CEDAW Committee declares sexual harassment communication inadmissible (M.S. v. The Philippines)

M.S. was employed between 1998 and 2000 as Director of the Market and Communications Department of a telecommunications company in the Philippines. On 27 June 2000, she resigned from the company after reportedly being sexually harassed repeatedly by G, the company’s Chief Operating Officer. 

In May 2001, M.S. initiated criminal proceedings in the National Bureau of Investigation against G and S, her immediate supervisor, for sexual harassment and acts of lasciviousness. The Office of the City Prosecutor initially dismissed the complaint for lack of probable cause, but, in April 2003, found merit in her allegations against G. A motion for reconsideration, filed by S and G, was denied in May 2004. However, in March 2005, after G filed a petition for review, the Metropolitan Trial Court dismissed the criminal case because G had died.  

In addition to the criminal proceedings, in December 2001, M.S. initiated unfair dismissal proceedings with the Labour Arbiter. In April 2003, the Arbiter dismissed the case on the basis that M.S. had resigned voluntarily and had not sufficiently substantiated her claim that she was forced to resign due to harassment. M.S. appealed unsuccessfully to the National Labour Relations Commission, but was successful in her appeal to the Court of Appeals. That Court annulled the earlier decisions, finding that M.S. had been constructively dismissed. However, the Supreme Court reinstated the decision of the National Labour Relations Commission that M.S. had not been dismissed unfairly. A motion for reconsideration, filed by M.S, was denied.

M.S. then submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed she was a victim of a violation by the Philippines of articles 1, 2(c), 2(f), 5(a) and 11(1)(f) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with General Recommendation No. 19 on violence against women.

M.S. claimed that the Supreme Court’s decision was based on gender myths and stereotypes. This, she claimed, led to the failure to uphold her rights to non-discrimination in the workplace and workplace health and safety as well as to discriminatory and unequal treatment by the Court. She further claimed that the State Party’s failure to abolish discriminatory customs and practices and eliminate harmful gender stereotyping had impaired her rights to a fair trial and to access an effective remedy for workplace sexual violence.

State Party’s observations on admissibility

It is unclear from the CEDAW Committee’s decision if the State Party contested the admissibility of the communication. However, the State Party did argue that the decision in question was not discriminatory, but, rather, was based on M.S.’s failure to substantiate her claim.

Majority’s decision on admissibility

A majority of the CEDAW Committee found that the communication was insufficiently substantiated and declared it inadmissible under article 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol to CEDAW). 

The majority concluded that M.S.’s main aim was to challenge “the manner in which the national courts, and the Supreme Court in particular, assessed the circumstances of her case and applied national law”. In so concluding, it emphasized that the CEDAW Committee “does not replace the national authorities in the assessment of the facts, nor does it decide on the alleged perpetrator’s criminal responsibility”. The majority went on to explain that 

it is generally for the courts of … States parties … to evaluate the facts and evidence or the application of national law in a particular case, unless it can be established that this evaluation was biased or based on gender harmful stereotypes that constitute discrimination against women, was clearly arbitrary or amounted to a denial of justice [emphasis added].

In the majority’s view, there was nothing to suggest that the examination of M.S.’s case by Filipino courts, including the Supreme Court, suffered from any such defects. Moreover, it concluded that,

even if it could be argued that some aspects of gender-based stereotypes may appear to be indicated in the Supreme Court’s decision, they do not suffice, per se, to demonstrate that they have negatively affected the court’s assessment of the facts and the outcome of the trial, or to corroborate the author’s claims of a violation of articles 1, 2(c) and (f), 5(a) and 11 (1)(f), of the Convention for purposes of admissibility.

Individual (dissenting) opinion of CEDAW Committee member Patricia Schulz 

CEDAW Committee Patricia Schulz issued an individual (dissenting) opinion. Like the majority, she declared the communication inadmissible. However, she concluded that it was an abuse of the right to submit a communication and, therefore, declared it inadmissible under article 4(2)(d) of the Optional Protocol to CEDAW.

In Schulz’s view, M.S. had substantiated her claim for the purposes of admissibility. She had done this, Schulz explained, by identifying passages from the national decisions that pointed to “gender stereotyping in action”. Schulz also noted the failure of the State Party to explain these passages.

Nevertheless, Schulz concluded that M.S.’s delays in initiating proceedings at the domestic level and in submitting her communication to the CEDAW Committee were fatal to her case.

Whilst there is no statute of limitations in the Philippines for sexual harassment proceedings, Schulz concluded that the Supreme Court had rightly determined that, by taking 18 months to initiate such proceedings, M.S. failed to act “expeditiously”. At the same time, Schulz was careful to stress the importance of appropriate limitation periods in sexual violence cases and criticised jurisdictions with short limitation periods. She acknowledged, for instance, that victims in such jurisdictions “risk being denied access to justice if they need a longer time than these statutes foresee to recover from the trauma they have experienced before being able to face a judicial procedure…”.

Schulz also acknowledged that there is no limitations period on submitting communications under the Optional Protocol to CEDAW. Nevertheless, she emphasised the importance of submitting communications in a timely fashion. In Schulz’s view, the five-year delay in submitting the communication and M.S.’s failure to explain why the delay might be considered reasonable abused the right to submit a communication. Schulz explained: “I find that the author should have submitted her communication in a shorter delay than she did, or else she should have explained why she was not able to act more rapidly”.

Schulz went on to call for the introduction of a 1-year limitation period (with justifiable exceptions) to submit communications to the CEDAW Committee. In her view, such a period would appropriately balance the needs of victims and States Parties, help to harmonise treaty procedures and protections, ensure legal security for State Parties and claimants, and facilitate the administration of justice.

Communication No. 30/2011, UN Doc. CEDAW/C/58/D/30/2011 (2014) 

Decision (advanced unedited version)