Sources of law and legal traditions

3.1 The Constitution

The 1987 Constitution is patterned after the US Constitution, which provides for a system of checks and balances to prevent concentration of powers in one branch of government and contains explicit guarantees of fundamental liberties.²⁹ It likewise â€?adopts the generally accepted principles of international law as part of the law of the land.'³⁰ Section 21 of the Constitution requires at least a two-thirds vote of all members of the Senate for a treaty or international agreement to be valid and effective.

25 �FidelRamos' (2010) Encyclopedia Britannica.

26 EDSAII (pronounced�EDSADos'), isthecommonnameofthefour-daypeacefulrevolutionthatoverthrew Estrada during 17-20 January 2001. EDSA is an acronym derived from �Epifanio de los Santos Avenue', the major thoroughfare connecting the five cities in Metro Manila.

27 �Film-Star Ex-President of Philippines, Joseph Estrada, Is Jailed for Life' (12 September 2007) Times Online.

28 R Pangalangan, �Political Emergencies in the Philippines: Changing Labels and the Unchanging Need for Legitimacy', in V Ramraj and A Thiruvengadam (eds), EmergencyPowers in Asia: Exploring the Limits of Legality, Cambridge UniversityPress, Singapore, 2009, p. 416.

29 ibid.

30 Constitution, art 2, s 2.

31 The instrument was signed by the Philippines on15 July 1980.

3.2 Statutes

The approval of both Houses of Congress and the assent of the President (or an overriding of his or her veto) are required to pass Republic Acts or statutes.

The erstwhile unified (because of the Roman Catholics) regime of civil law has further fragmented with the acceptance of indigenous rites and traditions relating to family, marriage, and land ownership of members of indigenous cul­tural communities. According to s 29 of the Indigenous Peoples Rights Act,^[1158] the Government �shall respect, recognize and protect the rights of ICCs/IPs^[1159] to pre­serve and protect their culture, traditions and institutions.' As such, marriages of indigenous peoples may be solemnised by community elders and tribal lead­ers who have the duty to report and have these marriages recorded with the ICC/IP Civil Registration Systemwithin 30 days. Likewise, the dissolution of the marriages celebrated under customary rites is granted by the council of elders or other tribunal/body authorised under the indigenous community's political structure, totally bypassing the civil courts.^[1160]

Implementing Rules and Regulations

Implementing Rules and Regulations are issued by relevant Government offices to elaborate on the provisions of statutes.

Local ordinances

Pursuant to the policy of the state that territorial and political subdivisions shall enjoy genuine local autonomy �to enable them to attain their fullest development as self-reliant communities’, the Local Government Code of 199141 decentralised government. Local legislative power was granted to the various councils.^{[1161] [1162] Section 54 of the Code states that every ordinance enacted by the local legislative council shall be presented to the local chief executive con­cerned (that is, the provincial governor, or city or municipal mayor, as the case may be) who may approve or veto the same. The council may override the veto of the local chief executive, thereby making the ordinance or resolution effective.}

All laws, rules and ordinances are considered constitutional until challenged and declared otherwise by the Supreme Court using the express power of judicial review, enunciated under art VIII of the 1987 Constitution. Thus, it is usual for statutes, for instance, The Anti-Rape Law of 1997, to have a separability clause that states that if any part of the law is declared unconstitutional, the other parts shall remain valid.^[1163]

3.3 Disrespect for the hierarchy of sources of law: the example of women’s rights

This hierarchy of laws is clear but whether or not statutes and lesser laws adhere to this pecking order is a different matter. For instance, the Constitution abounds with provisions recognising and protecting women’s rights. Foremost among these are the provisions on sexual equality enshrined under the general statement of the equal protection clause,^[1164] and a more specific one on the role of women in nation-building and the fundamental equality between men and women.^[1165] Moreover, the Constitution specifically identifies the women’s sector as one of the marginalised groups accorded representation in Congress through the party-list

system;^[1166] gives women priority in health development programs where essential goods, health and other social services should be available at affordable cost;^[1167] and provides safe and healthful working conditions to women workers �taking into account their maternal functions'.^[1168]

These constitutional provisions paved the way for the passage of RepublicAct 7192, otherwise known as the WomeninNationBuildingAct, which is considered a legal milestone for Philippine women's rights.^[1169] The Act abolished several oppressive laws applicable to women, particularly married women.

Further, RepublicAct 9262, also called the Anti-ViolenceAgainst Women and Their Children (VAWC) Act, which took effect on 27 March 2004, punishes acts �which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation ofliberty.'^[1170] Itprovides legal access to protection orders which are issued to safeguard the victim from further harm, minimise any disruption in the victim's daily life and facilitate the opportunity and ability of the victim to independently regain control over her life.^[1171]

However, despite the Constitution and these laws, discriminatory provisions still exist in the area of family law. Under art 211 of the Family Code of the Philippines,^[1172] the father and motherjointly exercise parental authority. However, in case of disagreement, the law provides that the father's decision prevails unless there is a judicial order to the contrary. This partiality for the male's decision is reiterated in arts 96 and 124 of the Code, which give both spouses joint administration of their marital property but again confer to the husband the right to assert his decision.^[1173]

In the 36th session of the CEDAW Committee held on 7-25 August 2006, the Committee observed:

While the Convention has been in force in the State party for 25 years, the Committee notes with great concern the lack of progress in undertaking and completing necessary revisions of discriminatory provisions in national legislation and in enacting a compre­hensive legal framework pertaining to gender equality.

The law is likewise prejudiced against children born out of wedlock. The UN Committee on the Rights of the Child observed that the Philippines has yet to address the discriminatory provisions of existing laws such as the Family Code and RepublicAct 9255,^[1175] in particular their classification of�illegitimate’ children and their unequal right to inheritance.^[1176]

There is a disjunction between the grand language of civil liberties in the Constitution and the statutes that are meant to merely amplify and give sub­stance to the broad constitutional principles. The absence of initiative from Congress to amend these discriminatory laws, or of the courts to declare them unconstitutional, demonstrates a weak legal system where even the Constitu­tion is merely a guide for conduct and not the standard to which conduct must conform.

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