Between law and reality

Since the 1980’s, women’s groups in the Philippines have struggled to have “women-friendly” laws passed by Congress. And in the three decades since Edsa, with the passage of the gender equality clause in the 1987 Constitution (recognizing equal protection under the law of women and men), laws recognizing the rights of women and criminalizing violations of those rights have been passed in fairly quick (a decade on average) succession. In random order, as far as I can recall, these are: the women in nation-building law, the anti-sexual harassment law, the “progressive” anti-rape law, the law against violence against women and their children, the anti-trafficking in women and children act, and rounding it off, the Magna Carta of Women.

And yet, at a time when women and women’s groups should be sitting back, exhausted by their efforts and celebrating their gains, the reality of women’s status in Philippine law, more specifically, their treatment at the hands of police, prosecutors and judges, confronts them daily.

Lawyer Evalyn Ursua, in her reaction paper at the launch of the UN Women publication “Progress of the World’s Women in Pursuit of Justice” declared: “(Women) who express lack of faith in the justice system do so after having experienced its (failings). As one woman advocate explains it, women start their quest for justice with hope and fervor, but they eventually drop out after experiencing the system and realizing that it does not work, or that it will not give them justice, or that it is not sensitive to their needs, or that it does not at all care for the poor and the underprivileged, or that they cannot afford the material cost and the time required to get justice.”

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Back in the 1990’s when she was starting out as a lawyer and founding member of the feminist legal advocacy and service NGO Women’s Legal Bureau, recalled Ursua, “it was rare to see a woman lawyer in a courtroom. Now, 20 years later, women lawyers are a common sight in courtrooms across the country. We also have more women judges. This is literally ‘having more spaces’ for women in the formal processes and mechanisms of the justice system. We can say it is progress, as it is progress to sit in a courtroom and hear a male lawyer invoking the law against violence against women and their children on behalf of a female litigant, where no such law existed until six years ago.”

She wonders if those lawyers “appreciate that that law was a product of an intense process of debate and conflict among women’s groups and legislators.” And that the “long list of legislation” mentioned earlier is acknowledged and bannered by the government “as a major indicator of progress in the promotion of women’s rights in the Philippines.”

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Progressive laws and policies, says Ursua, will have no practical impact on the daily lives of women and girls until officers of the court are sufficiently oriented on the human rights principles that underlie most “gender-sensitive” legislation and judicial action.

“I’ve had experiences with judges who do not welcome test case litigation,” Ursua recounts. “I remember one trial court judge mockingly flipped through a motion to quash I filed in a case involving a charge of adultery against a female client. He remarked: ‘What? Unconstitutional? What is the ground? Human rights? Discriminatory?’ He proceeded to deny it like it was a scrap document not worthy of any intellectual effort. In another case where I invoked the Magna Carta of Women in a motion to have a vagrancy charge dismissed, the trial court judge did not give weight to my arguments.”

But, says Ursua, that same judge may have simply been basing his actions on a September 2009 decision of the Supreme Court in which the Tribunal “refused to apply standards of human rights, the bill of rights, and the Cedaw in a challenge involving the constitutionality of the vagrancy law.” (The law authorizes the arrest of men and women loitering in the streets or in public spaces with “no visible means of support.”)

The vagrancy law was identified in the implementing rules of the Magna Carta of Women as a discriminatory law that must be repealed, adds Ursua. But instead of using this challenge to erase from the statute books what Ursua calls this “oppressive, discriminatory and anti-poor provision,” the Supreme Court chose to uphold it.

The law, said the Supreme Court, does not violate the equal protection clause nor does it discriminate against the poor and the unemployed. “Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a public order crime which punishes persons for conducting themselves, at a certain place and time which orderly society finds unusual, under such conditions that are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.”

In sum, the Supreme Court chose to privilege the sensibilities of the “decent and moral” members of society, over the rights of the poor who conduct themselves “outrageously,” even if their “crime” is nothing more than standing around doing nothing.

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While public attention is right now focused on the impeachment trial against the Chief Justice, who loves to invoke “judicial independence” in defending himself against charges leveled against him, we should not forget that for the majority of Filipinos, justice is a far more basic and simple concern. All they want is a system that is accessible, affordable, intelligible, and at times willing to challenge established assumptions and class biases. Is that too much to ask?