Isabelita Vinuya, et al. v. Executive Secretary Alberto G. Romulo, et al., G.R. No. 162230, August 13, 2014
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Resolution, Bersamin [J]
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Concurring Opinion, Sereno [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 162230 August 13, 2014
ISABELITA C. VINUY A, VICTORIA C. DELA PENA, HERMINIHILDA MANIMBO, LEONOR H. SUMA WANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PENA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PENA, MARIA DELA PAZ B. CULALA,ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C. DELA PENA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA 0. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. in their capacityand as members of the "Malaya Lolas Organizations," Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGOALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.
CONCURRING OPINION
SERENO,CJ:
The phrase "comfort women" does not in the least reflect the suffering, such as
multiple rapes on an everyday basis and severe physical abuse, that women victims
had to endure during their forced prostitution and sexual subjugation and
abuse in wartime. The Special Rapporteur, therefore, considers with conviction that the
phrase "military sexual slaves" represents a much more accurate and appropriate technology.1
Ms. Radhika Coomaraswamy
Special Rapporteur on
Violence Against Women
This Petition is a reminder to all public officials of the trust the Filipino people have reposed in them to ensure their well-being, address their sufferings, and promote the rule of law within the national and international sphere.2 Our history as a nation and our brutal experiences at the hands of colonialists and authoritarians have impelled us to ensure, through the Constitution, that every Filipino will attain justice and will be guaranteed full respect for human rights.3 This is one of the core duties imposed by our organic law on public officials.
Nevertheless, I concur with the Resolution holding that there is basis to dismiss the petition on various technical grounds. I also fully agree with this Court's Decision4 dated 28 April 2010, which ruled that the matter of exercising diplomatic protection is within the sphere of discretion of the executive department.
I am of the opinion, however, that the statement in the 2010 ponencia - that the "wisdom of such decision [to waive all claims for reparations] is not for the courts to question"5 - must be qualified. As party to the 1949 Geneva Conventions,6 the Philippines has limited discretion to waive another state's reparations obligation arising from the commission of grave breaches of the convention. The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) expressly states the following:
ARTICLE 147
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
ARTICLE 148
No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or ·by another High Contracting Party in respect of breaches referred to in the preceding Article. (Emphases supplied)
Legal commentators stress that Article 148 should be related to Article 3 of the 1907 Hague Convention IV,7 which reads:
A belligerent Party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. (Emphases supplied)
It is said that the non-absolution clause under Article 148 is a logical consequence of the grave breaches under Article 14 7 of Geneva Convention IV.8 A state is precluded from absolving other states from liability on the ground that the individual persons who actually perpetrated the grave breach of the 'convention have already been punished.9 Indeed, it would seem unjust for individuals to be punished while the state in whose name or on whose instructions they acted is released from all liability.10 Article 148 was meant to prevent the defeated state from being forced into entering into an armistice or peace treaty in which it would renounce all reparations for grave breaches committed by persons in the service of the victorious state.11 Thus, pursuant to the 1949 Geneva Conventions, a state remains responsible - and continues to be liable to pay compensation - for the grave breaches committed against protected persons.12
Nevertheless, I am of the opinion that respondents cannot be found entirely guilty of a whimsical or capricious exercise of judgment, or a patent and gross abuse of discretion. Their reliance on the Treaty of Peace with Japan (1951 Peace Treaty) and the Reparations Agreement Between the Republic of the Philippines and Japan (1956 Reparations Agreement) as bases for declining to espouse petitioners' claims against Japan was not withm.it reason, especially if the treaties are analyzed in the light of the events leading to their conclusion.
The subject of reparations for damages suffered during the war was discussed during the occupation of Japan by the Allied Forces. At the time, the initial reparations policy that had been put forward by the U.S. was to utilize reparations for rehabilitating the war-devastated countries, particularly countries in Asia and the Pacific.13 The plan was also envisioned as a "vital integral means" for Japan's economic demilitarization.14 The U.S. supported an "early and just share of reparations" in favor of the Philippines and pledged that "Japan will be reduced to the level of a small power and her people will not be permitted to have in the future a living standard higher than those nations which she has overrun xx x."15 It is said that an interim reparations removal policy was also adopted with the objective of transferring the industrial capacity of Japan to the Philippines.16 Under this policy, Japan's industrial plants and facilities would be handed over to the Philippines as war reparations in order to aid its rehabilitation and agricultural development needs.17 However, due to the opposition of the former Soviet Union, the proposals did not materialize.18
American reparations policy shifted in 1947.19 As the Cold War developed, the U.S. initiated the drafting of a peace treaty with Japan.20 On the issue of reparations, the U.S. negotiated for a complete waiver of all claims arising from Japan's war acts.21 The alleged rationale for this "peace formula" rested on the U.S. assumption that if Japan were to be lured into the communist influence, the strength of the Sino-Soviet camp would significantly increase, and the resulting change in the power balance in Asia would be "dangerously formidable."22 According to the U.S., Japan must be given a chance to recover full economic self-sufficiency "by not placing upon her any heavy economic or financial burdens or major commercial liabilities."23 The peace treaty was to be "brief, liberal, and non-punitive."24 The Philippines rejected the U.S. proposal of total waiver of reparations claims against Japan.25 While the Philippine government had full appreciation of the international political reality of the spread of communism in Asia,26 it remained firm that Japan should "sufficiently x x x repair the injuries they inflicted in a war of aggression x x x."27 The U.S. tried to persuade the Philippine government. It pointed out that the problem of reparations was "not merely a matter of justice," but also a "matter of economics. "28 It argued that they could not see "any effective way" of demanding reparations from an economically depressed Japan.29 In a last effort to convince the Philippines to accept a no-reparations peace arrangement, the U.S. emphasized the usually "intimate" relations between both countries.30
The U.S. was unsuccessful; the Philippines maintained an irrevocable stance on the matter of reparations.31 Former Undersecretary of Foreign Affairs Pelino Neri criticized the American peace policy and remarked: "Reparations is first a matter of justice and the realities of economics are, in our view, a secondary consideration. In our case, reparations from Japan is a matter of absolute necessity."32 The Philippines' condemnation of the American peace formula intensified when the U.S. government made available its draft of the treaty, which provided for the absolute abandonment of reparations claims on the ground that Japan lacked the "capacity to make payments" in any form.33 The Philippines refused such claims.34 It repeatedly declared that Japan was solvent, and that the Philippines would never withdraw its claims.35
At the height of the developing Cold War, the U.S. and the U.K. initiated a conference on the Japanese peace treaty.36 During the discussions, the Philippines, through then Foreign Affairs Secretary Carlos P. Romulo, expressed that it had yet to be sa~isfied with the reparations provisions of the proposed treaty.37 Secretary Romulo voiced out a reservation on an "inflexible restriction" on the form of reparations payment, asserting that the Philippines could not accept that reparations be made only through the "services" of the Japanese people in the processing of raw materials that would be supplied by the injured countries.38 However, the reservation was neither accepted nor recorded.39 Faced with the dilemma of supporting its allies in winning over Japan at the expense of fully satisfying security and reparations claims, the Philippines reluctantly signed the 1951 Peace Treaty.40
The decision of the Philippine government to eventually sign the peace treaty was met with strong resistance. The opposition insisted that the reparations issue was the foremost aspect of the country's peace settlement with Japan.41 They also demanded the inclusion in the peace treaty of a more categorical statement of Japan's guilt and reparations obligation.42 The government defended its decision to sign the peace treaty on the basis of its "security first policy."43 It explained that security threats of the aggressive communist expansion impelled it to act swiftly in the ratification of the peace treaty.44 The opposition countered that the Philippines was sufficiently safeguarded by its Mutual Defense Treaty with the U.S.45
The negotiations for reparations dragged on for almost five years after the signing of the 1951 Peace Treaty.46 From the initial demand of USD 8 billion, the final reparations agreed upon amounted to a mere USD 550 million,47 which was to be paid in the form of capital goods, cash, and services.48 A note sent by President Magsaysay to the Senate reads as follows: Considering the losses and suffering the Philippines sustained as a result of the Pacific War, these terms do not come up to the generallyaccepted concept of reparations as compensation for damage done and injury suffered.
Judged, however, from the point of view of the requirements of our national interest and viewed in the light of the practical realities posed by the political and economic situation obtaining in both countries as well as in their part of the world, I subscribe to the conclusion reached by the Philippine Panel of Negotiators that this settlement is the best that can be obtained under the circumstances x x x.49
After a heated debate, the 1951 Peace Treaty and the 1956 Reparations Agreement were ratified on 16 July 1956. The pertinent provision of the 1951 Peace Treaty is reproduced below: ARTICLE 14
(a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient if it is to maintain a viable economy, to make complete reparations for all such damage and suffering and at the same time meet its other obligations. Therefore,
1. Japan will promptly enter into negotiations with Allied Powers so desiring, whose present territories were occupied by Japanese forces and damaged by Japan, with a view to assisting to compensate those countries for the cost of repairing the damage done, by making available the services of the Japanese people in production, salvaging and other work for the Allied Powers in question. Such arrangements shall avoid the imposition of additional liabilities on other Allied Powers, and, where the manufacturing of raw materials is called for, they shall be supplied by the Allied Powers in question, so as not to throw any foreign exchange burden upon Japan.
2. x x x x
(b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparation claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation. (Emphases supplied)
On the other hand, the relevant provisions of the 1956 Reparations Agreement are quoted as follows:
ARTICLE 1
Japan, by way of reparations, shall supply the Republic of the Philippines with the services of the Japanese people and the products of Japan in the form of capital goods, the total value of which will be so much in yen as shall be equivalent to five hundred fifty million United States dollars ($550,000,000) at present computed at one hundred ninetyeight billion yen (Y198,000,000,000), within the period and in the manner hereinafter prescribed.
ARTICLE 2
The supply of the services and products referred to in the preceding Article shall be made on an annual average of so much in yen as shall be equivalent to twenty-five million United States dollars ($25,000,000) at present computed at nine billion yen (Y9,000,000,000), during the ten-year period from the date of coming into force of the present Agreement; and on an annual average of so much in yen as shall be equivalent to thirty million United States dollars ($30,000,000) at present computed at ten billion eight hundred million yen (Y10,800,000,000), during the succeeding ten-year period. However, by agreement between the two Governments, this latter period may be reduced to a period shorter than ten years, provided the outstanding balance is settled in full within the remainder of the reduced period.
ARTICLE 6
1. In the discharge of the reparations obligation under Article 1 of the present Agreement, the Government of Japan shall, through procedures to be determined under Article 11, make p2-yments to cover the obligations incurred by the Mission under Reparations Contracts and the expenses for the supply of services and products referred to in Article 5, paragraph 4 of the present Agreement. These payments shall be made in Japanese yen.1âwphi1
2. By and upon making a payment in yen under the preceding paragraph, Japan shall be deemed to have supplied the Republic of the Philippines with the services and products thus paid for and shall be released from its reparations obligation to the extent of the equivalent value in United States dollars of such yen payment in accordance with Articles 1 and 2 of the present Agreement. (Emphases supplied)
In the light of the foregoing context, I vote to dismiss the petition for failure to establish that respondents committed grave abuse of discretion in declining to espouse the claims of petitioners. The dismissal thereof should not, however, be taken as a definitive ruling on the merits of the claims of petitioners, in the event that they bring the same to an appropriate forum or through a proper recourse. Neither should it be taken to mean that we should forget the suffering that our people, especially petitioners, bore in the Second World War, or the unfortunate story of our attempts to get the reparation that was due us, and learn. From such understanding, we must forge the elements that will make the Philippine state strong, able to protect its people and safeguard their well-being under the aegis of the Constitution. Justice demands no less.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
1 Special Rapporteur on Violence Against Women, its Causes and Consequences, Rep. on the Mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the Issue of Military Sexual Slavery in Wartime, Comm'n. on Human Rights, UN Doc. E/CN.4/1996/53/Add. 1, at 4 (4 January 1996) (by Radhika Coomaraswamy).
2 See: E.O. 292-Administrative Code of the Philippines, Book IV, Title III, Chap. 12, Sec. 34, pars. 10 & 11.
3 Constitution, Art. II, Sec. I 1; Art. XIII, Secs. 1 & 18(3)
4 Vinuya v. Romulo, G.R. No. 162230, 28 April 2010, 619 SCRA 533.
5 Id. at 560.
6 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 (hereinafter "Geneva Convention I"); Geneva Convention for the Ame)ioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85 (hereinafter "Geneva Convention II"); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (hereinafter "Geneva Convention lll"); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 (hereinafter Geneva "Convention IV").
7 OSCAR M. UHLER & HENRI COURSIER, COMMENTARY: IV GENEVA CONVENTION RELATIVE TO THE PROJECTION OF ClVILIAN PERSONS IN TIME OF WAR, 602-603 (Jean S. Pictet ed., 1958).
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 TAKUSHI OHNO, WAR REPARATIONS & PEACE SETTLEMENT: PHILIPPINES-JAPAN RELATIONS 1945-1956, 8 (1986); Yang Zhihui, From War Reparation to Postwar Reparation (Louisa Rubinfien trans.), in TOWARD A HISTORY BEYOND BORDERS: CONTENTIOUS ISSUES IN SINO-JAPANESE RELATIONS 374-375 (Daqing Yang, Jie Liu, Hiroshi Mitani & Andrew Gordon eds., 2012).
14 OHNO, supra.
15 OHNO, supra, at 9.
16 OHNO, supra, at 11.
17 OHNO, supra; Yang Zhihui, supra note 13.
18 OHNO, supra, at 13.
19 0HNO, supra, at 18-26; JOHN F. DULLES, A PEACE TREATY IN THE MAKING (ADDRESSES AND REMARKS REGARDING THE MAKING OF THE JAPANESE PEACE TREATY AND THE CAUSE OF WORLD FREEDOM) 3-7 (1951); Yang Zhihui, supra note 13, at 375-377.
20 OHNO, supra, at 36.
21 OHNO, supra, at 37-38 (citing United States Memorandum to the Government on the Far Eastern Commission, in Royal Institute of International Affairs, Documents on International Affairs, 1947-1949, 615-616 [1952]); Yang Zhihui, supra note 13, at 376.
22 OHNO, supra, at 38; See also DULLES, supra note 19, at 40-42; Yang Zhihui, supra note 13, at 376.
23 OHNO, supra, at 37 (citing John Foster Dulles, "Peace May Be Won," U.S.A. Department of State, DSB, Vol. 24 No. 605, at 255 [ 1951 ]); See DULLES, supra note 19, at 19-21.
24 OHNO, supra (citing U.S.A., Department of State, "An Estimate of Conditions in Asia and the Pacific at the Close of the War in the Far East and the Objectives and Policies of the United States," Diplomatic Papers, 1945, Vol. VI, at 556-580 [1969]); See DULLES, supra note 19, at 19-21.
25 OHNO, supra, at 40; Yang Zhihui, supra note 13, at 376.
26 OHNO, supra, at 39.
27 OHNO; supra, at 40 (citing The President's Inaugural Address, December 30, 1949, Official Gazette, Vol. 45 No. 12, at 5384 [1949]).
28 OHNO, supra, at 42 (citing Truman's Envoy has long conference on Jap pact with EQ, the Manila Times, February 12, 1951, 1-2).
29 OHNO, supra.
30 Id.
31 Id. at 42-43; See also DULLES, supra note 19, at 48; Yang Zhihui, supra note 13, at 376.
32 OHNO, supra, at 43 (citing Neri assails Dulles stand, the Manila Times, 3 March 1951, 1, 12).
33 Id.; See also DULLES, supra note 19, at 48.
34 OHNO, supra.
35 Id.
36 Id. at 52.
37 Id. at 54.
38 Id.
39 Id. at 54-55 (citing Acheson's Speech, delivered on September 8, 1951, in U.S. Dep't of State Publications, Record of Proceedings of the Conference for the Conclusion and Signature of the Treaty of Peace with Japan, 175-177 [1951 ]).
40 Id. at 55-56.
41 Id. at 58, 80.
42 Id. at 58.
43 Id. at 75-80.
44 Id.
45 Id. at 80.
46 Id. at 64-134.
47 Id. at 121.
48 President's Letter of Transmittal, reproduced in PHILIPPINE SENATE, REPARATIONS AGREEMENT, THE ANNEX THERETO, THE EXCHANGE NOTES AND THE OTHER SUPPORTING DOCUMENTS: TREATY OF PEACE WITH JAPAN, UNDERSTANDING OF THE SENATE'. ON CERTAIN PROVISIONS OF THE REPARATIONS AGREEMENT, 3 (1956).
49 Id. at 4.
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