(Paper delivered at the Parliamentarians for Global Action (PGA) Panel on Gender Justice and Women’s Rights on 24 October 2010 at Istanbul, Turkey)1
Fundamental Equality in Philippine Constitution
What is now known as gender justice is declared as a state policy in the Philippine Constitution. It provides: “The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.”2
Under this constitutional mandate, in recent years the Philippine government has pursued a Gender and Development Program (also known as GAD). Today, GAD follows a mainstreaming strategy that has substantially influenced the dominant liberalist perspectives and approaches on gender justice.
The strategy aims to achieve gender equality, i.e. the situation where women and men have equal status and opportunity to realize their potential to contribute to political, economic, social and cultural development, and to equally benefit from development. The means to this goal following the official line is gender equity, i.e. “giving to those who have less on the basis of needs, and taking steps to compensate for historical and social disadvantages that prevent women and men from otherwise operating on a level playing field.”3
The strategy is operationalized through GAD mainstreaming tools, gender sensitizing, and setting up of structures for implementation and monitoring at the agency and local levels, and provision for annual GAD budgets pegged at a minimum five percent of total annual budgetary allocations of agencies and local governments. These are also adopted in lawmaking where through gender analysis and these methods, laws are sought to be made gender-responsive.
Gender Justice in Philippine Courts
In turn, the Philippine judiciary envisions through its GAD mainstreaming program, a “judicial system that is sensitive and responsive to gender equality and empowerment x x x,” which it considers necessary to provide “effective, efficient and accessible justice to all.” To oversee its program, the Supreme Court created a Committee on Gender Responsiveness in the Judiciary, co-chaired by two of its justices, with members who are mostly justices of appellate and other specialized courts, likely to show its seriousness in pursuing the program.4
“Gender justice” is of more recent coinage. It was not among the GAD concepts earlier popularized. It appeared to have gained more public prominence through the “Gender Justice Awards” that was given in 2004 to judges in trial and sharia’h courts, which had the support of the Supreme Court, although launched by the academe with the Commission on Women. But for a few materials published by national women’s rights organizations on women and justice, gender justice as such has not been written much about by civil society groups.5
Gender justice – from how it has been implicitly or expressly analyzed and addressed in practice – centers on the formal justice system and on “engendering” the system to eliminate its gender bias and to make it more sensitive particularly for women victims-witnesses in Violence Against Women (VAW) cases and women litigants in cases involving family law.6
Studies on gender sensitivity in Philippine courts reveal ways of manifesting gender bias, such as the frequent trivializing of crimes against women, especially domestic violence, which is still widely held as a “private matter.” Female victims and offenders could be subjected to further abuse for their non-conformity with gender norms, or by gender-insensitive court procedures during investigation and trial. They found that gender-based stereotypes and expectations about the profiles and behaviors of victims and perpetrators were reflected and tended to influence court judgments in rape cases in particular.7
“(I)t is disconcerting,” said a former chief justice of the Supreme Court in his introduction in one of these studies, “when the courts that are expected to be the paradigms of equality, themselves display gender insensitivity or gender bias. . . . Such bias is distressful to the public and injurious to justice.” He stressed that equality before the law is a principle that “(c)ourts, as guardians of justice, must at all times adhere to. . . .”8
Gender Justice in the International Criminal Court
One progressive development of law with respect to crimes against humanity consists in specifying what are “other inhuman acts” as the additional constituent offenses under Article 6(c) of the Nuremberg Charter. These are now expressly specified in Article 7(1)(g) of the Rome Statute as including:
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.
However, these forms of sexual violence are to be applied under the condition of widespread or systematic attack as intended. Sporadic incidents or random individual acts may not assume significance in establishing crimes against humanity.
In the definition of war crimes under Article 8(2) of the Rome Statute, categories of sexual violence are included in the catalogues of grave breaches of the four Geneva Conventions of 12 August 1949. “Rape” and “enforced prostitution” are already mentioned in the Fourth Geneva Convention and Additional Protocol I to the Geneva Convention. The new terms introduced are “sexual slavery”, “forced pregnancy” and “enforced sterilization” in Article 8(2) xxii of the Rome Statute. As detailed in the Elements of Crime (under Articles 8(2)(b)(xxii)-1 to Articles 8(2)(b)(xxii)-6), offenses of sexual nature are: (1) rape; (2) sexual slavery; (3) forced prostitution; (4) forced pregnancy; (5) enforced sterilization; and (6) any other form of sexual violence. The gender-related offenses further assume increased significance under the Elements of Crime. Thus, they make designations by way of projecting the sexual nature of crimes against humanity and war crimes, where applicable. In a footnote to this statement, I have listed the twelve such sexually designated crimes.9
In rape, the concept of “invasion” of the body of the victim is intended to be broad enough to be gender-neutral. Sexual violence may not be limited to women.
However, the application of these offenses is limited by the following conditions:
- As war crimes, they apply only in armed conflicts.
- They come within the jurisdiction of the ICC “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”.
- Owing to the primacy of national jurisdiction, the ICC may not assume jurisdiction over cases involving offenses of sexual nature. Effective jurisdiction over such offenses pertains to the national courts.10
- Cases involving such offenses of sexual nature may not be determined by the ICC as inadmissible because they are “not of sufficient gravity to justify further action” by the ICC and having regard to its jurisdiction over persons for the “most serious crimes of international concern”.11
Lack of expertise and sensitivity are often stumbling blocks to effective prosecution in crimes involving sexual violence and gender related crimes. Strategies provided in the Statute to address this gap include: the requirement of “fair representation” of female and male judges. Legal expertise specially on sexual violence, are considered in selecting judges, and personnel for the Office of the Prosecutor and other organs of the Court. Additionally the Prosecutor is required to appoint advisers with legal expertise on specific issues, including gender and sexual violence. The Court as well is required to apply and interpret laws without adverse distinction on specified grounds, including gender.
The Court is relatively a young institution and needs some slack to realize its potentials to promote gender justice.
As an avid advocate for the Philippines to be a party to the Rome Statute, I have filed resolutions in the current and past Congresses urging the Executive to submit the ICC Statute to the Senate for its concurrence, to complete the constitutional process for ratification. I understand there are expectations that ratification may happen this time, given the current political climate. In any case, salient substantive provisions of the Statute on crimes, criminal law principles, and protection and participation of victims and witnesses now form part of the domestic legal system. This was made possible with the enactment in late 2009 of a law on crimes against international humanitarian law, genocide, and other crimes against humanity, the Senate version of which I authored.
Gender Justice in Domestic Laws
Like the passage of this law, our Congress through its enactments is instrumental in aligning the domestic legal framework with progressive developments in the international legal field. Often enough our initiatives related to gender justice are propelled by the advocacy of, and they gain force from, the support of feminist, women’s and other human rights groups whose “ears” are closer to the ground on the realities of women and disadvantaged groups.
Thus, Congress over the years has passed laws to curb, prosecute, and deal with the consequences of crimes like violence against women and their children within intimate relationships, trafficking in persons, rape, sexual harassment, and so on. Aspects of substance, procedures and structure – some novel in Philippine jurisdiction – are integrated in these laws.
By way of illustration, the Anti-Violence against Women and their Children Act covers diverse forms of violence and has comprehensive provisions pertinent to the prosecution of the crime, and evidentiary and procedural rules, as well as protection of victims-survivors. Challenging norms on the boundaries of the private realm and heterosexuality of personal relationships, this law recognizes intimacy – whether in the past or existing – as a defining element for protecting those in dating or sexual relationships among others, whether these are heterosexual or same-sex partnerships.
From our experience, lawmaking that stretches and reconstructs traditionally dominant social arrangements and norms, like this law, can be contentious and fractious.
I join the theorists who observe that “any definition of gender justice betrays a political position, a set of convictions about what is ‘right’ and ‘good’ in human relationships, and how these desirable outcomes may be achieved.”12 Defining elements of gender justice such as liberty, choice, or autonomy through lawmaking tends to make starker contrasts in politics and perspectives and competing interests and aspirations. These oftentimes secure legitimacy from religious, cultural, political or other moorings.
Dynamics of social negotiations are likely to be intense and complex when they concern matters related to sexuality and reproduction. To quote from the Yogyakarta Principles:13
Many States and societies impose gender and sexual orientation norms on individuals through custom, law and violence and seek to control how they experience personal relationships and how they identify themselves. The policing of sexuality remains a major force behind continuing gender-based violence and gender inequality.
The truth of this passage rings in the face of the heated debates in the Philippines on the reproductive health bill that counterparts in the House of Representatives and I in the Senate have filed in this current Congress. Philippine lawmakers in this instance are challenged to mediate diverse and contentious positions of the dominant religious and other social institutions and groups whose power and status to influence or threaten vastly differ. We are challenged to assert that human rights-based standards and democratically defined values should define eventually the outcomes of social negotiations on this bill.
Deconstruction of “Sex” and “Gender”
The continuing relevance of “gender” in “gender justice” may need examination soon, given the medical and legal advances, and advocacies for the recognition and protection of the rights of marginalized minorities.14
The question was particularly highlighted when the Philippine Supreme Court in 2007 denied the petition of a transsexual to change the entries in the civil registry on his gender from “male” to “female” and of his male name to that of his chosen female name. The Court ruled that without a law recognizing sex reassignment, the “determination of a person’s sex at the time of birth, if not attended by error, is immutable.” It reasoned further that, “(w)hile petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. There is no special law in the country governing sex reassignment and its effect.” 15
Within state and non-state centered human rights arenas, one sees deconstruction of “sex” and “gender,” and growing acceptance of concepts of “sexual orientation” and “gender identities.” Particularly significant of these developments was the adoption of the Yogyakarta Principles (by judges, academics, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, NGOs, and other human rights experts from different regions and backgrounds), which affirm the application of international human rights law in relation to sexual orientation and gender identity. The Principles define these terms as follows:
Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
Whether or not the laws we enact are framed in terms of gender justice, social justice or human rights, lawmakers in my country are challenged:
- To recognize and fill lacunae in law that deny disadvantaged groups like sexual minorities the protection and promotion of rights due to them; and,
- To see beyond gender, and recognize that human rights concerns of marginalized and disadvantaged populations are interrelated; their inequalities intersect and are compounding because of the interplay of gender, class, education, ethnicity, nationality, ability, and other factors, in the specific economic and political contexts of the country at present.
1 Doctor of the Science of Law, University of Michigan; 1992 Philippine presidential candidate.
2 Philippine Consttution, Article 2, “Declaration of Policies and State Policies,” Section 14.
3 Philippine Commission on Women website
4 Conda, E. 2008
5 Womenlead; PCICC
6 Guanzon et al; Feliciano, et al.
7 Feliciano, et al. 2002
8 Guanzon, et al.
9 (1) Crime against humanity of rape. (Article 7(1)(g)-1);
(2) Crime against humanity of sexual slavery. (Art. 7(1)(g)-2);
(3) Crime against humanity of enforced prostitution. (Art. 7(1)(g)-3);
(4) Crime against humanity of forced pregnancy. (Art. 7(1)(g)-4);
(5) Crime against humanity of enforced sterilization. (Art. 7(1)(g)-5);
(6) Crime against humanity of sexual violence. (Art. 7(1)(g)-6).
(7) War crime of rape. (Art. 8(2)(b)(xxii)-1);
(8) War crime of sexual slavery. (Art. 8(2)(b)(xxii-2);
(9) War crime of enforced prostitution. (Art. 8(2)(b)(xxii-3);
(10) War crime of forced pregnancy. (Art. 8(2)(b)(xxii)-4);
(11) War crime of enforced sterilization. (Art. 8(2)(b)(xxii)-5);
(12) War crime of sexual violence. (Art. 8(2)(b)(xxii)-6);
10 Rome Statute, Arts. 17 and 19
11 Rome Statute, Article 17(1)(d)
12 Goetz, A.M.
13 Yogyakarta Principles
14 Conda, E. 2008
15 Silverio v. Rep. of the Phil., G.R. No. 174689, promulgated 22 October 2007.
Alternative Law Groups, Inc. (ALG) From the Grassroots: the Justice Reform Agenda of the Poor and Marginalized. February 2004. Quezon City.
Alternative Law Groups, Inc. (ALG). Tuning in to Women’s Voices on Justice. (An Initial Review of Literature on Philippine Publications on Women and Justice). 2005, Quezon City.
Alternative Law Groups, Inc. (ALG) and Social Weather Stations. Research on the Poor Accessing Justice and the ALGs as Justice Reform Advocate. Inroads No. 4, 2008 ALG Study Series. 2008
Womenlead. Women in Prison gender issues in criminal justice. WOMENLEAD. Journal Vol. 2. Issue 1. 2005.
Feliciano, M. et al. Gender Sensitivity in the Family Courts, UP Center for Women’s Studies. 2005.
Feliciano, M. et al. Gender Sensitivity in the Court System.Quezon City. UP Center for Women’s Studies and Ford Foundation 2002.
Guanzon, R.et al. Engendering the Philippine Judiciary.UP Center for Women’s Studies Foundation, Inc. 2006.
Santos, A. “Quo Vadis Gender Justice: An Overview of the Filipino Women’s Struggle in Philippine Coalition for the International Criminal Court. Women Strategizing Justice. Women’s Resource Book on Gender Justice. 2008.
Conda, E. Traversing Boundaries and the No-Mans Land: on Mediation, gender, rights and justice in A Sourcebook on Alternatives to Formal Dsipute Resolution mechanisms. National Judicial Institute et al. 2008.
Civil Society Initiatives for International Humanitarian Law (CSI-IHL). RA. No. 9851 A breakthrough law for International Humanitarian Law enforcement in the Philippines.
Silverio v. Rep. of the Phils. G.R. No. 174689, October 22, 2007
Conda, E. et al., From De Jure to De Facto Rights for Women: A Framework for Strengthening Implementation of the CEDAW in the Philippines, Women and Gender Institute, Miriam College, Quezon City, Nov. 2005, unpublished.
Philippine Commission on Women website at http://www.ncrfw.gov.ph/
Charlesworth, H and Chinkin, Christine. The boundaries of international law. A feminist analysis. Manchester University.2000
Conda, E. and Jalal, Feminist legal theory and practice (FLTP) for Asia and the Pacific Training Resource Manual. APWLD. 2008
Evan, W. Social Structure and Law Theoretical and Empirical Perspectives. Sage Publications 1990.
Kirp, D. et al. Gender Justice. University of Chicago. 1986
Copelon, R. Surfacing Gender: Re-engraving Crimes against Women in Humanitarian Law in Hastings Women’s Law Journal
Goetz, A.M. Gender Justice, Citizenship and Entitlements Core Concepts, Central Debates and New Directions for Research In Gender Justice, Citizenship and Development Maitrayee Mukhopadhyay and Navsharan Singh (eds.). Zubaan, an imprint of Kali for Women and International Development Research Centre. 2007.
Askin, K. Prosecuting Wartime Rape and Other Gender-related Crimes under International Law: Extraordinary Advances, Enduring Obstacles. In Berkeley Journal of International Law; Kelly D. Askin. 2003
The Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity. Available at www.yogyakartaprinciples.org/
Background on the Yogyakarta Principles. Available at www.yogyakartaprinciples.org/
The International Criminal Court Statute.