Friday, August 29, 2008

THE RIGHT TO ADEQUATE HOUSING: THE LEGAL FIELD

Prepared by Atty. Michael Vincent S. Gaddi, Sentro ng Alternatibong Lingap Panligal (Saligan)

GENERAL STATE POLICIES

•Article 25 (1) UN Declaration of Human Rights:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

•Article 11 (1) International Covenant on Economic, Social and Cultural Rights (ICESCR):

The states parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to continuous improvement of living conditions. The States parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.

•Section 9, Article XIII 1987 Philippine Constitution:

The State shall by law, and for the common good undertake, in cooperation of the private sector, a continuing program for urban land reform and housing which will make available at affordable cost, decent housing and basic services to the underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such programs, the State shall respect the rights of small property owners.

•Section 10, Article XIII 1987 Philippine Constitution:

Urban and rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be located.


THE RIGHT AGAINST FORCED EVICTIONS AND DEMOLITIONS

•Section 28, Urban Development Housing Act (UDHA):
Section 28 of the UDHA lays down the mandatory requirements for a just and humane eviction and demolition. Non compliance with any of the following requirements renders the eviction or demolition unlawful:

•Notice upon the affected persons or entities at least thirty (30) days prior to the date of eviction or demolition;

•Adequate consultations on the matter of settlement with the duly designated representatives of the families to be resettled and the affected communities in the areas where they are to be relocated;

•Presence of local government officials or their representatives during eviction or demolition;

•Proper identification of all persons taking part in the demolition;

•Execution of eviction or demolition only during regular office hours from Mondays to Fridays and during good weather, unless the affected families consent otherwise;

•No use of heavy equipment for demolition except for structures that are permanent and of concrete materials;

•Proper uniforms for members of the Philippine National Police who shall occupy the first line of law enforcement and observe proper disturbance control procedures; and

•Adequate relocation, whether temporary or permanent: Provided, however, That in cases of eviction and demolition pursuant to a court order involving underprivileged and homeless citizens, relocation shall be undertaken by the local government unit concerned and the National Housing Authority with the assistance of other government agencies within forty-five (45) days from service of notice of final judgment by the court, after which period the said order hall be executed: Provided, further, That should relocation not be possible within the said period, financial assistance in the amount equivalent to the prevailing minimum daily age multiplied by sixty (60) days shall be extended to the affected families by the local government unit concerned

•Executive Order No. 152 (2002) & Executive Order No. 708 (2008):

•To implement Section 28 of the UDHA, Executive Order No. 152 was passed in 2002 designating the Presidential Commission for the Urban Poor (PCUP) as the monitoring agency and sole clearing house for the conduct of demolition and eviction activities involving the homeless and underprivileged citizens

•Under the Executive Order, government agencies proposing to undertake demolition and eviction activities are required to secure first from either the PCUP Central Office (in case of national projects) or from the PCUP Regional Office (in case of regional or local projects) the checklist, guidelines, and compliance certificates on demolition and eviction prior to the actual implementation thereof and thereafter, submit to the PCUP the completed checklist, attested to under oath by the proponent.

•Executive Order No. 152 (2002) & Executive Order No. 708 (2008):

•However, due to the passage of Executive Order No. 708 (series of 2008), such clearing house task of the PCUP has now been devolved to the city or municipality having territorial jurisdiction over the demolition and eviction.

•EO 708 cites the established policy of local autonomy and decentralization as basis for such devolution. But before each city and municipality can take on the task as a clearing house, the executive order mandates that each city and municipality must first create, via an ordinance, its own local housing board (or any similar body) which will carry out the clearing house function of PCUP within its territorial jurisdiction.



•Repeal and Attempted Revival of the Anti-Squatting Law: House Bill No. 1087

•A proviso in HB 1087 states:

–Provided, that any person or group of persons who with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will, and having received a written demand to either vacate or pay rent from said landowner, shall refuse to do so within a period of ninety (90) days, shall be considered a professional squatter within the purview of Republic Act No. 7279.



•Repeal and Attempted Revival of the Anti-Squatting Law: House Bill No. 1087

•Section 1 of PD 772 states:

–Any person who, with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will for residential commercial or any other purposes, shall be punished by an imprisonment ranging from six months to one year or a fine of not less than one thousand nor more than five thousand pesos at the discretion of the court, with subsidiary imprisonment in case of insolvency.




•Repeal and Attempted Revival of the Anti-Squatting Law: House Bill No. 1087

•Recent Favorable Developments on HB 1087:

–Inputs of Technical Working Group (TWG) composed of various NGOs & NGAs were considered by the author and resulted in a Substitute Bill entitled “An Act to Institute Reforms in the Anti-Professional Squatters/Squatting Syndicates Drive of the Government, Strengthening the Mechanisms therfor, and for Other Purposes”

–This drastic change in the bill’s tenor proved to be a very fortunate turn of events for the urban poor sector for the attempt at reviving PD 772 had been thwarted.



•Blatant Violations by the Metro Manila Development Authority (MMDA) – Examining the Legality of MMDA Resolution No. 03-96 and MMDA Resolution No. 02-28

•MMDA Resolution No. 03-96:

–adopts a uniform easement provision along the Pasig River system including its tributaries, maintaining a linear park or service road at the minimum setback of ten meters (10 m.) from the existing shoreline, banks, or streams

–and three meters (3 m.) from the existing esteros and canals, without prejudice to the LGUs' prerogative to impose more stringent easement provisions."




•Blatant Violations by the Metro Manila Development Authority (MMDA) – Examining the Legality of MMDA Resolution No. 03-96 and MMDA Resolution No. 02-28

•MMDA Resolution No. 02-28

–seeks to clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all illegal structures and obstructions

–allowing the MMDA to clear and confiscate whatever effects as garbage




•Blatant Violations by the Metro Manila Development Authority (MMDA) – Examining the Legality of MMDA Resolution No. 03-96 and MMDA Resolution No. 02-28

•MMDA Resolutions No. 03-96 and 02-28 are invalid under the following arguments:

–The MMDA is a mere coordinating body NOT bestowed with any law making powers.

–The MMDA is NOT a local government unit possessing the delegated power to legislate in exercise of its police power. Its main task is just to lend a helping hand to cities and municipalities in the delivery of basic services.

–The resolutions violate the constitution, national laws (Civil Code, Water Code & UDHA), as well as international covenants (ICESCR)



LAWS & ISSUANCES AFFECTING HOUSING

•Presidential Proclamations: Executive Order No. 131 (s. 2002) and Memorandum Order No. 74 (s. 2002)

•Besides protecting the right against forced evictions and demolitions, the UDHA also upholds the right to adequate and affordable housing. As to what kind of lands can be subject to socialized housing, Section 4 of the UDHA states:

–SECTION 4. Coverage. — The Program shall cover all lands in urban and urbanizable areas, including existing areas for priority development sites, and in other areas that may be identified by the local government units as suitable for socialized housing

•Presidential Proclamations: Executive Order No. 131 (s. 2002) and Memorandum Order No. 74 (s. 2002)
•In relation to this, Section 5 states:
SECTION 5. Exemptions. — The following lands shall be exempt from the coverage of this Act:

(a) Those included in the coverage of Republic Act No. 6657, otherwise known as the Comprehensive Agrarian Reform Law;
(b) Those actually used for national defense and security of the State;

(c) Those used, reserved or otherwise set aside for government offices, facilities and other installations, whether owned by the National Government, its agencies and instrumentalities, including government-owned or-controlled corporations, or by the local government units: Provided, however, That the lands herein mentioned, or portions thereof, which have not been used for the purpose for which they have been reserved or set aside for the past ten (10) years from the effectivity of this Act, shall be covered by this Act;

(d) Those used or set aside for parks, reserves for flora and fauna, forests and watersheds, and other areas necessary to maintain ecological balance or environmental protection, as determined and certified to by the proper government agency; and

(e) Those actually and primarily used for religious, charitable, or educational purposes, cultural and historical sites, hospitals and health centers, and cemeteries or memorial parks.

The exemptions herein provided shall not apply when the use or purpose of the abovementioned lands has ceased to exist

•Presidential Proclamations: Executive Order No. 131 (s. 2002) and Memorandum Order No. 74 (s. 2002)

•The exemption in Section 5 refers to idle government lands, the purpose of which have been rendered nugatory owing to non-use for ten (10) years from the effectivity of the UDHA. Said government lands can be the subject of socialized housing and thus be distributed for such purpose. To distribute such lands for socialized housing, a presidential proclamation must first be issued by the President of the Philippines.

•To fully implement such UDHA mandate, two presidential issuances have been enacted -- Executive Order No. 131 (s. 2002) [EO 131] and Memorandum Order No. 74 (s. 2002) [MO 74]. In presidential proclamations for socialized housing, the basic idea is that if there are government lands which have become idle, based on the legal definition crafted in Section 5 of the UDHA, said lands may be identified, proclaimed, and thereafter distributed for socialized housing purposes to qualified beneficiaries.


•Aptly entitled “DECLARING OPEN TO DISPOSITION FOR SOCIALIZED HOUSING PURPOSES CERTAIN GOVERNMENT-OWNED LANDS DEFINED UNDER REPUBLIC ACT NO. 7279, OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OD 1992, AND PROVIDING FOR DISPOSITION THEREOF”, the third whereas clause of EO 131 encapsulates its main objective:

•“WHEREAS, mass housing may be effected, among others, through the regularization of land tenure of informal settlers on government-owned lands which have not been used for the purposes for which they have been reserved or set-aside for the past ten (10) years from the effectivity of the UDHA including government-owned idle lands and alienable lands of the public domain and are suitable for socialized housing;”

• Thus, EO 131 provides a veritable opportunity for informal settlers living on government-owned lands to gain security of tenure over the land on which their houses are built. However, EO 131 merely deals with what is called a “pre-proclamation phase” meaning that its main aim only covers the identification and preparation of the subject government lands, and not the actual distribution and disposition of the same. To address this issue of distribution and disposition of proclaimed lands, MO 74 was likewise issued to compliment EO 131.

•MO 74 appoints the Housing and Urban Development Coordinating Council (HUDCC) as the lead government agency to realize the distribution and disposition of proclaimed government lands. Such task is of course in coordination with other relevant government agencies as well as the local government units where the subject land is located. As clearly stated in Section 1 of MO 74:

•“SECTION 1. The Housing and Urban Development Coordinating Council (HUDCC) shall confer with the Local Government Unit (LGU), within fifteen (15) days from the issuance of the Presidential Proclamation, for the purpose of facilitating and expediting the conduct of post-proclamation activities necessary to dispose of the proclaimed site to their actual bona fide occupants, to the end that these informal settlers are finally granted the titles to the lands they are occupying at the earliest possible time and in order that these lands are developed as a viable community through participatory planning and utilization of appropriate development schemes.”

•Executive Order No. 272 (s. 2004)

•It cannot be gainsaid how the government’s Community Mortgage Program (CMP) has immensely assisted numerous urban poor home owner associations (HOAs) in obtaining security of tenure over the land on which they were once considered as “squatters”. Originally implemented by the National Home Mortgage Finance Corporation (NHMFC), the program works to ease the HOAs’ burdens in paying for their purchased land with friendly terms and conditions.

•With Executive Order No. 272 (EO 272), the NHMFC has been mandated to create a subsidiary corporation which will focus exclusively on implementing the government’s Community Mortgage Program, because pursuant to its charter, the NHMFC is not the one officially tasked to implement the Community Mortgage Program. Thus, the Social Housing Finance Corporation (SHFC) was created via EO 272 to be the exclusive implementor of the government’s Community Mortgage Program.

•Proposed Legislation Relevant to Land Use and Land Distribution: the National Land Use Act (NLUA) and the Local Housing Board Law (LHB) [NOTE: both proposed measures are still pending in either the Senate or House]

•The National Land Use Act (NLUA) envisages a method by which land use may be planned at the national level. However, it is pertinent to consider the reasons why there should be land planning at any level. Indeed, while many Local Government Units (LGUs) have produced comprehensive land use plans, these are not a requirement. Under Article 13, section 1 of the Constitution, the state reserves the rights to regulate and to dispose of land. Similarly, under Article 12, section 6 of the Constitution, it is recognized that the state can interfere with private ownership for the common good. These provisions acknowledge that private interests over land can never be absolute and conversely that land has an existence independent of its private owners. One main reason for this is that the use of land affects not only its present users but also the land surrounding it and land’s future users.


•Proposed Legislation Relevant to Land Use and Land Distribution: the National Land Use Act (NLUA) and the Local Housing Board Law (LHB) [NOTE: both proposed measures are still pending in either the Senate or House]

•Local housing boards are local special bodies tasked to formulate, develop, implement, and monitor policies on the provision for housing and resettlement areas, and on the observance of the right of the underprivileged and homeless to a just and humane eviction and demolition.

•Local housing boards bring together two salient mandates in the Article on Social Justice and Human Rights, to wit: the undertaking to establish a continuing program of urban land reform and housing and to respect the right of urban or rural poor dwellers to be evicted in a just and humane manner, and the observance of the right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making.

iWitness: Pier 16

08/19/2008 | 12:06 AM




They move from one place to another, rain or shine, they bring along their families cramped in a trailer van. This August, Kara David bears witness to the life of trailer van assistants.

Assistants to trailer van drivers or pahinantes usually travel from city to province taking with them family members. They reside in a trailer van with address at Pier 16! Just like a typical house, the trailer has facilities too. The van's chassis becomes their basement, the road serves as their kitchen, and nearby drainage functions as their toilet.

Pahinantes are modern-day Filipino nomads that reflect the country's poverty. Evelyn brings her child every week to the hospital due to persistent coughs and colds while Leonard studies under the pier's lamp post. Everyday, they scramble up the pier's fence to avoid getting caught by guards.

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Palipat-lipat ng lugar, karay-karay ang buong pamilya, umulan man o umaraw, nagsisiksikan sa iisang trailer van. Ngayong Agosto, ang buhay ng mga pahinante ang susundan ni Kara David.

Bumabiyahe ang mga pahinante mula lungsod hanggang lalawigan angkas ang buong mag-anak. Sa trailer van na sila nakatira, at ang kanilang address -- Pier 16! Itinuturing na nila ang sasakyan na kanilang mansyon kung saan dito na sila namumuhay. Ang chassis ng van ang siya nilang silong, ang kalsada ang kusina, at ang kalapit na estero sa pier ang palikuran.

Sila ang makabagong "nomadic" na Pinoy, ang salamin ng kahirapan sa Pilipinas. Si Leonard, pilit na nag-aaral sa ilaw ng poste ng pier. Si Evelyn naman, linggo-linggong dinadala ang anak sa ospital dahil sa pasakit na ubo at sipon. At araw-araw, sumasampa sila sa bakod ng pier makaiwas lang sa mga mata ng tagapagbabantay sa compound.

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