vol 1 access to justice of persons with disabilities

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AC C E S S T O J U S T I C E

A MANUAL FOR PWD RIGHTS ADVOCATES

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R E S E A R C H T E A M

D E A N R A U L P A N G A L A N G A N

A T T Y . G L E N D A L I T O N G

E D I T O R S

R U T H G U I N T O

L I A M A G T I B A Y

A M I R A H P E N A L B E R

K A T R I N A R I V E R A

M A R A A N G E L I V I L L E G A S

R E S E A R C H A S S I S T A N T S

R O S E M A R C I A N O

A M E L I A M A I K V I L L E G A S

A D M I N I S T R A T I V E S T A F F

J O H N P E D R O M A L I C D E M

M A R A A N G E L I V I L L E G A S

C O M P I L E R S

G I S E L L E J O Y C E N A D I N E D E L A P E N A

G R A P H I C S

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PREFACE

What does it take to overcome discrimination against Persons with Disabilities (PWDs) in the Philippines today? The threshold challenge is to correct wrong attitudes that in turn are based on ignorance.

The most important truth that most people do not

know is that the PWD claim to equality and non-discrimination is already embodied in law, and in fact gives rise to legally protected rights that can be invoked by the PWDs and their families. The central message is that PWD claims give rise to duties and obligations enforceable by law.

This Manual on Access to Justice consists of two volumes.

Volume I is directed to PWDs and PWD rights

advocates and sets forth the basic legal framework for the protection of PWD rights. Since it contains the relevant laws and regulations, it can be used as a handy reference in the filing of complaints and other claims. It is organized in a more accessible question-and-answer format, around six areas where violations are commonly experienced: access to justice in civil and criminal cases; accessible

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transport and buildings; education; employment; health; and the right to vote.

Volume II is designed to be used in training

seminars for government personnel engaged in front-line services in the six areas mentioned above. As with Volume I, the goal is at once to inform them about existing laws protecting PWDs, and to sensitize them to the problems that Filipino PWDs face.

Especially in the Philippines, grand normative

declarations are wantonly ignored unless they are translated into workable standards and enforced as legal obligations. For cultural and historical reasons, norms are treated merely as big words and it takes practical remedies, e.g., the threat of punishment or court-ordered corrective measures, for people to listen. It is our hope that these Manuals will help PWDs and their families take direct action to overcome discrimination, and that the process itself of presenting claims and complaints will educate government personnel about PWD rights, clarify the meaning of broad legal standards in a Philippine context, and empower PWDs to participate as equal partners and citizens in the larger struggle against discrimination and bigotry in all its forms.

Diliman, Quezon City. 1 June 2014.

Raul C. Pangalangan

Professor of Law

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TABLE OF CONTENTS

PREFACE ........................................................................................................... V

TABLE OF CONTENTS .................................................................................. VII

HOW TO USE THIS MANUAL ......................................................................... IX

CHAPTER 1: BASIC CONCEPTS ....................................................................... 1

CHAPTER 2: BASIC LEGAL FRAMEWORK ..................................................... 8

CHAPTER 3: PWD ID CARD ........................................................................... 15

CHAPTER 4: ACCESS TO JUSTICE ................................................................. 19

CHAPTER 5: ACCES SIBL E TRANS PORT AND BUIL DINGS ....... 37

CHAPTER 6: EDUC ATION ....................................................................... 57

CHAPTER 7: EMPLOYMEN T .................................................................. 82

CHAPTER 8: HEALTH ................................................................................... 102

CHAPTER 9: S UFF RAG E ........................................................................ 111

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HOW TO USE THIS MANUAL

This manual, consisting of two volumes, is intended for members of the PWD communities, as well as individuals who are forwarding the cause related to their rights, as an informational reference for navigating the waters of PWD rights advocacy. It is humbly offered to serve as a compact handbook that provides strategy and guide points readily applicable to real-life situations. This manual is designed to equip each and every member of the PWD community with the informational and legal tools that will come in handy for them, whenever there arises a need for their rights to be protected, promoted and invoked.

Users of this manual will be brought and

introduced to the existing laws and treaties related the rights of PWDs, and provided with the basic knowledge necessary to engage the government, its agencies, and the society as a whole, in proactively implementing the laws that do exist, but often appear illusive to the ones who need to know, and in knowing, invoke them.

The most relevant parts of the laws and agency

policies have been highlighted, in order to ground this informational and advocacy-fueled narrative on the black letter of the law, with the purpose of increasing the user’s confidence in asserting the same. Certain aspects of the challenges faced by persons with disabilities (PWDs) have also been highlighted to address the human rights problems, and juxtaposed them to the corresponding laws

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and the user’s opportunities to contribute in enforcement mechanisms. These are the areas that we believe will make a difference in the lives of all users, PWDs and advocates alike.

Should this book prove faithful to its utility, then it may be said that half the challenge in protecting the rights of the PWDs has already been met and overcome.

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CHAPTER 1: BASIC CONCEPTS

Who are persons with disabilities (PWDs)? What is an impairment? What is a disability? Is impairment different from disability? What is the importance of this distinction between

impairment and disability? What does discrimination mean? What is universal design? What is reasonable accommodation?

CHAPTER 2: BASIC LEGAL FRAMEWORK

When a person with disability asks for equal treatment, is

he making a mere request? Or is he claiming it as a matter of right?

How is the PWD claim to equality and non-discrimination guaranteed by law?

How does the principle of “social justice” support the PWD claim to equality?

What is the Convention on the Rights of Persons with Disabilities?

Is the Philippine Government bound by the obligations set forth in the CRPD?

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Can a PWD invoke the Convention on the Rights of Persons with Disabilities against Philippine government agencies?

Has the Philippines enacted national legislation to protect the rights of PWDs?

CHAPTER 3: PWD ID CARD

What is the PWD ID card? What is the process for obtaining a PWD ID card? How long will the ID card be valid? How much will it cost?

CHAPTER 4: ACCESS TO JUSTICE

What is access to justice? How does access to justice apply in particular to PWDs? How does international law protect the PWD right of

access to justice? How is access to justice secured in Philippine law? Is a PWD qualified to file cases before Philippine courts? Is he qualified to testify as a witness before the courts? Is he still qualified to testify as a witness if he has a

mobility impairment? Is he still qualified to testify as a witness if he has a

sensory impairment? Is a deaf person qualified to testify as a witness? Has the Supreme Court recognized the capacity of a deaf

witness to testify? Is a blind person qualified to testify as a witness?

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Is he qualified to testify as a witness if he has a psycho-social impairment?

How can the law enable persons with psycho-social impairments to testify?

Does the PWD’s impairment affect the weight of his testimony?

The Rules of Court protect the rights of witnesses. Which of these rights are particularly relevant to PWDs?

Can PWDs invoke the Rules of Court if they wish to testify before administrative bodies (in contrast to courts or judicial bodies)?

What is the government agency tasked with the duty to formulate policies and coordinate other government agencies regarding disability concerns and issues?

Has the Department of Justice (DOJ) taken measures to ensure PWD’s access to justice?

CHAPTER 5: ACCESSIBLE TRANSPORT AND BUILDINGS

Does the Magna Carta advance the right of PWDs to mobility? Are PWDs eligible to obtain a driver’s license? What forms of discrimination on the basis disability are

prohibited on public transport? Typically, airlines, shipping companies, buses, jeepneys

and taxis are privately owned businesses in the Philippines. Can the government impose on them the obligation to respect PWD rights?

What are the rights of PWDs regarding air transport? What are the rights of PWDs regarding water transport?

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Is there a PWD discount on public transport? What is its legal basis?

How can a PWD avail of discounts on public transport? How much is the PWD discount on public transport? How can a PWD avail of the discount on domestic air

fares? Is the PWD discount availabale for train fares too? Under the CRPD, what does it mean to have a non-

handicap building or roadway for PWDs? Under Philippine law, what does it mean to have a

non-handicap building or roadway for PWDs?

What remedies are available to PWDs when their right of access is curtailed in air transport?

What remedies are available to PWDs when their right of access is curtailed in sea transport?

Are there PWD discounts in restaurants, hotels and recreation centers?

CHAPTER 6: EDUCATION

Under international law, what are the rights of PWDs with

regard to education? What forms of discrimination are prohibited under the

CRPD with regard to education? Under Philippine law, what are the rights of PWDs with

regard to education? How does Philippine law adopt the CRPD concept of

“universal design” to make public and private schools more “inclusive”?

Does the government have the obligation to offer PWD scholarships?

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Do public tertiary schools have the obligation to respect PWD rights?

Does the state have the duty to provide and support vocational and technical training to PWDs?

Does the state have the duty to provide and support special education?

Is “special education” equivalent to “inclusive education”? How does the Magna Carta apply the principle of non-

discrimination to “learners with special needs”? Does the Magna Carta allow exceptions to the principle of

non-exclusion on the basis of disability? How does the principle of non-discrimination apply to

PWDs in higher education and post-secondary education?

How does the Amended Magna Carta protect students with disabilities from ridicule?

How does the Anti-Bullying Act protect students with disabilities from school bullying?

How does anti-bullying address the needs of disabled students?

CHAPTER 7: EMPLOYMENT

What international agreements protect the labor rights of

PWDs ? How does the CRPD protect the labor rights of PWDs? What is “vocational rehabilitation” under ILO Convention

No. 159 and the CRPD? How does Philippine law protect the labor rights of

PWDs? How does Workmen’s Compensation benefit PWDs?

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How are the labor rights of PWDs violated? Does the Magna Carta affect the rights of PWDs under the

Labor Code? What form of “reasonable accommodation” does the

Labor Code offer to PWDs? Which other government agencies provide livelihood

projects for PWDs? What are examples of disability pensions? What are the remedies available in the Labor Code for

PWD labor rights violations? What remedies are available in the Magna Carta? What remedy is available against government agencies

that do not comply with R.A. 10524? What remedy is available for filing claims regarding work-

related injuries?

CHAPTER 8: HEALTH

How does international law protect the right to health of

PWDs? How does Philippine law protect the right to health of

PWDs? Are PWDs entitled to discounts on the costs of health

care? What is the process that must be followed by a PWD in

order to avail of these benefits? What prosthesis assistance is available for PWDs?

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CHAPTER 9: SUFFRAGE

How does international law secure the right of PWDs to

vote? How does Philippine law secure the right of PWDs to

vote? How does Philippine law reconcile the secrecy of the

ballot with the PWDs’ need for assisted voting? Who is a PWD for purposes of voting during elections? What is the most important measure to secure the equal right of PWDs to vote?

What is the procedure for the voter’s registration of PWDs? What is the next step after the application form is

accomplished? Are PWDs given priority during registration? Are PWDs given a separate and more accessible polling

place during election day itself? Who may be allowed to vote in separate polling places? What remedies are available to duly registered PWD

voters who are denied their right to vote? Can aggrieved PWDs charge persons for election offenses? Can aggrieved PWDs charge Comelec officials for

administrative liability?

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CHAPTER 1: BASIC CONCEPTS

Q: Who are persons with disabilities (PWDs)? A: Philippine law defines PWDs as “those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered for a normal human being” (Magna Carta for Persons with Disabilities, R.A. 7277, or Magna Carta, Sec. 4.a) .

International law, however, has a broader definition: “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others (Convention on the Rights of Persons with Disabilities, or CRPD, Art. 1).

Notice that Philippine law focuses on the impairment, while international law more broadly includes the “various barriers [to] full and effective participation” and how they “interact” with the impairment. The distinction between impairment and disability will be explained below. Q: What is an impairment? A: Philippine law defines impairment is “any loss, diminution or aberration of psychological, physiological

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or anatomical structure or function.” (Magna Carta, Sec. 4.b) Q: What is a disability? A: Philippine law defines disability as “a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual.” (Magna Carta, Sec. 4.c) Impairments associated with disability may be physical, mental or sensory motor impairment such as partial or total blindness, low vision, partial or total deafness, oral defects, having only one hand/no hands, one leg or no legs, mild or severe cerebral palsy, mental retardation, or mental illness. Q: Is impairment different from disability? A: Impairment is distinct from disability, because impairment is an attribute of the person, whereas disability is a social construct and pertains to how an impairment “interact[s] with various barriers [that] hinder [a PWD’s] full and effective participation in society on an equal basis with others.” (CRPD, Art. 1)

International law recognizes that “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.” (CRPD) The object of the laws

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protecting the rights of PWDs is to dismantle those barriers. Q: What is the importance of this distinction between impairment and disability? A: This distinction helps revise the old approach that focused on the PWD and asked what he lacked compared to fully-abled persons. In contrast, this manual adopts the newer approach that begins with the fundamental guarantees of equal citizenship, and asks what laws, procedure and structures prevent the PWD from the full exercise of his legally protected rights.

Moreover, it helps situate discrimination against PWDs in the larger context of discrimination against other groups, that is to say, exclusion on the basis of gender, sexual orientation, race, religion, ideology, culture, ethnicity or national origin. The CRPD “emphasize[s] the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development.” (CRPD Preamble (g)) Moreover, the CRPD recognizes the “difficult condition faced by [PWDs] who are subject to multiple or aggravated forms of discrimination”, for instance, on the basis of race or sex, of having been born an illegitimate child, or suffering from the “negative impact of poverty.” (CRPD Preamble (t))

We thus recognize that an impairment – the diminution of one’s physical or mental capabilities – need not always lead to a disability – the diminution of the

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capacity to enjoy one’s rights. An impairment becomes a disability only when barriers in the physical and social world we have constructed diminish a PWD’s capacity to function fully in that world. In other words, just as with other grounds of discrimination, differences are socially transformed into grounds for discrimination. The effort to end discrimination against PWDs is part of the larger struggle against discrimination and bigotry in all its forms. Q: What does discrimination mean? A: International law defines “discrimination on the basis of disability” as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” (CRPD, Art. 2)It is “a violation of the inherent dignity and worth of the human person.” (CRPD, Preamble (h)) Q: What is universal design? A: International law defines universal design as the “design of products, environments, programs and services that are usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed” (CRPD, Art. 2).

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The concept of “universal design” helps overcome the notion that PWD equality entails special treatment and emphasizes that what it requires is appropriate treatment. It starts from the premise that facilities and services must be “usable by all people”, not just by some people or just by fully-abled people. People have different capabilities, and PWDs are entitled to facilities and services appropriate to their capabilities. There is discrimination when these facilities and services are inappropriate to PWD capabilities, and hinder their “full and effective participation in society on an equal basis with others.” Q: What is reasonable accommodation? A: Philippine law defines reasonable accommodation specifically, but not exclusively, in relation to accessibility and employment. As regards accessibility, it means the “improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons.” As regards employment, it means the “modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provision of auxiliary aids and services, and other similar accommodations for disabled persons” (Magna Carta, Sec. 4.h).

International law is at once broader and narrower. Broader, because it does not limit reasonable

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accommodation to accessibility and employment, and applies to all situations “where needed in a particular case”, but likewise narrower because it focuses on “particular case[s]”, which is to say, it pertains to ad hoc accommodations, not systemic or across-the-board changes, like revisions of the rules.

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; …. (CRPD, Art. 2)

Finally, in international law, the denial of

reasonable accommodation constitutes discrimination. “Discrimination on the basis of disability” … include[es] denial of reasonable accommodation; …. (CRPD, Art. 2)

The concepts of universal design and reasonable accommodation recognize that equality for PWDs entails not just negative steps, namely, dismantling barriers, but also positive steps, namely, affirmative measures to enable equal enjoyment of rights. For instance, the Philippine government, under the CRPD, made the following promises. The first negative is an example of a negative obligation:

(d ) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (CRPD, Art. 4)

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The provisions cited next are examples of affirmative obligations:

(b ) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; …. (e ) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; …. (CRPD, Art. 4)

The Philippine Constitution refers to these

affirmative obligations as “social justice”, or what elsewhere is called redistributive justice or affirmative action, and specifies several beneficiary groups, including the “disabled” (see below). The CRPD advances social justice, and says that “[s]pecific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination.” (CRPD, Article 5.4) Reasonable accommodation includes “necessary and appropriate modification and adjustments” needed to enable PWD access. (CRPD, Art. 2) The definition universal design deliberately states that it “shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.” (CRPD, Art. 2)

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CHAPTER 2: BASIC LEGAL FRAMEWORK

Q: When a person with disability asks for equal treatment, is he making a mere request? Or is he claiming it as a matter of right? A: He is claiming a right that is protected by law and enforceable through the courts or administrative agencies. As a rights-bearer, he is not asking for a privilege or making a mere request that can be ignored. He is invoking a binding obligation owed by the government or private parties to PWDs to provide facilities and treatment appropriate for his condition in the same way the fully-abled persons have facilities and treatment appropriate for their condition. He claims a right, and he claims it as a matter of justice, not mercy. In the words of the Magna Carta, “disabled person’s rights must never be perceived as welfare services by the Government.” (Magna Carta, Sec. 2.b) Q: How is the PWD claim to equality and non-discrimination guaranteed by law? A: Yes, they are guaranteed by both international law and the Philippine Constitution.

The Philippines has signed the Convention on the Rights of Persons with Disabilities (CRPD), which sets forth the specific rights and which specifically ensures access to justice.

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States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. (CRPD, Art. 13.1)

The Philippine Constitution guarantees “full respect

for human rights” and “equal protection of the laws” to all persons. These guarantees apply across the board to all cases of discrimination and exclusion.

The State values the dignity of every human person and guarantees full respect for human rights. (CONST. Art. II Sec. 11)

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (Art. III Sec. 1)

It also provides for “Social Justice and Human

Rights”, or what elsewhere is called redistributive justice or affirmative action and, as regards the right to health, identifies the “disabled” as one of the groups to be given “priority.”

The State shall adopt an integrated and comprehensive approach to health development .... There shall be priority for the needs of the under-privileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. (CONST. Art. XIII, Sec. 11)

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The State shall establish a special agency for disabled persons for their rehabilitation, self-development, and self-reliance, and their integration into the mainstream of society. (CONST. Art XIII, Sec. 13)

Q: How does the principle of “social justice” support the PWD claim to equality? A: Since these two social justice articles identify PWDs as a group entitled to state solicitude, discrimination on the basis of disability is therefore a “suspect classification” and will trigger off “heightened scrutiny” by the courts, which applies two requirements.

First, the discriminatory rule or practice will have to be justified with a “substantial” or “compelling” public purpose, which is higher than the usual standard which is ordinary “public purpose” required when the classification is not suspect. For instance, additional PWD requirements for driver’s licenses will have to be justified by compelling reasons of public safety.

Second, the challenged measure must be narrowly tailored to achieve that public purpose and not unnecessarily burden or exclude PWDs. For instance, the law does not disqualify orthopedically impaired persons from driving a car. It custom-tailors the requirement to those required for public safety. For instance, Philippine regulations say that a person with “weak legs but not paralyzed” may qualify to apply for a driver’s license.

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Q: What is the Convention on the Rights of Persons with Disabilities? A: This Convention is one of the leading international treaties to protect human rights. There are many such treaties. Some are general in scope, like the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural rights. Some are more specific, like the Genocide Convention, Convention on the Elimination of Discrimination Against Women, Convention on the Elimination of Racial Discrimination, Convention on the Rights of the Child, Convention Against Torture, and Convention on Migrant Workers. The CRPD belongs to the latter group, because it provides more specific protection against particular forms of discrimination that, in the case of the CRPD, is discrimination on the basis of disability. Q: Is the Philippine Government bound by the obligations set forth in the CRPD? A: Yes, the CRPD is an international agreement binding upon the Philippine Government.

The Philippines signed the CRPD on September 25, 2007. Under the 1969 Vienna Convention on the Law of Treaties (Vienna Convention), the Philippines is bound to perform its treaty obligations in good faith. The Vienna Convention defines "treaty" as “an international agreement concluded between States in written form and

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governed by international law, … whatever its particular designation” (Vienna Convention, Art. 2.1.a).

The Philippines has “acceded” to the CRPD in accordance with the Vienna Convention, which refers to "accession" as an “international act … whereby a State establishes on the international plane its consent to be bound by a treaty” (Vienna Convention, Art. 2.1.b). Under the principle of pacta sunt servanda, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” (Vienna Convention, Art. 26). The Philippines “may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” (Vienna Convention, Art. 27) Q: Can a PWD invoke the Convention on the Rights of Persons with Disabilities against Philippine government agencies? A: Yes, the CRPD is opposable against the Philippine government before domestic courts and administrative agencies. Under the Constitution, the Philippines “adopts the generally accepted principles of international law as part of the law of the land” (CONST. Art. II, Sec. 2, called the Incorporation Clause) The Supreme Court has in many cases invoked the Incorporation Clause to apply the provisions of international agreements directly in Philippine law, without the need for national legislation. In other words, by virtue of incorporation, Philippine courts may enforce an international obligation even if Congress does not pass a domestic implementing law. Of

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course that is not possible when the treaty itself provides that domestic legislation is required or, when by the nature of the obligation itself, it will requires more specific rules in order to be effective. Q: Has the Philippines enacted national legislation to protect the rights of PWDs? A: Yes, the Philippine Congress has several four statutes specifically on PWDs, but the most important is the 1992 Magna Carta for Disabled Persons, “An Act Providing for the Rehabilitation, Self-Development and Self Reliance of Disabled Persons and their Integration into the Mainstream of Society and for Other Purposes” (Republic Act 7277, or Magna Carta). The Magna Carta has been thrice amended to strengthen PWD protection.

In 2007, the Congress renamed it the Magna Carta for Persons with Disabilities; added PWD discounts for health, travel and recreational needs and incentives (including tax benefits) for PWDs’ service providers; and punished the “ridicule and vilification” of PWDs (Republic Act 9422, or Amended Magna Carta).

In 2010, it was again amended to strengthen its implementation by creating the Persons with Disability Affairs Office (PDAO) in “every province, city and municipality” in local government (Republic Act 10070).

In 2013, it was again amended to strengthen the principle of “equal opportunity for employment” for

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PWDs, and reserves for PWDs at least 1% of all posts in government agencies and in large private corporations (with at least 100 employees) (Republic Act 10524).

In addition, in 1983, the Congress passed the Accessibility Law which enhances PWD accessibility to buildings and public utilities (Batas Pambansa Blg. 344, or Accessibility Law). Finally, in 2013, the Congress passed a law to “enable persons with disabilities and senior citizens to register and vote by themselves” (Republic Act 10366, or Accessible Voting Law).

All of these laws have their own respective Implementing Rules and Regulations, some of which are cited in the relevant portions in this Manual.

The National Council on Disability Affairs (NCDA) is the executive office which serves as the central agency tasked to monitor the implementation of the laws protecting PWDs.

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CHAPTER 3: PWD ID CARD

Q: What is the PWD ID card? A: The law provides benefits, including discounts, for PWDs that can be availed of upon showing the PWD ID card, “[a]n identification card issued by the city or municipal mayor or the barangay captain of the place where the persons with disability resides” (Amended Magna Carta, Sec. 1). The Department of the Interior and Local Government is the government agency charged with regulating the issuance of these cards.1 Q: What is the process for obtaining a PWD ID card? A: The process for obtaining a PWD ID card is as follows:2

B.1 Any bonafide person with permanent disability or his/her caregiver can obtain an application form from either of the following registration centers:

Office of the Mayor Office of the Barangay Captain NCDA or its regional counterpart DSWD Offices

1Memorandum Circular No. 2009-129 Compliance To The Issuance Of

Identification Cards And Purchase Booklets For Persons With 2Retrieved from http://www.ncda.gov.ph/2009/07/apply-fo-pwd-id-card/#sthash.iTeqY4cg.dpuf on February 1, 2014

http://www.ncda.gov.ph/2009/07/apply-fo-pwd-id-card/#sthash.iTeqY4cg.dpuf

http://www.ncda.gov.ph/2009/07/apply-fo-pwd-id-card/#sthash.iTeqY4cg.dpuf

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Participating organizations with memorandum of agreements with the Department of Health

B.2 Applicant shall fill up the form, attaches two 1″ x 1″ picture with his or her signature or thumbmark behind. B.3 He or she shall obtain a clinical abstract duly signed by any licensed private or government clinic or hospital-based physician and attach it with the application form. B.4 Applicant, care-giver or registration center personnel then brings or uploads, whichever is applicable, the application form and clinical abstract to the nearest City of Municipal Health Office or its satellite offices or stations at the barangay. B.5 The receiving health office shall screen and perform the necessary medical and other allied medical assessment they deem necessary at no cost to the applicant, for the accuracy of the entries with the actual and permanent condition of the PWD. If PWD is not ambulatory, the receiving health officer shall do a home visit to validate the entries and disability. B.6 If entries of the application form and clinical abstract match the actual health condition of the PWD, the form, with all attachments, go to the Health Officer of the Main City or Municipal Health Center. B.7 The City or Municipal Health Officer shall fill up the certification form which shall be designed, reproduced and archived by the City of Municipal Health Office. The form shall contain the following information:

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1. First Name, Middle Initial and Last Name of Applicant PWD

2. Diagnosis 3. Complete Address 4. Birthday 5. Gender 6. Father’s Name 7. Mother’s Name 8. Control Number 9. Physician’s signature over Printed Name and

License Number B.8 The City or Municipal Health Officer shall affix the control number on the certification form and application form and sign the certificate of disability. The City of Municipal Health Officer shall then enter the duly signed certificate of disability to the Philippine Registry for Persons with Disabilities, which can then be loaded from the DOH National Office Website. B.9 Applications that were disapproved shall be advised regarding the deficiencies, and shall be allowed to reapply until complied. B.10 The applicant or care-giver shall bring the duly approved application form and certificate of disability to the City or Municipal Social Welfare Office or NCDA for issuance of the identification card. B.11 The nearest local Social Welfare Office or NCDA may screen applicants further and require a social case study, if warranted.

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B.12 If the application is found to be valid, the receiving officer of the local SWO or NCDA shall record control number and issues ID to PWDs. B.13 As to non-apparent disabilities, the establishments may ask from the PWD additional documents as proof of the disability.

Q: How long will the ID card be valid? A: The ID card issued to the PWD shall be valid for three years. Q: How much will it cost? A: The first issuance shall be issue free of charge. As for renewals due to expiration, loss or damage, the issuing authorities, the Mayor, Barangay Captain and the NCDA shall be allowed to charge a minimal fee for the new ID card.

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CHAPTER 4: ACCESS TO JUSTICE

Q: What is access to justice? A: Access to justice is the capacity to seek redress of grievances through formal institutions capable of giving binding decisions. It requires the following elements, among others:

1. There must be a mechanism for a person to seek redress of grievances;

2. That mechanism must provide an independent agency or court to hear the grievance;

3. That mechanism must provide equal access to all victims with grievances;

4. That agency must provide a fair procedure that provides due process of law.

Q: How does access to justice apply in particular to

PWDs? A: Access to justice will help overcome discrimination based on disability, especially in the areas identified in this manual, namely, transportation, health, education, labor, criminal justice and the exercise of the right of suffrage.

Specifically for PWDs, access to justice means ensuring that PWDs can seek justice on equal terms, e.g., reasonable accommodation to enable PWD witnesses to testify in proceedings, and to protect them against re-

20

victimization based on disability during the proceedings. This also requires training for those working in the field of administration of justice including police and prison staff.

From the moment a PWD suffers a wrong, his or her challenge is how to air the grievance to the proper authorities. In response to this, for instance, the Supreme Court has authorized lower courts to engage the services of sign language interpreters, recognizing that there “parties or witnesses who, to be fully understood and [to] prevent possible miscarriage of justice, may require a sign language interpreter.”3 Q: How does international law protect the PWD right of access to justice?

A: The CRPD guarantees the equality of all persons before the law and effective access to justice for redress of grievances. Equality before the law assures the PWD that he or she stands on equal footing with all other persons in the enjoyment of their rights. Equal access to

justice ensures that the PWD can file complaints and testify as witnesses before courts and administrative

3 Supreme Court Memorandum Order No. 59-2004 (September 10, 2004);

and Office of the Court Circular No. 104-2007 (October 18, 2007).

Convention on the Rights of Persons with

Disabilities

States Parties shall prohibit all

discrimination on the basis of disability and

guarantee to persons with disabilities equal

and effective legal protection against

discrimination on all grounds.

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agencies, which must make “accommodations” to enable them to do so.

Art. 5. Equality and non-discrimination. 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. Art. 13. - Access to justice. 1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. (CRPD)

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Q: How is access to justice secured in Philippine law? A: A party that seeks redress before Philippine courts must file a complaint under procedure set forth in the Rules of Court, a set of regulations laid down by the Supreme Court to govern how courts exercise their jurisdiction. Over the years, the Rules of Court have been amended, as for example, the Rules of Civil Procedure and in the Revised Rules of Criminal Procedure.

If a PWD seeks civil remedies – say, to stop a discriminatory practice, nullify a discriminatory law, or seek an award of damages for having suffered from discrimination – he shall follow the Rules of Civil Procedure as amended, and the amendments of the older Rules of Court.

If a PWD wants to file criminal charges – say, to punish persons who commit discriminatory acts – he shall follow the Revised Rules of Criminal Procedure.

In addition, whether a PWD can testify as a witness in court is determined by the Revised Rules of Evidence, which amends the portion of the Rules of Court that govern evidence. These rules set the qualifications for a person who wishes to offer testimony in a trial. Q: Is a PWD qualified to file cases before Philippine courts? A: Yes, this is guaranteed by both international law and

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Philippine law. The CRPD guarantees “equal[ity] before the law”, non-discrimination, and “the equal protection and equal benefit of the law.” The Philippine Constitution guarantees the “dignity of every human person and guarantees full respect for human rights” and the “equal protection of the laws.” Q: Is he qualified to testify as a witness before the courts? A: Yes, the Revised Rules of Evidence prescribe, under Rule 130, the Rules of Admissibility on what things, documents or testimonies may be used to prove a fact. Rule 130, Section C pertains to testimonial evidence, namely, proof offered by a witness, and it defines, under Section C.1, who can be a witness and, significantly, it says “all persons who can perceive, and perceiving, can make known their perception to others” (Revised Rules of Evidence, Rule 130.C.1).

A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Deaf-mutes are competent witnesses where they (1) can understand and appreciate the sanctity of an oath; (2) can comprehend facts they are going to testify on; and (3) can communicate their ideas through a qualified interpreter. (People v. Tuangco, 399 Phil. 147, 162 (2000)).

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RULE 130 Rules of Admissibility

C. TESTIMONIAL EVIDENCE 1. QUALIFICATION OF WITNESSES Sec. 20 . Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (Revised Rules of Evidence)

Q: Is he still qualified to testify as a witness if he has a mobility impairment? A: Yes, a PWD with a mobility impairment is qualified to testify as a witness. Indeed, the Supreme Court has enjoined the judges to provide PWDs convenient access to courtrooms, and, if necessary, by holding sessions on the ground floor or court houses.4 Q: Is he still qualified to testify as a witness if he has a sensory impairment? A: Yes, PWDs, even those with sensory impairments, may testify as witnesses, provided they can “perceive, and perceiving, make known their perception to others.” Blind

4 Supreme Court Memorandum Circular 46-95 (1995).

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persons can hear, smell and taste. Deaf persons can see and “make known their perceptions” through sign-language interpreters. Q: Is a deaf person qualified to testify as a witness? A: Yes, a deaf person may testify in court. Again, the rule is that a witness is qualified provided he “can perceive, and perceiving, can make known [his] perception to others.” That a deaf person “can perceive” is not an issue. Except for the sense of hearing, he is in command of all his other sensory faculties. It is the second prong, “make known his perception”, that is often raised as the objection.

That objection is surmountable through sign-language interpreters, whose role is expressly recognized by the Supreme Court and can be analogized to the “different mode of answer” acknowledged by the Rules of Court. The Rules provide that the witness must answer the questions “orally”, except when a “witness is incapacitated to speak, or the question calls for a different mode of answer.” Under the CRPD, deaf persons’ access to sign-language interpreting is a form of “reasonable accommodation.” Under the Magna Carta, it is an “auxiliary aid and service” for deaf persons. (Sec. 4.g)

RULE 132 PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES SECTION 1 . Examination to be done in open court. — The examination of witnesses presented in a trial or

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hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (Revised Rules of Evidence)

Note that though deaf persons are physically not

“incapacitated to speak”, their hearing impairment may prevent them from developing that capacity fully. Note too that for a deaf person, “making known their perception to others” entails both their capacity to “hear” the question asked by counsel or by the judge, and to give their answer orally as required by the Rules. These two barriers to the competence of deaf persons to speak their truth in court are overcome by the service of sign-language interpreters. In turn, judges who are inclined to use sign-language interpreters needed to find firm legal authority for receiving such evidence and the funds with which to pay the interpreters.

Fortunately, the Supreme Court has now confronted that problem. The Court has authorized trial court judges, through the Office of the Court Administrator (OCA), to engage the services of sign language interpreters, recognizing that there are “parties or [] witnesses who, to be fully understood and [to] prevent possible miscarriage of justice, may require a sign language interpreter.”5 Previously, such permission was available only from the Supreme Court itself. Today the

5 Supreme Court Memorandum Order No. 59-2004 (2004); and Office of the

Court Circular No. 104-2007 (2007).

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OCA can directly authorize the trial court judge to hire the interpreter.

What is lacking thus far is a system to accredit sign language interpreters and certify to their expertise and impartiality. This will require the institutionalization of the Visual Communication Assessment for the Deaf (VCAD), in order to evaluate the kind of interpreter needed in a particular case, as there may be interpretation nuances depending on the region, education, and social conditions, among others. While not yet in policy, some prosecutors or judges have accommodated the need for the VCAD. Q: Has the Supreme Court recognized the capacity of a deaf witness to testify? A: Yes, the Supreme Court, in the case of People v. Aleman, held that the “mere fact that [the witness] is a deaf-mute does not render him unqualified to be a witness. The rule is that all persons who can perceive and perceiving, can make known their perception to others may

The appellants further contend that the said witness lacks the requisite qualifications of a witness, being a deaf-mute. This is equally without merit. The mere fact that she is a deaf-mute is insufficient to justify a finding that she is an incompetent witness, so long as she can perceive, and perceiving she can make known her perception to others. In the case at bar, the trial court ascertained whether the said witness has the requisite intelligence and ability to convey and make known her perception to others. After such a determination, the trial court found her to be a competent witness, and snowed her to testify thru qualified interpreters. (People v. Castañeda, G.R. 32625 (1979))

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be witnesses. Thus, a deaf-mute is competent to be a witness so long as he or she has the faculty to make observations and he or she can make those observations known to others.”6

A deaf-mute may not be able to hear and speak but his/her other senses, such as his/her sense of sight, remain functional and allow him/her to make observations about his/her environment and experiences. The inability to hear and speak may prevent a deaf-mute from communicating orally with others but he/she may still communicate with others in writing or through signs and symbols and, as in this case, sketches. Thus, a deaf-mute is competent to be a witness so long as he/she has the faculty to make observations and he/she can make those observations known to others. (People v. Aleman)

In two older cases, the court accepted the

testimonies of the deaf rape victims who testified through professionally trained sign language interpreters. (People v. de Leon7; and People vs. Sasota8) However, in People v. Hayag9, the deaf rape victim testified through her sister who had not been trained for sign language interpretation but who instead used an “improvised sign language.” The trial court “commission[ed the sister to act as an interpreter” and who accordingly took an oath. However, the court acquitted the accused because the victim’s testimony had not been corroborated and, the “story in

6 G.R. No. 181539 (2013). (See also People v. Tuangco above). 7 50 Phil. 539. 8 52 Phil. 281. 9 G.R. L-38635 (1980).

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itself is not clear, convincing, positive and free from suspicion. It is not impeccable and does not ring true throughout.” Q: Is a blind person qualified to testify as a witness? A: Yes, in People v. Lascano, the Supreme Court relied on the testimony of a blind rape victim to convict the accused. The blind victim’s testimony was” clear, convincing and credible” and was corroborated by the medical certificate and testimony of the doctor. Significantly, the court recognized “that identification of an accused by his voice has been accepted, particularly in cases where, as in this case, the victim has known the perpetrator for a long time; for the blind voice recognition must be a special sense that has been developed to a very high degree.”10 Q: Is he qualified to testify as a witness if he has a psycho-social impairment? A: Yes, he is qualified to testify, except if falls under the disqualification for persons with “mental incapacity or immaturity.” In other words, not all psycho-social impairments exclude a person from testifying. In order that a PWD with a psycho-social impairment may disqualified as a witness, it must be shown that, at the time he testifies (not at the time of the event he is describing before the court), he is incapable of

10 G.R. No. 192180 (2012).

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“intelligently making known” his perception, or that he is a child “whose mental maturity” renders him incapable of both perceiving facts and making it known truthfully. In other words, the disqualification is not automatic but needs to be established before the court can exclude the witness.

Sec. 21 . Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses: (a)Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b)Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (Revised Rules of Evidence)

Q: How can the law enable persons with psycho-social

impairments to testify? A: No, there exists no similar mechanism to enable persons with psycho-social impairments to testify in court.

However, pending the development of such mechanism and in order to avoid injustices caused by their exclusion in the meantime, courts may be guided by the Rule on Examination of a Child Witness (Child Witness Rule)11, which governs the examination of child witnesses 11 Supreme Court, A.M. No. 004-07-S (2000).

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who are “victims of crime, accused of a crime, and witnesses to crime.” Significantly, Sec. 4 provides that in child abuse cases, a child includes “one over eighteen years but is found by the court as unable to fully take care of himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.” (Sec. 4, Child Witness Rule)

The judge shall ensure that child witness is asked only “developmentally appropriate questions.”

Sec. 6.e. Developmentally appropriate questions.— The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. Sec. 19. Mode of questioning.— The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that questions are stated in a form appropriate to the developmental level of the child; (3) protect children from harassment or undue embarrassment; and (4) avoid waste of time. …. (Child Witness Rule)

In order to promote truth-telling by the child

witness, the Child Witness Rules aims “to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.” (Sec. 2) It holds the presumption that “every child is presumed to be

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qualified to be a witness” (Sec. 6), and the burden falls upon the adverse party to rebut that presumption (Sec. 6.b). Q: Does the PWD’s impairment affect the weight of his testimony? A: Yes, unfortunately, it does affect what is called the “probative value” of his testimony. For instance, the weight to be given to the testimony of a PWD with sensory or psycho-social impairments depends upon the judge. The Rules of Court prescribe, under Rule 133, Weight and Sufficiency of Evidence, what that the judge may consider, especially the following factors relevant to PWD witnesses: “the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility ….”

Note that these factors were listed by the Rules in relation to civil cases, but not to criminal cases where the test remains generally that of “moral certainty … in an unprejudiced mind.”

RULE 133

Weight and Sufficiency of Evidence SECTION 1 . Preponderance of evidence, how determined. — In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In

33

determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Sec. 2 . Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. (Revised Rules of Evidence)

Q: The Rules of Court protect the rights of witnesses. Which of these rights are particularly relevant to PWDs? A: A person who is called to testify is duty-bound to answer the questions asked of him by counsel or by the judge. That is why a PWD witness must be aware that he is protected by law from “insulting questions” and from treatment with a “harsh or insulting demeanor.” With some exceptions, he is not duty-bound to answer when to

34

do so will “degrade his reputation.” Finally, leading questions (“a question which suggests … the answer which the examining party desires”) are generally not allowed except for some PWDs, namely, “when there is a difficulty is getting direct and intelligible answers from a witness who … of feeble mind, or a deaf-mute.”

RULE 132

PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES Sec. 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

…. (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.

Magna Carta for Disabled Persons;

auxiliary aids and services

(1) Qualified interpreters or other effective

methods of delivering materials to

individuals with hearing impairment;

(2) Qualified readers, taped tests, or other

effective methods of delivering materials to

individual with visual impairments;

(3) Acquisition or modification of equipment

or devices; and

(4) Other similar services and actions or all

types of aids and services that facilitate the

learning process of people with mental

disability are provided to persons with

disabilities identified as indigents or

marginalized.

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…. Sec. 10. Leading and misleading questions. — A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: (a) On cross examination; (b) On preliminary matters; (c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; …. (Revised Rules of Evidence)

Q: Can PWDs also invoke these rules if they wish to testify before administrative bodies (in contrast to courts or judicial bodies)? A: Yes, the Rules of Court governing civil and criminal proceedings, including the rules on evidence, are usually adopted by the internal rules of administrative agencies. You will have to check the internal rules of the specific agency to confirm to what extent the Rules of Court are applicable. Q: What is the government agency tasked with the duty to formulate policies and coordinate other government agencies regarding disability concerns and issues? A: PWD litigants can be referred by the National Council on Disability Affairs (NCDA) to the proper government office. The NCDA is “the lead agency tasked to steer the

36

course of program development for persons with disabilities and the delivery of services to the sector.” It has a subcommittee on access to justice and anti-discrimination. They are currently training lawyers to be “PWD-friendly” and are also promoting the teaching of sign language. Q: Has the Department of Justice (DOJ) taken measures to ensure PWD’s access to justice? A: Yes, Justice Secretary Leila De Lima has created the DOJ’s Action Center beside the gate of the DOJ complex to ensure accessibility especially to PWDs. The DOJ is also responsible for taking an inventory of its prosecutors, to see whether they are sensitized to the needs of PWDs, especially in terms of conveying information and facilitative communication.

Moreover, a PWD Legal Assistance Desk has been launched, for instance, at the Quezon City Prosecutors’ Office equipped with a manual on disability sensitivity for public attorneys and prosecutors. The Public Attorneys’ Office has also recently trained PWD-friendly public attorneys.:

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CHAPTER 5: ACCESSIBLE TRANSPORT AND BUILDINGS

Q: Does the Magna Carta advance the right of PWDs to mobility? A: The Magna Carta recognizes the right of PWDs to mobility, including the right to drive motor vehicles.

Sec. 26. Mobility. The State shall promote the mobility of disabled persons. Disabled persons shall be allowed to drive motor vehicles, subject to the rules and regulations issued by the Land Transportation Office pertinent to the nature of their disability and the appropriate adaptations or modifications made on such vehicles.

Q: Are PWDs eligible to obtain a driver’s license? A: Yes, PWDs may receive driver’s licenses, and are not automatically disqualified by virtue of their disability alone. A person with the following disabilities is eligible to

38

apply for a driver’s license with any Land Transportation Office licensing center or district office:

1. Partially blind person with poor visual acuity due to partial loss of vision/sight; 2. Orthopedically Impaired person with amputated left or right leg; amputated left or right arm; post-polio victims; paralyzed legs; weak legs but not paralyzed; ….

Q: What forms of discrimination on the basis disability are prohibited on public transport? A: The Magna Carta identifies two main forms of “discrimination on transportation”: charging higher fares for PWDs, or refusing to transport a PWD or his orthopedic devices.

Sec. 34. Public Transportation. – It shall be considered discrimination for the franchise or operators and personnel of sea, land, and air transportation facilities to charge higher fare to refuse to convey a passenger, his orthopedic devices, personal effects, and merchandise by reason of his disability. (Magna Carta)

The Accessibility Law also provides that

“[d]iscriminating against disabled persons in the carriage or transportation of passengers is hereby declared unlawful.” Q: Typically, airlines, shipping companies, buses, jeepneys and taxis are privately owned businesses in

39

the Philippines. Can the government impose on them the obligation to respect PWD rights? A: Yes. Although these means of transport are privately owned, they can operate only by virtue of a franchise issued by the government. Indeed, the Philippines has passed the Accessibility Law to ensure that buildings and transport are PWD accessible. Entitled An Act to Enhance the Mobility of Disabled Persons by Requiring Certain Buildings, Institutions, Establishments and Public Utilities to install Facilities and Other Devices, it aims “to promote the realization of the rights of disabled persons to participate fully in the social life and the development of the societies in which they live and the enjoyment of the opportunities available to other citizens.”

More specifically, the Accessibility Law empowers

the government to issue a franchise only if the owner or operator respects PWD rights, and to revoke their franchise if they don’t.

4.2.3 Transport vehicles for public use

CRPD Article 9

Accessibility To enable persons with disabilities to live

independently and participate fully in all

aspects of life, … to ensure to persons with

disabilities access, on an equal basis with

others, to the physical environment, to

transportation, … and to other facilities and

services open or provided to the public, both

in urban and in rural areas

40

a) No license or franchise for the operation of public buses, passenger boats, ships and domestic airplanes shall be granted or issued unless the owner or operator thereof shall have provided and designated the number of seats and shall have placed audio-visual aids. b) Government instrumentalities operating passenger trains including the Light Rail Transit Authority shall have provided the number of seats for disabled persons. c) Government instrumentalities operating passenger airplanes shall provide and designate the number of seats for disabled persons and shall likewise place the audio-visual aids necessary. (Magna Carta)

Moreover, the Land Transportation and Fare

Regulatory Board (LTFRB) has issued the Revised Terms and Conditions of Certificate of Public Convenience, which empowers it to revoke a franchise for discriminating against PWDs. It expressly states it the “refusal to convey a PWD, his/her orthopaedic devices, personal effects and merchandise or charging a higher fare to such PWD by reason of his/her disability” is a form of discrimination.

5. It shall be unlawful for any PUV operator to give undue preferences or make unjust discrimination in his /her/its service. …. 12. The PUV operators shall grant fare discounts as prescribed by law, policies, rules and regulations to Senior Citizens and Persons with disability. - …. 15. The PUV operator shall display the International Symbol of Accessibility in their units and shall designate seats in all their units specifically for the use of Persons with Disabilities …; ….

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It shall be considered discriminatory for PUV operators and their drivers/personnel to charge higher fare or to refuse to convey a PWD, his orthopaedic devices, personal effects and merchandise by reason of his disability.12

Q: What are the rights of PWDs regarding air

transport? A: The Air Passenger Bill of Rights is contained in administrative orders issued jointly by the Department of Transportation and Communication and the Department of Trade and Industry. It requires “equal access to air transport services”, check-in counters and processes for PWDs and their companions, and PWD-accessible facilities and pathways. It ensures that no PWD may be denied boarding except for lawful cause.

SSS PWDs and senior citizens shall have equal

12 LTFRB Memorandum Circular No. 2011-004 (2011 Revised Terms and

Conditions of Certificates of Public Convenience and Providing Penalties for Violations Thereof) (2011).

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access to air transport services, air carriers shall at all times and in all instances adhere to the mandate of [the Accessibility Law of 2010], and other related laws. Accordingly, an air carrier shall designate a least one (1) check-in counter which will prioritize PWDs, senior citizens, and persons requiring special assistance or handling. If this is not practicable, the air carrier shall instead provide for priority handling and processing of such passengers. The air carrier shall likewise coordinate with the appropriate authorities for the use of proper airport equipment, entryways, and/or aerobridges, as the case may be, when the same are available, to facilitate transactions, movement, boarding, and/or disembarkation of PWDs, senior citizens, and/or persons requiring special equipment, at the airport.

Persons accompanying a PWD, a senior citizen, or a person requiring special assistance or handling should also be accommodated at the designated check-in counter mentioned in the preceding paragraph. It is the duty of an air carrier or its authorized agent to inform its passengers if additional costs will be incurred for the use of facilities designed for passengers needing special assistance in airports located in other countries. It is the responsibility of a PWD to declare his/her need for special assistance or handling to the airline, upon booking his/her flight. If the PWD fails to do so, the airline may not be held liable for any services it was not able to provide the passenger and/or for any additional costs incurred for the use of special assistance facilities.13

13 Joint DOTC-DTI Administrative Order No. 01. Sec 9.2.

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A passenger checked in for a particular flight has the right to board the aircraft for the purposes of flight, except when there is legal or other valid cause. Other than [the causes stated in the administrative order and other lawful causes], no passenger may be denied boarding without his/her consent.14

Q: What are the rights of PWDs regarding water transport? A: The Maritime Industry Authority (MARINA) has issued a memorandum circular15 setting forth guidelines for all owners/operators of inter-island passenger vessel water craft to implement the Magna Carta as amended and the Accessibility Law. It contains boarding and disembarking priorities and assistance, minimum requirements for the minimum number of seats, life jackets, equipment, and staff designated for persons with disabilities.16

IV. GRANT OF ASSISTANCE TO DISABLED PERSONS 1. Every disabled person who is a passenger of any public water transportation shall be given priority/preference in boarding, disembarking and other use of all facilities onboard the vessel. 2. A disabled person on board any public water transportation service shall be assisted by designated personnel.

14 Joint DOTC-DTI Administrative Order No. 01. Sec. 10. p.1 15 Maritime Industry Authority Memorandum Circular No. 98 (16 March

1995). 16 Id.

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V. AVAILMENT To enjoy and/or be entitled to the aforementioned privileges, the person must present a valid identification card issued by NCWDP, unless his/her physical disability is evident. VI. COMPLAINTS/VIOLATIONS All complaints for refusal by public water transport utilities to extend the benefits/privileges and abuses on such benefits/privileges, as herein provided shall be reported directly to the nearest office of the Maritime Industry Authority (MARINA) for appropriate action.17

Q: Is there a PWD discount on public transport? What is its legal basis? A: The Magna Carta requires the government to develop a program of “subsidized transportation fare” for PWDs.

Sec. 27. Access to Public Transport Facilities. The Department of Social Welfare and Development shall develop a program to assist marginalized disabled persons gain access in the use of public transport facilities. Such assistance may be in the form of subsidized transportation fare. The said department shall also allocate such funds as may be necessary for the effective implementation of the public transport program for the disabled persons. The Accessibility Law, as amended, shall be made supplementary to this Act. (Magna Carta).

17 Id.

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Q: How can a PWD avail of discounts on public transport?

A: The PWD must present his/her PWD Idenitfication Card. Q: How much is the PWD discount on public transport? A: In addition, the Amended Magna Carta and its Implementing Rules and Regulations (IRR) provide fare discounts on land, sea and air travel.

(f) At least twenty percent (20%) discount on fare for land, sea and air and sea travel for the exclusive use or enjoyment of persons with disability; (g) At least twenty percent (20%) discount in public railways, skyways and bus fare for the exclusive use and enjoyment of person with disability; (Amended Magna Carta, Ch. 8, Sec. 32) 6.5 Air and Sea Transportation Privileges – At least twenty percent (20%) discounts in fare for domestic air, and sea travel based on the actual fare except promotional fare. If the promotional fare discount is higher than the twenty percent (20%) discounts privilege, the persons with disability may choose the promotional fare and should no longer be entitled to the twenty percent (20%) discounts privilege.

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6.5.1 The Maritime Industry Authority (MARINA) shall issue corresponding circulars or directives to the shipping industry for the implementation of these rules to ensure compliance herewith, as well as requirements to ship operators/owners to disseminate information on the benefits of the persons with disability by posters, handbills or pamphlets on board vessels. 6.5.2 The Civil Aeronautics Board (CAB) shall issue corresponding guidelines, circulars or directives related to air transport services and shall disseminate such information as mentioned above. 6.6 Land Transportation Privileges – At least twenty percent (20%) discounts in bus fares such as ordinary, aircon fares and on public railways such as LRT, MRT, PNR, and such other similar infrastructure that will be constructed, established and operated by public or private entity. Toll fees of skyways and expressways are likewise subject to at least twenty percent (20%) discounts, however, this privilege can be availed only by a person with disability owning the vehicle. (Amended Magna Carta, IRR)

Q: How can a PWD avail of the discount on domestic air fares? A: In 2008, the Civil Aeronautics Board issued an Ad Referendum Resolution18 setting forth guidelines on the grant of 20% discount on domestic air fares for PWDs in accordance with RA 9442. The procedure is as follows:

18 Ad Referendum Resolution No. 2. (2008)

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3.1 An identification card issued by the City or Municipal Mayor or the Barangay Captain of the place where the person with disability resides; 3.2 The passport of the persons with disability concerned; or 3.3 Transportation discount identification card (ID) issued by the [NCWDP]. However, upon effectivity of this IRR, [NCWDP] will already adopt the ID issued by the Local Government Unit for the purposes of uniformity in the implementation. XXX.1 4.1 The PWD shall present any proof of identification as provided herein at the time of the purchase of the ticket. 4.2 The 20% discount shall be applicable only for payment over the counter and not applicable for the online booking.

Q: Is the PWD discount available for train fares too? A: Yes, pursuant to the provisions of the RA 9442 the Department of Transportation and Communications (DOTC) 20% discount for PWDs is also available whenever using any of the MRT trains. The Light Rail Transit Authority (LRTA) has also issued guidelines to be followed in the issuance of discount coupons to PWDs.19 The PWD must present the PWD ID Card in order to to avail of the coupon. The discount coupon is non-transferrable and its issuance is limited to ten (10) coupons per transaction for Single Journey Tickets and three (3) for Stored Value Tickets. The coupon and PWD

19 Public Relations Division Issuance of Discount Coupon to Senior Citizen

and Person With Disability. LRTA.A.BD.PR.002

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ID card must be presented to the Station Teller when buying the LRTA magnetic ticket to avail of the discount.

Figure 1. Process Flow-chart: How to avail of the 20% Discount to PWDs in the Purchase of Single Journey Ticket in any MRT Station.

The Philippine National Railway provides a fifty

(50) per cent discount for all types of accommodations on all long distance trains to passengers with disabilities including one (1) companion. A designated seat, preferably near the entrance or exit of the coach, will be provided to PWDs.

In addition, the LTFRB has issued guidelines for

fare discounts for public transport20 . To avail of the

20 Consolidated Guidelines of Fare Discounts to Students, Elderly/Senior

Citizens, and Disabled Persons. LTFRB Memorandum Circular No. 94-001 (1994).

Request Authorization Slip (AS) from Station Supervisor (SS) and

present identification (ID) as proof of entitlement to

discount

SS verifies authenticity of ID (proceed if valid; if not, SS must reject

request)

SS records name and address of the

PWD

PWD signs in logbook

SS issues AS to PWD (max of 10)

PWD indicates the station origin and destination and

signs AS

PWD proceed to dedicated window to buy discounted

single journey ticket

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discount, the PWD must present his/her PWD ID Card. The discount covers public utility buses and jeepneys only. Q: Under the CRPD, what does it mean to have a non-handicap building or roadway for PWDs? A: The CRPD aims to eliminate obstacles and barriers to PWD access to the followng:

(a ) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; (b ) Information, communications and other services, including electronic services and emergency services. (CRPD, Art. 9)

It aims “to enable persons with disabilities to live independently and participate fully in all aspects of life”, and covers access to the “physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and rural.” (CRPD, Art. 9)

Q: Under Philippine law, what does it mean to have a non-handicap building or roadway for PWDs? A: The Accessibility Law applies to both built environments (including roadways) and transport

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vehicles (“building, establishment, institution or public utility”). First, no building license and permit to “construct, repair or renovation” can be issued unless the owner or operator provides for PWD access.

[N]o license or permit for the construction, repair or renovation of public and private buildings … shall be granted or issued unless the owner or operator thereof shall install and incorporate … such architectural facilities or structural features as shall reasonably enhance the mobility of disabled persons such as sidewalks, ramps, railings and the like. (Accessibility Law)

Second, it requires all government buildings and roadways to have “architectural facilities or

structural features for disabled persons.”

[I]n case of government buildings, street and highways, the [Department] of Public Works and Highways shall see to it that the same shall be provided with

CRPD Article 9

Accessibility

2. States Parties shall also take appropriate measures: (a ) To develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public; (b) To ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities; (c ) To provide training for stakeholders on accessibility issues facing persons with disabilities; (d ) To provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;

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architectural facilities or structural features for disabled persons. (Accessibility Law)

Fourth, for already existing facilities, it prescribes

“if feasible” that these be “renovated or altered” to ensure PWD access.

If feasible, all such existing buildings, institutions, establishments, or public utilities may be renovated or altered to enable the disabled persons to have access to them: Provided, however, That buildings, institutions, establishments, or public utilities to be constructed or established for which licenses or permits had already been issued may comply with the requirements of this law.” (Accessibility Law)

Finally, the Implementing Rules and Regulations of

the Accessibility Law provides more specific guidelines, including ingress and eggress (entrances and exits), reserved PWD units in government housing projects, PWD parking slots and special bus stops, and PWD-usable ramps and audio-visual aids for pedestrians.

4.1 Public and private buildings and related structures for public use. No permit for the construction, repair or renovation of public and private buildings and related structures for public use, whether owned or leased, shall be granted or issued, unless the owner thereof shall have provided in the places and specifications submitted for approval barrier-free facilities and accessibility features … in accordance with the following criteria:

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4.1.1 Building and related structures to be constructed a). At the space where the primary function is served and where facilities and ingress/egress of the building or structure are located, as to make such space accessible to the disabled persons; provided, however, that where the primary function can be served at the ingress level and where such level is provided with facilities, requirements for accessibility at other levels may be waived. b). Ten percent (10%) of the total number of units of government-owned living accommodations shall be accessible and fully usable by the disabled persons with any fractional part in excess of one-half (1/2) in the computation thereof, to be considered as one unit; for privately-owned living accommodations the number of accessible units shall be as provided in Section 3 of Rule III thereof. c). Ingress/egress from the street to the building or structure shall be made accessible. 4.11. (d). Accessible slots in parking areas shall be located as near as possible to ingress/egress spaces of the building or structure. …. 4.2.1 Streets, highways and transport related structures to be constructed – Streets, highways and transport related structures shall be provided with the following barrier-free facilities and accessibility features at every pedestrian crossing: ramps and other accessible features in buildings of the Sectoral offices and attached agencies of DOTC; transportation terminals and passenger waiting areas for use of disabled person; a) Cut-out curbs and accessible ramps at the sidewalks.

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b) Audio-visual aids for crossing. (Accessibility Law)

Q: What remedies are available to PWDs when their right of access is curtailed in buildings or land transport? A: The LTFRB, specifically, has a public assistance desk, where anyone may approach to complain regarding public utility vehicles. There are no specific rules of procedure for complaints by PWDs. All complaints shall follow the Rules of Practice and Procedure before the Board. Take note that you are exempt from paying the filing fee when you file a complaint against operators for violating the terms and conditions of the Certificate of Public Convenience, including their obligation not to discriminate against PWDs and to ensure PWD accessibility.

Complaints regarding buildings and establishments in violation of the Accessibility Law and its implementing rules may be lodged directly with the city engineer or with the local building official. However, it is better for PWDs to course their complaints through the Persons with Disability Affairs Office (PDAO) that was created by law in 2010 in “every province, city and municipality.”

Q: What remedies are available to PWDs when their right of access is curtailed in air transport? A: Violations of any of the rights of air passengers may be aired to the Customer Service Representatives or to the

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Complaints and Assistance Desks. In cases of violations of the provisions pertaining to public transportation, the PWDs may call or mail the following agencies to air out their complaints. Q: What remedies are available to PWDs when their right of access is curtailed in sea transport? A: All reports of non-compliance, maritime-related violations complaints, grievances, observed suspicious or illegal/unlawful activity on board Philippine registered ships, comments, suggestions and other types of maritime related issues may be communicated through the MARINA Telephone Hotline and/or Short Messaging System. The specific provisions provide:

1. When making a report of non-compliance and maritime-related violations either thru call or text, the caller/texter shall provide, whenever possible, the following information:

2. The nature of non-compliance or violation; 3. The company or person(s) involved in the non-

compliance or violations; 4. The name of the ship; 5. Any evidence that is available; 6. Date, time, & location the non-compliance or

violation was committed; 7. The MARINA SMS service 2985 does not need

any form of registration for reports of any maritime violation. Any individual may text

55

through MARINA<space><name/message> and send to 2985. Example:MARINA Juan dela Cruz/MV MARINA overloaded passengers for Manila-Boracay trip, Jan 25 2009 2pm. This message will receive an automated reply from MARINA. 8. Any individual may also text MARINA<space>HELP to 2985 to receive instructions in using the service, and other relevant information.21

Q: Are there PWD discounts in restaurants, hotels and recreation centers? A: Yes, these discounts are provided for in the Amended Magna Carta.

6.1 Discounts from All Establishments At least twenty percent (20%) discount from all establishments

21 MARINA Circular no. 04 series of 2009. 13 March 2009.

LTFRB Hotlines

24/7 landline: 4592129

09214487777

4262515

ltfrb.gov.ph@gmai;l.com

Civil Aeronautics Board

Passenger Complaint

5425234

09432654305

[email protected]

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relative to the utilization of all services in hotels and similar lodging establishments, restaurants and recreation centers for the exclusive use or enjoyment of persons with disability. 6.1.a Hotels and Similar Lodging Establishments – The discount shall be for room accommodation and other amenities offered by the establishment such as but not limited to massage parlor, sauna bath, food, drinks and other services offered.The discount will only apply to persons with disability. No discount will be given to companion without disability. 6.1.b Restaurant - The discount shall be for the purchase of food drinks, beverages, dessert and other consumable items served by the establishments including value meals and other similar food counters, fast food, cooked food and short orders including take-outs. To safeguard the establishments from abuse of this privilege, the orders should be limited only to persons with disability personal consumption. For a group of people with a person with disability, only the proportionate share of person with disability will be given discount. In case of banquet and catering services especially in seminars and other similar activities the discount will apply only to customers with disability. 6.1.c Sports and Recreational Centers – The discount shall apply to all charges in the utilization of the services including rentals of all facilities and equipments and other accessories and gadgets relative to the enjoyment of the sports and recreational services. The discount shall also include rooms or halls for PWDs seminars, art workshops and other persons with disability activities.

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CHAPTER 6: EDUCATION

Q: Under international law, what are the rights of PWDs with regard to education? A: The CRPD recognizes that PWDs have the right to education, and that they must enjoy this right “without discrimination and on the basis of equal opportunity.” It also ensures the rights of PWDs to “inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live”, and identifies the goals of inclusive education, namely:

(a) “[F]ull development of human potential and sense of dignity and self-worth”;

(b) The development of “their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential”; and (c) Enable them “to participate effectively in a free society”, that is to say, “to facilitate their full and equal participation in education and as members of the community.” (CRPD, Art. 24)

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Q: What forms of discrimination are prohibited under the CRPD with regard to education?

A: In the field of education, the PWD right against discrimination consists of the right not to be “excluded from the general education system on the basis of disability [nor] from free and compulsory primary education, or from secondary education”, and the right to inclusive education and reasonable accommodation.

In realizing this right, States Parties shall ensure that: (a) [PWDs] are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability; (b) [PWDs] can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live; (c) Reasonable accommodation of the individual’s requirements is provided; (d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education; (e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion. (CRPD, Art. 24.2)

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Q: Under Philippine law, what are the rights of PWDs with regard to education? A: The Magna Carta for Disabled Persons imposes upon the state the duty to providde “access to equality education” and prohibits all schools from “deny[ing] a disabled person admission to any course it offers by reason of handicap or disability.”

Access to Quality Education. — The State shall ensure that disabled persons are provided with access to quality education and ample opportunities to develop their skills. It shall take appropriate steps to make such education accessible to all disabled persons. It shall be unlawful for any learning institution to deny a disabled person admission to any course it offers by reason of handicap or disability. …. (Magna Carta, Sec. 12)

Q: How does Philippine law adopt the CRPD concept of “universal design” to make public and private schools more “inclusive”? A: The Magna Carta requires the state to take into account the “special requirements” of PWDs in formulating education policies and programs, and “encourages” private schools to do so as well when they design “school facilities, class schedules, and physical education requirements.”

Access to Quality Education. …. The State shall take into consideration the special requirements of disabled persons in the formulation of educational policies and

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programs. It shall encourage learning institutions to take into account the special needs of disabled persons with respect to the use of school facilities, class schedules, physical education requirements, and other pertinent consideration. The State shall also promote the provision by learning institutions, especially higher learning institutions of auxiliary services that will facilitate the learning process for disabled persons. (Magna Carta. Sec. 12)

Q: Does the government have the obligation to offer PWD scholarships? A: Yes, the Magna Carta provides that the state must give scholarships to needy but deserving PWD students. Note that disability is not the only eligibility requirement; the student must also be “economically marginalized” and “deserving.”

Assistance to Disabled Students. — The State shall provide financial assistance to economically marginalized but deserving disabled students pursuing post-secondary or tertiary education. Such assistance may be in the form of scholarship grants, student loan programs, subsidies, and other incentives to qualified disabled students in both public and private schools. At least five percent (5%) of the allocation for the Private Education Student Financial Assistance Program created by virtue of R.A. 6725 shall be set aside for disabled students pursuing vocational or technical and degree courses. (Magna Carta, Sec. 13)

The Implementing Rules and Regulations of the

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Magna Carta also

Eligibility for Financial Assistance b) All learners with special needs regardless of disability, age, sex, religion and creed, shall be qualified for a financial assistance program provided they are Filipino citizens and must have met the requirements set by the Bureau of SPED in accordance with [the Magna Carta]. (Magna Carta IRR, Art. 2.2)

Q: Do public tertiary schools have the obligation to

respect PWD rights? A: Yes, they do but only if the service or facility is viable and necessary. These additional requirements pertain to PWD-appropriate and –relevant equipment, training and research.

Sec. 17. State Universities and Colleges. — If viable and needed, the State University or State College in each region or province shall be responsible for (a) the development of material appliances and technical aids for disabled persons; (b) the development of training materials for vocational rehabilitation and special education instructions; (c) the research on special problems, particularly of the visually-impaired, hearing-impaired, speech-impaired, and orthopedically-impaired students, mentally retarded, and multi-handicapped and others, and the elimination of social barriers and discrimination against disabled persons; and (d) inclusion of the Special Education for Disabled (SPED) course in the curriculum.

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The National Government shall provide these state universities and colleges with necessary special facilities for visually-impaired, hearing-impaired, speech-impaired, and orthopedically-impaired students. It shall likewise allocate the necessary funds in support of the above. (Magna Carta, Sec. 17)

Q: Does the state have the duty to provide and support vocational and technical training to PWDs? A: Yes, they do but only if the service or facility is viable and necessary. These

Sec. 15. Vocational or Technical and Other Training Programs. — The State shall provide disabled persons with training in civics, vocational efficiency, sports and physical fitness, and other skills. The Department of Education, Culture and Sports shall establish in at least one government-owned vocational and technical school in every province a special vocational and technical training program for disabled persons. It shall develop and implement sports and physical fitness programs specifically designed for disabled persons taking into consideration the nature of their handicap.

Q: Does the state have the duty to provide and support special education? A: Yes, the Magna Carta specifically provides for special education for “visually impaired, hearing impaired, mentally retarded persons and other types of exceptional children.”

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Sec. 14. Special Education. — The State shall establish, maintain and support complete, adequate and integrated system of special education for the visually impaired, hearing impaired, mentally retarded persons and other types of exceptional children in all regions of the country. Toward this end, the Department of Education, Culture and Sports shall establish, special education classes in public schools in cities, or municipalities. It shall also establish, where viable, Braille and Record Libraries in provinces, cities or municipalities. The National Government shall allocate funds necessary for the effective implementation of the special education program nationwide. Local government units may likewise appropriate counterpart funds to supplement national funds.

Q: Is “special education” equivalent to “inclusive education”? A: No, it is not. Offering “special education” programs and facilities is not a substitute for “inclusive education.”

One, inclusive education aims to “enabl[e PWDs] to participate effectively in a free society.” While special education may aim to achieve this purpose , we must take care that does not shunt PWDs to an isolated track that impedes their ability to learn “on an equal basis with others in the communities in which they live.” (CRPD)

Two, both international and Philippine law prohibit exclusion from any school on the basis of disability.

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Internationally, the CRPD actually guarantees that PWDs are “not excluded from the general education system on the basis of disability. Domestically, the Magna Carta makes it unlawful for “any learning institution to deny a disabled person admission to any course … by reason of handicap or disability.” Whether internationally or domestically, non-discrimination and non-exclusion applies to all schools. The availability of special education is not an excuse for exclusion on the basis of disability.

Third, the duty to give “reasonable accommodation” exists not just in special education but in “the general education system” (CRPD) and in “any learning institution” (Magna Carta). Indeed, the Magna Carta applies reasonable accommodation to the following:

(a) “Quality education” – Sec. 12. Access to Quality Education. The State shall …

take appropriate steps to make such education accessible to all disabled persons. …. It shall encourage learning institutions to take into account the special needs of disabled persons with respect to the use of school facilities, class schedules, physical education requirements and other pertinent consideration. The State shall also promote the provision … of auxiliary services that will facilitate the learning process for disabled persons.

(b) Public tertiary schools – Sec. 17. State Universities and Colleges. … The National

Government shall provide these state universities and colleges with the necessary special facilities for

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visually-impaired, hearing-impaired, speech impaired, and orthopedically-impaired students.

(c) “Non-formal education” – Sec. 16. Non-Formal Education. — The State shall

develop non-formal education programs intended for the total human development of disabled persons. It shall provide adequate resources for non-formal education programs and projects that cater to the special needs of disabled persons.

Therefore, care must be taken that special

education is not used to perpetuate the “separate but equal” doctrine that has been long obsolete abroad. It must not be used to undermine the principle of inclusive education. Q: How does the Magna Carta apply the principle of non-discrimination to “learners with special needs”? A: The Implementing Rules and Regulations of the Magna Carta (Magna Carta IRR) defines what reasonable accommodation means for specific impairments, in terms of formal education; facilities and equipment; and

To provide learners with special needs with

access to basic education, learning

institutions shall offer integrated education.

In order to ensure that quality education is

accessible, the following components namely,

curriculum, educational programs, teaching

methods and services shall be given

importance by learning institutions

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vocational and technical schools.

1.1 Formal Education To provide learners with special needs with access to basic education, learning institutions shall offer integrated education. In order to ensure that quality education is accessible, the following components namely, curriculum, educational programs, teaching methods and services shall be given importance by learning institutions:

Sec. 1.2.1. For persons with visual impairment in the preparatory, elementary and early secondary levels modified curriculum shall include but not limited to, sensory training, special instruction in Braille reading and writing, mathematics, orientation and mobility, music and typing. Preparation for integration and mainstreaming must be worked out in the early years of schooling at the elementary level to assure that visually impaired children just like other children with special needs except those possibly with mental retardation are educated worth their non-handicapped peers to the fullest extent possible. For post-secondary vocational to tertiary levels they shall be integrated and mainstreamed and undergo the regular curriculum. Learners with visual impairment in these levels shall be given the necessary service such as: reading, writing Braille, record library services, orientation and mobility, optical and medical services, counseling and other assistance. 2. For persons with hearing impairment, modified curriculum shall emphasize communication and language development which is tailored to meet the

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learner’s educational need. The curriculum shall include special instruction in speech, speech reading, auditory training and rhythm using total communication, multi-sensory and other approaches, They shall be referred to such support personnel as sign language interpreters, audiologist, ontologist, speech therapist, auditory trainers and others as needed. 3. For persons with orthopedic handicaps, quality education shall be given in the same manner as those in the regular education except that school facilities and physical environment shall be in compliance with B.P. Blg. 344 and they shall be allowed to attend classes in the ground floors of the school buildings whenever possible. Class schedule and other pertinent considerations shall be made to suit their learning requirements. 4. For persons with mental retardation, modified curriculum shall emphasize training in self-care, socialization, motor, pre-vocational, vocational and other daily living skills. For those with severe retardation, emphasize shall be on the development of self-care skills. 5. For all types of learners with special needs, teaching strategies shall be creative, multidimensional, multi-sensorial and shall involve active participation of the learners. 6. For other types of learners with special needs:

a) Those with behavior problems including those with autism, those with learning disabilities and those with multiple handicaps, modified

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curriculum shall include special activities and instructional techniques for the normalization of behavior, functions and technical, academic skills to prepare them for the world of work.

b) For disabled gifted persons, the curriculum should emphasize the development of communication skills, positive self-concept, high level abstract thinking, social skills and independent living using creative teaching principles and interdisciplinary approaches. …. SECTION 2. Program Modification and Eligibility for Financial Assistance

2.1 Modified Facilities and Equipment for Learners with Special Needs

a) For Academic Institutions 1. For persons with visual impairment,

sensory and tactile materials, Braille books and record materials, Braille writing, printing and reading machines, orientation and mobility equipment.

2. For persons with hearing impairment, group or individual hearing aids, speech trainers, tape recorders and speech or language kit containing auditory and language training materials.

3. For persons with orthopedic handicaps, the requirements provided for by B.P. Blg. 344 shall complied with including adjustable desks or chairs and adapted physical education apparatuses.

4. For persons with mental retardation, facilities, equipment and instructional

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materials for developing skills in self-care, socialization, motor, cognitive and prevocational and vocational training.

5. Other types of learners with special needs: those with behavioral problems including those with autism, those with learning disabilities and those with multiple handicaps instructional devices and equipment for behavior modification, perceptual motor training, daily living skills, language and speech and cognitive skills development.

b) Vocational and Technical Schools and Centers for Learners with Special Needs. To equip learners with special needs with vocational skills for gainful employment, on the job or hands-on training and apprenticeship programs shall be encouraged.

1. For persons with visual impairment tools and machineries used must have Braille marks and sound identifying features and other adaptations.

2. For persons with hearing impairment signal lights, signs and other adaptations shall be incorporated in the tools and machineries.

3. For persons with orthopedic handicaps tools and machineries shall have adapted devices which include but is not limited to the following: Hand control for learners with special needs with non-functioning legs and feet; control panel for those with non-functioning hands; and mouth control device for those with non-functioning limbs. Height and size of the

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machines shall be considered in making adaptations in the teaching learning environment.

4. For persons with mental retardation appropriate sheltered workshops, work centers and other similar arrangements.

5. For other types of learners with special needs those adaptations mentioned in numbers 1,2,3 and 4 as needed. (Magna Carta IRR)

Q: Does the Magna Carta allow exceptions to the principle of non-exclusion on the basis of disability? A: The Magna Carta IRR affirms the principle of non-exclusion on the basis of disability, also provides for the allowable grounds for exclusion, namely, when the school has already admitted special needs students but will sacrifice teaching effectiveness if it admits more, and when the school doesn’t meet government standards for Special Education and do not receive government PWD subsidies.

SECTION 1. Quality Education for Learners with Special Needs 1.2 Learning institutions under this rule shall admit all

learners with special needs whether in academic, vocational or technical courses and other training programs except in the following instances:

a) If the learning institutions have already accepted learners with special needs and further acceptance will render the teaching personnel and

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facilities less effective. b) If the learning institutions do not meet the criteria set by the Bureau of SPED and are not included in the financial assistance program [provided] government and state owned learning institutions shall be encouraged and provided necessary assistance to comply with the requirements of this rule and shall be subject to monitoring, supervision and assessment. …. (Magna Carta IRR)

Q: How does the principle of non-discrimination apply to PWDs in higher education and post-secondary education? A: The National Council on Disability Affairs released a set of guidelines for such admission. The Commission on Higher Education (CHED) and Technical Education and Skills Development Authority (TESDA) have already adopted the said guidelines as reference. These guidelines were developed by the NCDA’s sub-committee on education "to fill the information gap that exists among personnel of higher education institutions in the procedural admission of students with students with disabilities." They were created in accordance with R.A. 9442 or the Act Amending the Magna Carta to PWDs, which states that educational assistance must be given to PWDs in their pursuit for primary, secondary, tertiary, post tertiary, vocational, or technical education by providing scholarships, grants, financial aids, subsidies, and other incentives as long as the said PWDs meet the minimum admission requirements of the institution they

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applied for.

Specifically indicated in the guidelines are students who are deaf or with hearing impairment, students with Learning Disabilities (LD), Autism Spectrum Disorder (ASD), and Attention Deficit/Hyperactivity Disorder (AD/HD), students with physical disabilities, and students with visual impairment. STUDENTS WITH LEARNING DISABILITIES, AUTISM SPECTRUM DISORDER, AND ATTENTION DEFICIT/HYPERACTIVITY DISORDER Learning disabilities may be exhibited through

different core cognitive characteristics like problems in word reading, accuracy, and fluency, comprehension, math computation problems, mathematics fact retrieval, procedural skills and problem solving. Students with LDs often require task analytic instruction which is organized, explicit, and provides opportunity for review.

Meanwhile, Autism Spectrum Disorder is a developmental disability significantly affecting verbal and non-verbal communication and social interaction, usually evident before age three that adversely affects a child's educational performance. Other characteristics are often associated with movements, resistance to environmental change or in daily routines, and unusual responses to sensory experience. This discussion is limited to Asperger's Syndrome or High Functioning Autism categories as they are more likely to enter post-secondary education and higher institutions.

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On the other hand, Attention Deficit/Hyperactivity Disorder is considered a biologically based, educational disability where there is a problem of sustaining attention, effort and motivation and inhibiting behavior in a consistent manner over time. It is often harder for students with AD/HD to do the same academic work not because they lack the skill but because they lack the structure and exhibit the same social behavior expected of other students.

Students with LD, ASD, and AD/HD, including those who passed and qualified in the Accreditation Equivalency Test administered by the Bureau of Alternative Learning System shall be admitted in any higher/post-secondary educational institution provided that pass the admission requirements of

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the school, given reasonable accommodations. Upon passing the admission test, the school/university will require a medical and developmental assessment and clearance from a medical professional and further assessment by the school's licensed guidance counselor and to present a more accurate psycho-education assessment or psychological assessment of the students with learning disabilities from certified psychologist. The school must also organize a conference to be attended by the student with learning disability and his/her advocated to discuss strategies on how to further support the student. The school will be given reasonable time to offer or to advise the students to avail of the following services wherever available: 1) non-teaching staff such as nurse, certified psychologist, physical therapist, speech pathologist, SPED consultants, medical

75

professional, developmental pediatrician, and licensed guidance counselors; 2) reasonable accommodation in the school library; and, 3) provision of job placement referral services to assist in the vocational exploration and career placement of students with learning disabilities.

Student support services must also be provided by the institution such as guidance and counseling programs; center for students with learning disabilities which would serve as a venue to access and coordinate necessary services such as therapy, tutorial, on-the-job training and medication services; a periodic or annual sensitivity training for all concerned school personnel and students on how to deal with or assist a student with learning disabilities.

General education teachers should have necessary exposure and training provided by professional organizations and established institutions with courses in special education for specific learning challenges under his/her care. They should also have an open and positive attitude towards students with LDs; have initiative to design and apply curricular approaches and strategies that would facilitate the education of students with LDs; willingly engage in the process of working with students with LDs and; able to provide strategies for both education and behavior purposes.

Persons with other types of mental impairments such as those with down syndrome shall also be admitted to the post-secondary or higher education institution he/she deemed fit to study, given reasonable accommodations.

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STUDENTS WITH PHYSICAL DISABILITIES School authorities must properly address

architectural barriers within the campus to accommodate students with physical disabilities. Batas Pambansa Blg. 344 also known as the Accessibility Law, require that all establishments be made accessible to enhance mobility of persons with disabilities.

Students with physical disabilities, including those who passed and qualified in the Accreditation Equivalency Test administered by the Bureau of Alternative Learning System shall be admitted in any higher/post-secondary educational institution provided that pass the admission requirements of the school, given reasonable accommodations.

The school should also establish a Disability Services Unit within the Office of Student Affairs to provide access to all available programs and services in school; initiate and institutionalize a referral program to address their special needs; conduct special programs to encourage students to participate in various school activities, be duly recognized and awarded and; conduct special training for counselor on guidance and counseling of persons with disabilities in coordination with the school's guidance center.

Teachers should have an on orientation on accessibility and other policies affecting person with disabilities and sensitivity training in providing assistance.

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STUDENTS WITH VISUAL IMPAIRMENTS Visually impaired students, including those who

passed and qualified in the Accreditation Equivalency Test administered by the Bureau of Alternative Learning System of the Department of Education shall be admitted in any higher or post-secondary educational institution in accordance with the general admission requirements of the school given reasonable accommodation such as the administration of test in Braille format or in oral-type.

In order to facilitate the learning of students with visual impairments, they may have qualified readers to go with them in school upon arrangement with the teacher and other concerned school personnel. They may also bring with them other educational assistive devices such Braille N Speak, recorder/player, and laptops.

Students with visual impairments may prefer or require other educational materials such as books and other references in tape, CD or Digital Accessible Information System (DAISY) format. Production and availability of these materials can be arranged in advance through the National Library (Library for the Blind division) based in Manila and through other non-government organizations like the Resources for the Blind and other affiliates.

Given reasonable accommodations, students with visual impairments can do adaptations to fulfill the requirements of the prescribed curriculum for every course. Teachers are encouraged to be more

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descriptive in delivering lessons for every subject such as visual aids for the seeing, tactile aids that could be touched and audio books to enhance learning of visually impaired students. Physical Education subjects in every curriculum may be modified to enable visually impaired students to comply with the requirements.

POST-SECONDARY ADMISSIONS

Each training institution should establish a committee to review and deliberate applicants based on their skills, knowledge, expertise, and technical skills. The Recognition of Prior Learning is an assessment process which gives accreditation or recognition of a

person's technical skills and knowledge acquired through exposure to relevant work experience related to the course being applied. Q: Are students with disabilities protected by law from ridicule and bullying? A: Yes, there are two relevant laws. The first law to all

For post-secondary admission of PWDs,

"students with physical abilities or have

special needs should be accepted in any

course or qualifications preferred by the

applicants. The acceptance shall be made

only after clear assessment and

concurrence by all parties concern on the

potential and peculiar problems that may be

encountered by the student in fulfilling the

demand and rigor during the actual learning

process."

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PWDs (not just students), and contains “Prohibitions on Verbal, Non-verbal Ridicule and Vilification Against Persons with Disability” set forth in the Amended Magna Carta. The second law applies to all students (not just PWDs) and protects them against bullying, namely, the Anti-Bullying Act of 2013. Q: How does the Amended Magna Carta protect students with disabilities from ridicule? A: Under the Amended Magna Carta, persons who subject PWDs to public ridicule or vilification may be punished criminally.

Chapter 1. Deliverance from Public Ridicule Sec. 39. Public Ridicule. – [P]ublic ridicule shall be defined as an act of making fun or contemptuous imitating or making mockery of persons with disability whether in writing, or in words, or in action due to their impairment/s. Sec. 40. No individual, group or community shall execute any of these acts of ridicule against persons with disability in any time and place which could intimidate or result in loss of self-esteem of the latter. Chapter 2. Deliverance from Vilification Sec. 41. Vilification. – For purposes of this Chapter, vilification shall be defined as: (a) The utterance of slanderous and abusive statements against a person with disability; and/or

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(b) An activity in public which incites hatred towards, serious contempt for, or severe ridicule of persons with disability.” Sec. 42. Any individual, group or community is hereby prohibited from vilifying any person with disability which could result into loss of self-esteem of the latter. (Amended Magna Carta)

Q: How does the Anti-Bullying Act protect students with disabilities from school bullying? A: Under Anti-Bullying Act of 201322, schools are required to adopt policies and sanctions to prevent or punish bullying. Unlike with the Magna Carta which imposes criminal sanctions, this law merely enables the school (and not the state) to impose disciplinary sanctions (not criminal but merely administrative, like reprimand, suspension or expulsion). The Anti-Bullying Act does not itself punish the bullies. It merely requires schools to have anti-bullying mechanisms and procedure. Q: How does anti-bullying address the needs of disabled students? A: The Anti-Bullying Act covers all acts (“written, verbal or electronic expression, or physical act or gesture”) that causes the victim “undue emotional distress” like “name-calling, tormenting and commenting negatively on victim’s looks.”

22 Republic Act No. 10627 (2013).

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Sec. 2. “[B]ullying” shall refer to any severe or repeated use by one or more students of a written, verbal or electronic expression, or a physical act or gesture, or any combination thereof, directed at another student that has the effect of actually causing or placing the latter in reasonable fear of physical or emotional harm or damage to his property; creating a hostile environment at school for the other student; infringing on the rights of the other student at school; or materially and substantially disrupting the education process or the orderly operation of a school; such as, but not limited to, the following: a. Any unwanted physical contact between the bully and the victim like punching, pushing, shoving, kicking, slapping, tickling, headlocks, inflicting school pranks, teasing, fighting and the use of available objects as weapons; b. Any act that causes damage to a victim’s psyche and/or emotional well-being; c. Any slanderous statement or accusation that causes the victim undue emotional distress like directing foul language or profanity at the target, name-calling, tormenting and commenting negatively on victim’s looks, clothes and body; and d. Cyber-bullying or any bullying done through the use of technology or any electronic means.

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CHAPTER 7: EMPLOYMENT

Q: What international agreements protect the labor rights of PWDs ? A: There are many relevant international conventions but, with regard to employment, the leading instruments are the Convention on the Rights of Persons with Disabilities (CRPD) and the International Labour Organization’s Convention No. 159 (ILO Convention No. 159). Q: How does the CRPD protect the labor rights of PWDs?

A: The goal of the CRPD is to ensure for PWDs their “full and effective participation in society on an equal basis with others.” In the field of employment, that means non-discrimination in hiring, retention, promotion and in conditions of work and training.

The Universal Declaration of Human

Rights

Everyone is entitled to all the rights and

freedoms set forth in this Declaration,

without distinction of any kind, such as race,

colour, sex, language, religion, political or

other opinion, national or social origin,

property, birth or other status.

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Article 27 – Work and Employment 1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia: (a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions; (b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances; (c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others; (d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training; (e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;

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(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business; (g) Employ persons with disabilities in the public sector; (h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures; (i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace; (j) Promote the acquisition by persons with disabilities of work experience in the open labour market; (k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. 2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour. (CRPD)

Q: What is “vocational rehabilitation” under ILO Convention No. 159 and the CRPD? A: The ILO Convention governs “vocational rehabilitation” which aims “to enable a disabled person to secure, retain and advance in suitable employment and thereby to further such person's integration or reintegration into society.” It promotes “appropriate vocational rehabilitation measures” and “equal opportunity between disabled workers and workers generally.” Parallel to the CRPD clause on reasonable accommodation, it says that

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“[s]pecial positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers.” (ILO Convention No. 159)

The CRPD provides, in Article 26, for “Habilitation and Rehabilitation”:

1. States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes:

a. Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths;

b. Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.

2. States Parties shall promote the development of

initial and continuing training for professionals and staff working in habilitation and rehabilitation services.

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3. States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation. (CRPD)

Q: How does Philippine law protect the labor rights of PWDs? A: The Labor Code of the Philippines (Labor Code)23 has a title on the Training and Employment of Special Workers (among them, apprentices and learners), and has a chapter “Handicapped Workers.”

Title II TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

Chapter III HANDICAPPED WORKERS

Art. 78. Definition. Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury. Art. 79. When employable. Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards. Art. 80. Employment agreement. Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include:

23 Presidential Decree No. 442 (1974).

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1. The names and addresses of the handicapped workers to be employed; 2. The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; 3. The duration of employment period; and 4. The work to be performed by handicapped workers. The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative. Art. 81. Eligibility for apprenticeship. Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired. (Labor Code)

Q: How does Workmen’s Compensation benefit PWDs? A: Workmen’s Compensation ensures that all workers who get hurt while working will receive benefits to compensate him for his suffering and the loss of income-earning capacity.

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Before the recognition of Workmen’s Compensation, the worker may claim such benefits only if he had not been at fault. On the other hand, under Workmen’s Compensation, fault is not the determining factor. It is enough that the injury was incurred while in the performance of duty. This is called “strict liability” of the employer, on the theory that such injuries or mistakes are inevitable at some point in the normal production process and the resulting payments are therefore merely part of the cost of production that must be borne by the employer who profits from that production.

Art. 191. Temporary total disability.- Under such regulations as the Commission may approve, any employee under this Title who sustains an injury or contracts sickness resulting in temporary total disability shall, for each day of such a disability or fraction thereof, be paid by the System an income benefit equivalent to ninety percent (90%) of his average daily salary credit, subject to the following conditions: the daily income benefit shall not be less than Ten Pesos nor more than Ninety Pesos, nor paid for a continuous period longer than one hundred twenty days, except as otherwise provided for in the Rules, and the System shall be notified of the injury or sickness. (As amended by Section 2, Executive Order No. 179)

The payment of such income benefit shall be in accordance with the regulations of the Commission. (As amended by Section 19, Presidential Decree No. 850) Art. 192. Permanent total disability.- Under such regulations as the Commission may approve, any employee under this Title who contracts sickness or

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sustains an injury resulting in his permanent total disability shall, for each month until his death, be paid by the System during such a disability, an amount equivalent to the monthly income benefit, plus ten percent (10%) thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution: Provided, That the monthly income benefit shall be the new amount of the monthly benefit for all covered pensioners, effective upon approval of this Decree.

The monthly income benefit shall be guaranteed

for five years, and shall be suspended if the employee is gainfully employed, or recovers from his permanent total disability, or fails to present himself for examination at least once a year upon notice by the System, except as otherwise provided for in other laws, decrees, orders or Letters of Instructions. (As amended by Section 5, Presidential Decree No. 1641)

The following disabilities shall be deemed total

and permanent:

a. Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules;

b. Complete loss of sight of both eyes; c. Loss of two limbs at or above the ankle or wrist; d. Permanent complete paralysis of two limbs; e. Brain injury resulting in incurable imbecility or

insanity; and f. Such cases as determined by the Medical Director of

the System and approved by the Commission.

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Art. 193. Permanent partial disability.- Under such regulations as the Commission may approve, any employee under this Title who contracts sickness or sustains an injury resulting in permanent partial disability shall, for each month not exceeding the period designated herein, be paid by the System during such a disability an income benefit for permanent total disability.

Type of Disability Benefits Period of Payment Temporary Total Disability

90% of average daily salary

Paid for not more than 120 days (4 months)

Permanent Total Disability

100% of monthly income plus 10% thereof for every dependent child, not exceeding five

Paid for each month until death of employee. Guaranteed for five years, but shall be suspended if employee is gainfully employed or recovers from disability or fails to undergo examination at least once a year

Table 1. Types of Disability Benefits Provided by the Labor Code.

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Q: How are the labor rights of PWDs violated? A: Violations of labor rights can be divided into three parts: pre-employment, employment, and post-employment.

During pre-employment, the law protects the PWD right to equal employment opportunities, against hiring discrimination on the basis of disability. Moreover, the Magna Carta reserves by law 1% of all positions in government agencies, and provides tax incentives to private corporations that hire PWDs. Finally, the Department of Labor and Employment (DOLE) and the Technical Education and Skills Development Authority (TESDA). Are mandated to provide training for PWDs to improve their employment prospects.

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Sec 5. Equal Opportunity for Employment. – No person with disability shall be denied access to opportunities for suitable employment. …. (Magna Carta, as amended by R.A. 10524)

During employment, the refusal to promote a

qualified employee on the basis of his/her disability alone constitutes discrimination. The PWD has the right to receive the same compensation and benefits as a qualified able-bodied person. Moreover, for employees who may suffer injuries that lead to physical disabilities, he or she has the right to receive disability benefits.

Sec 5. Equal Opportunity for Employment. – …. A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person. (Magna Carta, as amended by R.A. 10524)

For post-employment, employees who suffer

permanent total disability receive Workmen’s Compensation benefits. If a PWD is forced to quit because the facilities and circumstances of his/her employment become burdensome on the disability he/she has, then it can be construed as constructive dismissal, which is prohibited by law. Q: Does the Magna Carta affect the rights of PWDs under the Labor Code?

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A: Yes, the Magna Carta expands the protection offered by the Labor Code. Until the Magna Carta was passed in 1992, the Labor Code was the only national law that protected the labor rights of PWDs. Disabled workers, under this law, are defined as those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being. An entire chapter was allotted for the labor rights of PWDs.

Today the Amended Magna Carta reserves for

PWDs a certain percentage of jobs in government entities and in big corporations (with more than one-hundred employees) (see above). In addition, the Amended Magna Carta offers incentives to private entities that employ PWDs.

Q: What form of “reasonable accommodation” does the Labor Code offer to PWDs ? A: The Labor Code provides for the placement of PWDs in “sheltered employment [opportunities that are not] found through open employment.” It also provides that PWDs are eligible as “apprentices or learners” who are are entitled to less benefits compared to regular employees but may qualify for regular status at the end of apprenticeship period.

Sec 6. Sheltered Employment.- If suitable employment for disabled persons cannot be found through open

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employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. Sec 7. Apprenticeship.- Subject to the provision of the Labor Code as amended, disabled persons shall be eligible as apprentices or learners; Provided, That their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired; Provided, further, That after the lapse of the period of apprenticeship if found satisfactory in the job performance, they shall be eligible for employment. (Labor Code)

Q: Which other government agencies provide livelihood projects for PWDs? A: DOLE provides the program “Tulong Alalay Para sa Taong May Kapansanan”, or TULAY. According to the Secretary of Labor and Employment Baldoz, since the inception of TULAY, over 5,000 Filipino PWDs have benefited from the skills and entrepreneurship training, common facilities, tools, jigs, and raw materials for livelihood projects offered under the program. The Technical Education and Skills Development Authority (TESDA), in partnership with the DSWD also established the Cash for Training Program (C4TP) which provides training and financial assistance to “qualified needy youth.” Some PWDs still qualify for the program even

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though they are not part of the “youth” anymore because of their delayed mental and physical make-up. A beneficiary of such program is Arnel Baldos, 38 years old, who is suffering from a slight mental and physical disability. Arnel was able to complete a two-month Consumer Electronic Servicing under the C4TP. After the course, Arnel and his classmates will have to undergo a two–month on-the-job training (OJT). After completing the OJT, Arnel will have to decide if he will undertake self-employment or to have access to job opportunities. Q: What are examples of disability pensions? A: The Employees Compensation Commission (ECC) created the “Katulong at Gabay sa Manggagawang may Kapansanan” (KaGabay) Program. The thrust of this program is to provide economic assistance to persons with work-related disabilities. According to the DOLE, KaGabay’s objective is to facilitate integration of the persons with work-related disabilities into the economic mainstream through physical restoration and training for re-employment or entrepreneurship in order to provide them with equal access to livelihood opportunities and micro-enterprises or home-based business. The Social Security System also gives cash benefits, either as a monthly pension or a lump sum amount, to its members who become permanently disabled, either partially or totally. The amended Social Security Law, RA 8282, provides:

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SEC. 13-A. Permanent Disability Benefits. - (a) Upon the permanent total disability of a member who has paid at least thirty-six (36) monthly contributions prior to the semester of disability, he shall be entitled to the monthly pension: Provided, That if he has not paid the required thirty-six (36) monthly contributions, he shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS or twelve (12) times the monthly pension, whichever is higher. A member who (1) has received a lump sum benefit; and (2) is reemployed or has resumed self-employment not earlier than one (1) year from the date of his disability shall again be subject to compulsory coverage and shall be considered a new member. (b) The monthly pension and dependents' pension shall be suspended upon the reemployment or resumption of self-employment or the recovery of the disabled member from his permanent total disability or his failure to present himself for examination at least once a year upon notice by the SSS. (c) Upon the death of the permanent total disability pensioner, his primary beneficiaries as of the date of disability shall be entitled to receive the monthly pension: Provided, That if he has no primary beneficiaries and he dies within sixty (60) months from the start of his monthly pension, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the five-year guaranteed period excluding the dependents' pension.

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(d) The following disabilities shall be deemed permanent total:

1. Complete loss of sight of both eyes; 2. Loss of two limbs at or above the ankle or

wrists; 3. Permanent complete paralysis of two limbs; 4. Brain injury resulting to incurable imbecility

or insanity; and 5. Such cases as determined and approved by the

SSS. (e) If the disability is permanent partial, and such disability occurs before thirty-six (36) monthly contributions have been paid prior to the semester of disability, the benefit shall be such percentage of the lump sum benefit described in the preceding paragraph with due regard to the degree of disability as the Commission may determine. (f) If the disability is permanent total and such disability occurs after thirty-six (36) monthly contributions have been paid prior to the semester of disability, the benefit shall be the monthly pension for permanent total disability payable not longer than the period designated in the prescribed schedule. (g) The percentage degree of disability which is equivalent to the ratio that the designated number of months of compensability bears to seventy-five (75), rounded to the next higher integer, shall not be additive for distinct, separate and unrelated permanent partial disabilities, but shall be additive for deteriorating and related permanent partial disabilities to a maximum of one hundred percent (100%), in which case, the

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member shall be deemed as permanently totally disabled. (h) In case of permanent partial disability, the monthly pension benefit shall be given in lump sum if it is payable for less than twelve (12) months. (i) For the purpose of adjudicating retirement, death and permanent total disability pension benefits, contributions shall be deemed paid for the months during which the member received partial disability pension: Provided, That such contributions shall be based on his last contribution prior to his disability. (j) Should a member who is on partial disability pension retire or die, his disability pension shall cease upon his retirement or death. (Labor Code)

The Armed Forces of

the Philippines also gives disability benefits to military veterans and their dependents. Republic Act

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6948, as amended, is the law standardizing the benefits for military veterans and their dependents. It provides:

Sec. 5. Pension Rates. — A veteran who is disabled owing to sickness, disease, wounds or injuries sustained in line of duty shall be given a monthly disability pension in accordance with the rates prescribed hereunder, unless he is actually receiving a similar pension for the same disability from other government funds or from the United States Government. (Labor Code)

Q: What are the remedies available in the Labor Code for PWD labor rights violations? A: Under the Labor Code, complaints regarding employment discrimination can be filed before the Labor Arbiter. Decisions of the Labor Arbiter can be appealed before the National Labor Relations Commission (NLRC). The decision of the NLRC can be brought before the Court of Appeals (CA) via certiorari under Rule 65 of the Rules of Civil Procedure, imputing grave abuse of discretion on the part of the

Figure 2. Heirarchy of Courts for Labor Complaints and Appellate Remedies

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NLRC. From the CA, the case can be brought before the Supreme Court via certiorari as a mode of appeal under Rule 45 of the Rules of Civil Procedure. (Labor Code) Q: What remedies are available in the Magna Carta? A: The Magna Carta provides that it is the duty of the Secretary of Justice (SOJ) to investigate alleged violations. If the SOJ has reasonable cause that there has been a violation, the SOJ may commence a legal action in any appropriate court. The Magna Carta states:

If the Secretary of Justice has reasonable cause to believe that 1) any person or group of persons is engaged in a pattern of practice of discrimination under this Act; or 2) any person or group of persons have been discriminated against under this Act, and such discrimination raises and issue of general public importance, the Secretary of Justice may commence a legal action in any appropriate court. (Magna Carta)

Q: What remedy is available against government agencies that do not comply with R.A. 10524? A: R.A. 10524 amends the Magna Carta to “expanding the positions reserved for persons with disability.” If a government agency fails to comply, a written complaint, subscribed and sworn to, can be filed with the Civil Service Commission, or any of its Regional Offices, heads of departments, agencies, provinces, cities, municipalities and other instrumentalities.

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Q: What remedy is available for filing claims regarding work-related injuries? A: The claimant must file before the nearest Regional Office or Branch of the Government Service Insurance System (GSIS, in case of government employees) or the Social Security System (SSS, in case of private sector employees).

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CHAPTER 8: HEALTH

Q: How does international law protect the right to health of PWDs? A: The CRPD recognizes that PWDs have the “right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.” Non-discrimination in the field of health includes the right of PWDs to receive “the same range, quality and standard of free or affordable health care and programmes as provided to other persons”, and access to “health services needed by persons with disabilities specifically because of their disabilities.”

Article 25 – Health States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall: Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes; Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons;

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Provide these health services as close as possible to people’s own communities, including in rural areas; Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care; Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner; Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability. (CRPD)

Q: How does Philippine law protect the right to health of PWDs? A: The Philippine Constitution recognizes the people’s “right to health.”

The State shall protect and promote the right to health of the people and instill health consciousness among them. (Article II Sec. 15)

In its Social Justice and Human Rights clause, it

identifies “disabled persons” as one of the groups entitled to “priority” in “health development.”

The State shall adopt an integrated and comprehensive approach to health development .... There shall be priority for the needs of the under-privileged, sick,

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elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. (Article XIII Sec. 11)

The Magna Carta secures the PWDs’ right to

“essential health services … at affordable cost”, including duties by the state to provide preventive measures and medical treatment.

Sec. 20. Health Services. The State shall protect and promote the right to health of disabled persons and shall adopt an integrated and comprehensive approach to their health development which shall make essential health services available to them at affordable cost. The National Government shall provide an integrated health service for disabled persons which shall include, but not limited to, the following: (a). prevention of disability through immunization, nutrition, environmental protection and preservation, and genetic counselling; and early detection of disability and timely intervention to arrest disabling condition; and (b). medical treatment and rehabilitation. The Department of Health shall field medical personnel specializing in the treatment and rehabilitation of disabled persons to provincial hospitals and, when viable, to municipal health centers. It shall also train its field health personnel in the provision of medical attention to disabled persons. It shall further ensure that its field health units have the necessary capabilities to fit prosthetic and orthotic appliances on disabled persons.

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Q: Are PWDs entitled to discounts on the costs of health care? A: Yes, the Amended Magna Carta, Sec. 32, establishes PWD discounts for the following:

(c) At least twenty percent (20%) discount for the purchase of medicines in all drugstores for the exclusive use or enjoyment of persons with disability; (d) At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees such as, but not limited to, x-rays, computerized tomography scans and blood tests, in all government facilities, subject to guidelines to be issued by the Department of Health (DOH), in coordination with the Philippine Health Insurance Corporation (PHILHEALTH); (e) At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees, and professional fees of attending doctors in all private hospitals and medical facilities, in accordance with the rules and regulations to be issued by the DOH, in coordination with the PHILHEALTH; …. (Amended Magna Carta)

In its Implementing Rules and Regulations (IRR),

the following discounts are more specifically provided:

6.1.d Purchase of Medicine – at least twenty percent (20%) discount on the purchase of medicine for the exclusive use and enjoyment of persons with disability. All drug stores, hospital, pharmacies, clinics and other

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similar establishments selling medicines are required to provide at least twenty percent (20%) discount subject to the guidelines issued by DOH and PHILHEALTH. 6.2 Admission Fees Privilege. – A minimum of at lease twenty percent (20%) discount on admission fees charged by theaters, cinema houses and concert halls, circuses, carnivals, and other similar places of culture, leisure and amusement such as but not limited to museum, exhibit halls, fairs, parks like theme parks and shall be granted for the exclusive use or enjoyment of persons with disability. 6.3 Medical and Dental Privileges in Government Facilities – The person with disability shall be provided at least twenty percent (20%) discounts on medical and dental services including diagnostic and laboratory fees such as, but not limited to, x-rays, computerized tomography scans and blood tests in all government facilities, subject to guidelines to be issued by DOH in coordination with the Philippine Health Insurance Corporation (PHILHEALTH). 6.4 Medical and Dental Privileges in Private Facilitie -- The person with disability shall be provided at least twenty percent (20%) discounts on medical and dental services including diagnostic and laboratory fees such as, but not limited to, x-rays, computerized tomography scans and blood tests including professional fees of attending doctors in all private hospitals and medical facilities subject to guidelines to be issued by DOH in coordination with the Philippine Health Insurance Corporation (PHILHEALTH). (Amended Magna Carta, IRR)

At the same time, incentives are offered to clinics,

drugstores, laboratories and other health care providers that grant these discounts.

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The establishments may claim the discounts granted in sub-sections (a), (b), (c), (f) and (g) as tax deductions based on the net cost of the goods sold or services rendered: Provided, further, That the total amount of the claimed tax deduction net of value-added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code (NIRC), as amended. (Amended Magna Carta)

The National Health Insurance Act of 1995 24

requires the national government and local government units to subsidize indigents in need of health care. Q: What prosthesis assistance is available for PWDs?

A: The Philippine Health Insurance Corporation, the state agency that aims to offer universal health care for Filipinos, has created the Z Morph Prosthesis Package, which is a case-based benefit covering P15, 000 per limb or P30,000 for both limbs (foot, symes, and ankle or below knee levels of amputation) 25 . The following institutions offer the Z-Morph Benefit: University of the East, Ramon Magsaysay Medical Center; Philippine Orthopedic Center; and Philippine General Hospital.

24 Republic Act No. 7875, An Act Instituting A National Health Insurance

Program For All Filipinos (1995). 25 PNoy leads launch of PhilHealth’s Z Morph Prosthesis Benefit Package

(2013). Philippine Information Agency. Retrived from http://news.pia.gov.ph/index.php?article=2131383209200 on February 1, 2014

http://news.pia.gov.ph/index.php?article=2131383209200

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Q: What is the process that must be followed by a PWD in order to avail of these benefits? A: The PWD Card may be presented in order to avail of the benefits under the law. The process of obtaining a PWD ID Card, as prescribed by law, is as follows:

Figure 3. Process of obtaining a PWD ID Card.

Obtain application form from the

registration center

Fill up application form and attack ID

picture

Obtain clinical abstract duly signed by any licensed private

or government clinic or hospital-based physician and attach it with the application

form

Submit application form and clinical abstract to the

nearest City of Municipal Health Office or its satellite

offices or stations at the barangay

The receiving health office shall screen and perform the necessary

medical and other allied medical assessment

If the entries match the actual health condition of the

applicant, the form with all attachments goes to the

Health Officer of the Main City or Municipal Health

Center

The City or Municipal Health Officer shall fill

up the certification form

The City of Municipal Health Officer shall then enter the

duly signed certificate of disability to the Philippine Registry for Persons with

Disabilities

The applicant shall bring the duly approved application

form and certificate of disability to the City or

Municipal Social Welfare Office or NCDA for issuance

of the identification card.

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CHAPTER 9: SUFFRAGE

Q: How does international law secure the right of PWDs to vote? A: Under the CRPD, the Philippine government guaranteed to PWDs their full “participation in political and public life”, and more specifically, “ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others political rights on an equal basis with others.” It requires that voting procedure and equipment are “appropriate, accessible and easy to understand and use”, that PWDs have access to “assistive and new technologies” and, “if necessary [and] at their request [to be] assist[ed] in voting by a person of their own choice.”

Art. 29 – Participation in political and public life. States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: ENSURE that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by: ENSURING that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; PROTECTING the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to

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effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; GUARANTEEING the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; …. (CRPD)

These provisions of the CRPD are adopted almost

verbatim in Philippine law by Republic Act No. 10366 which requires “accessible polling places” for PWDs and senior citizens” in its section entitled Right to Participation in Electoral Processes.26

Q: How does Philippine law secure the right of PWDs to vote? A: The Philippine Constitution guarantees the fundamental right of suffrage to “all citizens” without any “literacy, property, or other

substantive requirement.” Suffrage may be

exercised by all citizens

26 R.A. 10366, An Act Authorizing the Commission on Elections to Establish

Precincts Assigned to Accessible Polling Places Exclusively for Persons with Disabilities and Senior Citizens (2012). (Accessible Voting Law)

Constitution

Section 1, Article v, 1987

Suffrage may be exercised by all citizens of

the Philippines, not otherwise disqualified by

law, who are at least eighteen years of age,

and who shall have resided in the Philippines

for at least one year and in the place

wherein they propose to vote, for at least six

months immediately preceding the election.

No literacy, property, or other substantive

requirement shall be imposed oan the

exercise of suffrage.

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of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year, and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Art. V, Suffrage, Sec. 1)

It also requires “a system for securing the secrecy

and sanctity of the ballot” and a law setting the “procedure for the disabled … to vote without the assistance of other persons.”

The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. (Art. V, Suffrage, Sec. 2)

Q: How does Philippine law reconcile the secrecy of the ballot with the PWD need for assisted voting? A: Despite the constitutional clause that PWDs must be able to vote without the assistance of others, the Magna Carta for Persons with Disabilities allowed that a PWD may on his own decide “to be assisted by a person of his

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choice.” However, the assistant is kept under oath to honor the choice made by the voter and to keep it secret.

CHAPTER 7 Political and Civil Rights Sec. 29. System of Voting. Disabled persons shall be allowed to be assisted by a person of his choice in voting in the national or local elections. The person thus chosen shall prepare ballot for the disabled voter inside the voting booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an election offense. Polling places should be made accessible to disabled persons during the national or local elections.

Indeed, the Accessible Voting Law of 2012 27

maintains this rule allowing PWDs to be assisted by another person, under more specific restrictions on who may be allowed to assist the PWD.

Sec. 11. Assistance in the Accomplishment of the Ballot. – A person with disability or senior citizen who is illiterate or physically unable to prepare the ballot by himself or herself may be assisted in the preparation of his or her ballot by a relative by consanguinity or affinity within the fourth civil degree, or if he or she has none, by any person of his or her confidence who belongs

27 R.A. 10366, An Act Authorizing the Commission on Elections to Establish

Precincts Assigned to Accessible Polling Places Exclusively for Persons with Disabilities and Senior Citizens (2012). (Accessible Voting Law)

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to the same household, or by any member of the BEls. For this purpose, the person who usually assists the person with disability or senior citizen, such as a personal assistant, a caregiver or a nurse shall be considered a member of his or her household: Provided, That no voter shall be allowed to have an assistor on the basis of illiteracy or physical disability unless it is so indicated in his or her registration record. Nevertheless, if the physical inability to prepare the ballot is manifest, obvious, or visible, said voter shall be allowed to be assisted in accomplishing the ballot by a qualified assistor, even if not stated or indicated in the registration record: Provided, further, That the assistor must be of voting age. (Accessible Voting Law)

Q: Who is a PWD for purposes of voting during elections? A: The Voter’s Registration Act defines “illiterate or disabled person” as “one who cannot by himself prepare an application for registration because of his physical disability and/or inability to read and write.”28 As such, they are eligible to register “with the assistance of the Election Officer or any member of an accredited citizen's arms.” (Voter’s Registration Act, Sec. 14) A “physically disabled person” may register with the assistance of relatives or citizen’s arms and must indicate his disability in his registration.

Sec. 14. Illiterate or Disabled Applicants. - Any illiterate person may register with the assistance of the Election

28 R.A. 8189, Voter’s Registration Act (1996).

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Officer or any member of an accredited citizen's arms. …. The application for registration of a physically disabled person may be prepared by any relative within the fourth civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen's arm using the data supplied by the applicant. The fact of illiteracy or disability shall be so indicated in the application.

The Accessible Voting Law defines PWDs as

“qualified voters who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in the electoral processes on an equal basis with others.” (Accessible Voting Law) The Commission on Elections (Comelec) implements this definition more specifically and classifies PWDs according to their impairment:

(a) Physical – pertains to conditions associated with

muscular or skeletal functions that limit a person’s performance of activities associated with movement;

(b) Hearing – pertains to conditions associated to the auditory senses; maybe partial or complete loss of hearing;

(c) Speech – pertains to conditions related to difficulties in communicating through speech;

(d) Visual – pertains to conditions associated with visual senses; partial or complete loss of sight; and

(e) Non-Manifest – pertains to conditions that are not immediately apparent but may need assistance.

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Code Type of Disability Code Form of

Assistance 1 Physical A Assistor 2 Hearing B Communication

Assistance 3 Speech C Accessible Precinct 4 Visual D Visual Assistance 5 Non-Manifest (e.g.

Autism, Attention Deficit. Hyperactivity Disorder)

Table 2. Types of Disabilities and Allowed Forms of Assistance. 29

Q: What is the most important measure to secure the equal right of PWDs to vote? A: The key to the protection of the PWD right to vote and the secrecy and sanctity of his ballot lies in the registration of voters. Under both the Voter’s Registration Act and the Accessible Voting Law, it falls upon the PWD to indicate in his registration that he is a PWD and seeks assisted voting. Under the Voter’s Registration Act, the PWD may be assisted in registering by:

(1) any relative within the fourth civil degree of consanguinity or affinity;

(2) by the Election Officer; or

29 Comelec Resolution 9220. Sec. 2.

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(3) any member of an accredited citizen’s arm using the data supplied by the applicant.30

Under the Accessible Voting Law, the Comelec must

design the forms to enable the PWD to indicate the type or types of disability which he has and the forms of assistance he needs. Voters are allowed to update their record if they have already registered but have not yet indicated their disability, or may have developed or manifested such disability only after registration.

Sec. 2(j) Accessible polling place refers to the venue where the Board of Election Inspectors (BEIs) conducts election-related proceedings and where the voters cast their votes. The accessible polling place shall he located at the ground floor, preferably near the entrance of the building, and is free of any physical barriers and provided with necessary services, including assistive devices. …. Sec. 6. Registration and Updating of Records. – In designing the forms, the Commission must ensure that persons with disabilities and senior citizens applying for registration, reactivation, transfer, or correction of entry indicate the type(s) of disability, as well as the form(s) of assistance needed. Sec. 9. Creation of Precincts for Persons with Disabilities and Senior Citizens. – The Commission is hereby authorized to establish precincts of a nonterritorial nature, exclusively for persons with disabilities and senior citizens who in their registration records manifest their intent to avail of their right to a separate precinct under this section. Pursuant hereto, the

30 R.A. 8189, Voter’s Registration Act, Sec. 14 (1996).

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Commission shall establish at least one (1) such precinct, assigned to accessible polling places, for every voting center. Such precincts shall be provided with assistive devices as well as the services of experts in assisting persons with disabilities. Sec. 10. Ballot Design. – In designing the ballot, the Commission shall ensure reasonable accommodation to persons with disabilities and senior citizens to enable them to accomplish the ballots by themselves. (Accessible Voting Law)

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Q: What is the procedure for the voter’s registration of PWDs? A: The procedure for filing of applications for registration for PWDs is essentially the same as that of other voters.31 PWDs may use their PWD ID cards to fulfil the identification document requirement. Aside from the application form 32 , a Supplementary Data Form 33 must be accomplished by the PWD applicant. In this Supplementary Data Form, the applicant shall indicate his disability, type of assistance needed, and his/her manifestation of his/her desire to vote in an Accessible Polling Place.

In registering, the PWD may bring a companion or guardian that may assist him/her in accomplishing his application. Such person must

31 Id. Sec. 12 32 See attached form. Annex A. 33 See attached form, Annex E.

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be a qualified assistor and shall certify/attest, under oath, to the truthfulness of the data set forth in the PWD’s application.

Q: What is the next step after the application form is accomplished? A: Once the application form is accomplished, it shall be given to the Elections Officer (EO) who shall read the accomplished form out loud to the PWD and ask him/her if the information given is true and correct. Then, in the presence of the EO, the PWD-applicant shall affix his/her thumb mark or other customary mark on the form.34

From the records, the names of those who have manifested that they intend to be assigned in a separate non-territorial precinct designated to vote in the

34 Comelec Resolution 9853. Sec. 13.

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Accessible Polling Place shall be consolidated in an Election Day Computerized Voters’ List (EDCVL) and in a Posted Computerized Voters’ List (PCVL). Q: Are PWDs given priority during registration? A: Yes, during the registration, PWDs, together with senior citizens, are given a priority lane.35 Also, the Comelec, motu proprio or upon request, shall conduct satellite or special registrations in accessible public places, subject to pertinent Comelec Resolutions.36

Q: Are PWDs given a separate and more accessible polling place during election day itself? A: Yes, the Accessible Voting Law provides for the creation of precincts of a non-territorial nature exclusively for PWDs and senior citizens who have manifested in their registration records intent to avail of their right to a separate precinct. Such precincts shall be provided with assistive devices as well as services of exerts in assisting PWDs.37

35 Id. Sec. 3. 36 Comelec Resolution 9763. Sec. 5. See also Comelec Resolution 9863. Secs. 5 and 7. 37 R.A. 10366. Sec. 9 (2012).

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Q: Who may be allowed to vote in separate polling places? A: Only those appearing in the EDVCLs and the PVCLs for PWDs and Senior Citizens may vote in the Accessible Polling Places. Those who did not manifest their intent to avail of the non-territorial precinct or who were unable to update their records shall vote in the regular polling places where they shall be accommodated in the priority/express lanes.38 Precincts devoted for PWDs who are voting in the regular polling precincts shall, whenever practicable, be located at the ground floor which shall be made compliant with the requirements of an Accessible Polling Place.39

The Comelec shall ensure reasonable accommodation to PWDs to enable them to accomplish the ballots themselves, by re-designing the ballot itself.40

38 Comelec Resolution 9763. Sec. 7. 39 Comelec Resolution 9763. Sec. 9. 40 R.A. 10366. Sec. 10; Comelec Resolution 9763. Sec. 14.

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Figure 4. Process Flow-chart: Procedure of Application for PWDs based on Comelec Resolution No. 9853.

Obtain application form and

supplementary form (Annex E)

Fill out forms and indicate type of

disability and assistance needed

Submit application form to Elections

Officer (EO)

EO shall read aloud the accomplished form to the PWD

PWD must affirm if the information

written are true and correct

PWD affix thumbmark or other customary mark on the form

Assistor shall accomplish three copies of the

supplemental form and attach them to the application form

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Q: What remedies are available to duly registered PWD voters who are denied their right to vote? A: On election day, the PWDs may air out their complaints to the Election Officer in charge. Problems in registration, updating and accessing polling precincts may be raised directly to the Election Officer assigned in the vicinity, during registration, or to the BEI, during election day. Aggrieved PWDs may file an administrative complaint before the Comelec against election officials who deny them their right to vote and/or commit acts of discrimination against them.

The Accessible Voting Law provides that denial of

the PWD right to be assisted in filling out his application form 41 is an election offense punishable under the Omnibus Elections Code.

Q: Can aggrieved PWDs charge persons for election offenses? A: Yes, they may. A PWD who is deprive of his right to vote may charge any person for an election offense before the Comelec. Election offenses are covered by the Omnibus Elections Code42 and the Comelec Rules of Procedure. Under Rule 34 of the Comelec rules:

Sec. 3. Initiation of Complaint. - Initiation of complaint for election offenses may be done motu proprio by the

41 R.A. 10366. Sec. 7. 42 Batas Pambansa Blg. 881 (1985).

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Commission, or upon written complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the partylist system or any accredited citizens arms of the Commission. Sec. 4. Form of Complaint and Where to File. - (a) When not initiated motu proprio by the Commission, the complaint must be verified and supported by affidavits and/or any other evidence. Motu proprio complaints may be signed by the Chairman of the , or the Director of the Law Department upon direction of the Chairman, and need not be verified; (b) The complaint shall be filed with the Law Department of the Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal. If filed with any of the latter three (3) officials, investigation thereof may be delegated to any of their assistants. (c) If filed with the Regional Election Directors or Provincial Election Supervisors, said officials shall immediately furnish the Director of the Law Department a copy of the complaint and the supporting documents, and inform the latter of the action taken thereon. Under the Omnibus Elections Code it is the Comelec that has the power to prosecute all cases involving election offenses and in the event of the failure of the Comelec to prosecute, the complainant may institute a complaint before the Office of the Prosecutor or the Department of Justice:

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Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.43

Q: Can aggrieved PWDs charge Comelec officials for administrative liability? A: Yes, an administrative case may also be filed against Comelec officials and employees, before the Comelec, who would commit acts of discrimination in dealing with the PWDs. According to the Comelec Disciplinary Rules and Procedures:

A complaint against an official/employee of the Commission shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplinary authority, the complaint need not be under oath.

…. The complaint should be written in a clear, simple and concise language and in a systematic manner as to

43 Id.

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apprise the official/employee concerned of the nature and cause of the accusation against him and to enable him to intelligently prepare his Comment/Counter-Affidavit. The complaint shall contain the following: a. Full name and address of the complainant; b. Full name and address of the person complained of

as well as his position and station; c. A narration of the relevant and material facts which

shows the acts or omissions; d. Certified true copies of documentary evidence and

affidavits of his witnesses, if any; and e. Certification or statement of non-forum shopping. In the absence of any one of the aforementioned requirements, the complaint shall be dismissed. 44

44 Commission on Elections Disciplinary Rules and Procedures, Sec. 5.

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