Miriam Defensor Santiago | News

ISTANBUL, TURKEY – Sen. Miriam Defensor Santiago, suffering from hypothyroidism, fell on stage, picked herself, and proceeded to deliver a paper after a standing ovation.

Santiago, who examined by doctors after her speech, was declared in stable condition.

Santiago in her speech urged the Philippines and other countries represented in the NGO called Parliamentarians for Global Action (PGA) to become parties to the Rome Statute of the International Criminal Court.

Santiago is the author of a resolution expressing the sense of the Senate that President Aquino should send the Rome Statute to the Senate for ratification.

Santiago spoke before the annual forum of the PGA on Sunday, October 24, at Istanbul, Turkey.

The PGA is an NGO that enjoys general consultative status with the UN Economic and Social Council.

Santiago was invited by the forum organizers at the panel on gender justice and women’s rights.

The panel was organized by the Campaign for the Effectiveness and Universality of the Rome Statute of the International Criminal Court System, which is supported by the European Union.

“Since the Rome Statute promises to end impunity for perpetrators of the most serious crimes of concern to the international community, the treaty covers gender-related atrocities,” Santiago said.

The senator said the most serious crimes of concern consist of: the crime of genocide; crimes against humanity; war crimes; and the crime of aggression.

“Such serious crimes of concern could include gender-related crimes, on the condition that there is a manifest pattern of similar conduct directed against any civilian population,” she said.

The senator also pointed out that under the Rome Statute, the phrase “other inhuman acts” includes the following forms of sexual violence: rape, sexual slavery, enforced prostitution, forced pregnancy, and forced sterilization, or other forms of sexual violence of sufficient gravity.

In addition to the resolution urging ratification of the Rome Statute in the Senate, Santiago has also been the principal author of the law on crimes against international humanitarian law, the Magna Carta of Women, and the pending reproductive health bill.

“In debating the reproductive health bill, the Philippines should use standards based on human rights and values that are designed democratically,” she told the forum.

The PGA forum started on 23 October 2010 with a keynote speech by Turkish Prime Minister Recep Tayyip Erdo?an.

The Philippine delegation included Commission on Higher Education (CHED) Commissioner Dr. Nenalyn P. Defensor and Phillipine Ambassador to Turkey Pedro Chan.

(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:

1. As war crimes, they apply only in armed conflicts.
2. 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”.
3. 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
4. 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.

-End-

FOOTNOTES

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.

REFERENCES

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The International Criminal Court Statute.

Senator Miriam Defensor Santiago, a member of the powerful Commission on Appointments (CA), said that Social Welfare Secretary Dinky Soliman might find it “hard, if not impossible,” to get a CA confirmation, because her budget of P21 billion for the conditional cash transfer (CCT) program is “indefensible.”

“It is unconscionable to make drastic cuts in the budget of the University of the Philippines and other state universities and colleges, which cater to poor students, in order to support a program of dole-outs without the necessary preparation,” Santiago said.

Budget Secretary Florencio Abad proposed massive cuts in the budget of UP and other state universities and colleges (SUCs) for 2011. From P6.9 billion in 2010, Abad decreased UP’s budget to P5.5 billion, or a difference of P1.4 billion. Other SUCs are also threatened with budget cuts. Abad wants them to have a budget of P21.7 billion, down by some P700 million from their budget of P22.4 billion in 2010.

Meanwhile, Soliman wants the CCT program to have a whopping P21 billion allocation in 2011, which is more than a 100% increase from its 2010 budget of P10 billion.

“Cutting the budget of UP and SUCs to expand the CCT program is not the answer,” Santiago fumed.

Santiago said that the CCT program should go hand in hand with improvement of health and welfare services and infrastructure.

“Under the present CCT program, parents must ensure that their children go to school, and undergo regular health check-ups to continue to qualify for the program. But how can they do this if there are not enough schools or barangay health workers to see to their needs?” Santiago asked.

Last year, Santiago and Representative Gloria Macapagal Arroyo met with Brazilian President Luiz Inacio Lula da Silva to discuss the formula for the success of his Bolsa Familia program.

The Bolsa Familia program has been a huge success in Brazil. It is hailed all over the world for reducing poverty in Brazil.

After her meeting with Lula, Santiago filed Senate Bill No. 92, entitled “Pantawid Pamilyang Pilipino Program Act,” which is her own version of the CCT program. It is patterned after Brazil’s Bolsa Familia program.

Santiago’s bill “addresses structural inequities in society and promotes human capital development of the poor, thus breaking the intergenerational cycle of poverty.”

She wants qualified beneficiary families to receive cash grants from the government conditioned upon parents undergoing training on responsible parenthood, having their children undergo regular health check-ups, ensuring their children go to school, and other conditions that promote the family’s health and welfare.

The feisty senator also underscored the need to pass her Senate Bill No. 2378 or the Reproductive Health Bill.

According to her, a maximum of three children only per family can avail of the cash grants under the present CCT program.

“If we are seriously committed to eradicate poverty, then the issue of population cannot be ignored,” Santiago said. “The State must implement programs that teach couples about reproductive health and responsible parenthood.”

The RH bill will ensure that the CCT program will be effectively continued by the government to eradicate poverty. Since the program only provides CCT up to the third child in each family, poor families will have difficulties providing for the other children beyond the third child.

Despite strong opposition from the Catholic Church, Santiago was the lone senator who filed the RH bill in the Senate.

-END-

After the Aquino administration’s first one hundred days in power, Sen. Miriam Defensor Santiago underscored transparency and accountability in the presidency as cornerstones of good governance.

“The Constitution mandates transparency in policy-making and in the operations of the government,” Santiago said. “Armed with information on matters of public concern, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy.”

According to Santiago, the Supreme Court has ruled that: “The right to information goes hand in hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.”

The senator filed Senate Bill No. 1528, also known as the Presidential Records Act, which aims to provide for the management, custody, and access to presidential records consistent with the constitutional mandate of transparency and accountability in government.

Santiago said that her bill does not, however, seek to confirm, limit, or expand the President’s executive privilege.

The bill gives the state the complete ownership, possession, and control of Presidential records, and provides that the President take all steps necessary to assure that all the activities, deliberations, decisions, and policies that reflect the performance of his or her duties are adequately documented.

It also grants the Director of the National Archives the responsibility for the custody, control, and preservation of, and access to, the Presidential records upon the conclusion of a president’s term of office. The Director of the National Archives also has the duty to make the records available to the public as rapidly and completely as possible.

Sen. Miriam Defensor Santiago sent an urgent letter yesterday (October 1) to Bishop Nereo Odchimar, president of the Catholic Bishops Conference of the Philippines (CBCP), pleading that President Aquino, herself, and other sponsors of the RH (reproductive health) bills in Congress should not be excommunicated.

Santiago is the author of Senate Bill No. 2378, “An Act Providing for a National Policy on Reproductive Health and Population and Development.” She said that her bill definitely prohibits abortion, and continues to view it as a crime under the Penal Code.

“I respectfully submit that the penalty of excommunication would be too extreme and disproportionate. It will raise constitutional issues on the church-state relationship,” she said.

The senator invoked the Catholic doctrine of freedom of individual conscience, and the doctrine of liberation theology, which preaches the principle of “preferential option for the poor.”

Santiago, a lawyer, said she was repeatedly taught to implement liberation theology when she took her master’s degree at the Maryhill School of Theology.

The senator said that historically, excommunication, meaning expulsion from the Catholic church and denial of the Eucharist, would place her and other legislators in the same category as those guilty of so-called serious sins, such as apostasy, murder, heresy, and adultery.

“I plead that I am not guilty of mortal sin, which is defined as a fundamental rejection of God. On the contrary, I am a strong advocate of social justice, particularly the anticorruption crusade,” she said.

Santiago, sounding like a theologian, said that at the heart of Jesus’ message of salvation was his proclamation of the coming of the Kingdom of God as a reality open to everyone, including the destitute poor.

“Since God is a loving Father, who rejoices when he regains his lost children in the Kingdom of God, then there should be no excommunication for a senator like me who is merely exercising freedom of individual conscience as preached by Vatican II,” she said.

Santiago said that the 1966 Papal Commission for the Study of Population, the Family, and Birth, was issued by Pope Paul VI, but was met with worldwide criticism, because it adopted the minority report instead of the majority report.

The senator said that anti-RH clerics have two main arguments: that anti-RH is a constant teaching of the Church, and that RH violates natural law.

Refuting the anti-RH arguments, Santiago quoted from the majority report and presented three arguments:

• Church teaching has an evolutionary character, thus allowing a more mature comprehension.
• Natural law theory is obsolete. Church documents give to the couple the authority to intervene in the biological processes, to achieve the purposes of matrimony in actual life.
• The conjugal act is not an isolated reality, but should be viewed in the larger context of human love, family life, education, etc.

Santiago, who is on extended sick leave for hypothyroidism, told the CBCP that if her medical condition improves, she will defend her bill in the Senate plenary debates.

“I shall be guided by the doctrine of Declaration on Religious Freedom issued by Vatican II. It prohibits any attempt to act in a manner contrary to one’s conscience. It also prohibits any restraint on a Catholic to act in accordance with his conscience,” she said.

Santiago ended her letter to Bishop Odchimar with the sentence: “So please do not excommunicate President Aquino, myself, and others similarly situated.”