ALMOST HALF A CENTURY SINCE CHE'S MURDER...

Humanity’s Misery for Sale

by: Cheryl L. Daytec

The compradors imprecated your fiery rhetoric

Scorning avarice that empties famine’s belly

Indicting  thirst  that lusts after  plebeian  sweat

Yes, even enslaved blood from  chocked veins

You drew lines of parity - no rich, no poor

Just humanity  eating  from the same plate

To each based on penury; from each, on gift

You preached that one’s  labor must liberate

The precariat  from  helotry to  Wall Street

On that cruel day, one hundred souls vanished

By the ruthless hands of the butler of greed

Korda’s camera arrested your pain and rage

Framed between a silhouette and a palm tree

Now frozen for the world to see… everywhere

To those who heard the clarion call, it is the face

Of  deep love for the masses who are also oneself

The face that speaks indignation  against  injustice

Against oligarchs bestriding  borders as fictions of law  

To reach last frontiers beneath the feet of first peoples

The  gold fever afflicting them does not come down

They eat  what they steal, and get even  hungrier

As their bursting patrician pockets get deeper

To the naïve and nescient, a movie icon’s face

Or, perhaps, a heavy metal band’s sex symbol

In thoughtful contemplation of the next show

To capital, nothing is sacred; even God is cash

Comrade Che, you would not believe me if  I say

Today, I saw your face on T-shirts and bikinis

Offered at  altars of the golden calf on high streets

Of Bangkok, of Manila, of London, of San Salvador

Of New York, of Sidney, of Beijing, of  Pretoria

Your enemy keeps the contours of your face  alive

Flouting the fire and  faith that resided in your soul

A cursed  thief  to sell humanity’s desolate visage

MARITAL INFIDELITY: TO PUNISH OR NOT TO PUNISH (Part I of a Series)

By CHERYL L. DAYTEC

(The contents of this  paper were  presented during a policy session with officers of the Department of Social Welfare and Development facilitated by Atty. Germaine Trittle Leonin. The session was intended to come out with an output for consideration by the Congress of the Philippines. )

A.  Introduction

Marriage is a sacred union which obliges  the parties “to live together, observe mutual love, respect and fidelity, and render mutual help and support.”^[1]

To maintain the  sanctity of marriage, the parties to it should remain faithful to each other. Infidelity is regarded as a perversion of marriage such that in  most if not all countries, it is a ground for divorce. In the Philippines which shares stellar billing with Vatican as the two member-States of the United Nations without a divorce legislation,  it is a ground for legal separation. The most extreme way the can law address  marital infidelity with the end in view of curbing it is by defining it as a criminal conduct.

As they began in the dawn of human history, criminalization projects  dealt with wives more severely than husbands. Adultery is  the common term for marital infidelity regardless of whether it is attributable to the husband or the wife. Gender-based discrimination has always been the order of the day with  harsher sanctions for wives than husbands  who breached  their  vows of fidelity.  This is true  in the Philippines which is the only unfaithfulness-penalizing country where the nomenclature for the crime committed through marital infidelity changes based on the sex of the spouse. The crime has been baptized by the Revised Penal Code adultery if committed by the wife, and concubinage if committed by the husband.

It is not only  in name where the two crimes differ but also in terms of nature, proof required, and penalty.  Adultery^[2] is committed by a married woman and her  paramour aware of her marital  status when they engage in carnal relation, whether discreetly or not. Every single sex act constitutes adultery. Mere proof of sexual intercourse is sufficient for conviction. The penalty ranges from  2 years, 4 months and 1 day to  6 years of imprisonment. On the other hand, concubinage^[3]  is committed by a husband and his  paramour aware of his marital status when they engage in carnal relations  under scandalous  circumstance, or when they cohabit within the conjugal dwelling or any other  place. Obviously, mere proof of sex does not warrant a conviction. The penalty for concubinage ranges from 6 months and 1 day to a maximum of 4 years and 1 day of imprisonment for the husband and destierro for his paramour. The light penalty for concubinage and the stringent  proof requirement for a husband’s conviction speaks the message that the  husband is not responsible for breaching his marital vows because  social expectations  shaped him to behave in that manner.

This brief paper delves into the present proposal to amend the Revised Penal Code of the Philippines to make its provisions on marital infidelity gender-neutral and the alternative call for  decriminalization. The purpose of this paper is to provide discussion points in discourses on policies regarding marital infidelity.

B.  The Justification for Gender-Bias in Infidelity Penal Laws

The criminalization of adultery must have been a progeny of the  privatization of economic goods or property. According to the Supreme Court of the United States in US v. Mata, “The gist of the crime of adultery under the Spanish law, as under the common law in force in England and the United States in the absence of statutory enactment, is the danger of introducing spurious heirs into the family, whereby the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own.”^[4] This was  echoed  in Evans v. Murff^[5] where a United States District Court said, “The application of the term to the act appears to arise from the idea that "criminal intercourse with a married woman ... tended to adulterate the issue  of an innocent husband ... and to expose him to support and provide for another man's [children]."

 This harkens back to the age of feudalism when a woman was regarded as chattel, a baby factory  whose function was to produce the heirs to inherit the fruits of her husband’s labor.  

The argument that anchors the  gender bias in our Revised Penal Code  is a relic of the past and  has lost currency.  Science and technology have made steady progress such that they are now available to easily establish the paternity and filiation of a child.

C.  Decriminalization Movements Around the Globe

In several jurisdictions in the world, marital infidelity has been decriminalized although maintained as a ground for divorce. It  is no longer a crime in any European country.^.[6] Then called criminal conversation, it was decriminalized in England as early as in 1857, and in predominantly Catholic Ireland in 1976.^[7] The latter  was one of the last European countries to  strike adultery from their penal codes.^[8]

Decriminalization movements invoked equality guarantees of domestic and international laws. In 1996, the  Guatemalan Constitutional Court decriminalized marital infidelity or adultery holding that it was repugnant to the constitutionally protected  equality of sexes.^[9] The landmark decision also stressed Guatemala’s need  to honor its human rights treaty obligations  including those under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).^.[10] Turkey’s  adultery law was declared unconstitutional  in 1996 because it  was deemed discriminatory as it differentiated between women and men.^[11] In 2007, the  Ugandan Constitutional Court also hurled into the dustbins of history the State’s adultery law  penalizing women but not their male partners. The latest to take marital infidelity  off the penal statute books   is South Korea. This year, its Constitutional Court struck down its  law against adultery declaring that  it  is a private matter which should not be invaded by the State.^[12]

(TO BE CONTINUED...)

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[1] Art. 68, Family Code of the Philippines.

[2] See, Article 333 of the Revised Penal Code.

[3] See, Article 334 of the Revised Penal Code.

[4] US v. Mata, G.R. No. L-6300,  2  March  1911.

[5] 135 F. Supp. 907, 911 (1955).

[6] Prof. Frances Raday, Chair of the WG on Discrimination against Women, Background Information on the Statement Issued by the Working Goup on Discrimation Against Women. Accessed through:  http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E

[7] Id.

[8]. Id.

[9] See,  “Joint Statement by the United Nations Working Group on discrimination against women in law and in practice” of 18 October 2012, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E.

[10] Id.

[11] BBC News: Europe, Turkey signals U-turn on   adultery, 14 September, 2004. Accessed from:  http://news.bbc.co.uk/2/hi/europe/3654650.stm.

[12] Hail Ji,  South Korea and Adultery, The New York Times, 1 April 2015. Accessed from: http://www.nytimes.com/2015/04/02/opinion/south-koreans-and-adultery.html.

THE BIRTH OF HUMAN RIGHTS

(This was written in December 2009 for the class of Prof. Wiktor Osiatynski.)


What Events in History Triggered the Birth of Human Rights?

By Cheryl L. Daytec

Historically, rights consciousness is a response to reigns of terror or abuse of royal or state prerogatives. It is the aftermath of the realization that there are taboos attached to human dignity that a State must not break. And such realizations are arrived at only after taboos are broken. Human beings’ reactions are constructs of events around them, but the dissenting response is inspired by a proclivity inherent in the nature of human beings- the desire for self-preservation and the avoidance of any stimulus that threatens existence.

For example, human rights activists in despotic regimes are campaigning for the right against extrajudicial and summary killings and enforced disappearances. Their campaigns, which have been articulated on international platforms, are spurred by actual experiences and not by some imagined phenomenon. Before extrajudicial killings became part of the menu of oppression, the right against it was beyond human mental conception. But when political activists started to disappear without a trace or surfaced as decomposing corpses or bones, the rejection of extrajudicial executions and enforced disappearances was spontaneous, brought out by a collective rage coming from within the human nature.

In the ideal society where people live in a state of freedom or security, the concept of right may be a strange phenomenon or outlandish notion. People might not even be aware that they are living in a state of freedom. But when the state of freedom is shaken, people suddenly realize its worth and they also give a name to its antithesis. They may call it despotism, tyranny, oppression or bondage.

The Magna Carta was conceived as a response to over-centralization of powers and decision-making in the monarchy.[1] The King, hoisting the power trident practically controlled the lives, liberties and properties of the nobles whose cup eventually overflowed. And yet even then they did not use the polemics of rights in the Magna Carta that they coerced the King into inking.

The American Declaration of Independence was a defensive response to what was perceived as abuse of power: excessive taxation without representation.[2] Although no bill of rights was incorporated in the original United States Constitution, rights became central to its parlance in succeeding years with a series of amendment to append provisions limiting the power of the State for the protection of life, liberty and property. And even so, what were incorporated as rights were those that the men (for apparently women were excluded from the public sphere by a society that was still unable to conceptualize gender equality) at the helm of the new State considered necessary at that time. There was no right to privacy, for instance. Such right would eventually be invoked, and would be invoked in the judicial sphere, when the State invaded bedrooms of homosexuals[3] and married couples using contraceptives, [4] and telephone booths where people were exchanging private conversations.[5] Truly, experience defines necessity.

The Declaration of the Rights of Man and the Citizen of 1789 came in the wake of opposition to absolutism[6] when the monarchy was consolidating every facet of power unto itself, placing itself some notches above the law. Conscious that absolutism would negate human nature, the enlightened population revolted against the monarchy to install a popular government. Whether indeed a popular government was installed is another story however. The point is the Declaration was generated by opposition to tyranny.

Although the above-mentioned documents did not use the term human rights, they were inspired by the conviction that human beings have inalienable entitlements that the State cannot deny, much less abrogate. In short, rights insinuate themselves into the language of every tongue when States overstep the boundaries of their power and break those taboos that cloister human dignity from assault.

The Universal Declaration of Human Rights is no different. It came as a response to the World War II and this response was international. World War II witnessed the commission of unprecedented crimes against humanity, foremost of which was the Holocaust, that shocked the collective conscience of the globe. Desperate to prevent the duplication of the Holocaust and other crimes against humanity, States came together and haphazardly put together a document whose contents were based on different ideologies, rights conceptions and religious tenets. As Prof. Osiatynski put it, it was a product of compromise that was imposed on, although generally accepted by, the adopting States.[7] This goes to show that the world was desperate, its sense of security rendered fragile by World War II, that compromise was very palatable if only to unite States into adopting a document that would close the gates to another Holocaust or similar war.

How proficient people speak the language of human rights is a product of their experiences. In his paper, Prof.Osiatynski points to the fact that even to legal luminaries of the United States of America, human rights might be a somewhat penumbral concept. Its Constitution has a meager enumeration of rights compared, for example, to the Philippine Constitution whose Bill of Rights is very extensive. Drafted and ratified after the twenty-year Marcos martial law dictatorship, it expanded the Bill of Rights of the Constitution it preceded to impose limitations on State power (such as limiting the imposition of martial law to a maximum of 60 days on grounds of rebellion and invasion, and only when public safety requires it,[8]) to guarantee rights that were sacrificed during the martial rule, such as the rights against being held incommunicado and torture,[9] and to impose conditions for the validity of waivers of certain rights such as the right of the accused to counsel which may be waived in writing and in the presence of a counsel.[10]

The Philippines has a human rights record that is probably one of the most dismal in the world. It has been named the second most dangerous place in the world for journalists. The persecution of political activists, the disappearance and summary executions of over a thousand human rights defenders and journalist have caught the concern of the United Nations.[11] But is there an invocation by any sector of American society of their right against enforced disappearances and summary killings? There is none, because such atrocities are beyond the limits of their experiences. People will only invoke if not discover those natural rights inalienable in their beings when their nature is disrupted.

The world is likewise claiming the right to clean air after experiencing the effects of the ozone layer depletion. It is now considered a basic human right, and several international conventions of States are being held and treaties are being signed in its name. Its invasion of the legal dictionaries as such is a product of human experience, which is part of human history. Oxygen, like freedom, is ignored when abundant. But when the supply is cut or reduced, human beings struggle for it like a pitiful fish out of the water.

It can be said, without a scintilla of doubt, that rights evolution is the history of human beings responding to oppression in their environment. cldy/Dec2009

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[1] Scott Davidson. “Historical Development of Human Rights” in Human Rights. 1993.

[2] Ibid.

[3] Lawrence v. Texas, 539 U.S. 558 (2003)

[4] Griswold v. Connecticut, 381 U.S. 479 (1965)

[5] Katz v. US, 389 U.S. 347 (1967)

[6] Davidson, supra.

[7]Victor Osiatynski. “The Internalization of Human Rights” in Human Rights in the Democracy Movements Twenty Years Ago –Human Rights Today. Hungarian Helsinki Committee: Budapest 2006

[8] Sec. 18, Art VII

[9] Sec. 12(2), Art. III

[10] Sec. 12 (1), Art. III

[11] Philip Alston. Mission to the Philippines: Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Accessible from http://www.karapatan.org/AlstonReport

POEM: TOURING BRATISLAVA

TOURING BRATISLAVA

by Cheryl L. Daytec

I am
without my name…
alone with my shadow
in a crowd of people
also nameless to me

unlike their cameras-
Nikon, Sony, Olympus, Canon-
capturing the charm
of a city, its neoteric dash
merging gracefully

with its antediluvian air:
Baroque palaces and a diner
that gyrates with graceful speed
like the small hand of a clock,
a Gothic castle perched on a hill

overlooking the serene Danube

crossed by a new bridge
with an edifice contrived earlier
than its time
No one perhaps missed Cumil

who mischievously bobbed up
through a manhole cover
after a day’s backbreaking labor
in the underground sewer
his nostrils escaping the noxious blend

of the city’s motley stinks
We all must have met Naci
taking his hat off to everyone
How sagacious of him to elude
the contretemps of the world

by renouncing
what we all struggle to keep:
the mind
And The Paparazzi peeping through
a camera; he has never been

a scandalmonger nor tattler

On the contrary, he is routinely,
mercilessly harassed, his image
stolen by lenses of curious strangers
The city is a riot of cynosures

People talk all at once
Like the chirping of birds,
the sounds mean nothing to me
But the shared gasps of awe
are eloquent speech

Souls connect
breathing in the same magnificence
that tomorrow shall be shared memories
of people who will never know
each other’s names.

chytdaytec/Bratislava/17July2010