The three sections of Article 2 that we are taking into consideration here are Sections 12, 13 and 14. But before we go into the details of the sections, it is fitting to consider the development of the concept of the family in general.
A. OIKOS to PAMILYA
The civilized concept of the family can be traced in the early Greek civilization. The term oikos which means household in the Homeric and Aristotelian literature is not just the physical structure that contains people and property but also as a home as how we now understand the term today.
The Greek concept became famulus in the Roman setting which denotes a household of slaves with one head (pater). Such concepts became familia and padre in the Spanish milieu which in turn was brought to the Philippines and such became pamilya with the head called padre de familia.
B. MATRIARCHAL DOMINANCE
Some historians believe that the patriarchal nature of family today is influenced by Spain. But certain parts of the Philippines still have the vestiges of a matriarchal dominance which is believed to be pre-Spanish culture as evidenced by women having high positions in tribes such as being a priestess (babaylan). Lewis found that, originally, familial descent is characterized in a matriarchal way or in the female line, the change of descent from the female to the male line (patriarchal) might have been made because of the motive of inheritance of property.
II. SECTION 12
The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
A. THE FAMILY AS BASIC SOCIAL INSTITUTION
The first part of Section 4 of Article II of the 1973 Constitution said: “The state shall strengthen the family as a basic social institution.” Although it was a new constitutional provision then, it did not express a new policy. It merely adopted Article 216 of the Civil Code (1950) which said: “The family is a basic social institution which public policy cherishes and protects.” Title VII of the Civil Code spelled out in detail measures protective of the family as the basic social institution. The continuing constitutional policy is for the protection of the family as a basic social institution. Thus, in annulment cases, any doubt should be resolved in favor of the validity of marriage.
In Alcazar v. Alcazar, the Court said that:
Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and the marriage are to be protected by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.
It remains settled that the State has a high stake in the preservation of marriage rooted in its recognition of the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous social institution. Presumption is always in favor of the validity of marriage. Semper praesumitur pro matrimonio.
The family here is to be understood as a stable heterosexual relationship whether formalized by civilly recognized marriage or not. Calling the family a “basic” social institution is an assertion that the family is an anterior to the state and is not a creature of the state. The categorization of the family as “autonomous” is meant to protect the family against instrumentalization by the state.
B. THE UNBORN’S SECURITY
The Second sentence of Section 12 is a product of much debate. It is first of all important to understand what it does not assert. It does not say that the unborn is a legal person nor does it deny, however, that the state under certain conditions might regard the unborn as a person.
Since a conceived child has a provisional personality even while inside the mother’s womb, it is entitled to the following rights: (1) the unborn child has a right to support from its progenitors, even if said child is only “en ventre de sa mere;” (2) it may receive donations as prescribed by Article 742 of the Civil Code; and (3) it may not be ignored by the parent in his testament; otherwise, it may result in preterition of a forced heir that annuls the institution of the testamentary heir, even if such child should be born after the death of the testator.
In Quimiguing vs. Icao (34 SCRA 134)
The events in the court of origin can be summarized as follows: Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her complaint it was averred that the parties were neighbors in Dapitan City, and had close and confidential relations; that defendant Icao, although married, succeeded in having carnal intercourse with plaintiff several times by force and intimidation, and without her consent; that as a result she became pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to stop studying. Hence, she claimed support at P120.00 per month, damages and attorney’s fees.
Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did not allege that the child had been born; and after hearing arguments, the trial judge sustained defendant’s motion and dismissed the complaint.
Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining defendant’s objection, ruled that no amendment was allowable, since the original complaint averred no cause of action. Wherefore, the plaintiff appealed directly to this Court.
We find the appealed orders of the court below to be untenable. A conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines.
The unborn child, therefore, has a right to support from its progenitors, particularly of the defendant-appellee (whose paternity is deemed admitted for the purpose of the motion to dismiss), even if the said child is only “en ventre de sa mere;” just as a conceived child, even if as yet unborn, may receive donations as prescribed by Article 742 of the same Code, and its being ignored by the parent in his testament may result in preterition of a forced heir that annuls the institution of the testamentary heir, even if such child should be born after the death of the testator Article 854, Civil Code).
Section 12 does not assert that the life of the unborn is placed on exactly the same level as the life of the mother. It recognizes that, when necessary to save the life of the mother, it may be necessary and legitimate to sacrifice the life of the unborn. It however denies that the life of the unborn may be sacrificed merely to save the mother from emotional suffering or to spare the child from a life of poverty.
The provision is intended to prevent the state from adopting the doctrine in the US Supreme Court decision of Roe v. Wade which liberalized abortion laws up to the sixth month of pregnancy by allowing abortion at the discretion of the mother any time during the first six months when it can be done without danger to the mother.
The unborn’s entitlement to protection begins from “conception” that is from the moment of conception. The intention is to protect life from the beginning, and the assumption is that human life begins at conception and conception takes place at fertilization.
C. THE INTENT OF THE FRAMERS
The Records of the Constitutional Commission elucidates regarding the beginning of life, the unconstitutionality of any legislative measures on abortion and contraception:
…MR. AZCUNA: Commissioner Villegas is not in the hall at the moment, but the committee will be willing to answer.
MR. GASCON: Thank you, Mr. Presiding Officer.
As I mentioned in my speech on the U.S. bases, I am definitely pro-life, to the point that I would like not only to protect the life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic implications of the term “protection of the life of the unborn from the moment of conception.” I raised some of these implications this afternoon when I interjected in the interpellation of Commissioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term “the life of the unborn from the moment of conception,” we are also actually saying “no,” not “maybe,” to certain contraceptives which are already being encouraged at this point in time. Is that the sense of the committee or does it disagree with me?
MR. AZCUNA: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is yet unshaped.
MR. GASCON: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine device which actually stops the egg which has already been fertilized from taking route to the uterus. So, if we say “from the moment of conception,” what really occurs is that some of these contraceptives will have to be unconstitutionalized.
MR. AZCUNA: Yes, to the extent that it is after the fertilization, Mr. Presiding Officer.
MR. GASCON: Thank you, Mr. Presiding Officer.
My second question is with regard to the population program. How would this provision affect the existing population program being implemented by the Population Commission? Second, if there is an approval of this provision here, because Commissioner Villegas said that he shall make a motion for deletion of that provision on population at the proper time, does it necessarily mean that the provision in the General Provisions Article on population will have to be deleted?
MR. NOLLEDO: Mr. Presiding Officer, not necessarily because family planning is consistent with the provision in Section 9 that there should be protection to the unborn. Before this proposed provision was formulated, taking into account the pertinent provision of the 1973 Constitution, family planning would include preventive pregnancy and even killing the fertilized ovum. But now, if we adopt the second sentence of Section 9, family planning would refer respectively only to preventive pregnancy as stated by Commissioner Azcuna.
MS. ROSARIO BRAID: Also, at the proper time, in the General Provisions we will discuss the population policy. The Commissioner will note it is no longer population control but population policy, which means that there are other ways of limiting population such as economic development, improving the education of women which is an indirect means of population control; or as in the case of Singapore, at one time it had a 1-2 child policy, but today they realize that they need to increase their population. And so, their population policy now is to have more children, whereas, 10 years ago they were limiting; they are now increasing. So, population policy would, therefore, mean that at a certain time when our population shall have stabilized, we can even have a policy towards increasing population. We will discuss this at the appropriate time in the General Provisions.
MR. GASCON: So, Mr. Presiding Officer, what this provision merely implies is that there will be certain programs as they are being implemented now which will have to be stopped, but not the whole program itself.
I have one last point on the issue of abortion, Mr. Presiding Officer. Have there been studies made with regard to the issue of the legalization of abortion being directly proportional to the population rate of other countries? I notice that in the past, about five or ten years ago, the trend was towards world population control program in industrialized countries; but now because they have succeeded, in one way or another, through population control programs or through legalization of abortion, they have a problem of a lull in their birth rate to the point that they are, as mentioned already, encouraging more births than discouraging births.
MR. AZCUNA: Yes, Mr. Presiding Officer, with respect to population policy, the studies have been made but the correlation coefficient is not conclusive. Suffice it to say that what is known as ZPG, zero population growth, is somewhere at 2.2 percent, the .2 percent being what is required to replace in addition to the father and the mother who do not reproduce, like the celibates. At 2.2 percent, population is maintained at its present level regardless of natural attrition. So, if a country falls below 2.2 percent in population growth, then it is actually decreasing in number. It is below zero population growth. Also, what is important in demography is what is known as the net reproduction growth rate; that is, the number of girls who will be born and who will bear children. That is very important. Is the net reproduction growth rate — the number of girls that are born and will bear children.
MR. GASCON: So, abortion does not have any direct relation to population growth.
MR. AZCUNA: As I said, the studies are not conclusive on the correlation coefficient.
MR. GASCON: Thank you, Mr. Presiding Officer…
MR. OPLE: The answer is satisfactory. I would like to proceed to the next sentence closer to the heart of Commissioners Bacani and Villegas which reads:
The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.
Yesterday, I had the good fortune to listen to some of the interpellations precisely on this sentence. Commissioner Villegas on behalf of the committee then said, “This could be related to some statements in the general provisions on family planning.” Does this mean that, in providing for the protection of the life of the unborn from the moment of conception, this is going to be taken as a signal to dismiss the relevance and validity of all family planning programs in the Philippines? Is that how the committee views this?
MR. VILLEGAS: No. As we made it very clear yesterday, any contraceptive that is not abortifacient can still be legal, according to this specific provision.
MR. OPLE: I will vote for this provision, Madam President. I think that in writing a constitution, we write not only provisions of a fundamental law. We set the tone whether we like it, or the tone of a whole civilization, and that is why I also voted for the elimination of the death penalty under certain conditions, subject to certain powers of Congress to provide for exceptions in the case of heinous crimes. Overall, we should raise the tone of our public and social morality through a constitution; and the reverence for life, that time and life is, of course, being rendered cheap by all the threats to our safety in a very disorderly environment. Still a commitment to the protection of life, even in its incipient stage, is a declaration of a commitment to a higher tone of our civilization. But at the same time, I would be very concerned if the committee now taking off from its forthcoming victory on this Section 9 will start considering this as a mandate to discredit, to actually dismiss family planning programs in this country. I heard Commissioner Villegas say that purposeful programs to limit the size of families have failed everywhere. He quoted President Reagan, whose wisdom might lie in other fields than in family planning, as having said that social and economic development is the only key to the reduction of human populations. He referred to the new U.S. policy, which is driving Mr. Salas and his UNFPA to a new lookout. He has applied to be transferred to Tokyo because of this new restrictive atmosphere on family planning in the United States.
But, of course, may I say that family planning is not a rigid idea. May I tell the body that in the Soviet Union, which I know a little bit since I have traveled there no fewer than seven times, even within that vast country, there are two kinds of population crises. In the European part, it is the crisis of a steadily diminishing population; and, therefore, the State holds up medals of heroism for heroic mothers who would give birth to more than eight children. But in the Asian part of the Soviet Union, there is a reverse problem. They are reproducing at a faster rate. This possesses momentous political and economic implications for the Soviet Union after the year 2000, when the Asiatic population begins to match the European population. And what will we have — crisis of leadership about distribution of leadership and power, especially in the higher strata of the Soviet policy and bureaucracy. But India is different. Japan is different. The Philippines is different. We are a developing country. If my data are still current — I used to sit in the Population Commission — about 10 years ago, our population growth rate was 3.5 percent according to the University of the Philippines. Then it declined over 10 years to only about 2.6 percent. The NEDA now says it is 2.4 percent if I am not mistaken. And yet, these were years of stagnation in manufacturing. As a matter of fact, Philippine manufacturing has never exceeded 14 percent of the total employed force of this country since 20 years ago. Commissioner Villegas is an authority on that. He uses this argument very fiercely in the debates on protectionism.
Since we did not really grow spectacularly in those 10 years, still the rate of growth of the population dropped precipitously from 3.5 to only 2.4 percent at this time. Will we not give the population policy of the government and of the nongovernmental organizations some credit for having accomplished this small miracle in population control?
MR. VILLEGAS: That is one of the most statistically debatable issues. Although this is a completely separate question which is not related to Section 9 of the Article on the Declaration of Principles, still my position is that it is subject to the flux and the changes in economic policy, in urbanization and in industrialization. It should be something that should not be found in a constitution, but should be subject to legislation. If family planning is found necessary, let it be in the legislative process. However, as I said, that is a completely separate question.
MR. OPLE: This is a slight revision of the views which the Commissioner gave yesterday, but I hope this is the official one.
MR. VILLEGAS: What I stressed yesterday was to support in the separate discussion on the Article on the General Provisions the idea of deleting any reference to population policy precisely because today it may be that we want to limit population. Tomorrow it may be that we want to increase population.
MR. OPLE: Thank you very much for that clarification.
I want to ask now: Does this belong to the province of Commissioner Villegas or Commissioner Bacani? We say, “Protect the life of the unborn from the moment of conception.” Is there in jurisprudence anything now that will help us visualize the precise moment, the approximate moment when conception begins and, therefore, the life of this new human personality entitled to all the protection of the laws in the Constitution begins? Is there any standard legislature or jurisprudence that will support an interpretation of the moment of conception?
MR. VILLEGAS: Jurisprudence? None. Precisely, this is one thing that we have to obtain from the declaration of natural scientists. In this regard, I would like to read this specific statement by natural scientists about when human life begins. This is taken from the Handbook on Abortion by Dr. and Mrs. J.C. Wilke. The most distinguished scientific meeting of recent years that considered this question of when human life begins was the First International Conference on Abortion held in Washington D.C. in October 1967. It brought together authorities from around the world in the fields of medicine, law, ethics and the social sciences. They met together in a think tank for several days. The first major question considered by the medical group was: When does human life begin? The medical group was composed of biochemists, professors of obstetrics and gynecology, geneticists and so forth, and was represented proportionately as to academic discipline raised in religion. For example, only 20 percent were Catholics. Their almost unanimous conclusion, 19 to 1, was as follows:
The majority of our group could find no point in time between the union of sperm and egg which is the fertilization or, at least, the blastocyst stage and the birth of the infant at which point we could say that this was not a human life.
Parenthetically, the blastocyst stage is shortly after fertilization and would account for twinning. They continued:
The changes occurring between implantation, a six-week embryo, a six-month fetus, a one-week-old child or a mature adult, are merely stages of development and maturation.
There has not been before a more important or a more qualified body of natural scientists who, as a group, has thoroughly discussed and come to conclusion on this subject until such time as some other groups of equal scientific importance might possibly come to a different conclusion. We believe that the abortion debate from a scientific standpoint must proceed on the assumption that this is human life. So, human life begins at fertilization of the ovum.
MR. OPLE: But we would leave to Congress the power, the mandate to determine.
MR. VILLEGAS: Exactly, on the basis of facts and figures they would obtain from experts.
MR. OPLE: Yes, to legislate a kind of standard so that everyone will know what moment of conception will mean in terms of legal rights and obligations…
…MR. RAMA: Madam President, may I call on Commissioner Uka to present an amendment.
THE PRESIDENT: Commissioner Uka is recognized.
MR. UKA: Madam President, Commissioner Treñas and I are cosponsors of this motion to delete Section 13.
There are valid and strong arguments against inserting the provisions of Section 13 of Proposed Resolution No. 531 in the new Constitution, the most cogent among which are the following:
(1) There is a wealth of statistical evidence that proves that population growth has been a major stimulus for economic development and progress in countries that are now industrialized.
(2) The major determinants of a country’s economic development are economic policies and political system. Very densely populated countries like Japan, Taiwan, South Korea, Hongkong and Singapore reached heights of economic progress much before any organized population programs.
(3) It is very dangerous to give the State a constitutional mandate to determine what is an optimum population. This can lead to a gross violation of human rights like in the case of some Asian countries that implemented forced sterilization programs, such as the more recent attempt of an Asian leader to limit childbearing only to the educated women, making the extremely objectionable assumption that poor women give birth to less intelligent babies.
(4) In the Philippines, population control programs have been an unmitigated disaster. Hundreds of millions, as a matter of fact, close to P340 million, have been spent for these population control programs from 1981 to 1986. And, of course, hundreds of millions of pesos have gone down the drain without any real impact on alleviating mass poverty.
As the current Minister of Social Services, Mita Pardo de Tavera has recently declared, funds for population control are better utilized in providing social services to the existing population. Population policies should be exclusively population welfare policies. It has been proved beyond statistical doubt that economic development and social justice will automatically lead to the slowing down of population growth as increased urbanization and industrialization are achieved. There is no need for the State to take an active role in determining the optimum level of population. Once the State is wrongly given the mandate to interfere in the basic rights of parents to determine the number of children they will have, all the qualifying limitations about respecting individual consciences are often more honored in their breach as can be gleaned from the experience of developing countries in Asia.
The 1935 Constitution did not include any provisions on population. The only reason why a population policy was included in the 1973 Constitution was that there was a strong lobby supported by the USAID, which at that time was aggressively committed to population control. Since that time under the new policy of President Reagan, American aid programs have been focused on such positive solution as food productivity and the development of small-and medium-scale industries.
Very recently, America stopped all financial support to the U.N. Fund for Population Activities because of the latter’s involvement in China’s population program, which the United States has reason to suspect, contains the widespread use of compulsory abortion.
The new Reagan doctrine on population was first announced in the 1984 Population Meet in Mexico. It states that the most effective solution to the population problem is economic development and social justice.
Given appropriate policies in economic development and social justice which have been our concern in this Constitution, the Philippines today can comfortably accommodate as many as 100 million Filipinos given the present technology. The Philippines is far from being overpopulated. Existing mass poverty in the Philippines can be attributed to an unenlightened economic policies and the wrong political leadership in the past.
THE PRESIDENT: Commissioner Uka, I am sorry I have to interrupt you because your three-minute time has expired.
MR. UKA: One minute more, Madam President. What is one minute among friends.
THE PRESIDENT: The Commissioner is granted a one-minute extension.
MR. UKA: Thank you, Madam President.
Today, every major nation is both modern and free; it is also on a fertility trap, which will lead to a substantial loss in population. Why should we target our CPG when other nations want to have more babies? In fact, President Francois Miterrand of France recently argued that the decline in birth rate constitutes a grave menace to the West.
So we can see that the modern nations in Europe are even having a problem of decline in population. And some of them are even sending their people here to adopt Filipino children. What does this mean? If Rizal said that the youth, the conceived child in the womb included, is the fair hope of the Fatherland, then the Western contraceptive is already preventing that to happen in our country. There will be no more hope — children or youth — for our Fatherland.
I cannot resist the temptation to quote Jesus on this subject when he said: Suffer little children and forbid them not to come unto me for such is the Kingdom of Heaven.
We should welcome children, not kill them…
There is however no attempt to pinpoint the exact moment when conception takes place. But while the provision does not assert with certainty when human life precisely begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach.
Very recently, the question whether life begins at implantation or fertilization, the Court in Imbong v. Ochoa ruled that life begins at fertilization. By using the plain meaning rule, the Court said that the traditional meaning of the word “conception” which, as described and defined by all reliable and reputable sources, means that life begins at fertilization. By resorting to the Records of the deliberations of the framers, Mr. Villegas in answer to the question when is the moment of conception said that it is when the ovum is fertilized by the sperm that there is human life.
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly, following the intention of the framers of the Constitution, the undeniable conclusion is that a zygote is a human organism and that the life of a new human being commences at a scientifically well-defined moment of conception, that is, upon fertilization.
As to the theory of implantation as the beginning of life, the Court ruled in Imbong thus:
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object – it is a living human being complete with DNA and 46 chromosomes. Implantation has been conceptualized only for convenience by those who had population control in mind. To adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution
III. SECTION 13
The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
A. THE ROLE OF YOUTH
Alongside with this: Section 5, Art II of the 1973 Constitution, to enable them fulfill this role, the State shall:
- Provide for their health, education, training, social welfare, employment opportunity, and community support.
- Extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious and other forms of discrimination.
- Recognize and strengthen the family as a basic social institution and aid legitimate associations in the preparation of youth for civic involvement.
Section 3. Congress shall create a National Youth Commission to coordinate the planning and implementation of government programs concerned with child and youth development. In this Section, it discusses Youth which are the building blocks of a nation. It is a fact that the stronger the youth, the more developed the nation is.
The role of the youth in the nation-building occupies the central place. The countries which utilize their youth in a right direction are more developed. The energy and brightness of the minds of youth act as torch-bearer for a nation. On the contrary, the countries which fail to realize the importance of the youth lag behind in every department of life.
It is the duty of the government to provide the youth with ample opportunities to play their role in an effective manner. With this, our government has created an act which will address issues regarding Filipino Youth:
B. REPUBLIC ACT NO. 8044 – THE YOUTH IN NATION-BUILDING ACT
“An act creating the National Youth Commission, establishing a National Comprehensive and Coordinated Program on Youth Development, Appropriating Funds Therefore, and for Other Purposes.”
• The NYC provides the youth with opportunities to be an active partner in nation-building through youth programs and projects that will develop and harness their potentials and enable them to be of great service to their country and community.
• The creation of new policies and advocacies for youth development also allows the NYC to push for reforms and the creation of new measures to implement better services for the youth and the communities.
C. BOY SCOUTS OF THE PHILIPPINES VS. COA
The issue was whether the Boy Scouts of the Philippines (“BSP”) fall under the jurisdiction of the Commission on Audit. The BSP contends that it is not a government-owned or controlled corporation; neither is it an instrumentality, agency, or subdivision of the government. The Supreme Court, however, held that not all corporations, which are not government owned or controlled, are ipso facto to be considered private corporations as there exists another distinct class of corporations or chartered institutions which are otherwise known as “public corporations.” These corporations are treated by law as agencies or instrumentalities of the government which are not subject to the tests of ownership or control and economic viability but to a different criteria relating to their public purposes/interests or constitutional policies and objectives and their administrative relationship to the government or any of its departments or offices. As presently constituted, the BSP is a public corporation created by law for a public purpose, attached to the Department of Education Culture and Sports pursuant to its Charter and the Administrative Code of 1987. It is not a private corporation which is required to be owned or controlled by the government and be economically viable to justify its existence under a special law. The economic viability test would only apply if the corporation is engaged in some economic activity or business function for the government, which is not the case for BSP. Therefore, being a public corporation, the funds of the BSP fall under the jurisdiction of the Commission on Audit.
IV. SECTION 14
The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
This provision is new. Beyond stating that women do have a role in nation building, the provision makes the more important assertion that there exists a fundamental equality of women and man before the law.
A. HISTORY OF THE PROVISION (People v. Jumawan)
Rape and marriage: the historical connection
The evolution of rape laws is actually traced to two ancient English practices of ‘bride capture’ whereby a man conquered a woman through rape and ‘stealing an heiress’ whereby a man abducted a woman and married her.
The rape laws then were intended not to redress the violation of the woman’s chastity but rather to punish the act of obtaining the heiress’ property by forcible marriage or to protect a man’s valuable interest in his wife’s chastity or her daughter’s virginity.
Woman is merely a property
If a man raped an unmarried virgin, he was guilty of stealing her father’s property and if a man raped his wife, he was merely using his property.
Women were subjugated in laws and society as objects or goods and such treatment was justified under three ideologies.
- Chattel Theory
Under the chattel theory prevalent during the 6th century, a woman was the property of her father until she marries to become the property of her husband. If a man abducted an unmarried woman, he had to pay the owner, and later buy her from the owner; buying and marrying a wife were synonymous.
From the 11th century to the 16th century, a woman lost her identity upon marriage and the law denied her political power and status under the feudal doctrine of coverture.
A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring order within the family.
- Marital Unity Theory
This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying, the woman becomes one with her husband. She had no right to make a contract, sue another, own personal property or write a will.
- The marital exemption rule (Lord Hale’s Rule)
In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable implied consent theory that would later on emerge as the marital exemption rule in rape. He stated that:
[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.
The rule was observed in common law countries such as the United States of America (USA) and England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act which would be rape if committed against a woman not his wife. In those jurisdictions, rape is traditionally defined as “the forcible penetration of the body of a woman who is not the wife of the perpetrator.”
Marital right to Rape the Wife
The first case in the USA that applied the marital exemption rule was Commonwealth v. Fogerty promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that it would always be a defense in rape to show marriage to the victim. Several other courts adhered to a similar rationale with all of them citing Hale’s theory as basis.
The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed with absolute immunity from prosecution for the rape of his wife. The privilege was personal and pertained to him alone. He had the marital right to rape his wife but he will be liable when he aids or abets another person in raping her.
In the 1970s, the rule was challenged by women’s movements in the USA demanding for its abolition for being violative of married women’s right to be equally protected under rape laws.
In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the rule in cases where the husband and wife are living apart pursuant to a court order “which by its terms or in its effects requires such living apart,” or a decree, judgment or written agreement of separation.
The Abandonment of the Hale’s Rule
In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New York declared the same unconstitutional in People v. Liberta for lack of rational basis in distinguishing between marital rape and non-marital rape. The decision, which also renounced Hale’s irrevocable implied consent theory, ratiocinated as follows:
We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional.
Lord Hale’s notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption. x x x Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm x x x. To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand x x x. Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman x x x. If a husband feels “aggrieved” by his wife’s refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in “violent or forceful self-help x x x.”
The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was “incorporated and consolidated into that of the husband x x x.” Both these doctrines, of course, have long been rejected in this State. Indeed, “[nowhere] in the common-law world – [or] in any modem society – is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being x x x.”
The Modern Principle of Equality
The ancient customs and ideologies from which the irrevocable implied consent theory evolved have already been superseded by modem global principles on the equality of rights between men and women and respect for human dignity established in various international conventions, such as the CEDAW.
Another important international instrument on gender equality is the UN Declaration on the Elimination of Violence Against Women, which was Promulgated by the UN General Assembly subsequent to the CEDAW.
B. COMMITMENT OF THE PHILIPPINES
The Philippines, as State Party to the CEDAW, recognized that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between them. Accordingly, the country vowed to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices, customs and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (UN-CEDAW). Hailed as the first international women’s bill of rights, the CEDAW is the first major instrument that contains a ban on all forms of discrimination against women.
The Philippines assumed the role of promoting gender equality and women’s empowerment as a vital element in addressing global concerns. The country also committed, among others, to condemn discrimination against women in all its forms, and agreed to pursue, by all appropriate means and without delay, a policy of eliminating discrimination against women and, to this end, undertook:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
x x x x
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
C. THE INCLUSION WOMEN’S EQUALITY IN 1987 CONSTITUTION
In compliance with the foregoing international commitments, the Philippines enshrined the principle of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof, thus:
Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights.
x x x x
Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
There was however no intent to advocate absolute sameness because there are obvious biological differences between men and women. It was precisely to make room for these natural differences that the provision was made to read “fundamental equality before the law.”