HABERMASIAN CONSTITUTIONAL DEMOCRACY AND THE OTHERING OF WOMEN IN PHILIPPINE LAW

MARIA LULU G. REYES

Submitted to FATHER RANHILIO CALLANGAN AQUINO

In Satisfaction of the Requirement for the CourseConstitutional Theory and Constitutionalism

toward the Degree Master of Law

P a g e | 2

First Semester, Academic Year 2012-2013Graduate School of Law

San Beda CollegeHABERMASIAN CONSTITUTIONAL DEMOCRACY

AND THE OTHERING OF WOMEN IN PHILIPPINE LAW

“If we cast a general glance over this history, we see several conclusions thatstand put from it. And this one first of all: the whole of feminine history has

been man-made….Men have always held the lot of woman in their hands;

and they have determined what it should be, not according to her interest, but with regard to their own projects, their fears and their needs.”

Simone De Beauvoir, The Second Sex1

I.INTRODUCTION

This paper correlates Jurgen Habermas’ concepts of

human rights, discourse ethics and constitutional democracy

in continuum to the exercise of legislative and judicial

powers in the Philippines in so far as these relate to

Filipino women’s socio-legal status.

The main argument herein is that Habermas’ thesis of

law is too idealized, has not been or cannot be achieved in

1 De Beauvoir, Simone, The Second Sex, Translated and Edited byH.M. Parsley, Vintage Books Edition, September 1989, page 128.

P a g e | 3

the Philippines and is onerous and limiting to Filipino

women. The argument is based on the question asked within

Habermasian context: Are Philippine laws valid and

legitimate to Filipino women?

This essay hopes to arrive at an examination of the

theoretical planes Habermas builds upon as platform for a

constitutional democracy that is inclusive of diverse voices

in increasingly pluralistic societies and how his theories

relate to feminist legal theory. Does Habermas

romanticize, or even ignore, gender realities when he

speaks of the legitimating process of law? With

particularity to Philippine culture and legal systems, has

the socio-cultural-economic situation of women in the

Philippines enabled Habermas’ idealized structure of human

rights system and deliberative democracy, ounded on

discourse principle or the “D” germinating the

universalization principle of the “U”?2

In the proceduralist approach of Habermas, are women’s

voices heard within the tiers of law-making and rights

adjudication in the Philippines?

The above questions lead to the tensions between the

notion that human rights are universal and equal to all, and2 Habermas, Jurgen, Between Facts and Norms: Contributions to a

Discourse Theory of Law and Democracy, translated by William Rehg,MIT Press paperback Edition, 1998, pages 107-110.

P a g e | 4

thus applies to and includes women, on one hand, and the

belief that patriarchy which is institutionalized in the law

and various legal structures maintain the inferior status of

women, on the other hand. If law itself is socially

constructed to ensure equality, does not law re-enforce

socially-constructed gender stereotypes that put women in a

subordinate position to men?

To provide a background to the issue, there is a need

to trace the various perspectives of feminist legal theory,

of itself an evolving space for finding both historical and

contemporary explanations to women’s secondary status in

various spheres of social life and then identify short-term

and long-term strategies to upholding women’s rights and

improving women’s lives in various contexts. From a broad

theoretical sphere, there is a necessity to bring

attention and analysis to specific Philippine laws that have

reinforced the subordinate status of Filipino women in

society and how some of these laws have been changed in an

effort to achieve at least formal and nominal, if not

genuine, equality between men and women.

The road toward en-gendering modern Philippine laws,

right at the heart of the traditional legal system, from the

legislative to the executive to the judiciary, has been a

very difficult road to traverse, one that is marked by a

P a g e | 5

protracted collective struggle by Filipino women to be

heard, to participate, to influence and to ultimately

empower.

Ultimately then, this effort attempts to reconcile the

inextricable principles of legitimate law, the system of

rights within an institutionalized regime of power that is

incipient in Habermas’ assertion of a constitutional

democracy and how Filipino women figure in such apparatus.

II. HABERMAS’ BETWEEN FACTS AND NORMS

In the progression of theories by Jurgen Habermas, the

only valid laws are those that are formulated with the

willful participation of all who are bound to its respect

and obedience. Laws are legitimate only in so far that

they are expressive of the collective will of the governed

so that the latter are in themselves the governors. Law

cannot exist merely as a fact, otherwise it simply becomes

as tool for the hands of power to use and even manipulate,

even to the point of oppression. Legitimate law must be

the product of the sovereignty residing in the individual

and the sovereignty of the band of these individuals forming

popular democracy:

P a g e | 6

To Habermas, the law bridges the gap between facts and

norms. Law cannot be reduced to mere social facts,

purely regulatory in purpose, nothing more but legality in

form. Law itself must be a norm in the sense that it should

also be valid and legitimate. Law vests power in

political institutions that enforce its binding effect but

law itself flows from deliberative democracy, a system

forming rational public opinion and consensus-building among

persons exercising their equal rights.

The following is an honest attempt to capture the

essence of the concept of constitutional democracy theorized

by Habermas, its foundations and key elements. A. PRIVATE AND PUBLIC AUTONOMY: TWO SIDES OF THE SAME HUMAN

RIGHTS COIN?

“By securing both private and public autonomyin a balanced manner, system of rightsoperationalizes the tension between facticityand validity, which we first encountered astension between positivity and legitimacy oflaw.”3

The genesis of democracy is the individual. The

individual is situated inside a family, circle of friends

and peers, a community, civil society, political system and

3 Habermas, J, ibid, page 129

P a g e | 7

legal structure. The individual is self-determinng, and

therefore must exist within a milieu that guarantees private

freedoms and liberties --- basically a right to be left

alone. But that same milieu also guarantees that the

individual, who decides to take part in public discussion,

be heard and considered as equally as all the others forming

the circle.

To Habermas, the individual belongs to the “lifeworld”

and “system”, an overlap of the socio-economic spheres that

influence actions and behavior, decisions and ideas. To

straddle both worlds, a person must therefore possess and be

guaranteed twin private and public autonomy. The private

autonomy of the individual is passive, an implication of the

enjoyment of certain rights and liberties without the

interference by another, including the State. Public

autonomy, on the other hand, is active, a self-driven

impulse to exercise those rights in relation to another or

others, hence, political.

“The demands on the legitimation of lawchange with this functional realignment: to belegitimate, modern law must secure the privateautonomy of those subject to it. The legalguarantee of private autonomy in turnpresupposes an established legal code and alegally defined status of equal citizenship interms of actionable basic rights that secure aspace for individual freedom. However, such

P a g e | 8

rights are expressions of freedom only ifcitizens can also understand themselves as theauthors of the laws that interpret their rights—that is, only if the laws that protect privateautonomy also issue from citizens' exercise ofpublic autonomy as lawmakers acting throughelected representatives. Thus, the rights thatdefine individual freedom must also includerights of political participation. As Habermasunderstands the relation between private andpublic autonomy, each is “co-original” or“equiprimordial,” conceptually presupposing theother in the sense that each can be fullyrealized only if the other is fully realized.The exercise of public autonomy in its fullsense presupposes participants who understandthemselves as individually free (privatelyautonomous), which in turn presupposes thatthey can shape their individual freedomsthrough the exercise of public autonomy.4

The co-originality of private and public autonomy makes

them mutually enabling, but they are circumscribed within a

system of rights:

“This system should contain precisely therights citizens must confer on one another ifthey want to legitimately regulate theirinteractions and life contexts by means ofpositive law. What is meant by the expressions"positive law" and "legitimately regulate"should be clear by now. To arrive at the systemof rights, then, we need the concept of the

4 Bohman, James and Rehg, William, "Jürgen Habermas", The StanfordEncyclopedia of Philosophy(Winter2011Edition),EdwardN.Zalta (ed.),http://plato.stanford.edu/archives/win2011/entries/habermas/>.

P a g e | 9

"legal form," which stabilizes behavioralexpectations in the manner already discussed,and the "discourse principle," in light ofwhich the legitimacy of legal norms can betested. With these we have what we need tointroduce the three categories of rights inabstracto that generate the legal code itselfby defining the status of legal persons:

1 . Basic rights that result from thepolitically autonomous elaboration of the rightto the greatest possible measure of equalindividual liberties. These rights require thefollowing as necessary corollaries:

2. Basic rights that result from thepolitically autonomous elaboration of thestatus of a member in a voluntary associationof consociates under law.

3. Basic rights that result immediately fromthe actionability of rights and from thepolitically autonomous elaboration ofindividual legal protection.

These three categories of rights result simplyfrom the application of the discourse principleto the medium of law as such, that is, to theconditions for the legal form of a horizontalassociation of free and equal persons. Theymust not yet be understood in the sense ofAbwehrrechte, that is, liberal rights against thestate, because they only regulate therelationships among freely associated citizensprior to any legally organized state authorityfrom whose encroachments citizens would have toprotect themselves. In fact, the above basicrights guarantee what we now call the privateautonomy of legal subjects only in the sense

P a g e | 10

that these subjects reciprocally recognize eachother in their role of addressees of laws andtherewith grant one another a status on thebasis of which they can claim rights and bringthem to bear against one another. Only with thenext step do legal subjects also become authorsof their legal order, to be exact, through thefollowing:

4. Basic rights to equal opportunities toparticipate in processes of opinion- and will-formation in which citizens exercise theirpolitical autonomy and through which theygenerate legitimate law.

This category of rights is reflexively appliedto the constitutional interpretation and thefurther political development or elaboration ofthe basic rights abstractly identified in ( 1 )through ( 4) . For political rights ground thestatus of free and equal active citizens. Thisstatus is self-referential insofar as itenables citizens to change and expand theirvarious rights and duties, or "material legalstatus," so as to interpret and develop theirprivate and civic autonomy simultaneously.Finally, with a view toward this goal, therights listed thus far imply the following:

5. Basic rights to the provision of livingconditions that are socially, technologically,and ecologically safeguarded, insofar as thecurrent circumstances make this necessary ifcitizens are to have equal opportunities toutilize the civil rights listed in ( 1 )through ( 4) .”

P a g e | 11

It must be understood however that these rights are

intersubjective because they cannot be exercised except in

relation to another. By cataloguing a system of rights,

Habermas identifies the modes of exchange that participants

in discourse must accord one another if any meaningful

translation of their common concerns in the form of law is

to be achieved. B. DISCOURSE PRINCIPLE: RULES OF ENGAGEMENT

Democracy is deliberation. Law is consensual reason.

Legitimacy is popular approval. This appears to be the

sequelae of Habermas’ constitutional democracy. Habermas’

constitutional democracy is built on two elements:

discourse principle or the “D” and the universalization

principle of the “U”. He describes the discourse

principle as:

“D. Just those action norms are valid towhich all possibly affected persons could agreeas participants in rational discourse.”5

Reason is the basis of democracy: the use of reason

being the only accepted procedure for debate and discussion,

and the best of reason the outcome that produces legitimate

law. In Habermas’ view of the public sphere, the

5 Harbermas, Jurgen. ibid, page 107

P a g e | 12

participants come from a variety of rank and status,

background and beliefs, sex and identity. It is not a

homogenous group. This multi-cultural formation is what

animates rationality because coming from such diversity, the

participants are able to transcend their differences to

uphold and promote a common idea or proposition.

Central to the notion of public discourse is the

shedding of differences among participants, and therefore

the use of reason as objectivity, free from any biases or

prejudices. Reason should be communicative, not

instrumental, so as to prevent law from being used for

manipulation and dominance by any particular participating

group.

“If the communicatively fluid sovereignty ofcitizens instantiates itself in the power ofpublic discourses that spring from autonomouspublic spheres but take shape in the decisionsof democratic, politically accountablelegislative bodies, then the pluralism ofbeliefs and interests is not suppressed butunleashed and recognized in revisable majoritydecisions as well as in compromises. The unityof a completely proceduralized reason thenretreats into the discursive structure ofpublic communication. This reason refuses toconcede that a consensus is free of coercion,and hence has legitimating force, unless theconsensus has come about under the fallibilistproviso and on the basis of an anarchic,unfettered communicative freedom. In the

P a g e | 13

vertigo of this freedom, there is no longer anyfixed point outside that of democraticprocedure itself, a procedure whose meaning isalready implicit in the system of rights.”6

To Habermas, reason must be disinterested. Engaging

in discourse is to enter an arena where sex, class and

status are irrelevant, not in the sense that these factors

should be ignored, but that when informing a particular

proposition, these factors should instead be justifiable and

acceptable to all. In a way, the resulting inequalities

are disregarded to achieve equality in the participation, no

single voice dominates or carries the conversation but all

discordant voices are heard to unravel the wisest, the

soundest, the best argument. Thus, when a consensus is

reached by all, the process of self-determination becomes

self-legislation, but in a collective fashion.

Consensuality, the product of discourse, is the anchor of

universalization (U):

“Specifically, the democratic principle statesthat only those statutes may claim legitimacythat can meet with the assent (Zustimmung) ofall citizens in a discursive process oflegislation that in turn has been legallyconstituted.”7

6 Habermas, J. ibid, page 186

7 Habermas, J. ibid, page 110.

P a g e | 14

It is universal acceptability that ultimately vests

legal norms with validity and legitimacy. It is not enough

that the law itself is valid and legitimate, the procedure

that adopted the law must itself be valid and legitimate.

“In justifying the system of rights, we sawthat the autonomy of citizens and thelegitimacy of law refer to each other. Underpostmetaphysical conditions, the onlylegitimate law is one that emerges from thediscursive opinion- and will-formation ofequally enfranchised citizens. The latter canin turn adequately exercise their publicautonomy, guaranteed by rights of communicationand participation, only insofar as theirprivate autonomy is guaranteed. A well-securedprivate autonomy helps "secure the conditions"of public autonomy just as much as, conversely,the appropriate exercise of public autonomyhelps "secure the conditions" of privateautonomy. This mutual dependency, or circularreinforcement, is manifested in the genesis ofvalid law.”8

Habermas discourse theory is really then a theory of

deliberative democracy, a theory on the source and flow and

exchange of power within modern society while maintaining

the traditional form of democratic government and legal

system separating the legislative, executive and judicial

branches.

8 Habermas, J. ibid. page 408.

P a g e | 15

C. CONSTITUTIONAL DEMOCRACY: MUTUALITY AND RECIPROCITY OF

POWER

“So the sought-for internal connection betweenpopular sovereignty and human rights lies in thenormative content of the very mode of exercisingpolitical autonomy, a mode that is not secure simplythrough the grammatical form of general laws butonly through the communicative form of discursiveprocesses of opinion- and will-formation.”9

Habermas paradigm of deliberative democracy provides

the nexus between legality and legitimacy in a government of

law. Constituent power is embedded and executed in

communicative discourses, and proceduralized in continuous

spiral movement between citizens and State or legal order,

with the public sphere providing the energy and continuity.

But like an overlapping circle in a Venn diagram, Habermas

describes the role of the the public sphere:

“The public sphere is a social phenomenon justas elementary as action, actor, association, orcollectivity, but it eludes the conventionalsociological concepts of "social order." XxxThe public sphere can best be described as anetwork for communicating information andpoints of view (i.e., opinions expressingaffirmative or negative attitudes); the streamsof communication are, in the process, filteredand synthesized in such a way that they

9 Habermas, J. ibid, page 103.

P a g e | 16

coalesce into bundles of topically specifiedpublic opinions.”10

It is from and in the public sphere that public opinion

is bred and expressed, and then crystallized into collective

will that then becomes formulated into laws or statutes.

Included within this public sphere are the various groups

that form “civil society”.

If laws are to be ascribed with legitimacy and

validity, what is expressed within the public sphere must

radiate to the formal legal system. Thus, deliberative

democracy is a rooting of the power of political

institutions, government and legal structures in the very

people that comprise the citizenry. By this,

individual human rights or “constitutionalism” cannot become

incongruous with popular sovereignty or “democracy”.

This dualist approach ensures that neither is sacrificed for

the other, and that balance between what would otherwise be

competing forces is achieved. By aiming at such balance,

law functions as the only effective and binding medium for

social integration.

“A legal order is legitimate to the extentthat it equally secures the co-original privateand political autonomy of its citizens; at thesame time, however, it owes its legitimacy tothe forms of communication in which alone this

10 Habermas, J. ibid, page 360

P a g e | 17

autonomy can express and prove itself. In thefinal analysis, the legitimacy of law dependson undistorted forms of public communicationand indirectly on the communicationalinfrastructure of the private sphere as well.This is the key to a proceduralistunderstanding of law.”11

Within the traditional set-up of democratic states, the

three branches of government derive their legitimacy, and

therefore power, from the citizens. Communicative power

must therefore attend the regulatory authority of

government. Specifically, Habermas distinguishes between

discourse of justification and discourse of application.

Legitimation of the law comes from voluntary agreement of

all those affected, a sort of self-legislation. Once

consensually agreed upon and cast in the form of law, legal

norms can now be applied by courts impartially.

II. FEMINIST LEGAL THEORY: LAW AS A TOOL FOR DISCRIMINATION

OR AN INSTRUMENT FOR TRANSFORMATION?

Laws, as expressions of a political body vested with

authority, are obligatory and mandatory. The expression

“dura lex, sed lex” admits of no, if at all only very few,

exceptions. Thus, “Ignorance of the law excuses no one

11 Habermas, J. ibid. page 409

P a g e | 18

from compliance therewith”12. Sanctions are justifed in

case of disobedience.13 Laws are uniformly accepted as

an “objective” reality, that they are cast without any

biased point of view except the “common good” or the

“general welfare”. The neutrality of law, from enactment

by the legislature to interpretation by courts, has been the

presented as the central basis for the enforceability of the

law against all.

The accepted truth is that laws are merely mirrors of

interests, beliefs and practices of the various

institutions that make up the legal system. Those that

dominate and hold power within those institutions shape the

law and enable it to segregate classes, appropriate rights,

grant privileges and impose obligations. In gender

relations between men and women, the law is reflective of

the socio-cultural beliefs that dictate what makes a man a

man, and a woman a woman. What exists in society

pervades the process of legislation.

A. THE OTHERING PROCESS

“One is not born, but rather becomes, awoman...It is civilization as a whole that

12 Article 3, Civil Code of the Philippines.

13 Article 5, Civil Code of the Philippines.

P a g e | 19

produces this creature, intermediate betweenmale and eunuch, which is described asfeminine. Only the intervention of someoneelse can establish an individual as an Other.”14

Friedrich Hegel introduced the need of an Other to have

a self, that self is reliant on the Other. A person’s

concept of self is dependent on one’s definition of an

Other. The existence of the Other inaugurates the existence

of self. “Otherness” is crucial to comprehending one’s

self because the process of establishing identity is founded

on one’s difference from another person. Thus, othering

is finding those differences, and then drawing boundaries

based on those differences. Those boundaries are actually

boundaries of belonging, of inclusion and all “others” are

excluded.

Societies, ancient and modern, are composed based on

differences between groups. Differences denote the

relations of power between or among groups. It is from

these socially constructed notions of “otherness” or

differences that binary pairings spring: State/citizen;

master/slave; man/woman; white/black; good/bad. Those

are relations of oppositions, hierarchical in implication,

always unequal in value, with one end stronger or more

powerful than the other, which is perceived to be weak.

Othering then is the root of inequalities. “Othering”

14 De Beauvoir, S. ibid, page 267.

P a g e | 20

results to reification of those differences and inequalities

in the form of social values, norms and beliefs that in turn

get transformed into law.

In theorizing on the relations between a man and a

woman, Simone De Beauvoir adapted the Hegelian theory of

self-consciousness. Beauvoir calls the Other the minority,

the least favored one and often a woman, when compared to a

man, "for a man represents both the positive and the

neutral, as indicated by the common use of man to designate

human beings in general; whereas woman represents only the

negative, defined by limiting criteria, without

reciprocity."

The Othering process explains the gender/sex or

masculine/feminine divide that essentially demarcates men

from women: productive/reproductive and public/private.

Men belong to the productive side, thus work outside the

home for pay while women are on the reproductive side, stay

at home to take care for the needs of the family. Men

participate in the public sphere --- public office,

corporate hierarchies, institutionalized religion. Women

are confined to the private realm --- home and family.

It is this process that cultivates and entrenches

gender stereotypes prescribing what it means to be a man and

P a g e | 21

what it means to be a woman. But because the Other is

socially constructed, one can argue that society has the

power to change this creation. In feminist legal theory,

the goal is deconstructing and then reconstructing “woman”

from a subordinate status with men to one of equality.

B. SCHOOLS OF FEMINIST LEGAL THEORY

In feminist legal theory, the premise that law itself

is a powerful social force is not denied. The variations of

thought however, lie in how to treat and deal with the law

and its relation to women in general and women’s rights in

particular. At present, there are at least four basic

models of feminist legal theory: 1) the liberal equality

model; 2) the sexual difference model; 3) the dominance

model; and 4) the postmodern/anti-essentialist model.

These models offer very distinct views of how the law

and legal structures contribute to women’s discrimination

and each tenders disparate strategies and methods for

amending the law to take the issue of gender in hand. The

last three models evolved as "theoretical" critiques of

liberal formal equality which emerged from the contradictions and

political struggles that developed in the course of efforts to

implement formal equality in practice and addressed the limits of

formal equality in redressing sex discrimination.

P a g e | 22

Below is a brief discussion, in broadstrokes, of these

models and the gist of the criticism each is open to.

I. THE LIBERAL EQUALITY MODEL

Rooted in the rights-based approach to law, the liberal

equality model requires that women should be treated equally

with men. At its beginning, the focus of the liberal

equality paradigm is on formal, abstract equality between

men and women. As human beings, men and women are alike

and thus should be accorded the same rights under the law.

Thus, the mantra “women’s rights are human rights.” It

came to be understood as giving to women what men already

have, such as equal opportunity laws that legally removed

barriers to employment of women but failed to see that women

were still the primary carers of children at home and thus

could not fully participate in the jobs sector.

However, over time, the liberal equality model took a

more realistic approach to gender equality. It evolved

into one whose aim is to ensure true equality between men

and women by taking into account gender in the formulation

and interpretation of traditional human rights. From this

approach, there is a need to deconstruct human rights from

their conventional meanings and reconstruct them to include

women’s experiences and give such rights a woman’s face.

P a g e | 23

If human rights are equal to all, how would such

equality apply for example when a man is subjected to police

torture to extract a confession as compared to a woman who

encounters daily physical and emotional violence at home in

the hands of her intimate partner where police do not

intervene because it is “away mag-asawa”? The police

torture case is a clear, recognizable case of human rights

violation because it represents the abuses committed by

State agents against ordinary citizens. The second is

harder to categorize as a human rights violation because it

happens in the very private sphere of a home, by a husband

against his wife. State authority is absent or at best,

reluctant, and yet the violence is more insidious. The

attempt of the liberal equality tradition is to re-interpret

that basic right to freedom from torture from a purely

political State vs. citizen standpoint to a more focused

women’s perspective. That way, a new meaning is created in

assaying human rights.

The main problem identified with the liberal equality

model is that it treats all women equally --- for as long as

women achieve rights-equality with men, both in the public

as well as in the private spheres, women are assured of

their empowered position in law and society. The gap in

that thinking is that in reality, not all women are

P a g e | 24

similarly situated, that women experience inequality and

discrimination in different ways, not just because they are

women but also oftentimes because they are women of

different color, race, ethnicity, religions, sexual

orientation, age, economic classes and culture. Thus, the

liberal model of formal equality is inadequate to achieve

substantive equality for women.

In the Philippines, R.A 7192, or the “Women in Nation-

building Act” provided for a theoretical and legal framework

for equality between men and women by requiring that “the

State shall provide women rights and opportunities equal to

that of men.” To achieve said policy, the law enforces

equal access to Filipino women:

in membership the Philippine military and national

police force;

in all social, civic and similar organizations;

in loans, security and credit arrangements;

in incorporation and insurance contracts;

Despite the law, women in the military and police

force are still admitted on a quota basis. Membership of

Filipino women in social and civic organizations is low

because women still do most of the housework and have little

time left for such concerns. Very few women gain access to

loan and credit facilities because of collateral

requirements, and very few Filipino women are property

P a g e | 25

owners. The intent of the law is defeated by its failure

to address the situational and structural inequalities of

women.

II. THE SEXUAL DIFFERENCE MODEL

Also known as the “cultural difference” model, the

sexual difference model seeks to emphasize the basic

distinctions between men and women, and thus equality of

rights on the basis of the sameness between men and women is

impractical, if not impossible. It is in direct contrast

to the liberal equality model that demands equal treatment

in the rights between men and women. The differences

between men and women are so significant that these

differences should not be obscured by the law. In fact,

the law should recognize these gender differences and then

address them in order to provide adequate protection and

remedies for women. Thus, protective statutes for women

have been enacted to tackle women-specific situations, such

as those addressing pregnancy, night-work and the like.

The criticism lobbied against the sexual difference

model is centered on the very differences that separate men

and women. By highlighting the traits and characteristics

that define women from men and demanding separate rights on

those bases, there is greater tendency to re-enforce the

P a g e | 26

gender stereotypes that have excluded women from achieving

true equality with men. Thus, there is no transformative

value to approaching law in this manner because it accepts,

rather than challenges, socially constructed assumptions

between men and women.

The weakness of the sexual difference model can be seen

from special laws protecting women. Under the Labor Code of

the Philippines, there is a nightwork15 ban imposed upon

women, presumably to protect women from the known risks of

nighttime work, such as rape and other forms of sexual or

physical violence. But by prohibiting women from the

nightwork wage differential, is that not in fact an

inequality in opportunities? By requiring employers to

provide special facilities for pregnant women, and allowing

paid maternity leave, is not the law in effect

discriminating against women by making them less employable

because to hire them would be more costly for the employer?

III. THE DOMINANCE MODEL

The root of women’s subordination is found in

patriarchy, the systematic subordination of women by men.

Women’s domination by men, in turn, is founded on sexuality

--- that is, women’s sexuality as socially constructed by

15 Art. 130-131, Labor Code of the Philippines.

P a g e | 27

men and thus law, being a product of the exercise of male

prerogative, is an instrument for domination. That is the

posit of the dominance model. It argues that the

structural legal system is based on a sex-based hierarchy in

which men enjoy superiority16. It rejects the liberal

perspective.

To the extent that the law is an instrument for

fortifying the power of a particular class over all others

in society, the dominance model and critical legal theory

are siblings. In critical legal theory, laws grow out of

the power structures in society. The law exists to support

the interests and gains of those who formulate it and

therefore legitimize the injustices suffered by the

powerless in the hands of the powerful.

The dominance model gave rise to new understanding of

the many forms of sexual violence as gender-based and how

these are specifically perpetrated by men against women just

because they are women --- rape, domestic abuse, sexual

harassment and pornography. In other words, the dominance

model laid down the theoretical legal framework where the

law has been used to perpetuate women’s subordination but

16 Catherine A. McKinnon, Toward a Feminist Theory of the State,Harvard University Press, 1989.

P a g e | 28

the law itself can be wielded to destroy the hierarchical

sex-based structures of society.

The principal criticism against the dominance model is

its centralization of sexuality. While it purports to

discard the idea that men and women could be equal in

rights, as the liberal equality model proposes, it treads on

the same dangerous slippery slope --- that all women are the

same, except that the sameness is because of their

sexuality. That women become victims of inequality because

of their sexuality actually reduces the women’s struggle for

equality to a drawn-out war between the sexes. It thus

excludes men from any form of participation in the efforts

toward eliminating social inequality and discrimination to

women.

IV. THE POSTMODERNIST/ANTI-ESSENTIALIST MODEL

Under the feminist postmodern view of the law, the

concepts of legal objectivity and neutrality are fallacies.

Every law carries a perspective and thus, socially situated.

Thus, there is no single women’s voice that should be heard

in guaranteeing equality of women in society and in the law.

Analyzing the role and effect of gender in the law requires

taking into consideration the multiple spokes in the axle of

women’s subordination, i.e. race, class, religion,

ethnicity, sexual orientation, civil status, age. The

P a g e | 29

diversity of women’s experiences must be brought in to

enhance the subjective power of the law. Care should

be taken in enacting women-focused legislation because

apparent equality among all women may in fact result to

discrimination of another group of women not similarly

situated.

The strength of the post-modern paradigm is the offer

of intersectionality as an alternative for analyzing and

understanding the interstices of inequality. In

discussions of intersectionality, it has been suggested:

“that differences are not homogeneouscategories. Although different social divisions(such as class, ethnic and racial divisions)have an autonomous ontological basis and eachof the divisions prioritizes different spheresof social relations, these categories (such asclass and race/ethnicity) and their boundariesare not fixed and their social and politicalmeanings can vary in different historicalcontexts, and can be challenged andrestructured both individually and socially.Furthermore, differences are not separatecategories but are interwoven with each otherin a complex way.”17

The hardship of the postmodern model is finding

commonality among a pluralistic, multi-cultural, broad range

17 Chia-Ling Yang, The Othering Process in Feminist Teaching, Media-Tryck, Lund University, Lund, Sweden 2010.

P a g e | 30

of women’s issues. If laws are to address the diversity of

these experiences, would not the law become a

compartmentalized tool for exclusion of women, not just from

men, but from other women as well?

C. WHICH ONE IS THE ONLY ONE?

Feminist legal theory, like all philosophies or even

ideologies, is a dynamic and evolving intellectual

landscape. No single school of thought perfectly

captures the ever-changing situations of women in

multiplicity of contexts but all aim at a realized vision of

women in a fair and just society, with law as one of the

indispensable vehicle. Indeed:

“In short, feminist legal theory hashighlighted the issue of gender in law, and therange of feminist legal theories that havedeveloped continue to deepen our understandingof the complex interrelationship between genderand law. But it is important to appreciate thecritical way in which feminist legal theoryemerged from practice, and the way in which newtheoretical insights formulated by litigatorsand academics continue to reshape practice.Indeed, feminist legal theory, understoodgenerically, has been the intellectual meansfor argument and debate about issues ofequality that first emerged in law reform

P a g e | 31

practice and continue to resonate both inpractice and in the world at large.”18

The various schools of thought continue to develop

through women’s individual and collective experiences and

actual feminist legal practice serving as the foundation of

theory, while feminist legal theory enriches the

experiential tracks that allow for substantive changes in

women’s situations. The various shapes and contours in

feminist discourses simply show that refinements are

continually being made. No single approach has found

universal acceptance but each one permutates based on

changing situations and needs women. In other words,

feminist legal theory continues to widen the intellectual

landscape through which women’s situations and experiences

may be analyzed and improved.

Despite the differences however, all the foregoing

alternative models appear to be anchored, in varying

degrees, on the unified premise that women are

systematically subordinated.

D. HABERMAS ON FEMINIST LEGAL THEORY

18 Cynthia Grant Bowman and Elizabeth M. Schneider, Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession, 67 Fordham L. Rev. 249 (1998). http://ir.lawnet.fordham.edu/flr/vol67/iss2/2

P a g e | 32

Reading Habermas’ magnum opus Between Facts and Norms

with a gendered perspective easily conjures the image of an

all-white, all-male, traditionally-privileged group in a

room with oak-paneled walls, attended to by their man-

servants, engaged in an animated but gentlemanly debate and

conceiving the idea of a constitutional democracy.

No women are allowed in the room.

The happy discovery, however, is that Habermas was

familiar with, or at least aware of the conflictive

paradigms besetting feminist legal theory, actually a spawn

of the critical legal studies that were partly inspired by

the Frankfurt School. In his postscript to Between Facts

and Norms, Habermas repeats widely admitted imperatives

within feminist circles:

“Gender identity and gender relations aresocial constructions that crystallize aroundbiological differences yet vary historically.In women's struggle for equality, as well as inthe transformation of the paradigmaticunderstanding of the corresponding legalprograms, one can observe that the rights meantto guarantee the autonomous pursuit of apersonal life project for women cannot beadequately formulated at all unless therelevant aspects for defining equal and unequaltreatment are convincingly articulated andjustified beforehand. The classification ofgender roles and gender-related differences

P a g e | 33

touches elementary layers of a society'scultural self-understanding.”19

Habermas summarizes the outstanding concerns of the

feminist movement, from a legal theory standpoint, to the

following:

(a) The liberal demands refer, on the one hand,to a more extensive inclusion of women(abolition of all gender discrimination ineducation and employment; increasedrepresentation of women in elective andappointive public offices). On the otherhand, these demands refer to the implementationof basic rights, either in social domains thatcan be considered spheres of "special powerrelations" in a new sense (governmental supportfor battered women and displaced homemakers;the revision of criminal and family lawsregarding marital support) or in view of newlegal definitions (reproductive freedom,pornography, consensual homosexual activity,etc.). (b) These stand alongside social-welfare demands (an adequate standard of livingfor all individuals, including income transferslabeled as wages, not welfare,for indigenthomemakers with dependent children; federallyfunded child-care services accessible tofamilies at all income levels, with adequateopportunity for parental involvement) . Thelast clause can already be understood as theresult of disappointing experiences with theeffects of implementing social-welfare demands.(c) A reflexive attitude toward the successesof feminist reforms is also expressed by a

19 Jurgen Habermas, ibid, page 425.

P a g e | 34

demand such as that for full employment, withincreased opportunities for flexible and part-time schedules.”20

Habermas also rejects the liberal model of equality and

repeats the criticism lobbied against welfare-state

paternalism by way of laws intended to benefit women but

have had the opposite effect in the long run. He explains

the difficulties of feminist legal paradigms:

“From a juristic point of view, one reason forthis reflexively generated discrimination liesin the overgeneralized classifications used tolabel disadvantaging situations anddisadvantaged groups of persons. What is meantto promote the equal status of women in generaloften benefits only one category of (alreadyprivileged) women at the cost of anothercategory, because gender-specific inequalitiesare correlated in a complex and obscure mannerwith membership in other underprivileged groups(social class, age, ethnicity, sexualorientation, etc.).

Charactertistically, Habermas leans toward the

postmodern/anti-essentialist bent of feminist legal theory,

particularly showing sympathy to its sub-branch, radical

feminism:

20 Jurgen Habermas, ibid. page 420-421.

P a g e | 35

However, an important role is played by thefact that legislation and adjudication arriveat "false" classifications, not because theyare altogether blind to contexts, but becausetheir perception of context is guided by anoutmoded paradigmatic understanding of law. This is themore or less unarticulated issue common to thevarious currents of radical feminism since theseventies. The feminist movement objects to thepremise underlying both the social-welfare andthe liberal politics of equalty, namely, theassumption that the equal entitlement of thesexes can be achieved within the existinginstitutional framework and within a culturedominated and defined by men.

Each special regulation intended to compensatefor the disadvantagesof women in the labor market or the workplace,in marriage or after divorce, in regard tosocial security, health care, sexualharassment, pornography, and so forth, rests onan interpretation of differences in gender-specific living situations and experiences. Tothe extent that legislation and adjudication inthese cases are oriented by traditionalinterpretive patterns, regulatory lawconsolidates the existing stereotypes of genderidentity. In producing such "normalizingeffects," legislation and adjudicationthemselves become part of the problem they aremeant to solve.21

III.WOMEN IN THE PHILIPPINES: FROM CO-EQUAL TO

SUBORDINATE21 Jurge Habermas, ibid. page 423, italics in the text.

P a g e | 36

Colonized, stratified and subjugated --- these are

descriptive of evolution of Philippine socio-political

history and as well as the position of Filipino women

therein. Filipino women live in a milieu carved out of

a cultural heritage that moved from tribal groupings to a

colony of Western powers to an independent state.

A. REDUCTION FROM LEADER TO FOLLOWER

In ancient Philippines, the “babaylan” was part of the

community leadership structure who along with the male

“datu” ruled among a strong kinship-based organization.

While the “datu” was the recognized political leader, the

“babaylan” specialized in culture, religion, medicine and

all forms of knowledge about nature. Her wisdom, beauty and

talent were sought after and heeded --- to preside over the

practice of headhunting as part of the agricultural system;

to decide when to plant and sow for a bountiful harvest or

to clear the forest based on her astronomical projections;

to heal personal and social ills through her rituals of

poetry, song and dance; to perpetuate the community’s

indigenous religion and its mythology by the epics and lore

she wove.

The woman as “babaylan”, in essence, was a recognized

leader of her ethno-linguistic community, imbued with powers

P a g e | 37

transcending her gender. She symbolized the high status

occupied by women in general in our aboriginal political

economy and socio-culture.

With their strong egalitarian foundations, the

primitive tribes of the Philippines had no sense of the

gender constructs which now beset many present societies.

Women then stood on equal footing with the men and shared in

the functions of leadership and authority in every sphere of

life. Even our indigenous myth of creation, Malakas and

Maganda, depict the first man and woman born as twins and

therefore as equals splitting from a common bamboo shaft.

When, then, did traditional gender roles interweave

themselves into the fiber of Philippines culture?

Careful scholarship has pointed out that aside from the

Catholic Church and Islam, colonialism not only crystallized

class divisions but institutionalized gender differentiation

as well. Colonialism compartmentalized society into classes,

and sharply drew an artificial dichotomy between men and

women. The “public-private divide” which kept women

invisible from the mainstream was strengthened by way of

patriarchy.

P a g e | 38

It was during the 300-year Spanish colonization, with

the beginning of the nation-state concept, that the Maria

Clara paragon of virtues --- chaste, subservient and pious

first sprung. The native Filipino woman as wife became a

means of production for her husband, with her role in

marriage becoming more and more restricted. Largely poor and

unlettered, she struggled under a male-dominated system to

keep her own family intact under a feudal socio-economic

order that ranked her at bottom. Thus evolved the multi-

layered barriers that kept her in the margins --- her sex,

her class, her ethnicity.

With the colonialism, the Filipino woman was reduced in

stature, an indistinguishable descendant of her “babaylan”

origin.

The liberal democracy that pervaded turn-of –the-

century Philippines under the American rule debunked a few

of the rigid gender stereotypes the Filipino woman has been

socialized into. With greater access to education and other

opportunities, she began to move outside her own limitations

and assert her position in public life. Granted however that

American democracy instituted the principle of legal

equality for women, the economic colonial pattern of

generation and shipping raw materials reduced her to a mere

P a g e | 39

consumer of manufactured goods, without a productive

capacity of her own.

In the early 1900’s, the foremothers of the modern

Filipino woman began the suffragist movement which

culminated in the recognition of women’s right to vote. The

adoption of the U.S. sponsored 1935 Philippines Constitution

conditioned the women’s right to vote upon affirmation of at

least 300,000.00 votes in a plebiscite to be held two years

after. A staggering 445,725 Filipino women trooped to the

polls in 1937 to claim this right, marking the dawn of a new

age not just in Philippine politics but all spheres of life

too.

The Second World War saw unmitigated suffering for many

Filipinos. To Filipino women, that era saw for them the use

of rape as tool of war. Reconstruction returned Filipino

women to the confines of the home, as did American women who

worked the factories in wartime. Career options remained

limited as women were seen as adjuncts of their husband and

expected to stay home to take care of the domestic needs of

the family.

Martial law and the armed revolutionary movement that

ran parallel to it did not improve the lot of women. Even

the election of the first woman as President of the

P a g e | 40

Philippines could not address the multiplying forms and

levels of discrimination facing Filipino women --- from

abject poverty, unemployment, domestic and sexual violence,

migration, armed conflict. B. PRESENT DISPARITIES AND REALITIES22

Based on statistical data, men outnumber women in the

Philippines, but women outlive men. In education, both

basic and functional literacy rates are higher among women

but more men reach and are able to finish college. Maternal

mortality rate, along with the birth rate, remain one of

the highest in the Asia-Pacific region, if not the world.

Labor force participation rate by women is about a

third less than that of men. Female-headed households

enjoy higher incomes and savings but also spend more.

There are more businesses registered by women but only

thirty percent of all Certificates of Land Ownership Awards

(CLOA)by the Department of Agrarian Reform were given to

women. About thirty percent of the female population is

classified poor.

22 The statements in this portion are conclusions that can be madefrom data culled by the National Statistical Coordinating Board,summarized as “Updates on Men and Women in the Philippines”available at www.nscb.gov.ph

P a g e | 41

Women occupy less than twenty five percent of all

elective positions, from the local to the national. After

the May 2013 elections, six women now sit as Senators of the

Republic out of the total twenty-four. There are more

women employed in government but there are fewer of them in

the second- and third-level positions, the managerial and

leadership tiers in the bureaucracy --- affirming the so-

called “glass-ceiling” that bars women from the top of

governmental and corporate hierarchies.

Domestic violence, rape and other forms of sexual

violence are among the most reported cases in the Philippine

National Police Crime Index, thus accounting for the large

number of women served by the Department of Social Welfare

and Development.

The facts do not lie. The empirical data support

the current wave of feminist legal theory. Women’s

situation in the Philippines show significant disparities to

that of men. What role does the law and legal system play

in maintaining or eliminating these disparities?

C. IMPETUS FOR WOMEN’S ADVOCACY MOVEMENT IN THE PHILIPPINES

Recognition of women’s human rights became nascent with

the establishment of the United Nations. It took center

P a g e | 42

stage of the advocacy of women worldwide, however, only in

the late ‘70’s, followed by both the Nairobi and Mexico

conferences on women. In June 1993, largely due to the

strong women’s lobby, a United Nations World Conference on

Human Rights addressed for the first time the issue of

women’s human rights, years behind the start of the fight

for justice and equality that women have been determinedly

waging. This was followed by a series of human rights

conferences, the latest of which was the 1995 United Nations

Conference on Women.

Within the international community, developments and

the overall climate augur well for women’s rights advocacy.

Advocates are now pushing for the interpretation of human

rights instruments hewn to women’s realities and

experiences. Women’s rights advocacy is gradually looking

beyond national structures towards international human

rights mechanisms for redress of violations of rights of

women as complementary to efforts at the national level.

Theses developments in the international community are

particularly significant to women’s advocates in the

Philippines considering that the Philippines is a State

party to all the relevant conventions and covenants, like

the International Covenant on Civil and Political Rights,

the International Covenant on Economic, Social and Cultural

P a g e | 43

Rights and the Convention on the Elimination of All Forms of

Discrimination against Women or the Women’s Convention. In

the country, the potentials of international human rights

law are only beginning to be realized by those who fight for

women’s rights. Advocacy for legal and policy reforms can

effectively use the human rights framework as a starting

point or to strengthen demands for laws and policies that

truly address the concerns of women.

It is not only international human rights law however

which provides the standards against which national

legislation or case law relation to or affection women could

be assessed. There is also the 1987 Philippine Constitution.

By way of affirming State commitments to human rights, Art.

II, section 11 thereof provides: “The State values the

dignity of every human person and guarantees full respect

for human rights.” Fundamental equality before the law of

women and men is specifically guaranteed in section 14 of

the same Article, in addition to the general equal

protection clause in section 1.

There are thus existing bases or standards, both

nationally and internationally, that can be used in support

of legal and policy reforms beneficial to women. D. AXIS OF GENDER ANALYSIS IN THE EQUALITY STRUGGLE

P a g e | 44

Despite these developments, Philippine law still

reflects sexist norms and views regarding women. The legal

system, to a large degree, sanctions discrimination against

women thus, casting a negative impact on women’s fight for

individual freedom and equality. The principal areas of

concern for women’s rights advocates are Philippine Congress

and the Supreme Court.

Gender discrimination in the Philippines operates on

two levels: one, in the textual content of the laws; and

two, in the application or interpretation of the laws,

particularly in the judicial process. In the first, the

constitutional guarantees of equal protection and gender

equality under the law and State commitments under the

different human rights instruments to protect and promote

women’s human rights through appropriate legislation remain

empty rhetoric in the face of laws that look the other way

when women’s rights are being violated or those that

adversely affect women. In the second, a gap exists between

the textual context/mandate of the laws and how women’s

lives are adjudicated in actual cases brought to court. In

the latter, cultural values and attitudes that shape gender

stereotypes, inform judicial decisions.

IV. PHILIPPINE CONGRESS:

P a g e | 45

SITUS OF DE JURE EQUALITY OR DE FACTO

DISCRIMINATION?

Philippine Congress is basically a political

institution. Integrating gender concerns into the law

requires a genuine understanding of not just “how a bill

becomes a law”, but how politics shape the law.

Legislation is negotiation --- that is the truth that must

be grappled with.

A. “HIP-POCKET” VOTING

One hallmark of Philippine political history since the

1898 independence is the dominance of leadership by one man.

It’s a political history based on personalities. Thus,

within Congress, the heated struggle for alliances and

coalitions with the personality in power is the obvious

result. Support for the person in power translates to

appointment to committee chairmanships and memberships, ease

in calendaring pet bills, friendliness to requests for

additional shares in the “pork barrel” or other sources of

largesse that are normally under the control of the leader

of either House of Congress. Traditionally, the House

of Representatives would be more supportive of the

President of the Philippines and the present administration.

It is in the Senate, where each senator can claim a

P a g e | 46

constituency similar to or even bigger than that of the

incumbent president, that critical support is the name of

the game.

Most Congresses in other jurisdictions adhere to the

norm of universalism and reciprocity. Legislative

leaders purchase options on votes, to be called in when

needed. Although a standard practice in most state

legislatures, this acquires more truth in the Philippine

context. “Hip-pocket” votes are made when they are

demanded or otherwise released.

When deciding how to vote, legislators may be worried

about their personal values, the views of their

constituents, and the preferences of their financial

supporters. A single roll-call vote can evoke a panoply of

career and reelection concerns and legislators will take all

of these into account when the vote is cast.

Some legislators may be sincerely interested in long-

run policy outcomes and therefore vote in a way that would

contribute to these outcomes. First-term legislators are

usually concerned about the programmatic results a

particular policy is likely to produce and how such policy

is viewed by their supporters. They also want to make a

good impression and secure from their leaders choice

committee assignments and future clout and influence.

P a g e | 47

Some care about seniority and the power that comes with

supposed expertise. To some, the sentiment of their

constituents may not be significant at all.

The fundamental lesson in Philippine congressional

politics has been this: there is no sense in cashing in a

vote for a losing cause. That lesson would explain the

protracted delivery and birth of many women-specific and

women-centered legislation.

It cannot be forgotten too that Congress is a male-

dominated power center. The well-entrenched traditional

notions about women and men pervade its halls as well. The

prominence of the personalities therein, their views and

attitudes projected in the national sphere oftentimes

prevents a radical or sudden shift toward gender and

development as part of the legislative agenda.

Integrating women and gender in the legislation is not

a familiar exercise for legislators. Conceptual clarity on

the myriad of issues embraced by feminist lawmaking is

absent from the political mindset, even on the part of women

legislators. That absence is due mostly to the

complexity of the concepts involved, often conflictive in

themselves, but due also to want of interest or even

awareness on the part of the legislator.

P a g e | 48

B. OVER-LEGISLATING FOR WOMEN

Not surprisingly, the sentiment prevailing in the

present Congress is that there is over-legislation for

Filipino women. The post-Marcos era indeed shows a long

list of laws enacted in the interest of Filipino women,

among the most notable are:

E.O. 209 as amended by EO 227, The Family Code

of the Philippines;

RA 6725, Prohibiting Employment Discrimination

against Women;

RA 6949, Act Declaring National Women’s Day;

RA 6955, Act Prohibiting Mail-Order Bride

Matching;

RA 6972, Barangay Day-Care Center Law;

RA 7192, Women in Development and Nation-Building

Act;

RA 7305, Magna Carta for Public Health Workers;

RA 7322, Act Increasing Maternity Benefits for

Women in the Private Sector;

RA 7600, Act Promoting and Protecting Breast-

feeding in Health Institutions;

RA 7688, Representation of Women in the Social

Security System;

P a g e | 49

RA 7882, Women in Micro and Cottage Industries

Act;

RA 7877, Sexual Harassment Act;

RA 8042, Migrant Workers’ Protection Act;

RA 8353, Anti-Rape Law;

RA 8505, Rape Victim Recovery and Rehabilitation

Act;

RA 9262, Anti-Violence Against Women and their

Children;

RA 9208, Anti- Trafficking of Persons Act;

RA 9710, Magna Carta of Women;

RA 10361, Kasambahay Law;

RA 10354, The Responsible Parenthood and

Reproductive Health Act of 2012;

On a pure numbers game, the women-focused laws enacted

by Congress of the Philippines appear impressive. That

number, however must be understood as legislative work

spread over a twenty-five year period, from the Eighth to

the Fifteenth Congress. As the facts show, a quarter of

a century of legislation has not brought about substantive

change in women’s lives in the Philippines.

A cursory glance at the above list would reveal, to the

trained eye, a tendency to enact “quick-fix” or “knee-jerk”

legislation on the part of Philippine Congress. Often, the

P a g e | 50

law in question was passed as a response to overwhelming

public interest brought about by a particular incident that

caught national attention, such R.A. 8042 or the Migrant

Workers’ Protection Act, passed in the heels of the Flor

Contemplacion tragedy and the Sarah Balabagan “blood money”

exchange. R.A 7877 or the Sexual Harassment Law was

passed when the productive role of Filipino women was

becoming embedded in the various services and even

manufacturing sectors, and household incomes needed to be

augmented. R.A. 8353 or the Anti-Rape Law was passed in

the spate of rape-murder that dominated daily headlines

around that time. R.A. 9262 or the Anti-Violence

Against Women and their Children became law only after crime

statistics showed an alarming rise in reported cases of

domestic abuse. R.A. 10354, more popularly known as the

RH law, lagged in the legislative mill for as long as the

post-EDSA Congress existed and only after a new generation

of young people has reached maturity and new understanding

of the issue, thereby propelling popular support for the

measure. Nonetheless, the Catholic Church remained as

intransigent in its position, despite the law being the

product of so many permutations in form and philosophy, i.e.

from population control to population management to

fertility control to reproductive health.

P a g e | 51

Many of the above enumerated laws were the result of

intense debate, both in and out of the halls of Congress of

the Philippines. Notably controversial and divisive were

the measures amending the law on rape, punishing violence

against women and of course, on reproductive health.

Many of these women-focused laws were watered-down versions

of the original bills filed. Some of these laws suffered

from painful trade-offs in that important provisions in the

bills were deleted or re-worded in order to assure

additional favorable votes. The attitude often attending

these bills is capitulation on the part of their

congressional sponsors and authors.

C. VESTIGES OF SUBJUGATION

While Congress may claim serious success in advancing

women’s status through the law, vestiges of the classic

gender roles between men and women remain. Philippine laws

have been enacted from a male gaze.

Art. 333 of the Revised Penal Code punishes the crime

of adultery committed by a wife, more heavily than

concubinage committed by the husband under Art. 334.23

23 Art. 333. Who are guilty of adultery. – Adultery is committedby any married woman who shall have sexual intercourse with a mannot her husband and by the man who has carnal knowledge of herknowing her to be married, even if the marriage be subsequentlydeclared void.

P a g e | 52

Despite recent amendment, Art. 202 of the same Revised Penal

Code still imposes punishment on prostitutes, and only

women can be prostitutes by definition of the offense.24

Virginity or good reputation are essential elements of the

crimes of qualified and simple seduction.25 A widow who

marries within three hundred days from the death of her

husband is a criminal.26

In marriage, Articles 96 and 124 of the Family Code

of the Philippines still treats the husband as the head of

the family in that his decision prevails over matters

pertaining to the administration of the absolute community

of property or conjugal partnership of gains.

The same dominant role is assigned to the husband under

Article 211 of the same Family Code in respect to

Adultery shall be punished by prision correccional in its medium andmaximum periods.xxx

Art. 334. Concubinage. – Any husband who shall keep a mistress inthe conjugal dwelling, or shall have sexual intercourse, underscandalous circumstances, with a woman who is not his wife, orshall cohabit with her in any other place, shall be punished byprision correccional in its minimum and medium periods.

24 Art. 202. Vagrants and prostitutes; penalty. – The followingare vagrants: xxx

5. Prostitutes.For the purposes of this article, women who, for money or profit,habitually indulge in sexual intercourse or lascivious conduct,are deemed to be prostitutes.

25 Art. 337 and 338, ibid.26 Art. 351, ibid.

P a g e | 53

disagreements over exercise of parental authority over

common children. And yet, children below the age of

seven (7) must not be separated from the mother.27

Even the “tender age presumption” declaring the mother of a

child below seven years of age implies a discriminatory rule

applied to women, as it resolves custody disputes on the

basis of essentialism --- the view that men and women have

inherent traits and characteristics that define them.

Thus, women are nurturers and carers.

The use of surnames is patrilineal, thus a woman adopts

her father’s surname at birth and then her husband’s surname

upon marriage.28

The Fisheries Code of the Philippines29 as well as the

Agricultural and Fisheries Modernization Law30 are premised

on the traditional structure of a man as the principal

producer of goods and woman as a mere supplementary hand so

27 Article 213. In case of separation of the parents, parentalauthority shall be exercised by the parent designated by the Court.The Court shall take into account all relevant considerations, especiallythe choice of the child over seven years of age, unless the parentchosen is unfit. 

No child under seven years of age shall be separated from the mother,unless the court finds compelling reasons to order otherwise.

28 Art. 364 and 370, Civil Code of the Philippines. 29 R.A. 8550.30 R.A. 8435.

P a g e | 54

that the legal design of extension and credit-services are

male-oriented.

The Indigenous People’s Rights Act31 emphasizes customs

and traditions in inheritance and land rights, again male-

specific and thereby excluding women.

Only five percent (5%) agency allocations in the

annual General Appropriations Act is mandated for gender

responsive plans, activities or projects.

What many fail to notice, our laws still reference a

person or individual as a “he”, instead of a “she”, showing

that in law, the male is the default, ergo, dominant sex.

In the effort to submit to the buzz of the post-modern

era of “gender-sensitive” lawmaking, are women the chaff

that get separated from the grain and thrown away? Is this

the procedure Habermas envisions in his discourse principle

as the foundation of legitimate law?

D. HABERMASIAN CONCEPT OF LAWMAKING IN THE CONTEXT OF

PHILIPPINE LEGISLATION ON WOMEN: A FEMINIST PERSPECTIVE

“Rights can empower women to shape their ownlives autonomously only to the extent that

31 R.A. 8371.

P a g e | 55

these rights also facilitate equalparticipation in the practice of civic self-determination, because only women themselvescan clarify the "relevant aspects" that defineequality and inequality for a given matter.Feminism insists on the emancipatory meaning ofequal legal treatment because feminist critiqueis aimed at structural dependencies concealedby a paradigm geared to social redistribution:"Domination consists in institutionalconditions which inhibit or prevent people fromparticipation in determining their actions orthe conditions of their actions”.

Habermas grounds legitimation of the law on discourse

that results to collective will-formation. He

emphasizes the use of rational consensus as the source of

valid law and all political power derives from the

communicative power of the citizens. To him, a

constitutional democracy can only justify its existence when

it meets the criteria of validity and legitimacy --- that

those who are subject to the law see themselves as the

authors of the law.

In Habermas’ conception, the practice of autonomy must

be a practice of rational self-legislation, although in

concert with others who are co-equal. As many have noted,

the central idea of legitimizing the law is the public use

of reason. Habermas claims that even questions of

morality can be rationally grounded and that all “practical

P a g e | 56

questions can be judged impartially and decided

rationally”32

Therein lies the gist of this criticism of Habermas

theory of constitutional democracy and deliberative

politics: his insistence on rationality and assumption of

equality.

1. RATIONALITY AS CONTRACT OF MALE POWER

The democratic procedure for producing the law must be

derived from the public use of reason. In the

infrastructure of Habermas’ discourse principle, only the

force of the best argument should rule. He acknowledges

that each argument involves competing validity claims not

only about their rightness but also about their possible

consequences, effectiveness or even feasibility. These

competing validity claims arise because of differences in

values and history, beliefs and experiences among the

participants. Still, to Habermas, there is nothing among

these conflicts that cannot be reconciled by discursive

consensus. Each validity claim must be tested against each

other, agreement obtained through hard-earned bargaining for

what is to be commonly accepted as the best argument. This

presupposes that the best argument is objective, neutral,

32 Jurgen habermas, ibid. page 109.

P a g e | 57

disinterested, and therefore “reasonable”. Collective

reasonableness then is simply what legitimizes the law.

This kind of exchange is exclusionary for subordinated

groups, like women. The term “reason” is contestable

because it is always contextualized. In highly stratified

modern societies, whoever holds the dominant power dictates

what reason is and then proceeds to impose that reason on

all others. Anything in conflict with or that which

denigrates the existing rationality is irrational, and

therefore must be discarded. Is there any reason that is

untainted by one’s notions of rightness or wrongness,

unbidden by personal interests. Those who benefit from

existing privileges would naturally see an erosion of those

privileges as unacceptable, but to the extent that an

apparently conflicting demand by another may be traded for a

favor, present or future, consent may be variably given.

As earlier discussed, legislation in the Philippines is a

negotiation of text and meaning --- women bargain with men

for small strides, rather than high jumps, in enacting

gender-responsive laws.

For women, reason is never objective and neutral ---

women view reason from a relational lens and coming from an

experiential footing. Reason does not spring from a

vacuum of pureness or nothingness, it is the child of the

P a g e | 58

multiple layers of discrimination and oppression women

undergo within the home and family, the school, workplace,

or church. Reason is not “non-value.” If only women, as Habermas states, can define the

relevant aspects of what makes for equality or inequality,

would these definitions meet the discursive test of

rationality if men are part of that discourse? Women’s

claims to equality are often shelved or trivialized because

they are regarded as “emotional” hooks, like a wife nagging

her husband to exasperation or employing guilt to get her

way. If wives for example make a validity claim about

compensation from their husbands for household work they do,

would not men disregard it as irrational simply because

housework has always been women’s work? If longer

paid maternity leaves were presented on a validity claim,

would not employers, normally male or male-structured,

oppose it as irrational for its effects on cost and

efficiency of business? If Filipino women clamor for a

divorce law and claim it as one valid means to curtail

domestic abuse, would it not be thumbed down by a male-only

Catholic Church, claiming citizenship among its flock? If

women were to demand abortion rights on the basis of control

over their own bodies, would not the same influential church

hammer it to pieces on justification of right to life of the

unborn? In these debates, would not the law be borne by a

P a g e | 59

simple contract among men, whose interests are preserved

because the law is now justified by rationality? Does not

the privileged male group entrench itself on behalf of all

subordinated groups?

Habermas does not offer any method for the resolution

of such conflicting validity claims within the bounds of

discursive politics as the road to legitimizing the law.

He definitely shuns any idea of coercion where the will of a

few is imposed on others and classifies such method as

illegitimate. But while he romanticizes the result of

discourse--- the best argument, there is no operable

solution to the validity claims based on what women perceive

to be rational that men dismiss as irrational because the

current system for discourse preserves male culture.

2. EQUALITY IN DISCOURSE IS AN EXERCISE IN INEQUALITY

Law, as the institutionalization of reason, does not

exist as an abstract, amorphous system for women. The law

has operated as conservator, guardian of the status quo,

perpetrator of the various values and interests of the power

niches in society.

Present law, as a system of power, is resistant to change

and therefore, to equalization.

P a g e | 60

“The important consequence of this for ourpurposes is the following: no regulation,however sensitive to context, can adequatelyconcretize the equal right to an autonomousprivate life unless it simultaneouslystrengthens the position of women in thepolitical public sphere and thereby augmentsparticipation in forms of politicalcommunication that provide the sole arenas inwhich citizens can clarify the relevant aspectsthat define equal status.”33

Habermas’ theory of constitutional democracy rooted in

deliberative politics assumes that all participants are

equal. The conclusion is that since anyone, armed with

reason, can join, everyone exerts an equal degree of

influence in generating collective will and popular

sovereignty. For women, such notion of equality may be

rendered chimeric because it rests on a purely romantic view

about the infinite capacity of women to confront inequality.

Discourse politics places the burden solely on women as

it places all the weight of democratizing the law on women’s

shoulders. The expectation is simply for women to solve

their own problems by negotiating in the arena of public

sphere what equality and inequality means to them. It

removes responsibility on the part of men as well as on the

part of the State. The structural inequalities that

33 Jurgen Habermas, ibid. page 426.

P a g e | 61

result to subordination of women are left for women alone to

destroy.

That is an impossibly onerous task because:

Filipino women still perform the bulk of child-

care responsibilities;

Filipino women still suffer from all forms of

violence and abuse, in greater proportion from men

in their lives than strangers;

Filipino women still get paid less than men for

the same work;

Filipino women still suffer from “multiple

burdens”;

Filipino women represent a tiny percentage of all

public elective positions;

Filipino women judges total a puny fraction of all

trial courts in the Philippines, none in the

Shar’ia Courts;

Filipino women rarely get to leadership positions

in the private sector;

For Filipino women, the public and private divide in

their lives is real- they are still, in large numbers,

limited to the reproductive roles in society. It is

untenable to expect women to fully and actively participate

in the public sphere of discussion, without first removing

P a g e | 62

those barriers that exclude them. Those barriers are in

the forms of biases constructed by men, to differentiate

them from and to subordinate women.

More importantly, the arenas of discourse Habermas

offers are patriarchal in structure. So that:

“even if these prejudices were overcome andwomen were included into the public sphere,they would still be in an unequal position,because the very structure of the public spherewas patriarchal. The argument is that thepublic sphere relies on a public/privatedistinction that is itself gendered. Itrelegates differences that are consideredfeminine to the private, and what is consideredmasculine is given a place in the public andconsidered universal and neutral (i.e. it isnaturalized as ‘human’). Thus, when women enterinto the public sphere, they do so on termsthat are masculine, and they do so as bearersof difference (whether related to bodies,sexuality, feelings or experiences). They aremarked as women, and, as such, they are markedboth as (hu)mans and as different from thissupposedly universal and neutral category of‘(hu)man’. Men, on the other hand, do notsuffer from this bias because their identity isnot counted as a difference; being a man isidentical to being a human being.”34

To believe that women can easily take part in public

discourse is naïve. Habermas does not point to any entry34 Lasse Thomassen, Habermas: A Guide for the Perplexed, Continuum

International Publishing Group, pages 48-49.

P a g e | 63

point for women in his model. The inclusion of women in

the discussion does not convert it from its masculine set-

up. The methods of debate, intricacies of negotiation,

adoption of language and meaning can all effectively subvert

women’s participation. A palpable danger to adhering to

the system Habermas proposes is the idea that one universal

interest comprises all the specific ones. If women take

part in the production of law, then necessarily, the law

took into account women’s concerns too. Because women

participated, they must therefore consider the law as

legitimate. If so, then the law would effectively

conceal the inequalities within it and re-enforce the

subordinated status of women. The law, now legitimized

by rational discourse and common assent, would operate to

stifle further analysis and dissent. The law can remain in

stasis and women would remain the Other men use to justify

their being.

V.CONCLUSION

In a perfect world, women and men are equal, undefined

by the circumstances of their birth and environment. In a

perfect world, women and men are genuine participants in

every process and outcome that affect their lives. In a

perfect world, Habermas’ model of deliberative politics and

constitutional democracy works out to common observance and

P a g e | 64

benefit. But indeed, it is not a perfect world and

Habermas paradigm is utopian in intent but holds many

unachievable goals and uncontrollable elements. Its

value however, is in its potential for genuine inclusion of

and equality for women, not soon but in the future.