UN Member-States Raise Concerns on the Philippines

by Clara Rita A. Padilla

April 11, 2008, Geneva—Atty. Clara Rita Padilla, Executive Director of EnGendeRights, present at the Human Rights Council Universal Periodic Review held in Geneva said that, “Several countries raised issues and recommendations related to women, migrant workers, children, indigenous peoples, extrajudicial killings, enforced disappearances, and compliance with Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and UN mechanisms including the recommendations of Special Rapporteurs.”

New Zealand raised the issue of the prevalence of violence against women (VAW) and called for wider judicial and non-judicial interventions and a gender-responsive environment addressing VAW.

China raised the issue of trafficking of women and finding means to address this issue; the Republic of Korea recommended the prevention of cross-border trafficking and sexual exploitation of women; Azerbaijan raised the need to combat trafficking; Belarus related the fact that the upcoming Global Forum on Migration is going to be held in the Philippines; Japan and Azerbaijan raised the issue of addressing the needs of vulnerable groups including women.

Several countries such as India, China, Guatemala, Palestine and Sri Lanka raised the issue of the high rate of migration and migrant workers. Algeria cited the CEDAW Committee Concluding Comments on the Philippines that seeks to address the root causes of migration. They cited the report of the Special Rapporteur on Migrants that tackles the social causes and effect of migration. The Algerian delegate sought an explanation from the Philippines on why there is a high rate of Filipino women migrants while Bangladesh reiterated the social cost of migration. Egypt, on the other hand, wanted to hear about the measures being taken by the government to educate migrants. Both Bangladesh and Egypt asked whether the non-accession/ratification of receiving countries on the Migrants Convention is a hindrance.

One Philippine government delegate gave a dismissive response on the issue of feminization of migration by saying, “feminization of migration is a global problem, it’s not just a problem in the Philippines."

Syria raised concern on the vast growth of the Philippine population.

Tunisia raised women issues in relation to the Philippine obligations under CEDAW. The delegate recommended the reduction of gender disparities and the further mitigation of gender disparity particularly in labor. Turkey raised the need for a comprehensive legal framework on CEDAW while Mexico raised the issue of compliance with CEDAW.

Italy and Cameroon raised concern on the compliance on the Concluding Comments of the Committee on the Rights of the Child, the committee tasked to monitor the implementation of the Convention on the Rights of the Child.

Sudan raised compliance with the Millenium Development Goals. Sudan and Belarus raised the justiciability of economic, social and cultural rights in the Philippines.

Russia and Palestine raised the issue on the rights of indigenous peoples.

Canada raised the issue of human rights abuses and the culture of impunity and expressed its continued concern on the fact that there are few convictions. They also raised concern on Administrative Order 197 that impacts on the Rule on the Writ of Amparo issued by the Supreme Court and the need for security forces to be made aware of human rights. France and Switzerland raised concern on enforced disappearances and extrajudicial killings and the low number of resolved cases. France and Australia also wanted to be informed on the follow up regarding the recommendations of the Special Rapporteur Philip Alston. Norway wanted information on the government’s measures to eliminate extrajudicial killings and disappearances. Other countries that raised concern on extrajudicial killings and enforced disappearances were Japan and Brazil.

Mexico, Slovenia, the Republic of Korea, the United Kingdom and Netherlands recommended for the Philippines to ratify either or both the Optional Protocol to the Convention Against Torture (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance. Slovenia also recommended for the Philippines to report regularly to the Committee against Torture, the committee tasked to monitor the implementation of CAT, since the last report of the Philippines was submitted in 1989.

The United States raised the human rights compliance by the police.

Mexico raised the need for the Philippine National Plan of Action to take into consideration the UN mechanisms and the Special Procedures [the procedure allowing submission of individual complaints, country visits and country and thematical reports by the Special Rapporteurs]. Sri Lanka also raised compliance with the UN mechanisms and Special Procedures while Brazil recommended for the Philippines to extend invitations to Special Rapporteurs.

United Kingdom expressed concern on corruption and the delayed reporting with the treaty monitoring bodies. Atty. Padilla added, “The following reports are due to be submitted by the Philippine government: CEDAW Committee 7th & 8th country report in 2010; Committee on ESCR 5th country report on June 30, 2010;
Human Rights Committee 3rd country report overdue since Nov. 1, 2006; Committee on the Rights of the Child 3rd & 4th country report overdue Sept. 19, 2007; and
Committee against Torture 2nd-5th reports overdue since ’92,’96, 2000, and 2004.”

“I just hope the Philippine government agrees to the recommendations of the UN member-states and the Human Rights Council in this Universal Periodic Review to officially form part of the ‘recommendations’ portion of the UPR report on the Philippines. The government’s agreement is significant to its compliance with international human rights standards,” Atty. Padilla stressed.

(Copies of the full text of statements as well as audio files may be accessed at http://www.ohchr.org/english/bodies/hrcouncil and on the UPR extranet page)

EnGendeRights Calls on the Member States of the UN to Uphold the Right to Sexual Orientation at the Human Rights Council Universal Periodic Review

by Clara Rita A. Padilla

April 10, 2008, Geneva—“It is the obligation of every state party to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Civil and Political Rights Covenant, the Economic, Social and Cultural Rights Covenant, the Convention on the Rights of the Child, and the Convention Against Torture, to fulfill its obligations to respect, protect and fulfill the rights of lesbians, gays, bisexuals, transgender and intersex (LGBTIs),” says Clara Rita Padilla, Executive Director of EnGendeRights and a lawyer based in the Philippines.

On the occasion of the Universal Periodic Review (UPR) of Ecuador, Slovenia expressed their concern on the torture of LGBTIs and asked what the Government is doing to apply the principle of universality and overall international human rights law in relation to sexual orientation and gender identity. Slovenia recommended that Ecuador further strengthen its commitment to non-discrimination against LGBTIs and urged the application of the Yogyakarta Principles to uphold LGBT rights.

In the Report of the Working Group on the UPR, Ecuador fully cooperated and agreed to “implement measures to combat discrimination on the ground of sexual orientation and gender identity, as well as other human rights violations against the gay, lesbian, bisexual, transsexual and transvestite community.”

The Egyptian delegation initially raised concern about the inclusion of said recommendation in the Working Group report on Ecuador saying that the issue of sexual orientation is not yet universally recognized.[1] It was agreed at the plenary, however, that such recommendation should be maintained since Ecuador had already committed itself to uphold the right to sexual orientation in its national report, inter alia.

Clara Rita Padilla stressed, “A clear expression of the affirmation of the rights to sexual orientation and gender identity is the March 26, 2007 Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity released by international human rights experts in a worldwide call for action against sexual orientation discrimination.” “The Principles were adopted by 29 distinguished experts in international law following a meeting in Yogyakarta, Indonesia. Among the group of experts were former United Nations High Commissioner for Human Rights and former President of Ireland Mary Robinson, UN independent experts including Philip Alston (UN Special Rapporteur on extrajudicial, summary and arbitrary executions) and Paul Hunt (UN Special Rapporteur on the right to the highest attainable standard of health), current and former members of human rights treaty bodies, judges, academics and human rights defenders,” said Clara Rita Padilla. Sonia Onufer Corrêa of Brazil, who co-chaired the experts’ group said, “ [W]omen, men and persons whose sexuality does not conform with dominant norms face rape, torture, murder, violence, and abuse because of their sexual orientation or gender identity. These Principles affirm that human rights admit no exceptions.”

The Committee on the Elimination of Discrimination Against Women (CEDAW Committee), tasked to monitor CEDAW, issued General Recommendation 21 recognizing that “[t]he form and concept of the family can vary from State to State, and even between regions within a State.”[2] The Committee has also asked states parties to reconceptualize lesbianism as a sexual orientation and to abolish penalties for its practice.[3]

The Human Rights Committee, tasked to monitor to the Civil and Political Rights Covenant, recognized in General Comment 19 that the concept and structure of family may differ from state to state and that the right to marry and found a family may be based on diverse definitions of families and relationships.

To state the truth also about the freedom to choose who to have sex with including same-sex, there are many countries allowing same-sex, civil unions, and the like. Same-sex marriages are recognized in Netherlands, Canada, South Africa and even in the predominantly Catholic countries such as Belgium and Spain.[4]

In the Philippines, there is no legal recognition of marriage or partnership with regard to lesbians and bisexual and transgender women. It is significant, however, that women victims of abuse in lesbian relationships are accorded the same protection under the Anti-Violence Against Women and Their Children Act since Sec. 3 includes “any person with whom the woman has or had a sexual dating relationship.”

Cases decided by the Human Rights Committee uphold the right to sexual orientation. In the case of Toonen v. Australia Comm. No. 488/1992 (1994), the Human Rights Committee found that the prohibition of private homosexual behavior is an arbitrary intrusion on privacy rights (Article 17 of the Civil and Political Rights Covenant).

In the case of Young v. Australia (2003) Communication No. 941/2000, the Repatriation Commission denied Young’s application for pension for his war veteran same-sex partner of 38 years. The Human Rights Committee decision found a violation by Australia of article 26 of the Covenant (equality before the law and non-discrimination) and that Mr. Young is entitled to reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law.

In the 2003 Concluding Observations on the Philippines, the Human Rights Committee urged the Philippine government to “take the necessary steps to adopt legislation explicitly prohibiting discrimination” and “to pursue its efforts to counter all forms of discrimination” pertaining to sexual orientation.[5] The Committee further urged the Philippines to “strengthen human rights education to forestall manifestations of intolerance and de facto discrimination.”[6]

On the issue of change of name and identity, there are cases where the Human Rights Committee found that a petition for change of name should be granted because the right to choose one’s name and identity is covered by the right to privacy under Article 17 of the Civil and Political Rights Covenant.[7]

“The Member States of the UN must uphold the right to sexual orientation at the UPR,” Clara Rita Padilla stressed.


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FOOTNOTES:

[1] On the night of May 10, 2001, the Cairo 52 were arrested and fifty defendants were charged with "obscene behavior" under a law against prostitution (Article 9c of Law No. 10 of 1961 on the Combat of Prostitution) and two were charged, in addition, with "contempt for religion" under Article 98f of the Penal Code. There were reports of torture and ill-treatment of some of the detainees including anal examinations to "prove their homosexuality." The names and pictures of the detained men were published in Egyptian newspapers. See http://www.iglhrc.org/site/iglhrc/section.php?id=5&detail=108

[2]General Recommendation 21, Equality in Marriage and Family Relations, supra note 11, Comment No. 13 on Art. 16 Various forms of family.

[3]CEDAW Concluding Observations on Kyrgyzstan. 27/01/99. CEDAW/C/1999/I/L.1/Add.3, par. 35.

[4]“Homosexuality laws of the world” available at http://en.wikipedia.org/wiki/Homosexuality_laws_of_the_world; Civil Partnerships in United Kingdom, Falkland Islands; Civil Unions in Mexico City, New Zealand, Buenos Aires City, Colombia, Uruguay; registered partnerships in Czech Republic, Denmark, Finland, Germany, Iceland, Luxembourg, Norway, Slovenia, Sweden, Switzerland; Civil Unions, Domestic partnerships, Same-sex marriage in certain states in the US; registered and domestic partnerships in Australia.

[5]Concluding observations of the Human Rights Committee: Philippines : Philippines. 01/12/2003, CCPR/CO/79/PHL, 1 December 2003 available at http://www.unhchr.ch/tbs/doc.nsf/0/5c1a26dde6327ef0c1256df300525589?Opendocument

[6]Id.

[7]Coeriel and Aurik v. The Netherlands (1994); In the case of Goodwin v United Kingdom (2002) and I. v United Kingdom (2002), the European Court of Human Rights considered the cases of two transsexual women who claimed that the United Kingdom’s refusal to change their legal identities and papers to match their postoperative genders constituted discrimination. Reversing a number of its previous decisions — and offering a major victory for transgender people’s rights — the Court held that their right to respect for their private lives, and also their right to marry, had been violated (articles 8 and 12 of the European Convention).

EnGendeRights Submits its Summary of Women’s Concerns on the Philippines to the State Delegates at the Human Rights Council

by Clara Rita A. Padilla

April 7, 2008, Geneva--EnGendeRights, represented by Atty. Clara Rita A. Padilla, submitted a Summary of Women’s Concerns on the Philippines to the state delegates attending the ongoing Human Rights Council (HRC) First Universal Periodic Review (UPR).

This April 11, 2008, the HRC is reviewing the Philippine compliance of the major human rights treaties that it has ratified including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Civil and Political Rights Covenant, the Economic, Social and Cultural Rights Covenant, the Convention on the Rights of the Child, the Convention Against Torture, the Convention on Racial Discrimination, the Migrants Convention, and the Convention on the Rights of Persons with Disabilities . The HRC will also review the reports of special rapporteurs on the Philippines and the non-issuance of a "standing invitation" to the Special Rapporteurs. A standing invitation is an open invitation for the Rapporteurs to visit the Philippines.

The fact that the Philippines has not ratified the Rome Statute of the International Criminal Court, the Optional Protocol to the Convention on the Rights of Persons with Disabilities, and the International Convention for the Protection of All Persons from Enforced Disappearance will also be reviewed by the HRC.
Atty. Padilla stressed that, “The UPR is a very important process where any of the 192 Member States of the United Nations can engage the Philippine delegation to an interactive dialogue.”

The 16 countries currently under review during the first session of the UPR Working Group are Algeria, Argentina, Bahrain, Brazil, Czech Republic, Ecuador, Finland, India, Indonesia, Morocco, the Netherlands, the Philippines, Poland, South Africa, Tunisia, and United Kingdom.

Atty. Padilla said that, “The first day of the UPR was a success with many states parties seeking responses from Bahrain and Ecuador regarding issues relating to women in their countries.” On the review of Bahrain, Atty. Padilla said that, “Sweden was concerned about the rights of women vis-à-vis the Shari’a; Mauritania took particular attention to health issues and the rights of women; Slovenia stressed the removal of Bahrain’s reservations on CEDAW; Switzerland and Bangladesh raised the rights of women migrant workers; France expressed concern on forced marriages; Netherlands raised the importance of the issuance of a standing invitation for special procedures [to facilitate the visit of the different thematical Special Rapporteurs].”

On the review of Ecuador, Atty. Padilla said that, “Countries such as Venezuela, Bolivia, Ghana, Mexico, and Slovenia raised concern on indigenous peoples; Mexico also expressed concern on VAW and the health system; Slovenia and Bolivia raised the issue of migrant women; Slovenia was strong in expressing their concern on the torture of lesbian, gay, bisexual and transgender (LGBT) people and expressed their hope that measures will be taken to prevent torture against LGBTs. Slovenia also urged the recognition of gender identities of LGBTs and the use of the Yogyakarta Principles to uphold LGBT rights.”

In the EnGendeRights summary, issues including the lack access to information and reproductive health care services, discriminatory marriage laws, violence against women (VAW) including state-perpetrated VAW and sexual orientation were raised.

EnGendeRights raised the Philippine government curtailment of access to modern contraceptives with the Department of Health and the Population Commission only promoting “natural family planning.” EnGendeRights brought up the lack of access to sex education for adolescents and the high maternal mortality rate with 200 Filipino women dying for every 100,000 live births showing also a lack of access to basic and emergency obstetric care. EnGendeRights recommended for the government to make the full range of modern contraceptives available to women and the enactment of a national law and ordinances on Reproductive Health Care that ensure women’s and adolescent’s reproductive and sexual rights regardless of who is the head of the national and local governments.

EnGendeRights mentioned the lack of access to emergency contraceptives that prevent unwanted pregnancies. The government delisted Postinor, an emergency contraceptive, and continues to delist it despite the recommendation by the Special Committee to re-list it. The government also did not act on a December 2006 request to make levonorgestrel, an emergency contraceptive, available to women. EnGendeRights recommended for the government to make emergency contraception available to rape victims as part of routine emergency health care and to women, in general, to prevent unwanted pregnancies.

EnGendeRights raised the fact that women do not have access to safe and legal abortion despite statistics showing 473,000 women who induced abortions annually; 79,000 of these women were hospitalized for complications; and 800 women died (or 2 women died daily) due to complications. EnGendeRights brought up the issue that Philippine law penalizes women who undergo abortion without providing express exceptions on life, health, rape or fetal impairment. Having ratified CEDAW, EnGendeRights recommended that the government must fulfill its obligation to make abortion safe and legal.

EnGendeRights mentioned the fact that there is no absolute divorce or no-fault divorce in the Philippines; there is only nullity of marriage under Art. 36 of the Family Code; cases for nullity of marriage are costly and inaccessible to poor women and court decisions nullifying marriages are difficult to obtain because of varying judicial interpretations. EnGendeRights recommended that divorce must be made available to Filipino women.

EnGendeRights brought up the discriminatory provisions in the Muslim Code that allow polygamy, early marriage (at age 15), arranged marriages (females aged 12-14), the husband to choose the family residence, and the husband to deny permission to his wife’s profession or occupation. EnGendeRights recommended the repeal of discriminatory provisions in the Muslim Code.

EnGendeRights mentioned the discriminatory penal provisions on adultery and recommended the repeal of the criminal provisions on adultery and concubinage.

EnGendeRights raised the issue of violence against women that there are judges who refuse to issue Protection Orders or refuse to issue Contempt Orders for violations of Protections Orders issued under the Anti-Violence Against Women and Their Children Act. EnGendeRights also mentioned that there are many rape and sexual harassment cases dismissed in the Preliminary Investigation level and in the courts and the lack of definitive data on the number of rape and sexual harassment cases dismissed in the Preliminary Investigation and court levels. EnGendeRights recommended that there must be continuing legal education for members of the judiciary on gender-based violence including strict enforcement of Protection Orders and Contempt Orders under the Anti-Violence Against Women and Their Children Act and the importance of holding perpetrators liable for rape and sexual harassment to comply with its obligation to prevent, investigate, penalize and provide medical assistance to women victims of gender-based violence.

EnGendeRights also brought up the fact that there are women who were disappeared, raped, and tortured by the military (e.g., Sheryll Cadapan and Karen Empeńo) and yet they remain disappeared. EnGendeRights recommended that the executive and judicial branches of government must do everything to release these women to finally end the continuous torture and sexual abuse being committed against these victims.

EnGendeRights raised the issue that women exploited in prostitution are still penalized. EnGendeRights recommended that the penal provisions imposed on women exploited in prostitution must be repealed and that women exploited in prostitution must be provided with educational/skills training, financial assistance and counseling to open up opportunities for them.

EnGendeRights raised the lack of recognition of domestic partnerships or civil union for lesbians and the fact that lesbians suffer discrimination including discrimination in work and education environments. EnGendeRights recommended that there must be legal recognition of domestic partnerships or civil unions for lesbians; legal and judicial recognition of the right to custody of lesbian mothers whether their children be below seven or above seven; legal and judicial recognition of the right of lesbians and bisexual and transgender women to change their identity and name; and enactment of the proposed bill prohibiting discrimination against lesbians including discrimination against lesbians in work and education environments.

(Please see the attached Office of the High Commissioner for Human Rights’ Summary of Stakeholders’ Submissions to the UN Human Rights Universal Periodic Review and Compilation of Information of Jurisprudence of Treaty Bodies and Special Procedures on the Philippines. Copies of the full text of statements as well as audio files may be accessed at http://www.ohchr.org/english/bodies/hrcouncil and on the UPR extranet page).