Benchbook Framework

The Philippines ratified the Convention on Elimination of all Forms of Discrimination Against Women (CEDAW) on August 05, 1981 and the same has entered into force for the country on September 04, 1981.1 In essence, the treaty’s objective is to guarantee the enjoyment of human rights by women on an equal footing with men. The 1987 Constitution also provides that “[t]he State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men”2 and that it “values the dignity of every human person and guarantees full respect for human rights.”3 It also states that it “shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.”4

In more concrete terms, however, these guarantees need to be reflected in the laws and jurisprudence in order to be realized and fully implemented. As far as reflecting them in jurisprudence is concerned, it thus becomes vital that the members of the bench be cognizant of their mandate to protect, promote and fulfill the enjoyment of equal rights between women and men.

While it falls upon the lawmakers to enact legislation that would prevent or abolish discrimination against women, the members of the bench are called on to interpret such laws. Though this task may appear to be relatively uncomplicated, in reality, judges may find that it is not enough to consider that the mere distinction between women and men per se, already passes the substantial distinction test under the equal protection provision of the Constitution. They may have to scrutinize whether the basis for the distinction between women and men in a particular legislation is truly substantial, such that the same can be made a justification for the exclusion from, restriction of or preference for, the other gender. In other words, the distinction does not become automatically substantial just by the mere fact that men are indeed men, or women are not men, especially if said difference is based on constructed stereotypes and prejudices that have long been assumed to be justified. On the other hand, even if a law is neutral on its face, the judge must still carefully examine if the same produces an adverse effect on women or negatively impacts on them, in a way that does not affect the men. If the exercise of such law would produce such effect on women, then it is also discriminatory even though it may seem to be facially neutral. To achieve the task of fair scrutiny using a gendered lens would not only require a working knowledge of the provisions of the law, our State obligations under the CEDAW and the guarantees in the Constitution, but a degree of sensitivity to gender differences that need to be recognized, addressed and accommodated.

This Benchbook seeks to contribute to the elucidation of how jurisprudence has helped in the realization of women’s human rights and how it can further so do, using our State obligations under the CEDAW as the standard. This book has been divided and classified according to rights and principles in the CEDAW which promote gender equality and non-discrimination against women. The categories of rights have been patterned after Fact Sheet No. 22 on CEDAW published by the UN Centre for Human Rights.5 The summary of domestic and some foreign jurisprudence are found under such principles and rights as illustrative cases. This was designed so that the cases can be viewed as examples of how courts have upheld and can uphold the rights of women using the human rights framework of CEDAW through the development of case law. Almost all of the cases have been decided from 1981 and onwards, this year having been the time when Philippines ratified the Convention.

In addition, focus is also given to temporary special measures that must be put in place in order to achieve substantive equality, which is the kind of equality that the CEDAW espouses so that women may truly enjoy the rights guaranteed to them under the treaty. Lastly, the bench book also devotes a substantial part on cases dealing with violence against women which under General Recommendation No. 19, has been declared as a form of discrimination against women.

It is hoped that this book will serve as a resource for those interested in the application of CEDAW within the Philippines and provide a snapshot of where our success and failures have occurred, and how we can work towards a creating a legal system that offers a better understanding, and complete protection, of the rights of women.