippines, through its
Constitution, has incorporated this principle as part of its
national laws.
In the worplace, where the relations between capital and
labor are often sewed in favor of capital, ine7uality and
discri"ination by the e"ployer are all the "ore reprehensible.
/he Constitution specifically provides that labor is
entitled to @hu"ane conditions of wor.@ /hese conditions are
not restricted to the physical worplace ' the factory, the office
or the field ' but include as well the "anner by which
e"ployers treat their e"ployees.
/he Constitution also directs the State to pro"ote
@e7uality of e"ploy"ent opportunities for all.@ Si"ilarly, the
5abor Code provides that the State shall @ensure e7ual wor
opportunities regardless of se), race or creed.@ It would be an
affront to both the spirit and letter of these provisions if the
State, in spite of its pri"ordial obligation to pro"ote and ensure
e7ual e"ploy"ent opportunities, closes its eyes to une7ual and
discri"inatory ter"s and conditions of e"ploy"ent.
!iscri"ination, particularly in ter"s of wages, is
frowned upon by the 5abor Code. Article +EB, for e)a"ple,
prohibits and penaliFes the pay"ent of lesser co"pensation to a
fe"ale e"ployee as against a "ale e"ployee for wor of e7ual
value. Article 23- declares it an unfair labor practice for an
e"ployer to discri"inate in regard to wages in order to
encourage or discourage "e"bership in any labor organiFation.
3
-otably, the #nternational Co"enant on Economic,
Social, and Cultural ights, supra, in !rticle 2 thereof,
pro"ides3
'he States 1arties to the present Co"enant recogni4e the
right of e"eryone to the en&oyment of &ust and fa"ourable
conditions of work, which ensure, in particular3
a.....emuneration which pro"ides all workers, as
a minimum, with3
i.....+air wages and e%ual remuneration for
work of e%ual "alue without distinction of any
kind, in particular women being guaranteed
conditions of work not inferior to those en&oyed
by men, with e%ual pay for e%ual work5
) ) ).
/he foregoing provisions i"pregnably institutionaliFe in
this 0urisdiction the long honored legal truis" of @e7ual pay for
e7ual wor.@ &ersons who wor with substantially e7ual
7ualifications, sill, effort and responsibility, under si"ilar
conditions, should be paid si"ilar salaries. /his rule applies to
the School, its @international character@ notwithstanding.
/hough an isolated decision, there is hope that such inds of decisions
co"ing fro" the highest court of the land is not far fro" reality considering
the adeptness in hu"an rights of so"e of the current Supre"e Court
?ustices, including the Chief ?ustice hi"self.
!oes the protection and pro"otion of #SC rights fall within the "andate
of the C$%& vis'('vis the decision in Si"on vs. C$%. &rovide concrete
e)a"ples, if any.
*nder the +,-. &hilippine Constitution, the Co""ission on $u"an
%ights was created independent
E
with the following functionsG"andates
3
6
1. Investigate, on its own or on co"plaint by any party, all
for"s of hu"an rights violations involving civil and
political rights=
2. Adopt its operational guidelines and rules of procedure, and
cite for conte"pt for violations thereof in accordance with
the %ules of Court=
3. &rovide appropriate legal "easures for the protection of
hu"an rights of all persons within the &hilippines, as well as
3
&aragraph +, Section +., Article HIII, &hilippine Constitution
4
Section +-, Ibid.
4
9ilipinos residing abroad, and provide for preventive
"easures and legal aid services to the underprivileged
whose hu"an rights have been violated or need protection=
4. #)ercise visitorial powers over 0ails, prisons, or detention
facilities=
5. #stablish a continuing progra" of research, education, ad
infor"ation to enhance respect for the pri"acy of hu"an
rights=
6. %eco""end to the Congress effective "easures to pro"ote
hu"an rights and to provide for co"pensation to victi"s of
violations of hu"an rights, or their fa"ilies=
7. 4onitor the &hilippine Aovern"entIs co"pliance with
international treaty obligations on hu"an rights=
8. Arant i""unity fro" prosecution to any person whose
testi"ony or whose possession of docu"ents or other
evidence is necessary or convenient to deter"ine the truth in
any investigation conducted by it or under its authority=
9. %e7uest the assistance of any depart"ent, bureau, office, or
agency in the perfor"ance of its functions=
10. Appoint its officers and e"ployees in accordance with law=
and
11. &erfor" such other duties and functions as "ay be provided
by law.
S#C/I>1 +,. /he Congress "ay provide for other cases of
violations of hu"an rights that should fall within the authority
of the Co""ission, taing into account its reco""endations.
*nder the 7uoted provisions of the +,-. Constitution, and as reflected
under #)ecutive >rder 1o. +JE,
B
the Co""ission was given a total of eleven
:++; powers and functions. /he first "andate given by the Constitution is to
investigate, on its own or on co"plaint by any party, all for"s of hu"an
rights violations involving ci"il and political rights.
J

Why li"ited to civil and political rightsK It is well to re"e"ber that
the Co""ission was an off'spring of the +,-. Constitution which was
drafted right after the end of the twenty year "artial rule under the 4arcos
%egi"e. $ence, priority was given to violations of civil and political rights.
!eliberations of the Constitutional Co""issions further show that focus
was to be "ade on the following6 :+; protection of rights of political
detainees= :2; treat"ent of prisoners and the prevention of tortures= :E; fair
and public trials= :3; cases of disappearances= :B; salvagings and
ha"lettings= and :J; other cri"es co""itted against the religious.
.
5
series of +,-., issued by then &resident CoraFon C. A7uino
6
&aragraph +, Ibid.
7
+,-J %ecord of Constitutional Co""ission .vol. E..E+
5
While a very i"portant "andate of the Co""ission, this bias "ade to
civil and political rights had a debilitating effect on the Co""issionLs
in"estigatorial powers.
In the land"ar case of Si"on vs. C$%
-
decided in +,,3, the
Co""ission tried to intervene on behalf of stall owners whose stalls, stores
and carinderias were de"olished, the Supre"e Court said that the issue does
not fall within the a"bit of hu"an rights violations involving civil and
political rights. Si"ply put, the Supre"e Court decision was saying that the
Co""ission has no business investigating #SC rights.
%efusing to have its hands tied and with the cognition of the
universality, indivisibility and interdependence of hu"an rights, the
Co""ission, on !ece"ber +,,B, issued CHR Reso!t"on No. A#$%&'#,
where it declared as one of its operational priorities,
6in"estigati"e monitoring of incidents and7or conditions
obtaining in the country which are "iolati"e of concerns in both
areas of ci"il and political rights and economic, social and
cultural rights.8
1ot "eaning to defy the deli"itation set forth in the Constitution, the
Co""ission, in the said resolution, invoed the international principles that
human rights is concerned with issues in both areas of ci"il and political
rights and economic, social and cultural rights founded on internationally
accepted human rights obligations to which the &hilippine Aovern"ent is a
state party.
,
/he Co""ission also invoed in the resolution the following
international declarations6
9irst, the 4anila !eclaration adopted by thirty :E2; countries which
participated in the /hird International Worshop of 1ational $u"an %ights
Institutions conducted by the *nited 1ations in the &hilippines in April +,,B
which cited the role of national institutions as that of pro"oting enhanced
respect for the uni"ersality and indi"isibility of ci"il and political and
economic, social and cultural rights particularly by ensuring that national
legislation confor"s to international obligations and that concrete "easures
are taen to ensure the en0oy"ent of rights in a non'discri"inatory basis.
+2
Second, the Mienna !eclaration confir"ed during the World
Conference on $u"an %ights held on ?une +,,E in Mienna Austria that all
human rights are uni"ersal, indi"isible and inter-dependent and inter-
related. /he International co""unity "ust treat hu"an rights globally in a
fair and e7ual "anner, on the sa"e footing, and with the sa"e e"phasis.
8
22, SC%A ++.
9
+
st
whereas clause, C$% %esolution 1o. A,B'2J,
10
E
rd
whereas clause, ibid.
6
While the significance of national and regional particularities and various
historical, cultural and religious bacgrounds "ust be borne in "ind, it is the
duty of states, regardless of their political, econo"ic and cultural syste"s, to
pro"ote and protect all hu"an rights and funda"ental freedo"s.
++
9urther, the Co""ission used its other "andates under the
Constitution as 0ustification
+2
, to wit6
to "onitor &hilippine Aovern"entLs co"pliance with
international treaty obligations on hu"an rights=
+E

to provide appropriate legal "easures and services to the
underprivileged whose hu"an rights have been violated or
need protection=
+3

to establish a continuing progra" of research, education and
infor"ation to enhance respect for hu"an rights, or their
fa"ilies=
+B
and
to reco""end to Congress effective "easures to protect
hu"an rights.
+J
Suffice it to say, the said C$% %esolution paved the way for the so'
called investigative "onitoring function which the Co""ission applies
when it deals with hu"an rights co"plaints involving #SC rights.
%ecords of the Co""ission since 2222 to present, especially those
co"ing fro" the regional offices, show various investigations and legal
interventions conducted to pro"ote and protect #SC rights. /he records
reveal an assort"ent of #SC% violations such as right to education, right to
health, right to ecology, right to housing, right to 0ust and favorable
conditions of wor, right to social security, do"estic violence, violence
against wo"en and children and violations of the rights of indigenous
peoples, a"ong others.
>ne case is point is the investigative "onitoring conducted by the
Co""ission, through the Assistance and Misitorial >ffice and the C$%
%egion III >ffice, on the co"plaints filed involving environ"ental rights.
Specifically, this pertains to the proble" of to)ic wastes within the Clar Air
8ase area when the *nited States 8ases left the &hilippines in +,,2 which
affected the water syste" and caused health proble"s to the residents due to
conta"inations of drining water by heavy "etals such as "ercury and
nitrates. /he Co""ission conducted investigations over the said co"plaints,
prepared the reports and referred the "atter to the appropriate agencies for
action.
11
3
th
whereas clause, ibid.
12
2
nd
whereas clause, ibid.
13
&aragraph ., Section +-, Article HIII, +,-. &hilippine Constitution
14
&aragraph E, ibid.
15
&aragraph B, ibid.
16
&aragraph J, ibid.
7