Wednesday, March 30, 2011

WOMEN VIOLATED AND SILENCED

By Rosanna Javier

March 2011 marked the 100th year centennial of the celebration of International Women’s month. Gabriella included the elimination of violence against women in their 10-pt challenge to the Aquino administration. Despite the passage into law of Republic Act 9262 on Anti-Violence against Women and their Children Act of 2004 or VAWC, Davao City’s records on incidence of violence against women has steadily increased.   Lorna Mandin of the Integrated Gender Development Division (IGDD) reports that in 2004 the city recorded 107 cases, 120 cases in 2005, 399 in 2006, 497 in 2008, and 611 in 2009, for a total of 2097 for six years.

In the past, like in rape cases, the victim is guilty until proven innocent and the overall process is skewed to the accused’s favor. In contrast, RA 9262 is supposed to be more gender sensitive and is pro-woman/pro-victim.  RA 9262 brought to fore the phenomenon of “violence against women”. This piece of legislation supposedly adequately defends and protects women from their abusive aggressor’s physical, emotional, sexual, psychological and economic abuses. Those suffering from marital battery, a form of violence that is most prevalent in the Philippines (rape being the second), can now seek justice under RA 9262.

While rape may be a one-time occurrence, the abuses sustained by women (covered under RA 9262) are often continuing crimes happening over several stages of a woman’s life. This is a source of major concern. Women need to be more educated about RA 9262 - the types of abuses that can be committed against them, if they are at risk or are potentially at risk and how to seek help when indeed they are already violated.

Judge Adoracion P. Cruz-Avisado in her 2006 dissertation “Republic Act 9262 & the Women Victims of Violence in Davao City” claims that because of the sensitivity of the cases, a lot of violations of RA 9262 go unreported.” She surmises that “women victims of violence are oftentimes fearful for their lives and are still unempowered.”

Michael Tan, of Manila Health Action Information Network (HAIN), says that there exists a culture of silence and violence. He says that “Violence against women exists because we refuse to face up to the roots of the problem and our social norms continue to encourage violence against women.” Tan says Filipino men are only expected to be gentlemen, for as long as the woman is loyal and servile. When a woman starts talking or asking for too much, his “gentleman fa├žade” is dropped giving way to machismo --- the woman must be put “in her place”, through a beating if needed.

Many times, it is the silence of the victim that makes the abuser feel more controlling and fearless. Many women are silenced by their fears and societal pressures. Many times it is not the acts of abuses that may devastate a woman but “It is the reaction of others who hear what happened to her. Most victims remain silent or anonymous because they rightly fear they will be misunderstood or judged” (Candace Walters, “Invisible Wounds; What Woman Should Know About Sexual Assault””).

Arugaan ng Kalakasan, a crisis intervention agency in Quezon City found that some of the reasons women keep silent about their experiences and remain in violent relationships are: "shame, the hope that the abusive partner will change, threats from or the moral ascendancy of the abuser, lack of financial resources, lack of support from relatives, concern for the children, and social pressure to keep the family together."

As a society we should be more belligerent against the violence that is committed against our women.
We must consider that the damage done to the victims is not limited to physical injuries. The wounds may be invisible and leave marks on the minds and souls of the women violated. We shouldn’t be insensitive just because we believe that violence can only happen to other women - the young, the slut and the immoral. In reality it doesn’t happen to those who we think deserves it. It can happen to anyone!

Why do we misunderstand VAW? Is it because we are in self denial and we prefer not to confront it because it is just too depressing? We choose to believe that violence against women does not happen that often and if it does happen, we blame the woman and claim that she should have been able to prevent it. Or are we just plain ignorant and thereby have become passive to the plight of these women?

Because of our apparent lack of concern for the victims, the victim becomes more victimized and the perpetrator is protected and goes scot free. The women violated may lack the maturity to deal with violence and their families may likewise lack the knowledge to help them. Sometimes the women are blamed for what happened to them and urged to forget the whole thing; to “move on”. Where would women get comfort if their family support systems are weak? Some women may self-destruct. She may turn to prostitution, promiscuity, alcohol and drugs.

It is the duty of family, social workers, hospitals and the community to report violations, to lend a voice to the victim even one who refuses to speak out. By allowing these violent and abusive men to thrive and not report about known offenses, we are by default consenting to the crimes. Cora Sta. Ana and Dee Dicen Hunt in their work “Filipino Women and Sexual Violence: Speaking Out and Providing Services” observes that “Increasingly, as the culture of violence is broken, women are coming forward and reporting their experiences of violation.“

Women who dare bring the matters to court are sometimes made to feel embarrassed about “coming out of silence”, sometimes even made to feel the shame by her more powerful aggressor. Some friends who are not sensitive and who don’t even know the complete story would contend, “What are you doing it for? You should just move on!” Hardly would anyone believe the atrocities that happened to the woman. Documented cases show that many women are suffering in silence because they do not want to put their families in shame.

Despite the drawbacks of an RA 9262 trial, there are some benefits to prosecuting. A trial can offer the victim a constructive outlet to ventilate her anger and pain. Research has shown that women who prosecute often recover from the trauma of the violence sooner that those who don’t. There is a satisfaction that everything has been undertaken so that the offender will not victimize or harm someone else.

It is hard for a woman to come out with her tragic story. “Prosecuting the abuser can be a frightening and frustrating experience”. The abuser may inflict further harm and harassment. The legal process can be seen as both intimidating and troublesome.

Sometimes the women are being convinced that it may not be worthwhile to have the offender convicted. In order for the victim to succeed, she needs to be aware of the court system. She should be well informed about her legal rights; the frustrations, delays and complications in the legal system; and be sufficiently prepared before she goes to court. Otherwise, her ill-preparation may result in an impaired testimony and she might just give up all together and lose the case by default. (Morton Bard and Dawn Sangrey, “The Crime Victim’s Book.)

“Problems call forth our courage and our wisdom; indeed, they create our courage and wisdom. It is only because of problems that we grow mentally and spiritually….It is through the pain of confronting and resolving problems that we learn.” M. Scott Peck

(Rosanna Javier is a regular columnist at Mindanao Journal and contributor at Gensan Exchange. She can be reached at rosannajavier_ge@yahoo.com)

Monday, March 21, 2011

Apocalypse When? Liability for Damages Arising from Nuclear Incidents

CURRENT LEGAL CONCERNS
Atty. Elpidio V. Peria
19 March 2011

Apocalypse When?
Liability for Damages Arising from Nuclear Incidents

Consumers in China were shown in CNN today to be emptying their grocery shelves of salt, driven by the belief that taking in salt would spare them from the ill-effects of radiation from the disabled Fukushima Nuclear Power Plant in Japan, damaged by the earthquake and tsunami which hit the Northeastern part of Japan last March 11, 2011. The CNN news anchor however said that one will have to take in 80 tablespoons of salt in order to get the beneficial effects of one tablet of iodine, the chemical supposed to shield the body from the ill-effects of wayward radiation from the Japanese nuclear plant.

Right now, it is far-fetched for Filipinos to worry about the ill-effects of radiation from a malfunctioning nuclear plant since we don't have any nuclear plant in the Philippines that is operating.

We do have, however, the mothballed Bataan Nuclear Power Plant, which figured prominently as one of the issues against former President Ferdinand Marcos during Martial Law which was about to be the subject of heated debate among environmentalists and proponents. However, the staunchest proponent of the revival of the operation of the mothballed Bataan Nuclear Power Plant, Congresswoman Kimi Cojuangco of Pangasinan, has shelved her House Bill 1291 calling for the reopening of the nuclear plant “indefinitely” right after the magnitude 9.0 earthquake hit Japan.

In spite of this, we have to be aware that, we, as a country, deals with nuclear materials, and has been actively doing nuclear-related researches, right in the heart of the National Capital Region, in Quezon City, where a government agency dealing with these issues is based.

How's that again?

Yes, the Philippines, through the Philippine Nuclear Research Institute, an attached agency of the Department of Science and Technology, is currently and has long been engaged in research involving nuclear materials or methodologies, as can be seen from the website (http://www.pnri.dost.gov.ph) of this agency whereby applications, for example, in food and agriculture are routinely done, from crop improvement through mutation breeding, soil quality improvement, pest control (through sterile insect technique), improvement of animal production through the use of radioimmunoassay (a nuclear technique of measuring reproductive hormone) in the breeding and nutritional management of dairy cattle.

There are also applications in human health and medicine, environmental protection and management, water management and protection and industry.

This just goes to show that we, as a country, is prepared, and have even passed laws dealing with the liabiility arising from damage due to nuclear incidents, which is not limited to what is currently happening in Japan.

Such law is Republic Act 5207, dating from 1969, and it defines nuclear incidents as “any occurrence or series of occurrence having the same origin which causes nuclear damage”.

Nuclear damage on the other hand is “loss of, life, any personal injury or any loss of, or damage to, or loss of use of property, which arises out of or results from the radioactive, toxic, explosive or other hazardous properties, or any combination thereof, of nuclear fuel or radioactive products or any waste in, or of nuclear materials coming from, originating in, or sent to, a nuclear installation or from the ionizing radiation emitted by any other source of
radiation inside a nuclear installation.”

This definition seems broad enough to contemplate contamination of food products arising also from radiation generated by the nuclear incident.

We seem to have a good safety record, judging from the lack of any case law involving the use of this law, which was amended by President Marcos himself in 1978, through Presidential Decree 1484, in 1978.

As written, this law deals with liabiility by installation operators, those who operate nuclear facilities or handle or transport nuclear materials, like the ones currently used in research, and limits their liability in the amount of US$ 5 million from any one nuclear incident, exclusive of an interest or costs which may be awarded by the Court in actions for compensation of such nuclear damage.

The Clean Air Act, Republic Act 8749, passed in 1999, has a provision dealing with radioactive emissions, which reads as follows:

Section 33. Radioactive Emissions. - All projects which will involve the use of atomic and/or nuclear energy, and will entail release and emission of radioactive substances into the environment, incident to the establishment or possession of nuclear energy facilities and radioactive materials, handling, transport, production, storage, and use of radioactive materials, shall be regulated in the interest of public health and welfare by the Philippine Nuclear Research Institute (PNRI), in coordination with Department and other appropriate government agencies.

Now, in case of damage arising from radiation that may traverse Philippine territory, through the movement of natural elements, wind, air, rainfall, etc. from the Fukushima Nuclear Power Plant, which is now in the category of the Three Mile Island Nuclear Accident in the US from the scale of severity of nuclear incidents of the International Atomic Energy Agency (IAEA), that is a rare apocalyptic scenario that, in all circumstances should not be expected but something that we all should prepare for.

This discussion however, will require a separate write-up for some future date, as it deals with transboundary liabiility for nuclear harm, which is underpinned by several principles of customary international law as there is currently no specific or definite international legal regime that deals with these issues specifically.

oOo

Comments are welcome! Email me at : pingperia16@yahoo.com

Thursday, March 10, 2011

RIGHTS OF OFWs in Extremis

By Atty. Elpidio Peria

The past few weeks should bring home the realization to all of us that we have become an OFW nation, as indeed we already are, many years back, what with US$18.763 billion remittances in 2010, exceeding even the Bangko Sentral ng Pilipinas (BSP) forecast of US$18 billion.

The Asian Development Bank did a study in 2008 and found out that OFW remittances in that year constituted around 12% of the country's GDP, making foreign remittances the “single most important source of foreign exchange to the economy and a significant source of income for recipient families.”

Looking at the haggard faces of newly-arrived OFWs from Libya and the distressed faces of relatives of Pinay nurses apparently already considered dead by the authorities in Christchurch, New Zealand, one is never surprised with comments from these faces : “where is the Government of the Philippines in these times of distress of the supposed “Bagong Bayani” ?

Of course, as a show of high-profile political action, the newly-appointed DFA Secretary Rodolfo del Rosario, “aging” as described by an equally high-profile columnist in a well-known newsdaily, went to Libya and back, apparently leaving the rest of the DFA contingent there to help our countrymen find their way back home, amidst an emerging or perhaps already a full-blown humanitarian crisis in the Libyan borders, with all other OFWs of other countries (Egypt, Bangladesh, etc.) all wanting to get out, with estimates of around 70,000 individuals and steadily rising by the hour, even as of this writing.

The Government of Pnoy is trying all its might to do all it can, but perhaps it may also be useful for OFW families to know their rights under international conventions or our national laws, to push into action our already harassed, underpaid and undermanned DFA or Labor attache personnel in the countries where OFWs are deployed.

First thing to be realized is that these OFWs have the right to leave their country of employment anytime, and they should not be subjected to any form of restriction to exercise this right, though, of course, in these dire circumstances, the stampede and the political turmoil adds to the difficulty of exiting wtihout any impediment.

This right is in Article 8 of an international human rights instrument called the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families adopted by UN General Assemby Resolution 45/158 of 18 December 1990, which entered into force, meaning it is already with legal effect to those countries which have ratified it, last 1 July 2003, with the Philippines ratifying it 5 July 1995 and the Libyan ArabJamahiriya (this is the name of Libya in the UN website of ratifications of this instrument) acceded to this instrument 18 June 2004.

Scrutinizing this international treaty further, it does not however contain any other provision in these dire circumstances, like, perhaps, the countries with planes and ships, should help those countries without those planes and ships, to also carry on board the nationals of all those who want to get out.

Looking at BBC and CNN newscasts, however, some UK and French frigates have been helping out other nationals not their own, though of course, not with extreme urgency and dispatch, as they would treat their own nationals.

Where, o where, are the mighty US ships and planes? Are we not supposed to be helped by the US in these types of circumstances to carry our own nationals to safety?

The International Convention does not state so and even if may have such provisions, too bad, the US is not a signatory to this Convention. Perhaps we should just invoke our “special relationship” with the US, to persuade them to lend their planes and ships in these emergencies.

Another relevant right that is guaranteed by this Convention is the right in Article 16, the liberty and security of person in par. 1 and in par. 2 of that same provision, “ Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.”

This obligation applies to State agents but also to private groups, like what has proliferated in the liberated Eastern part of Libya where there is no functioning government or some emergent political infrastructure at the moment, not to harm the person of our OFWs, like intimidating them or confiscating what is in their person, though many OFWs report their passports as having been confiscated from them, which is a violation of this international right.

Should our OFWs be invoking these rights? Yes, but more forcefully, this is what should come out from our diplomats presumably still based in the capital in Tripoli,Libya, as it does not seem politically wise to sever our diplomatic relations with Libya at this severely trying phase.

Looking at our national legislation, one other thing that should come to the forefront now is this thing called “Filipinos Resource Center”, established by the Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042), whenever there are at least 20,000 migrant workers in a country, and established within the premises of the Embassy.

Under the Omnibus Rules and Regulations of RA 8042, this Resource Center should be able to, among other services, provide counseling and legal services, welfare assistance including the procurement of medical and hospitalization services, and more importantly, the monitoring of daily situation, circumstances and activities affecting migrant workers and other overseas Filipinos.

In this chaotic situation,however, one is never sure if this entity under the law is still functioning, but this should be asked by responsible news agencies and NGOs. The problem actually now are those OFWs that are outside the capital and working in the desert of Libya with no communications to the Embassy. No wonder the DFA people will always say they are still monitoring the situation of these people who are incommunicado.

The other relevant provision of the rules under RA 8042 are :

sec. 56. Emergency Repatriation. - The OWWA, in coordination with DFA, and in appropriate situations, with international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency within sixty (60) days of notice. In such case, POEA will simultaneously identify and give notice to the agencies concerned.

Sec. 58. Other Cases of Repatriation. - In all cases where the principal or agency of the worker cannot be identified, cannot be located or had ceased operations, and the worker is in need and without means, the OWWA personnel at jobsite, in coordination with the DFA, shall cause the repatriation. All costs attendant to repatriation borne by the OWWA are chargeable to the Emergency Repatriation Fund provided in the Act, without prejudice to the OWWA requiring the agency/employer or the worker to reimburse the cost of repatriation, in appropriate cases.

It is but proper that the OWWA has been announcing there is something like Php 100 million to put into effect this repatriation as soon as possible.

Summing up the situation, it is clear we need to beef up our DFA and Labor attache personnel not only during times of crisis but to regularly administer support to our OFWs.

Perhaps all this is just practice for bigger poltiical conflagrations ahead, what with Saudia Arabia where there is an estimated 1.3 million Filipinos, also up and agog, with an announcement in March 11 of their own Day of Rage against their political leaders.

We should be more ready this time. Hopefully.
oOo
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