Magna Carta for Disabled Persons

The Magna Carta for Disabled Persons (RA 7277) is an enumeration of the rights and privileges which should be granted to disabled persons and the corresponding acts which are considered discriminatory against them and thus are prohibited. Said law is an acknowledgment of the sad condition and status of disabled persons in our society, who by reason solely of their disability, are being subjected to unequal treatment and thus deprived of certain rights enjoyed by others, like for instance the opportunity to work among others..

They are prejudged as mere burdens of society, who cannot meaningfully participate in the life of the community or contribute to its well-being and thus at the very least are just objects of public welfare and charity, to be kept in asylums  like the sick or elderly who simply have to be cared for. Worse, like in Hitler’s time, they have been condemned to suffer the fate of extermination.   

The law seeks to demolish that image of the disabled person, accord to them the rights and privileges that they should enjoy out of respect to their inherent dignity as human persons and to break the barriers which prevent their full integration and meaningful participation in society.

The grant of the rights and privileges for disabled persons as enumerated in the law is guided by the following principles:

1)         Disabled persons are part of Philippine society. They have the same rights as other people;

2)         Notwithstanding their disability, they have skills and potentials which they

are capable of developing, thus enabling them to compete favorably for available opportunities

3)                  They can improve their total well-being, enabling them to live freely and

independently as possible, attain a more meaningful, productive and satisfying life and be integrated into the mainstream of society;

            4)         Thus, the State shall give full support to them:

a)         By adopting policies which will ensure their rehabilitation, self-development and self-reliance;

b)         Advocating for and encouraging respect for them;

c)         Exerting all efforts to remove  social,  cultural,  economic, environmental and attitudinal barriers that are prejudicial to them;

5)         Finally, respect for their rights should be the concern of everyone and should not be perceived as mere welfare services from the Government, namely the family; community; government and nongovernment organizations; national and local government agencies as well as the private sector, which has a role in promoting their welfare and in addressing their needs and concerns in  partnership with government. 

These principles, to my mind but implement the mandates of the constitution to value the inherent dignity of the human person and accord full respect for their human rights (Section 11, Article II, 1987 Constitution) and promote social justice to improve the quality of life of all (Ibid, Section 10).

Human Dignity is the intrinsic worth and value of the human person; intrinsic because he has value or worth which does not depend on extrinsic factors like wealth, power, fame, unique talents or abilities but on the fact that he is a human person:

1)         one with intelligence: the capacity to understand, judge and reason and thus seek the truth and act guided by reason;  . 

2)                  one with freedom: the capacity to control his actions, to make choices and thus love, aspire for goodness and the full development of his potentials as a human person.

Human Rights are those which are due to a human person or which he is entitled to by reason of the fact that he is a human person; which must be respected, lest we degrade him and violate his dignity as a human person. We thus cannot do with him as we please; we cannot use them as mere means as we use objects. They are ends in themselves.

            Social Justice is the promotion of the welfare of all the people by providing guarantees of equality and protection:

1)         guarantees of equality of opportunities and political rights before the law; 

2)         guarantee of protection to the powerless and underprivileged based on the principle that those who have less in life should have more in law.

Indeed like all human persons, the disabled have an inherent dignity, value or worth which make them equal with all other human persons, which the State as a matter of policy is mandated to value; like all human persons, they have rights, which the State as a matter of policy is mandated to guarantee full respect for.

By reason however of their disability, which restrict or impair their abilities (mental, physical or sensory) and limits their performance of certain functions or activities, and by reason thereof, aggravated by social barriers or those which limit his fullest possible participation in the life of the group, they have historically been subjected to social, economic and political inequalities as well as cultural inequities.

As a measure then of social justice, which is one of the policies which the State is mandated to promote, disabled persons as a disadvantaged sector, are entitled to equality and protection (Ibid, Section 10), based on the principle that those who have less in life should have more in law.

These protections are the rights and privileges which the Magna Carta guarantees to them as well as the prohibitions the law provide to prevent discrimination against them.

lack of criminal jurisdiction in a BP 22 case as ground for dismissal

It  is  a  fundamental  principle  that criminal actions shall be instituted and tried in the court of any municipality or territory  where the offense was committed or where any of its essential ingredients occurred (Section 15, Rule 110, 2000 Rules of Criminal Procedure, as amended). The rationale herein is so that the Accused will not be compelled to move to, and appear in a different court from that of the province where the crime was committed, as it would cause him great inconvenience in looking for witnesses and other evidence in another place (Hernandez vs. Albano, 19 SCRA 85).

Said  municipality  or territory  where the offense was committed or where any of its essential ingredients occurred fixes not only the venue of the criminal case but also its jurisdiction. This if for the reason that in criminal cases, venue is jurisdictional as the court has no jurisdiction to try an offense committed outside its territorial jurisdiction (People vs. Mercado, 65 PHIL 665).

                       

Relative to violations of Batas Pambansa Blg. 22 of which Accused has been charged of, the elements or essential ingredients of the offense are as follows:

                                   

1)      The making, drawing and issuance of any check to apply for account or for value;

                                               

2)      The knowledge of the maker, drawer or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and 

                                                                       

3)      The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment (Ting vs. Court of Appeals, 344 SCRA 551).

It is evident that the elements of said offense do not take place simultaneously but one after the other. It may occur then that the making, drawing and issuance of a check takes place in one municipality or territory while the dishonor thereof in another. Hence, it may  be instituted and tried in the court of the municipality or territory where it was made, drawn and issued or where it was dishonored. Otherwise said, it is only courts of  either municipality or territory (place of issuance or place of dishonor), and no other which can validly exercise jurisdiction and thus hear and decide cases involving said cases.

           

While it is clear based on the checks themselves that they were dishonored in Tuguegarao, the drawee bank being China Banking Corporation, Tuguegarao Branch, there is no allegation or proof whatsoever based on Private Complainant’s Complaint-Affidavit and its supporting documents, where it was made drawn, and issued to herein Accused.

                                   

            The truth of  the matter as Accused has declared and clearly shown in his Counter-Affidavit is that she issued and delivered the subject checks to Private Complainant in his place of residence which is Iguig, Cagayan.     

                                   

            Most evidently, contrary  to  the  very  spirit  and  purpose  of  the  rule  on venue, Private Complainant, for her own convenience and advantage and to the great inconvenience and disadvantage of Accused, filed her criminal complaint against the latter in Cabanatuan City, for no other reason than that being her place of residence. Having not alleged or shown that the alleged offenses or any ingredient thereof, were committed in Cabanatuan City, the Honorable Office of the City Prosecutor of Cabanatuan City, has absolutely no basis whatsoever to file the instant Information in Cabanatuan City. It has no legal authority whatsoever to falsely and arbitrarily allege in said information that the said offenses were committed within the jurisdiction of the Honorable Court. 

                                                                       

            Indubitably, the purpose behind such unwarranted action is to arbitrarily establish jurisdiction over the instant cases in Cabanatuan courts when in fact there was none at all. The bare and unsubstantiated allegation however in the information does not determine the place where the criminal action is to be instituted. To say that the allegation of the information is determinative of the jurisdiction of the court will have the effect of conferring upon the investigating and filing prosecutor the absolute discretion to determine which court has jurisdiction over an offense, a situation which is not only constitutionally unsound but also anathema to the rule of law (p. 61, Notes and Comments on the Bouncing Checks Law).

                                   

            Clearly,  Private  Complainant, who has the burden of showing that herein cases are within the jurisdiction of the Honorable Court, has miserably failed to do so. The Honorable Office of the City Prosecutor of Cabanatuan City should have summarily dismissed her said criminal complaints.

                                   

            On the contrary, herein Accused has attested and shown through his Counter-Affidavit and supporting documents, that in fact, she issued the subject checks in Iguig, Cagayan. Clearly then, all the acts which are essential to the offense of which Accused has been charged of, took place in the province of Cagayan. Hence, the Honorable Court has not jurisdiction whatsoever to try and hear the instant cases. They should therefore be quashed. 

The Rules of Summary Procedure provide that:

Should the court, upon consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial (Section 13, The 1991 Revised Rule on Summary Procedure). 

                       

                                   

            Thus, even without this motion to quash, the Honorable Court on its own, may order the dismissal of the instant cases, if upon consideration of the complaint or information together with the affidavits submitted by both parties, it finds no cause or ground to hold the Accused for trial. There is absolutely nothing in the affidavits submitted by both parties, which will establish any cause or ground for the Honorable Court to acquire jurisdiction over the instant cases. Most certainly then, there is likewise no cause or ground for the Honorable Court to hold the Accused for trial.    

Achieving a Bully-Proof School through the DepEd's Child Protection Policy

ACHIEVING A BULLY-PROOF SCHOOL

THRU THE CHILD PROTECTION POLICY

                                                            By:      Atty. Severo L. Brillantes

Good Morning. I was tasked to talk on “Achieving a Bully-Proof School Thru the DepEd Child Protection Policy.”

Why a serious problem: the problem of bullying is a serious one. Studies show that children who are bullied may suffer from low self-esteem, as well as other serious emotional issues such as chronic anxiety and depression. Bullying may keep kids from succeeding in school. Their anxiety, or other emotional issues caused by bullying, may make it impossible for them to concentrate on their studies or to succeed at extracurricular activities.

Bullies themselves need help as they are likely to become violent, drop out of school, or get into other serious trouble as adults. Often, they are the victims of bullies as well, such as an abusive parent.

The DepEd Order: Bullying most certainly must be stopped and DepEd Order No. 40, s. 2012  or the Department of Education’s  Policy Guidelines on Protecting Children in School from Abuse, Violence, Exploitation, Discrimination, Bullying and other Forms of Abuse or the “DepEd Child Protection Policy” provides us some remedial measures to do so.

Definition of bullying: The DepEd Order defines “bullying” as willful aggressive behaviour directed by a student towards another student, which results in physical and mental abuse, harassment, intimidation, or humiliation. It may also be committed through electronic means such as texting or email, in which case it is “cyber-bullying.

While that may be so, the bully may a teacher or even a visiting lecturer in a school.

A case of bullying/child abuse: I once assisted a parent lodge a complaint for child abuse against a visiting lecturer in a Makati School. In that case, a visiting lecturer who happens to be a doctor, twisted and hit the head of said parent’s son, for the simple reason that he saw the son removing the bandage of his wound while said Doctor was delivering a lecture.

In her letter-complaint addressed to the School Directress/Principal, the parent said:

“My son was not only pained physically by what the Doctor did but emotionally as well, as he was greatly embarrassed by the cruelty, degradation and humiliation the Doctor subjected him to. When he went home, he was almost crying when he recounted the incident to me. He did not eat dinner last night and was motionless when I was trying to wake him up this morning, and thus failed to go to school today.

Most evidently, my son was traumatized by the maltreatment he suffered in the hands of the abusive Doctor. What I fear most is the psychological harm said experience will cause to him, its great prejudice to his normal development as a human being.

What saddens me more is that the teachers and administrators then present, who are supposed to be his substitute parents, remained unmoved by the unprovoked violence the Doctor inflicted on my son and did nothing to redress the wrong suffered by him.

Why bullying worsens: Teachers know for a fact that bullying happens in schools. They may even receive complaints or are notified of acts of bullying. But do they do anyything about it? Like the teachers and administrators in that school, they remain unmoved.

Duty of teachers, school personnel and officials: Thus, the DepEd Order provides that  upon the filing of a complaint for bullying or even a mere notice of any bullying incident, the same shall be immediately reported to the School Head. Failure to do so would constitute “negligence” for which the teacher, school personnel or official may be administratively chargd of.

Why bullying continues despite report to the School Head: In one complaint the Office of the Schools  Division Superintendent received, a parent complained that she already reported the bullying incident to the School Head and even the Guidance Office but she was allegedly advised to complain with the DepEd instead. I told Mam de Sagun that we write to the Principal and ask her to explain why she should not be administratively charged for negligence. Mam de Sagun however said, we just instruct the Principal on what she has to do.

Duty of School Head: As soon as the School Head receives a complaint or even a mere notice of any bullying incident, he shall be duty-bound to do the following:

1)         Inform the parents or guardian of the victim and the offending child, in a meeting called for the purpose;

2)         The victim and the offending child shall be referred to the Child Protection Committee for counseling and other interventions;

3)         The penalty of reprimand, if warranted, may be imposed by the School Head in the presence of the parents or guardians.

4)         If bullying is committed for a second or subsequent time, after the offending child has received counseling or other interventions, the penalty of suspension for not more than one (1) week may be imposed by the School Head, if such is warranted, provided  the following procedure is complied with (in case the imposable penalty is suspension, exclusion or expulsion):

a)                  The child and the parents or guardians must be informed of the complaint in writing;

b)                  The child shall be given the opportunity to answer the complaint in writing, with the assistance of the parents or guardian;

c)                  The decision of the school head must be in writing, stating the facts and the reasons for the decision;

d)                 The decision of the school head may be appealed, as provided in existing rules of the Department.

5)         During the period of suspension, the offending child and the parents or guardians may be required to attend further seminars and counseling. The School Head shall likewise ensure that the appropriate interventions, counseling and other services, are provided for the victim or victims of bullying.  

Not only disciplinary action but intervention as well: Note that in addressing bullying, the duty of the School Head is not only to conduct the required disciplinary proceedings as I have outlined and to impose the appropriate penalty if warranted but also to provide the required psycho-social interventions like counselling to help not only the child who was bullied but the bully himself or herself. Note too that counseling should likewise be given to their respective parents and guardians.

The School Head thus must ensure that the appropriate interventions, counseling and other services are available and which may be provided to them.

Child Protection Commitee:  Addressing cases of bullying as well as  child abuse requires an organized concerted effort. Thus, the DepEd Order directs the establishment of a Child Protection Committee which shall be tasked to (see Section 10):

As I mentioned earlier, the bully may be the teacher himself or herself.

Action on complaints: directive to Comment

In one complaint, a parent alleged that the teacher of her daughter has the habit of shouting at her students whenever they give a wrong answer, calling them “tanga kayo! bobo! mayabang!”, which has traumatized her daughter and instilled fear in her and in fact was the cause why her daughter was rushed to the hospital for experiencing difficulty in breathing.

Strictly speaking, under DepEd Order No. No. 49, s/ 2006 (otherwise known as the Revised Rules of Procedure of the Department of Education in Administrative Cases), it is the Regional Director which is the disciplining authority insofar as teachers are concerned; the one with the ultimate power to investigate them and to impose the corresponding penalty on them.

As appointing authority however of teachers, the School’s Division Superintendent or this Office, has concurrent disciplinary jurisdiction over teachers belonging to this Division. Coupled with its supervisory function over them, it is duty-bound to see to it that they comply with established and known rules of conduct. Pursuant thereto and also in order to afford  teachers who are the subject of complaints the opportunity to be heard, in accordance with their right to due process of law, the practice of this Office is to direct said teachers to file their Comment to the complaint against them.

Duty to impose discipline

In the case I mentioned, the teacher replied denying the accusation against her, saying she does not shout at her pupils, adding that she only wants the best for them as it is her obligation to discipline them in a proper way.

The Family Code of the Philippines recognizes that indeed teachers by virtue of their special parental authority over the children under their supervision, instruction or custody, have the right and duty to impose discipline on them as may be required by the circumstances (Article 209 in relation to Article 220).

Limitation of duty to impose discipline

The DepEd Child Protection Policy however clarifies that school discipline must be administered in a manner consistent with the child’s human dignity. The child like every human being,  “is endowed with dignity and worth” and thus is entitled to respect [Child and Youth Welfare Code, Article 3(1)]. We cannot treat the child, whichever way we please, as the child has rights which must be respected.

Rights of the Child

As guaranteed by our Constitution, among these rights which the State is duty-bound to defend is the child’s right to special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development (Section 3, article XV).

Among the child rights as provided for in the Child and Youth Welfare Code are the rights:

1)         to be provided with love, care, understanding, guidance and counseling;

2)         to be brought up in an atmosphere of morality and rectitude for the enrichment and strenthening of his character (Article 3). In fact the Child and Youth Welfare Code specifically provides that parents and teachers as well have the right to discipline the child only as may be necessary for the formation of his good character (Article 45).

    

Child Abuse

If discipline however already debases, degrades or demeans the intrinsic worth and dignity of a child, “Child Abuse” is already committed.

As defined in Republic Act No. 7610 (otherwise known as Special Protection of Children Against Abuse, Exploitation and Discrimination Act"), which the DepEd Child Protection Policy adopts, it is the maltreatment of the child, whether habitual or not, which includes any of the following:

1)                  psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

2)                  any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

3)                  unreasonable deprivation of his basic needs for survival, such as food and shelter; or

4)                  failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

The law adds that there is likewise child abuse when a person is responsible for conditions prejudicial to the child’s development (Section 10), which includes among others when:

1)                  he is deprived of the love, care and protection he needs;

2)                  cruel and unusual punishment is inflicted upon the child or he is deliberately subjected to indigniites and other excessive chastisement that embarrasses or humiliates him (Art. 59, Child and Youth Welfare Code).

Corporal punishment

While the Family Code of the Philippines as I have already mentioned, recognizes the right and duty of teachers to impose discipline on their students, it provides that in no case shall they inflict corporal punishment upon the child (Article 233) or inflicting physical pain as punishment whenever a child does something undesirable. It includes as the DepEd Child Protection Policy states “physical, humiliating or degrading punishment.”

As early as DepEd Order No. 92, s. 1992, the Department of Education has already forbidden the imposition of cruel or physically harmful punishment against any pupil or student.

Said DepEd Order specifically forbids “(t)he use of corporal punishment by teachers, imposing manual work or degrading task as penalty, meting out cruel and unusual punishments of any nature, holding up a pupil/student to unnecessary ridicule, the use of epithets and expressions tending to destroy the pupil/student’s self-respect and the permanent confiscation of the personal property of pupils/students.”

Aside from being violative of the child’s dignity as a human being, since it is a form of physical abuse, studies show that they do more harm than good. In one complaint brought to the attention of this Office, a teacher ordered the child to slap herself. The child was so traumatized that she no longer wanted to go to school.

Just read

For a detailed enumeration of the different forms of corporal punishment as well as the definition of other forms of abuse like 1) discrimination against children, 2) child exploitation and 3) violence against children committed in schools, please just read the DepEd Child Protection Policy.

Teachers as substitute parents

Going back to the teacher I referred to, she adds in her Reply that as a second mother she has no intention whatsoever to hurt her students or to traumatize them and she is just acting like any parent who sometimes need to correct their children of their wrong doing.

That is precisely what the DepEd Child Protection Policy reminds teachers of; that they are their students’ substitute parents and thus are expected to discharge their functions and duties with that in mind, giving paramount consideration to the best interest of the child.

The teachers’ right and duty to impose discipline on their students in fact as the Family Code of the Philippines declares, rests on their having special parental authority over them (Article 218), which authority among others, include the responsibility to develop the moral, mental, and physical character and well-being of the child under their supervision, instruction or custody (Article 209).

Not subject to settlement

Regarding the teacher I mentioned which ordered her student to slap herself, this Office also directed her to file a Comment on the complaint against her. In her Comment filed with this Office, she neither admitted nor denied the allegation against her. She simply said that her principal already settled the matter through the school’s grievance machinery.

Assuming her claim is true, was her principal correct in working out an amicable settlement of the case and referring it to the school’s grievance machinery?

If that is indeed the actio what the  

If that is indeed true, was it right for the said principal to have worked out an amicable settlement of the matter? Was it right for her to have referred the matter to the school’s grievance machinery?

Duty of the principal    

What then is the duty of the Principal in cases of child abuse; discrimination against chilren, child exploitation; violence against children n school; corporal punishment and other abnalogous or similar acts?

Upon receipt of the complaint against a teacher, the DepEd Child Protection Policy directs the principal to forward the same, within forty-eight (48) hours, to the Disciplining Authority, which is the Regional Director, who shall then issue an Order for the conduct of a fact-finding investigation, nt later than seventy two (72) hours upon submission.

What should the complaint be? It should comply with the requirements of  

Psycho-social intervention

The principal is also duty-bound to refer the cild to the Local Social Welfare and Development Officer of the local government unit, who shall assess the child and provide psycho-social intervention to help the child victim recover from whatever trauma he or she has experienced as a result of the abuse.

Difficult situations

Notwithstanding the foregoing admonitions on teachers to respect the dignity of their students as human beings and to bear in mind that they are their students’ substitute parents, the DepEd Order, without rationalising or justifying the actions of certain teachers, likewise acknowledges that cases of abuse may arise as a result of the difficult situations faced by teachers and other officials within and outside the school.

What are these difficult situations? Due perhaps to exhaustion or frustration or desperation, some teachers resort to corporal punishment. They perhaps may be so angered by the behavior of their students that they instinctively react violently.

As a means of deterrence, teachers should be made aware that they may be administratively sanctioned for acts of abuse and violence against their students. They likewise should be taught more effective ways to discipline their students other than instilling fear in them, i.e. the use of different methods of positive and non-violent disciplilne.

 

The Department however should address what are these difficult situations teachers find themselves in which may give rise to child abuse. Some say among them is that teachers are overworked and underpaid. Unfortunately, while the Child Protection Policy is replete with disciplinary measures against teachers, it does not have any program of action on how to address these difficult situations. While it mentions positive non-violent discipline, it does not elaborate on what are these modes of discipline.

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