CHAPTER ONE
A. BACKGROUND OF THE STUDY
The supremacy of the constitution is the basic and paramount law to which all other laws 1
must conform and to which all persons, including the highest officials of the land, must defer. It exempts no one from compliance as the maxim goes, ignorantia legis non excusat or excusat or “ignorance “ignorance of the law excuses no one”. one”. It must be able to withstand the changing times by being consistent, while expressing the structure of the government and its limititations on the exercise of its functions. Generally, all laws must conform with the Constitution and there shall be no other law that may violate any of its provisions. p rovisions. Only the state can make law and law can emanate only from the exercise of legislative power by the lawmaking body or as delegated by it to administrative agencies. Hence, law is confined to statutes and regulations. The constitution of course, which is the supreme law, is 2
superimposed over all of them.
In the hierarchy of laws, the validity of a rule is tested whether or not it contradicts the fundamental rule. As the highest law of the land, the Constitution is supreme and must therefore be superior at all times. A statute follows the the scale, then the administrative orders. A statute is the written will of o f the legislature, expressed according a ccording to the form necessary to constitute it a law of the state, and rendered authentic by certain prescribed forms and solemnities. These are the laws passed by Congress Co ngress and more often than not, a statute does not spell out the details of how it will be implemented or carried into effect. Thus, the statute
1 Cruz,
I. (2007). Constitutional Law . QC: Central Book Supply. F. & Martinez, D., (1993). A (1993). A Guide to Philippine Legal Materials. Materials. QC: Rex Bookstore.
2 Gupit,
delegates to the administrative agency or authority concerned the power to promulgate the rules 3
and regulations to implement its provisions and to effect its policies. However, these rules and regulations should conform with the standards prescribed by the statute. These Implementing Rules and Regulations (IRR) are the guidelines on the implementation of the statute and it is made by administrative agencies, and not by Congress. In addition to that, Administrative Rules and Regulations are orders, rules and regulations issued by the heads of Departments, Bureaus and other agencies of the government for the effective enforcement of laws within their jurisdiction. However, in order that such rules and regulations may be valid, they must be within the authorized limits and jurisdiction of the office issuing them and in accordance with the provisions of the law authorizing their issuance. In the Philippines, statutory laws include these administrative rules 4
and orders.
Background of Sexual Harassment Act of 1995
In the Philippines, the first time that sexual harassment really became an issue was when COMELEC Commissioner Remedios S. Fernando complained that another Commissioner, Manolo Gorospe, kissed her against her will. It was known as the “kissing lolo” case. The case was covered because she was a high-ranking public official. However, it is not to say that there are a few cases of sexual harassment occuring in the country. In February 1995, the Senate and House of Representatives of the Philippine Congress enacted Republic Act No. 7877, otherwise known as the " Anti-Sexual Harassment Act of 1995", 3 Sales,
E., (1994). The Legal Environment: Concept, Notes, and Material . Manila: De La Salle University Press.
4 Santos-Ong,
M., (2005) Philippine Legal Research. QC: Central Book Supply.
which declared acts of sexual harassment against women and men, unlawful in the workplace, in schools and training institutions. It stated that:
Sec. 3. Work, Education or Training-related Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by an employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.
The Congress enacted the act to discourage discrimination and any violation of human rights in the workplace, schools and training institutions. The act, therefore, must be complied with by anyone in the employment, education or training environment. In comparison, the United States’ Sexual Harassment Law defines sexual harassment as, a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment . Sexual harassment, in the United States, can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
5
The harasser's conduct must be unwelcome.
Unlike the Philippines’ Sexual Harassment Law, the United States’ Sexual Harassment Law does not require ascendancy between offenders and victims of sexual harassment. On the other hand, the Philippine Civil Service Commission (CSC) promulgated the Administrative Disciplinary Rules on Sexual Harassment Cases Resolution No. 01-0940, defining the administrative offense of sexual harassment and prescribing the standard procedure for the administrative investigation and resolution of sexual harassment cases in the public sector. It defined sexual harassment as: Rule III- Definition. Section 3. For the purpose of these Rules, the administrative offense of sexual harassment is an act, or a series of acts, involving any unwelcome sexual advance, request or demand for a sexual favor, or other verbal or physical behavior of a sexual nature, committed by a government employee or official in a work-related, training or education related environment of the person complained of. (a) Work related sexual harassment is committed under the following circumstances: (1) submission to or rejection of the act or series of acts is used as a basis for any employment decision (including, but not limited to, matters related to hiring, promotion, raise in salary, job security, benefits and any other personnel action) affecting the applicant/employee; or (2) the act or series of acts have the purpose or effect of interfering with the complainant‟s work performance, or creating an intimidating, hostile or offensive work environment; or 5 Retrieved
from the World Wide Web
(3) the act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a co-employee, applicant, customer, or word of the person complained of. (b) Education or training-related sexual harassment is committed against one who is under the actual or constructive care, custody or supervision of the offender, or against one whose education, training, apprenticeship, internship or tutorship is directly or constructively entrusted to, or is provided by, the offender, when: (1) submission to or rejection of the act or series of acts as a basis for any decision affecting the complainant, including, but not limited to, the giving of a grade, the granting of honors or a scholarship, the payment of a stipend or allowance, or the giving of any benefit, privilege or consideration. (2) the act or series of acts have the purpose or effect of interfering with the performance, or creating an intimidating, hostile or offensive academic environment of the complainant; or; (3) the act or series of acts might reasonably expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a trainee, apprentice, intern, tutee or ward of the person complained of. Section 4. Sexual harassment may take place: 1. in the premises of the workplace or office or of the school or training institution; 2. in any place where the parties were found as a result of work or education or training responsibilities or relations; 3. at work or education or training-related social functions; 4. while on official business outside the office or school or training institution or during work or school or training-related travel; 5. at official conferences, fora, symposia or training sessions; or; 6. by telephone, cellular phone, fax machine or electronic mail.
The CSC adopted the Administrative Disciplinary Rules on Sexual Harassment Cases based, among others, on the following premises:
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XXX WHEREAS, the Philippine Congress enacted on February 14, 1995, Republic Act No. 7877, otherwise known as the “Anti-Sexual Harassment Act of 1995”, which took effect on March 5, 1995 and declares unlawful sexual harassment against women and men in the employment, education and training environment. WHEREAS, Section 4 (a) of Republic Act No. 7877 mandates every employer or head of agency in the public and private sectors to promulgate rules and regulations prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor; WHEREAS, there is a need to devise uniform rules and regulations particularly in the definition of the administrative offense of sexual harassment and the sanctions therefor, and the procedures for the administrative investigation, prosecution and adjudication of sexual harassment cases. WHEREAS, Section 3, Article IX (B) of the 1987 Constitution, Section 1 and Section 12 (19), Subtitle A, Title I of Book V of the Administrative Code of 1987 (Executive Order No. 292) and Section 4 (B), Republic Act No. 6713, otherwise known as the “Code of Conduct and Ethical Standards for Public Officials and Employees,” empower the Civil Service Commission, as the central personnel agency of the Government, to adopt positive measures for the observance of substantive and procedural administrative standards, including standards for the personal conduct of government officials and employees, in order to promote morale, efficiency, integrity, responsiveness and progressiveness in the entire government bureaucracy; WHEREAS, Section 4 of Republic Act NO. 6713 provides norms of personal conduct for public officials and employees to observe in the performance of official duties, and specifically directs that they shall act without discrimination against anyone, and shall at all times respect the rights of others and refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest; It clearly appeared that the Administrative Disciplniary Rule implements not just the Anti-Sexual Harassment law, but also the Code of Conduct; which states that:
Section 4. Norms of Conduct of Public Officials and Employees. – X X X X X X X X X X X X X X X X X X X (B) The Civil Service Commission shall adopt positive measures to promote (1) Observance of these standards including the dissemination of information programs and workshops authorizing merit increases beyond regular progression steps, to a limited number of employees recognized by their office colleagues to be outstanding in their observance of ethical standards; and (2) Continuing research and experimentation on measures, which provide positive motivation to public officials and employees in raising the general level of observance of these standards.
The CSC did not only draw up the resolution pursuant to the Anti-Sexual Harassment Act but also to the Code of Conduct and Ethical Standards for Public Officials and Employees. According to an interview with Attorney Emmanuel Sales, Legal Counsel of De La Salle University, he mentioned, the Resolution has the same subject matter as the Republic Act but the power of CSC is not as complete and plenary as Congress when it passed the Anti-Sexual Harassment Law. If the legislative intent of the law is to impose a relationship of power and ascendancy between victim and offender before a violation, whether criminal or administrative can be found, can CSC remove this requirement and hold a government employee guilty of the administrative offense of sexual harassment? A violation of the Anti-Sexual Harassment Law also constitutes an administrative offense that can be a lawful basis of personnel action and disciplinary sanction against the erring employee. There is now an issue of equal protection between public sector employee and private sector employee. Moreover, the problem exists where there are discrepancies in the provisions of the Resolution and the Republic Act. The glaring deficiency of the present sexual harassment law is having a limited definition of the offense to sexual advances solicited in exchange for favors in hiring, regularization or promotion. She adds, unwelcome advances of sexual nature can be
committed by a co-employee of the same or even lower rank, or by customers, clients or suppliers, it should not be limited to someone exercising moral ascendancy over the offended 6
woman.
According to Zippel, The term „sexual harassment‟ is relatively new, originating only in the 1970‟s, but the experience has been an intrinsic part of women‟s experiences in the workplace at least since the beginning of the industrialization at the turn of the twentieth century. Women‟s entry into male-dominated work environments resulted in gender conflict. Challenging sexual harassment and employer practices through legal means was taxing because laws did not explicitly prohibit sexual harassment in the workplace and applying employment, labor, penal and civil laws proved difficult. Finally, there was a strong reluctance to consider the seriousness of sexual harassment and the economic and psychological harm it causd. It was viewed as a harmless crime that did not require harsh punishment. Employers, unionons, courts, and many women confronted with sexual harassment felt that men should not lose heir jobs over an occasional slop. Until organized groups of feminists began to draw attention to the issue as an injustice and a social problem, it was considered largely a private matter, and employer and court reactions to complaints 7 reflected this view. It was only recently that countries around the world started to see and address the problem of sexual harassment and thereafter promulgated anti-sexual harassment laws. Even in other countries like Singapore, where a research study on workplace sexual harassment in 2008 by AWARE, Singapore’s leading advocacy group dedicated to promoting gender equality, noticed that: unwelcome and unwanted conduct of a sexual nature is an ageold problem. Lacking a specific, recognizable name for many decades, this sort of conduct or its perpetrators have been called by many different names. In Asia, some of these names 6 Sanchez, 7 Zippel,
E., (2008). The Filipina and The Law. QC: Central Book Supply. K. (2006). The Politics of Sexual Harassment . New York: Cambridge University Press.
have included „ gatal ‟ (Malay), „ hum sup‟ (Cantonese), „ buaya‟ (Malay), „ chee ko pek ‟ (Hokkien) and „pomble porikki‟ (Tamil). For the majority of victims, at least for those who have made their situation known, their complaints or cries for help have typically been ignored, trivialized, or denied. The term „sexual harassment‟ as a descriptor for this conduct was only coined in the 1970s. Since then the issue has become a recognized phenomenon throughout the world in all cultural and 8 occupational contexts. Violence Against Women or VAW says that fewer countries have specific legislation on sexual harassment and, where the legislation exists, it addresses harassment in the place of work only. The Philippines may have been the first country in Asia to have an Anti-Sexual Harassment 9
Law, but the inadequacy of the law is a big question.
A study by the Alternative Law Groups, Inc. as sponsored by the University Of Cebu College of Law, noted that sexual harassment has become a problem in the Philippines, thus a clamour for the passage of a law to punish harasser has become strong, which led to the passage of R.A. 7877 or the Anti-Sexual Harassment Law. However, the study noted the Inadequacy of R.A. 7877, for although the law is a breath of fresh air for people clamouring for said law, the same proved to be insufficient in addressing the problems of sexual harassment in the country. Despite the existence of the law, it has not become a deterrent for harassers in committing the crime. Further, sexual harassment has not been eradicated, and the law today is anything but inspiring.
B. DISCUSSION OF LEGAL ISSUES
The 1987 Philippine Constitution clearly expresses the powers of government, its branches and the limitations on the exercise of its function. While it is true that Congress enacts
8
AWARE. (2008). Research Study on Workplace Sexual Harassment . Singapore. from the World Wide Web
9 Retrieved
the law, administrative agencies have the legislative function to promulgate rules and regulations having the force of law. The Anti-Sexual Harassment Act of 1995 was a law passed by the legislative body to enforce the right to a safe and healthy work environment. This was mainly expressed in Section 4 of the Act, where it states: Section 4. Duty of the Employer or Head of Office in a Workrelated, Education or Training Environment. – It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall: (a) Promulgate appropriate rules and regulations in consultation with the jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctions therefor. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this section (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions. (b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with other officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of the alleged cases constituting sexual harassment. In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees.
In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors or coaches and students or trainees, as the case maybe. "The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. The Code of Conduct and Ethical Standards for Public Officials and Employees, on the other hand, was a law passed by the Congress to uphold the time honored principle of public office being a public trust by granting incentives and rewards for exemplary service, and by enumerating prohibited acts and transactions and providing p enalties for violations thereof. Thereafter, the Civil Service Commission, pursuant to the Act and to the Code of Conduct, created the Administrative Disciplinary Rules on Sexual Harassment Cases Resolution No. 01-0940. An individual now who commits a violation of sexual harassment may be punished either under the Anti-Sexual Harassment Act of 1995 or under the Code of Conduct and Ethical Standards for Public Officials and Employees. However, this may bring up possible problems in terms of the determination and interpretation whenever a violation occurs, especially that the Act is solely for the public and private working sector while the Code covers all areas in the public sector. Thus, there is a need to know whether or not the Anti-Sexual Harassment Act of 1995 and the Code of Conduct and Ethical Standards for Public Officials and Employees can be harmonized to form a unified anti-sexual harassment law for the p ublic sector.
C. OBJECTIVES
D. SCOPE AND LIMITATIONS
The paper limits its studies within these parameters: First, the need to study on the substantial distinction between the public and the private sector so as to know whether a law can be made stricter in terms of its definition, scope, and provisions. Second, the need to establish the comparison and constitution of a general law and a special law so as to determine whether or not the commission of an unethical act not punishable by RA 7877 can consider the punishment under RA 6713 for which it is a violation of. And make proper the harmonization process the researchers would like to pursue in the study. Thus, the two laws used to promulgate the Administrative Disciplinary Rules on Sexual Harassment Cases Resolution No. 01-0940 should be very well assessed on the basis of the substantial distinction between the sectors they have jurisdiction to and the comparison between a general law and a special law.
E. SIGNIFICANCE OF THE STUDY
The basic rationale why an Anti-Sexual Harassment Act was ratified, and a Resolution from the Civil Service Commission was passed for its promulgation, is because sexual harassment is still rampant among women and men from all ages, backgrounds, and job categories. Moreover, the Code of Conduct and Ethical Standards for Public Officials and Employees was ratified as a guide to public officials and employees in maintaining proper decorum that would also prevent unwarranted sexual acts between and among them. This paper aims to give a critical review of the laws by checking on the congruency of the Resolution with the Act and Code of Conduct; as well as finding alternatives so as to remove
or at least, reduce such inconsistencies or come up with a unified definition of sexual harassment that applies to all, without the ambiguity of the term Sexual Harassment; because otherwise, it could be prejudicial to the offender and to the public. In line with this, the researchers will check if the CSC exceeded its authority to implement the statute, RA 7877 and RA 6713, through the expansion of the legal definition of sexual harassment. This has to be investigated as CSC exercises quasi-legislative power, or rulemaking power, to implement the provision of the law, that is, the CSC's power is subordinate legislation. It does not have the authority to make a new law or amend the existing law, for as an administrative agency, its purpose is to implement the statute. The people deserve a better implementation of the law and protection from Sexual Harassment. The researchers therefore, aspire to address the clash, if there is any, between the laws, in order to protect the parties and for a better exercise of their rights as promulgated by the Constitution.
F. ORGANIZATION OF THE THESIS
