A MOOT WITH REAL VICTIMS
It was a case of make believe mimicking reality. From February 27 to 28, students from five law schools competed in the Philippine rounds of the most prestigious moot competition in the world, the Philip Jessup moot court competition. Simulating oral arguments before the International Court of Justice, students argued both sides of a problem involving the most contentious issues facing international law today.
For instance, given the general prohibition on the use of force which recognizes only two exceptions, those of self- defense and when authorized by the United Nations security Council; should a third exception, based on contemporary state practice, that of intervention on humanitarian grounds- now be recognized? There too was the issue of which government should be recognized by the United Nations and its organs: the regime that exercises effective control overt the territory and the inhabitants of a state, or the government that was democratically elected albeit deposed through a coup de etat but continues to be recognized as being legitimate by an overwhelming number of states. This was the dilemma faced by the international community in dealing with rebel forces in Libya.
But perhaps, what was most relevant to the Philippines was the third issue. Under the problem, several civilians were forcibly made to work in munitions factory during an armed conflict. Long after the war, these individuals attempted to seek reparations from the state that subjected them to forced labor. They initially filed suit against the state in the latter’s court but the same was dismissed on the basis of prescription. They then filed suit in the court of their own states, but their claims too were dismissed on the basis of sovereign immunity from suits. Intervening meanwhile was a decision of a regional human rights court that declared that the state of nationality of the victims must give them recourse under their domestic law and in their domestic courts. This prompted the domestic court of claimant’s nationality to exercise jurisdiction leading to a money judgement against the other state that resorted to forced labor and levying on execution on assets that were non-diplomatic in character.
I was most impressed by the law schools from the provinces that joined the moot court competition for the first time, to wit: Silliman and the University of the Cordillera. These two law schools proved once and for all that international law is no longer the monopoly of Manila law schools. Their students proved to be even more articulate than those coming from the capital. With a little more experience in mooting, I am sure that they will soon represent the country in the world competition held annually in Washington, DC, USA.
Congratulations to my students from UP who were adjudged the winner in the competition. Ironically, the UP team argued the side that maintained that victims of war crimes could no longer recover reparations when their home states had signed a peace treaty that renounced any and all further claims for reparations. This is the position of our government in the real case of Vinuya, the comfort women’s case. Even more ironical is the fact that the Ateneo team, whose alumni include both the Chief Justice and Associate Justice Mariano Del Castillo , argued the side in favor of the comfort women: that the peace pact could not prevail as against the jus cogens norms that forced labor is a war crime and that the state responsible for it should pay reparations. One of the Ateneo coaches told me that the plight of the comfort women, and the fact that the government should espouse their claims was the subject of his thesis. At the back of my mind, I was hoping he will say this to Justice del Castillo or his researcher responsible for the court decision in Vinuya.
I also commend the Philippine Association of Law Schools Deans under the able leadership of its President, Dean,Amado Valdez and its Chairman, Dean Perry Pe, for the impressive manner by which they conducted the national rounds. Special credit should go to Dean Sol Mawis of the Lyceum University Law School who acted as this year’s administrator for the competition. This year’s national rounds was clearly one of the best in the history of Jessup in the Philippines.
Meanwhile, the real life victims of war crimes -deprived of a legal remedy, continue to pray and hope for justice. They have said that the impeachment of Justice del Castillo would be a step towards the right direction
Sigfrid Fortun referred to it as a “breach of discipline”. I referred to it as “continuing trauma”. We were referring to the outburst of Myrna Reblando in the last hearing of the Ampatuan massacre case in Branch 221 of the Regional Trial Court in Quezon City. On the basis of newspaper reports, Myrna, while listening to the testimony of a medico-legal officer on the injuries sustained by some of the Mangudadatu kin, apparently left the court room distressed and, as one newspaper put it, “lost it”. She shouted invectives directed at Fortun and another defense counsel, Andres Manuel, who in a previous hearing asked another medico-legal officer if some of the fatal wounds of the victims could have been self-inflicted. Myrna has been controlling her temper ever since that question about the possibility of suicide. To her and the other victims, that question added insult to their grief.
In response to a letter filed by Fortun describing the incident as a security issue, we filed a motion for the court to order the Department of Health, the Department of Social Work and Development and the Department of Interior and Local government to provide all 14 of our female clients with psychosocial support.
We argued in our motion that the incident last 03 February 2011 “highlights their dire and urgent need for psychosocial support and other counseling facilities, so they can endure the tragic loss of their family members killed in the 23 November 2009 Maguindanao massacre”. Consequently, we sought for the ancillary remedy by way of support pendent lite in the form of “psychosocial” services to be provided to them during the pendency of this case. This, we said, was in accordance with the doctrine of the State as parens patriae, a doctrine long established in jurisprudence. This, in the case of Government of the Philippine Islands v. Monte de Piedad, citing foreign jurisprudence, was defined as the right of the state “to enforce all charities of public nature, by virtue of its general superintending authority over the public interests, where no other person is entrusted with it. “
We argued likewise that the duty to provide health and social services especially to women is enshrined in no less than the Philippine Constitution, and existing laws. Specifically, we invoked Republic Act No. 9710, otherwise known as the “The Magna Carta of Women” :
Section 10. Women Affected by Disasters, Calamities, and Other Crisis Situations. – Women have the right to protection and security in times of disasters, calamities, and other crisis situations especially in all phases of relief, recovery, rehabilitation, and construction efforts. The State shall provide for immediate humanitarian assistance, allocation of resources, and early resettlement, if necessary. It shall also address the particular needs of women from a gender perspective to ensure their full protection from sexual exploitation and other sexual and gender- based violence committed against them. Responses to disaster situations shall include the provision of services, such as psychosocial support, livelihood support, education, psychological health, and comprehensive health services, including protection during pregnancy.
Finally, we argued that RA 9710 especially mandates local government units—which are under the general supervision of the Department of the Interior and Local Government—to deliver necessary services and interventions to “women in especially difficult circumstances” :
Section 30. Women in Especially Difficult Circumstances. – For purposes of this Act, “Women in Especially Difficult Circumstances” (WEDC) shall refer to victims and survivors of sexual and physical abuse, illegal recruitment, prostitution, trafficking, armed conflict, women in detention, victims and survivors of rape and incest, and such other related circumstances which have incapacitated them functionally. Local government units are therefore mandated to deliver the necessary services and interventions to WEDC under their respective jurisdictions. (Emphasis and underscoring supplied)
Under International Human Rights law, victims are entitled not just to monetary compensation for civil damages sustained, but also to reparations. This latter principle is a broader concept compared to compensation since it also includes the restoration of the status quo ante, including the psychosocial condition of the victims. Hence, the duty of the state to provide psychosocial support.
Here’s hoping that Myrna’s outburst will usher in much needed reforms in the promotion of victims rights in this country.