By Carolina S. Ruiz Austria

The word "Heresy"

was used by Irenaeus in Contra Haereses to discredit his opponents in the early Christian Church. It has no purely objective meaning without an authoritative system of dogma.

Tuesday, March 13, 2007

Beyond Limits: Human Rights Activism Gets a Dose of Feminism

This is the paper I read at the ISIS-WAGI-WOMENLEAD forum at the Miriam College Library Foyer, 10 March 2007. For those who didn't make it to the forum, it was initially thought of as "conversations" between the feminists and the other social movements (not that demarcation lines are hardly ever that clear). I was flanked by no less than two Phds (one of them a double Dr., our resident Guru, Guy Estrada-Claudio; the other Mira Ofreneo, a brilliant Psychologist who can do statistics!) So here is my paper (from which I derived my presentation) I'm posting it despite my better judgment :-) because people asked for a copy after the forum. I actually wrote it the night before the forum from 10:30 to 2 AM and had to find a way to end it at the WAGI office, around 2 hours before the forum, with little success. In a nut shell it addresses how feminisms have changed human rights discourse and how social movements in general would benefit from studying those lessons.

The specter of the totatalitarian/authoritarian state was the one single dominant feature of our socio-cultural and economic and political context, when human rights claiming became a key feature of how progressive movements articulated visions on social justice.

Broad movements working for social change not only found tenets of classical rights and liberal philosophy as useful in articulating our agendas from claims to freedom, to decrying rights violations. Our legal system (particularly our Constitutional tradition) was also built upon the language of liberal democracy. Rights claiming therefore served both a strategic and a practical purpose.

Likewise, the totalitarian and authoritarian state was easily recognized, apart from the monolithic presence in jackboots and fire arms. Indeed, in the absence of “free expression” (and key symbols and means to free expression), THE ENEMY’s (the Marcos regime’s) unquestionable stronghold over the three branches of government, media and the military was also as easily demonstrable.

Fast forward to the present. We, in the various branches of the social movements for change, from the more classical sounding civil libertarian to the defiant feminists, still use human rights language and principles to articulate many aspects of our most basic agendas and even within our visions of social transformation and change.

My modest contribution this afternoon is to invite everyone to take a step back and to reflect on how in continuing to rely on the language and the frame of “human rights,” we in the social movements (and this includes many within women’s human rights claiming movements), need (and this is an urgent need) to keep up with the changed (and still changing) discourse of “human rights,” and in particular, with some of the changes (and ongoing challenges being raised about human rights) facilitated largely by feminists.

(Here I wonder what could possibly be a good enough incentive to convince us to listen to what can just be the ranting (and raving) of a gaggle of crazy feminists? That is apart from the food and drinks?)

I ought to begin with three anecdotes. The first is about something that happened around 3-4 years ago when I was invited to a forum at the Institute of Human Rights at UP Law, as a reactor. I have very a vague recollection of what the topic or theme was but distinctly remember that the main speaker was somebody from a local Human Rights Organization which was quite prominent in the Marcos era.

I remember the speaker began discussing what a human rights violation was and instead of talking about the principle of human dignity, he defined it simply as an act of atrocity perpetrated by the military, police or THE state. By this token, intimate partner and spousal abuse, a.k.a. gender based violence is not a human rights violation? Heck at that point it was not even a felony (a crime), but certainly, with women’s human rights and VAW already official UN language, this kind of comment alarmed me as something seriously wrong around our study and understanding of developing discourse in human rights. (In other words, naiwan sa pansitan)

Another colleague in the panel, another lawyer from an environmental organization who knew me well predicted what my reaction would be. Before the moderator even recognized my raised hand and allowed me to comment, he muttered under his breath: “easy ka lang, Karol…”

I will go back to this story later and tell you how it went from there (non violent naman, mabait naman ako) but the next story is more recent, it was last year’s well publicized gay-bashing by a columnist of the PDI, who also happened to be a former SC Justice and renowned Constitutionalist, Isagani Cruz.

Cruz wrote in his column, lamenting the rising number of openly gay people, particularly gay men whom he clearly detested. In his column, he not only used demeaning references but also boasted (and promoted) how in his day such people were beaten up (and that they deserved such treatment), thus putting them in their proper place.

According to PDI, this column generated the most number of responses they ever had in a long time (esp. on-line) but majority of the responses were negative and against Cruz. (This sort of gives you a glimpse into the demographics of heavy Internet users?)

Yet one of the more poignant responses was from another columnist who on the occasion of chiding Cruz, outed himself in the process. His reaction expressed a lot of the grief and hurt feelings of someone of the receiving end of such hatred expressed by Cruz.

In the ensuing exchange (Cruz picked this reaction to answer), Cruz used no less than the language of freedom and democracy to champion his “RIGHTS” to express his opinion. Waxing lyrical on rights, democracy and quoting Voltaire (Constitutionalist that he was), he spoke of how “free speech” has always protected unpopular views and the right to express them! (One letter in support of Cruz also accused the columnist who outed himself as a bigot for not recognizing the key features of a democracy, that is to say, the contest of ideas)

Again I will come back to this later. The third and final anecdote is something less closer to home but quite relevant. In the currently raging battles around principles of church/state separation, recently (2004) in France, this resulted in a ban on the wearing of the hijab (head scarf) for Muslim women in public. Note this ban covers no other religious article of clothing, let alone symbols worn by men to signify religious identity.

Now where do these stories figure in our discussion?

The first story has to do with how in the course of using the language of human rights, broad social movements and groups of “human rights activists” have clearly fallen into automatically citing human rights law and legal definitions (like mantras/ or perhaps, Harry Potter’s incantations or spells), without much attention to the changed parameters or even characteristic of “human rights” claims and claiming in the last 30 years! (Natulog sa panistan, naiwan na sa kangkungan)

Whenever I begin a talk on human rights, I always make sure to clarify that human rights do not come from law and certainly not all laws are human rights compliant, even as not all human rights have already been articulated in LAW. (local and international)

In so saying, I want to emphasize some of the important changes brought about by the conscious engagement of human rights discourse by feminists:

(1) In debunking the ideology of separate spheres (public/private divide) as something fixed, and as a primary method of women’s exclusion/subordination, traditional human rights characterization of rights as a hierarchy (civil and political primary/over economic, social and cultural which are secondary) was challenged and is no longer the basis of contemporary human rights theory as reflected in the various consensus documents of the UN since CEDAW;
(2) Feminist critiques of rights has also pushed the notion of STATE responsibility much farther than what we began with as the mandate to provide protection/redress/options usually after the fact of violations of rights BUT has in fact for a long time already involved the POSITIVE duties of the STATE to provide enabling conditions for rights exercise…
(3) Pointed feminist critiques of not just human rights BUT likewise of the mechanism of law (and even its methods) of its purported neutrality, (as far as sex and gender are concerned) also facilitated the interrogation of the principle of EQUALITY (a key feature of IHR documents across treaties and rights claiming by sectors). Here feminists use the measure of SUBSTANTIVE equality (results and opportunities) instead of FORMAL or legal equality, that is as found in legal provisions.

Indeed, again if we relate this to my first anecdote regarding the concept of “Human Rights Violations,” we clearly see that activists “frozen” in time (and the legal discipline), seem to have been left out in the developing discourse/engagement of contemporary “rights” theory and practice.

To keep on harping about the STATE (a.k.a the police/military) as the sole bearer of the obligation to respect rights, it is not just VAW which has been overlooked but clearly, commercial individual and corporate interests guilty of unfair labor practices, literally letting many a multi-national company and in general the oh so mythical market forces off the hook!

What is more, by only narrowly acknowledging civil and political rights violations as those which can be acted on (traditional rights hierarchy--- literally why the US ratified ICCPR not ICESCR), classes ESCR as merely as inapplicable for implementation and that in the end, CPRs are the means to ESCR?!

Now if we consider the second anecdote of the gay-bashing Constitutionalist, we ought to note that the hortatory claims of RIGHTS and “democratic ideals,” and no less than the values of freedom have herein been used in the name of perpetrating what has come to be recognized in free expression cases as hate speech.

Note that the case of the gay-bashing ex-SC justice is not an isolated one. If you take a historical look at the groups who have often utilized exhortations of “violations of religious expression” claims, there have always been a number of fundamentalists who have been most vocal. (READ: the NOISIEST)

Recently, for instance, a bill on “conscientious objection” was filed in Congress, proclaiming as its basis, the principle of free religious expression, but in fact giving health professionals, hospitals, clinics and even health insurance companies, the basis to impose their beliefs on patients by not just denying to perform specific medical procedures they object to on the basis of religious belief, but to also refuse to refer them to alternative services or even discuss the whole range of available medical options with patients. The backdrop of this is of course the creeping influence of the Catholic Church hierarchy on policies related to sexual and reproductive health.

Appropriating the language of RIGHTS and freedom (here the paramount right to religious freedom), fundamentalists and conservative religious groups not at all interested in the values of tolerance, pluralism and the co-existence of faiths and secular traditions, are the ones who have literally framed acts that in reality constitute violations of the rights of patients (not to mention clear cut violations of the ethical norms of the health profession), as “rights exercise.”

Again, the there are lessons to be learned from feminist critiques of the liberal philosophical foundations of classical rights theory which have pointed out the pitfalls of rights discourse in framing claims as “contests” and “competitions,“ without necessarily employing an analysis of power relations (whether class, race, gender and ethinicity based as well as across geopolitical boundaries).

As if the contest was between equals, or in this case, even at some point misconstrued as Cruz or the Catholic hospitals and health professionals as the marginalized, the social reality of power, unevenly distributed and exercised along race/class/ethnicity and gender lines is not highlighted!

In the course of the exchanges that ensued after Cruz’ gay-bashing, there was at least one LGBT rights advocate (and here I always like to brag, a former student, although I have no claims to having anything to do with her brilliance) who did the unexpected by not “fighting” Cruz but by telling him the importance of changing his mind about respecting homosexuals, since he felt so strongly about rights. In her letter, she instead emphasized the status of the LGBT as society’s marginalized (their basic rights against discrimination being asked for in a bill even gaining the status of controversy in Congress) and how Cruz, with his education, stature and influence (he gets paid for his expressing his views, he was a Justice of the SC), ought to be someone who in this case, should take the side of the unjustly treated (and legally marginalized)!

This particular situation also shows us again how rights claiming has gone beyond the usual STATE/CITIZEN equation. While certainly the relationship between the STATE and CITIZENS will still figure in human rights discourse, for a long time now, the basis of “rights claims” has hardly ever rested upon the technical and legal aspect of citizenship anymore!

Human Rights are claimable by non-citizens vis a vis a host state (Protocol on Trafficking and the Convention on Migrant Workers) because people are “rights bearers” first and foremost! This is a significant development in “human rights discourse” because what is claimable and what is STATE duty and mandate is not mere protection or sanction (after violation). As earlier mentioned, it is and has been for a long time, the promotion of enabling conditions for rights exercise.

Yet how is this possible in our current context? Broad movements for social transformation including the women’s movements have actually been fashioning the most quintessential of rights claims founded on invoking the responsibilities of what seem to be a WELFARE STATE (more or less).

I’m not saying this is wrong at all but I have been wondering whether it could actually be done better by having a clearer idea about what the STATE is in the here and now, and paying more attention of where we have deployed our energies in engaging the STATE in its various levels.

NGOs and cause oriented groups for instance (the women’s groups deserve special mention here) have gained such expertise on legal advocacy (in particular, legislative advocacy) in the last 15-20 years that the enactment of laws which started out as technical drafts by the NGOs themselves have been enacted as law.

A host of these laws have been various laws legally recognizing various acts of abuse and gender based violations as crimes. From Sexual Harassment, Rape, Trafficking to VAWC, it has been indeed a major step towards the legitimization of women’s rights claims!

Yet, the pattern (both in terms of government support for the measures and in budgeting and prioritization), ought to be paid attention to:


On one hand, the STATE (not surprisingly) responds readily to the adoption of MORE penal law (reinforcing its POLICE power) than welfare led legislation such as the RH bill!

Indeed, feminists (particularly, feminist lawyers) have warned other feminists about the FRAMING OF women’s claims against violence have been ending up within the ready-made recognizable frames of the VICTIM SUBJECT in law.

In the Philippines for instance, the fact that we harp on how the classification of rape from a crime against chastity was changed to a crime against persons in 1997 has hardly (and unlikely) affected the “LEGITIMACY” of women’s claims in rape. The Subic case, because of its prominence in the public memory and imagination, is the best example.

Nicole was still attacked FOR NOT FITTING THE FRAME OF THE LEGITIMATE VICTIM-SUBJECT who is still at the back of most people’s minds (and in SC rulings), the stereotypical young, and innocent barrio lass; certainly not the fun loving, disco partying woman. Those who claimed to sympathize with her (even after the conviction of Smith) blamed her.

This aspect of RIGHTS claiming is of particular import to pay attention to because even as feminist engagements of LAW (in this case criminal law) deserves full acknowledgement as necessary and vital bases for expounding on women’s claims, we have hardly began to scratch the surface as far as challenging the construction of legal DISCOURSE (and this includes human rights law) in the recognition of the legitimate VICTIM subject or VICTIM claimant!

Clearly, in the case of women, SEXISM pervades the domain of HR claiming and the STATE (as well as the social movements and women’s movements themselves) have a tendency to prefer and invoke STATE POWER OVER instead of POSITIVE STATE duties to enable.

Another classic example of this is the often knee jerk reaction at the LGU levels to adopt and impose curfews on women/children when a spate of sexual violence has taken place. Instead of making the night safe for civilians, in this case, the likely targets vulnerable to such attacks, THE STATE (AS MANY OF US IN THE SOCIAL MOVEMENTS AND IN NGO ADVOCACY WORK) WOULD RATHER HAVE WOMEN AND CHILDREN GIVE UP SOME IF NOT A SIGNIFICANT PORTION OF THEIR RIGHTS in exchange for purported security and protection from the State.

In considering the problem of human trafficking for instance, feminists have noted how the US has exploited the problem to serve as the rationale for its agenda of promoting POLICE MONITORING strategies HEAVY on surveillance (with a preference for checkpoints and stringent port control measures).

Again, the same argument of giving up some rights in exchange for protection and assurances of safety is the same META NARRATIVE of adopting PATRIOT ACT template laws in the context of “the war on terror.”

Unlike the past TOTALITARIAN state easily so recognized by its methods and forms of control, today’s state has no clear (nor credible) presence in terms of already dwindling (fast receding) welfare and basic services. No wonder indeed that it is most single-minded in asserting its continuing presence and mandate almost exclusively in military/police terms.

Finally this brings me to the last anecdote. The example of the ban on the hijab in the ever contested notions over state/church separation.

As I mentioned earlier, this interpretation of the principle of state/church separation has, for its primary site, women’s BODIES. Indeed, feminist Allison Jagger notes how women’s bodies are often the emblems upon which cultural identity is asserted. The Muslim women’s head scarf is banned but no other religious article of clothing or accessory has merited such a STATE exercise of regulation/control. After all, in our own laws such as the ban on ABORTION, the legal definition of prostitutes as women, as well as the differential treatment of marital infidelity in the RPC, STATE and LEGAL REGIMES still have very demonstrably SEXIST biases.

Yet clearly, the hijab is not only a sure sign of SEXIM but increasingly one of RACISM and RESSURECTS no less than the POST-COLONIAL SUBJECT!

Here as I run the risk of being misconstrued as implicating myself as coming from a classical NATIONALIST position (after all this is what we have usually pitted as the opposition to COLONIALITY/COLONIALISM), let me make myself clear: I am addressing this critique to ALL of us who dare use Human Rights CLAIMS without any thought or reflection about its baggage of SECULARISM and COLONIALISM.

Again feminists have led in putting forth the critiques of HUMAN RIGHTS articulation of standards as laden with colonial assumptions of “backward cultures,” bundled up with cultures steeped in “religious conservatism,” and asked HOW AS HUMAN RIGHTS ADVOCATING ACTIVISTS WE HAVE ALSO reinforced a view and notion of CULTURE as static, and in positing “HR” as the alternative to what we have simplistically dismissed as consequences of backward CULTURAL PRACTICES?

Indeed in so doing, how have we have literally framed/touted the HR solution as the alternative, salvation, the promise of MODERNITY (from the WEST)?

Yet surely, SECULAR RIGHTS have conveniently served our ends well. I have to acknowledge that indeed secular HR standards have proven strategic in terms of providing a framework for engaging states for instance to overcome “set cultural practices” through law and policy change (as in the use of the CEDAW) by women’s movements.

Again if we look to the feminist movements for strategic engagements of “rights discourse,” current efforts around articulation and legitimization of “sexual rights” is also in essence a contestation of the limits of classically couched “secular rights claims.”

Think about it. Instead of finding expressions of “religious freedom” through the set narratives and frames of “a wall” of separation between CHURCH and STATE as in banning religious symbols (esp. or only if on women’s bodies?), doesn’t a more genuine interrogation of religious freedom involve delving into the very issues which lie at the core of the “STATE and religious establishment” such as policies against DIVORCE, SAFE, ABORTION, GAY UNIONS, LGBT RIGHTS and BANNING GAY PEOPLE IN THE MILITARY... Surely these issues categorized usually outside the realm of “ethical and moral” discourse when you use secular rights as your basis, are deeply rooted in, major issues of religious differences/ freedom?

How then do we promote the exercise of rights and freedoms in line with the pluralistic values behind the principles of “religious freedom.” (which by the way includes, non-religion) ?

Indeed, at various levels, such FRAMING of issues tends to LIMIT more than prove HR discourse useful.

For one, cases such as the RIGHTS claiming gay bashing ex-justice, the so-called FREEDOM (loving), religiously imposing MEDICAL Professional, and here and now, the EVER PURPORTEDLY PROTECTIONIST STATE invoking no less than OUR PEOPLES’ SAFETY, and OUR NATIONAL SECURITY, and PRESERVING “DEMOCRACY” through the TERROR LAW, continuously present direct challenges to both the substance and forms of our human rights claims --- as well as directly threatens the transformative potential of emergent human rights discourse.

I actually stopped before my last 2 paragraphs, for considerations of brevity (I think I was taking too long already). On the other hand, the first question in the open forum gave me a chance to clarify that indeed, I'm not advocating throwing out the baby with the bath water. That much clear, I do acknowledge the transformative potentials of human rights, particularly at this point where we have already expanded the discourse through our collective engagements of it.


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