When the Supreme Court once again dismissed the plea of the Filipino “comfort women” for formal redress for the abuse they suffered during World War II, it lost a golden moment to be on the right side of history. Politically, the Philippines would have joined the global outrage against rape as a prize and a weapon of war. Legally, it would have advanced the protection of women against sexual offenses in armed conflict. And diplomatically, it would have affirmed the power of international law in a case which China cannot in conscience dispute. China likewise suffered the wartime abuse of its women. It can flout international law in the West Philippine Sea, but can it disown it with its comfort women? Only by diminishing the role of law in global politics, or deprecating the sacrifice of Chinese victims.
The Center for International Law, headed by UP law professor Harry Roque, presented that historic opportunity to the Court on a silver platter. Roque wanted the Philippine government to take up the women’s cause and seek redress from Japan. He invoked the well-settled principle of jus cogens (“peremptory norms” that override just about everything in international law), which took away from sovereign states the discretion to affirm international norms, or not. When the Philippine government argued that we had waived all our wartime claims in the post-World War II reparations pact, Roque argued rightly that we could not have waived a claim that was kept secret well into the 1990s, a claim that belonged to the individuals wronged and not to governments, and a jus cogens claim that cannot be waived to start with.
The United Nations had already concluded that the crime was military sexual slavery committed in the 1940s: The women were herded by Japanese forces into “comfort stations,” where they were systematically raped by soldiers several times daily, their ovaries eventually damaged. At war’s end they generally became outcasts, and they were doomed to suffer their pain in secret.
The Korean Constitutional Court, confronted by Korea’s own comfort women, has acted more nobly than the Philippine Supreme Court. In 2011, it held that Korea must seek redress even if this would strain diplomatic ties with Japan, and that blocking the payment of claims amounts to the “infringement of fundamental dignity and value of human beings.”
Roque told this to the Supreme Court but it was unmoved—a stance that apparently has to do with the case’s historical context. The silence over the rejection of the comfort women’s plea is truly ironic considering the outrage two years ago when it was discovered that Justice Mariano del Castillo had plagiarized and distorted choice passages in the Court’s first decision throwing out the case. There was more fury over purloined paragraphs on sheets of paper than over the repeated and sustained rape of Filipino women whose bodies were forever scarred and lives forever marred! Either the outrage was politically engineered at that time to attack Del Castillo and, indirectly, his principals, then Chief Justice Renato Corona and then President Gloria Macapagal-Arroyo, or the Filipino public today cannot be bothered by the comfort women, now frail and dying one by one in poverty.
It’s a sad commentary on courts that are too much in thrall to public opinion.
There are times when that stance works, as when the Supreme Court struck down the pork barrel, finding it “disconcerting … that a system so constitutionally unsound has monumentally endured.” And yet it was by the Court’s grace that it had, the Court having thrice validated the pork barrel as God’s gift to budgetary fairness and sensibility.
But there are times when it doesn’t. In the age of social media, the aging women simply do not make good copy. Never mind that they were nubile lasses when they were kidnapped by the Japanese forces. Ignore the sepia-toned photos of the beloved daughters who were lured to serve as cooks or waitresses and who became sex slaves behind barbed wires. If they can’t slug it out in populist politics, they do not count.
It takes crusaders to take up the cause of the comfort women. Kudos to Roque and his colleagues, as well as the women’s groups who persevere. Shame on those who do not feel the comfort women’s pain, or who find every legal excuse to look the other way. A bright legal mind can find excuses, but it takes a heart to choose. When a moral compromise is made, the mind protects the heart by finding ways to cover up the betrayal. Done often enough, betrayal becomes a habit, and the heart is permanently numbed to the agony of moral choice.