NOT AGAIN. NEVER AGAIN.

Kicker Daily news reported that Imelda Marcos says she wants her son, Bongbong, to serve the Philippines "like his father."

Omigosh, omigosh. Not again. Never again.

Who wants a return to the bleak winter of human rights in the Philippines that covered two decades?

There will be blood on the streets. The only sound will be the thud of bodies falling after a long day protesting social injustice. And before the blood of the fallen will dry, more fresh blood will flow like a river. Silence will become the norm.

There will be massive hunger despite the opulence of the very few. Bongbong will be fishing into the pocket of the national treasury as if it is the pocket of his trousers.

Everyday, everywhere in the Philippines, everyone will be experiencing the terrors the indigenous peoples in Mindanao and elsewhere are facing right now.

No to Bongbong Marcos!

Imelda says she wants Bongbong to serve PH “like his father”

Posted on October 13, 2015 by Marcus V

Photo Credit: SCMP

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• Former first lady says she believes her son can reach the top someday
• Her son learned a lot from his father, she says
• Bongbong earlier said his mother was disappointed in his decision to run only for VP

MANILA, Philippines – Call it a mother’s intuition, but former First Lady Imelda Marcos believes her son Senator Ferdinand “Bongbong” Marcos Jr. has what it takes to become president someday.

“Of course, we can only pray that he makes it so that he will have the privilege to serve the Filipino like his father,” she told GMA News.

She was seen accompanying her son to file his certificate of candidacy on Tuesday but did not go inside the COMELEC building due to the crowd.

Imelda earlier defended her husband’s regime as one of the country’s best eras ever and said her son learned a lot from his parents.

“I want him to to be able to serve the country and benefit the country,” she said. “I think he has the potential there and after all he was 21 years in Malacañang and he saw how his father and mother were dedicated to the Philippines and to the Filipino people, and that was the best time we had in our history.”

The senator himself said his mother was disappointed by his decision to run only for vice president.

“She’s wanted me to become president since I was three years old. Imagine how disappointed she was,” he said.

Nevertheless, the son and namesake of the late dictator also vowed to return the country to its former glory.

In filing his certificate of candidacy on Tuesday, the senator also noted how he was the seventh person to have filed his COC.

“I was told that when I filed my COC that I am the seventh person to file, so the lucky number 7’s still there for us Marcoses,” he said. “I think it’s a good omen.”

The late strongman believed in numerology and frequently pointed to the number 7 as his lucky number.

WHY RODY DUTERTE?

...This man, despite his dirty mouth, draws voters and indigenous activists like me. Along with his new "loveteam partner" Miriam Santiago, he is the first among the presidential candidates to notice and denounce the latest atrocity committed against the Lumad: the burning of their evacuation center. He has always championed the rights of the Lumad and has always matched rhetoric with action.

He is a self-confessed killer of people he self-righteously and arbitrarily judged as rapists, murderers, kidnappers, or drug lords, but he has not killed a single activist in the struggle to dismantle structural/national oppression or a single indigenous person protecting ancestral domains. In fact, he has been providing shelter to internally displaced IPs. The other candidates consider IPs invisible - we haven't heard them say anything about the issue even if it is burning right before their very eyes. Two candidates are said to be using the private planes of people connected to abusive mining in IP territory. Any candidate who supports corporate mining on indigenous land is automatically off my list.

So do not judge me, a human rights lawyer and activist before anything else, for gravitating towards this foul-mouthed, dirty old man named Rody Duterte even if my husband, Leandro B. Yañgot, is committed to campaigning for Mar Roxas. With the exception of Grace Poe and Santiago, your candidates have meaner, harsher, and dirtier human rights records. Human rights violations are not just about killing without due process. They are also about neglecting to do your job well or looking at your job as a way to upgrade your burning presidential ambition, resulting in the death of thousands of people in a storm. They are about keeping quiet as a Cabinet official, even if you could have spoken out while DSWD was hoarding and later burying food worth millions of pesos meant for disaster victims. They are about stealing from government coffers millions or billions of pesos that could have gone to alleviating the economic tribulation of the poor. Poverty, hunger, and lack of security in times of disaster are human rights violations, too, as serious as death. At least, death ends suffering but how about those who remain alive? 

Friends, if your main criterion in choosing a candidate is his/her position on who should or should not get buried in the Libingan ng mga Bayani, that to me is not enough. Besides, the other candidates may be anti-Marcos and spewing anti-Marcos rhetroic but where were they and their families during the anti-Marcos days? When they got to the helm of power, what did they do to reverse the after-effects of the Marcos presidency? One pandered quite solicitously to foreign interests, and indefatigably worked for the same Marcosian solutions to economic ills - the solutions friendly to hacienderos, abusive domestic and foreign corporations, the elite. One claims to be indigenous but what has he done for indigenous peoples? He ruled a city that benefits immensely from the oppression by corporations of indigenous communities. The big corporations wantonly plunder ancestral domains and pay taxes as residents of his city. His city gets a large share from the Internal Revenue Allotment. His city is rich because of indigenous sacrifices and unabated suffering, among others. The resource-rich LGUs where the IPs are remain to be this country's poorest and they deal with the environmental degradation wrought by corporate pillage. Very Marcosian situation. You are anti-Marcos? How can you support these candidates who continue the same anti-people policies of Marcos?

I am indigenous and I look at the world with indigenous eyes. I am engaged in development work and work with communities. I hold office in my shoes and where they take me, and not in some posh four-cornered room. I look at the world from that vantage. For that matter, I look at the elections with the same eyes. I will vote for a candidate who has been kind to the most oppressed people in this country, who are fighting to protect the country's last living lung (even if he is condescending at times. I have not forgotten that he said, "Let an Ifugao or Badjao run, but please... not an American." I wish I could force him to gargle with the strongest laundry soap.).

And he is not "epal". In fact, he seems to be destroying his own campaign. He exaggerates his flaws and does not talk about the Samaritan acts he did for people in distress. But actions speak louder than words.

So, please stop asking why I, a human rights lawyer, am supporting Duterte who supports a Marcos burial in Libingan  ng mga Bayani and I will stop asking why you are supporting one I perceive to be anti-people. :-) With the exception of Grace Poe and Miriam Santiago, the candidates are all killers, all human rights violators, all evil.

I chose the least evil.

LIMITS TO EXPRESSION UNDER STRASBOURG JURISPRUDENCE (Last of Two Parts)

by: CHERYL L. DAYTEC-YANGOT

There is no democracy without public discourse and no public discourse without freedom of speech, freedom of the media, and freedom of information.[1]

Freedom of  expression comes with duties and responsibilities owed  to truth, to independence, to impartiality, to objectivity, to democracy, and to individual privacy, among others.

Fidelity to truth comes with what Strasbourg calls “the duty  to impart information and ideas on matters of public concern.”[2]  Media should be impartial. In order for them to  generate a democratic culture,  they   should  be neutral observers, “unengaged with events but faithfully recording them.”[3]

The duty to be objective calls on media to express value-judgments- even polemical ones-  standing on facts.[4]  They are   responsible in ensuring  veracity of stories, although “exaggeration or even a degree of provocation is protected.[5] In Bladet Tromso v. Norway,[6]  Strasbourg ruled that it is sufficient  that journalists  “rely on the contents of official reports without having to undertake independent research.”  The minority  however propounded  that to enjoy protection under Article 10 of the European Convention on Human Rights, they  must investigate. In  one case, Strasbourg said that media must ensure  accuracy of historical facts since unlike temporal news, there is no urgency in publishing them, [7] in effect elevating  the standard  for responsibility  to scrutinize veracity compared to the standard when they report news, a “perishable commodity.[8]  In another,[9]  it  implied that media have the duty for balanced reportage and to  respect the other side’s  right-of-reply.

Fidelity to democracy demands public watchdogs[10]  to propagate information on matters of public interest or concern[11]  and stimulate  public discussion or spur public debate.[12]  The configuration of people’s political consciousness depends on data received. Democracy is not  just a government where people elect their leaders. It is one where people have adequate information upon which to anchor their political decisions including who to vote for. Knowledge is power. Thus, the  Camden  Principles  declare that  “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[13]

 Media play a crucial role not only as purveyors of raw facts  but also of informed opinions as suggested in Lingens.[14] By  crystallizing  issues in sound value-judgments, they  aid  the  public to  adopt positions on social issues, enabling them to be part of public discourse, inspiring  dissent to unbridled use of State power, effectively enhancing democracy. Thus, media should create   forums for  public debate.[15]                                                                                                                                                                                          

The minority in Bladet Tromso asserted a negative media responsibility: they should not sacrifice facts “for the commercial gratification of an immediate scoop.” It said that newspapers have the “ordinary obligation to verify factual statements that were defamatory of private individuals,” implying the duty to protect individual privacy.  But the majority judgment, while prizing respect for the rights and reputation of others and  protection of confidential information, stressed that media’s duty “is nevertheless to impart- in a manner consistent with its obligations and responsibilities- information and ideas on all matters of public interest” because “the public also has a  right to receive them.”[16] This suggests that privacy yields to public interest and it is media’s duty to promote it.

Strasbourg stressed that press freedom “affords the public one of the best means of discovering and forming an opinion of ideas and political leaders.”[17]  But “the safeguard…to journalists in relation to reporting on issues of general interest is  subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”[18]

Media must ensure no  confidential  information  leak[19] or  confidential source  disclosures. Source protection  is a  free press premise. Absent such, sources may withhold information germane to public interest for fear of persecution, essentially impeding the public’s right to information.  Thus,  to compel journalists to reveal sources infringed their  right.[20] Essentially, this was reiterated in Sanoma Uitgevers BV v The Netherlands[21] but  Strasbourg modified the duty  when it  held that  forcing journalists who exposed illegal car races and edited photographs for source  anonymity to produce the CD-ROM  storing the original photographs was above-board because it was intended to identify a vehicle used in a grave felony irrelevant to the illegal race. It said that States may balance conflicting interests served by crime prosecution against protection of sources.

As a consciousness purveyor, media have pervasive public influence. Thus it is incumbent upon them not to use freedom of expression without self-restraint to advocate racism,[22]  violence,[23] totalitarianism[24]  or  corruption of the young’s morals.[25]

Indubitably, freedom of expression is not a license. It is a right that comes with a twin: responsibility.

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[1] Dieter Grimm, “Freedom of Speech in a Globalized World”  in EXTREME SPEECH AND DEMOCRACY, (Ivan Hare and James Weinstein, eds.,  2009).

[2]Observer   v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and  Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239); Castels v Spain, 4 EHRR 445 (1992);  Lingens v. Austria,  8  EHRR 407 (1988).

[3] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[4] Oberschlick v. Austria, 19 EHHR 839 (No. 2), 1997; De Haes v. Belgium,  25 EHRR 11 (1997).

[5] Prager v. Austria (26 April  1995).

[6] Application No. 21980/93 (20 May 1999).

[7] Times Newspapers  (Nos. 1 and 2) v UK , Application No. 3002/03 and 23676/03, (10 March 2009).

[8] Id.

[9]  Tidende v. Norway, 2000 EHRR  305 (2 May 2000).  

[10] Traditionally, mass media were regarded as the public watchdogs. But contemporary Strasbourg jurisprudence says that even organizations outside of the mainstream media, like civil society organizations and non-government organizations are also public watchdogs. See  Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[11] Goodwin v. United Kingdom, Application No.  16/1994/463/544 (27 March 1996).

[12] Steel and Morris v UK , Application No. 68416/01 (15 February 2005).

[13] Introductory Statement, The Camden Principles on Freedom of Expression and Equality.

[14] Lingens v. Austria,  8  EHRR 407 (1988).

[15] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).

[16] Id.

[17] Lingens v. Austria,   8  EHRR 407 (1988).

[18] Bergens Tidende et alis v  Norway,  2000 EHRR  305 (2 May 2000) ;  Stoll v. Switzerland (2007) ECHR 69698/01;  Fressoz and Roire v. France (GC), Application No. 29183/95 (21 January 1999).

[18] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995).

[19] See Article 10, European Convention on Human Rights. 

[20] Goodwin v. UK, Application No.  16/1994/463/544 (27 March 1996); reiterated in Szabadsagjogokert v. Hungary,  Application no. 37374/05 (14 April 2009).

[21] Application No. 38224/03  (31 March 2009)

[22] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995). In this case, however, the court found a violation in the imposition of penalties for the broadcast of racist views because the broadcast was only for  exposition, and not given as views of the journalist or broadcaster.

[23] Leroy v. France, Application No. 36109/03 (2 October 2008)

[24] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87 (12 October 1989)

[25] Handyside v.   UK, Application No. 5493/72  (7 December 1976).

MARITAL INFIDELITY: TO PUNISH OR NOT TO PUNISH (Part II of two parts)

 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. )

D. Practice of Other States

Among Western countries, it is only in the United States where marital infidelity is a crime. In 21 States, it is either a misdemeanor, a crime punishable with incarceration for one year or less,  or a felony which is punished more than a misdemeanor.

Most of the States that still maintain penal laws against marital infidelity   are those where the dominant religion is Islam, and Sub-Saharan African Christian-majority countries. Among non-Muslim countries in Asia, it is only  Taiwan and the Philippines which define marital infidelity as a crime. There is of course the peculiar case of India where adultery may be committed only by a man who engages in sex with the wife of another man who did not consent to the act.^[1] Although facially, it is discriminatory against men, it is also substantially degrading to women as it treats them as their respective husbands’  property. A husband can consent to his wife’s adultery and she will not incur any criminal liability.

There is now a pending bill in the House of Representatives authored by Gabriela party-list representatives Luz Ilagan and Emmi de Jesus which seeks to amend the Revised Penal Code by erasing  the distinctions between concubinage and adultery and  making marital infidelity a crime of  husbands and wives. What is sauce for the gander must be sauce for the goose.

On the other hand, the UN Working Group on Discrimination against women in law and in practice has issued a call to Governments to repeal laws criminalizing adultery.^[2]

A.  Arguments For The Enactment of a Gender-Neutral Law Penalizing Marital Infidelity

1.    The current criminal laws in the Philippines on marital infidelity reinforce gender inequality and promote misogyny. Proof of sexual intercourse is enough in adultery, but in concubinage, the prosecution must prove that the sexual intercourse was under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or cohabited with her in any other place. The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only destierro, while the penalty for the “other man” in adultery is the same as that for the guilty wife. To erase this discrimination, the law must be amended to treat men and women equally.

2.    The sex-based discrimination in the  treatment of marital infidelity under the Revised Penal Code violates the equal protection clause of the 1987 Philippine Constitution (Sec. 1, Art. III) taken together with Sec. 2,  Art. II which  provides that “(t)he State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.”

3.    The amendment of the Revised Penal Code to incorporate a gender-neutral provision penalizing marital infidelity is mandated by Sec. 12 of RA 9710 or the Magna Carta of Women (MCW) which directs  the amendment or repeal of laws that are discriminatory to women.

4.    The Philippines ratified the Convention on all Forms of Discrimination Against Women which is therefore part of its domestic law under the incorporation doctrine^[3] in the Constitution. Article 2(g) of CEDAW requires the State to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against women. Article 15 of CEDAW provides:  “States parties shall accord to women equality with men before the law.” Article 16 provides that “States parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women…(t)he same rights and responsibilities during marriage and at its dissolution.”

5.    The Philippines also ratified the International Covenant on Civil and Political Rights and is part of its domestic law. It is in keeping with the ICCPR to adopt a gender-neutral criminal law on marital infidelity. Article 23 of the ICCPR provides: “States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

6.    The Family Code of the Philippines (EO 209, as amended) provides  marital infidelity as a ground for legal separation. It makes no distinction whether the one who breached the marital trust is the husband or the wife. To harmonize the Family Code with the Revised Penal Code, Arts. 333 and 334 of the latter must be accordingly amended.

7.    The discrepancy  between the treatment of infidelity by the wife and  the infidelity by the husband  has been legally and judicially justified in US v. Mata^[4] as necessary to prevent “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.”^[5] With the advancement and progress in science and technology which has made DNA tests available, it is now easy to establish the paternity of a child a woman may give birth to. The philosophical underpinning of or spirit behind the discrimination has disappeared. There is no reason to maintain it in law. When the spirit disappears, so must the letter of the law.

B.    Arguments Against The Enactment of a Gender Neutral Infidelity Penal Law

According to the UN Working Group on women, “Criminal law definitions of adultery may be ostensibly gender neutral and prohibit adultery by both men and women. However, closer analysis reveals that the criminalization of adultery is both in concept and practice overwhelmingly directed against women.”^[6]  In societies like the Philippines where patriarchy rules  and where social norms still regard the husband’s infidelity as an affirmation of his macho image and the wife’s infidelity as an affirmation of her image as a whore or vampire (if she is not a virgin or a Madonna), a facially gender-neutral law will be enforced in a discriminatory way.

C.   Arguments for the  Decriminalization

of Adultery and Concubinage

^1.       The current laws on marital infidelity reinforce gender inequality and misogyny which expose women to more vulnerabilities and risks. According to the United Nations Working Group on discrimination against women in law and in practice, “maintaining adultery as a criminal offense, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality.”^[7]  This is because as earlier pointed out, the enforcement a law, which is gender-neutral in literal expression, in a society where women are still regarded inferior will be discriminatory.  By decriminalizing adultery, the State eliminates such risks and vulnerabilities to further discrimination.

2.    The criminalization of infidelity is an invitation of too much government interference into the personal lives of people including on matters that should be dealt with privately .It  obviously represents State overreach into people’s private lives. It  is indubitably  a violation of  the right to privacy which is protected by the Constitution.

3.    The Philippines ratified the International Covenant on Civil and Political Rights which is therefore part of its domestic law under the incorporation doctrine^[8] in the Constitution. Under Art. 17 of the ICCPR, it is provided: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation…Everyone has the right to the protection of the law against such interference or attacks.” International human rights jurisprudence established that criminalization of sexual relations between consenting adults is a violation of their right to privacy and infringement of article 17 of the International Covenant on Civil and Political Rights.^[9] States parties to the Covenant are obliged to ensure that domestic norms take account of developments in international law and incorporate interpretations of the decisions of international courts and international and regional human rights mechanisms, including the treaty bodies and special procedures.^[10]

4.    Adultery/concubinage involves a breach of trust and commitment of fidelity “until death do us part”  and is therefore a breach of   a marriage contract; thus, liability for dishonoring the contract should  be civil in form and substance  and not criminal.^[11] Decriminalization respects the free will and autonomy of the spouses to determine whether to remain  married. Such decision should not be imposed by the State through a penal law.  Maintaining trust and fidelity in a marriage should not be enforced through the threat of criminal prosecution and punishment. It should be the product of negotiation by the spouses since after all one of the essential requisites of marriage is consent freely given by them.^.[12]

5.    The penalization of marital infidelity is an undue exercise of police power. While through police power, the State may regulate liberties, the purpose of such regulation must be the common good. What common good is realized when a philandering wife or husband  is put to jail?

6.    Decriminalization does not necessarily leave the aggrieved spouse without recourse. S/he can file an action for legal separation. If the infidelity is  serial and inveterate and of such nature that it manifests psychological incapacity, the aggrieved spouse may go to court to file an action for declaration of nullity of marriage. S/he may also file an action for civil damages. In case the aggrieved is a wife, she may file a criminal action and/or a civil case based on Republic 9262 or the Anti-Violence Against Women and their Children Act of 2004.

7.    The criminalization of marital infidelity has not been shown to contribute to the preservation  of  marriage and  has not been demonstrated  to deter infidelity. For instance, despite penalizing marital infidelity from 1953 until very recently to protect women from divorce to which they were vulnerable owing to their lower status than men, South Korea witnessed its  divorce rate shoot up in the last 15 years and is now among the highest in Asia.^[13] Note that non-Muslim Asian countries, with the exception of Taiwan and the Philippines, do not penalize marital infidelity.  How come South Korea has raced ahead of them in divorce rates?

8.    Gabriela Women's Party-List’s   records reveal that criminal complaints for adultery and concubinage are filed in practice as "bargaining suits" or leverage to make the other spouse cooperate in the action to dissolve the marriage or to capitulate to demands for support.^[14] These complaints are not brought to their logical conclusion since, “while pursued in the initial stages, (they) are often withdrawn or dismissed.”^[15] According to statistics, married people resort to court action more to dissolve their marital unions than to seek penal  vindication of adultery or concubinage.^[16] If this is the case, then the law criminalizing adultery and concubinage which may be initiated at the instance of the offended party, does not serve its purpose or has been rendered functus officio. So why maintain it in the statute books?

^9.       States’ practice indicates the abandonment of infidelity as a criminal offense on the belief that it is their obligation to do it under international law or in honor of individual privacy rights. The recognition of marital infidelity as a non-criminal offense by many members of the international community  might have ripened into customary international law. All the Western countries have decriminalized adultery, with the exception of the United States where adultery is still penalized in 21 States^.[17] In Asia, only the Philippines and Taiwan among non-Muslim countries still penalize marital infidelity^.[18] Those decriminalizing it are justifying their actions invoking treaty obligations or constitutional limitations.

10. Many of the arguments against decriminalization are based on religious dogmas which the State, as  a secular entity, need not enforce.

D.   Arguments Against Decriminalization

^1.       Decriminalization destroys the nature of ”marriage (a)s a special contract and a three-party agreement that involves the husband, the wife and the State.” This means “that although the personal rights of the spouses are involved in cases of infidelity, the State also considers itself as an offended party, not because of a breach of public order but because of the violation of marital vows which the State itself protects.“^[19]

^2.       “Striking them (adultery and concubinage) off the catalogue of crimes will send the message to Philippine society that now, sexual liaisons  and dalliances with persons other than with one’s spouse are now allowed? How can such a legislative proposal ‘protect and strengthen the family as a basic social institution?’^[20]

3.    “Under our VAWC Law--passed as domestic legislation in response to international covenants, the CEDAW as well as the CRC among them--we consider violence not only physical but psychological cruelty. What can be more cruel for a spouse than to have the other sexually engaged with another and entering into intimate liaisons with another? How can it serve legal coherence for us to de-criminalize under one title what we consider criminal cruelty and violence under another?”^[21]

4.     Decriminalization is a public health issue. Without a law criminalizing marital infidelity, married people may be wont to be unfaithful and may acquire Sexually Transmitted Diseases (STDs).  Since most married couples do not routinely use barrier contraceptives,  innocent spouses may be infected with STD.

E.     Policy Proposals

1.    Adultery and concubinage should be decriminalized for reasons explained in the arguments in its favor. Although there are arguments against it, these are parried by the arguments supporting it. Other arguments border on the absurd and stand on their own demerit.

2.    However, as a companion to the repeal of the marital infidelity provisions of the Revised Penal Code, there is a need to  enact a divorce law that paves  a way out for people trapped in marriages debased or perverted by marital infidelity. The two remedies —annulment and declaration of nullity- available to people seeking marital dissolution  address only issues of validity and nullity of the marriage. Infidelity is not a validity issue. While it is a ground for legal separation, this is an insufficient remedy for the aggrieved spouse as it does not sever the marital ties.  Infidelity is an indication that a foundation of marriage which is trust or fidelity is disappearing or is no longer present. The marriage may no longer exist except in name only. Divorce must be made available to dissolve the marriage.

3.    In order to settle concerns that the decriminalization of adultery and concubinage will encourage or abet licentious sexual lifestyle on the part of married people, marital infidelity should be treated as a matrimonial offense and be meted out civil penalties in proceedings for legal separation or divorce. Thus,   in the determination of custody of children, division of properties, or support in the event of legal separation or divorce, a spouse’s infidelity should be factored in. As marital infidelity will still produce adverse legal consequences short of criminal punishment, spouses may be deterred from committing it.

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[1] Gangothri.org, Adultery: Indian Legal Perspective, 10 April 2013. Retrieved from http://www.gangothri.org/?q=node/6; See also, Sec. 497 of the Indian Penal Code. (“Whoever  has sexual intercourse with a person who is and  whom he  knows or  has reason  to believe  to be  the wife  of another man,  without the  consent or  connivance of  that  man,  such sexual intercourse  not amounting to the offence of rape, is guilty of the offence  of adultery,  and shall  be punished with imprisonment of either description  for a term which may extend to five years, or with fine, or  with both.  In such case the wife shall not be punishable as an abettor.”)

[2] 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.

[3] The 1987 Philippine Constitution states as one of its principles, as follows:

 Section 3. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

[4] G.R. No. L-6300, 2  March  1911. 

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

[6] Supra n. 2.

[7] Id.

[8] Supra n. 3.

[9] Supra n. 2.

[10] Id.

[11] Rep. Emmi De Jesus, during the House of Representatives Committee on Revision of Laws Meeting on 17 March 2015, in The Pros And Cons Debate: Should RPC Article 333 on Adultery & Article 334 on Concubinage Be Amended or Repealed? (Author unknown) (On file with author)

[12] See Art. 2, Family Code of the Philippines.

[13] Supra, n. 12.

[14] Dionisio P. Tubianosa, Repeal discriminatory provisions on extra marital affairs in the Revised Penal Code, House of Representatives, Congress of the Philippines, 27 May 2014. Accessed from: http://congress.gov.ph/press/details.php?pressid=7894.

[15] Id.

[16] Rep. Barry Gutierrez, House of Representatives Committee on Revision of Laws Meeting, 17 March 2015, in The Pros And Cons Debate: Should RPC Article 333 on Adultery & Article 334 on Concubinage Be Amended or Repealed? (Author unknown) (On file with author)

[17]New Hampshire Senate votes to repeal anti-adultery law,  accessed from: http://www.usatoday.com/story/news/nation-now/2014/04/17/anti-adultery-laws-new-hampshire/7780563/.

^18] In  Indian law, adultery may be committed only by a man who engages in sex with the wife of another man who did not consent to the act. See, Gangothri.org, Adultery: Indian Legal Perspective, 10 April 2013. Retrieved from http://www.gangothri.org/?q=node/6. See also, Sec. 497 of the Indian Penal Code (stating, "Whoever  has sexual intercourse with a person who is and  whom he  knows or  has reason  to believe  to be  the wife  of another man,  without the  consent or  connivance of  that  man,  such sexual intercourse  not amounting to the offence of rape, is guilty of the offence  of adultery,  and shall  be punished with imprisonment of either description  for a term which may extend to five years, or with fine, or  with both.  In such case the wife shall not be punishable as an abettor.")

[19] Philippine Commission on Women, Policy Brief No. 3, Addressing the Inequality in our Penal Law on Adultery and Concubinage: Enacting The Anti-Marital Infidelity Law. See also, Domini M. Torrevillas,  “Amending the marital infidelity law,” From The Stands, The Philippine Star,  June 30, 2015, accessed from: http://www.philstar.com/opinion/2015/06/30/1471565/amending-marital-infidelity-law

[20] Catholic Bishop Conference of the Philippines, accessed through

http://cbcpwebsite.com/Messages/divorce.html)

[21] Id.