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Archive for June, 2016

Lost Identity: The Plight of “Stateless” Children

According to the Office of the UN High Commissioner for Refugees (UNHCR) there are about 12 million stateless people globally, of which about 6 million are believed to be children. These include adult refugees, asylum seekers and stateless persons, especially unregistered children. In South Asia and Sub-Saharan Africa, only a third of all children under the age of five are registered at birth. Sub-Saharan Africa is the region with the highest percentage of unregistered births; however, South Asia has the largest number of unregistered children in any one region.
Each year around 50 million of the world’s newborn remain unregistered, primarily in developing countries. Many countries, like Afghanistan, Cambodia, Eritrea, Ethiopia, Namibia, and Oman, have no mandatory birth registration system. In some countries like Bangladesh, Liberia and Ethiopia the birth registration figure for under-fives stands at ten per cent or less.
When political turmoil leads to state dissolution or the fleeing of citizens to other countries, the incidence of children becoming or being born stateless is high. State dissolution, in general, often leads to people losing their citizenship rights. Poor families, including families of migrant workers and bonded laborers, face economic obstacles that prevent parents from registering their children.
Other reasons include lack of political will, inadequate infrastructure, low awareness among parents and high costs of obtaining a birth certificate. Discrimination based on gender and ethnicity is also one of the factors. Children who are not registered at birth are more likely to be rendered stateless as they are unable to prove their parentage or place of birth. The situation is worse for children who are born to stateless parents.
Such is the case of some residents-deportees from Sabah, Malaysia. Forcibly repatriated to Zamboanga in the Philippines, these people’s Filipino heritage can actually be traced to their parents’ nationality, albeit without proper documentation and in spite of their claims of long-time residence in Sabah, Malaysia. It is important to note that their situation applies to both minors and adults. And their lack of legal documentation can be attributed to poverty and limited education, which in turn lead to the failure of appreciating the significance of having appropriate identification papers.
Clearly, one’s “Stateless” status comes from lack of proper birth registration and/or non-issuance of legal identification documents. For adults, some have papers indicating their original citizenship or nationality to start with, but children who have never been registered or issued a birth certificate have bigger problems because they are technically legal “non-entities”.
The issue of “stateless children” is of particular significance because it is a concern directly related to child rights protection. Stateless children are deemed the most vulnerable, if not marginalized by society. A child without proof of citizenship or nationality is also deprived of the rights associated with citizenship. A stateless child oftentimes does not have access to basic rights like education, healthcare, the right to residence or to travel, safety or well-being. Without official documents, a child may be prosecuted for a crime as an adult. In addition, children without proper birth records are often targeted by traffickers and child sex exploiters because they are also easier to hide and manipulate.
The phenomenon of “stateless children” is not in accordance with Article 15 of the Universal Declaration of Human Rights (UDHR) which asserts that everyone has a right to a nationality. It is also violative of Article 7 (1) of the Convention of the Rights of the Child (CRC) which states that “national governments must register children immediately after birth and children enjoy the right from birth to acquire a nationality.”
According to the CRC, governments must place their international obligation to protect children’s right to nationality ahead of other national considerations. The CRC states that national governments have a duty to grant children born in their territory citizenship if the child is not recognized as a citizen by any other country. States that have ratified the CRC are expected to put into practice policies and programs that guarantee that children’s families and national authorities can secure citizenship for every child in that nation.
Yet there are legal barriers to establishing nationality, especially in countries where citizenship is determined by parents’ nationalities or the birthplace of the child. some cultures or governments require evidence of a child’s “legitimacy.” Most societies define an illegitimate child as a child born out of wedlock. Where citizenship is granted on the basis of a parent’s nationality, legitimacy may be an important factor in determining which nationality the child “inherits.”
For some children borne of Japanese, Korean and Filipino parentage who are unmarried, otherwise known as “JaPinoys” and “Korea-Pinoys”, as well as illegitimate children of Overseas Filipino Workers (OFWs) in the Middle East, their Filipino parentage can be traced based on their parents’ passports. However, there is great difficulty in getting these children proper documentation because their parents’ relationships are either illicit, their presence and employment in the country is illegal, or there is a conflict in the application of private international laws. In this case, it is minors or children born or living abroad who are most affected, and cannot even travel or be returned to the Philippines.
In this case, vital information must be revealed by the parents themselves, and/or an adult who has full knowledge of the child’s status via supporting documents and executed affidavits. With these information (paternity and filiation, citizenship, legitimacy) clearly verified, only then can Philippine officials at the embassies and consulates issue the proper documents. We must be reminded that, similar to a passport, a birth certificate actually states “substantive” information on a person’s status, ie., his/her parentage or filiation, whether or not he/she is a legitimate or illegitimate child, his/her citizenship and nationality based on his/her parents. These attributes cannot simply be conferred by the Department of Foreign Affairs consular officer, but is actually determined by law.
Occurrences that lead to “stateless children” like political turmoil and armed conflict, poverty and labor migration, are realities that will not go away. But it is imperative that children born in refugee camps, evacuation centers, relocation sites or private homes, instead of hospitals and medical facilities, be formally documented and officially registered. Without proper registration or proof of birth, a child is deprived of an identity – an indispensable aspect of his humanity.

The Dilemma of an Unmarried Mother: A Policy Imperative

During my early years at DSWD, I was first connected with the Department’s Legal Services and was exposed to a variety of administrative cases against employees. One case which got me started in pushing for more gender equality from within was a complaint filed by the Executive Director of an attached agency against her young staff for getting pregnant “out-of-wedlock”. We all know how that was joyfully resolved, although I am surprised that no one remembers it as a matter of policy. The institutional memory and historical context is important because there were other cases that followed involving my own colleagues in my new office at Pdpb Dswd, and the other bureau directly above our floor. The insensitive comments that proliferated in the afternoon shuttles going home could’ve been shot down as early as five or seven years ago, had the matter been formally tackled and a concrete policy put in place.

Today, I cringe at the term “getting pregnant out-of-wedlock” as a concept from the so-called Dark Ages when women alone were castigated for having children without the benefit of marriage. (I personally prefer the terms “unmarried mothers” or “single parents”) For men, having fathered “bastards” and not making honest women of these mothers is not so bad. It’s even considered as a sign of “machismo”.

But it’s a totally different matter for women. Those were the days when the moral “double-standard” was so prevalent, when the burden and responsibility of having kids seems to be solely on the female’s shoulders. As if women got that way (pregnant) by themselves.

In this new, “enlightened” era of sexuality, we know better and acknowledge that everyone is bound to engage in sex, legally or illegally, morally or immorally. It is a matter of “privacy” in its very essence but at the same time, a conduct which may be regulated by the State in the interest of public health and safety, as well as in terms of human rights and social order. Thus, most laws and government policies now admit that males are jointly responsible and just as to “blame” for pregnancies and children being born into this world. Read: I am invoking the spirit behind the RPRH law (RA 10354) here!

However, left to the discretion and will of employers and supervisors, it is unfortunate that personal beliefs and ideas on morality still come into play, and may leave some women “victimized” and continually stigmatized for getting pregnant and choosing to be mothers.

Let me spell this out for you: Some of these brave women could have chosen not to go through with their pregnancies and simply get abortions, but instead, they had the courage and the conviction to keep these babies even with the overwhelming prospect of rearing and caring for them on their own.

So are you going to be that Terrible Boss who dismisses or terminates her staff, or does not renew an employment contract because a female employee got pregnant and is now a Solo Parent?

In terms of employee rights and welfare, I firmly believe this is not good labor practice. It is downright uncompassionate and hypocritical, illegal even, especially when the man responsible for getting the woman pregnant doesn’t get sanctioned and still remains in service.

Shall I dare to say it? Yes, we do have strong legal bases protecting women in such situations. RA 8972 known as the Solo Parents Act of 2000 and RA 9710 known as the Magna Carta of Women embody these legal protections. Similarly anchored on the principles set forth in the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), these laws prohibit discriminating against a woman based on her gender and her accompanying reproductive functions, including all such consequences as child-bearing.

Still need further basis? Here’s the Supreme Court’s AM No.-P-07-2333 and it doesn’t get more explicit than this.

• “X x x For purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral under civil service laws. For such conduct to warrant disciplinary action, the same must be grossly immoral, that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. x x x”

• “x x x For a particular conduct to constitute disgraceful and immoral behavior under civil service laws, it must be regulated on account of the concerns of public and secular morality. It cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded on cultural values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws. At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect behavior that may be frowned upon by the majority. x x x”

• Under these tests, two things may be concluded from the fact that an unmarried woman gives birth out of wedlock:

(1) if the father of the child is himself unmarried, the woman is not ordinarily administratively liable for disgraceful and immoral conduct. [18] It may be a not-so-ideal situation and may cause complications for both mother and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief systems irrespective of dogmatic origins. [19]

(2) if the father of the child born out of wedlock is himself married to a woman other than the mother, then there is a cause for administrative sanction against either the father or the mother. [20] In such a case, the disgraceful and immoral conduct consists of having extramarital relations with a married person. The sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. x x x”

“x x x One’s employment is not merely a specie of property rights. It is also the means by which he and those who depend on him live. It is therefore protected by the guarantee of security of tenure. And in the civil service, this means that no government employee may be removed, suspended or disciplined unless for cause provided by law and after due process. Unless the constitutional guarantee of due process is a mere platitude, it is the Courts duty to insist on its observance in all cases involving a deprivation, denigration or dilution of ones right to life, liberty and property. x x x”

I hereby rest my case and enjoin all GAD Focal Persons and Core Group of Women’s Welfare Specialists, or self-avowed Gender Advocates and Women’s Human Rights Defenders to read this.

When Things Come Back to Haunt Us: The Ghost of RB

Five (5) years ago, I got in trouble due to someone’s malicious insinuations I was sharing “confidential” information to my friends. But everyone knows my advocacies include women’s rights and welfare even before I joined DSWD. In fact, it was to DSWD’s benefit that the knowledge and skills I learned from my mentors in the women’s network was what fed much of my policy formulation and development functions. If there was any “inside” information being leaked, it was the other way around…my friends were the ones who provided me useful data that helped my dayjob.
I always believed in DSWD’s mandate of protecting vulnerable and disadvantaged sectors. As such, we should have supported the case of RB filed before the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) under the mechanism of the Optional Protocol. Ms.B was not only an ordinary victim of gender-based violence. Besides being a female, she was a deaf-mute and was a minor when she was raped. Thus, her case involved the intersecting welfare and rights of Women, Children and Persons with Disabilities (PWDs), all of which fall within the jurisdiction of the DSWD.
At the heart of this case was an in-depth discussion on the status of implementation of our Anti-Rape law. The problems highlighted in Ms. B’s communication to the United Nations High Commissioner for Human Rights exemplifies the gaps and flaws in Republic Act No. 8353, and makes the current initiatives in Congress to amend the Anti-Rape Law of 1997 even more relevant. While Ms. B’s case was primarily “mishandled” by the court, there were other aspects in the enforcement of the law where its express provisions were not only NOT followed, but were actually “violated”.
Republic Act No. 8505 explicitly requires a FEMALE police officer to conduct the initial interview, but it was a male police officer who interviewed RB. At the outset, during the initial investigation of the case, there was already great difficulty communicating with the authorities because the victim was a deaf-mute and sign language interpreters were not readily available at police stations. Only her sister translated for the victim.
This seeming insensitivity to RB’s disability, continued until the actual prosecution of the case in court. There was no “official”, government sign language interpreter provided, and courts had to engage the services of translators from NGOs. This clearly showed the State’s inability to fully address the issues and concerns of PWDs when it comes to their right to access to justice. Hence, this is likewise not in compliance with our obligations under the United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD).
Much of the issues therein are matters of policy review and legislative reform. The court glaringly failed to appreciate the evidence presented and instead, relied on gender-based myths and stereotypes. By insisting that the “victim must have done all conceivable means to evade or resist the perpetrator’s advances”, the court effectively demanded that she respond according to what the court deemed to be “reasonable standard of human conduct” and discounted the wide range of behavioral responses that can be exhibited by victims.
By characterizing a “Filipina rape victim” as a woman who “summons every ounce of her strength and courage to thwart any attempt to besmirch her honor and blemish her purity”, the victim’s testimony was deemed incredible because she did not conform to such a stereotype. She was even blamed for employing insufficient or inadequate means to avoid the rape. But why should the burden of proof be on the victim? Rape is no longer a simple case of “he said, she said”.
Such perspective lends to the old categorization of rape as a “crime against chastity”, instead of a “crime against person”, where the operative word is the “person”, and not her reputation or credibility. Note that rape is no longer even considered a “private” crime, but a “public” crime which the State must pursue. The responsibility lies with the State to do everything possible so that justice may be served.
It is apparent that the victim, RB experienced layers of vulnerability which exposed her to greater risk of being subjected to abuse and violence. Most evident of all is the failure of the court to consider her disability of being deaf-mute. Using the above-mentioned framework, RB was required to show proof that she struggled or made some noise because “her mouth was not covered nor stuffed by any object.” The court insisted that “she could have reached for plates of the table” where she was laid, when she already said she had cleared the table earlier and there was nothing she could use to hit her attacker with.
This is the very essence of the current amendment pending before Congress – to change the language of the law that puts a premium on proof of violence, coercion and intimidation instead of the simple lack of consent, on evidence of torn clothing, threats of actual bodily hard or injury, or the victim’s showing that she screamed or shouted for help. Such technicalities thereby restrict the appreciation of the case by prosecutors and judges. In spite of all the provisions in the Anti-Rape Law favoring the testimony of a victim, judges’ decisions are still limited by the way they appreciate the evidence using this logical framework. Nowhere is the gender-sensitivity and awareness trainings reflected in their rationalizations because they fall back on negative stereotypes and gender myths dictated by their “macho” sensibilities and cultural double-standard.
Finally, on the issue of admissibility, I agree that the last remedy of Certiorari under Rule 65 of the Revised Rules of Court could not be availed of by the victim. Rule 65 can only be invoked under strict grounds of abuse of discretion and errors in jurisdiction. Besides, in a criminal case involving “public crimes”, the primary complainant is the State or the “People of the Philippines”. As such, the remedy under Rule 65 should have been availed of by the Philippine government, not the victim RB personally; but it failed to do so to the detriment of the victim’s case.
The recommendations made in the communication under the Optional Protocol of the CEDAW are worthy of consideration by the Philippine Government. It is by no means a “source of shame” for the Philippines, should the proper officials and authorities choose to do something about it by instituting legal and policy reforms that will address these problems in implementation.