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Wednesday, September 12, 2007

'Women's issues' in the bar exam

First posted 05:20:38 (Mla time) September 11, 2007
Rina Jimenez-David / Philippine Daily Inquirer

MANILA, Philippines -- "The city mayor issues an executive order declaring that the city promotes responsible parenthood and upholds family planning. He prohibits all hospitals operated by the city from prescribing the use of artificial methods of contraception, including condoms, pills, intrauterine devices and surgical sterilization. As a result, poor women in this city lost their access to affordable family planning programs. Private clinics, however, continue to render family planning (counseling) and devices to paying clients.

"(a) Is the executive order in any way constitutionally infirm? Explain.

"(b) Is the Philippines in breach of any obligation under international law? Explain.

"(c) May the Commission on Human Rights order the mayor to stop the implementation of the executive order? Explain."

This was Question No. 2 in the Political and International Law exam given last Sept. 2 as part of this year's bar exams. This and other questions are currently making the rounds of the e-mail circuit, especially among women's advocates, because, not only is it unusual to see gender-related issues covered in the exams for future lawyers, the questions also tread on issues and concerns not normally thought of as matters of legality or even constitutionality.

Credit for this attempt to broaden the understanding and appreciation of law must go to 2007 Bar Exam Committee chair Justice Adolfo Azcuna. As Sarah Lou Arriola, director for special projects of the Ateneo Human Rights Center, who told me about the questions, asserts: "These questions have changed the landscape of the bar exams. It is a great effort on the part of Justice Azcuna to mainstream gender issues in the law profession."

* * *

Here are the other gender-related questions in the Sept. 2 exams:

Question No. 4: In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war, and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese military. There were many Filipina "comfort women."

(a) Name at least one basic principle or norm of international humanitarian law that was violated by the Japanese military in the treatment of the "comfort women."

(b) The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them compensation. However, under the 1951 San Francisco Peace Agreement -- the legal instrument that ended the state of war between Japan and Allied Forces -- all the injured states, including the Philippines, received war reparations and, in return, waived all claims against Japan arising from the war. Is that a valid defense?

(c) The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts. Will that case prosper?

* * *

Question No. 5: The Destilleria Felipe Segundo is famous for its 15-year-old rum, which it has produced and marketed successfully for the past 70 years. Its latest commercial advertisement uses the line: "Nakatikim ka na ba ng kinse anyos? (Have you tasted a 15-year old?)" Very soon, activist groups promoting women's and children's rights were up in arms against the advertisement.

(a) All advertising companies in the Philippines have formed an association, the Philippine Advertising Council, and have agreed to abide by all the ethical guidelines and decisions by the council. In response to the protests, the council orders the pull-out of the "kinse anyos" advertising campaign. Can Destilleria Felipe Segundo claim that its constitutional rights are thus infringed?

(b) One of the militant groups, the Amazing Amazonas, call on all GOCCs to boycott any newspaper, radio or TV station that carries "kinse anyos" advertisements. They call on all government nominees in sequestered corporations to block any advertising funds allocated for any newspaper, radio or TV station. Can the GOCCs and sequestered corporations validly comply?

* * *

As any lawyer or judge will tell you, there aren't any "right" or "wrong" answers to these questions. The "rightness" or "wrongness" of any position or opinion, after all, depends on the arguments presented, the legal precedents, documents and sources quoted, and the witnesses presented. But legal points or viewpoints can be made only if the lawyer is aware of the legal scholarship underlying these positions.

I am especially grateful for the question regarding the possible "breach of any obligation under international law" by the Philippines, as indicated in Question No. 2. I believe the "international law" alluded to here is the CEDAW, or the Convention on the Elimination of All Forms of Discrimination against Women," which the Philippines has signed and ratified. CEDAW is an international human rights treaty that, among other things, "affirms and upholds women's right to health services including access to all family planning methods." Let's see how many future lawyers cited the right provision, mentioned CEDAW and the Philippine government's obligations as a signatory state, or even knew about CEDAW. Maybe those bar takers who never gave a thought to gender and the law will now see women in a new light.

And while this is just a first step, women should be properly grateful to Azcuna for showing the way in mainstreaming gender issues in the study and application of the law.