CAPITALISM, DEMOCRACY, AND THE RISE OF TRUMP

Because neo-liberalism failed the people, because the promises of capitalism benefited only the likes of Donald Trump and made the poor even poorer...

The US presidential election was decided less by specific gender, ethnicity, race, and migration issues (or identity politics) than issues that matter to class. The rejection of Hillary Clinton (but not necessarily the victory of Trump) is a strong indictment of corporate capitalism personified by Wall Street. Wall Street is seen to be the Democrats' principal veering away from its historical role as the defender of the oppressed.

Similarly, in the Philippines...

We should be looking at the trigger of mass anger and address it instead of self-righteously shouting from lofty bourgeois windows about how we are now held hostage by the choices the idiots and uneducated made that now affect us. Education may come from books and universities but theirs came from experience. Electoral choices may be dictated by desire for comforts and privileges derived from a system that deprives the masses of the ability to survive decently. Theirs are dictated by the deprivation they suffer from a system that showers comfort on the few while sweeping them aside like dead leaves to the periphery.

(Un)fortunately, "We are the many; (you )are the few," goes a song inspired by the Occupy Movement.

If democracy is the rule of the majority, then we have to respect their choices. We keep saying that democracy is the best form of government. Well, in the US, democracy decided that Trump should be President. Those who insist that democracy is the only form of government acceptable in a civilized world must honor the choice of the majority.

But maybe, we need to give democracy a second look.

It seems when capitalism logically advances to its worst anti-poor shape, it negates democracy. Government ceases to be for the people, of the people, by the people. It is for the few, of the few, by the few. The masses can no longer exercise freedom of choice and do not enjoy freedom from want.

So, auspiciously, a dictator must rise to undo the imbalance but not in the fashion of Marcos who became a tyrant to enrich himself and his cronies. This dictator will reverse the wheel to the end that government must make the greater good for the greater number its goal.

Our own Jose Laurel said that the best form of government is an authoritarian regime with an angel on the throne. That angel is biased for the poor and the weak.

Now I am looking for that angel. S/he might be able to show to us that a dictatorship for the poor and marginalized is the true democracy. Why? Access to goods and services gets opened and sustained for the majority who make up the traditionally ignored or forgotten poor.

I AM NOT DE LIMA AND SHE IS NOT EVERY WOMAN

Senator Leila de Lima used her powers as Secretary of Justice to accomplish the very things she was supposed to stop, all for her personal ambition. She made the already entrenched drug trade proliferate further. She created and empowered drug lords in the National Penitentiary which became the main office of the country's illegal drugs industry. She created more drug addicts by letting loose more drugs in the market. The welfare of the nation was far from her mind. She had an affair with a much-younger married man - her driver over whom she exercised moral ascendancy- and made him her tool to raise money from drugs for herself. She aggravated corruption in the National Penitentiary.

I have to agree now with the President: De Lima was screwing her driver while screwing the whole nation. The two are related. Before, I ranted twice on Facebook that her private life was not an issue. I was wrong. It was an issue. It is.

This war on drugs became necessary because of her. The blood of the innocent casualties are on her hands, too.

As a woman, I am incensed that she keeps using the picture of the oppressed woman as a trump card. She was an oppressor. She continues to be one. No, de Lima, I am not you. My sisters are not you. My mother is not you. My aunts are not you. My daughters are not you. My nieces are not you.

You are not every woman. You are this country's biggest narco-politician who happens to be biologically a woman.

You are sui generis, a class all of your own. Don't make us into your image.

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.”

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

---

[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). 

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.