By Rowena Guanzon
INQ7.net
Last updated 02:20am (Mla time) 12/19/2006

REMARKABLY, at least two of the dissenting opinions of former Chief Justice Hilario G. Davide, Jr. proved to be prophetic. His and Justice Florenz Regalado’s dissenting opinion in People vs. Salarza, Jr (G.R. No. 117682, August 18, 1997) could very well be the decision of the majority if Judge Benjamin Pozon who presided over the Subic rape case is sustained on appeal by the Supreme Court.

In Salarza, Justices Davide and Regalado gave their opinion that a woman who was asleep could not have given her free will to the sexual intercourse, and the accused should have been convicted. For the two Justices, deprivation of reason need not be complete, and “unconsciousness” should not be tested by a mere physical standard, i.e., whether one was asleep, conscious or alert. Rather, the Justices wrote, what is required is that the woman was “fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.” Their minority opinion is that it is only when the woman is fully informed that consent may be intelligently given.

In People vs. Genosa (GR 13591, January 15, 2004), the former Chief Justice dissented from the ruling that Battered Wife Syndrome is only a mitigating circumstance which reduced the penalty but did not exculpate the accused. About two months after, Republic Act No. 9262, otherwise called the Anti-Violence Against Women and Their Children Act of 2004, was passed, providing for Battered Woman Syndrome as a justifying circumstance notwithstanding that any of the elements of self defense is lacking.

These are but two of the notable decisions on gender and human rights of women and girl-children that stood out in the research for the book entitled, “The Davide Court: Its Contributions To Gender and Women’s Rights” published by the University of the Philippines Center for Women’s Studies and supported by The Asia Foundation and USAID. The book was launched last Dec. 14 together with “Engendering the Philippine Judiciary,” which was supported by the UN Development Fund for Women-Bangkok. “Engendering” is the book project on The Gender Justice Awards.

Former Chief Justice Davide was an honored guest during the book launch in Manila Hotel. Justice Leonardo A. Quisumbing gave a message, and Justice Ma. Alicia Austria-Martinez, Co-Chairperson of the Committee on Gender Responsive of the Judiciary gave her response. The authors of “The Davide Court” are Rowena V. Guanzon, Juline Dulnuan, F.D. Nicolas Pichay, Cecilia Papa, and Damcelle Torres. “Engendering the Philippine Judiciary” was written by Rowena V. Guanzon, Aurora de Dios, Damcelle Torres and Theresa Balayon.

The researchers and authors of “The Davide Court” hope that it will be a benchmark for future Chief Justices. While former Chief Justice Davide may not be perfect (no one is), he certainly blazed a trail in trying to mainstream gender in the Judiciary for future Chief Justices to follow or surpass, and for that he deserves recognition.

Aside from the positive quality of his decisions on cases of violence against women and girl-children, Chief Justice Davide’s term is notable for the reform of the rules of court in cases involving women and children litigants, the training of judges on gender-responsiveness, and the programs of the Committee on Gender Responsiveness of the Judiciary. He was fully aware of the gap in gender and women’s human rights awareness in the Judiciary and he took deliberate steps to bridge it. Notwithstanding the efforts of the Supreme Court, however, gender discrimination in the courts continues to be a problem in the country.

More than a thousand cases involving the human rights of women and girl-children penned by Chief Justice Davide and by other justices in his Court read by a team of enthusiastic researchers and authors to produce the book, “The Davide Court: Its Contributions to Gender and Women’s Rights.”

“The Davide Court” is a meticulous and comprehensive documentation of the extended, complicated and continuing engagement of the Philippine judiciary on one hand and the advocates of women’s human rights on the other.

The book surveys more than a thousand cases decided by the Davide Court from 1998 to 2005 involving, rape, sexual harassment, child support and other gender issues. The former Chief Justice loathed rape, judging by his high conviction rate of about 87% of the total rape cases he penned during his stay in the Supreme Court. In the year 2000 alone, former Chief Justice Davide penned 13 decisions on rape (17 if including per curiam decisions), all of them convictions. Fortunately, except for the decisions in People vs. Relox and People vs. Salarza, the Davide Court has gotten rid of the unfair “she should have” (e.g., she should have shouted, she could have fled, etc) standard in rape cases.

The book also cites some decisions of the Supreme Court before the term of former Chief Justice Davide which upheld the human rights of women. Among these are the 1988 decision in People vs. Munoz penned by Justice Abraham Sarmiento (now member of the Board of Trustees of the University of the Philippines), who wrote: “ Rape victims bear the responsibility of proving that they have been raped, that they had not invited seduction, or had not been unchaste…. On the other hand, the harsh hand of social injustice does not seem to apply to the rapists.” It was in that decision where the Supreme Court used “violence committed against women” for the first time and recognizing that it does not come in the form of physical abuse alone, and called it “gender violation.”

In 1997, Justice Florenz Regalado wrote the decision in Philippine Telegraph and Telephone Company vs. National Labor Relations Commission and De Guzman, which discussed gender discrimination at length. Justice Cecilia Munoz Palma, in 1975, penned the decision in Cabaliw et al. vs. Sadora, et al., a very useful ruling for women who demand support from the conjugal partnership of gains or from their husbands or fathers of their children, including petitions for protection orders that include support under Republic Act No. 9262. In the case of Cabaliw, the Supreme Court held that the wife who was granted an award of support and who sued to recover conjugal property which was fraudulently disposed by her estranged husband has a right as judgment creditor and therefore, she is entitled to a writ of execution.

The cases cited in The Davide Court serve as a historical marker for Chief Justice Davide and his court. The discussions and critique of the legal principles applied by the Supreme Court during his term can also serve as a road map for women’s human rights advocates pushing for reform.

The decisions of former Chief Justice Davide and Justices during his term will be discussed in this column next Tuesday.

To read the books, click http://www.bingguanzon.com/books-and-articles-byrowena-v-guanzon..

IN 1997, before he became Chief Justice, Hilario Davide Jr. dissented together with Justice Florenz Regalado in the rape case of People of the Philippines versus Salarza, in which the accused who raped a young British woman was acquitted. Nine years later, the two justices’ dissenting opinion proved to be prophetic, whether Judge Benjamin Pozon of the Regional Trial Court of Makati has read that case or not.
In People versus Salarza, the then Associate Justices Davide and Regalado wrote that when a woman is deprived of reason or is unconscious, she is deemed to have no will. They differed from the majority in their interpretation or construction of the word “unconscious” by stating that “unconscious” cannot be tested by a physical standard only, i.e., whether one is awake or asleep, conscious or alert. The inquiry, the two justices opined, should “determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.” Thus, the justices wrote that carnal knowledge with a sleeping woman is rape because the woman is completely unconscious.
In his landmark decision in People vs. Daniel Smith et al., consisting of 60 pages, Judge Benjamin Pozon convicted US Marine Corporal Daniel Smith citing proof of 14 circumstances which, taken together, overturned the constitutional presumption of innocence. Among these are: (1) Smith was the one who danced last with the complainant; (2) he was the one who brought her to the van; (3) he admitted having carnal knowledge with the complainant; (4) Smith and Corporal Keith Silkwood carried complainant out of the van; (5) complainant felt pain in her private parts; (6) complainant revealed the sexual assault to the guard at Neptune Club, to her stepsister, her boyfriend, her mother and the doctor who examined her; (7) her examination revealed contusions on different parts of arms and legs and her labia minora; (8) her panty had Smith’s seminal stains, and so did the condom.
But the final blow is in the following paragraph: “ All these taken into account, the court is morally convinced that accused Corporal Daniel Smith committed the crime charged. He admitted sexual intercourse with complainant whom he knew was intoxicated and rendered unconscious by the accumulated effects of the different alcoholic drinks she has taken in succession at the time of the felony. She could not have consented to the bestial act of the accused.”
With that, Judge Pozon ordered that Daniel Smith be imprisoned in the Makati City Jail until the governments of the United States and the Philippines have an agreement as to his place of detention pending appeal. Faster than the speed of light, the other three co-accused of Smith flew out of the country.
While there may have been no proof of conspiracy (that all the accused planned and acted concertedly in the rape), I disagree with the decision that the other three had no liability at all. At the least, their highest-ranking officer, Staff Sergeant Chad Carpentier, should have been liable for damages, for he knew that there was a Filipino woman at the back of the van with whom Smith was having sexual contact (he said he believed it was consensual) yet he did not investigate or ask Smith any question. He testified that he thought she was a commercial sex worker, but his belief, which showed that he assumed that all Filipinas in Subic were sex workers, cannot get him off the hook because he had the duty to “investigate” what was going on at the back of the van. He had a duty to do something to ensure that his ward was not breaking the law, and that he failed to do. That he was focused on reaching their ship before curfew was a lame excuse. He knew what Smith was doing, and yet he presumed that it was a normal thing for his soldier to do?
I remember the movie “The Accused” starring Jodie Foster, who played a woman who was raped on a billiard table while many other men stood around, clapped and cheered. That movie was based on a true story in the United States. The judge convicted the rapist, but slapped civil liability (damages) to all the men who were present, who cheered the rapist on or did nothing. In our jurisdiction, in the case of People vs. Ritter, which was decided before Republic Act No. 7610 (Anti-Child Abuse Act) was passed, the Supreme Court acquitted a foreigner who was accused of raping a prostituted child who died from an infection caused by a vibrator that was left inside her private parts. However, the Supreme Court ruled that the accused was liable for damages because he admitted having contact with a prostituted child.
Nevertheless, the decision of Judge Benjamin Pozon deserves our congratulations, for he appreciated the proof of 14 pieces of circumstantial evidence as sufficient to convict Smith beyond reasonable doubt, knowing that in rape, there are often no eyewitnesses. In this case, the other people present in the van were co-accused of Smith who naturally would stick to Smith’s story to save their skin.
Judge Benjamin Pozon’s decision also struck down myths about rape such as, that only “good women” could be raped, or that it was not rape because Nicole danced and drank with Smith and that she was “asking for it.” Instead of blaming the victim, Judge Pozon took Smith to task for the rape precisely because he knew that Nicole was very drunk and unconscious and Smith took advantage of that. The Supreme Court has ruled in many decisions that even sweethearts could be raped (People vs. Ylanan, penned by Justice Leo A. Quisumbing in 202). Even prostituted women could be raped. Even wives could be raped by their husbands (Republic Act No. 8353 on marital rape, and the decision of Judge Anthony Santos of the Regional Trial Court of Cagayan de Oro City). Certainly, a woman who is unconscious because she was intoxicated, could not have given her free will and informed consent.
Judge Benjamin Pozon did not cite Chief Justice Hilario G. Davide, Jr.’s and Justice Florenz Regalado’s dissenting opinion in People vs. Salarza, but he has certainly brought it to life. We hope he finds many Justices in the Court of Appeals and the Supreme Court who are of similar minds.

Rowena V. Guanzon is the lead author of “Engendering the Philippine Judiciary” and “The Davide Court.” Both are published by the University of the Philippines Center for Women’s Studies Foundation Inc.

Following is my presentation at the Asia-Pacific Regional Seminar on Developing a Protective Framework for Children: The Role of Parliaments. The seminar was held Feb. 15-17 in Hanoi, sponsored by UNICEF and the Inter-Parliamentarians Union. Thirteen countries sent 55 parliamentarians and their staff, including delegations from Australia, India, China, Cambodia, Indonesia and Thailand.

TRAFFICKING in persons is a human rights violation. Traffickers victimize the most vulnerable of our people — our women and children, although men are also trafficked for forced labor and servitude. The figures are alarming. The United Nations estimated that corrupt public officials, procurer and smugglers engaged in international trafficking in persons gained seven billion dollars in profits, making it more profitable than the international trade in weapons.

Trafficking syndicates operate on an estimated five to seven billion dollars annually. We are therefore up against an evil so powerful that it will require the utmost commitment, hard work, compassion and courage of our parliamentarians in order to save our children and women from trafficking for exploitation.

As of this month, there are 117 signatories and 97 parties to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Protocol). Another international instrument that protects children from trafficking is the UN Convention on the Rights of the Child (UN CRC) which has been ratified by all states, except the US and Somalia.

The UN CRC protects children from economic exploitation such as bonded labor and servitude, sexual exploitation, sexual abuse, cruel or inhuman treatment, arbitrary detention, abduction, sale, or trafficking (Articles 32, 34, 36, UN CRC). Yet, traffickers continue to go about their evil business, trading the bodies of our citizens, especially our children, for sexual exploitation, slavery, bonded labor, and removal and sale of organs.

Trafficking is a serious problem in the Philippines, because our women and children, just like in other developing countries, are vulnerable to the bait of traffickers mainly due to poverty and, gender discrimination. Under the leadership of Senate President Franklin Drilon, the Philippine Senate ratified the UN Protocol in 2001 and passed its Anti-Trafficking in Persons Act in 2003. While we have this law, which is comprehensive, our country cannot solve the problem of trafficking without all your countries’ help and collaboration.

Let me enumerate problems common to all our countries:
a) lack of specific legislation on trafficking in persons, which includes not only sexual exploitation but also slavery, practices similar to slavery, forced labor or services, servitude, removal of organs;
b) weak political will to curb or stop the DEMAND for trafficked persons;
c) weak law enforcement and low rate of prosecution and conviction in the judicial system;
d) poor collaboration between non-governmental organizations and law enforcers;
e) need for strong collaboration between governments.
If countries do not have comprehensive legislations on trafficking in persons, especially in women and children, we will have a situation where an act is classified as a crime of trafficking in one country, but not in another. Traffickers then would be able to “dance around” our laws as we watch helpless and immobilized. We need not look further for a comprehensive definition. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (UN Protocol) has such a definition, and I quote:
“Trafficking is recruitment, transportation, transfer, harboring, or receipt of persons, by means of threat or use of force, coercion, abduction, fraud, deception, abuse of power of a position of vulnerability of the victim, or giving or receiving payments or benefits to achieve the consent of a person having control over another, for the purpose of exploitation.”
Exploitation “shall include, at a minimum, exploitation of the prostitution of others, or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, removal of organs.”

The Philippines’ Anti-Trafficking in Persons Act of 2003 (Republic Act No. 9208) has a comprehensive definition that substantially complies with the UN Protocol. Following the UN Protocol’s enumeration of “exploitation” as being the minimum, the Philippine law covers trafficking in children whether within or outside country for the purpose of armed conflict.
We know that our countries can pass a thousand laws, but without the collaboration and partnership with each other, we will be helpless against traffickers. Allow me to give the following recommendations on what parliamentarians can do:

• Pass comprehensive legislation with a human rights approach, treating trafficked persons as victims, not as criminals
• Put guidelines in the law
• Recognize that women and children are most vulnerable, but children need special protection
• Extend protection to trafficked children who are not nationals of your country
• Put resources/funds
• Identify who is accountable for what
• Check on performance of law enforcers and prosecutors through legislative powers
• Advocate
• Consider extradition/bilateral/multilateral treaties
• Address the issues of poverty, gender inequality, gender discrimination in their countries
• Not to treat trafficking as a mere labor or migration problem but a human rights violation

It is very important that states have a human rights approach in their legislations and not to treat trafficking as labor or immigration problem. If states approach it as an immigration issue, then trafficked persons will be treated as criminals for violating immigration laws. Trafficked persons are helpless, especially since many of them are not citizens of your countries. Children especially need special assistance. It is humane not to require that they cooperate with the prosecution as a condition for assistance. They should be helped whether they file cases against their traffickers or not.

With the help of advocates of women’s rights and children’s, some countries have passed anti-trafficking laws. Among these countries are Thailand, Cambodia, and the Philippines. In 1007, Thailand passed its Measures in Prevention and Suppression of Trafficking in Women and Children. However, the law protects only women and children, not men and boys. Its focus is on sexual exploitation only, although Thailand has a recent Memorandum on Understanding for its government agencies to include other forms of exploitation such as forced labor.

Cambodia has its Law on Suppression of Kidnapping, Trafficking, and Exploitation of Human Beings, which protects “any person,” male or female, but it covers the trafficking/sale of persons for prostitution only and excludes other forms of exploitation.

The Anti-Trafficking in Persons Act of 2003 (Republic Act No. 9208) of the Philippines follows the UN Protocol definition and guidelines. Among its salient features are:
a) Consent of the victims is irrelevant, be they children or adults.
b) It includes other means such as trafficking through adoption, marriage.
c) It includes trafficking of children for armed activities in the country or abroad.
d) It penalizes those who buy trafficked persons.
e) The highest penalty of life imprisonment is imposable if the victim is a child, or offender is public officer, military or law enforcer, parent, guardian.
f) The law covers domestic or trafficking to other countries.
g) The victim can file case in 10 years or 20 years if the violation is committed by a syndicate of at least three persons or committed against at least three persons.
To date, after almost three years, there have been only seven convictions for the crime of trafficking in the courts of the Philippines. Sixty-eight cases are pending in our courts, and 85 cases are pending in the public prosecutors’ offices nationwide.

While our law is quite comprehensive, there are gaps in the law that will hopefully be addressed in the near future. One of these is the lack of funds. Funds are not provided for under our Anti-Trafficking Act, so that the government agencies tasked with its implementation have to make do with their existing budget, without a special fund for anti-trafficking. A law without funds for its implementation will be toothless. An English slang probably expresses the message best, “Put your money where your mouth is.”
Another weakness of the Philippine law is that while “users” or buyers of trafficked persons are penalized with six months of community service for the first offense and one-year imprisonment for the second offense, we do not have the technology that networks our courts nationwide, hence we will have difficulty in tracking down repeat offenders. Corruption is also a problem in our law enforcement agencies.

Governments would benefit from collaboration with nongovernmental organizations because they have, for many years, worked hard to stop trafficking in persons. In the Philippines, we are lucky that these NGOs are members of a national Inter-Agency Council on Anti-Trafficking, and there are similar councils in some provinces.

NGOs also helped draft the Guidelines on the Creation of Regional and Local Inter-Agency Councils Against Trafficking in Persons and Violence Against Women and Children.

But the most important task for governments aside from passing laws is to curb or stop the demand for trafficked persons. If the demand is not stopped, developing countries will find it very difficult to stop or prevent the trafficking of their citizens especially women and children.

Parliamentarians can be effective in this task by compelling law enforcement and prosecution agencies to comply with the law and help stop the demand, through your power over the budget. Just yesterday, the Honorable Joan Fraser from Canada told me that without the knowledge of Parliament, some bureaucrats in government issued visas for bar strippers and these bureaucrats justified their action by saying that there was a high demand for this type of workers. Parliament swiftly stopped the issuance of these visas.

The need to protect our children from trafficking is urgent. Every day, children are trafficked in the borders of Cambodia, Thailand and Burma. Last week, Japanese researchers informed me that the highest numbers of trafficked persons in Japan are Indonesians and Filipinas. Filipino women and girls are being trafficked through our southern port, which is only some six hours by ferryboat to a nearby country.
Another problem is the recruitment of Filipino and other Asian women for marriage to men in the rural areas of another Asian country. You can help ensure that these women, who are not your nationals, have legal protection.

Your honors, I am hopeful that from among you, children have found courageous champions against trafficking. Thank you.

Note: For lack of space, this presentation was shortened by the writer.

First posted 03:46am (Mla time) Jan 03, 2006
By Rowena Guanzon
INQ7.net

It closed the year 2005, opened 2006 and it looks like the rape case of a 22-year old Filipina in Subic will be a story that will run throughout the year. Not only because the court only has 365 days from the time of arraignment (according to the Department of Justice, although it can be argued that the period runs from the time the summons was issued by the City Prosecutor) to finish the judicial proceedings or the four accused are free to leave the Philippines pursuant to the Visiting Forces Agreement (VFA). The one year period does not include the time spent while the case is on appeal (Article V, Section 7, VFA).
The Olongapo City Prosecutor has filed in court the Resolution stating that there is probable cause to charge the four US Marines with rape. Unlike in Okinawa and in the US where rape is punished with less than 10 years in prison, in our country the penalty for rape is reclusion perpetua, or up to 40 years. It is not a bailable offense. The penalty is death if the complainant is infected with HIV AIDS, or if the accused used a deadly weapon or is the ascendant or step-parent of the victim, among others. The judge of the Regional Trial Court of Olongapo City will issue a warrant of arrest probably today.

Then the real work begins. The objective of the prosecution is to convict all four accused, and ensure that they are under the custody of the Philippine authorities to stress our country’s sovereignty and the jurisdiction of our courts over the accused, as well as to ensure that they do not flee. But the prosecutors of Olongapo City must be confused each time their boss, the Justice Secretary, issues a statement that does not help their case. The public prosecutors have stated that they will prosecute the case, which diminishes the role of the private prosecutors as “assisting” counsel. I certainly hope that the public prosecutors of Olongapo City have had sufficient training in gender sensitivity in handling rape cases, a subject which the private prosecutors are familiar with. But this is the public prosecutors’ shining moment, and since the whole country is watching, it is likely that they will do their best.

To those who are not familiar with criminal procedure in the Philippines, the complainant can hire her lawyers as private prosecutors even if the case is being prosecuted by public prosecutors. The standing of private prosecutors is based on the complainant’s claim for moral damages, other damages and costs, which is deemed instituted in the criminal action. The public prosecutors, however, have control over the case and can overrule the judgment of the private prosecutors.

The hottest issue in this case so far is the issue of custody and detention of the accused. Justice Secretary Gonzalez, whose statements in the media are surely being read by judges, said in the Philippine Daily Inquirer the other day that before the warrant of arrest can be served, the Philippine government must first request that custody of the accused be turned over by the US government, and not doing so would risk a unilateral abrogation of the Visiting Forces Agreement (VFA). His statement is incorrect. If this is true, then the warrant of arrest may not be served at all since the US has no obligation to agree to relinquish custody of the accused. There is no provision in the VFA which supports Secretary Gonzalez’ apprehension. In addition, under Article V, Section 7 the VFA, “Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigations into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense.” If the US government is in good faith, this provision clearly gives them the duty to cooperate so that the warrant of arrest can be served, even if the accused are still in their custody.

The Supreme Court has held that the Visiting Forces Agreement is a treaty, but it was ratified by the Philippine Senate. Under the Constitution, treaties which bind the Republic of the Philippines are part of the laws of the land, and it is true that the courts must take judicial notice of these treaties. But the interpretation of laws rests on the shoulders and the mind of the presiding judge, not on the Secretary of Justice. There shouldn’t be any issue on the location of the detention of the accused because is spelled out in the VFA, which provides that, “The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities.”

However, this provision can create a problem because it does not expressly state that the detention facility be located in the Philippines. It only states that the place of detention by agreed upon by the US and Philippine authorities. This is where the independent judicial power of the trial court judge will stand a test. The presiding judge could order the accused arrested and then the diplomatic problems will fall on the lap of the VFA Commission, or the judge could order that the accused be detained in a facility which will be determined by the US and Philippine authorities but within the Philippines. Whatever the judge will order will be have to be obeyed by the US government and the Philippine authorities, before the accused avails of other legal remedies.

There was no problem like this in Okinawa, Japan, where two rape cases were filed against U.S. servicemen. In both cases, the accused were convicted. All the accused in Okinawa were detained in Okinawa while the trial went on. So why is there such a big fuzz in this country?

The Americans are not the ones talking. It’s our Justice Secretary who is doing the talking for them.

First posted 05:55am (Mla time) Dec 27, 2005
By Rowena Guanzon
INQ7.net

THERE is a saying that a man brings his character to his grave. But our friend Reynaldo Wycoco’s character survives his grave because we remember him with admiration and affection.
Wycoco died at 59, although he predicted that he would die at 60. I don’t know what made him say that, but he must have thought so because as Director of the National Bureau of Investigation, not a few people probably wanted him dead. We called him Wykes. He was the Kennedy School of Government (KSG) Alumni Association vice president, and our poster boy of an honest and competent public servant.

Wykes had his faults, like all humans do, but he was humble, bright and kind. Although he occupied a powerful position, he was not a bit arrogant. He was well liked by his friends, and even by people he had just met. He was loyal to his friends, always returned calls, and no matter how busy he was, always replied to text messages. I always return friends’ calls because I never know when it is really important.
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Maybe Wykes returned calls because he thought that one never knows when it would be his last. Two days after his last birthday on November 10, he had a ruptured aneurysm. He was in a coma for 26 days before he passed away.

As if giving us a farewell message, he replied to all the text messages during his birthday, and quoted Voltaire’s ” You will live in this world but once. Any kindness that you can do or goodness you can show, do or show it now for you will not pass this way again.”

I have many things to thank Wykes for, aside from his friendship. When women’s rights lawyer Atty. Arbet Yongco, who was private prosecutor in a parricide case against Ruben Ecleo, was killed by an assassin in Cebu, I asked Wykes’ help to make sure that the suspects would be arrested. Although he was then abroad, he sent a text message that he was returning home and promised to act immediately. In less than 48 hours, Wykes called me to say that the suspect was arrested by the NBI.

I also tested his good judgment in another case. When Lorna Kapunan and I were handling a rape with homicide case, we were surprised that one of the respondents was escorted by four NBI agents in the prosecutor’s office. He was a son of a former immigration official and I was sure he had clout in the NBI. His lawyer could not quite say if he surrendered to the NBI or he is lodging there for his protection. In any event, I found the whole thing objectionable and I called Wykes to complain that taxpayers money should not be spent escorting rape suspects to hearings unless it is meant to make sure they don’t flee. The respondent’s story is that his life was in danger. From whom, I do not know, but certainly not from Atty. Kapunan or me. In less than two hours, Wykes called me up to say that they have informed the man to leave the NBI’s premises.

Wykes was genuinely interested in women’s rights issues, and especially in going after syndicates involved in trafficking in persons. Women’s rights advocates remember that when Wykes was with the Philippine National Police (PNP), he was responsible for setting up the women’s and children’s desks. The women’s desks were initiated by Kalakasan, a non-governmental organization that helps battered women. Today, the PNP women’s desks help thousands of abused women and that is Wykes’ legacy.

I hope that while Wykes was alive I have thanked him enough for all these and for being the kind of man he was.

Copyright 2005 INQ7.net. All rights reserved.

FINALLY after two years, we have a conviction for violation of the Anti-Trafficking in Persons Act of 2003 (Republic Act No. 9208) in the Regional Trial Court of Zamboanga City. There were previous convictions in Batangas province and Butuan City but these were for the crime of white slavery that had a lesser penalty than in RA 9208. The problem with many prosecutors is that they agree to plea bargaining by the accused for a lesser offense, hence the poor record of conviction for violation of RA 9208. The Department of Justice, which heads the Inter-Agency Council Against Trafficking (IACAT), should issue a memorandum to its prosecutors that plea bargaining is not allowed when the charge is for violation of RA 9208.

The accused, Ronnie Aringoy and Hadja Jarma Lalli were arraigned on Sept. 9, 2005 and convicted after only 50 days, last Nov. 29. It probably helped that in September there was a roadshow education campaign in Zamboanga under the Filipino Initiatives Against Trafficking project conducted by the IACAT, with nongovernmental organizations Visayan Forum, ECPAT and Coalition Against Trafficking in Women-Asia Pacific.

We should congratulate city prosecutor Ricardo Cabaron and commend the police personnel who arrested and gathered the evidence for the case, Captain Jesus Belarga and Senior Police Officer-1 Federico Lindo, Jr. as well as city social worker Kit Barredo, but our applause and highest respect goes to the trafficked survivor, Rosario (not her real name).

Rosario was lured and deceived into taking the boat from the Zamboanga pier to Sandakan in Malaysia, and then to Kota Kinabalu, because she badly needed a job. The recruiters promised her a job in a restaurant. Instead of landing a decent job in a restaurant, Rosario was raped and prostituted in Kota Kinabalu from June 14 to July 18, 2004. Her Malaysian bother-in-law rescued her after she contacted her sister by mobile phone. Other women would have hid in shame and not file a complaint, but Rosario looked for her recruiters and traffickers and filed a complaint for violation of the Anti-Trafficking in Persons Act.

Traffickers and their international syndicates, which make tons of money, have a heyday in the Philippines because of our weak law enforcement, corruption in government, and the vulnerability of women and girls due to poverty. In this case, the policemen and policewomen of Zamboanga City are an exception. When Rosario went to the police to complain, they immediately believed her story and devised an entrapment. They told Rosario to call Aringoy, and she told him about the two beautiful women whom Aringoy could bring to Malaysia. When Aringoy arrived, the policemen arrested him. The speed with which the police and the prosecutor responded to Rosario’s complaint was extraordinary.
Judge Jesus Carbon, Jr.’s decision should be a good entry to the 2nd Gender Justice Awards. He wrote: “ The accused tried to show that Rosario was a guest relations officer (GRO) who has four children sired by four different men. No sufficient evidence was adduced to prove this allegation. Even if indeed she was a GRO with four children fathered by four different men, such circumstance would have rendered her even more vulnerable to sexual exploitation.” Judge Carbon, Jr. shows a firm grasp of RA No. 9208 when he ruled that “consent of a trafficked person the intended exploitation is irrelevant and not a material fact that can be raised in a criminal prosecution. It will not exempt or mitigate the offender’s criminal liability (Sec. 3(a) and Section 17, RA No. 9208) Traffickers in human beings and illegal recruiters prey on the vulnerability and gullibility of the weak and the underprivileged, “of poor laborers, seamen, domestics and other workers who use employment abroad as the only way out of their grinding poverty.”

But what of the employees and officials of the Department of Foreign Affairs (DFA) in the Zamboanga port? Rosario testified that she used the passport of her sister, and her recruiters and traffickers told her that they had a contact in the DFA in Zamboanga, who will put the picture of Rosario on her sister’s passport and no one would know the difference. There had to be a deal more than just the passport, and one that involved the immigration officer in the port to look away.
Trafficking in persons (mostly women and girls, but boys are also victimized) for prostitution in Malaysia has been going on for many years. It is a lucrative business for corrupt government officials of the DFA and corrupt police officers, and escaped public scrutiny until lately, when RA No. 9208 was passed. If the DFA Secretary is serious about trafficking, how come his people in Zamboanga have not yet been fired? How come the government of Malaysia is not doing anything about trafficking either? Governments must cut both the supply and the demand and institute programs and policies to alleviate the poverty of their people.

All the mayors of Zamboanga in the past knew of this illegal trade. Even if very few filed complaints, the stories of rape and prostitution could not have escaped the local government officials there. Yet, in the past no one lifted a finger to make sure that no trafficking could succeed through their port, probably because they viewed it not as a problem at all, but as a solution to the poverty of their people. But if they see the recruitment of their women and girls as a way out of poverty, the officials and the community will mostly likely look the other way when they complain of having been raped and prostituted in Malaysia.

Most people in Olongapo had enjoyed many years of commercial benefit from American servicemen in the past, and that has numbed their senses. The city’s economy was boosted by the dollars the Americans spent for rest and recreation in bars, clubs and hotels. Anything and everything that the servicemen wanted was for sale, including women’s bodies. Although the US military base has been closed and its facilities dismantled since 1991, Olongapo’s businesses still benefit today from the visiting US servicemen who are in the country for military exercises.

If the officials of Olongapo are slow to react to the rape of a Filipina, it is because of their collective belief that howling a protest is not good for Philippine-US diplomatic relations, which they think they have a duty to protect as host. Another reason is that the woman is not from Olongapo. Still another reason is, in a city where a number of women are sexually prostituted, a charge of rape is viewed with disbelief. If the woman had worked in the bar, everyone, especially her employer, would now be convincing her to withdraw her complaint.

In contrast, the people and the governor of Okinawa were outraged when three American servicemen kidnapped and raped a 12-year-old schoolgirl in 1995. People carried placards that said, “American animals get out of Okinawa!” The governor was outspoken against the US military base, which occupied one-fifth of his province.

All three US servicemen were convicted and served seven years in Okinawa prison. They were Navy Seaman Marcus Gill of Woodville, Texas, Marine Pfc. Rodrico Harp of Griffin, Georgia, and Marine Pfc. Kendrick Ledet of Waycross, Georgia.

The three were immediately arrested before the US authorities arrived, and the governor of Okinawa refused to give them custody. The people of Okinawa followed the case to the end, and many felt that the sentence of seven years was too light.

As if that was not lesson enough for American servicemen, in 2001 Marine Sergeant Woodlands was convicted of raping a 24-year-old Okinawa woman on the hood of a car in a parking building. Woodlands’ defense was that the sexual contact was consensual, but the woman testified that Woodlands grabbed her from behind, and that she banged the hood of the car with both her fists, so how could the accused have not understood her resistance? While on trial, Woodlands was detained in Okinawa.

In both cases in Okinawa, the US did not request for custody of the accused. So why is the US treating our country differently?

Why isn’t the US handing over the Marines and any evidence that they can acquire to the Philippine government as provided for in the Philippine-US Visiting Forces Agreement (VFA)? The undersecretaries of the Department of Foreign Affairs, when asked by Senator Miriam Defensor Santiago, admitted that the US government did not make a formal request of waiver of custody, which is required under the VFA.

Since the Philippine authorities did not make an immediate arrest, and the accused are in US custody, it is now our government that must make a request for a “handover.”

There are many questions unanswered that have bearing not only on the case but also on the implementation and review of the VFA by our officials.

When the Marines were presented to former general Jose Calimlim, vice president of the Subic Bay Metropolitan Authority, did he inform them that a rape complaint had been filed against them and therefore they were under arrest?

Even if the US immediately took custody of the accused, why did not the Philippine government try to make an arrest by going to their commander or the US embassy?

The VFA states that the US can have immediate custody of their men ‘if they so request,” but the Philippines can make known its refusal or position in “extraordinary cases.” The US has no obligation to agree, but how the case will play out depends on how much the US values its relations with the Philippines. If the Americans think our government is a pushover, they will refuse to hand over their men. That is, unless a nationwide protest haunts them and the case becomes an international issue in the US press.

Under our law, a no-warrant arrest could have been done within a reasonable time after the woman filed the complaint. If the US Marines could have been arrested, they would have stayed in the Olongapo jail until their government made a formal request for custody. Then the people would have been satisfied that our officials are protecting our sovereignty and the dignity of Filipinos.

But as you can see, our officials were stymied by the might of a superpower and an ally against terrorism. The “little brown brother” psyche is very hard to shake off, indeed.

Erratum: In my last column I cited People vs. Baygar as the case in which a Caucasian woman was raped and the accused was acquitted. The correct case is People vs. Salarza (1997), in which Chief Justice Hilario Davide Jr. dissented.

From: Steve Phillips
To: Viewpoints
Sent: Thursday, November 17, 2005 1:07 AM
Subject: BETA FEEDBACK Tell it to the U.S. Marines

Name: Steve Phillips
Email: pegasus5112@charter.net
Country Code: 01
Area Code: 817
Number: 427-3166
Address: 5112 St. Croix Ln. Ft. Worth, TX 76137
Story: http://news.inq7.net/viewpoints/index.php?index=2&col=34&story_id=55837
Message: I read Rowena Guanzon’s Nov. 8 article “Tell it to the U.S. Marines” with great interest. While I am not a Filipino, I feel compelled to respond to what threatens to create a misconception in the minds of the readers of that editorial. I am a U.S. citizen, a former service member who has spent much time in the Philippines, the father of two half-Filipino sons, and, as it happens, the 17-year husband of one of Ms. Guanzon’s former classmates. I share Ms. Guanzon’s anger over the brutal rape of the young woman. I share her desire for justice in this case, and I understand her frustration over the Visiting Forces Agreement (VFA). I feel, however, that her article will leave some with the impression that the VFA is in some way the equivalent of diplomatic immunity, which it most certainly is not. Guilty or not, those marines are in very serious trouble. If the facts of the case are indeed what Ms. Guanzon has presented, they are guilty of a very serious crime which has very serious consequences, whether or not they involve any time spent in a Philippine prison. Yes, they are being held by the U.S. embassy, and yes, they will probably receive some type of legal advice and assistance from them should they be subjected to Philippine justice. But my experience with the military tells me that this advice and assistance will be limited to ensuring that they receive a competent defense, which is the principle upon which both the U.S. and the Philippine legal systems are built upon. As an attorney, Ms. Guanzon knows this. The guarantee of competent legal defense, whether or not the accused is guilty, and regardless of the crime they have committed, is a guarantee that protects us all. The VFA is not an agreement that allows U.S. service members carte blanche access to Filipino women or blanket approval to violate Philippine law. The United states has Visiting Forces Agreements with literally dozens of countries. The Philippine VFA merely allows the U.S. military authority to discipline its own, in a situation where they are deployed for the mutual benefit of both countries. The discipline these marines will face will be harsh. Even if the facts of the case aren’t exactly as they have been reported, these marines will face harsh discipline simply for allowing a situation to develop which causes the impression of a lack of respect for Philippine law upon the U.S. military, and the Marines in particular. This whole affair is a disgrace for us. I hope for a swift resolution to this case, a resolution that will result in justice for the young woman at the center of it. Such a resolution will benefit not only her, but it will also benefit a long-standing relationship between two strong allies, the Republic of the Philippines and the United States of America.

Sincerely, Steve Phillips

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Request Date/Time: 2005-11-17 17:07:33

Hi Bing,

Thank you for your response. I did some looking around found out, from unofficial sources (http://www.asiaweek.com/asiaweek/96/0322/feat4.html), that the 3 U.S. service members accused of raping a 12 year-old Japanese girl in 1995 were turned over to the Japanese justice system and sentenced to to terms from 6 1/2 to 7 years in Japanese prison. There were also rape cases in 2001 and 2002 involving U.S. service members, and in both cases the accused were turned over to Japanese authorities, even though in one case the victim recanted her story.

—————————————————————————

After re-reading my letter, I don’t think I made it clear that I am not, in principle, opposed to the 5 U.S. marines in the Subic case being turned over to Philippine authorities. I just wanted to make the point that if they are not, it doesn’t mean that they will not face serious discipline. But since the 1995 Okinawa case, it appears the U.S. has shown less reticence to turning over its service members accused of crimes to their host countries.

Steven

First posted 05:27am (Mla time) Nov 15, 2005
By Rowena Guanzon
INQ7.net

WOMEN’S groups, including the Coalition Against Trafficking in Women-Asia Pacific and the Women’s Crisis Center Inc., are keeping a vigilant eye on the rape case filed in Olongapo City by a 22-year-old woman against six US marines. People are watching the progress of this case, which is not, as Senator Dick Gordon said, “an isolated case.”

We cannot view this as just one rape case, because there were previous rape and acts of lasciviousness complaints filed in Ologapo City against US soldiers before this one (but which were probably settled out of court), and this rape case is the first to be filed while the Visiting Forces Agreement is in effect. It will have a bearing in the preparation of the Implementing Rules and Regulations on the Visiting Forces Agreement (VFA), and when the VFA is up for review. Rape should fall under “extraordinary cases” in which the US cannot request a waiver of the primary jurisdiction of the Philippines. In international law, rape, especially in genocide

cases, is a crime against humanity.

I received letters from three American men, and I am quoting them here so we can appreciate that there are American men who are ashamed of what happened and some who blame the victim.

Tom Mather wrote: “I for one am ashamed to my wife, children and my family there in the Philippines that such an act has been perpetrated no matter if she was raped or otherwise. Their failure to act as ambassadors to the Philippines is an embarrassment to me as a former Marine as well as Husband and father to Filipino citizens.”

Jason More, who is engaged to a Filipina, wrote: “I fear that these men thought that they could get away with it, since the Philippines is regarded as a Third World country…. I hope that a message can be sent that just because someone may be poor, it doesnt give anyone the right to abuse the rights and spirit of another person.”

An equally interesting letter is the one sent to me by one who wrote: “As an American, I don’t care who do it, only that they get punished and that it serve as a lesson to all. However, you ask us to have faith in the Philippines justice system. Excuse me? The system that has thousands of cases languishing for years, mostly because corrupt judges are paid off or just too incompetent to get their work done? You want us to just hand the soldiers over to that system?

“I would … if the system were efficient, open and fairly corruption free as in, say, Singapore. But if it’s going to be the Philippines, it should be only when there can be full assurance of a fair trial. Not the silly leftist nonsense coming out of you, Rowena. You only want liberal-leftist hate to be part of this. Instead of really caring about women, you care principally about using the rape case to advance your leftist agenda against the US, our soldier-heroes in Zamboanga, and others. You don’t care about that unfortunate (but very foolish — what was she doing driving off with five drunken strangers at night from a bar?) — woman.”

As you can see, the last, who calls me a “leftist” and urges me to stop all the “emotional nonsense,” probably expresses what some people in the US government believe, and that is that they do not trust that their boys will get a fair trial in our judicial system.

I have to agree, the public perceives that many of our judges are corrupt. But if the writer is correct, who stands to gain from this corrupt system? Is it not the accused US soldiers, who have the dollars to pay? The complainant or her lawyers (and I know the two women lawyers personally) will not bribe the judge, not only because they don’t have the money but also because they won’t.

He also blamed the victim for “driving off with five drunken strangers at night from a bar,” which is what some people, including Filipinos, also say even if they do pity the woman. She did not “drive off” with them, she was taken to the vehicle, and the driver could not tell if she was lucid or not when she was being brought to the vehicle. I have handled three rape cases in which the victims were drunk or had passed out before they were raped.

Just because the woman agreed to have a drink does not mean that those men had license to rape her. Americans surely could not forget that one of their champion boxers was convicted of rape even if the woman agreed to join him in his hotel. The court held that when a woman refuses to have sex and she is forced, that is rape.

It is the same in our jurisdiction, where having carnal knowledge with a woman who is unconscious is likewise rape. Chief Justice Hilario Davide Jr. wrote in his dissenting opinion in People vs. Baygar (1997) that what is essential is that the woman did not have informed consent.

In that 1997 case, a Caucasian woman accused a friend of her boyfriend of raping her while she was asleep. The trial court convicted the accused, but the Supreme Court acquitted him.

In December, the University of the Philippines Center for Women’s Studies, with the support of the United Nations Development Fund for Women, will publish a book for judges that will include a critique of some decisions of the Supreme Court, as well as decisions that are recommended for use by judges. This is part of the Gender Justice Awards project.

Victim blaming in rape and other sexual abuse cases is well and alive not only among our readers and neighbors but also among our judges and prosecutors. It is unfair and wrong to place the burden of proof on the woman to show that she did not invite the rape or that she resisted it. Worse, the “death before dishonor” belief pervades in the minds of many of our judges, which is both archaic and has no basis in law. The Anti-Rape Act of 1997 in fact states that any form or expression of resistance is sufficient to prove that force was used upon the victim.

Being raped is not “emotional nonsense.” All women know that. Unfortunately, many men don’t.

First posted 06:25am (Mla time) Aug 16, 2005
By Rowena Guanzon
INQ7.net

THERE is a saying that “whom the gods wish to destroy, they first make mad with power.” In the case of Gloria Macapagal-Arroyo’s loyal henchmen, that should be shortened by omitting the last two words. Maybe the megalomania toxins in Malacañang can really addle the brain. Add to that all the narcissism particles in the air that one can inhale or take in by osmosis even while doing the most mundane thing as trying to look intelligent, and you have Cabinet members who are no match for Dustin Hoffman in “Rain Man.”

After Secretary Mike Defensor’s presentation of his revelations of the spliced tape, Malacañang is now in extreme danger of really being called a nuthouse, and his boss as a woman who is now “spliced for life.” This administration is going down in history not only as the most despised, but also as the most laughed at. It should not insult further the intelligence of the people who can see through their shenanigans. Its attempts to win back the public’s attention are hilarious,
but this latest act of Defensor is murderous. It is the blade that strikes the deathblow to the administration’s heart. After this, Mike Defensor will never be the same again.