The poet Rudyard
Kipling wrote, “Oh, East is East and West is
West and never the twain shall meet.” But
Yash Ghai’s “new orthodox view” of rights might just prove Kipling wrong. If universalists
represent the West and relativists, the East,
they can actually shake hands but only
within the parameters of this paradigm.
Yash Ghai reconciles
universalism with relativism, neither of which seems to trust the other. He
posits that the “East’s” opposition to universalism stems from the assumption
that in pushing for a homogeneity in the appreciation of rights, universalism promotes a global world order the ultimate goal of which is to alienate the periphery states (East) from their cultures and force them to
assimilate into the culture of the core (West).This culminates in the loss of
their access to wealth and power in the world system, if not their identity. On the other hand, the “East” is accused,
rightly or wrongly, of invoking cultural relativism to legitimize certain
practices condemned as human rights
violations by the international
community.
Using
the oxymoron “new orthodox” to describe the compromise, Yash Ghai attempts
to wind down the never-ending debate between
the advocates of the
two perspectives. In their absolute
forms, both are orthodox and diametrically opposed to each
other. But they metamorphose into the “new orthodox view” when they interbreed,
giving birth to a new species of human
rights paradigm –one that not only
affirms the existence of universal
natural precepts of right and wrong but,
no less significantly, respects the
autonomy of the myriad cultures to interpret these precepts within the latitude
of their prevailing material realities. It may bear semblance to a marriage of convenience, but a happy one
nonetheless. The downstreamed genes of universalism are shorn of the propositions that a human right has only one
shape and thus must be interpreted in a
consistent manner all over the globe and that the human rights records of
societies should be scrutinized in the light of a singular benchmark. Relativism
bequeaths a new eye that
recognizes the existence of the human nature that is
universal, fathomable by reason, and which achieves its highest worth through
rights. This eclectic perspective pays
tribute to the immutability of this human nature and the dynamism of culture.
Under it, the East-West dichotomy appears more mythical than real, and
the debate anchored on the conviction that it does exist is no more or less
than an exercise in futility.
The Philippines, one of the states that drafted the Universal
Declaration of Human Rights, is
predominantly a Catholic country with a strong public policy against divorce expressed in its
laws. Upholding the inviolability of
marriage, the Supreme Court refused to acknowledge the validity of foreign divorce
decrees by Filipinos. The rule of “lex
nationalii” gave the Supreme Court no option, either way. Like a guardian
angel, a person’s national law concerning his or her capacity to marry follows him/her everywhere.
But
the policy also extended to cases of foreign divorce sought at the instance of former
Filipinos or even by foreigners. This
created preposterous if not unjust cases of Filipinos married to foreigners who were not married to them! Such
people whose marital statuses were in legal limbo contracted subsequent
marriages that were likewise thrust in the same limbo. Moreover, this gave rise
to property issues, as in one case where a foreigner divorced from his Filipino
spouse staked his claim on her properties as her legal husband, even if she was
married to someone else.[i]
Yet the State remained rigid on its policy against the recognition of divorce.
When Corazon Aquino was catapulted into the presidency by the People Power
Revolution in 1986, one of her official
acts as a dictator under the transition Freedom Constitution was to enact a new
family law which provides that “where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.”[ii]
But the law still suffers from a congenital defect. For the divorced Filipino
to be capacitated to remarry, the
marriage must be “mixed” from the very beginning and does not contemplate a
situation where the one who obtained divorce was a Filipino who subsequently
became a foreigner. However, in a recent case, the Supreme Court abandoned its former doctrine that stuck to the letter
of the law and impressed it with a liberal interpretation.[iii]
The Philippine experience, although by no means ideal, demonstrates how universalism and cultural
relativism can amalgamate in a “new
orthodox” form, delivering some form of happiness to people who would have otherwise been deprived
of a right enshrined in the UDHR.
[i]
Van Dorn v. Romillo, Jr., 139 SCRA 139. The decision was a stray one as it squarely
went against the law.
[ii]
Art. 26, Family Code of the Philippines
[iii] Republic v. Orbecido, GR No. 154380, 5
October 2005
