Posted by: nupl | July 2, 2008

IDENTIFYING LEGAL SYSTEM OBSTACLES TO LEGAL REMEDIES FOR ESCR VIOLATIONS WITHIN THE CONTEXT OF SYSTEMIC VIOLATION OF PEOPLE’S RIGHTS

[Paper drafted by NUPL members for the Supreme Court Forum on Increasing Access to Justice, June-30-July 1, 2008, Manila, Cagayan de Oro and Cebu, Philippines]

Any genuine initiative, as long as it is consultative and participatory, to identify and eliminate factors which impedes the access to the justice system by victims of economic, social and cultural rights violations is a positive development for human rights legal work. NUPL officers who met with Chief Justice Reynato Puno in January 2008 have expressed to the Chief Justice their intent to participate in the Supreme Court’s forum on “access to justice” issues with the aim of helping bring to the Court’s and the public’s attention the procedural and substantive factors that make it difficult for victims of economic, social and cultural rights violations to access the justice system for legal redress. It is with this aim that NUPL members, who are providing legal services to various sectors on a host of social, economic and cultural rights issues mainly cases involving agrarian, labor, environment, gender, indigenous peoples and urban poor issues are participating in the Cagayan de Oro, Cebu and Manila forums.

Even if we propose procedural reforms towards helping eliminate access to justice impediments, NUPL would like to stress that the legal system obstacles go beyond procedural problems found In the Rules of Court. We agree with the Chief Justice who admitted that reforms of the rules of court under the rule-making powers of the Court cannot be the ‘panacea’ that will ensure justice for human rights violations victims. The violations of the peoples economic, social and cultural rights cannot be dismissed as mere acts of greedy individuals since they result from a system concerned with extracting huge profits from exploiting the country’s resources and its people. It is, therefore, not surprising for the executive branch under Pres. Gloria Arroyo to tolerate violations of the peoples’ ESC rights by big business. Worse, the Executive directly participates in the violations of these rights themselves by paving the way for globalization to ravage the country’s economy, allowing transnational corporations to exploit our country’s resources in violation of the Constitution, and committing a host of other executive actions that only increase poverty among the people. The Congress contributes to the system by passing laws detrimental to, if not violative of, these rights such as laws pertaining to oil deregulation, mining and EVAT. The legal victories of the people in redressing violations of civil and political rights through the judicial system have been few, but legal victories seeking redress for ESCR violations have been scarcer as the urban poor, the farmers, workers, indigenous people, women and many other marginalized sectors suffered defeat after defeat before the courts on legal issues involving, inter alia, their right to housing, right to land, right to work and unionize, the right to equality before the law and other rights involving their access to the country’s resources and their just share of the income from their labor.

In short, even if the judiciary and the rules of court lives up to its declaration to fairness and equality for all, it cannot provide substantial justice to those that are already hampered by lack of resources, lack of lawyers, and disempowerment even before they file their first pleading under a system where laws favour the rich and the greedy mining firms, employers, landlords and other vested economic interests. Levelling “the playing field” requires more than equal footing for parties to a case where one party comes from the marginalized and underrepresented sectors.

Legal system impediments

Human rights lawyers, therefore, should propose procedural reforms aware knowledge that efforts to facilitate access to justice by the poor must contend with a system that has failed and is unable to accord them justice for a long period of time.

The NUPL, from the long experience of its members nationwide, has identified procedural gaps and roadblocks to access to justice such as those involving the following:

1. “Criminalizing” labor and agrarian disputes when employers or landlords file criminal or civil cases against the workers and the farmers and the need for the courts to defer action on these cases pending certification by concerned agencies that the parties to a criminal or civil complaint are involved in a labor or an agrarian dispute.

2. Insufficiency of the rules on pauper litigants to alleviate the economic difficulties of the poor in resorting to court actions and the need to cut down on legal costs for these actions such as exemption from docket fees, limiting the copies of pleadings and the certified true copies required in ESCR cases and related issues involving bail-recognizance and encouraging lawyers to provide legal services to the poor.

3. The setting of a hearing on the issue of custody for detained minors, within three days from the visitation of a judge under Rule 114 of the Rules of Court and the speedy disposition of the same.

4. The issues involving the technical nature and the language of the court and the use of Filipino as the language of the courts and the resolution of ‘small claims’ for speedy justice.

5. Indepth study of the rules on injunction and temporary restraining orders in relation to ESCR cases, and providing for rules akin to a writ of amparo for ESCR issues

6. Encouraging participating from genuine advocates on gender issues, children and family issues, indigenous peoples issues, and agrarian issues in sensitivity seminars for judges and court personnel and providing judges specialized knowledge or skills to deal with these.

7. Rules related to encouraging human rights work among lawyers.

8. Many other legal issues involving procedural and substantive impediments related to writ of execution in demolition cases,

Due to the inability of the NUPL to access the forum guide and other documents related to the workshops, the paper of the NUPL detailing proposals above cannot be finalized in time for the same. NUPL lawyers drafted proposals for the Supreme Court Summit last year which were later found in the rules of the writ of amparo, such as the archiving rather than the dismissal of habeas corpus petitions and inapplicability of the norm on presumption of regularity for public officials charged with human rights violations. We hope to similarly contribute to the Forum if given the opportunity. There is one major issue, however, that the NUPL would like to bring to the Court’s and the public’s attention during the forum—the issue of harassment suits filed against rights advocates by violators of these rights, known in many western jurisdictions as “SLAPP-cases”.

Proposed Amendment to the Rules to Contend with SLAPP cases

SLAPP: Nature and Concept

A Strategic Lawsuit Against Public Participation (SLAPP) is a legal action intended to harass, vex, exert undue pressure, and stifle the resources of organizations, local residents, community groups, and individuals who are engaged in the exercise of their constitutional rights on matters involving public, social, economic, or community concern, interest, and welfare.

Simply put, the SLAPP actions are designed to intimidate and silence critics and opponents by burdening them with the cost of a legal defense so that they would be forced to abandon their criticism and opposition on matters of public, social, economic, or community concern, interest, and welfare. Hence, SLAPP actions involve a violation of the economic, social, and cultural rights of the people charged with such suits.

SLAPP actions typically involve the environment as the subject matter of public participation (e.g. (1) local residents who are petitioning to change zoning laws and are protesting to prevent a real estate development in their area are sued by the developer, (2) environmentalists and activists are sued by mining companies for protesting against the mining companies and mining operations).

The means used by organizations or individuals to engage in public participation as regards environmental or other public concerns, which consequently resulted in SLAPP actions against them, are usually in the form of the following:

1. The exercise of their right to free speech;

2. The exercise of the right to peaceably assemble; and

3. The exercise of the right to petition the government for redress of grievances.

Anti SLAPP rules in other jurisdictions

Many jurisdictions, such as the United States, Canada and European countries have anti-SLAPP rules. The California Rules on Procedure contain anti-SLAPP provisions under Section 425 [1992 amendment],[1] Section 425.17 [September 6, 2003 amendment] and Section 425.18 [October 6, 2005 amendment]. [2]Part III, “Court, Judicial Officers and Proceedings”, Title II, Chapter 21, Section 59H of the Massachusetts Rules of Court also have anti-SLAPP provisions. Republic Act 9003 otherwise known as the “Ecological Solid Waste Management Act of 2000” have anti-SLAPP provisions under section 52 and 53. There is a need, however, for a comprehensive treatment of SLAPP cases under the Rules of Court in order to contend with increasing use of these harassment suits, which includes the participation of a politicized Secretary of Justice, in order for the judiciary to be adequately armed in protecting the peoples’ constitutional rights from SLAPP actions and also help eliminate court-clogging harassment suits from the judicial dockets.

Proposed Amendments To The Rules of Court To Include Anti-SLAPP Provisions

Given the circumstances of the scope and limitations of the anti-SLAPP provisions in the Philippines and in other jurisdictions, we submit the following as the possible amendments to the Rules of Court.

I. Motion To Dismiss/Motion For Determination

(1) The means that may used by any individuals, organizations, community groups, or organizations to engage in public participation, which consequently resulted in SLAPP actions against them, may be any of the following:

(a) Exercise of the right of freedom of speech;

(b) Exercise of the right of freedom of expression;

(c) Exercise of the right of freedom of the press;

(d) Exercise of the right of the people peaceably to assemble; or

(e) Exercise of the right to petition the government for redress of grievances.

(2) The subject matter of public participation is anything that involves matters of public, social, or community concern, interest, or welfare, and is not limited only to issues of the environment;

(3) If an action, criminal, civil or administrative, is filed against any individuals, organizations, community groups, people’s organizations as a result of the exercise of any of the above-stated rights, the following shall govern:

(a) Civil SLAPP Actions

(1) A motion to dismiss on the ground that the action is a SLAPP action may be filed with the Court where the action is pending;

(2) If the motion is granted, the Court shall dismiss the action, and award attorney’s fees and damages to the movant;

(3) The right to file said motion to dismiss is available even when the civil SLAPP action falls under summary procedure;

(4) Hence, Rule 16, Section 1 of the Rules of Civil Procedure is amended by including in the enumeration of the grounds for motion to dismiss the ground That the action is a strategic lawsuit against public participation;”

(5) Section 19 (a) of the 1991 Revised Rule on Summary Procedure on prohibited pleadings and motions is amended as follows: “Section 19 (a) Motion to dismiss the complaint or to quash the complaint or information except on the grounds of lack of jurisdiction over the subject matter, the civil complaint is a strategic lawsuit against public participation, or failure to comply with the preceding section;”

(6) However, even if such ground “that the civil action is a strategic lawsuit against public participation” is not pleaded either in a motion to dismiss or in the answer, such ground is not waived, and can be invoked by the court motu proprio.

Hence, Rule 9, Section 1 of the Rules of Civil Procedure is amended to read as follows:

“Rule 9, Section 1. Defenses and objections not pleaded. – Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, that the action is barred by a prior judgment or by statute of limitations, or that the action is a strategic lawsuit against public participation, the court shall dismiss the same.”

(b) Criminal SLAPP Actions

(1) The investigating prosecutor or the court, as the case may be, has the duty to conduct a determination whether the complaint or information is a SLAPP action, motu proprio. However, such duty of the investigating prosecutor or the court does not preclude the respondent or the accused from filing a motion for determination of the complaint or information, as the case may be, as a SLAPP action;

(2) If the case is filed with the office of the prosecutor for purposes of preliminary investigation or in Manila and other chartered cities, unless otherwise provided in their charters, a motion for determination of the complaint as a SLAPP action may be filed by the respondent with the said office;

(3) The investigating prosecutor has the duty to conduct such a determination. If he finds that the complaint is a SLAPP action, then he has the authority to dismiss the same in accordance with his authority to dismiss a criminal complaint under Rule 112, Section 3 (b) of the Rules of Criminal Procedure. The finding of the complaint as a SLAPP action means that there is no probable cause that would warrant the filing of the information;

(4) If the complaint is dismissed by the investigating prosecutor on the ground that it is a SLAPP action, attorney’s fees and damages cannot be awarded to the respondent because only the court can make such award, and the prosecutor has no authority to make such award;

The recourse of the said prevailing respondent is to file a SLAPPBack action for damages against the losing complainant after the dismissal of the SLAPP criminal complaint is already final and executory. If the SLAPPBack action prospers, attorney’s fees and damages shall be awarded to the complainant of the said action;

(5) If the investigating prosecutor finds that the complaint is not a SLAPP action, only then shall he issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents;

(6) Even if a motion for such determination has been filed with the office of the prosecutor, and the prosecutor finds that the complaint is not a SLAPP action, such motion may likewise be filed with the Regional Trial Court or Metropolitan Trial Court, as the case may be, where the information has been filed by the prosecutor, in accordance with the duty of the judge to conduct a preliminary examination for purposes of the issuance of the warrant of arrest;

(7) If the case if filed directly with the Municipal Trial Courts, in cases where such is allowed, a motion for judicial determination of the complaint as a SLAPP action may be filed with the court where the complaint or information is pending. This determination is part of the duty of the judge to make a determination on whether there is probable cause to issue a warrant of arrest under Rule 112, Section 9 (b) of the Rules of Criminal Procedure;

(8) If the criminal complaint or information falls under summary procedure, a motion for judicial determination of the same as a SLAPP action may likewise be filed in accordance with the duty of the court under Section 12 (a) and (b) of the 1991 Revised Rules on Summary Procedure;

(9) If the Court decides to dismiss the criminal action, whether based (1) on its own initiative or (2) on motion of the accused, that the action is a SLAPP action, the Court shall award attorney’s fees and damages to the accused;

(c) Administrative SLAPP Actions

(1) A motion to dismiss on the ground that the action is a SLAPP action may be filed with the administrative agency where the action is pending;

(2) If the motion is granted, the administrative body concerned shall dismiss the action and award attorney’s fees and damages to the movant;

II. Non-Applicability of Motion To Dismiss/Motion For Determination

(1) The right to file a motion to dismiss or motion for determination, as the case may be, does not apply against any legal action brought solely in the public interest or on behalf of the general public;

III. Right To File A SLAPPBack Action

(1) The defendant, respondent, or accused, as the case may be, when an action (civil or criminal) against him has been dismissed on the ground that the same is a SLAPP action, and the dismissal is already final and executory, may also recover attorney’s fees and damages through the filing of the so-called SLAPPback action for damages against the complainant in the dismissed SLAPP action;

(2) The attorney’s fees and damages that may be recovered through a SLAPPBack action are different from the attorney’s fees and damages that may be recovered as a result of the dismissal of the original SLAPP action;

(3) A motion to dismiss on the ground that it is a SLAPP action cannot be filed against a SLAPPBack action;

IV. Period To File

(1) The motion to dismiss or motion for determination, as the case may be, may be filed in accordance with the applicable periods established by the Rules of Court.#

Refernces:

NCR – Atty.Neri Javier Colmenares – 09178350459

CEBU – Atty. Alfonso Cinco IV –09189027334

CAGAYAN de ORO – Atty.Frederico Gapuz – 09063475709


[1] The said section was enacted to counter the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of (1) freedom of speech and (2) petition for the redress of grievances;”

SLAPP action against a person arising from the exercise of his or her right of petition for redress of grievances or right of free speech may be dismissed upon a special motion to strike (to be filed by the defendant, the one against whom the SLAPP action was filed), unless the court determines that the plaintiff (the one who filed the SLAPP action) has established that there is a probability that the plaintiff will prevail on his claim;

If the special motion to strike is granted by the court, the defendant (the one against whom the SLAPP action was filed) is entitled to recover his or her attorney’s fees and costs;

[2] The acts in furtherance of a person’s right of petition or free speech in connection with a public issue, where a special motion to strike may be filed against a SLAPP action in case one is filed, include:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
         (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;
         (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

a. The special motion to strike may be filed within 60 days from the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper;

b. The order granting or denying the special motion to strike is appealable.

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