Legi sl ati ng for (or Aga inst ?) the Mor o: A F or um w ith La wyers, La w St udent s and Paralega ls Janua ry 8 , 2 006, Pacific Heig hts , Co tab ato Cit y
Orga nized by th e Bangs amoro Lawy ers ’ Net wo rk Thru Sentro ng Alt ern atibon gL in gap Panlig al (SA LIGA N) With the Fin anci al Assis tance fr om: The Asia Fou nda ti on (TAF)
Atty. A lg am ar A. La ti ph Musli m Leg al Found ati on, I nc.
Ant i-D iscri mi nat ion Bi ll
Ho use Bill No. 321 6 Spo nso re d by Rep . Mu ji v Ha ta man An ak Min dan ao Par ty- Lis t Fil ed on October 27, 20 04
LEGAL BASIS Legal Basis of Anti -D is cri mi nati on un der its Exp lanator y Note
Eq ual Protection
Clau se (Sec. 1, Art . I II, 1987 C onst.)
Social Justi ce (Sec . 10, Art . I I, 1987 Cons t.)
Incorp ora ti on C laus e (s ec. 2, Art. II, Con st.)
The Phili ppin es adopts th e gen er ally acc ept ed prin ci ple s of in te rn ati on al la w
Inter nation al Cove nants on Ec onomic, Soci al and Cu ltu ra l Ri gh ts/Ci vi l and Pol iti ca l Ri gh ts
EQUAL PROTECTION Equ al Pro te ction Cl au se
One of the ideals and aspirations of the Filipino people under the Preamble of the 1987 Constitution is “equality”
“No person shall be denied the equal protection of the law.” (Sec. 1, Art. III)
Co ncep t of Eq ual P rotect io n Cla us e
"No person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances". (Tolentino vs. The Board Of Accountancy, 1951 September 28, G.R. No. L-3062 citing Missouri vs. Lewis, 101 U. S. 22, 31.)
Rea so nabl e Cl as si fica ti on It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. (People vs. Cayat 1939 (May 06, ___ G.R. No. 45987 citing Borgnis vs. Falk Co., 133 N. W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U. S., 61; 55 Law. ed., 369; Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs. Vera and Cu Unjieng, 37 Off. Gaz., 187.)
The cla ssi ficati on, to be reas onabl e: 1. 2. 3. 4.
must rest on substantial distinctions; must be germane to the purposes of the law; must not be limited to existing conditions only; and must apply equally to all members of the same class.
Sp ecia l Pr ovi si ons on Eq ua l Prot ecti on un der th e 19 87 Co nst it ut ion
Political Rights Social Justice Equal Protection of Mother and her Fetus Gender Equality Cultural Equality
Po li tical Ri gh ts
“The State shall guarantee equal access to opportunities to public service.” (Sec. 26, Art. II, Const.)
“Bona fide candidates for any public office shall be free form any form of harassment and discrimination.” (Sec. 10, Art. IX, Const.)
So cia l Ju st ice
“The Congress shall give highest priority to the enactment of the measures that protect the and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. (Sec. 1, Art XIII,id.)
Soc ial Jus tic e As A Const it ut io nal Ri ght
Not a self-executing rights unlike civil and political rights under the Bill of Rights. (Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary 1060, 1996 ed. )
The word used is “highest priority” not an enforceable right. There must be an enabling law. (id.)
Under the Social Justice title are: Labor, Agrarian and Natural Resources, Urban Land Reform and Housing, Health, Women, Role and Rights of People Organization, and Human Rights
The goal is to “reduce” not remove inequalities which by themselves are not evil. (id.)
Cultural inequalities, however, are evil and therefore must be “removed.” (id. citing II RECORD 737-738). But under Art. XIV states that the culture referred thereto are: 1. 3.
“Fi li pin o nation al cult ure.” (S ec . 14) “ Nation’s his tori ca l, and cultu ral herit age and re sourc es .” (S ec. 15)
3. “C ou ntry ’s arti sti c and historic we alt h.” (S ec. 16) 4. “Ri gh ts of in dige nou s cu ltu ra l com munities to pre serv e their cu lture s, tra dit ion s and in stitu tions.” Sec. 17)
Equ al Pro te ction of Mothe r an d her Fet us “[The State] shall equally protect the life of the mother and the life of the unborn from conception.” (Sec. 12, Art. II, Const.)
Gend er Eq ua li ty “ [The State] shall ensure the fundamental equality before the law of women and men.” (Sec. 14, Art. 2, Const.)
Cu ltu ral Equ ali ty “Equal access to cultural opportunities.” (Sec. 18, Art. XIV)
The Phili ppine Flag
8 rays represent the eight provinces that were the first to rise against Spain
Attempts to add 2 rays each for Muslim Mindanao and Cordilleras but this was rejected in the Committee (Bernas)
Musl ims a nd Mo ro Mal edi cta (Wo rd s o f H ate): Histo ri cal Ro ots
MUS LI MS
As early as Adam and Eve
Muslims were lineal descendants of Cain murdering his brother Abel. Forced to dwell in east heaven, the East (Levant). (The constant conflict between East and West)
Saint Bede in 8th century had stated the danger and evil of Islam. Muslims are the descendants of Hagar the concubine of Prophet Abraham. Christians are descendants of Abraham from his lawful wife and begotten son Isaac.
Byzantine Empire scholars branded Muslims particularly Moros, Bebers, Arabs and Turks (and even today some books would refer to Muslims) as:
Agarenes Ishmaelite Sons of Ishmael Race born of slaves Sons of Cain Misbegotten
MOR O Iberi an Peni nsul a (Sp ain )
In 720, Tarif Bin Malik crossed the Mediterranean Sea to the Iberian Peninsula
They were called as Moors or Moros
In 1492, Granada fell to the hands of the combined Kingdoms of Castile and Aragon Queen Isabelle/King Ferdinand. Both Muslims and Jews were forcefully ejected from Spain
In 1521, Magellan landed in the Philippines
In 1571, Spaniards defeated Raja Sulaiman
In 1578, Capt. Estreban Figueroa expedition and attached Mindanao and Jolo that started the Moro-Spanish War which extended for 3 centuries
Mor o Etym olog y
The etymology of Moros according to some historians came from the word Maures which means in Latin as “black”. When Romans landed in Northern Africa in 43 BC they saw people of black skin they called them Maurus. Thus, at first it is a racial slur referring to color of skin. (Mauritania land of black people)
Moors, Moros, Moriscos (little Moros, those Moros who were converted to Christianity) by Edict of Queen Isabelle it was change to Mudejares (subjugated)
Moros “have the outward appearance of a man, for the best of you are beast”
Moro was a tag “chosen for him by his enemy and not himself, and was the result of animosity, warfare and resistance for foreign pressure.” (Salah AlJubair)
“they were feared and hated by the Filipinos. They were feared and hated by the Spaniards” (Vic Hurley 1935 cited by Marohomsalic )
Mal edi cta en du res be cause the y we re immo rtali zed by
paintings (Battle of Lepanto, Juan Luna)
dances/play (Moro-Moro)
Music
books
poems
orations
odes
other medium of communication
Sa lient Fea tur es of the Bill
It defines discrimination
It specifies various acts of discrimination
It penalizes discrimination
Its subject is discrimination against Moro, Muslim, Indigenous people/person
It seeks to provide equal opportunities for Moro, Muslim, Indigenous people/person
Co nt ent
Short Title (Sec. 1)
Declaration of Policy (Sec. 2)
Definition and Acts Constituting Discrimination (Sec. 3)
Repealing Clause(Sec. 4)
Effectivity Clause (Sec. 5)
Decla ra tio n of Po lic y
To maintain peace and order
To protect life, life and property
To promote General Welfare
To promote and recognize Social Justice
To recognize and promote the rights of indigenous people
Act/s o f D iscr imi na ti on a nd its Pe na lti es Th e te rm “d iscr imin at ion” as used in this Act sh al l mean an y di st in ct io n, ex clu si on or rest rict ion made on the ba si s of bei ng Mu sli m/Mo ro peo ple an d/or In di gen ous Pe opl es wh ich has the effect or pu rp ose o f impa ir ing or nul lif yin g th e re co gni tio n, enjo ym en t or e xer ci se by th em, on a n e qua l footin g, of huma n ri gh ts an d fund amenta l fre ed oms in th e p oliti cal , eco nomi c, so cial , cultur al , civi l or an y oth er fiel d, esp eci al ly in cl ud ing but not limi ted to emp lo yme nt , li ve li hood, housi ng , ed ucatio n an d ba si c ser vi ces. ( 2n d par ., Sec. 3 )
An y per so n, in cl ud ing an y go ver nmen t or pr iva te corp orati on officer resp onsi bl e for po licy, w ho comm its discr imin at ion ag ai nst Mu sli ms/MO RO pe ople an d/o r In digen ous Peo pl es in Mi nd an ao an d el sewh ere in the Ph il ipp in es sh al l be pu nish ed by imp ri so nmen t for a per iod of not le ss than thi rty day s no r mo re than si x mo nths an d/or a f in e o r not les s tha n te n th ousa nd peso s nor mo re than one hu ndred th ousa nd peso s, tak in g in to consid er ati on the cir cu mst an ces and gravi ty of the offense. ( 1st pa r., Sec. 3 )
El ement s of Di scri min at ion (u nder the Bil l)
That the of fend er has co mmit te d an act cons titu tin g uneq ual and u nf air d istin ction , ex cl us ion or res tri ction ;
That the of fend er in te nded or th e act has t he ef fect of imp airi ng or nul li fyi ng the reco gni tion , enjoymen t or exe rci se of hu man ri gh ts , th e p ol iti ca l, econ omi c, social, cul tur al, an d civil r ig hts or any oth er fields es peci ally incl ud ing but not l imit ed to emp loymen t, liveli ho od, housing , ed ucation and b as ic se rv ices ; an d
That such act is di rect ed again st a Musli m, Moro or Indig enous peop le/ pers on .
Person/s Li abl e
Natural person
Government officer
Private corporation officer
Pena lti es Imp osed
IMP RISO NMEN T for not less than 30 days nor more than 6 months; and/or
FI NE ranging from 10,000 to 100,000
Obs ervatio ns On
Language
Legality
Liability
Langu ag e
Mus lim, Mo ro, IP shoul d be d efined und er the bill
The w ord s “d is ti nc tion, excl usi on and rest ri ctio n” must defi ned or othe r l ega l t erm sho uld b e em ployed
To ret hi nk whet he r “human ri ght s, the polit ical, ec ono mic, soc ial, cul tura l, a nd ci vil ri ght s” sho uld be mai nt ai ned c onsi dering t hat these are al read y sep aratel y penali zed by othe r laws reg ard less whet her one i s a Mus lim, Mo ro or I P
Eq ual acc ess/ pro tect ion on em ploy ment , livel ihood , housi ng , ed uc ation, and basi c serv ic es coul d be m ai nt ained but t he re might be other fi el ds whi ch coul d be inc lud ed
“ eq ual fo ot ing ” whi ch is not a l egal term sho uld b e del eted a nd anot her p hrase und er the co mpass of “equal ity” or “f air” shoul d b e inst ead ut ilized
“ rec og ni tion, e nj oy ment or exerci se” is a surp lusag e and sho uld b e del et ed ins tead the “i mpai ri ng or nul lifyi ng ” shoul d b e m ai nt ained but “d epriv ing ”, “abri dging ”, “p rohi biting ”, “d eny ing ”, among others, coul d be u tilized
Lega li ty
Equal Protection Clause/Class Legislation
There must be a valid and reasonable classification Limited only to Muslim, Moro, IP
Vague
To make the broad terms used specific No enumeration of specific acts (refer to other penal laws eg Sexual Harassment Law)
Liab ili ty
“Any person, including any government or private corporation officer responsible for policy” should be rephrased
Rec ommenda tions
To include other class of people which are similarly situated
The terms used must be defined, specified and narrowed
To reduce the discriminatory acts which are already penalized under existing laws
To limit the scope of the acts of discrimination to pass the test of constitutionality
Sal ama t…….
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Thank yo u f or liste ning……. .
Salaam
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