JURIST Columnist Edsel Tupaz of Tupaz & Associates says that the devastation seen in the Philippines following Typhoon Sendong highlights the need to delineate the responsibilities of the legislative and judicial branches of government in protecting and enforcing socioeconomic rights for those affected...
hile Christmas is normally the most festive time of the year in the Philippines, a predominantly Roman Catholic country, few in the typhoon-ravaged areas in the southern portion of the country feel like celebrating. On December 17, Typhoon Washi locally referred to as Typhoon Sendong spawned heavy rains, overflowing rivers, flash floods and landslides that wiped out whole villages, many built on riverbanks and sandbars in the coastal port cities of Cagayan de Oro and Iligan. According to authorities, the death toll has reached 1,257, and, as of the hour, over a thousand more are unaccounted for. Many of the victims drowned in their sleep. Around 376,000 people are displaced and an estimated 55,000 jammed in crowded evacuation centers, short of water and sanitation supplies. The National Disaster Risk Reduction and Management Council currently pegs the number of families affected by the typhoon at 108,798. Over 39,000 houses and PHP$1.08 billion (US$25 million) worth of property was destroyed during the storm. The agency reports that evacuees may remain homeless for months while the local government builds new shelter for them.
It is not widely known, but the Philippines is perhaps the most disaster-struck country today. Typhoon Sendong was the nineteenth typhoon to hit the Philippines in 2011. The country experiences an average of 20 tropical cyclones or storms in a typical year, and most are costly in terms of physical destruction and loss of life. In comparison to Sendong, Typhoon Ondoy (Ketsana), which flooded Metro Manila in 2009, resulted in 747 fatalities and destroyed property and agricultural crops estimated at PHP45 billion (US$1.04 billion).
This typhoon caps a year, if not a decade, of the deadliest cyclones that have struck the Philippine archipelago usually the first country hit by tropical storms which then disperse by the time such storms arrive at mainland China and Indo-China. Sendong highlights the need to upgrade the country's preparedness for extreme weather. While humanitarian and mobilization efforts are well underway in the local, national and international levels, some still feel the need to play the blame game. President Benigno Aquino argues that illegal logging and mining caused the heavy flooding and destruction, while other government officials point to the danger of building residences in areas that are at high risk for flooding. Although better preparedness in disaster prevention and mitigation will certainly be helpful for the future, publicity at finger pointing now running 24/7 will be a distraction and prove counterproductive to focusing on necessary improvements. Politicians and analysts who do take this track add nothing new to the deployment of concrete, material relief. While locals continue the blame game and face saving over broadcast media, international humanitarian and disaster relief societies are actively intervening in distraught areas and care less about the political capital that could be gained through media showcasing.
Meanwhile, the rest of the Philippines continue to mourn for the families affected by Typhoon Sendong. National and local governments, non-governmental organizations, and ordinary citizens have all joined in a coordinated effort to provide relief assistance to the victims. As of December 26, the Philippine Red Cross [Follow the link to donate now] has raised over PHP90 million (US$2.06 million) in donations, and mobilization centers have been set up across the Philippines for volunteers to organize and package the influx of relief goods such as food, water, makeshift shelters and clothing. Cargo and courier services are offering free shipping for direct donations to Cagayan de Oro and Iligan, the most afflicted areas, while telecommunication companies have set up free calling for those in disaster areas. Meanwhile, the international community at large continues its unflinching support. The UN likened the force of the disaster to that of a tsunami and launched a US$28.6 million aid appeal last week. Countries like Canada, Switzerland and the US are providing aid in the form of technical material and immediate cash assistance toward the ongoing emergency relief and rehabilitation efforts. While food, water and shelter will do well for struggling families, if not whole communities in southern Philippines, one form of relief, still too underrated by the media, is increasingly in demand supplies and infrastructure for mass graves.
While human history is replete with case studies of natural disasters and the ways in which societies and their governments deploy various responses at the level of "state action," the events of the past two weeks in the Philippines raise some questions about social welfare rights in times of crisis: Is the right to emergency shelter and similar socioeconomic rights an "enforceable" right? Presently, living conditions in the evacuation centers are poor, with potable water remaining in short supply for thousands of people. The Philippine government has said that it will set up tent cities in safe areas to temporarily house the evacuees until more permanent shelters can be erected, but individuals may feel that the government is not doing enough. Could an individual go to court and require the national or local government to provide adequate housing and food to disaster victims? Could such individual turn beyond the statute books and directly invoke socioeconomic rights phrased as constitutional rights? Would such individual have the proper standing to enforce such a "positive" or "affirmative" right?
In the Philippines, various social justice and human rights are constitutionally "guaranteed," holding "highest priority," through Article XIII of the Philippine Constitution, with sections focusing on agrarian and urban land reform, housing and health, among others. However, this article provides responsibilities for the state to administer national policy. It does not grant the people as individuals any concrete, justiciable right. A concrete right is secured only through the provisions of applicable laws, which are subject to the authority and discretion of the executive and legislative branches. Countries like India, Ireland and Japan have similar constitutional guarantees of social welfare rights, and thus, their supreme courts are able to examine these issues directly and hold whether such rights are justiciable, or are simply exhortatory, addressed as they are to the legislatures for purposes of policy guidance and policy direction. In contrast, the US does not have this constitutional guarantee, but in cases involving social justice and human rights, so far the US Supreme Court has implicated, if not invoked, the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. Regardless of the inclusion of social welfare rights in national constitutions, the nature and outcomes of legislative or administrative action in these countries remain the same: non-judicial officials have substantial discretion in determining appropriate social welfare policy, and because of that discretion, an aggrieved individual whose house happened to have been torn apart by a typhoon may have no standing to enforce any purported "right to housing," if such provision can be found in a constitution, by going to court and requiring local officials to provide him with one.
On the other hand, a cluster of social and economic rights is entrenched in the South African Constitution, and have been held by the South African courts as justiciable. In Government of the Republic of South Africa v. Grootboom, the Constitutional Court of South Africa held that rights in South Africa ought to be interpreted and understood in their social and historical context, especially the unique background of Apartheid, and thus, courts are constitutionally bound to protect social and human rights. However, the positive obligation enforced on the state to devise a comprehensive and workable plan to ensure these rights is not absolute or unqualified it requires the coordination of all levels of government and is subject to the availability of resources. The Constitution does not entitle claimants or petitioners to claim welfare benefits such as housing immediately upon demand.
According to South African jurisprudence, in deciding cases concerning welfare rights, judges must exercise judicial restraint since they are thought to hold no special expertise on complex socioeconomic matters, and moreover, being unelected magistrates, they are the least accountable to the general populace. However, others have argued that judges do have a voice when poor socioeconomic conditions go to the core of a person's life and dignity, especially when higher normative questions are put on the table in times of severe crisis. Professor Ronald Dworkin of New York University School of Law would argue that the role of the court is to ensure that those who are entrusted with the powers of the state show equal concern and respect for those whose lives they can affect. The judiciary must concern itself with the impartial application of broad precepts of equality and personal autonomy, declaring whether constitutional responsibilities have been sufficiently fulfilled, and leave the political organs to set concrete policies.
In times of crisis, one hopes that the government any government is able to set a comprehensive and coordinated effort to provide victims with disaster relief, but with the magnitude of such a task, there may inevitably be some shortcomings. Although courts in many countries around the world cannot effectively enforce social welfare rights, the justice system can still do its part to protect society's core values of social justice and human rights by clarifying the boundaries of where justiciability begins and policy ends.
Author's Note: A special thanks to Joan Martinez.
Edsel Tupaz is the founder and managing partner of Tupaz & Associates. Tupaz & Associates is a public interest law firm whose specialties lie in comparative constitutional law and policy. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He was senior counsel and senior executive assistant of the Philippine Truth Commission created by President Benigno Aquino III, which was later declared unconstitutional by a Court majority chaired by Chief Justice Renato Corona.
Suggested citation: Edsel Tupaz, Disaster in the Philippines: The Need to Clarify Socioeconomic Rights, JURIST - Sidebar, Dec. 28, 2011, http://jurist.org/sidebar/2011/12/edsel-tupaz-sendong.php.
This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at email@example.com