Sunday

THE SK: Breeding Ground for Plunderers

Sunday
by: June Salomon Radi
Calls for the abolition of the Sangguniang Kabataan is escalating and made by many sectors including the Catholic church. It has been proven that the sanggunian is made a training ground for corruption, teaching young minds the “art” of corruption in government.

The recently concluded election was just a glaring example of the corruption cited. Massive vote buying was just like a norm rather than an exception and people in government who were supposed to uphold the rule of law rather took it aside, were those that led the buying and assisted the vote buyers and applauded the takers and sellers, not forgetting the buyers, for making their crimes easily pulled off.

The media on the other hand made it frenzy on the airwaves, every elections, it has become a laughing matter rather than an issue to be addressed and done away.

Here are true instances of the corruption, call it your way bit I would rather call it such:

In one barangay, there were two candidates for the SK top post, and there were only 3 voters. It is true because only 5 of them qualified the age bracket while others were not interested to register. One of the registrants support one candidate while the other supports the second contender leaving only one that would make or break their ambitions. The first candidate offered the voter (P20,000) cash through his parents but the other offered him a brand new motorcycle. Well, obviously, the motorcycle was the option.

Another barangay instance was grand, the total voters were around 200 and there were two contenders. The other was the son of the incumbent punong barangay, the other was a kin of a moneyed politician. Two days before the elections, around 80 voters were herded, taken from their families one after the other so as not to create a commotion and kept it a silent maneuver, and they successfully kept the voters at bay in a resort which was an hour away from their place of residence, like they were on vacation, swimming, eating and karaoke the whole duration. On the day of the elections, they were taken to the precincts in a group of 5 and all of them were given money before departure. The maneuver succeeded and who could say there was nothing wrong with it?

Another instance happened in two barangays, I only knew  two and it is possible that it happened in many others. The result was, in these two barangays, there was only one candidate, unopposed. They were unopposed because the would be contenders were offered cash so as to discourage them from running, and they backed out The term discourage was used because the cash went with a threat. Spell it as you like, the threat.

Another instance was the bidding gone bad. The other party went to his opponent offered him P30,000. The former was insulted and replied, they could counter offer 100,000 also asking the first offeror to back out. It became a war of money and the first offeror did not know the Art of War as written by Chairman Mao Tse Tung that in order to win the war, one must “know his enemy”.

The night before the elections, if you went to the Rotonda, one cold that late night there were around 50 teenagers, sitting around the fence of the horse back riding areas in their jackets and near them was a ten wheeler truck parked, it was theirs as the others did not disembark and stayed in the open truck, resting, sleeping, talking. I asked one of them as I went passed them and she replied “hakot SK”.

The National Organization of the SK was not spared as the present National President who is an ex oficio member of the National Youth Commission is hounded by graft charges at the Office of the Ombudsman, at a very young age.

The law which created the SK which is the Local Government Code (RA 7160) I am certain was made with good intentions. It is the implementing arm of the law which made it evil, though many camps would say that the law was created with a lot of loopholes. Never have I heard of a perfect law, the Congress was blind as the law was there for more than 2 decades and not one dared to amend it for the better , and again, a lot of SK elections already went their ways.

The SK further widened the opportunity for political dynasties which is another thing that Congress has failed to define and address through an enabling law prohibiting political dynasties as stated in the 1987 Constitution. They never dared to address political dynasty as the lawmakers themselves violated it, the laws of morality and conscience. They themselves are from various dynasties and prohibiting political dynasties is for them, political suicide.

These victors of the recent SK polls were taught in their early lives how corruption works, and for sure, they themselves would constitute the people who will make this country fall deeper into debt and embarrassment, more corruption and cancer of society as Rizal pointed out.

With all these, I am hoping that Congress would address this scare of society. But on second thoughts, would they address the abolition of the SK when the SK officialdom is composed of their children, brothers, sisters, family members? I would rather wait and see.



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RUFFY BIAZON'S NIGHTMARE WITH CEBU PACIFIC: It could happen to you!

A Sweet Vacation Turned Sour — Thanks to Cebu Pacific Air

by: Ruffy Biazon

It was a vacation that we had planned and yearned for, a vacation that would give me the opportunity to catch up on the lost time with my children who had endured my divided attention between them and the public.

With the kids on a long break from their school, my wife and her sisters planned a joint family vacation in Boracay, which we knew that the kids would enjoy since they all love going to the beach together.
It was a perfectly planned trip, from the reservations of the flights including reserved seating on the plane (which is a paid option offered by Cebu Pacific Air), transfers and room assignments as well as the activities that we were going to do while in the world famous island.

To sum it all up, it was a wonderful time spent with the family, filled with happy memories, unforgettable experiences for the kids (like riding the Zorb and introductory scuba diving) and precious moments with loved ones. As pristine as the powdery white sands of Boracay, our vacation was simply perfect.

But as they say, all good things must come to an end, and so our perfect vacation ended and we had to go home. Little did we know that not only was our vacation ending, it was going to be capped off on a sour note, thanks to Cebu Pacific Air’s customer service which was nowhere near satisfactory.

My initial dissatisfaction (and irritation) with Cebu Pacific had something to do with our flight booking and reservations. In order to make our travel easier, we availed of Cebu Pacific’s seat selector program where you can reserve specific seats for a fee. We decided to pay the extra amount just to make sure that we will get the seats most convenient for us and our travel plan. On the way home to Manila, we reserved the front row seats for me, my wife, our three children aged 11, 8 and 4 and one yaya.

In connection with that, we had pre-determined seating arrangement, which enabled us to better manage the kids and in case of an emergency, we had a plan of action on how to handle the children. The plane’s configuration is six seats to a row with an aisle in the middle, making it a 3-3 seating arrangement.

Our plan was to have our four year old son sit with my wife and the yaya and the 11-and 8-year old sit with me. It was all part of our family plan.

But those plans went to ruin as soon as we settled down into our seats just before the plane was set to taxi for it’s take off position. Being the front row passengers, we were the last few to board the plane. But we were told by the flight attendant that we couldn’t occupy those seats because the minimum age requirement for an emergency exit seat (which the front row seats were because they were right beside the main door) was 15 years old.

Of course we understood that it was for safety reasons, although when we checked in, it never occurred to me that passengers on the entire row had to be 15 years old and above. Form what I knew, as long as the passenger right next to the door was old and capable enough it was fine.

But safety measures are there for a reason, so it wasn;t really the issue at hand. The issue at hand was that we underwent a series of steps in the booking process where we could have been advised by Cebu Pacific about the limitations in the seating.

When we booked for the flight online, the ages of all the passengers were required. After that, when we talked to an agent to arrange for the reserved seats (which we specified to be the front row seats), the agent asked for our children’s ages. When we checked in at the airport, we were required to physically present our children to the personnel at the check in counter. In all those steps, we could easily have been informed by Cebu Pacific personnel about the safety rule of a minimum age requirement for the front row seats.

But Cebu Pacific personnel allowed us to get bookings, reservations and check in for the seats that we reserved. And paid for.

And so it was that after we had settled down in our seats, our children were asked to vacate the seats they were already sitting in. In comparison with other airlines that I have flown with both here and abroad, if safety issues require passengers to exchange seats, the flight attendants first look for a passenger willing to exchange seats and then THEY assist the passengers in moving from one seat to another.

In our Cebu Pacific experience, they simply asked us to unseat our children and transfer somewhere else. The flight was fully booked, so obviously, if our children were to transfer seats, other passengers would have to be displaced. The flight attendants did not make a move to assist us in asking other passengers but instead, a ground staff who came on board told my wife “ma’m, maupo na kayo para maka take-off na yung eroplano” (ma’m just sit down so that the plane can take off).

The Cebu Pacific staff and flight attendants acted as if it was purely our fault that the plane could not depart immediately. As we were trying to figure out how to exchange seats to comply with what the flight crew wanted, our four year old son began crying because he did not want to leave the seat he was already sitting on. All the commotion that was going on gave the other passengers the impression that we were the ones holding up the plane, on simple reason of seating arrangement. It was indeed embarrassing.

Finally, my wife and sons aged 11 and 8 were able to transfer to the second row, with our 4 year old seated on my wife’s lap since he did not want to part with her. The three passengers seated on the second row transferred to the front and one seat was left vacant. All those seats were paid for by us under the seat selection program of Cebu Pacific, but we never got to use them.

Payment for the reserved seats are not really that big an amount. But my point is that we could have been spared the additional expense, aggravation and embarrassment if Cebu Pacific had been more diligent and efficient in implementing it’s rules. As I stated, we do not have a problem with the safety rule. But it was Cebu Pacific’s inefficiency that brought us to that situation.

In addition, Cebu Pacific’s flight crew displayed utter lack of knowledge and skill in dealing with the situation, not to mention poor customer handling and communication. Instead of assisting us in finding a solution, they just stood there making comments that simply did not help.

All the while I struggled to keep my cool and just tried to pacify my son. He eventually quieted down and the rest of the flight was uneventful. I realized that it was pointless to confront the flight crew because I believed that the root of our problem (the booking, reservations and check in) was beyond them. Even their poor performance was something that needed to be taken up with their higher ups, not them.

So I decided to keep quiet and just bring the matter up to the duty manager of Cebu Pacific as soon as we landed. It has always been my belief that complaints should immediately be brought to the attention of supervisors or higher ups who can make decisions or take action. It is pointless to rant and rave to the rank and file because they are not in the position to actually do something to solve the problem. And most of the time, they are the problem. So it is best to bring it to the attention of the bosses.

Upon landing, I immediately looked for Cebu Pacific staff to ask for the duty manager. It took me a couple of minutes to find one, since at the arrival area and all the way to the baggage claim, there was no Cebu Pacific desk or staff around.

I immediately informed the person that I wanted to speak to the duty manager because I wanted to lodge a complaint. The person asked if it was about luggage because he might be able to help. I told him that I don’t think he could help because the matter of my concern was not about luggage but about the bookings and our failure to avail of the seats we paid for.

At that point, I as a paying customer, wanted to bring my concern to the attention of a responsible Cebu Pacific official because I wanted to make sure that my concern would be attended to properly. I knew that if I left the airport without making the complaint, either the company will just give me delaying tactics until I forget about it. I’ve seen it happen before.

I was told that if I wanted to talk to the manager, I could go up to his office in the third floor. I said no, I want to speak to him there at the baggage claim area because we had four big suitcases with us and I didn’t want to leave my wife and three young kids and the yaya waiting by themselves.

The person said that the manager was busy and that perhaps I can just go up to the office. I reiterated that I wanted to speak to the manager personally and if he could come down to meet with me. I also stressed that I was a paying customer who wanted to complain and I believed that it was the manager who could address my concern. I asked the person to specifically tell the manager that I wanted to file a complaint before him.

The person I was talking to left and returned after about 13 minutes. He then told me that the manager was busy. So I asked him, “Is he too busy to talk to a complaining customer?”. The guy simply repeated that the manager was busy. He then asked me to fill up a complaint form.

In the past, I have filled up so many complaint forms and 100% of the time, nothing happened. That’s how it is here in this country, whether government or private, complaint forms have a way of simply fading away. That’s why I wanted to speak to the manager person to person.

But it seemed that he was too busy to attend to a complaining customer. Is this a reflection of company attitude towards the customers they are supposed to serve? What kind of customer service philosophy are they teaching in Cebu Pacific?

So my original complaint regarding the booking, reservations and check in got bumped down the ladder of importance. That duty manager, who was too busy to attend to a complaining customer, or even assign someone else to at least hear me out, suddenly became number one on the list.

I filled out the form, expecting that it will get nowhere, but I am determined not to let this pass. The person who was talking to me, the one who gave me the form, said that I can call customer service. I said not only will I bring this matter up to customer service, I will bring this matter up to their top honcho.

Now, if I do that and still, nothing happens, then I shouldn’t be blamed if I call Cebu Pacific Airlines the crappiest airline I’ve ever flown. (www.ruffybiazon.ph)

to where? i do not know...


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Friday

NO TO PLAGIARISM! ASSERTING ACADEMIC FREEDOM--- A Statement of the University of the Philippines Diliman Executive Committee*

Friday
Below is the statement approved by the UP Diliman Executive Committee in its October 27, 2010 meeting.




NO TO PLAGIARISM! ASSERTING ACADEMIC FREEDOM--- A Statement of the University of the Philippines Diliman Executive Committee


We, the University of the Philippines Diliman Executive Committee, denounce plagiarism and uphold academic integrity.

 As educators, scholars and researchers, our worth is measured by the integrity, excellence and discipline we bring to our work. Plagiarism undermines that integrity and destroys the value of scholarship.

We strongly disagree with the Supreme Court’s decision to exonerate Justice Mariano del Castillo from charges of plagiarism based on the lack of malice or negligence on his part (in In Re: Del Castillo, A.M. No. 10-7-17-SC, 15 October 2010).

The lack of malice or intent does not excuse the act of plagiarism.

The Court has undermined academic freedom by threatening to discipline 37 faculty members of the U.P. College of Law for taking a principled position on a grave academic concern.

We stand by the U.P. College of Law Faculty for speaking out against plagiarism.

We ask the Supreme Court to withdraw the “show cause” order against the 37 faculty members of the U.P. College of Law.

U.P. Diliman Executive Committee, 27 October 2010*

________________________________

 
*Composed of the Deans/Directors of the different Colleges and Schools in U.P. Diliman, including the Chancellor, Vice Chancellors, University Registrar, and three (3) members-at-large

-even in the Philippines, the Supreme Court said so!

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Thursday

IT'S WORLD PSORIASIS DAY: OCTOBER 29 FRIDAY The disease is NOT CONTAGIOUS

Thursday
October 29, 2010 is World Psoriasis Day. Among the facts that most of us do not know about psoriasis is that it is NOT contagious even if it is flaring up on the skin. Tension and stress will aggravate the disease. We have to understand that those suffering the disease need our support, our care. SUPPORT THE WORLD PSORIASIS DAY AND BE A PART OF THE HUG ME CAMPAIGN.



 MANILA, Philippines - While the physical manifestations of psoriasis are easily visible — itchy, red and scaly patches on the skin — there is a lot more to this skin disorder than meets the eye.

Unfortunately, the many misconceptions surrounding psoriasis have led to hurtful and harmful myths that further perpetuate the wrong impression about this disorder, leaving a negative impact on the psychological and emotional well-being of the patients.

Treatment for psoriasis goes beyond clearing the skin lesions; there should be a change of the misinformed perspective.

There is no danger to getting close. A chronic skin condition largely characterized by thick, reddish and scaly patches of inflammation, psoriasis usually targets areas such as the elbows, knees, scalp, and genitals.

These unsightly lesions on the skin have led some to believe that the disease is highly contagious, making patients predisposed to discrimination and social phobia.

Although highly visible, psoriasis cannot be passed on simply through close physical or skin-to-skin contact such as touching, hugging or even swimming in the same pool.

Personal hygiene plays no role in the issue. Research shows that there is no clear evidence to prove a causal relationship between psoriasis and poor hygiene.

A disorder of the immune system, the development of psoriasis can be triggered by various factors, including genetic predisposition or environmental factors like stress and strain, climate changes or infection.

Psoriasis should not be taken lightly. While psoriasis generally targets the skin, other serious medical conditions may arise in severe cases.

Studies have shown that psoriasis has made patients more susceptible to heart and cardiovascular diseases. In such cases, patients are encouraged to lead a healthy lifestyle to avoid the health risks.

The problem goes beyond skin-deep. Unfortunately, the debilitating effects of this medical condition go beyond the physical.

Apart from the physical discomfort caused by severe itching and pain, patients diagnosed with psoriasis often experience bouts of sadness, despair, anger and poor self-image, especially during cycles of flare-ups and remissions.

It is common for individuals with psoriasis to feel embarrassed and self-conscious about their appearance when people give them questioning looks and keep their distance especially in public spaces.

There is life beyond psoriasis. Although science has yet to find a definite cure for psoriasis, there are various treatment options available, from topical medications to therapies, depending on several considerations: the type of psoriasis, severity, location of affected area, the patient’s age and medical history, as well as overall physical and emotional state.
Despite the lack of cure, there is hope for psoriasis-afflicted patients to lead a normal life and enjoy long-term relief through proper medical care and management.

The first step in this battle against psoriasis is awareness. Locally, Psoriasis Philippines (PsorPhil), a non-profit organization for afflicted patients and their families, doctors and caregivers, was established with the primary goal to provide support, advocate member rights, as well as educate the public on the disease.

For more information, contact PsorPhil at (+63 2) 379-4290, (+63) 922-829PSOR (7767), or toll-free number 1-800-10-848 PSOR (7767) or log on to http://www.psorphil.org. 

If you are suffering from the symptoms of psoriasis, consult a dermatologist.  (www.philstar.com)

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How to Become A Guy Magnet

I CAME ACROSS THIS AT WIKI AND FELT IT WAS WORTH SHARING, WITH GOOSEBUMPS IMAGINING PLENTY WILL READ AS I BELIEVE THIS IS A TOP AGENDA FOR EVERYONE. AMININ!


Having bad luck with men? Are you one of those ladies with a jerk radar or who constantly ends up in the friend zone? Here's some good advice for both situations.

STEPS:

1. Get real with yourself. It really is the most important place to begin. You must figure out who you are and what you want. If you don't know, then no guy on earth will know either...but his best guess might be something negative. He might be right.

2. Whatever changes you need to make in your life, get on the road to making them. We all have reasons for the things we do and the things we don't. If something is holding you back, get past it, and get on with your life. You need to be complete before you go looking for someone to complete you.

3. Adjust your clothes to project an accurate image of yourself. Don't dress according to every trend or fashion. Look around in the vintage and second hand shops, and read the old books on aesthetics and makeup.

4. Choose the look that suits you. Just as an actor wears the right costume for their role on stage, you should wear the right costume for your role in life. Whichever look you choose, it should have some thought behind it...whether you're more t-shirt and jeans, or skirts and high heels.

5. Trust the law of attraction, but beware at the same time. When you are being and looking yourself, you are guaranteed to attract people who want what you have. The only problem is that some will want to nurture you while others will want to exploit you. Open your eyes and ears, and it's fairly easy to tell who is who. This brings us to the next step...

6. Trust your instincts, and be a patient hunter. Never be in a hurry. Wait until you have sufficient data by which to judge someone before you give them too much of your time and attention. This is handy for warding off both the jerks and the guys who will put you in the friend zone (even after - if - they've slept with you). A guy who needs an ego feeder is playing the modern male version of the rapo game from the book _Games People Play_. They seduce you, and then all of a sudden claim that either they didn't want a relationship, or they just wanted to be friends. Whichever brand of time-wasting ego suckers you're dealing with, both are bad news. They not only take away your free time and mental space to talk to other guys, but they tend to make territorial gestures that keep other guys away. Now some practical steps:

7. Don't let your guy friends touch you for more than greeting, parting, and occasional hugs in public. Make yourself physically off limits to them. If they don't get the point, then tell them flat out that PDA is for boyfriends only.

8. If a guy is interested in you, then make him prove it by engaging in whatever level of public activity and affection is appropriate for your culture. If it means he has to sit with your parents, have him do this before he can get too close to you. If it means taking you to the cafe to sit and chat with your mutual friends, then do that too. Having an accountability factor for your partners improves your reputation by showing that you do have standards, but also shows people that guys are not afraid to be seen with you. Men need to compete. Let them do it. If they think you're not worth it, then you know what you're dealing with then.

9. Watch your posture, attitude and facial expressions. Sit sometime and have one of your friends videotape a night out with you. It'll be very enlightening. You might be too prissy, or you might be too frumpy. What you want to be, if you intend to be a guy magnet, is reasonably approachable...sexy and yet respectable...huggable.

10. Be well groomed. You don't have to have the "perfect" body or face. Most people have the basic natural equipment for beauty built in. Even if you have fairly serious looks problems or differences though, you can still be just as sexy and huggable as the media clone next to you, if you smell good, and look like you put some time and effort into your hygiene and grooming.

11. Don't call a guy excessively, especially if you're not in a relationship with him. Let the guy call you sometime. If he's interested or worth pursuing, he will. Even if he is submissive, he still needs a chance to be a man.

12. Mind your manners. You don't need to be a total prude, but you do need to leave the plate on the table when you eat, chew with your mouth closed, and look at people when they're talking to you.
Look at guys. Look in their eyes. If they like you, they're going to be trying to catch your eye. When you catch their eye, hold the gaze a little longer than usual, and when you break the eye contact, blush. Guys think it's cute when you blush. Don't worry if you can't blush.

TIPS:

1. Be yourself! Don't try to be someone that you're not.

2. Be flirty, if you show you're interested in him, he will flirt back.

3. Don't hang onto him and crowd him. If he tells you to back up...back up.

4. If he has a girlfriend, hold back. Don't throw out the guns and flirt flirt flirt, be yourself and eventually they will break up. if not, maybe he isn't the one.

5. Don't push him away keep him close

WARNINGS:

1. Don't dress like a very available person, show too much and you might be asking for just that.

2. Ask the guy you like out with confidence.

3. Don't be hostile, but at the same time don't be over-friendly.

4. If he asks you questions, don't gabble on for ages. Let him talk about himself as well.

Source: wikihowdotcom

4 comments

HONGKONG LABOR ATTACHE BULLIES LOWLY VICTIMIZED OFW: Talking about unsung heroes

Agnes, the distressed overseas Filipino worker (OFW), clicked her mobile phone on record as she entered his office. Imagine the horror she had at every moment with him.

His name is Romulo Salud, the labor attache of the Philippines to Hong Kong.

Some people call him Romy. I CALL HIM MONSTERIN A GOVERNMENT POST!




In the said meeting, Labatt Salud told Tenorio: ‘Wag mong gagamitin yang karapatan. Dahil karapatan ko rin… kung tatanggapin kita o hindi. Wag mong pagdidiinan mo sa akin yang karapatan mo ha?’  [Don’t use the word “right”. Because it is also my right if I am going to accept you or not.]

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Tuesday

FOREIGN VICTIMS OF “VINUYA” SPEAK IN FAVOR OF UP LAW AND THE COMFORT WOMEN

Tuesday
Holding the UP Law Faculty in Contempt Would Be a Grave Mistake
by Evan Criddle And Evan Fox-Decent

[Opinio Juris is delighted to post these remarks by Professors Evan Fox-Decent (McGill) and Evan Criddle (Syracuse) on the fallout from the allegations that their article was plagiarized by a member of the Philippines Supreme Court]

We are writing to lend support to the University of Philippine’s College of Law, which now faces a very serious charge of contempt from the Philippine Supreme Court (PSC). If the members of the College are held in contempt, they face the loss of their bar licenses and with that the loss of their ability to teach and practice law.

A few months ago the PSC rendered its decision in Isabelita Vinuya et al. v. Executive Secretary et al. (full text of this decision available at:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm ). The complainants asked the PSC to order the Philippine government to seek reparations from Japan for the Japanese military’s mistreatment of Philippine women during World War II. During the Japanese occupation of the Philippines, the Japanese military interned scores of Philippine women and placed them in sexual slavery. The Vinuya decision discusses jus cogens or peremptory norms of international law, as these norms enjoy a status that cannot be overridden by treaty. The PSC concluded the no such norm prohibited sexual slavery, and thus that jus cogens was irrelevant to the case.

In its jus cogens discussion, the PSC quoted without attribution numerous selections from an article by Evan Criddle and myself, an article featured here at Opinio Juris. In the aftermath of Vinuya, Professor Criddle noted that the most troubling aspect of the PSC’s jus cogens discussion is that it implies that sexual slavery, crimes against humanity, and other abuses are not covered by jus cogens, whereas we had emphatically argued that they are.

The complainants in Vinuya filed a motion for reconsideration, pointing to more than 30 tracks lifted without attribution from our article. The complainants also alleged that material from Mark Ellis and Christian Tams had been used without proper attribution. The motion is available here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/. The University of the Philippine’s College of Law issued a statement critical of the apparent plagiarism, available here.
The PSC held a hearing to review the plagiarism charge and delivered a split decision. The majority acknowledged that some of our article’s text was used in Vinuya without appropriate referencing, but chalked this up to clerical errors. The minority doubted that so many selections could be used innocently without attribution, raising the possibility that the lack of attribution stemmed from the Vinuya Court reaching conclusions directly contrary to those expressed by us, Ellis and Tams.

On 18 October 2010 the PSC issued an order giving members of the UP College of Law 10 days to show cause as to why they should not be sanctioned for issuing the statement critical of Vinuya.

Professor Criddle and I believe that it is not the place of a court to sanction individuals or institutions that have been critical of it. This principle is especially important in the case of a law school, where discussion of cases is an integral part of legal pedagogy. The idea that a law school or its members cannot express an opinion on a case is contrary to the best practices of law schools everywhere, and an affront to free expression. That a court would assert jurisdiction to sanction its detractors is, in our opinion, an abuse of judicial power. To the best of our knowledge, no court in a democracy has ever attempted to assert the kind of jurisdiction the PSC is asserting now against the UP College of Law.

We initially declined to comment on the substance of the plagiarism complaint, except as noted above. Readers can draw their own conclusions from the ‘tables of comparison’ (comparing the original text with text in Vinuya) provided by Justice Sereno who wrote with the minority in the plagiarism decision. Given the stakes involved now for members of the UP College of Law, we believe it is important for us to offer our opinion on the merits of the plagiarism charge. The point of our doing so is only to underline that the UP College of Law issued its critical statement in good faith and has clean hands in its dispute with the PSC. While the UP statement contains some harsh and uncompromising language, it emerged in the wake of a controversial decision, and is clearly within the scope of speech protected under any reasonable interpretation of freedom of expression.

A cursory glance at the tables of comparison set out in Justice Serano’s opinion reveals repeated verbatim or near-verbatim uses of text from our article without attribution. If a law student submitted an essay with this much cut-and-paste text, without attribution, he or she would almost certainly be subject to disciplinary action. We say this with all due respect to the PSC, and only to emphasize to others in the legal community that we believe the UP College of Law acted in good faith when it criticized the use of our article in the Vinuya opinion. The College has clean hands in this dispute, and in our view deserves support.

SOURCE: http://opiniojuris.org/2010/10/26/holding-the-up-law-faculty-in-contempt-would-be-a-grave-mistake/

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MORE PLAGIARISM IN THE DEL CASTILLO’s PONENCIA IN “ANG LADLAD”

Quantcast
TAKEN FROM ATTY HARRY ROQUE'S BLOG
http://harryroque.com/2010/10/26/more-plagiarism-in-the-del-castillos-ponencia-in-ang-ladlad/trackback/


One of my former students who is now pursuing further studies in the US made an independent review of the ponencia of SC Justice Mariano del Castillo in the “Ang Ladlad” case and listed the following instances of plagiarism:
 
Ladlad ponencia by J. del Castillo Original source
Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.
Source: Section 49 of Handyside vs. United Kingdom (1979), a decision by the European Court of Human Rights (ECHR)
Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.
Source: Hurley vs. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 515 U.S. 557, at 579.
However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door. What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community.
Source: Section 19 of Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, a decision by the Supreme Court of Canada
[42] x x x  See also, L. and V. v Austria (2003-I 29; (2003) 36 EHRR 55) and S.L. v Austria (2003-I 71; (2003) 37 EHRR 39),  where the European Court considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’. In L. and V. v Austria65 and S.L. v Austria66 the ECtHR considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’.67
65 L. andV. vAustria 2003-I 29; (2003) 36 EHRR 55.
66 S.L. vAustria 2003-I 71; (2003) 37 EHRR 39.
67 L. andV. vAustria, supra n. 65; and S.L. vAustria, ibid. at para. 44.

Source: Sexual Orientation, Gender Identity and International
Human Rights Law: Contextualising the Yogyakarta Principles by Michael O’Flaherty and John Fisher, Human Rights Law Review (2008) 8(2), 207-248, at 217.
Note:
(1)    The Human Rights Law Review is published by the Oxford University Press.
(2)    The journal article by O’Flaherty and Fisher was never cited in the Ladlad ponencia.
[44] x x x Note that in Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, the ECHR unanimously ruled that the banning of an LGBT gay parade in Warsaw was a discriminatory violation of Article 14 of the ECHR, which provides:
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It also found that banning LGBT parades violated the group’s freedom of assembly and association. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.
63. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44, p. 25, § 63, and Chassagnou and Others v. France [GC], nos. 25088/95 and 28443/95, ECHR 1999-III, p. 65, § 112).
Source: Paragraph 63 of Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May 3, 2007, a decision by the European Court of Human Rights.
[46] x x x x So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US Supreme Court held that the Boy Scouts of America could not be compelled to accept a homosexual as a scoutmaster, because “the Boy Scouts believe that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not “promote homosexual conduct as a legitimate form of behavior.”
When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”
When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. We therefore held, for example, that a State severely burdened the right of expressive association when it required the Boy Scouts to accept an openly gay scoutmaster. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” Boy Scouts of America v. Dale, 530 U. S. 640, 653 (2000).
Source: Justice Antonin Scalia’s Dissenting Opinion in Washington State Grange v. Washington State Republican Party, et al., 552 US 442, at 463.
[49] The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work) (Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right to water) (Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, November 26, 2002) and 14 of 2000 (on the right to the highest attainable standard of health) (Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, August 14, 2000), it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation.
The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003, it stated that, “State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These grounds also cover [inter alia] sexual orientation”. (Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, July 1, 2003, CRC/GC/2003/4).

The Committee on the Elimination of Discrimination Against Women (CEDAW), has, on a number of occasions, criticized States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, “lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished” (Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, February 5, 1999, A/54/38 at par. 128).
The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos 18 of 2005 (on the right to work),37 15 of 2002 (on the right to water)38 and 14 of 2000 (on the right to the highest attainable standard of health),39 it has indicated that the Covenant proscribes any discrimination on the basis of, inter-alia, sex and sexual orientation ‘that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]’. The CESCR has consistently based this prohibition on the terms of the Covenant’s anti-discrimination provision, Article 2.2, which lists invidious categories of discrimination as including ‘sex’ and ‘other status’. Presumably, since the CESCR distinguishes ‘sex’and ‘sexual orientation’ in its General Comments, it locates sexual orientation within the rubric of ‘other status’. The CESCR, in the General Comments, also invokes the article addressing equal rights of men and women, Article 3, as a basis for its prohibition of sexual orientation-related discrimination. This linkage of the categories of sex and sexual orientation-related discrimination is discussed subsequently in the context of the practice of the Human Rights Committee (HRC).

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003,40 it stated that, ‘State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These grounds also cover [inter alia] sexual orientation’. The CRC thus appears to adopt the same approach as the CESCR in locating sexual orientation within the category of ‘other status’.

x x x x

The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that,‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’.44 The Committee on the Elimination of Racial Discrimination (CERD) appears never to have engaged with issues of discrimination against persons who belong to both racial and sexual minority groups. This gap is startling when one considers the authoritative evidence of such persons facing forms of ‘double discrimination’, as reported, for instance, by the UN Human Rights Council’s Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.45

37 Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, 24 November 2005.
38 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, 26 November 2002.
39 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, 11 August 2000.
40 Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/
2003/4.
x x x x
44 Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, 5 February 1999, A/54/38 at para. 128.
45 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Commission on Human Rights, 28 February 2006,
E/CN.4/2006/16/Add.3 at para. 40.

Source: Sexual Orientation, Gender Identity and International
Human Rights Law: Contextualising the Yogyakarta Principles by Michael O’Flaherty and John Fisher, Human Rights Law Review (2008) 8(2), 207-248, at 214-216.
Note:
(1)    The Human Rights Law Review is published by the Oxford University Press.
(2)    The journal article by O’Flaherty and Fisher was never cited in the Ladlad ponencia.
[51] The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) individuals. It contains 29 Principles adopted by human rights practitioners and experts, together with recommendations to governments, regional intergovernmental institutions, civil society, and the United Nations. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) people, and further of intersexuality requested by Louise Arbour according to the International Human Rights Law.
Source: Wikipedia – http://en.wikipedia.org/wiki/Yogyakarta_Principles

It contains 29 Principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil society, and the UN itself.

Source: Human Rights Watch World Report 2008, p. 36. Preview of the book (as well as the relevant page) is available at:
http://books.google.com/books?id=4QL9BElMSbkC

My take:

HERE IS THE FACE OF THE JUSTICE THAT HAS CAUSED US INTERNATIONAL ATTENTION WHICH IS REALLY UNFORTUNATE. I HOPE HE WOULD DO A SACRIFICE FOR THE FILIPINO PEOPLE AND ADMIT THE MISTAKE AND STEP DOWN SO WE COULD ALL MOVE ON.



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THE CEDAW DECISION ON FILIPINA KAREN'S RAPE CASE: A CRITIQUE ON THE RAPE LAW

United Nations

CEDAW/C/46/D/18/2008
Distr.: Restricted 1 September 2010 Original: English

Convention on the Elimination of All Forms of Discrimination against Women

ADVANCED UNEDITED VERSION
Committee on the Elimination of Discrimination against Women
Forty-sixth session 12-30 July 2010

The Committee on the Elimination of Discrimination against Women, established under article 17 of the Convention on the Elimination of All Forms of Discrimination against Women, Meeting on 16 July 2010, Adopts the following:

Views under article 7, paragraph 3, of the Optional Protocol
---------------------------------

1. The author of the communication, dated 29 November 2007, is Karen Tayag Vertido, a Filipino national who claims to be a victim of discrimination against women within the meaning of article 1 of the Convention in relation to general recommendation No. 19 of the Committee on the Elimination of Discrimination against Women. She also claims that her rights under articles 2 (c), (d), (f) and 5 (a) of the Convention on the Elimination of All Forms of Discrimination against Women have been violated by the State party. The author is represented by counsel, Evalyn G. Ursua. The Convention and its Optional Protocol entered into force in the Philippines on 4 September 1981 and 12 February 2004, respectively.

Facts as presented by the author
2.1 The author is a Filipino woman who is now unemployed. She served as Executive Director of the Davao City Chamber of Commerce and Industry (“the Chamber”) in Davao City, the Philippines, when J. B. C. (“the accused”), at that time a former 60-year-old President of the Chamber, raped her. The rape took place on 29 March 1996.

2.2 The accused offered to take the author home, together with one of his friends, after a meeting of the Chamber on the night of 29 March 1996. When the author realized that Mr. C. intended to drop off his friend first, she told him that she would rather take a taxi because she was in a hurry to get home. Mr. C., however, did not allow her to take a taxi and sped away. Shortly after the accused dropped off his friend, he suddenly grabbed the author’s breast. This action caused her to lose her balance. While trying to regain her balance, the author felt something in the accused’s left-hand pocket that she thought was a gun. She tried to stop him from driving her anywhere other than to her home, but he very quickly drove the vehicle into a motel garage. The author refused to leave the car but the accused dragged her towards a room, at which point he let her go in order to unlock the door (the car was only three to four metres away from the motel room). The author ran inside to look for another exit, but found only a bathroom. She locked herself in the bathroom for a while in order to regain her composure and, as she could hear no sounds or movements outside, she went out to look for a telephone or another exit. She went back towards the room, hoping that the accused had left, but then saw him standing in the doorway, almost naked, with his back to her and apparently talking to someone. The accused felt her presence behind him, so he suddenly shut the door and turned towards her. The author became afraid that the accused was reaching for his gun. The accused pushed her onto the bed and forcibly pinned her down using his weight. The author could hardly breathe and pleaded with the accused to let her go. While pinned down, the author lost consciousness. When she regained consciousness, the accused was raping her. She tried to push him away by using her nails, while continuing to beg him to stop. But the accused persisted, telling her that he would take care of her, that he knew many people who could help her advance in her career. She finally succeeded in pushing him away and freeing herself by pulling his hair. After washing and dressing, the author took advantage of the accused’s state of undress to run out of the room towards the car, but could not manage to open it. The accused ran after her and told her that he would bring her home. He also told her to calm down. 2.3 On 30 March 1996, within 24 hours of being raped, the author underwent a medical and legal examination at the Davao City Medical Centre. A medical certificate mentions the “alleged rape”, the time, date and place it was said to have occurred, as well as the name of the alleged perpetrator. 2.4 Within 48 hours of being raped, the author reported the incident to the police. On 1 April 1996, she filed a complaint in which she accused J. B. C. of raping her. 2.5 The case was initially dismissed for lack of probable cause by a panel of public prosecutors, which conducted a preliminary investigation. The author filed an appeal regarding the dismissal of her complaint with the Secretary of the Department of Justice, which reversed the dismissal and, on 24 October 1996, ordered that the accused be charged with rape. J. B. C. subsequently filed a motion for reconsideration, which was denied by the Secretary of Justice. 2.6 The information was filed in court on 7 November 1996 and the Court issued an arrest warrant for J. B. C. that same day. He was arrested more than 80 days later, after the chief of the Philippine National Police issued an order on national television directing the police to make the arrest within 72 hours. 2.7 The case remained at the trial court level from 1997 to 2005.The reasons for the prolonged trial included the fact that the trial court judge was changed several times and the accused filed several motions before the appellate courts. Three judges recused themselves from the case. The case was referred to Judge Virginia Hofileña-Europa in September 2002. 2.8 At the trial, an expert in victimology and rape trauma, Dr. June Pagaduan Lopez, testified that having counselled the author for 18 months prior to her testifying in court, she had no doubt that the author was suffering from post-traumatic stress disorder as a result of a rape. She also testified that she was sure that the author had not fabricated her claim. She explained that the lack of physical injury in the author’s case was due to the fact that the incident was an “acquaintance or confidence rape” and because the common coping mechanism was dissociation. Asked by the accused’s defence counsel if fantasies of rape were common among women, she replied unequivocally that this was not true. Another psychiatrist, Dr. Pureza T. Oñate, also found that the author was suffering from post-traumatic stress disorder. A witness for the defence, a room boy from the motel where the rape took place, testified that he had not heard any shouts or commotion from the room. A motel security officer testified he had not received any reports of an incident on the night of 29 March 1996. The accused also testified, claiming that the sexual intercourse was consensual and that he and the author had been flirting for a long time before the alleged rape took place. The case was submitted for resolution in June 2004. Both parties submitted their respective memorandums. 2.9 On 26 April 2005, the Regional Court of Davao City, presided by Judge Virginia Hofileña-Europa, issued a verdict acquitting J. B. C.. In her decision, Judge Hofileña-Europa was guided by the following three principles, derived from previous case law of the Supreme Court: (a) it is easy to make an accusation of rape; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) in view of the intrinsic nature of the crime of rape, in which only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defence. The Court challenged the credibility of the author’s testimony. Although the Court allegedly took into account a Supreme Court ruling according to which “the failure of the victim to try to escape does not negate the existence of rape”, it concluded that that ruling could not apply in this case, as the Court did not understand why the author had not escaped when she allegedly appeared to have had so many opportunities to do so. The Court found the allegations of the complainant as to the sexual act itself to be implausible. Guided by a Supreme Court ruling, the Court concluded that should the author really have fought off the accused when she had regained consciousness and when he was raping her, the accused would have been unable to proceed to the point of ejaculation, in particular bearing in mind that he was already in his sixties. It also concluded that the testimony of the accused was corroborated on some material points by the testimony of other witnesses (namely the motel room boy and the friend of the accused). The Court therefore concluded that the evidence presented by the prosecution, in particular the testimony of the complainant herself, left too many doubts in the mind of the Court to achieve the moral certainty necessary to merit a conviction. Again applying the guiding principles derived from other case law in deciding rape cases, the Court therefore declared itself unconvinced that there existed sufficient evidence to erase all reasonable doubts that the accused committed the offence with which he was charged and acquitted him.

Complaint
3.1 The author argues that she suffered revictimization by the State party after she was raped. She refers to article 1 of the Convention in relation to general recommendation No. 19 of the Committee on the Elimination of Discrimination against Women. She claims that by acquitting the perpetrator, the State party violated her right to non-discrimination and failed in its legal obligation to respect, protect, promote and fulfil that right. She further claims that the State party failed in its obligation to ensure that women are protected against discrimination by public authorities, including the judiciary. She submits that this shows the State party’s failure to comply with its obligation to address gender-based stereotypes that affect women, in particular those working in the legal system and in legal institutions. She further submits that the acquittal is also evidence of the failure of the State party to exercise due diligence in punishing acts of violence against women, in particular, rape.

3.2 The author argues that the defendant’s acquittal is a violation of the positive obligations of the State party under the following articles of the Convention: article 2 (c), “to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination”; article 2 (d), “to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation”; and article 2 (f), “to take all appropriate measures … to modify or abolish … customs and practices which constitute discrimination against women”.

3.3 The author submits that the decision of acquittal is discriminatory within the meaning of article 1 of the Convention in relation to general recommendation No. 19, in that the decision was grounded in gender-based myths and misconceptions about rape and rape victims, and that it was rendered in bad faith, without basis in law or in fact.  

3.4 The author alleges that the decision was grounded in gender-based myths and misconceptions about rape and rape victims in violation of article 5 (a) of the Convention, which requires States parties “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”. She also refers to the specific comments in general recommendation No. 19 on articles 2 (f), 5 and 10 (c).

3.5 The author further alleges that in her case, the Court relied on the genderbased myths and stereotypes described below, without which the accused would have been convicted. 3.5.1 The first myth and stereotype is that a rape victim must try to escape at every opportunity. The author argues that the evidence of her trying to escape has been distorted in the decision and alleges that Judge Hofileña-Europa discriminated against her because she insisted on what she considered to be the rational and ideal response of a woman in a rape situation, that is, to take advantage of every opportunity to escape. She submits that such a demand requires the woman to actually succeed in defending herself, thereby eliminating even the possibility of the rape, and notes that according to the Supreme Court, the failure of the victim to try to escape does not negate the existence of rape. She claims that Judge HofileñaEuropa did not consider the expert testimonies of Dr. Lopez or Dr. Oñate, in which they explained that victims exhibit a wide range of behavioural responses when threatened with rape, as well as during and after the rape. 

3.5.2 To be raped by means of intimidation, the victim must be timid or easily cowed is the second myth and stereotype challenged by the author. She argues that the Court perpetuated the stereotype of a rape victim, according to which women who are not timid or not easily cowed are less vulnerable to sexual attacks. She further submits that she found it difficult to understand the Court’s attention to her character, which is not an element of the crime of rape. 

3.5.3 A third myth and stereotype challenged by the author is that to conclude that a rape occurred by means of threat, there must be clear evidence of a direct threat. The author submits that, instead of employing a context-sensitive assessment of the evidence and looking at the circumstances as a whole, the Court focused on the lack of the objective existence of a gun. The author also submits that according to case law and legal theory, it is the lack of consent, not the element of force, that is seen as the constituent element of the offence of rape. She further contends that the element of force or intimidation in Philippine rape law should be construed broadly so as to include other coercive circumstances in a manner consistent with the commentary to the Anti-Rape Law of 1997 (Republic Act No. 8353). More generally, the author alleges that requiring proof of physical force or the threat of physical force in all circumstances risks leaving certain types of rape unpunished and jeopardizes efforts to effectively protect women from sexual violence. 

3.5.4 The fact that the accused and the victim are “more than nodding acquaintances” makes the sex consensual constitutes a fourth myth and stereotype. The author submits that it is a grave misconception that any relationship between the accused and the victim is valid proof of the victim’s consent to the sexual act.

3.5.5 A fifth myth and stereotype identified by the author is that when a rape victim reacts to the assault by resisting the attack and also by cowering in submission because of fear, it is problematic. The author submits that, contrary to the ruling issued by Judge Hofileña-Europa, there is no testimony indicating that she actually cowered in submission. She alleges that, on the contrary, she resisted as much as she could and that although there were moments when she dissociated, this did not negate her many verbal and physical expressions of lack of consent. She submits that she was perceived by the Court as not being “a timid woman who could be easily cowed”. She was deemed to have consented to the intercourse because she did not resist the advances of the accused and “she did not escape when she appeared to have had so many opportunities to do so”. She also submits that the Court unjustly imposes a standard of “normal” or “natural” behaviour on rape victims and discriminates against those who do not conform to these standards. 

3.5.6 The rape victim could not have resisted the sexual attack if the accused were able to proceed to ejaculation is a sixth myth and stereotype. The author claims that whether or not the accused ejaculated is completely immaterial to a prosecution for rape, as it is not an element of the crime, does not prove that the intercourse was consensual and does not negate the resistance of the victim. She further claims that the statement of the Court perpetuates the false notion that rape is a crime of lust or passion associated with love and desire. 

3.5.7 The Court relied on a seventh myth and stereotype, according to which it is unbelievable that a man in his sixties would be capable of rape. The author claims that, as a rape victim, she does not have the burden of proving the sexual prowess of the accused, which is not an element of the crime of rape but a matter of the defence. She further claims that should such a myth be applied to all accused men in their sixties, every case where a person would claim to have been raped by an old man would invariably result in the acquittal of the accused.  

3.5.8 With regard to the myths embodied in the “guiding principles in deciding rape cases” which were followed by the judge in deciding her case (see para. 2.9 above), the author claims that an accusation of rape is not easy to make and that to say that a rape charge is more difficult for the accused to disprove is unwarranted. She further claims that this presumption unjustifiably and immediately places rape victims under suspicion.

3.6 The author alleges that the decision was rendered in bad faith, without basis in law or in fact. She alleges that distortions of evidence, as well as inconsistencies between the findings and conclusions of Judge Hofileña-Europa, led to the acquittal of the accused. She further alleges that Judge Hofileña-Europa, while citing all the Supreme Court doctrine that favours the rape victim, ruled without an evidentiary basis that they were not applicable to the author’s case. She submits that this legal manoeuvring under the pretence of fair reasoning amounts to bad faith and a gross disregard of the author’s rights. She refers to article 2 (c) of the Convention, by which a “competent tribunal” is required to ensure the effective protection of women against any act of discrimination. She also submits that a decision grounded in gender-based myths and misconceptions or one rendered in bad faith can hardly be considered as one rendered by a fair, impartial and competent tribunal. 

3.7 The author argues that she had to endure eight years of litigation and that she and her family suffered immeasurably from the public coverage of the case. She was also forced to resign from her job as Executive Director of the Davao City Chamber shortly after the rape and was told by her former employer that they had hired a man (paying him double her salary) to avoid a repetition of her case. She also alleges that she and her family had to move to escape the community, which became hostile to her because she dared to prosecute a wealthy and influential man. She further alleges that all of these factors aggravated the post-traumatic stress disorder from which she had been suffering as a direct result of the rape and that the State did not protect her and her family. She also maintains that her physical and mental integrity were affected, and prevented her from rebuilding her life. She was unable to find a job after her dismissal. Finally, she alleges that the discriminatory decision of Judge Hofileña-Europa revictimized her all over again, that she suffered from a lengthy bout of depression after the decision and that she needed quite some time to find the will and energy to even consider filing her communication.  

3.8 The author argues that her case is not an isolated one and that it is one among many trial court decisions in rape cases that discriminate against women and perpetuate discriminatory beliefs about rape victims. She further argues that those insidious judgements violate the rights and freedoms of women, deny them equal protection under the law, deprive them of a just and effective remedy for the harm they suffered and continue to force them into a position subordinate to men. The author presents as examples seven decisions of trial courts from 1999 to 2007 illustrating the systematic discrimination that rape victims experience when they seek redress. From those seven cases, she drew the following similarities with her case: (a) The “sweetheart defence” or a variation thereof, by which it is asserted that the sexual act is consensual because intimate or sexual relations existed or exist between the complainant and the accused; (b) The Court’s appreciation of the complainant’s conduct before, during and after the alleged rape, with the main line of reasoning being that the complainant did not exhibit the “natural” reaction of a woman who claims to have been violated; (c) The absence of injury, on the part of both the accused and the complainant; (d) The nature, amount or severity, and the perceived effects of the force, threat or intimidation as applied to the complainant; (e) The understanding of the concept of consent and how it is manifested or communicated. 

3.9 The author submits that Philippine rape law and the way it has been interpreted by the Supreme Court is a collection of contradictions. She further submits that more than 25 years after the Philippines ratified the Convention, myths, misconceptions and discriminatory assumptions in jurisprudence continue to place rape victims at a legal disadvantage and significantly reduce their chances of obtaining redress for the violation they suffered. She explains that the reasons for the tremendously underreported number of rape cases include the fact that victims are afraid of the stigma that will most likely result from seeking justice, lack confidence in the legal process and often fail to obtain appropriate redress.  

3.10 The author further alleges that because rape cases are subject to a rigorous screening process by law enforcement agencies and prosecutorial offices prior to reaching the judicial system, the dismissal by a court of a rape case grounded in gender-based myths and misconceptions is the ultimate revictimization of the victim.  

3.11 The author claims that Judge Hofileña-Europa and all judges responsible for deciding rape cases lack adequate training and therefore sufficient understanding of the dynamics of sexual abuse. She further claims that the legislative reforms, such as the penal code amendments on rape, as well as the protective measures put in place by Republic Act No. 8505, become insignificant, as the law still will not provide adequate and effective legal remedies for victims. While acknowledging and giving a very detailed account of all training undertaken by both the Philippine Judicial Academy and the Supreme Court Committee on Gender Responsiveness in the Judiciary, the author states that much still needs to be done, given the extent of the prejudice against the female victims of rape and other forms of sexual violence. This requires that training for the judiciary be specifically focused on sexual violence and rape. She alleges that no programmes are in place for training judges to hear cases of sexual violence or rape involving adults. 

3.12 As to the exhaustion of domestic remedies, the author maintains that an acquittal puts an end to the process for the victim. She further submits that under Philippine law, she would be barred from filing any appeal against a judgement of acquittal because of the constitutional right of double jeopardy, which forbids a defendant from being tried twice for the same crime. Regarding the existence of an extraordinary remedy of certiorari under rule 65 of the Revised Rules of Court, which could be used in cases of acquittal under certain circumstances, the author argues that the requirements have not been met in the present case. Firstly, one must prove that the decision of the Court is null and void because an error in jurisdiction or one amounting to a lack of jurisdiction has occurred. Secondly, the remedy is available only to the people of the Philippines represented by the Office of the Solicitor General, but not to the victim herself. Thirdly, the Solicitor General should have used the remedy within 60 days of the date of the acquittal.  

3.13 The author maintains that the matter has not been and is currently not being examined under any other international investigation or settlement procedure. 

3.14 The author asks the Committee to find that she has been a victim of discrimination and that the State party has failed to fulfil its obligations under article 2 (c), (d) and (f) of the Convention. She also asks the Committee to recommend that the State party provide her with financial compensation in an amount proportionate to the physical, mental and social harm caused to her and to the seriousness of the violation of her rights, and to enable her to continue her therapy and other treatment. 

3.15 She further asks that it be recommended to the State party’s judiciary to investigate Judge Hofileña-Europa to determine the regularity of her actions in rendering the judgement of acquittal, to include in that investigation a review of her other judicial decisions and administrative actions as a former executive judge, and to develop a specific sexual violence education and training programme for trial court judges and public prosecutors designed to make them understand sexuality issues and the psychosocial effects of sexual violence, properly appreciate medical and other evidence, adopt an interdisciplinary approach in investigating and deciding cases, and rid them of myths and misconceptions about sexual violence and its victims. Such a programme should include a system to monitor and evaluate the effectiveness of such education and training on the judges and prosecutors concerned; undertake a serious review of jurisprudential doctrines on rape and other forms of sexual violence with a view to abandoning those that are discriminatory or that violate the rights guaranteed by the Convention and other human rights conventions; establish monitoring of trial court decisions in cases of rape and other sexual offences to ensure their compliance with the proper standards in deciding cases and their consistency with the provisions of the Convention and other human rights conventions; compile and analyse data on the number of sexual violence cases filed in the prosecution offices and in the courts, the number of dismissals and the reasons for such dismissals; and provide for the right to appeal for rape victims when the perpetrator has been acquitted owing to discrimination against the victim on grounds of her sex.  

3.16 The author also asks the Committee to recommend that the Congress of the State party review the laws against rape and other forms of sexual violence, including their enforcement and implementation by law enforcement and prosecutorial agencies and the courts in order to remove or amend the provisions of laws that lead to discriminatory practices and doctrines; clarify that rape is about the lack of consent of the victims; and provide adequate funds for the implementation of the Rape Victim Assistance and Protection Act of 1998 (Republic Act No. 8505), in particular its mandate to establish a rape crisis centre in every province and city to ensure that appropriate support services are available and accessible to victims of rape and other sexual violence.  

3.17 Finally, the author also requests, in general, the respect, protection, promotion and fulfilment of women’s human rights, including their right to be free from all forms of sexual violence; the exercise of due diligence in investigating, prosecuting and punishing all complaints of rape and other sexual violence; efforts to ensure that victims of sexual violence have effective access to justice, including free, competent and sensitive legal aid, where necessary, as well as to just and effective complaints procedures and remedies; efforts to ensure that victims of sexual violence and their families receive appropriate protective and support services; and efforts to seriously address graft and corruption in law enforcement agencies, prosecutorial offices and the judiciary to ensure that rape and other cases of sexual violence are not compromised or dismissed.

State party’s submission on admissibility and merits
4.1 In its submission of 7 July 2008, the State party explains that a verdict of acquittal is immediately final and that a re-examination of the merits of such an acquittal would place the accused in jeopardy for the same offence. It further explains that a verdict of acquittal, however, may be nullified through a proper petition for certiorari to show grave abuse of discretion. The remedy of certiorari is provided under section 1, rule 65, of the Rules of Court. 4.2 The State party challenges the author’s assertion that the extraordinary remedy of certiorari “is available only to the People of the Philippines as party plaintiff, represented by the Office of the Solicitor General, but not to the victim herself” and that “she may not file a petition for certiorari on her own or through her private counsel”. It argues that the Supreme Court has admitted petitions for certiorari filed by an offended party pursuant to section 1, rule 65, of the Rules of Court. Thus, the Supreme Court, in People v. Calo, Jr., 2 citing the earlier case of Paredes v. Gopengco, 3 held that “the offended parties in criminal cases have sufficient interest and personality as ‘person(s) aggrieved’ to file the special civil action of prohibition and certiorari under sections 1 and 2 of rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object”. The Supreme Court having, in a number of cases, relaxed the application of the provisions of the Rules of Court to better serve the ends of substantial justice, the State party submits that the author cannot claim that she has no legal remedy under Philippine law, as she is not prohibited from availing herself of the special remedy of certiorari.

Author’s comments on the State party’s observations on admissibility
5.1 In her submission of 26 September 2008, the author challenges the State party’s assertion that she could have availed herself of the special remedy of certiorari. With regard to the role of the victim in criminal cases, she argues that criminal cases are prosecuted in the name of the “People of the Philippines”, the offended party, who appears in court as the party plaintiff and that the victim’s role is limited to that of a witness for the prosecution. The interest of the victim, also called the “private complainant”, “private offended party” or “complaining witness”, is limited to the civil liability that is instituted in the criminal action. Therefore, the author deems the State party’s submission to be misleading, given that she has to pursue further processes after the accused has been acquitted on the merits of the case. 5.2 With regard to the exhaustion of domestic remedies, the author submits that the remedy of certiorari under rule 65 of the Rules of Court was neither available to her, nor likely to bring effective relief, assuming she could have availed herself of it. This remedy is not a matter of rights and is granted by judicial discretion only in rare cases. She cites numerous cases by the Supreme Court and draws from them the following strict requirements it applies, in addition to those already stated in the Rules of Court, to grant such a remedy: firstly, the petitioner must show that the recourse of appeal is not available, or that he or she has no plain, speedy or adequate remedy in the ordinary course of laws against his or her perceived grievances; and secondly, the sole office of the writ of certiorari is the correction of errors of jurisdiction, including the commission of a grave abuse of discretion amounting to a lack of jurisdiction and does not include correction of a public respondent’s evaluation of the evidence and factual finding thereon. Therefore, the petition for certiorari must be based on jurisdictional grounds, because as long as the respondent acted within jurisdiction, any error committed by him, her or it in the exercise thereof will amount to nothing more than an error of judgement, which may be reviewed or corrected only by appeal. A special civil action for certiorari will prosper only if grave abuse of discretion is manifested and, for the abuse to be grave, the power must be exercised in an arbitrary or despotic manner by reason of passion or personal hostility. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or to act in contemplation of law. In the present case, the author argues that, while it may be true that she, as victim, could have filed a petition for certiorari, she would have had to show that the acquittal was not about errors of judgement but about errors of jurisdiction and that the constitutional prohibition against double jeopardy therefore did not constitute a bar to the remedy. But in the author’s case, the sex discrimination that she suffered can be easily dismissed as an error of judgement. Given the right of the accused against double jeopardy, the Court would have most likely considered any error ascribed by the victim to the judge as simply an error of judgement. Moreover, the author argues that she would have had to surmount the doctrinal rule that factual findings of trial courts must be respected. Finally, she submits that she would have had to pay prohibitive docket fees for a petition for certiorari, as well as expenses for the cost of printing and reproducing the pleadings and voluminous attachments in the required number of copies. The author therefore concludes that the remedy of certiorari was hardly the “available” and “effective” remedy contemplated by article 4, paragraph 1, of the Optional Protocol. 5.3 Furthermore, the author submits that the two cases referred to by the State party to show that she could have availed herself of the remedy of certiorari do not apply to her situation. Those cases involved interlocutory orders, specifically an order denying a motion for inhibition and an order granting bail, not a final judgement of acquittal after a trial on the merits duly promulgated by the trial court, as in the author’s case. Therefore, none of those cases can be successfully invoked to support the legal standing of the victim before the Supreme Court in an action for certiorari involving a judgement of acquittal. 5.4 The author adds that the Supreme Court has not rendered a decision that specifically recognizes the legal standing of a rape victim or any other offended party in a criminal case to file the special civil action of certiorari to reverse or nullify the acquittal of an accused after a trial on the merits of the case based on the evidence presented. In fact, she explains that in the case People v. Dela Torre, the Supreme Court held that “the prosecution cannot appeal a decision in a criminal case whether to reverse an acquittal or to increase the penalty imposed in a conviction” because it would violate the right of the accused against double jeopardy. It further stated, in an obiter dictum, that “the only way to nullify an acquittal or to increase the penalty is through a proper petition for certiorari to show grave abuse of discretion”, but clarified that “if the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the court a quo, the constitutional right against double jeopardy would be violated. Such recourse is tantamount to converting the petition for certiorari into an appeal, contrary to the express injunction of the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy”. 4 She submits that if she had filed a petition for certiorari, she would have asked the Court to conduct a “review of the findings of the court a quo” using the standards of human rights and sex discrimination. 5.5 The author submits also that it is the State’s obligation to properly and effectively prosecute crimes and that it is most unfair and improper to place the burden of the proper and effective prosecution of crimes on the victim, and to expect from her, when it had failed at the trial court level because of sex discrimination, to pursue it all the way to the appellate court despite her lack of resources and the obstacles placed in her way by substantive and procedural law.

Issues and proceedings before the Committee concerning admissibility
6.1 During its forty-fourth session (20 July-7 August 2009), the Committee considered the admissibility of the communication in accordance with rules 64 and 66 of its rules of procedure. It ascertained that the matter had not already been or was being examined under another procedure of international investigation or settlement. 6.2 With regard to article 4, paragraph 1, of the Optional Protocol requiring the exhaustion of domestic remedies, the Committee noted that authors must use the remedies in the domestic legal system that are available to them and that would enable them to obtain redress for the alleged violations. The Committee considered that the crux of the author’s complaints related to the alleged gender-based myths and stereotypes about rape and rape victims, which had been relied upon in the judgement of the trial court and which had led, apart from the acquittal of the accused, to her revictimization. It noted both the author and the State party’s explanations, according to which a verdict of acquittal was immediately final and a re-examination of the merits of such acquittal would have placed the accused in jeopardy for the same offence. It also noted the State party’s argument that the communication ought to be declared inadmissible under article 4, paragraph 1, of the Optional Protocol on the grounds of non-exhaustion of domestic remedies because the author had not availed herself of the special remedy of certiorari provided under section 1, rule 65, of the Rules of Court. The Committee noted the author’s reply, in which she stated that the remedy of certiorari was not available to her, criminal cases being prosecuted in the Filipino criminal legal system in the name of the “People of the Philippines” and the remedy of certiorari being available only to the “People of the Philippines” represented by the Office of the Solicitor General, but not to the victim herself. It also noted the author’s assertion that, even if she could have availed herself of such a remedy, the sole office of the writ of certiorari was the correction of errors of jurisdiction, not errors of judgement, and that the sex-based discrimination she had suffered and on which the author could have based her petition for certiorari would have most likely been considered as an error of judgement. The Committee further noted that the State party had not contested this assertion. In addition, it noted that the writ of certiorari was a civil remedy. The Committee therefore found that the remedy of certiorari was not available to the author. 6.3 The Committee considered that the author’s allegations relating to articles 2 (c), (d), (f) and 5 (a) of the Convention had been sufficiently substantiated, for purposes of admissibility, and declared the communication admissible on 28 July 2009.

Comments from the State party on the merits
7.1 On 3 September 2009, following the transmission of the 28 July 2009 admissibility decision to the State party, the latter was requested to submit its written explanations or statements on the substance of the matter by 31 October 2009. Since no reply was received, a reminder was sent to the State party on 15 January 2010, inviting it to submit additional comments no later than 28 February 2010. On 1 July 2010, the State party submitted comments, in which it reiterated its previous observation, that the author still had a recourse in certiorari available. While it is classified as a special civil action under the Rules of the Court, such recourse is also available in criminal cases. Therefore, a petition for certiorari, in which the author would have argued that there was a grave abuse of discretion, amounting to lack or excess of jurisdiction in the proceedings, may have annulled the acquittal verdict of the accused. 7.2 Regarding the author’s contention that the Supreme Court’s interpretation of the Philippines Rape Law is a “collection of contradictions”, the State party observed that the fact that the Supreme Court decisions vary from one case to another only proves that the Court carefully examines situations on a case-by-case basis, by appreciating available evidence, and in the light of specific scenarios and individual behaviour. According to the State party, such individualized and subjective appraisal by the Courts is consistent with the principle of the presumption of innocence. The State party contends that embracing the contentions of the author would result in a conviction of even innocent persons accused of rape. Finally, the State party noted that it would consider developing trainings on gender responsiveness for the judiciary.

Consideration of the merits
8.1 The Committee has considered the present communication in the light of all the information made available to it by the author and by the State party, as provided in article 7, paragraph 1, of the Optional Protocol. 8.2 The Committee will consider the author’s allegations that gender-based myths and misconceptions about rape and rape victims were relied on by Judge HofileñaEuropa in the Regional Court of Davao City in its decision, under article 335 of the Revised Penal Code of 1930, leading to the acquittal of the alleged perpetrator, and will determine whether this amounted to a violation of the rights of the author and a breach of the corresponding State party’s obligations to end discrimination in the legal process under articles 2 (c), 2 (f) and 5 (a) of the Convention. The issues before the Committee are limited to the foregoing. The Committee emphasizes that it does not replace the domestic authorities in the assessment of the facts, nor does it decide on the alleged perpetrator’s criminal responsibility. The Committee will also not address the question of whether the State party has breached its obligations under article 2 (d), which the Committee deems of less relevance in the case at hand. 8.3 With regard to the author’s claim in relation to article 2 (c), the Committee, while acknowledging that the text of the Convention does not expressly provide for a right to a remedy, considers that such a right is implied in the Convention, in particular in article 2 (c), by which States parties are required “to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination”. The Committee notes the undisputed fact that the case remained at the trial court level from 1997 to 2005. It considers that for a remedy to be effective, adjudication of a case involving rape and sexual offenses claims should be dealt with in a fair, impartial, timely and expeditious manner.

8.4 The Committee further reaffirms that the Convention places obligations on all State organs and that States parties can be responsible for judicial decisions which violate the provisions of the Convention. It notes that by articles 2 (f) and 5 (a), the State party is obligated to take appropriate measures to modify or abolish not only existing laws and regulations, but also customs and practices that constitute discrimination against women. In this regard, the Committee stresses that stereotyping affects women’s right to a fair and just trial and that the judiciary must take caution not to create inflexible standards of what women or girls should be or what they should have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim or a victim of gender-based violence, in general. The Committee further recalls its general recommendation No. 19 on violence against women. This general recommendation addresses the question of whether States parties can be held accountable for the conduct of non-State actors in stating that “… discrimination under the Convention is not restricted to action by or on behalf of Governments …” and that “under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”. In the particular case, the compliance of the State party’s due diligence obligation to banish gender stereotypes on the grounds of articles 2 (f) and 5 (a) needs to be assessed in the light of the level of gender sensitivity applied in the judicial handling of the author’s case. 8.5 The Committee notes that, under the doctrine of stare decisis, the Court referred to guiding principles derived from judicial precedents in applying the provisions of rape in the revised penal code of 1930 and in deciding cases of rape with similar patterns. At the outset of the judgement, the Committee notes a reference in the judgement to three general guiding principles used in reviewing rape cases. It is its understanding that those guiding principles, even if not explicitly referred to in the decision itself, have been influential in the handling of the case. The Committee finds that one of them, in particular, according to which “an accusation for rape can be made with facility”, reveals in itself a gender bias. With regard to the alleged gender-based myth and stereotypes spread throughout the judgement and classified by the author (see paras. 3.5.1-3.5.8 above), the Committee, after a careful examination of the main points that determined the judgement, notes the following issues. First of all, the judgement refers to principles such as that physical resistance is not an element to establish a case of rape, that people react differently under emotional stress, that the failure of the victim to try to escape does not negate the existence of the rape as well as to the fact that “in any case, the law does not impose upon a rape victim the burden of proving resistance”. The decision shows, however, that the judge did not apply these principles in evaluating the author’s credibility against expectations about how the author should have reacted before, during and after the rape owing to the circumstances and her character and personality. The judgement reveals that the judge came to the conclusion that the author had a contradictory attitude by reacting both with resistance at one time and submission at another time, and saw this as being a problem. The Committee notes that the Court did not apply the principle that “the failure of the victim to try and escape does not negate the existence of rape” and instead expected a certain behaviour from the author, who was perceived by the court as being not “a timid woman who could easily be cowed”. It is clear from the judgement that the assessment of the credibility of the author’s version of events was influenced by a number of stereotypes, the author in this situation not having followed what was expected from a rational and “ideal victim” or what the judge considered to be the rational and ideal response of a woman in a rape situation as become clear from the following quotation from the judgement: “Why then did she not try to get out of the car when the accused must have applied the brakes to avoid hitting the wall when she grabbed the steering wheel? Why did she not get out or even shout for help when the car must have slowed down before getting into the motel room’s garage? Why did she not stay in the bathroom after she had entered and locked it upon getting into the room? Why did she not shout for help when she heard the accused talking with someone? Why did she not run out of the motel’s garage when she claims she was able to run out of the hotel room because the accused was still NAKED AND MASTURBATING on the bed? Why did she agree to ride in the accused’s car AFTER he had allegedly raped her when he did not make any threats or use any force to coerce her into doing so?” Although there exists a legal precedent established by the Supreme Court of the Philippines that it is not necessary to establish that the accused had overcome the victim’s physical resistance in order to prove lack of consent, the Committee finds that to expect the author to have resisted in the situation at stake reinforces in a particular manner the myth that women must physically resist the sexual assault. In this regard, the Committee stresses that there should be no assumption in law or in practice that a woman gives her consent because she has not physically resisted the unwanted sexual conduct, regardless of whether the perpetrator threatened to use or used physical violence. 8.6 Further misconceptions are to be found in the decision of the Court, which contains several references to stereotypes about male and female sexuality being more supportive for the credibility of the alleged perpetrator than for the credibility of the victim. In this regard, the Committee views with concern the findings of the judge according to which it is unbelievable that a man in his sixties would be able to proceed to ejaculation with the author resisting the sexual attack. Other factors taken into account in the judgement, such as the weight given to the fact that the author and the accused knew each other, constitute a further example of “genderbased myths and misconceptions”. 8.7 With regard to the definition of rape, the Committee notes that the lack of consent is not an essential element of the definition of rape in the Philippines Revised Penal Code. It recalls its general recommendation No. 19 of 29 January 1992 on violence against women, where it made clear, in paragraph 24 (b), that “States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity”. Through its consideration of States parties’ reports, the Committee has clarified time and again that rape constitutes a violation of women’s right to personal security and bodily integrity, and that its essential element was lack of consent. 8.8 The Committee finally would like to recognize that the author of the communication has suffered moral and social damage and prejudices, in particular by the excessive duration of the trial proceedings and by the revictimization through the stereotypes and gender-based myths relied upon in the judgement. The author has also suffered pecuniary damages due to the loss of her job. 8.9 Acting under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, and in the light of all the above considerations, the Committee is of the view that the State party has failed to fulfil its obligations and has thereby violated the rights of the author under article 2 (c) and (f), and article 5 (a) read in conjunction with article 1 of the Convention and general recommendation No. 19 of the Committee, and makes the following recommendations to the State party: (a) Concerning the author of the communication • Provide appropriate compensation commensurate with the gravity of the violations of her rights (b) General • Take effective measures to ensure that court proceedings involving rape allegations are pursued without undue delay • Ensure that all legal procedures in cases involving crimes of rape and other sexual offenses are impartial and fair, and not affected by prejudices or stereotypical gender notions.. To achieve this, a wide range of measures are needed, targeted at the legal system, to improve the judicial handling of rape cases, as well as training and education to change discriminatory attitudes towards women. Concrete measures include: 

(i) Review of the definition of rape in the legislation so as to place the lack of consent at its centre; 

(ii) Remove any requirement in the legislation that sexual assault be committed by force or violence, and any requirement of proof of penetration, and minimize secondary victimization of the complainant/survivor in proceedings by enacting a definition of sexual assault that either: requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting; or requires that the act take place in “coercive circumstances” and includes a broad range of coercive circumstances.”

(iii) Appropriate and regular training on the Convention on the Elimination of All Forms of Discrimination against Women, its Optional Protocol and its general recommendations, in particular general recommendation No. 19, for judges, lawyers and law enforcement personnel; 

(iv) Appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender-sensitive manner so as to avoid revictimization of women having reported rape cases and to ensure that personal mores and values do not affect decision-making. 8.10 In accordance with article 7, paragraph 4, the State party shall give due consideration to the views of the Committee, together with its recommendations, and shall submit to the Committee, within six months, a written response, including any information on any action taken in the light of the views and recommendations of the Committee. The State party is also requested to publish the Committee’s views and recommendations and to have them translated into the Filipino language and other recognized regional languages, as appropriate, and widely distributed in order to reach all relevant sectors of society.

Individual opinion by Committee member Yoko Hayashi (concurring)

I would like to make a few additional observations in order to emphasize that I do not consider it the function of the Committee to decide upon the criminal responsibility of the accused in any given case nor in the present case (Please refer to Paragraph 8.2). I acknowledge that the judicial tradition in the State party is respectful of the principles of presumption of innocence, the right of the accused against double jeopardy, and other fundamental principles which permeate its criminal justice system. These principles for which women and men have fought for in the past centuries are essential for the human rights of women to flourish.

Therefore, I would like to make it clear that I do not agree with the author’s allegation that without the gender myths and stereotypes, the accused would have been convicted (Please refer to Paragraph 3.5). I do not consider it the task of the Committee to make such a judgment. The Committee is not equipped to examine the testimony of parties concerned, nor to evaluate the credibility of the accused or the author. Nor do I agree to the author’s request that the Committee should address “graft and corruption in law enforcement agencies, prosecutorial offices and the judiciary” (Please refer to Paragraph 3.17), since I do not believe that these elements arise in the present case.

However, having closely reviewed the court decision in the present case rendered on April 11th, 2005 by the Regional Court of Davao City, I agree with part of allegations of the author, in that the court proceedings were materially delayed, and that the reasoning which led to the conclusion may have been influenced by the socalled rape myths. Therefore, I have joined the adoption of the Committee’s view to recommend that the State party review its rape law, including both the definition under its Criminal Code and its trial procedures , as well as to conduct gender-sensitive trainings for the legal profession.

In relation to the recommendation for monetary compensation (Please refer to Paragraph 8.9 (a) ), it is my understanding that such a recommendation can be justified since the author has undergone lengthy legal proceedings to pursue her claim as a victim. However, I would like to clarify that the recommended monetary compensation does not include damages arising from the author’s economic loss, nor from the court sentence that acquitted the accused. The author is entitled to receive compensation because of the undue delays in the proceedings and the reasoning used by the court in its decision which could potentially victimize the author. However, the State party cannot be held accountable because its judiciary acquitted the accused.

While admiring the courage of the author who has pursued her case all the way to the Committee, as well as recognizing the potential the present case may have in universalizing rape laws, I nevertheless felt duty bound to append the present individual opinion. 

(Signed) Yoko Hayashi
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HERE IS A SEPARATE ARTICLE WHICH SOMEWHAT STRESSES VARIOUS POINTS OF THE ABOVE DECISION:

KTV: The Demystification of the Crime of Rape

WHERE do we go to when our own judiciary and courts of justice of our own country discriminate against us? Karen Tayag Vertido (KTV) has the answer for us and for this she spent fourteen long years of her life fighting for her rights that now benefit all of women in this country and the world. Karen, then Executive Director of the Davao Chamber of Commerce & Industry, in her 2007 communication to the U.N Cedaw Committee said that in 1996, she was brought to a motel against her will and raped by a former political head of the same organization she was working for. The Davao community supported her and launched the “Justice for Karen Movement.” Then, after eight years of court trial, the judge acquitted the defendant.

The way to go for Karen, who was counseled by women leaders, particularly, Atty Evalyn Ursua, was to write the United Nations Cedaw Committee in 2007 as a victim of discrimination as defined in the CEDAW.

The law invoked is the Optional Protocol to Cedaw which is a separate treaty to which the Philippines is a signatory and it allows women who have been denied access to justice at the national level to have their claims reviewed at the international level.

The United Nations Cedaw Committee composed of international experts, in their decision or Views promulgated that our country violated the rights of Karen in the local court decision acquitting the defendant. The Cedaw Committee, in affirming the story of Karen in her communication to this U.N body, effectively sets new standards on how the world should view and address the crime of rape and as well, demystifies the following fallacies on rape :

Fallacy One : Victim must always try to escape the rapist during rape.
Truth : There is no standard victim reaction to rape.

Fallacy Two : Rape by intimidation cannot be committed against women who are not timid.
Truth : The character of the victim is not an element of the crime of rape.

Fallacy Three : In rape by threat, there must be clear evidence of direct threat.
Truth : The essential element of rape is lack of consent and not the element of force.

Fallacy Four : If you are a friend of the victim, you cannot be raped; Or that if you are friends, the rape is consensual.
Truth : A relationship is not proof of the consent of the victim of rape.

Fallacy Five : There is a standard of “normal” or “natural” behaviour on rape victims.
Truth : The court should not discriminate against those who do not conform to these standards.

Fallacy Six : If rape has reached the moment of ejaculation, there was no resistance.
Truth : Ejaculation is not an element of the crime of rape.

Fallacy Seven : A senior citizen is not capable of rape.
Truth : Sexual prowess is not an element of rape otherwise rape committed by old men go unpunished.

This United Nations body found that Karen was discriminated against and recommends that the Philippines pay Karen a financial compensation for all the social harm that she suffered in the way our judicial system has handled her case. The Cedaw Committee recommends that the Philippines should develop a sexuality and violence education training program for judges and prosecutors in the Philippines. To Congress, the Cedaw Committee recommends that the laws against rape in our country be reviewed and that our country allocate enough funds for enforcement. 

This Cedaw Committee view is now part of a human rights standard that the entire world can emulate and the Philippines is given within six months to turn in a written response and to provide the Committee with an update on its action taken and more importantly to publish this U.N. Cedaw view and translate it to our various local lingua franca.

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