Montor, Shericka Jade V.

EH409

When Due Process Falls on a

Deaf Ear
Deaf persons and their access to justice

The Deaf community, as part of the minority sector, struggles on

how to express their feelings - much more to defend themselves
especially in the context of court proceedings. Hence, the pivotal
intention we have is to look into the situations of the Deaf persons in
the context of court proceedings; this in pursuance of an accessible
justice system for them.

In the case study conducted by the Philippine Deaf Resource

Center (PDRC) from year 2006-2012 it was able to document 346+
cases in the fifteen regions which involved Deaf persons. Additionally,
342 cases with known data suggest that there are 68% involved Deaf
party as complainant, 26% as respondent, and 6% as witness (PDRC,
2006). We drew on Regional Trial Court of Region VII in determining
the situations as it ranked third of the highest regions having cases
involving Deaf parties.
The Deaf community particularly those who are facing charges or
cases in the court, requires special needs especially in their access to
justice. This matter is given significance because in the name of social
justice, those who have less in life shall have more in law.
The language and the proceedings of the court are difficult and
complex that is why they need sign language court interpreters to aid
them, so they can effectively understand and participate. Hence the
legal question: In situations as complex and intricate as court
proceedings, are the courts sensitive to the needs of the Deaf?
The Deaf Community in the Philippines
Recent literature and studies conducted by lawmakers, the
Commission on Human Rights Philippines, National Council on
Disability Affairs, Gualandi Volunteer Service Program and The
Philippine Deaf Resource Center, show that the Philippine justice
system needs to be more accessible by the Deaf community.
In the Philippines, there are 2-3 Deaf Filipinos in a thousand. As
of the year 2009, the projected deaf population in the Philippines (both
partial and total deaf) is 517,536 (A presentation by PNP, GVSP and
Cebu Association of Deaf Inc., n.d.). As for the other parts of the
globe, there is one deaf per 1000 population according to world
statistics.
Their projected number may constitute a minority, but such does
not warrant the justice system to be inaccessible to them. It was
discovered that from 2006 to 2012, numbers of cases that are being
filed and documented have been generally increasing (Access to
Justice: Case monitoring by the Philippine Deaf Resource Center, 2012)
Is there help?
It is a clear fact that the Deaf people have difficulties in hearing and it
is a sad reality that their condition is sometimes the reason why they
are discriminated, exploited, denied with opportunities, and oftentimes
became victims of injustice. How can we help them? How can the
government and state respond to their plights in acquiring the right
amount of justice? What this group of people really need especially in
the context of court proceedings?
The need of sign language court interpreters is one of the basic
needs that the government and the state can provide. Are there any
existing memorandums, laws, or orders for this matter? The answer is
yes. There are actually Supreme Court policies on the hiring and
paying for sign language court interpreters and these are the
following:
Memorandum Order No. 59-2004, authorizing the court admin
istrator to act on and approve requests of lower courts for the
hiring of sign language interpreters and
 OCA Circular No. 104-207 stating the guidelines on the payment
of the services of a hired sign language interpreter.

It is the responsibility of the State to provide for interpreters

during any government proceeding, be it for police investigations,
court or public hearings. Hired interpreters are also entitled to
sufficient payment and rest (Explanatory note of House Bill 4631,
2011). Thus, became the reason why such Supreme Court policies
mandated.
Imagine if there would be no sign language court interpreters in
a scenario wherein there is a Deaf rape victim trying to speak up to
the legal authorities on what happened and there is a legal authority
or police officer who knows nothing about the language of the Deaf.
Difficult, is it not? Hence, turned out to be the reason why
inappropriate sentencing is a common problem (Merithew, 1995). By
just imagining the situation, one can already realize the vital role of
sign language court interpreters to aid during court proceedings.

The status quo

In toto, the judicial system has been cognizant of the special
needs of the Deaf community. However, in the thick of these laws for
the persons with disabilities, there have been scores of issues which
subsists.
The Philippine Deaf Resource Center (PDRC) documented 346+
cases in fifteen regions. These cases are in various stages with the
greatest number (40 cases) undergoing trial in the courts, and Region
VII or Central Visayas ranked third among those having the highest
number of cases involving Deaf parties per region, with 39 cases
(Access to Justice: Case monitoring by the Philippine Deaf Resource
Center, 2012).
Now, let us find out: who blames who? According to PDRC, 342+
cases have known data, and out of these 68% or the majority of such
cases involved the Deaf party as the complainant leaving only 26% of
cases with Deaf respondents and 6% cases with Deaf witnesses. Of the
243 cases with known data about the most common type of charges
filed by the Deaf complainants, charges of rape were nearly ten times
higher than other charges. 84% of hearing persons and 16% of Deaf
persons are perpetrators of 105 cases of known data about gender-
violence, with Deaf as the complainants. Additionally, the percentage
of gender-based violence cases filed by deaf complainants less than 12
years old have 92% of hearing perpetrators and 8% Deaf perpetrators.
Therefore, we might want to ask: What are the laws missing out
on? How unbroken has the silence been for the Deaf?
Now we come to the heart of the matter. As discovered by the
PDRC in their case monitoring from 2006 to 2012, of 213 cases with
known data on interpreting, 11% have no known interpreters. Of those
cases with sign language interpreters, 44% are volunteer interpreters
while 24% are court-appointed interpreters, 21% of these cases are
yet to be confirmed whether the interpreters are actually court-
appointed.
We can only imagine the immensity of the implications the data
above show. The concern is to ameliorate the predicament of the Deaf
persons so there can be one less sector of the society experiencing
injustice; however facts say that the experience is not getting any
better for them.

What is left to do?

Both the GVSP and the branches of RTC are aware of the existing
Memorandum Circulars on the mandate of hiring and paying for sign
language court interpreters. The allocation of budget is just the lapse
that until now remains to be the main barrier in employing sign
language court interpreters in the court system.
Despite to the act of volunteerism exhibited by the GVSP, as they
do their jobs and advocacies, along the way they did not become blind,
deaf, and unable to feel the changes and improvements in the court
system particularly Branch 24 (family court) wherein the judge of the
said branch is commendable and sensitive to the needs and plights of
the Deaf.
 Researchers had become more expose and aware to the ideal
set-up of a trial involving Deaf parties. The presence of not just sign
language interpreters but also the deaf relay court interpreters is
needed. The two must go hand in hand during the trial and they must
conform with each other so that the evidences and the facts of the
case are clearly relayed and delivered to the lawyers of both sides and
to the judge as well. And that, inappropriate sentencing will be avoided
and the right amount of justice will be attained.
Psychological and emotional needs are also vital before, during,
and after a Deaf is exposed to the trial since they are sensitive persons
and they need lengthy patience in dealing with them. The GVSP is
practicing a gender-based style of assisting Deaf. As what was
mentioned earlier, they are sensitive and in that way the Deaf will be
able to express the things that are needed to be expressed.
Financial assistance that the government can render to both the
Deaf clients and the sign language court interpreters may also be
helpful. This is the problem especially to the part of the courts since
there is no budget for this and also the reason why it is hard for them
to employ sign language court interpreters. That is why for now, courts
are somehow grateful to the services provided by the GVSP.
The rights of the Deaf community are never far different from
what the common people need. They should not be excluded by the
government and by the society in conducting the general welfare. It is
called general welfare in the first place because it is supposedly for
everybody regardless of appearance, gender, status in the society,
abilities, and disabilities. The recognition of the need for sign language
court interpreters, psychological and emotional needs, and financial
assistance will actually uphold the principle of Human Rights.
It is already recognized as to the findings stated above what the
Deaf really needs and who they really are. Therefore, the state just
like any father of the family tree is expected to be the main protector
and provider of his children. It is the duty of the government to
provide the three basic needs stated earlier so that the amount of
justice will not be impaired. They may be part of the minority sector
but that does not follow that their rights be impaired due to
communication constraints and lack of assistance during court
proceedings.
It is noteworthy to say that the impairment of certain facts of a
case due to communication constraints or barriers may have trickle-
down effect because those who may be guilty for instance, of rape,
which a common case involving Deaf as a victim would bring further
danger and harm to the rest of the community if they will not receive
lawful punishment for their injustice. With this, impairment of facts in
one case due to communication barriers will have significant impacts
to the greater whole.

What is happening within the courts

The Deaf are uncomfortable in conveying their sides of the story
in front of people who are in the court proceedings (Aparri, 2014). In
the court set-up involving Deaf parties there must be the presence of a
Deaf relay court interpreters and the sign language court interpreters.

The Deaf relay court interpreter relays the messages that were
conveyed by an illiterate Deaf person to the hearing interpreter (sign
language and voice interpreter). Sign language interpreters cannot
understand some Deaf persons, such as the illiterate ones, because
their form of language is not formal. A Deaf relay interpreter then is
needed to communicate first with the illiterate Deaf person and then
decode everything for them. In turn, the sign language interpreters
are the ones who will tell the hearing people about what the Deaf was
trying to say.

Therefore, though the needs identified are indeed indispensable

factors to the credibility of a legal procedure involving Deaf parties. For
instance, the judges just might not be able to know what the Deaf
really has to say if the latter refuses to speak up, or tell the truth, due
to the stress they are undergoing.

The responsibility of the government is to be able to implement

properly and if not, devise accordingly, policies that can equip the
courts with legal aid to Deaf parties when the need arises. For the
credibility of the legal procedures must not be compromised in any
way, to ensure the quality of the decision the judges make. In turn,
resolution of cases in accordance with Social Justice is important in
affording fair and equitable access to justice by the Deaf parties, as
it is their right.

However, one cannot give what one does not have. If most of the
society, including lawyers and judges, are not aware of these special
needs of the Deaf, how are they supposed to be understanding and
considerate to them during court proceedings?

The shared incidents where doubts were casted upon the

credibility of informants to interpret the Deaf partys message are
imputable to the absence of a standardized sign language court
interpretation within the courts of RTC Region VII; and such absence is
an evidence of the lack of awareness that would have warranted
proper legislation.

It is worthy to note that given the communication constraints

present in cases involving Deaf, excessively lengthens court
proceedings. It is already as lengthy as it is; therefore, perturbations
are highly to be avoided. But before that can be accomplished, our
interest for this must first be articulated.

COMMONLY EMPLOYED MECHANISMS

The rule on the examination of child witnesses provide for the

assistance in communication for the Deaf during court proceedings.
Much as the court wanted to implement rules for the Deaf, there is still
the problem of funding support (Himalaloan, 2014). So, they cannot
just have sign language interpreters for the effort without the
monetary consideration that is why most often it is the party who pay
for them and because of that they cannot ascertain whether the
interpretation is credible or not because there is always the possibility
of bias on the part of the sign language interpreter towards the one
who provide the funds. The mechanism that the court employs in
cases involving Deaf is that the court and the councils would ask or
comment during the court proceedings and shall be relayed by the
speaking interpreter to the Deaf relay interpreter through the sign
language and then the Deaf relay interpreter shall repeat the sign
language to the Deaf witness or party. The relay interpreter should be
a Deaf and the speaking interpreter must be able to speak.

Branch XXIV according to Judge Himalaloan is familiar with SC

Memorandum Order No. 59-2004 but then it cannot be operationalized
due to total absence of funds. Judge tells that there is no court
interpreter for the Deaf persons in the plantilla of the judiciary
specifically in the Regional Trial Court of Region VII. The court has to
utilize and encourage the parties to spend an extra amount for hiring
these kinds of interpreters from accredited non-government
organizations and other service providers. Judge Himalaloan explained
that there is a huge difference in having duly instituted sign language
interpreters than occasionally hiring one because they cannot discount
the possibility that the hired interpreters may side or may be bias with
the party hiring them since the party hiring them pays the bill
especially when the judge does not know by heart the sign language.
Furthermore, hiring of duly instituted sign language court interpreters
cannot be achieved due to the fact recognized by Judge Himalaloan
himself that the court has no funds for such.

Alternatively, the other key informant is the Clerk of Court of

Branch XX who is Atty. Joselinda Muga. They had one (1) case
involving Deaf as a witness; it was through the assistance of sign
language interpreter that was recommended by the fiscal that the Deaf
relayed his side of the story. In this case, the interpreter was a school-
based SpEd teacher. The key informant also admits that she is not
very much familiar with laws providing assistance for the Deaf
community but believes that these laws if existing do not have or lack
enforcement mechanisms. Based on their experience with one (1)
case, their mechanism was to subpoena a sign language interpreter as
mentioned earlier that has been recommended by the fiscal. When
asked on her familiarity with Memorandum Order No. 59-2004, the key
informant said she is not familiar with the memorandum but said that
she is sure that the memorandum still lack enforcement mechanisms.

It was clear that there is no duly instituted sign language court

interpreter for the Deaf in their branches. The courts also VII does not
have enough funds for the hiring of sign language interpreter.

Problems and challenges encountered by the courts

 Branch XXIV Judge Himalaloan who recognized that the court has
no means to provide assistance for the Deaf during court proceedings
due to unavailability of funds that is why it instead encourages the
parties to hire for themselves these sign language interpreters in order
that the testimony of the Deaf can be entered into the record.
However according to him, cases involving Deaf persons are not
difficult to decide on because what is being interpreted by these
interpreters can be put down into writing and can be placed in the
record by the stenographers. Also, the court has to rely on the
presumption of regularity and honest intention of the sign language
interpreters since the judge has no familiarity with sign language.
However, the observance of the demeanor of these sign language
interpreters whether they speak the truth or not for Judge Himalaloan
is hard to determine resulting them to just rely on the end product
interpreted but they can observe non-verbal communication like
emotions from the Deaf party which according to Judge cannot be
hidden. Despite this, there is no special consideration given to cases
involving Deaf persons, Judge Himalaloan firmly explained that the
court has to abide with the rules on evidence in deciding cases.
According to him, there is no difference between a normal person and
a handicapped and the court treat all people equally according to the
rules of court.

On the other hand, it is on the presumption of good faith that the

credibility of the sign language interpreters that the judge relies on,
that they are regular in their performance of function of the
interpreters and that there is that honest intention from the
interpreters. Judge Himalaloan further explained that the court cannot
do otherwise because if they will not put up this certain presumption of
good faith, the trial becomes useless. Nevertheless, he recognized that
it is better to institutionalize this commonly employed mechanism but
the problem is that it should be within the court framework but funds
for such are unavailable.

The questions on the problems and challenges they encountered

in cases involving Deaf persons described that they employed an
accredited sign language interpreter to provide assistance to the Deaf
during court proceedings in a case where the Deaf involved was a
witness. According to the key informant, she cannot provide answer on
the difficulty of deciding cases involving Deaf persons because she felt
that she was not in the authority and competence. In terms of the
credibility of the message relayed by the sign language interpreter for
the key informant is positive because based on experience the one
recommended by the fiscal was an accredited sign language
interpreter. In general, the laws are not able to cater to the problem of
the Deaf community and in her opinion, it would be better to craft
special laws for the Deaf community so their needs can be focused on
and be addressed better.

So first, we wanted to know if the courts are sensitive and

responsive to the needs of the Deaf persons during court proceedings.
Guided by the principles above, we sought answers by asking the
relevant people: a Deaf person, officers from GVSP, authorities from
Courts of Region VII; and therefrom we found that the needs of the
Deaf persons in this context include sign language court interpreters,
psychological, emotional, and financial needs. What is worse is that
Deaf people find the experience during court proceeding difficult, due
to communication, illiteracy, conduct of legal officials, psychological
and emotional issues.

Meanwhile, it is to be underscored that the RTC Region VII is

cognizant of the particular need for sign language court interpreters;
however, this cognition has not been materialized. The commonly
employed mechanisms, procedures and practices of RTC vary from one
court to another; there is no standard operating procedure (SOP). On
top of that, the same is constrained mainly by lack of financial budget
for the hiring of sign language court interpreters and their unfamiliarity
of the laws for the Deaf community.

At the end of the day, both GVSP and RTC are open and keen to
collaboration with each other. This collaboration, if achieved, offers a
promising future to better uphold the rights of the Deaf and raise
awareness that would influence policy-making process through interest
articulation.

Conclusion

To lessen if not to address the lapses in the part of the RTC in

effectively catering to the needs of the Deaf, existing laws should be
revisited and if needed, special laws exclusive for the Deaf community
can be legislated. Awareness dissemination, on the other hand, of the
services for the Deaf of organizations like GVSP will have significant
impact on the catering of the needs of the Deaf since it is not only
limited to the courts but also to other relevant authorities such as
lawyers and police officers who are also responsible in helping provide
justice to the Deaf and to the community as a whole.

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