Module 4 - Gender, Work and Society lecture notes. PDF

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MODULE 4POLITICAL-LEGAL PERSPECTIVE OF THE PHILIPPINE GAD PROGRAMIntroductionThis subject is all about the various laws concerning gender issues in the Philippines. It elaborates a framework for understanding the GAD related laws based on the human rights perspective. It defines and classifies laws ...

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MODULE 4 POLITICAL-LEGAL PERSPECTIVE OF THE PHILIPPINE GAD PROGRAM Introduction This subject is all about the various laws concerning gender issues in the Philippines. It elaborates a framework for understanding the GAD related laws based on the human rights perspective. It defines and classifies laws according to the rights being covered and how rights are affected by the various laws. Learning Objectives By studying this module, you are expected to: 1. Explain the rationale for the study of the political and legal perspective of GAD and other relevant issues; 2. Explain the framework for understanding the laws relevant to the corresponding rights addressed by the laws and policies of the government; 3. Explain the rights-based approach; 4. Discuss the nature and overview of the Philippine Magna Carta of Women 5. Distinguish among the various laws covering social, economic, and cultural rights of women and other genders; 6. Identify the gender-responsive political laws; 7. Discuss the nature of criminal laws addressing gender issues; 8. Discuss the rationale and provisions of the proposed SOGIE Bill The Legal and Rights-Based Framework

Let us first understand the general basic legal framework in the following reading before we examine GAD related laws in particular. All About Law The knowledge of the law is presumed. The Civil Code provides that ignorance of the law excuses no one from compliance therewith (Article 3, Civil Code of the Philippines). Every responsible citizen must know and respect the sanctity of every law by faithfully observing them. It is also important that citizens know the provisions of the constitution because it is the paramount law of the land to which all other laws must conform. Laws, generally refer to:  A whole body or system of law  Rule of conduct formulated and made obligatory by legitimate power of the state  Body of laws that includes the Constitution, RAs, PDs, EOs, Presidential issuances (ordinance power), Jurisprudence, ordinances passed by Sanggunians of local government units.Republic Acts also known as statutes are laws passed by the national legislature. Presidential Decrees, Executive Orders and other Presidential Issuances are laws passed by the president in the exercise of his legislative power . The Hierarchy of Laws

Figure 4.1. The hierarchy of laws The figure above shows the hierarchy of laws. It shows that the Constitution is the highest law of the land to which all other laws conform. In case of conflict in the interpretation of laws as to which will prevail between ordinances and statutes, the latter will prevail. As to which will prevail between statutes, executive issuances, and

international law and the provisions of the constitution, the constitution will prevail. The former or its conflicting provisions will be declared void if they are contrary to the provisions on the constitution. Statutes, generally  An act of legislature (Philippine Commission, Phil. Legislature, Batasang Pambansa, or the present-day Congress), statutes are laws promulgated by people’s representatives in the Lower House and in the Senate. They reflect the will of the people at large. Classification of statutes as to their effect on individuals and masses 1. Public statutes– affect the public at large a. General statute– applies to the whole state and operates throughout the state alike upon all people or all of a class. b. Special statute– relates to particular person or things of a class or to a particular community, individual or thing. c. Local Law – operation is confined to a specific place or locality (e.g municipal ordinance) 2. Private – applies only to a specific person or subject. Classification of statutes as to the timeframe of their operation 1. Permanent statute- one whose operation is not limited in duration but continues until repealed. 2. Temporary statute- duration is for a limited period of time fixed in the statute itself or whose life ceases upon the happening of an event. o E.g. statute answering to an emergency Other classes of statutes  Prospective or retroactive statute – according to application  Declaratory, curative, mandatory, directory, substantive, remedial, penal statutes – according to operation  According to form o Affirmative o Negative Manner of referring to statutes Statutes are called by many names. The name by which it is called depends on the nature of the legislative branch or the name of the law-making body.  Public Acts – Phil Commission and Phil Legislature 1901- 1935  Commonwealth Acts – 1936- 1946  Republic Acts – Congress 1946- 1972, 1987 ~  Batas Pambansa – Batasang Pambansa  Identification of laws – serial number and/or title Executive Issuances These include the following: Presidential Decrees or PD’s of Marcos during the period of martial law 1973 Constitution. These are laws issued by the chief executive in the exercise of his legislative powers as sanctioned by the 1973 ConstitutionExecutive Orders or EOs of Aquino revolutionary period

Freedom Constitution Administrative Orders are also considered law issued by the President in aid of his executive functions. CONSTITUTION DEFINED Constitution The following define and describe the nature of Constitution:  fundamental law which sets up a form of government and defines and delimits the powers thereof and those of its officers, reserving to the people themselves plenary sovereignty;  written charter enacted and adopted by the people by which a government for them is established;  permanent in nature thus it does not only apply to existing conditions but also to future needs;  basically it is the fundamental laws for the governance and administration of a nation;  absolute and unalterable except by amendments;  all other laws are expected to conform to it. Constitution Construed as Enduring for Ages Constitution is a law designed to last for ages. It is not merely for a few years but it also needs to endure through a long lapse of time. It must be adaptable to various crisis of human affairs but it must also be solid permanent and substantial.  It must be construed as a dynamic process intended to stand for a great length of time to be progressive and not static FUNCTIONS OF THE CONSTITUTION The functions of the constitution enumerated as follows are not exclusive: 1. It governs the life of the people not only at the time of its framing but far into the indefinite future. 2. The express purpose of our Constitution: to protect and enhance the people’s interests 3. Its stability protects the rights, liberty, and property of the people (rich or poor) What a constitution is NOT:  It should NOT change with emergencies or conditions  It should NOT be inflexible  It should NOT be interpreted narrowly Words employed in writing the constitution should not be construed (interpreted) to yield fixed and rigid answers because its meaning is applied to meet new or changed conditions as they arise. Courts should interpret/construe the constitution so that it would be consistent with reason, justice and the public interest and not only serving the benefit of only a chosen few. CONSTITUTION AS THE HIGHEST LAW OF THE LAND The Constitution is the highest law of the land to which all other laws should conform. This is owing to the authorship of the people of the Philippines of this sacred document.

In case of conflict between the Constitution and the statutes passed by Congress or the ordinances passed by the local legislatures or even the legislative issuance of the President, it is the constitution that prevails. The Constitution also provides the ultimate basis for determining the validity of any treaty or international instruments entered into by the President. INTERNATIONAL LAW International law includes international agreements entered into by the members of the international community of nations or the United Nations. International law includes the following among others: Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women.

CLASSIFICATION OF LAW Types of law according to the rights covered The types of law according to the rights covered are as follows: 1. 2. 3. 4.

Social Economic Cultural Political

Types of law according to how the rights are affected The types of law according to how the rights are affected are as follows: 1. 2. 3. 4.

Civil Political Administrative Criminal

CRIMINAL LAWS AS DISTINGNUISHED FROM OTHER LAWS The laws mentioned above are equally important. However, we pay special attention to criminal law because of the following:  The level of obligation it requires on the part of the government is the highest, that of protection;  The potential impact on individual rights and freedoms of the accused as well as convicted persons is to deny them such as a form of penalty;  The purpose for which they are enacted and enforced it to protect the rights of the victims. Specific examples of gender-responsive criminal laws are discussed in Lesson 4.3 of this chapter. You must refer back to this section in examining the nature and substance of the cited criminal law in that section.

The framework of examining criminal’s laws include your understanding of the following elements as they are specifically and expressly provided in the law (you cannot, change, distort, add, or diminish what is clearly written in the law itself as they might greatly affect rights): 1. Definition of the crime. 2. What acts are prohibited 3. Who are the parties involved 4. Who are the accused as to the level of participation in the crime and what are their corresponding penalties? 5. The effectivity of the penal law The Rights-Based Approach Model Rationale for the Study of the Political-Legal Perspective of GAD In the previous module, you have learned that there are gender issues in society because of inequality set by society and reinforced by culture upon men and women, girls, and boys, and recently, other genders, in terms of stereotyped characteristics, roles, and expectations. This inequality is cascaded to the statuses, and the extent of access to, control and enjoyment of resources, benefits, and opportunities of the members of society based on gender. Because of inequality rights of marginalized sectors tend to be violated. The framework for studying this module is based on your understanding of what law is and its functions in terms of realization of human rights. Human rights are entitlements that are inherent and equal in all people because we are humans regardless of qualifications, conditions, or statuses. Human rights have standard characteristics of universality, equality, indivisibility, inalienability, duty and obligation. Reality and facts show that in many fields, areas, and oncerns, women and other marginalized sectors experience inequality and discrimination. You have so far learned that gender issues or conditions and situations where there is inequality and that the government is duty-bound to address them through the implementation of the laws, policies, and programs. This is precisely why we are using this framework in examining gender related laws and policies. Laws, generally refer to a whole body or system of law; or rule of conduct formulated and made obligatory by legitimate power of the state. Laws are classified in this module into four (4) kinds as to the kinds of rights they cover and the level of duty they assign to government as the duty bearer. So it is important that you know precisely what human rights (HR) are. The reading culled from the website of the United Nations will help you in this area.

From the UN Office of HR Commissioner: “What are human rights? Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all

equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. Human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law. Interdependent and indivisible All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others. Equal and non-discriminatory Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. At this point, you must know the following general principles of human rights: • Nature: Aspirations & Entitlements • Parties: Right-holder & Duty-bearer • State obligations: Respect, Fulfill and Protect As to state duties and obligations, the government as the duty-bearer, observes the following levels, lowest being Respect and highest is to protect. • Respect (government should be neutral); • Fulfil (provision of the needs or rights); and • Protect (police power is used). As to why gender issues are human rights issues, the following holds true: • The basic inequality between genders as to access to power, resources, benefits, opportunities are a violation of the HR principle of non-discrimination, equality and universality • The violation of the various rights of women, other genders that affect their status is a basic gap in the performance of the functions of duty-bearers, namely the government and its units.

Undoubtedly, human societies strive to respect, provide and protect human rights because of the following goals for the marginalized: • Non-Discrimination • Empowerment • Equality • Equity • Human Dignity The processes of achieving realization of human rights involve the following: – Accountability – Good Governance – Independence of Judiciary – Legislative Capacity – People’s Participation – Transparency HUMAN RIGHTS CONCEPTS Human Dignity  each individual regardless of status deserves to be honoured and esteemed Empowerment  power to act for and on one's own behalf to claim one's rights;  emphasizes efforts of people themselves to bring about necessary changes towards the full realization of all human rights, including that which comes with the acquisition of critical analysis of one's situation. Equality  human rights are enjoyed by all on an equal basis, where women and men should equally exercise all their human rights and equally enjoy their fruits.  does not mean identical treatment at all times. Equity  characterized by fairness, justice and impartiality  being fair is to use strategies and measures to compensate for ongoing, historical, and social disadvantages that prevent certain groups from otherwise operating on a level playing field.  towards achievement of equality. Non-discrimination  all are entitled to human rights and to enjoy the fruits of development without distinction of any kind, exclusion, restriction or preference based on any of the following: race, color, gender, age, language, disability, political or other opinion, nationality or other social origin, property, birth, or other status.  Non-discrimination  indirect discrimination occurs when a law, policy or programme does not appear to be discriminatory, but has a discriminatory effect when implemented. Attention to Vulnerable Groups  recognizes the fact that there are certain groups in society, compared to the general population, which are most prone to and defenseless against abuses or violations of their human rights by reason of their contexts rooted in cultural and social inequities.

Indivisibility  entitlement to a totality of things  rights have no hierarchy  denial of one right invariably impedes enjoyment of other rights Interrelatedness/Interdependence  efforts must ensure that all human rights are realized in an integrated manner Universality  Human rights belong to everyone, everywhere, since they are inherent and inalienable to being human. Transparency  to see openly into all activities of government  government must ensure full, free and public disclosure of all its decisions, policies, rules, etc.  information disclosed to the public must be complete and of high quality, in easily understandable forms, timely, freely available and directly accessible to all Accountability  answerable to those it governs and responsible for all its decisions and actions  violations of human rights may come in the form of direct action, inaction or omission on the part of the State to respect, protect or fulfill the right or other adjudicator  Accountability  proceedings for appropriate redress before competent court or other adjudicator  the capacities needed by the rights-holders to assert and claim their rights  Accountability  policy formulation must clearly determine the human right to be addressed, what must be done, what is the standard, who is accountable and what are the remedies made available, as well as the availability of needed capacities or resources to build lacking capacities Participation  informed participation  autonomy as an organization respected and protected at all times  opportunities for people to be capacitated and empowered  Participation  voluntary, recognized by law, free, and active  raise the critical consciousness of the individual  must include participation in decision making processes. Good Governance  creation of an enabling environment that is conducive for the enjoyment of all human rights and its fruits, characterized by participatory, consensus-oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive governance, and following the laws Good Governance  involves a process whereby societies or organizations make their important decisions, determine whom they involve in the process and how they render account

true test of governance is the degree to which it delivers on its promise of human rights. Legislative Capacity  Human rights standard must be guaranteed by law  the State cannot use any of its domestic processes to evade any of the obligations, hence legislature must enact laws to repeal discriminatory laws or those laws that are in contravention of or impedes State compliance with human rights. Independence of the Judiciary • the judiciary should decide on all matters before it impartially, on the basis of fact, in accordance with law, without improper influence or pressure. 

4.1 CEDAW AND THE MAGNA CARTA OF WOMEN AND THE PHILIPPINE GAD PROGRA M In this lesson, two types of laws are involved: International and National law. They are bundled together because as far as our legal system is concerned, they are treated on the same level as to enforceability. Many have the misconception that because international laws and conventions are issued by international bodies, they must automatically be regarded as a hi...