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Volume 26 No.

III, Fall 2014

Continuing the Quest for Justice after


the Philippine Supreme Courts Decision
on the Japanese Military Sex Slaves
By J.R. Robert G. Real

On 12 August 2014, the Supreme Court of the Philippines wrote finis1 to the pleas for diplomatic protection of
the World War IIera military sex slaves2 known as comfort
women. According to the court in Vinuya v. Executive Secretary, it could not compel the Philippine government to file
a case against Japan for an official apology and reparations,
since the executive department had exclusive prerogative
over foreign relations matters.3
While the issue was limited to whether the Philippine
government should have espoused the claims of its nationals, the court gave an impression that the settlements under
the 1951 Treaty of Peace and the 1956 PhilippineJapanese
Reparations Agreement had already covered the survivors
demands. The question thus arises: Did Vinuya issue a definitive ruling on the legitimacy of the former military sex
slaves claims?
This article seeks to analyze the legal implication of the
courts pronouncements in Vinuya. It attempts to categorize
the nature of the statements as mere obiter dicta rather than
definitive rulings on the ultimate interpretation of the settlement of claims under the two treaties. In attempting to conclude that the decision did not foreclose the claims of the
survivors, the article looks into the nature of the suit filed as
well as the limitations set by the Philippine Supreme Court
in deciding the case. It also considers the context in which
the judgment was made in light of the concurring opinions.
Background
The idea of establishing military brothels or comfort stations emerged following the hostilities between Japan and
China in 1932.4 Due to the very high incidence of rape in
China, the Japanese government established a formal system
of controlled sexual service.5 The success of this system led
to the continuation of the practice during the Second World
War. To supply the comfort stations, countless numbers of
women were deceived, coerced, forcibly drafted, or abducted.6
Their primary role was to provide sexual release for the Japanese soldiers.7 Some women were forced to service as many as
70 soldiers a day.8 Those who refused were tortured or executed in front of the other women.9 A considerable number of
them eventually contracted gynecological infections, venereal
diseases, and mental disorders.10 Towards the end of the war,
the women were either killed or left to die.11

Those who survived kept quiet due


to humiliation or forced silence.12 Their
ordeals were thus largely unknown to everyone until 1988, when South Korean
womens organizations started investigating the matter.13 Three Korean women
eventually filed a class-action suit in Japan in December 1991. In September J.R. Robert G. Real
1992, Rosa Henson, a former Filipina
military sex slave, spoke out in public about her suffering
in the hands of the Japanese Imperial Army.14 She was the
first to do so from the Philippines, unfolding what would
appear to have been a widespread system of military sexual
slavery in Japanese-occupied territories. The system had
been established in China, Korea, the Philippines, Indonesia, Malaya (now Malaysia and Singapore), Thailand,
Burma (now Myanmar), New Guinea (now Papua New
Guinea), Hong Kong, Macao, and French Indochina (now
Vietnam and Cambodia).15
Japan eventually admitted the involvement of its army
in the establishment and management of comfort stations, including the recruitment of comfort women.16
The Japanese Government, through then Chief Cabinet
Secretary Yohei Kono, extended its sincere apologies and
remorse to all those who suffered immeasurable pain
and incurable physical and psychological wounds as comfort women. 17 Similarly, former Japanese Prime Ministers
sent, on behalf of the Japanese Government, personally
signed letters of apology and remorse to the survivors.18
The Survivors Case
The Philippine Government has been declining the survivors requests for assistance in filing a suit against Japan since
1998. According to the governments executive department,
the individual claims of the former military sex slaves were already settled on the state level by the peace treaty and the reparations agreement. It then explained that, in any event, the
apologies made by Japans high-ranking government officials
and the atonement money it paid through the Asian Womens
Fund (AWF) were already sufficient to satisfy their claims.
Because of the denial of their requests, the survivors
sought judicial intervention to compel the Philippine Government to espouse their claims in an international legal forum.19
13

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In t er n atio n a l L awye r

Through a petition for certiorari, they invoked the Philippine


Supreme Courts power of judicial review.
The Philippine Supreme Court has an expanded power
of judicial review. It has the authority not only to determine
whether a branch of government has acted beyond the scope
of its constitutional powers, but also to check if the latter exercised its discretion with grave abuse. 20 This means that the
court may scrutinize if a coequal branch of government has
exercised its constitutionally assigned sphere of discretion in a
manner that is capricious or despotic.
The survivors claimed that the Philippine Government
had committed a grave abuse of its discretion in interpreting
that the settlements under the peace treaty and the reparations agreement covered their claims. They stressed that the
Philippines could not have waived their demands, since it had
an international law obligation not to facilitate impunity for
the commission of international crimes. They argued that the
comfort women system constituted a crime against humanity,
sexual slavery, and torture.21
The survivors also insisted that the statements of the former Japanese officials did not amount to an official apology,
since the meaning of the Japanese word they usedowabi
did not express an acknowledgment of legal responsibility.
Citing a Japanese experts analysis, the word denotes a sense
of apology slightly more weighty than an excuse me. With
regard to the alleged atonement money, the survivors stressed
that the AWF was sourced from private contributions, not
from government funds.
The Courts Opinion
The court dismissed the case. It reiterated that the executive branch of the Philippine Government had full discretionary authority to determine whether to espouse its nationals
claims against other states. It emphasized that the issue involved foreign policy judgments which, under the Philippine Constitution, were matters to be decided by the political
branches of the government. It then lamented that it only had
the power to urge and exhort the executive department to take
up [the survivors] cause.22
The court, however, took a sharp turn from its initial selfrestraint to a discussion of the substantive claims of the survivors. The court suddenly made statements recognizing the
governments authority to negotiate international settlements
that could generally wipe out underlying private claims.23 The
court then acknowledged that the fundamental goal of the
peace treaty was to settle the reparations issue once and for
all.24 After alluding to a statement that nations sometimes
disposed of the claims of its citizens without their consent, the
court went on to declare that the peace treaty compromised
individual claims in the collective interest of the free world.25
14

Then, as a seeming coup de grce to the survivors claims, the


Philippine Supreme Court enunciated that the governments
decision to waive all claims for reparations through the peace
treaty was not for the courts to question.26
With these statements, the Philippines court of last resort
appears to have gone beyond the boundaries it had itself set.
Andbecause of its failure to entirely avoid commenting on
the alleged complete settlement of claims under the two treatiesthe court might have jeopardized the substantive claims
of the survivors. There is danger that these statements might
be considered binding interpretations of the treaties, thereby
weakening the survivors claims, if not totally foreclosing
them. It must be stressed that the former military sex slaves
only sought to compel the Philippine government to espouse
their claims. They wanted to litigate, with official government
support, their demands in an international forum.
Interpreting the pronouncements
Even though the court set express limitations, it might
still be difficult to simply brush aside the statements as mere
obiter dicta. After all, both parties squarely raised the issue of
whether the settlement covered the claims of the military sex
slaves. Since the government heavily relied on the peace treaty and the reparations agreement in declining the survivors
requests, the court had to assess the executive departments
interpretation of the agreements. Hence, it seems understandable that the court should feel the need to discuss whether
the practice of renouncing or extinguishing private claims, in
return for peace and lumpsum payments, was an established
international practice. Interpreting the nature of the international agreements seemed necessary to resolve the case. There
was no clear overreach.
As a result however, the survivors are faced with an uncertain pronouncement. On the one hand, the court showed
compassion and hinted that the executive department should
espouse the claims of the survivors; on the other, it sent a clear
statement that the treaties were meant to settle all claims.
The tendency of misunderstanding Vinuya is further fueled
by the courts seemingly confusingor confusedstatements,
which tangled two different issues. After explaining the executive departments full discretionary power to decide whether or
not to espouse the claims of its nationals against a foreign state,
the court all of a sudden shifted the discussion. It desultorily
focused on the executive departments full discretionary power
to settle all claims of its nationals through a peace treaty,27 as if
these two discretionary powers were identical and interchangeable. They are not. The first sphere of discretion refers to the
power to exercise diplomatic protection. It involves the decision to espouse the claims of the former military sex slaves and,
hence, to test whether the previous settlements could have cov-

Volume 26 No. III, Fall 2014

ered their claims. The second sphere of discretion refers to the


power to negotiate and enter into international agreements. It
involves the decision to settle Japans international obligations
and waive all future claims of the Philippines and its nationals.
Still, there is a stronger basis for arguing that the pronouncements in Vinuya about the alleged complete settlement
of claims are purely nonbinding declarations. In understanding Vinuya, the boundary that the court had drawn for itself
is a good starting point: the opinion [is confined] only to
the very questions necessary to reach a decision on this matter. If this declaration is made to reverberate throughout the
decision, then all of the courts pronouncements must be read
in view of its limited task of determining whether there was
a capricious or despotic exercise of discretion in declining to
espouse the claims of the survivors. All binding pronouncements should then be limited to the first sphere of discretion.
Any statement beyond that is obiter dictum.
In this light, the nuanced approach in the concurring
opinion of the Chief Justice becomes more valuable in interpreting Vinuya. Rather than discussing the correctness of the
governments legal interpretation of the two treaties, she focused on the executive departments basis for interpreting that
there was complete settlement of claims under the two treaties. She traced the events that led to the conclusion of the
agreements. She pointed out that the Philippines had strongly
negotiated for reparations as a matter of justice28 and eventually settled for a meager sum, because of the economic and political realities at the time. With this contextual background,
she argued that the executive department could not be found
guilty of grave abuse of discretion for believing that the settlement covered the claims even of the former military sex slaves.
This did not mean, though, that the Philippine Governments interpretation was necessarily correct. Limiting her
analysis to the first sphere of discretion, she concluded that the
question whether the claims of the survivors were barred by the
treaties remained open. This means that the dismissal of the case
could not be taken as a definitive ruling on the merits of the
survivors claims. The former military sex slaves may still bring
their cause to another forum and through a different recourse.
Conclusion
The seemingly flip-flopping statements in Vinuya must be
seen as indicative of a conscientious struggle within the court
itself. The court visibly debated on the possible foreclosure of
all future claims in light of the peace treaty and the reparations agreement. Nevertheless, after painstaking efforts, the
court could only reach a consensus insofar as dismissing the
case per se was concerned. Different justices offered different
approaches for dismissing the case. One of them expressly argued that the two treaties have already barred the claims of the

former military sex slaves.29 Three justices asserted, however,


that the dismissal should be strictly and solely on procedural
grounds.30 The lack of a clearer declaration in the majority
opinion should thus be treated as the courts conscious effort
to steer clear from addressing the issue of foreclosure of claims.
The interpretation of the treaties was left unresolved.
Indeed, amidst all the pronouncements of the Supreme
Court, only one statement is unambiguous: the question before it was whether the executive department committed grave
abuse of discretion when it declined to espouse the claims of
the survivors. The decision must therefore be read in this context. The court must be seen to have solely ruled on the governments exercise of discretion in the matter of diplomatic
protection, not the legitimacy of the claims itself nor the coverage of the treaties involved. The decision should be interpreted in light of the courts own self-established limitation.
The Chief Justice was therefore on point; there was no
definitive ruling on the substantive claims. After all, though
there seems to be merely a thin line between a conclusive finding that the government did not gravely abuse its discretion in
interpreting the treaties and, an understanding that the government was conclusively correct in its interpretation of the
treaties, it is nevertheless a line clearly drawn. The quest for
justice of the former military sex slaves may continue.
About the Author
J.R. Robert Real is a court attorney at the Supreme Court
of the Philippines. He obtained his JDMBA from the De La
Salle University and Far Eastern University dual degree program
in the Philippines. He interned for the U.N. Assistance to the
Khmer Rouge Trials in 2011 and was a directed studies student at
The Hague Academy of International Law in 2014. He currently
teaches Public International Law and serves as judge in various
international law moot court competitions.
Endnotes
1

Vinuya v. Executive Secretary, G.R. No. 162230 (S.C., Recons.,


12 Aug. 2014) (Phil.), available at <http://sc.judiciary.gov.ph/
jurisprudence/2014/toc/august.php> (Vinuya II).
2 According to the Special Rapporteur on Violence Against
Women, the phrase military sexual slaves represents a much
more accurate and appropriate terminology than the term
comfort women.
3 Vinuya II, supra note 1, at 10; Vinuya v. Executive Secretary,
G.R. No. 162230, 619 S.C.R.A. 533 (S.C., 28 Apr. 2010)
(Phil.) (Vinuya I).
4 Special Rapporteur on Violence Against Women, its Causes
and Consequences, Rep. on the Mission to the Democratic
Peoples Republic of Korea, the Republic of Korea and Japan
on the Issue of Military Sexual Slavery in Wartime, Commn.
on Human Rights, UN Doc. E/CN.4/1996/53/Add.1, at 5 (4
Jan. 1996)(by Radhika Coomaraswamy); Ustinia Dolgopol
15

6
7

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& Snehal Paranjape, Intl. Comm. of Jurists, Comfort


women: An Unfinished Ordeal Report of a Mission 2425 (1994); Japanese Cabinet Councillors Office on External
Affairs, Statement on the Issue of Wartime Comfort Women
(4 Aug. 1993), available at <http://www.mofa.go.jp/policy/
postwar/issue9308.html> (also on file with author).
Report on the Issue Wartime Military Sexual Slavery, supra,
at 7; Japanese Statement on the Issue of Wartime Comfort
Women, supra.
Report on the Issue Wartime Military Sexual Slavery, supra, at
6-8; Dolgopol & Paranjape, supra note 4, at 151-152.
Dolgopol & Paranjape, supra note 4, at 15-17, 29; Susan
H. Shin, Justice Delayed: Accountability in the Comfort Women
Case, in Accountability for Atrocities: National and
International Responses 413 (Jane E. Stromseth ed. 2003).

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16

Report on the Issue Wartime Military Sexual Slavery, supra


note 4, at 9; Shin, supra, at 414.
9 Shin, supra, at 421.
10 Id.; Dolgopol & Paranjape, supra note 4, at 15-16.
11 Report on the Issue Wartime Military Sexual Slavery, supra
note 4, at 7; Dolgopol & Paranjape, supra note 4, at 15;
Shin, supra, at 414.
12 Report on the Issue Wartime Military Sexual Slavery, supra
note 4, at 5, 10; Shin, supra note 7, at 414.
13 Dolgopol & Paranjape, supra note 4, at 12; Bo Jung Kwon,
I Will Be Forgotten: Legal Redress for Korean Comfort Women,
in Repairing the Past?: International Perspectives on
Reparations for Gross Human Rights Abuses 417 (Max
du Plessis and Stephen Pet eds. 2007).
14 Dolgopol & Paranjape, supra note 4, at 14; H. Harry L.
Roque, Jr. & Diane Desierto, Redress for Survivors of War
Crimes: The Filipino Comfort Womens Continuing Search for
Legal Remedies, 19(1) Humanitres Vlkerrecht 241
(2006).
15 Japans Statement on the Issue of Wartime Comfort Women,
supra note 4; Report on the Issue Wartime Military Sexual
Slavery, supra note 4, at 6-8; Dolgopol & Paranjape, supra
note 4, at 15-17, 30-47, 151-152 (1994).
16 Keiichi Tadaki, Hiroko Akizuki, Makiko Arima, Mariko
Kawano & Ikuhiko Hata, Report of the Study Team on the
Details Leading to the Drafting of the Kono Statement and
Others (Prov. Trans.) 17-18 (20 June 2014), available at
<http://www.mofa.go.jp/policy/postwar>.
17 Id.
18 Id. at 25.
19 See Vinuya I, supra note 3, at 540-541; Roque & Desierto,
supra note 14, at 245, 248-249.
20 Philippine Constitution, Art. VIII, Sec. 1; Chavez v. Judicial
and Bar Council, G.R. No. 202242, 676 SCRA 579 (S.C., 17
Jul. 2012) (Phil.); Francisco v. House of Representatives, 460
Phil. Rep. 830 (S.C., 10 Nov. 2003); Demetria v. Alba, 232
Phil. Rep. 222 (S.C., 27 Feb. 1987).
21 See Vinuya I, supra note 3, at 541-542; Roque & Desierto,
supra note 14, at 245-249.
22 See Vinuya I, supra note 3, at 581.
23 See Vinuya I, supra note 3, at 562-563.
24 Vinuya I, supra note 3, at 565 (citing In Re World War II Era
Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 [N.D.
Cal. 2000]).
25 Vinuya I, supra note 3, at 564 (citing Dames & Moore v.
Regan, 453 U.S. 654 [1981]).
26 Id., at 560.
27 Vinuya I, supra note 3, at 559-560.
28 Citing Ohno, supra, at 39-54; and The Philippine Presidents
Inaugural Address, 45:12 O.G. 5384 (30 Dec. 1949 )(Phil.).
29 Concurring note of Justice Antonio T. Carpio in Vinuya I,
supra note 3, at 581.
30 Separate concurring opinion of Justice Antonio B. Nachura in
Vinuya I (Justices Conchita Carpio-Morales and Diosdado M.
Peralta joined his opinion), supra note 3, at 581.