QUIZ ON THE U.S. ELECTIONS

This is a 'multiple choice' quiz.

1. In the near future, what brand of drones or bombs will be dropped by the US on some Third World Country? 

2. What brand of rubber-stamps will the military industrial complex be using in the White House to destroy world peace?

3. What breed of attack dogs will the US government unleash to try to silence the indigenous Americans from opposing corporate expansion on their sacred grounds?

For each question, there are only two very possible answers to choose from: a) Republican; and b) Democrat.

ON THE UNPRESIDENTIAL WHISTLING OF A VERY PRESIDENTIAL DUTERTE

When I watched the video of PaDi Mayor Digong Duterte's press con where he whistled apparently at Ms Mariz Umali, I felt not only uncomfortable. I was incensed. I thought Ms Umali was a random media person PaDi did not know but whistled at. But I did notice that she seemed to  enjoy a banter with PaDi and did not at all appear repulsed. I googled about her and that incident.. I discovered she issued a statement  that said in so many words that she did not take offense. She merely found his catcalling "maybe improper." I thought, "This woman is internally oppressed. How could she dismiss catcalling by someone to whom she is a stranger inoffensive? Or is it because her offender is the incoming President?"

Whether Ms. Umali was offended or not, I felt that what PaDi did was very improper. I became Mariz Umali. I felt the victimization  she could not feel. I posted a call-out on Facebook.

Next, I read my newsfeed.

There was hatred, even bloodlust, for Duterte. I could gather this from the irrationality of people's strong statements. There were voices of people stuck on May 9 unable to move on from the defeat of Roxas. You could tell from the fact that they suddenly became advocates for women's rights. I did not hear them say anything about women's rights in the past. In fact, they never reacted to that tasteless virtual sex act onstage during a birthday party of a Liberal Party stalwart. This also angered me. The Yellow Kingdom was, to them, all sunshine and, despite situations needing voices, they kept quiet. I thought, "These people, noisy as they are now, are not really speaking for women; they are using a women's issue only to advance political vendetta or promote hatred of PaDi."

And then there were people drumbeating for vigilance; they never called for vigilance before. I thought, "They were simply apathetic - or apolitical might be the politically correct word. Now, they have become politically involved." This to me is a very positive development - that the foul mouth of a President unprecedented in our history is jolting people and getting them out of political apathy. Even PaDi Mayor must be happy.

Thankfully, I could find sincere rebuke as well.

The amusing thing is that when I said on FB that PaDi should not whistle at a woman in public even if she seems not to take offense, some reacted in a way I understood to mean they thought they discovered women's rights before I did or they cared more for women than I did. I sort of ...uhmmm... got annoyed. I became historical. "Hoy, you think only your hearts bleed for women? For decades, I have been fighting for women's rights and even devote free legal services to them. Blah, blah." Then it dawned on me that they did not expect the call-out from the Dutertard that I am. Well, not every political supporter is like many supporters of the Yellow Army who condemn injustice only when it is not attributable to yellow hands. The Dutertards I know do not pay blind obeisance.

Much later on, I saw this video of Ms Umali and PaDi interacting in a private atmosphere. He was humble, friendly, and patient despite the shallowness of her questions. In fact, I felt that she was assaulting his privacy and he was not really relishing  the intrusion. But who am I to arrogate unto myself the license to squirm in discomfort on behalf of the country's incoming President?

They were on their way to dinner - the supposed future sexual harassment victim and the supposed future sexual harassment offender.

After watching the entire video, I began to see the catcalling in a different light. I got convinced that when Ms Umali said she was not offended, she was not offended. She and PaDi Mayor had a "history" before that controversial press con and that was the reason why she   took  his whistling with a grain of salt.

And so two hours ago, I said on someone's wall that in sexual harassment cases, while the nature of the act is important, so is context. Catcalling may be an act by which sexual harassment is committed, but in what context is it done? Also, sexual harassment is a subjective offense. It is not the offender's intent but the victim's feeling that is relevant. Ms Umali was not offended. Please let us not insist she was. Your feelings do not define the crime, OK? Neither does your political frustration or hatred, OK? Let us not reduce  Ms Umali into an object and take her place as the subject.

I still think Duterte should not whistle as he did. It is unpresidential. It is. Unpresidential. I do not look forward to it.

But I look forward to the presidential things he promised to do, a few of which are:

1. Bring the Lumad home;

2. Create a committee to investigate killings of journalists;

3. End PDAF and DAP;

4. Enforce simplicity among government officials;

5. Review K to 12;

6. Cleanse NLRC;

7. End contractualization;
8. Legalize medical marijuana;
9. End the drug trade;

10. Resume peace talks;

11. Appoint pro-people officials to deliver social services; and

12. Make justice accessible.

I am happy the unpresidential President has less than a month to vacate the palace and the more presidential one will take over.

A LETTER ON DUTERTE FROM A FRIEND IN AMNESTY INTERNATIONAL AND MY RESPONSE

Now, I can reveal this.

Last 24 March 2016, a month after I wrote my Why Rody Duterte article which would eventually become viral, I received an email from a friend expressing his disconcert over my support for Rody Digong Duterte.

My friend is an Amnesty International leader based in the USA who, along with some others I count as friends, has been working indefatigably on human rights issues in the Philippines for decades dating as far back as the Martial Law Years. These people put up the Ecumenical Advocacy Network on the Philippines (EANP). Among the members are Prof. Tim McGloin and his wife, Linda, Prof. Paul Bloom of Amnesty International and his wife Meg Layese who is also President of the Philippine Study Group of Minnesota, Gary King who is Group 37 Leader of Amnesty International, Brian Campbell, and John Sifton of Human Rights Watch. I know how sincere and dedicated EANP is in watching actions of the US government that have an impact on human rights in the Philippines.

In 2013, I joined them in lobbying the US Congress to reduce if not eliminate its aid to the Armed Forces of the Philippines because of human rights violations the AFP committed -by itself or through paramilitaries- especially against indigenous and environmental activists. They asked me to articulate indigenous issues to offices of Representatives and Senators of the US Congress which I did. The efforts of EANP paid off. This was the same group that asked the Lantos Commission to look into the human rights record of the Arroyo administration with the same call to review the military aid. Hearings were conducted by the Commission. Since 2012, the group has been lobbying that the Commission would convene again to look into the human rights record of the Philippines and to give a critical look into its military aids to the government. They also sent Pres. Aquino a signed petition published in the Philippine Daily Inquirer to stop the X-strata Mining in Tampakan. On my request, they sent a letter to the Korean government to stop the Korean Exim Bank from lending P9B for the Jalaur Megadam Project which would displace the indigenous Jalaudnon-Bukidnon. Because of this and efforts of the mass movement of which Jey Aye Alenciaga, John Warner Carag, and Malaya Pinas are part, a fact-finding mission was launched to look into the concerns of the affected indigenous community. They also worked to stop the possibility of Pres. Aquino being given the Nobel.

I am so proud to have been working with EANP and hope to continue doing so in the future.

Anyway, my friend must have been very disappointed in me when he learned I was supporting the Mayor of Davao City. This was his email:

Chyt, I thank you for the plan about a counter-petition to prevent ‘injustice’ in the case of Palparan. He clearly has been a monster, and has motivated many persons in the military, paramilitary and government to torture, murder, (and) (d)isappear people.

I have sent it to my usual 250 friends who do Amnesty International work on the Philippines. Numerous ones have told me they signed the petition you sent.

I have heard you support Duterte. We know about 800 persons murdered by the Davao Death Squads. And he made horrid statements in the past endorsing and promoting it. Conceivably, this rate of murder is comparable to the sins of Palparan himself. And then they started in Cebu City, another 200 murdered.

Has Duterte said anything of repentance, and a desire to deliver law and order without EJE? If there is no change of his heart, I fear he will allow paramilitary groups to thrive, and death squads will proliferate.

Why can we expect these things to diminish under Duterte?

Warm Regards,

xxx”

As soon as I read the mail, I replied:

Hi, Xxxx,

How are you?

We really do find ourselves in a difficult position. I do support Duterte and I am not the only one from the left... I must be breaking your hearts but do hear me out.

We are aware of Duterte's HR record. We will always condemn him for that and will continue trying to make him account. But we are also aware- and have personal knowledge-- that he has a track record of supporting sectors we represent. I do know that he has been supporting the Lumads and has always been one with them in rejecting corporate plunder of indigenous resources. There are almost a thousand evacuees in the UCCP Haran Compound right now. They were internally displaced by the AFP and paramilitaries acting for extractive corporations, some of which are supporting Roxas. Duterte and his family are very protective of the Lumads. Sr. Stella Matutina, the Redemptorist nun given a German recognition for her HR work last year, told me that Duterte's family are giving logistical support to the evacuees and have been rallying local business to contribute to their daily needs. This was confirmed by Cong. Karlos Ysagani Zarate of Bayan Muna and other Mindanao fellow HR workers. What is more, he has consistently opposed US military presence in Mindanao and rejected drone testing. And only he has a clear stand on the coco levy funds--give them to the farmers.

The other candidates do not have the same positions; neither a heart for IPs and basic sectors whose issues we passionately stand for and feel strongly about. Roxas is too oligarchic and too pro-mining. Binay is too corrupt which Duterte is not known to be. Poe is supported by Danding Cojuangco. She already announced she would make Col Ariel Querubin, a San Miguel officer, a cabinet official. She said she would open the Philippine economy to foreign ownership. She promised to appoint PNoy as anti-corruption czar. Claims that she is PNoy's other anointed is not hard for me to believe.

Duterte did kill hundreds. This is not right. But at least- and this is not to defend him-- he did not kill activists from the left unlike Palparan. His death squads do not touch the progressive groups. He seems to limit his bloodlust to his perceived criminals. We fear Duterte's death squad but what about PNoy's and the mining sector's paramilitaries? I believe Roxas will not deviate from PNoy's policy on paramilitaries. Shall I support Binay just because he has no paramilitaries? Shall I support Poe for the same reasons?

Moreover, since the 1990s, Duterte has been working with labor organizations (though I do note what he said about KMU). He is actually credited for many Davao initiatives on women, LGBT, children, and other vulnerable sectors. And it is a fact that he donated an inherited property to the government for the construction of a children's hospice. I know people who attest to his simplicity. Yes, he is a man of contradictions: a man with an iron fist but he is also a man with a soft heart.

For me, personally, choosing to support Duterte was not an easy one to make. I cannot vote for the three others. I have hopes that Duterte will make life less harsh for the Lumads and ease the country from corporate stranglehold. I could be wrong. But I have hopes that this man, despite his flawed character, is not as bad a choice as the others.

“I hope you understand my decision.

Find here my statement issued last February explaining why I decided to go for Duterte. I entertained the idea beginning 2013 when it looked like only he was speaking for the Lumads, and while my mind was then made up, I was ready to be flexible should a better or less bad candidate run. The alternatives then were Roxas and Binay. None of the above. Poe? No , because I have not heard her say anything about IPs. In my statement below, I spared Poe from diatribes out of respect for others in the progressive left who support her.

Best regards,

Chyt

Well, Duterte won by a landslide. I still have to hear from my friend. I know he will never stop fighting to protect human rights in the Philippines and other parts of the world. I know EANP will never rest.

Here I am, very elated that my candidate won. Those days of speaking in caucuses and rallies and other meetings to promote Duterte’s candidacy have contributed even if little to Duterte’s victory. For that, I, as the millions of others who fought for his candidacy despite all odds, claim the right to be part of his conscience, to speak out when he deviates from respect for human rights, and to stand by him when he eases the burden of the impoverished, toiling masses.

I have high hopes in the incoming presidency. I, however, do not believe that elections will fundamentally change things. The mass movement, the different sectors, and the new President must work together to dismantle the oppressive structures.

I hope my friend will eventually tell me, “Chyt, you made the right choice.”

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.

---

[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).

PRIVACY, WOMAN, AND THE FAMILY

 by: CHERYL L. DAYTEC-YANGOT

Introduction

All over the world, the traditional family is regarded as the most rudimentary social institution and is the bedrock of society.  It is also regarded as the place of shelter to which its members run when they need to withdraw from the pressures of the public world. Traditionally, it has been regarded as a private space, cloistered from State interference or intrusion.

Unfortunately, vesting the family with a private character and taking it out of the realm of the private sphere has perpetuated male dominance and  the subjugation of women.

As it has been socially constructed, the family has become a woman’s prison. Her space for action, for making choices, even for thought has been limited.  While she has set foot on the public realm and is struggling to have her sameness with men recognized, within the roofs of the home, she bears the greater burden of raising the family. Her multiple burden puts her on unequal footing with her partner. 

Privacy and the Family

MacKinnon labels the proposition that the family is a private institution “as a right of men to be left alone to oppress women one at a time.”[1] Indeed, the veil of privacy shrouds what happens inside the home from the public and erects a border that shields it from state interference.  But the evil of privacy is that it supplies the lifeblood on which domestic abuse thrives: the culture of silence. Victims of domestic violence rarely complain to the authorities, and  when they do, the police are reluctant to intervene in “private matters.”

Prof. Osiatynski posits that the moment a woman enters the institution of marriage, she surrenders the rights she holds against strangers. The family is a  kingdom of love and compassion.[2] The long arm of the State should invade the bedroom as well, but not to violate the exercise of a woman’s autonomy. As MacKinnon argued, “when the law of privacy restricts intrusions into intimacy, it bars changes in control over that intimacy” further entrenching the distribution of power and resources skewed towards the subjugation of women.”[3]  In arguing for legislations protecting women, Osiatynski justifies himself by saying that  women should have a fallback when the love and compassion at home vanish.

Balistreri v. Pacifica Police Department,[4]  a United Staes Federal Circuit Court case,   illustrates the evils of the legal construction of the family as a private institution. A battered wife obtained a restraining order against her husband who still beat and harassed her as the police folded its arms. The court said there was no special relationship between her and the police, which thus had no duty to protect her.

          Consider likewise  the very sad case decided by the US Supreme Court: DeShaney v. Winnebago County [5] involving a four-year old  child serially battered by his father in whom the court awarded custody after divorce. While the state intervened during some of the acts of violence, it did not remove the child from his father. The child was eventually abused  to a state of comatose. According to the Court, the Constitution does not impose a special duty on the State to provide services to the public for protection against private actors if the State did not create those harms.

          These two cases illustrate how the issues of women, and by extension, children are reduced into non-public concerns because of the public/private dichotomy. Thus, while women will argue that marital rape is rampant, in most societies it does not exist as a crime because it is not punished. The principle nullum poena sine lege[6] operates in favor of male dominance. In the Philippines, for instance, it was only in 1997 that marital rape was penalized after years of intense lobbying by the women’s movement. But to date no one has yet been prosecuted for marital rape. The  ideology of  privacy and its complementary  silence remain formidable in  shutting the mouth of women.

Boyd laments that equally in the international arena, women’s issues  “are overlooked as a result of the mandate of international law to deal only with 'external' or public' matters of the state.”[7]

The Family as a Social Institution

          Through legislations,  a State defines marriage, its nature, incidents and consequences. Through judicial acts, it has the final word on whether it is legitimate or void.   By such acts, the State  ultimately makes decisions in the marriage as though it were  a third party to it. Thus it cannot be said that the family belongs to the private sphere.  As the Family Code of the Philippines puts  it,

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation xxx.[8]

If marriage is “the foundation of the family and society without which there can be neither  civilization nor progress”[9]    then the state cannot leave the family in the private realm.  The family has always been subjected to state regulation, at times eroding women’s equality.[10] Why can’t it be subjected to state regulation to enhance its role in society as a basic institution?

The Constraints in Women’s Opportunities and Freedoms

The inequality that women suffer from is a consequence of the treatment of the family as a private kingdom with walls so high  beyond the reach of the long arm of the law. The State with the use of its coercive power has reinforced male dominance and pushed women further back to the seclusion of the domestic sphere. This appears to be a compelling reason why the State should break into the barriers of privacy of the family. It has the power to rectify the wrongs it helped perpetuate. The law, with its coercive nature,  can create new attitudes and new opportunities for women.

The patriarchal-virilocal complex that  legal systems have reinforced ties women to the demands of domesticity and fosters economic dependence on the men. In industrial societies, there is ample demonstration of how women’s role in parenting has restricted the pursuit of their careers or shortened their career paths. This has resulted in perpetuating women’s dependence on their male partners, subjecting  them to the  risk of poverty when the marriage is dissolved. This is especially tragic and is aggravated if they will have primary custody of the children[11]  and are thus saddled with the primary burden of supporting the  latter.

In poor societies where women are totally relegated to domestic concerns and their male partners are the sole breadwinners, this dependence has even more horrifying impact. As a lawyer, I handled two cases of minor children raped by their own  fathers. While the cases were in progress, the mothers decided to withdraw the complaints. With their husbands in jail, their families were going hungry.

 Indeed economic power is political power. While women are  dependent on their male partners, they are prone to physical, sexual or psychological abuse by the latter.[12] This dependence ties them to the marriage or partnership, and deprives them of any bargaining leverage, while their partners wield more power and dominion.[13] The State should step in to eliminate this dependence or share in the burden of dependency[14]  so that women can make decisions for themselves including the decision to leave an abusive relationship.

A Woman’s Privacy Right in The Family as a Public Institution

In arguing that the family is a public institution,  I do not  take the position that there are no privacy rights in the family. Allen argues against the position that “privacy imposes an inherent threat to women[15]”  and defends that it advances women’s concerns,  opposing MacKinnon’s privacy critique.  I see the merit in Allen’s argument and reject MacKinnon’s critique. However, I categorically assert that this privacy which must be defended should be the privacy of the woman, not the family. She must be regarded as separate and distinct from the family. After all, she does not lose her identity the moment she becomes a wife or mother and should be left alone to exercise her autonomy.

The woman should be left alone to  decide to have a child, to use or not to use contraceptives,  or to refuse to engage in copulation or to have an abortion within that period when it is safe for her to have one and the fetus in her womb is not yet viable. Any law that intrudes into the exercise of this autonomy violates her dignity. It assumes that she is irresponsible,  a reflection of the patriarchal view of women being in possession of  fundamental irrationality and moral  weakness thus in need of “outside control”  and protection.[16]

Summary

          In this short paper, I echoed the view of MacKinnon that the family should be regarded a public institution and bailed out from the shadows that cast it in the private realm. This is because its nature, incidents and consequences are defined by law anyway. Moreover, the privacy accorded to families has perpetuated the oppression of women  by patriarchy. I also stated that considering that States through their legal systems have put women in positions of subordination, States should take responsibility for rescuing women from the abyss of  oppression and abuse to rectify the wrongs done upon them.

          While taking the position that the family is not part of the public realm, I however argue that as part of the family, a woman retains the right to privacy in the exercise of her autonomy.  These rights are not family rights, but her rights as an individual separate and distinct from the family.  She can be a wife and mother, but  still be herself. cldy/18may2010

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[1]Catherine MacKinnon, “ Roe v Wade: A Study in Male Ideology”  in ABORTION: MORAL AND LEGAL PERSPECTIVES (Jay L. Garfield and Patricia Hennesey, eds, 1984).

[2] Lecture delivered by Prof. Wiktor Osiatynski in his class on Individual and Human Rights, Central European University, 5 November 2009.

[3] Supra n. 1, at 193.

[4] 901 F.2d 696 (9th Cir. 1990).

[5] 489 U.S. 189 (1989).

[6] Literally, it means there is no penalty for an act if there is no law punishing it.

[7] SUSAN B. BOYD, CHALLENGING THE PUBLIC/PRIVATE DIVIDE: AN OVERVIEW  IN CHALLENGING THE PUBLIC/PRIVATE DIVIDE 11 (1997).

[8] Article 1, Family Code of the Philippines.

[9] Maynard v Hill, 125 US 190.

[10] MARTHA  A. FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995).

[11] Under the Family Code of the Philippines, the custody of a child who is under 7 is automatically awarded to the mother, unless there is a compelling interest not to. At such age, a child needs more care and as the main  provider of that care, the woman’s freedom is indubitably restricted.

[12],BARBARA BERGMANN,   THE ECONOMIC EMERGENCE OF WOMEN (1986).

[13] Amartya Sen,  “Gender and Cooperative Conflict” in PERSISTENT INEQUALITIES (Irene Tinker, ed., 1989).

[14] Martha Albertson Fineman, What Place for Family Privacy, GEO. WASH. L. REV. (June-August 1999).

[15] Id., at 7.

[16] Joan C. Williams, “Deconstructing Gender”  in FEMINIST LEGAL THEORY (K.T. Bartlett and Roseanne Kennedy, eds, 1991).