Monthly Archives: February 2013

Remarks of Chinese Embassy Spokesperson Hong Lei

Chinese Embassy Spokesperson Hong Lei’s Remarks: 

China Returned the Philippines’

Notification on the Submission of South China Sea Issue to International Arbitration

Manila, 19 February 2013

China’s position on the South China Sea issue is consistent and clear. China’s sovereignty over the Nansha Islands and their adjacent waters is supported by abundant historical and legal evidence. Meanwhile, bearing in mind the larger interest of China-Philippines relations and regional peace and stability, China has remained committed to resolving the disputes through bilateral negotiations, and has made every effort to maintain stability and to promote regional cooperation in the South China Sea. To resolve the disputes through negotiations by sovereign states directly concerned is also the consensus between China and ASEAN countries as stipulated in the Declaration on the Conduct of Parties in the South China Sea (DOC). The Philippines’ Note Verbale and the attached Notification not only runs counter to the consensus, but also contains many grave errors both in fact and in law, and includes many false accusations against China. China firmly opposes to this.

On Feb. 19, Ambassador of China to the Philippines Ma Keqing met with officials of Department of Foreign Affairs of the Philippines, and stated that the Chinese side rejected and returned the Philippines’ Note Verbale and the attached Notification.

The Chinese side hopes that the Philippine side keeps its word, not to take any action that magnifies and complicates the issue, responds positively to China’s proposals on establishing a bilateral regular consultation mechanism on maritime issues, resumes the operation of the Confidence Building Measures Mechanism (CBMs) as established between the two countries, and reverts to the right track of settling the disputes through bilateral negotiations.

 

REMARKS ON THE LAUNCHING OF THE PHILIPPINE LAW JOURNAL WEBSITE

Justice Antonio T. Carpio

8 February 2013

Dean Danny Concepcion, Prof. Raffy Morales – the Faculty Adviser of the Philippine Law Journal, other members of the U.P. Law Faculty, Chair Jenny Domino and other members of the PLJ Editorial Board, distinguished guests, fellow students of the law, friends:  good afternoon to everyone.

Let me congratulate Chair Jenny and her Editorial Board for launching the on-line Philippine Law Journal. This has been the dream of many PLJ Chairs, and it has happened finally during the watch of Chair Jenny.  Today, the PLJ joins the cyberspace age.  However, there is still a lot of work to do, specifically to digitize, proof read, and upload the back issues of the PLJ spanning almost 100 years.  Fortunately, the software program that Sam Galope, our IT specialist, developed for the PLJ will make uploading articles, and managing the website, a breeze.  Thank you Sam for a wonderful job in developing the PLJ website.

Of special interest to many of us here this afternoon is the on-line only PLJ issue on the West Philippine Sea dispute.  The on-line PLJ issue on the West Philippine Sea dispute is a purely cyberspace issue, devoted exclusively to the multi-state maritime dispute over large areas of the South China Sea.  The focus, of course, will be on the action of the Philippines to bring China to arbitration under UNCLOS.  Appropriately, the first article uploaded to this issue is the Notification and Statement of Claim given by the Philippines to China.  Everyone should read carefully this Statement of Claim – it is a well-crafted document, skillfully avoiding territorial or land sovereignty issues as well as maritime issues that China has reserved from arbitration, yet putting at issue the major source of the South China dispute – the validity of China’s 9-dash line claim to almost 90% of the South China Sea.

The Statement of Claim says that last 2012 China “seized” – the exact word used is “seized” – six small rocks, barely 3 meters above water at high tide, in Scarborough Shoal.  You will recall that last November 2012 the Chinese Vice-Foreign Minister informed our Foreign Secretary that the Chinese Coast Guard vessels will remain permanently in Scarborough Shoal.  This means China has seized, taken over and occupied permanently Scarborough Shoal, which was previously under the possession and control of the Philippines.

We had prior possession and control because in the ‘60s and ‘70s U.S. and Philippine air force planes used to drop bombs on Scarborough Shoal for target practice.  There could be no better proof of possession and control of a territory than dropping bombs on it for target practice.  We dropped the bombs without any protest from China or any other country.  We gave prior worldwide Notices to Mariners, thru the usual international maritime channels, to stay clear of the area during the bombing practice.

We know, moreover, that Scarborough Shoal is expressly mentioned in the Baselines Law as part of the Philippine national territory.  Now, what should the President of the Philippines, or of any country for that matter, do when part of the national territory is seized, taken over and occupied by another country?

There are four options in responding to such seizure or occupation by a foreign power.

  1. The first option is to send naval and air assets to evict the foreign occupier.  This is not an option for the Philippines.  We do not have the military capability to evict the Chinese Coast Guard Vessels in Scarborough Shoal.
  2. The second option is to request action or assistance from the U.N. Security Council and our ASEAN partners.  This is not an option for the Philippines.  China is a permanent member of the U.N. Security Council, with veto power.  Our ASEAN partners can be divided into five groups: those who live next to China and cannot afford to antagonize China; those who need economic aid from China; those who are neutral because they have no competing claims with China; those who have only minor competing claims with China and just prefer to lie low because they need to trade with China or find it not worth the trouble to press the issue with China; and those who have substantial competing claims with China and have no choice but to defend their turf lest China run over them.  Since ASEAN acts only by consensus, the Philippines obviously cannot rely on ASEAN for assistance.
  3. The third option is to file a diplomatic protest with China.  This is not an option for the Philippines. In 1995, when China seized Mischief Reef by building a fisherman’s shelter, our diplomatic protest with China fell on deaf ears.  Now, 17 years later, China’s fisherman’s shelter in Mischief Reef has turned into an intimidating military fortress.  Unless we do something more effective, China will just slowly swallow our reefs and shoals, whether submerged or not.
  4. The fourth option, the only remaining option for the Philippines, is to find a way to bring China to arbitration in an international tribunal where the playing field is level, where warships and warplanes, as well as economic sanctions, do not count, but where the rule of international law reigns supreme.  Such arbitration is a peaceful resolution of a dispute between states in accordance with international law.  But how do we compel China to accept arbitration?  Now, this requires a little legal creativity.  That is why I said earlier you have to read our Statement of Claim carefully.

We all know that on territorial or land sovereignty issues, the disputant states must give their consent to the jurisdiction of the arbitral tribunal before the tribunal can act.  We also know that China will never give its consent to arbitration on territorial sovereignty issues.  But China, by ratifying UNCLOS, has actually agreed to compulsory arbitration on “any interpretation or application of the Convention,” save only on the issues that it made reservations as allowed by the Convention.  China’s reservations refer to maritime boundary delimitations, historic bays and title, and military activities.

The issues of whether China’s 9-dash line claim violates the 200 NM EEZ granted to coastal states under UNCLOS, whether the islands or rocks in the Spratlys or Scarborough Shoal generate only a territorial sea or also EEZs, and whether China has a right to appropriate fully and permanently submerged reefs like Mischief Reef that are outside the EEZ of China and within 200 NM of the Philippines, are outside of the reservations made by China.  Thus, the Philippine position is that China can be brought to compulsory arbitration on these issues.

So the fourth option, to bring China to arbitration before an international tribunal, is actually possible but not on the issue of China’s seizure or occupation of Scarborough Shoal, which is a territorial or land sovereignty issue, but on the validity of China’s 9-dash line claim and on the status of islands, rocks and submerged reefs, which are purely maritime issues regulated by the Convention.

China’s 9-dash line claim is the basis for its expansive claim to the submerged areas in the South China Sea that lie beyond the territorial sea of the islands and rocks.  Invalidating the 9-dash line claim, and securing a ruling that none of the islands and rocks generate EEZs, will narrow down considerably the dispute to purely territorial or land sovereignty disputes over who owns the islands and rocks and their surrounding 12 NM territorial sea.  We can afford to shelve resolution of this territorial or land dispute, including who has sovereignty over Scarborough Shoal, for the next 100 or even 1000 years.

Is this good for us?  Yes, because there can no longer be any legal dispute that the fully submerged Reed Bank, which is where the rich reserves of gas is located, belongs exclusively to the Philippines, being within 200 NM from Palawan and more than 800 NM from China. The resolution of the legal issue is important for investors.

So, when you look at the four options available to the Philippines, we really had no choice but to go for the fourth option.  It was our only viable option in response to China’s seizure of Scarborough Shoal.  Any other option would be ineffective and also extremely humiliating to us as a nation.  That is why I fully agree with the decision of the President to bring China to arbitration under UNCLOS.

But what are our chances of success under such arbitration? I have also four possible scenarios as to the outcome of the arbitration.  But it will take me much longer to discuss these four scenarios, and I think I have already said enough.  My purpose is just to give you a preview of what exciting articles you can read in the On-Line PLJ issue on the West Philippine Sea dispute.  So visit regularly the PLJ website at plj.upd.edu.ph.

Thank you and a good day to all.

“SEX” IN THE WORKPLACE: APPROACHES TO SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION IN THE WORKPLACE ABSENT AN ANTI-DISCRIMINATION LAW

*

Michael B. Ocampo**

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‘Judges shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes.’

-Canon 5, s. 1, New Code of Judicial Conduct for the Philippine Judiciary

Introduction

What does ‘sex’ mean under our Labor Code? What does it mean when it says that the State should ‘ensure equal work opportunities regardless of sex…’1? The Labor Code does not define the term, perhaps because it is simple enough – you are either a man or a woman – or is it?

In 2007, Rommel Silverio asked the Supreme Court to approve certain changes in his civil registry record. Rommel, born male, had undergone sex reassignment surgery and wanted to change his name to Mely and his sex to female, to reflect his gender identity. The Court denied Silverio’s petition saying that ‘sex’ under the civil registry laws refers to biological distinctions. Moreover, the Court reasoned that, to wit:

Sex is defined as ‘the sum of peculiarities of structure and function that distinguish a male from a female’ or ‘the distinction between male and female.’ Female is ‘the sex that produces ova or bears young’ and male is ‘the sex that has organs to produce spermatozoa for fertilizing ova.2

The Supreme Court said that in the absence of a contrary definition in the civil registry laws, ‘sex’ should be construed as it is commonly used. ‘The words ‘sex,’ ‘male’ and ‘female’ as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary.’3 (Emphasis Added) Does ‘all other laws’ include the Labor Code?

This paper argues that the Labor Code cannot but be read differently. The Code, specifically its Article 3, should be read to include lesbian, gay, bisexual, and transgender (LGBT) individuals under its anti-discrimination umbrella.

That LGBTs are protected under the Labor Code is far from being a settled matter.  In Ang Ladlad LGBT Party v. Commission on Elections4,the Supreme Court said that ‘laws of general application should equally apply to LGBTs’. However, it hastened to add that this finding (in a case involving election law) did not ‘imply that any other law distinguishing between heterosexuals and homosexuals5 under different circumstances would similarly fail.’6

Second, a plain reading of some of the provisions of the Code may lead to a conclusion that it proscribes disparate treatment and discrimination based on biological attributes and applicable to women workers only. For instance, the Code makes it illegal to discharge a woman on account of her pregnancy or while on leave or in confinement due her pregnancy.7 Clearly, the woman in such case is discriminated because she has a uterus.8

Third, anti-discrimination bills to protect LGBTs have continually been filed in Congress since the 1990s. All failed to pass. In the 12th Congress (2001-2004), a bill was passed by the House of Representatives9 but the Senate version was not even reported out of committee. There are also pending bills in the 15th Congress (2010-2013), but their chances of passing is difficult to ascertain, considering the strong opposition from the religious sector, particularly the Catholic Church leadership.10 The filing of these bills may be taken as proof that there is a lacuna in the law that needs to be filled – that the Labor Code, as it now stands, is blind to LGBT discrimination.

This paper11 extend jurisprudential basis to show that ‘sex’ in the Labor Code, must necessarily include LGBTs because:

(1)    a contrary interpretation would violate the Equal Protection Clause under the doctrine of relative constitutionality in Central Bank Employees Association Inc. v. Bangko Sentral ng Pilipinas12  (See Part IV);

(2)    sex discrimination prohibited in Article 313 of Labor Code certainly include discrimination due to sex or gender stereotyping – a form of discrimination recognized in scattered provisions of the Code and in jurisprudence. Anyone – homosexual, heterosexual, or bisexual, transgender, male or female – can be affected by such stereotyping and is therefore protected by the Labor Code (See Part V); and

(3)    a contrary interpretation  would violate our international obligations under, among others,the International Convention on Economic, Social, and Cultural Rights (Part VI).

Defining ‘Sex’: Understanding ‘Sexual Orientation’ and ‘Gender Identity’ 

Before proceeding, we need to clear up the definition of ‘sex’, ‘gender’, ‘sexual orientation’, and ‘gender identity’. Having clear working definitions is critical in understanding the scope of protection being sought here, i.e., who are covered by the protection and what kinds of acts are sought to be prohibited. Clearing up these concepts will also show us the intersection of sex and gender, which in turn, shows the link between sex-based discrimination and the disparate treatment of LGBTs.

Also, in the absence of an anti-discrimination law, judges and jurists will likely be asked to infer and deduce (the presence or lack of) public policy on LGBT discrimination from statutes and regulations14 that make use of some or all ofthese terms. These laws and regulations do not provide definitions or illustrations to guide those that will interpret them. Therefore, we have to rely on the fields of psychology, health, gender studies and human resource and labor relations, where these concepts have been extensively discussed in order to clarify their meanings.

Sex and Gender

‘Gender’ is often times interchanged with ‘sex’ during casual conversations and even in formal mediums (court decisions, journals, papers, etc.). ‘However, in scientific, medical, legal or political and even religious discourse, the discrepant use of the terms can lead to confusion and a lack of understanding.’15

‘Sex’, as defined in Silverio, refers to biological distinctions between male and female.  On the other hand, gender ‘refers to the socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women.’ ‘Male’ and ‘female’ are sex categories, whereas ‘feminine’ and ‘masculine’ are gender categories.16 But though ‘sex’ is not the same as ‘gender’, these concepts are intertwined, because traditional gender roles – activities, or the type of behavior that a person adopts or is expected to take up – is based on society’s conception of that person’s sex.  In Philippine society, for example, men are traditionally expected to be the breadwinner, whereas women are expected to be the homemakers, considering their ‘nurturing’ qualities.

Any discussion on sexual orientation and gender identity discrimination requires an understanding of sex and gender roles because discrimination against LGBTs is due primarily to their non-conformity to traditional gender roles and society’s expectation of what is a man and woman.

Sexual Orientation and Gender Identity

There is also confusion with regard to the concepts of sexual orientation and gender identity. The decisions of Philippine courts, for instance, show an imprecise understanding of these terms. In Ang Ladlad, for example, the Supreme Court interchanged ‘LGBTs’ with ‘homosexuals’ several times,17 although not all LGBTs are homosexuals.  Moreover, the Court seems to view ‘lesbians, gay, bisexuals, and transgender’ as categories of sexual orientations and unaware of their gender identity aspects.

‘Sexual orientation refers to one’s attraction to men, women, both or neither, whereas gender identity refers to one’s sense of oneself as male, female, or transgender18.’19 Two anti-discrimination House bills filed in the present 15th Congress recognize the distinctions between these two concepts. The definitions in House Bills 515 and 1483 mirror each other, thus:

Sexual orientation refers to the direction of emotional sexual attraction or conduct. This can be towards people of the same sex (homosexual orientation) or towards people of both sexes (bisexual orientation) or towards people of the opposite sex (heterosexual orientation).

Gender Identity refers to the personal sense of identity as characterized, among others, by manners of clothing, inclinations, and behavior in relation to masculine and feminine conventions. A person may have a male or female identity with the physiological characteristics of the opposite sex.20

A person may be heterosexual, homosexual or bisexual (her/his sexual orientation) and may have a male, female or transgender identity (his/her gender identity). There is no one-to-one correspondence between a sexual orientation and a particular gender identity, unlike popular depictions of LGBTs in the Philippines. For instance, some homosexual and bisexual men may be masculine and others are quite feminine. The same is true of homosexual and bisexual women.

On the other hand, transgender21 persons are not necessarily homosexuals.In Normal, a 2003 film, Roy Applewood (played by Tom Wilkinson) shocks his family and co-workers and sent ripples through his community, when he reveals that he intends to transition into a woman named Ruth. But Roy, though he identifies as female (i.e. his gender identity), does not have a homosexual orientation (i.e. not sexually attracted to males). ‘Usually people who are attracted women prior to transition continue to be attracted to women after transition, and people are attracted to men prior to transition continue to be attracted to men after transition.’22

As pointed out earlier, a common attribute among LGBTs is their gender non-conformity. They do not conform to traditional notions of male or female roles and the ‘natural’ or ‘proper’ sexual attractions that they should have or the type of behavior that they ought to manifest.23

The question is whether our labor laws, especially the Labor Code, prohibit discrimination against persons with such gender non-conforming attributes.

The Problem of Discrimination

The fear of discrimination is a shared experience among members of the lesbian, gay, bisexual, and transgender community anywhere in the world.24 The fear is that they may not be recognized for their efforts and the merits of their work; treated unfairly and differently in the workplace; and experience discrimination in hiring, promotion and provision of benefits or worse, suffer dismissal.

‘This is the essence of discrimination: forming opinions about others not based on their individual merits but rather their membership in a group with assumed characteristics,’ said Tom Hanks in the film Philadelphia, where he played a gay lawyer fired by his firm for his sexual orientation and for having AIDS.

A.   Extent of discrimination25

There are no statistics to give us the extent of sexual orientation and gender identity discrimination in the Philippines. The dearth of information is itself a sign of another facet of the problem. Government agencies that should be involved in issues of sexual orientation and gender identity discrimination – the Department of Labor and Employment, the National Labor Relations Commission, the Civil Service Commission, and even the Commission on Human Rights – do not aggregate reports of LGBT discrimination. Sexual orientation and gender identity discrimination is a category of workplace discrimination that has not become part of mainstream policy dialogues.

What we lack in figures is compensated by both anecdotal and documented cases of discrimination. Lesbian Advocates Philippines (LEAP!)26 documented 10 case studies of gender discrimination and found strong evidence of workplace discrimination against lesbians. ‘Discrimination can occur in the process of hiring, in the assigning of wages, in the granting of benefits and promotions, and the retention of lesbian employees’, the report said.27

In 2002, Newsbreak reported 4 accounts of discrimination against gay men, including that of Philip Castro:

[Castro], 27, thought he had bagged the job. Witty and confident, he engaged the woman interviewer in an animated discussion. He was applying as a medical representative for a big pharmaceutical firm and thought his warm personality would please the interviewer.

He had another reason to be confident. He had topped the aptitude and psychological tests earlier that day, besting some 30 other applicants. He was being presumptuous. The interviewer began asking him what he thought of gays entering the military. Dumbfounded, he replied that it was unfair to ban homosexuals from the Armed Forces.

Then she asked if I’m going to have a girlfriend, if I’m planning to have a family in the future, if I am willing to act like a manquestions which I thought were out of bounds. Those questions did not have anything to do with the job I was applying for.’ He knew he had lost the job. The company later sent its regrets.Castro knew he was rejected because he is openly gayalthough the company did not say so. He also knew that had he been a closet gay, he would have been a welcome addition to the company.28 (Emphasis Added)

Newsbreak observed that Castro’s experience is shared by hundreds of gay men. ‘Hundreds of jobless gays have been rejected outright or silently turned down, and given vague excuses why they are not fit for the job.’29

In 2009, four graduate students of the Ateneo de Manila University’s psychology department conducted a survey of 120 respondents (60 identified as heterosexuals and 60 identified as homosexuals). They found that homosexual respondents felt the need to work harder in order to prove their qualifications to their employers and that they are less prioritized in promotions compared to their straight30 colleagues.  They also thought that they were penalized more than straights for the same mistakes committed.31

B.    Official recognition of discrimination against LGBTs

In recent years, there had been a shift in government’s stand with respect sexual orientation and gender identity discrimination. From sheer silence, there are now a number of official government pronouncements recognizing discrimination faced by the LGBT community.

For instance, in an August 2010 forum, the director of the labor department’s Institute of Labor Studies observed that ‘much has already been written and debated on gender discrimination among women, but little has yet to be heard on discrimination against LGBTs. Despite their multifaceted contributions to many areas of Philippine life, these workers are still a marginalized group in the workplace.’32

After years of tepid support for LGBT rights protection, the Commission on Human Rights under Chairperson Leila de Lima took strong steps in support of the LGBT community, including filing a brief with the Supreme Court in support of the accreditation of the LGBT party list in Ang Ladlad LGBT Party v. Commission on Elections.33 De Lima, herself, said that LGBT community ‘remain[s] to be one of the sectors most vulnerable to human rights abuses, such as discrimination in the workplace and even harassment in educational institutions.’34

Even the Supreme Court noted ‘that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal.’35 ’[T]hrough the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle.’36

Official recognition of LGBT discrimination has a direct bearing on any future test case, as they can provide the factual basis, for the protection sought by the litigant and support the claim that LGBTs are discriminated as a class.

Equal Protection for LGBTs: Applying the Principle Relative Constitutionality to Article 3 of the Labor Code

 A.   Relative Constitutionality

In Central Bank Employees Association Inc. v. Bangko Sentral ng Pilipinas37, the Supreme Court was asked to decide on the constitutionality of the last proviso Section 15(c) Article II of Republic Act 7653 (the New Central Bank Act). It provides that the compensation and wage structure of Central Bank’s rank and file employees shall be in accordance with the rates prescribed under the Salary Standardization Law (Republic Act 6758).

The employees’ association presented an equal protection challenge to the Court, pointing out that laws passed subsequently to the Central Bank Act amended the charters of seven (7) other government financial institutions (GFIs)38 exempting the rank and file of these GFIs from the coverage of the Salary Standardization Law. The association argued that continuing application of the assailed proviso discriminated against the Central Bank rank and file vis-à-vis workers who are similarly situated in other GFIs.

The Supreme Court struck down the assailed section of Republic Act 6758. It said that though the last proviso of the Section 15 (c) of RA 7653 [i.e. dissimilar compensation schemes between rank and file and the officers of the Central Bank] was valid at the time it became law, it became void at a subsequent point of time, in light of ‘altered circumstances’ or ‘changed conditions’. The Court referred to this as the concept ofrelative unconstitutionality.39 The assailed proviso in relation the subsequent laws passed by Congress indirectly denied the Central Bank rank and file the equal protection of the laws.

The … subsequent enactments, however, constitute significant changes in the circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 16 (c), Article II of the Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the classification – albeit made indirectly as a consequence of the passage of eight40other laws – between the rank-and-file of the BSP and seven other GFIs. The classification must not only be reasonable, but must also apply equally to all members of the class.Theproviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make distinctions between persons who are without differences.41(Emphasis Added)

The Court explained that employees of government financial institutions have been traditionally treated as a distinct class from other government agencies.42 Now, as a result of several legislative acts, Congress created a subclass among GFI employees (i.e. the Central Bank’s rank and file. ‘Alikes are being treated as unalikes without any rational basis.’43

The Court explained that inequality of treatment suffered by the Central Bank rank and file cannot be justified on the assertion that the different benefits given to the rank-and-file rests on the policy determination by Congress. The assertion fails to appreciate that ‘what is at issue… is not the declared policy of each law per sebut the oppressive results of Congress’ inconsistent and unequal policy towards the [Central Bank] rank-and-file and of those of the seven other GFIs.

There are four (4) elements that were present when the Supreme Court applied relative constitutionality in Central Bank Employees Association:

(1)    There is a provision of law being assailed, that is valid on its face and as applied, at the time of its effectivity.

(2)    There are subsequent laws whose provisions are in pari materia to that of the assailed provision.

(3)    There is a different treatment of the persons covered in the assailed provision and the persons covered in the subsequent legislation, even though all of them belong to the same distinct class,resulting in ‘invidious discrimination’ against the first.

(4)    Subsequent legislation ought to provide benefits/protection to most or a substantial part of the same distinct class in order to be open to an attack for invidious discrimination.44

All these elements are present, if we look at Article 3 of the Labor Code in relation to recent legislation providing protections to LGBTs.

B.    Article 3 of the Labor Code

As explained earlier, the anti-discrimination clause in Article 3 of the Labor Code and its implementing articles fail to explicitly protect members of the LGBT community against workplace discrimination. This, by itself, does not make the said provision assailable on equal protection grounds.

However, since the Labor Code became effective, national policies had not been stagnant with respect to sexual orientation and gender identity discrimination.45 Legislation and administrative regulations protecting LGBT workers, both in the private and public sectors, have been put in place.

These subsequent laws and regulations have provided enforceable workplace protection for a substantial number of LGBT workers. Public sector employees, in general, are protected under Civil Service regulations. Female police officers and all public social workers are covered by specific legislation. In the private sector, workers living with HIV-AIDS and women are afforded similar protection.

C.    Subsequent Legislation Protecting LGBTs

Police Force

The Philippine National Police Reform and Reorganization Act of 1998 requires the National Police Commission (Napolcom) to ‘formulate a gender sensitivity program…to include but not limited to the establishment of equal opportunities for women in the PNP, the prevention of sexual harassment in the workplace, and the prohibition of discrimination on the basis of gender or sexual orientation.’46 (Emphasis Added)

One can argue that Section 59, above, only protects LGBT women (i.e. lesbians, bisexuals, and female-to-male transgender persons) in the PNP because it is premised on providing ‘equal opportunities for women’ and in light of the other sections in the same title where Section 59 is found – Section 58 (prioritization of women for recruitment)and Section 61 (on promotion of women in the force).  Moreover, Section 31, also in pari materia,requires that the promotion system ‘shall be gender fair and shall ensure that women members of the PNP shall enjoy equal opportunity of promotion.’ (Emphasis Added)

However, there is no doubt as to the enforceability of the non-discrimination clause in Section 59 because there is penalty clause under Section 60. Any personnel who violate the established rules and regulations regarding gender sensitivity and gender equality shall be suspended without pay for not less than thirty (30) days and shall undergo gender sensitivity seminar or training. If the personnel violate the rules more than twice, he/she shall be demoted in rank or dismissed from the PNP.

In view of these provisions in the PNP Reorganization Act, it is surprising to find that under Napolcom Memorandum Circular No. 2005-002, a police officer can be administratively discharged for sexual perversion, including ‘latent and overt homosexuality.’47 The memorandum places homosexuality under ‘neurological and psychiatric disorders’ that make a person unsuitable for service. This is exactly the type of discrimination – the unfounded perception that LGBT people are not fit to perform their jobs and public service due to their sexuality and identity – which Section 59 of the PNP Reorganization Act seeks to strike down. This invidious categorization of homosexuals in the memorandum circular is clearly ultra vires.

As an aside, the inclusion of the homosexuality as a psychiatric disorder is also not supported by science. As early as 1974, the American Psychiatric Association has removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders.48The American Psychological Association added its concurrence, saying in 1975 that ‘[h]omosexuality per se implies no impairment in judgement, stability, reliability, or general social and vocational capabilities.’ The American Psychological Association also urged mental health professionals ‘to take the lead in removing the stigma of mental illness that has long been associated with homosexual orientations.’49

 

Social Workers

Under the Magna Carta for Public Social Workers, public social workers have the right to be protected from ‘discrimination by reason of sex, sexual orientation, age, political or religious beliefs, civil status, physical characteristics/disability, or ethnicity…’50(Emphasis Added) Unlike the PNP Reorganization Act, this law protects all LGBT public social workers, regardless of their (biological) sex.

This right against discrimination is also enforceable and not a mere declaration of policy. Violation of this right may result in a fine of P20,000-40,000 or imprisonment of not more than one (1) year, or both.51

 

Civil Service Regulations

Civil Service Commission’s (CSC) Office Memorandum 29-2010, provides a system of procedure that prohibits discrimination against LGBTs applying for civil service examinations. ‘There should be equal treatment/regard accorded to them [LGBTs], leaving no room for feelings of discrimination. Unnecessary remarks or reactions should be avoided.’52

The Office Memorandum is premised on ‘upholding the principles of equality of rights and respect for the inherent dignity and worth of a human being regardless of gender identity and sexual orientation.’53

The CSC Revised Policies on Merit Promotion Plan also states that there shall be ‘no discrimination in the selection of employees on account of gender, civil status, disability, religion, ethnicity, or political affiliation.’54

According to Noreen Boots Gocon-Gragasin, CSC Director for Personnel Management and Development, there has been no case in which the CSC has been asked to interpret the said section of the Merit Promotion Plan. Nevertheless, it is viewed as a protection for LGBTs bureaucracy within the Commission.55

Philippine AIDS Prevention and Control Act of 1998 

Republic Act 8504, which covers the private and public sectors, prohibits employment discrimination against people who actually have, suspected or perceived to have the human immunodeficiency virus (HIV).

‘Discrimination in any form from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is prohibited. Termination from work on the sole basis of actual, perceived or suspected HIV status is deemed unlawful.’56 Neither shall ‘the right to seek an elective or appointive public office…be denied to a person with HIV’.57

This Act is very relevant, especially to male homosexuals and bisexuals considering that men-who-have-sex-with-men are one of the groups most vulnerable to HIV infection.58 

Magna Carta for Women

Public and private entities and individuals are also liable for acts of sexual orientation and gender identity discrimination under the recently-passed Magna Carta for Women.59 Government officers can be charged administratively. If a private organization or individual commits this violation, the person directly responsible for the violation shall be liable to pay damages.60

Section 4(b) of the Act defines ‘discrimination against women’ as:

[A]ny gender-based distinction, exclusion, or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.

It includes any act or omissionincluding by law, policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rights and their access to and enjoyment of opportunities, benefits, or privileges.61 (Emphasis Added)

Protection for LGBTs is found in the proviso of Section 4(b) which states that ‘discrimination compounded by or intersecting with other grounds, status, or condition, such as ethnicity, age, poverty, or religion shall be considered discrimination against women.’ (Emphasis Added)

‘[O]ther grounds, status, or condition’ in Section 4(b) covers sexual orientation, in view of Section 3 of the same act, which lists sexual orientation as one of the ‘status as established by human rights standards.’ Section 3 reads:

 ’All individuals are equal as human beings by virtue of the inherent dignity of each human person. No one, therefore, should suffer discriminationon the basis of ethnicity, gender, age, language, sexual orientation, race, color, religion, political, or other opinion, national, social, or geographical origin, disability, property, birth, or other statusas established by human rights standards.’62(Emphasis Added)

The Magna Carta also requires the State to pursue measures to eliminate discrimination against women in the military, police and similar services. However, similar to the PNP Reform and Reorganization Act, the anti-discrimination clause under the Magna Cartamay be construed as applicable only to lesbians, bisexual women, and female-to-male transgenders.

D.   Subsequent legislation and regulations results in unequal protection of the laws for LGBTs

Despite the benefits and protection provided by the preceding laws and regulations to LGBTs, their presence in the books actually raise an equal protection question. What distinguishes LGBTs working in the fields protected by these legislation from others working in sectors with no similar anti-discrimination protection? Does withholding the said guarantees to some LGBT workers constitute disparate treatment that can be struck down in an equal protection challenge? Specifically, does the failure of Article 3 of the Labor Code to provide protection to LGBTs amounts to a violation of the equal protection of the law in light of cumulative effects of subsequent legislation and regulations protecting most workers from sexual orientation and gender identity discrimination?

Like in Central Bank Employees Association, we are not looking at the ‘specific exercise in and by itself’ of Article 3 of the Labor Code but also ‘as to the legal effects brought about by [subsequent] separate [policy] exercises – albeit indirectly and without intent.’63

The laws and regulations that came subsequent to the Labor Code provided protection to substantial members of the LGBT community. In fact, LGBT males in the private sector and in the military, police and similar services are the only ones left without protection against discrimination.  These policy changes have resulted in altered conditions that created a subordinate class among LGBTs, who are still left without protection and recourse in law against invidious practices by employers – a case of invidious discrimination.

The discriminatory impact on some LGBTs, though it occurred gradually and progressively, cannot stand constitutional muster64  and ought to be struck down on equal protection grounds, in line with Central Bank Employees Association. It follows that Article 3 of the Labor Code can no longer be interpreted in the traditional way as to exclude protection from LGBTs, without running afoul of the Equal Protection Clause.

One may argue that in Central Bank Employees Association, all the laws construed by the Court were special legislation. In Central Bank Employees Association, a law that specificallygovern the employee remuneration of one organization was interpreted vis-à-vis other laws that specifically cover the employees of distinct though similar organizations. Here, we are arguing that the operation of a provision of a general law (i.e. the Labor Code) became unconstitutional with the passage of several special laws. But a closer reading ofCentral Bank show that the special nature of the laws construed in the case did not play a role in arriving at the Court’s ruling. What mattered was that the laws had an impact on a distinct class of persons and that their progressive effect was that a segment of that class was treated differently from the rest.    

LGBTs as a distinct class

Questions may also be raised whether or not LGBTs belong to a distinct class that can be given protection via an equal protection challenge. Remember that in Ang Ladlad, a plurality of the Supreme Court justices refused to accord a class status to LGBTs.

However, the majority decision did not necessarily close the door to a different finding in the future. Justice Del Castillo said that the Court was ‘not prepared to single out homosexuals65as a separate class meriting special or differentiated treatment. [The Court has] not received sufficient evidence to this effect,and it simply unnecessarily to make such a ruling‘ in the [present] case.66 (Emphasis Added)

A test case should take advantage of these openings in the majority decision. The record of the case must be filled with studies, statistics and expert testimonies showing that LGBTs constitute a discriminated class and are powerless [under the law] to defend their jobs and their right to a decent life. The Court must also be reminded of its own findings ‘that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal’67 and that ‘through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval.’68

By proving the history and extent of discrimination faced by LGBTs, the group stigma suffered its members, and the urgent need to provide legal remedies for this vulnerable sector, the Court may be pressed into establishing a protected class status for LGBTs, which the majority in Ang Ladlad thought unnecessary to do in that instance.

In addition, recent policy developments would show the Court that the legislature has seen it fit to classify LGBTs as belonging to the same class and meriting special state protection. Section 6 of Republic Act 9851 (Philippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), for instance, includes among other crimes against humanity ‘[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law…’ (Emphasis Added). It shows that the State is of the opinion that LGBTs can be targeted or suffer harm as part of a distinct  group.

Sex Stereotypes Against LGBTs: Proscribed under Article 3 of the Labor Code

As said earlier, the Labor Code only uses the word ‘sex’ in its anti-discrimination clause (‘The State shall…ensure equal work opportunities regardless of sex, race or creed…’).69 In its dictionary definition, sex is a categorization based on physiological attributes ‘such as sex chromosomes, gonads, sex hormones, internal reproductive structures, and external genitalia.’70

Indeed, there are cognate provisions of the Labor Code that prohibits discrimination based on biological distinctions.  For instance, the Code makes it illegal to discharge a woman on account of her pregnancy or while on leave or in confinement due to her pregnancy.71 It is also illegal to discharge or refuse admission of such woman upon returning to her work for fear that she may be pregnant again.72 Contractual stipulations against marriage – unlawful under Article 136 of the Labor Code73 – have also been used to discriminate against women, who may become fact that women have uteri; whereas men have none. However, to say that the Article 3 only prohibits discrimination based on biological attributes is incorrect.

  1. Discrimination Due to Sex Stereotyping

Statistics do provide evidence of discrimination rooted in biological attributes. Government data show that unemployment among women aged 15-34 is higher compared to men. These point to an implied bias against women, most likely due to higher costs incur by employers in paying for maternity benefits, paid leaves and other benefits associated with motherhood.74

However, ‘biology provides little insight into the boundaries of sex discrimination. Plaintiffs can rarely claim discrimination on the basis of actual body parts; cases involving the woman’s uterus seem to be the only examples. Stereotypes at the heart of sex discrimination…cannot be explained by descriptions of a plaintiff’s genitalia alone.’75

Biology does not fully explain why women face discrimination in hiring and why they are often the first to get laid off.76 It would not explain why men77 would be banned from being hired as flight attendants78 or why women were disallowed entry to the Philippine Military Academy before 1993.79 It would not entirely explain why it is difficult for the members of one sex to penetrate an industry where the other sex is prominent.  

These forms of discrimination are actually grounded on society’s expectations of women and men – their gender80 rolesGender roles refer to ‘socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women’.81 Over time, societies have developed stereotyped roles or characteristicsassigned to each sex, ‘a set of unexamined images peopled hold of [each] group; in many cases, those images do not hold true for individual members.’82 Men are traditionally viewed as strong, rational, brave, aggressive, independent and other possessive of other traits considered masculine.83 Women on the other hand are considered weak, emotional, timid, and indecisive84; attuned to their feelings; soft in their movements; obsessed with having children; etc.

Women, more than men, are prone to sex stereotyping or what Justice Regalado calls the ‘hubristic conceit that women constitute the inferior sex.’85 Women usually occupy the lower positions in both private and public sectors and women in the same occupational group receive lower compensation than their male counterparts. ‘The stereotyping of male-female jobs influences employment policies and practices, which not even high educational attainment has succeeded in overcoming.’86

In addition, sex stereotyping can create an invincible line that relegates women to particular job descriptions. For instance, the Asian Development Bank cited data which showed industry level segregation of employment along gender lines. Its 2004 Philippine Country Gender Assessment noted that the segregation ‘follows the socially ascribed roles and responsibilities of women and men.’ Women were found dominant in industries, where the work seems to be an extension of their social reproduction function in the home (e.g. teaching, health and social work, and domestic/housekeeping jobs).87

A purely biological interpretation of rules against sex-based discrimination leaves workers, who experience discrimination due to sex stereotypes without remedy. It would make our present anti-discrimination rules such as the Labor Code’s Article 3 almost useless in light of present realities.

  1. Sex discrimination clause also protect against sex stereotyping

In Price Waterhouse v. Hopkins88,the United States Supreme Court effectively set aside the purely ‘biological approach’ to sex discrimination.89 It also established that discrimination arising from sex stereotypes is prohibited by Title VII of the Civil Rights Act of 196490, which has language similar to Article 3 of our Labor Code.

Hopkins, a senior manager at Price Waterhouse was denied consideration for partnership. Apparently, some partners did not deem Hopkins feminine enough. One partner described her as ‘macho’; another suggested that she was ‘overcompensated for being a woman’; and another advised her to ‘take a course at a charm school.’  The partner, who was given the responsibility of explaining to Hopkins why she would not be considered for partnership, suggested that she ‘walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.’

Hopkins filed a discrimination claim under Title VII, which provides that a worker’s race, color, religion, sex, or national origin is not relevant in the hiring, evaluation and compensation of said worker. Under Title VII, it is unlawful employment practice to discriminate on such grounds. (It can be said that Title VII serves the same purpose as Article 3 of our Labor Code.)

The U.S. Supreme Court found that Hopkins experienced sex stereotyping, which can be remedied under Title VII. ‘As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’’91 (Emphasis Added)

But does protection against sex stereotypes extend to LGBTs and other gender non-conforming individuals (i.e. those who deviate from traditional gender roles)?

  1. LGBTs also suffer from discrimination arising out of sex stereotypes; hence, covered by prohibition against sex-based discrimination

Although sexual orientation and gender identity was not an issue in Price Waterhouse, LGBT plaintiffs, who can show that they experienced discrimination as a result of similar gender stereotyping, may also have a cause of action under anti-sex discrimination rules.92

LGBTs also ‘reject traditional assumptions about the proper relationship between men and women’ and they ‘cast doubt about the validity of accepted male and female roles.’ They are ‘people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention.’93 Discrimination against LGBTs ‘therefore constitutes gender discrimination because it penalizes individuals who do not conform to stereotypical ideas about the way men and women should behave.’94A transgender woman,95 for example, face discrimination because of her physical appearance and behavior (e.g. clothing, manner of speaking, occupation) do not conform to society’s expectation of males and for not identifying as male in accord with her biological attributes (i.e. male sex).

In Smith v. City of Salem,96 the plaintiff was a lieutenant in the Salem City fire department, with 7 years of service under his belt. Smith, who was born male, was diagnosed with Gender Identity Disorder (i.e. there is a disjunction between a person’s sexual organs and sexual identity). Smith began ‘‘expressing a more feminine appearance on a full-time basis’’97 and [her] co-workers began questioning [her] appearance, commenting that Smith’s appearance and mannerisms were not ‘masculine enough’.98 Smith talked to [her] immediate supervisor about her diagnosis and treatment so that the latter can address the comments and questions from [her] colleagues.  The supervisor, despite promising not to divulge the substance of his discussion with Smith, informed the fire department chief. The latter met with the city Law Director, ‘with the intention of using Smith’s transsexualism and its manifestations as a basis for terminating [her] employment.’99 The fire department chief and supervisor then met with the city’s executive body to ‘devise a plan for terminating [her] employment.’100 In the meeting, they decided to require Smith to undergo three separate psychological evaluations, hoping that the humiliation would force her to resign or not to comply. In case of the latter, the City can fire Smith for insubordination.101  Smith got wind of the plan and filed a Title VII complaint against the city.

A US district court denied Smith’s claim and ruled that the sex discrimination prohibition under Title VII did not cover transsexual persons. The US Court of Appeals reversed the decision in a landmark ruling. The 6th Circuit noted the holding in Price Waterhouse that the reference to ‘sex’ in Title VII ‘encompasses both biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.’102 Under Price Waterhouse, ‘[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination,irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.’103 (Emphasis Added)

The finding that discrimination due to gender non-conformity is impermissible ‘regardless of the cause of that behavior’ means that gender non-conformity whether due to a person’s sexual orientation, gender identity, or even medical condition, would be covered by sex discrimination prohibitions.

This finding of the Smith court prevents a doughnut hole in the protection against sex-based discrimination.  M. A. Case  observed that ‘[e]ven if legislative protection from discrimination on grounds of homosexuality could be achieved, this would not solve the problem of effeminate heterosexuals … Moreover, even with protection for sexual orientation, employers may still discriminate between effeminate and non-effeminate gay as well as straight males.’104 On the other hand, if there is gender discrimination protection only, a lesbian who is masculine-gendered may be protected from discrimination but the same person may not be protected against dismissal due to her sexual relations with another woman in the absence of protection against sexual orientation discrimination. In other words, the expansion of Hopkins in Smith protects homosexuals, bisexuals, transgender people, as well as heterosexual persons. No one is left behind.

A similar reading of the Labor Code is apropos, if our courts were to have a clear understanding of the interconnections between sex discrimination and sex stereotypes. Such construction of the Code will make its anti-discrimination provisions operative and effective105 in dealing with the roots of sex discrimination. It is also in line with the policy adopted by our courts to extend the Labor Code’s applicability ‘to a greater number of employees to enable them to avail the benefits of the law, in consonance with the avowed state policy to give maximum aid and protection to labor.’106

It helps that in a number of cases, our Supreme Court had found US courts’ interpretation of Title VII persuasive when dealing with sex discrimination cases.107 Moreover, sex stereotyping as a form of discrimination, may not really an entirely novel concept for our highest court. For example, in an administrative issuance (on sexual harassment), the Supreme Court recognized the link between sex stereotyping and discrimination. In discussing the rationale for the issuance, the Court noted that the Philippines is a party to the Convention on the Elimination of all Forms of Discrimination against Women, which end is ‘to achieve elimination of all prejudices and customs and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or onstereotyped roles for men and women.’108 (Emphasis Added) Interestingly, the Court added that Article 3 of the Labor Code complies with this mandate.

Obligations under International Law to Protect LGBTs

  1. Yogyakarta Principles

On 26 March 2007, a group of international human rights experts (including UN special rapporteurs on various aspects of international political, economic, social and cultural rights), jurists, academics and civil society advocates launched Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.109

According to Michael O’Flaherty, the rapporteur for the experts’ meetings that resulted in the Yogyakarta Principles, ‘the Principles are intended as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity.’110 The experts, who participated in the drafting of the Principles, agree that the Principles reflected the existing state of international human rights law with respect to gender identity and sexual orientation discrimination but the same may have to be revised as states incur more obligations in the evolution of human rights law.111

Principle 12 (Right to Work) states:

Everyone has the right to decent and productive work, to just and favourable conditions of work and to protection against unemployment, without discrimination on the basis of sexual orientation or gender identity.

States shall:

a)        Take all necessary legislative, administrative and other measures to eliminate and prohibit discrimination on the basis of sexual orientation and gender identity in public and private employment, including in relation to vocational training, recruitment, promotion, dismissal, conditions of employment and remuneration;

b)        Eliminate any discrimination on the basis of sexual orientation or gender identity to ensure equal employment and advancement opportunities in all areas of public service, including all levels of government service and employment in public functions, including serving in the police and military, and provide appropriate training and awareness-raising programmes to counter discriminatory attitudes.

In Ang Ladlad, however, the Supreme Court refused ‘at this time’ to declare the Yogyakarta Principles as containing norms binding on the Philippines. ‘There are declarations and obligations outlined in the said Principles which are not reflective of the current state of international law, and do not find basis in any sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.’112

This holding does not absolutely bar the application of the Yogyakarta principles in a case, involving employment discrimination.

First, the Court did not say that all the declarations and obligations in the Principles are not reflective of the current state of international law and have no basis under Article 38(1) of the ICJ Statute. In fact, it only cited Principle 3 (The Right of Recognition Before the Law) as one such non-binding norm. This is found in footnote 52 of the decision. In the footnote, the Court highlighted subparagraphs b and c of Principle 3, which say that it shall be the obligation of states to ‘take all necessary legislative, administrative and other measures’ to implement the principle. Since the subparagraphs still call for subsequent state enactments, the Court may have interpreted them to mean that the Principle 3 is not immediately binding to the Courts. (I will argue later that Court’s view on Principle 3 is not applicable to Principle 12, in view of its past decisions.)

Second, the Court also pointed out that its holding on the non-binding nature [of some] of the Yogyakarta Principles may have been due to lapses on the part of the petitioner. ‘Petitioner has not undertaken any objective and rigorous analysis of these principles of international law to ascertain their true status.’113

  1. Principle 12 (Right to Work)

A future test case grounded on Principle 12 of the Yogyakarta Principles, should take the cues provided by the holding in Ang Ladlad.

Principle 12, like Principle 3, also contains a ‘take all necessary legislative, administrative and other measures’ clause, which the Court may again construe as basis for declaring the Principle 12 as non-binding.

However, it should be pointed out that the nothing in the Principles and the accompanying recommendations ‘should be interpreted as restricting or in any way limiting the rights and freedoms of such persons as recognised in international, regional or national law or standards.’114 Second, Principle 12 is grounded on international covenants such as the ICESCR (which the Philippines has ratified) and general principles of international law already recognized by Supreme Court as part of the law of the land:

International law, which springs from general principles of law,likewise proscribes discrimination. General principles of law include principles of equity,i.e., the general principles of fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation — all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.115(Emphasis Added)

It follows that Principle 12 has basis among sources of international law enumerated under Article 38(1)116 of the Statute of the International Court of Justice, unlike the findings of the Court in Ang Ladlad, with respect to Principle 3.

Specific attention should be given to the Court’s recognition of the non-discrimination principle in the International Convention on Economic, Social, and Cultural Rights, which the Philippines signed on 19 December 1966 and ratified on 7 June 1974.117

In General Comment No. 18, the UN Committee on Economic, Social and Cultural Rights opined that Article 2(2)118 of the Convention and Article 3119, in relation to the Right to Work under Article 6120 of the Convention – ‘prohibits any discrimination in access to and maintenance of employment on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, or civil, political, social or other status, which has the intention or effect of impairing or nullifying exercise of the right to work on a basis of equality.’121 (Emphasis Added)

Article 2.2, which lists invidious categories of discrimination as including ‘sex’ and ‘other status’. Presumably, since the CESCR distinguishes ‘sex’and ‘sexual orientation’ in its General Comments, it locates sexual orientation within the rubric of ‘other status’. The CESCR, in the General Comments, also invokes the article addressing equal rights of men and women, Article 3, as a basis for its prohibition of sexual orientation-related discrimination. This linkage of the categories of sex and sexual orientation-related discrimination is discussed subsequently in the context of the practice of the Human Rights Committee (HRC).122

In recognizing General Comment No. 18, the Court would not be breaking new ground. Comments of UN committees with regard international human rights instruments were already given weight by the Supreme Court in Ang Ladlad. It accepted the opinion of the Human Rights Committee in Toonen v Australia that the reference to ‘sex’ in Article 26[123 of the International Convention on Civil and Political Rights should be construed to include 'sexual orientation'. The Court used the Committee’s opinion to support its decision to allow the participation of Ang Ladlad LGBT party in the 2010 elections. The Court said that the decision is in accord with the Philippines’ international obligation to uphold the principle of non-discrimination expressed in Article 26.124 The Court also identified other UN bodies that have declared sexual orientation discrimination as prohibited under various international instruments, even including General Comment No. 18.125

Final Words

  1. The Need for Test Cases 

Brown v. Education126brought the demise of school segregation in the United States. 'In the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal', said the unanimous Court. With Brown, the almost six decade precedent, Plessy v. Fergusson,127 was set aside in favor of a fairer and more equal society. But reading through the decision, we missed out the story behind the case and the people who struggled to make it happen.

In 1931, the National Association for the Advancement of Colored People (NAACP) asked Nathan Margold, a protégé of Harvard Professor and later US Supreme Court Justice Felix Frankfurter, to come up with a report on how to legally challenge school segregation. He came up with a 219-page document which became the battle plan for NAACP counsels led by Thurgood Marshall (also appointed to the US Supreme Court as the first African-American justice) in filing multiple lawsuits against states with segregation policies, a process that culminated in Brown.128  To pursue the strategy, the NAACP had to recruit plaintiffs in various school districts 'who had the courage and fortitude to face hostility from whites and delays in court.'129 They found this in Linda Brown and her family.

The Brown story tells us that to attack the very heart of discrimination is a formidable task. And it can only be possible, if there are people, who are willing to stand up and go through the difficult process of litigating for their rights.

Germaine Leonin of the Rainbow Rights Project laments the dearth of cases being filed by LGBTs, who are discriminated in their workplaces. Fear of reprisals and embarrassment and the costs of pursuing litigation are daunting factors for prospective plaintiffs, according to her.130 But these are hindrances that are not insurmountable. Already, there are groups and networks that can provide legal support for aggrieved LGBT workers; there are also organizations that can provide social support and networks.

But perhaps the biggest fetter to testing the legal waters – the elephant in the room – is society’s prejudices against LGBTs. 'If gays are granted rights, next we’ll have to give rights to prostitutes and to people who sleep with St. Bernards and to nailbiters,' said Anita Bryant, who, among other things campaigned for a law banning homosexuals from teaching in California schools. Our labor arbiters, judges and justices may not be entirely immune from similar biases.

B.             Changing Judicial Attitudes Toward LGBTs

Recent decisions of the Supreme Court, however, should encourage LGBT litigants. The decision in Ang Ladlad, which recognized an LGBT party’s equal right to participate in the political process, is especially significant. It is the first equal protection challenge involving LGBT rights that was upheld by the Supreme Court, using both international law and domestic legislation.

The Ang Ladlad court, in line with Estrada v. Escritor, also said that religious and personal moral beliefs, which more often than not, are the roots of gender stereotyping of and discrimination against LGBTs131, cannot be a basis for a public policy that furthers disparate treatment of its members. ‘[G]overnment must act for secular purposes and act in ways that have primarily secular effects.’132

The Ang Ladlad court is clearly of the opinion that there is no secular and public policy to support discrimination against LGBTs. ‘[T]he Philippines has not seen fit to criminalize homosexuality. Evidently, therefore, these ‘generally accepted public morals’ [as asserted in the assailed decision of the Commission on Elections, grounded on Judeo-Christian and Muslim morality] have not been convincingly transplanted into the realm of law.’133

For many of people who do not hold favourable views of LGBTs, theirs involved deep and profound moral and religious convictions, which are covered by constitutional protections on the free exercise their faith134 and free speech.135 But as the US Supreme Court said when it struck down a Texas sodomy lawin Lawrence v. Texas136, ‘[t]hese considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the…law. Our obligation is to define the liberty of all, not to mandate our own moral code.’ ‘Some people may find homosexuality and bisexuality devious, odious, and offensive. Nevertheless, private discrimination, however, unfounded, cannot be attributed or ascribed to the State.’137

 

  1. Recognition of LGBT Privacy Rights and their Right to Personal Dignity

Finally, the Court had been invalidating government regulations that infringed on the sexual relations of consenting adults, saying that these violated the privacy rights and personal dignity of individuals.138

In City of Manila v. LaguioJr.139, the Court invalided a city ordinance prohibiting the operations of motels and inns and similar establishments. Citing Lawrence v. Texas, the Court said that there are intimate and personal choices, including matters like sexual intimacy, that the State should not encroached upon in line with the constitutional protection of the person’s autonomy.  ‘Motel patrons who are single and unmarried may invoke this right to consummate their bonds in intimate sexual conduct within the motel’s premises – be it stressed that their consensual sexual behavior does not contravene any fundamental state policy. Adults have a right to forge such relationships with others in the confines of their own private lives and still retain their dignity as a person. The liberty protected by the Constitution allows persons to make this choice.

This holding was reiterated in White Light Corporation v. City of Manila, where the Supreme Court invalidated another Manila City ordinance, which prohibited short-time admission and rate in hotels, motels, inns and similar establishments. The ordinance was premised on the curtailment of certain sexual behavior, including prostitution, adultery and fornications. ‘Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults is constitutionally protected.’140 (Emphasis Added)

The reference to Lawrence v. Texas141 made by the Court in City of Manila v. LaguioJr. should be highlighted by equality advocates. Lawrence is important for its acknowledgment that homosexual relationships are protected from State intrusion on the same privacy ground as those in heterosexual relationships. ‘ ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the [Due Process Clause]. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.’ Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’142 If employers are allowed to fire workers for their sexual relationships with persons of the same or both sexes and state agencies uphold such dismissals, are not they in essence infringing on the right of their employees to autonomy on matters deeply personal? In upholding such dismissals, does not the State become an accomplice to these intrusions into people’s bedrooms?

Indeed, jurisprudence during the first decade of 21st century is turning out to be a watershed for LGBT advocacies. For the first time, LGBT group rights as well as individual rights of its members have been discussed by our courts.  In the future, courts are wont to turn a blind eye on the travails of LGBTs. After all, the recently promulgated ethical guidelines for the Judiciary calls on judges ‘to be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes.’143

‘If I have seen further it is by standing on the shoulders of giants,’ wrote Isaac Newton in 1675.144 In the field of law, we stand on precedents. We stand on the shoulders of Linda Brown, the activists of Ang Ladlad LGBT Party, and others like them who had succeeded in making judges and the law see further. Oh, where are the rest of them?


  • * Awardee, Perfecto V. Fernandez Best Paper in Labor Law (2011). Cite as Michael B. Ocampo, ‘Sex’ in the Workplace:  Approaches to Sexual Orientation and Gender Identity Discrimination in the Workplace Absent an Anti-Discrimination Law86 Phil L.J.1, (page cited) (2011)
  • ** B.S. Political Science, University of the Philippines Manila; Juris Doctor, College of Law, University of the Philippines. Researcher, Action for Economic Reforms.
  1. Pres. Dec. No. 442 (1974), art. 3. This is the Labor Code of the Philippines.
  2. Silverio v. Republic (hereinafter ‘Silverio’),G.R. No. 174689, October 19, 2007.
  3. Id.
  4. (hereinafter ‘Ang Ladlad’), G.R. 190582, 618 SCRA 32, 64-65, April 08, 2010.
  5. The use of the term ‘homosexual’ and not ‘LGBT’ may have been due to a lapse by theponente, considering that the he began the paragraph with reference to the act of the COMELEC ‘differentiating LGBTs from heterosexuals.’
  6. Ang Ladlad, supra note 4.
  7. Pres. Dec. No. 442, art. 137(2).
  8. The additional costs that employers incur when an employee becomes pregnant (e.g. salary of temporary replacement worker, cost of the loss of expertise provided by the pregnant employee, maternity benefits) are the main reasons for discrimination against the hiring of women or their promotion to top level positions.
  9. This bill was filed by then Akbayan Partylist Representative Loreta Ann Rosales. She is now the Chair of the Commission on Human Rights, which has become more vocal with respect to human rights protection for LGBTs.
  10. International Gay & Lesbian Human Rights Commission, Philippines: Religious Opposition Stalls Progressive Legislation (2008), available at http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/29.html. 3-4. Catholic organizations have filed position papers in Congress, opposing anti-discrimination bills. They include Pro-Life Philippines and Courage (a Catholic ministry with the goal of supporting people with same-sex attractions to ‘[l]ive chaste lives in accordance with the Roman Catholic Church’s teaching on homosexuality’). See Pro-Life Philippines, Position Paper on House Bill 956, available at http://www.prolife.org.ph/news/index.php/2010/01/position-paper-on-house-bill-956/ (last visited: March 22, 2011); Courage Philippines, Addendum on (sic) the Position Paper of Courage Philippines on House Bill 956 and Senate Bill 11 and other similar bills (2010), available at http://couragephilippines.blogspot.com/search/label/anti-discrimination%20bill (last visited: March 22, 2011).
  11. A caveat: this paper should not be interpreted to mean that the anti-discrimination bills that are pending in Congress are superfluous. The approaches discussed here are proposed and needed exactly due to the absence of such legislation.
  12. (hereinafter ‘Central Bank Employees Assoc’) G.R. 148208, 446 SCRA 299, Dec. 15, 2004.
  13. It is the State’s policy to ‘afford protection to labor, promote employment, ensure equal work opportunities regardless of sex, race, or creed…’
  14. Part IV provides a more extensive discussion of these laws and regulations.
  15. Milton DiamondSex and Gender are Different: Sexual Identity and Gender Identity are Different, 7(3) Clinical Child Psychology and Psychiatry 320, 321 (2002).
  16. World Health Organization, What do we mean by ‘sex’ and ‘gender’?available at http://www.who.int/gender/whatisgender/en/ (last visited: March 1, 2011). 3.
  17. Ang Ladlad, supra note 4, at 60-61, 65.
  18. ‘[‘Transgender’] does not exclusively refer to transsexual persons, i.e. those who are transitioning or have transitioned from one gender to another; all transsexual persons are transgender, but not all transgender persons are transsexual. A transgender person is anyone who fully accepts a gender identity–androgynous, hermaphroditic, intersex, transsexual, third gender, bigender, or otherwise gender non-conformist–does not match his or her assigned gender.’ Tom Head, Transgender, ABOUT.COM, available at http://civilliberty.about.com/od/gendersexuality/g/transgender.htm (last visited: March 2, 2011).
  19. American Psychological Association, Gender Variance, and Intersex Conditions,Answers to Your Questions About Transgender Individuals and Gender Identity, 1-2 (2006),available at http://www.lgbt.ucla.edu/documents/APAGenderIdentity.pdf (last visited: 21 January 2012).
  20. H. No. 515, 15th Cong. 1st Sess. (2010), Sec. 3(a); H. No. 1483, 15th Cong. 1th Sess. (2010), Sec. 3(a).Both bills were filed by party-list representatives. HB 515 was filed by Representatives Kaka Bag-ao and Walden Bello of Akbayan, while HB 1482 was filed by Representatives Teodoro Casiño and Neri Colmenares of Bayan Muna.
  21. ‘An umbrella term for people whose gender identity and/or gender expression differs from the sex they were assigned at birth. The term may include but is not limited to: transsexuals, cross-dressers, and other gender-variant people. Transgender people may identify as female-to-male (FTM) or male-to-female (MTF). Use the descriptive term (transgendertranssexualcross-dresser, FTM or MTF) preferred by the individual. Transgender people may or may not choose to alter their bodies hormonally and/or surgically.’ See Gay and Lesbian Alliance Against Defamation, Inc., Media Reference Guide,8(2010), available at  http://www.glaad.org/files/MediaReferenceGuide2010.pdf (last visited: March 20, 2011).
  22. American Psychological Association supra note 20, 2 (2006).
  23. See Melinda Chow, Smith v. City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination Under Title VII, 28 Harv. J.L. & Gender 207, 215 (2005).
  24. Employment discrimination is just one of the forms in which LGBTs are mistreated in various parts of the world. Amnesty International notes that ‘…millions of people across the globe face execution, imprisonment, torture, violence and discrimination because of their sexual orientation or gender identity. The range of abuses is limitless: women raped to ‘cure’ their lesbianism, sometimes at the behest of their parents; individuals prosecuted because their private and consensual relationship is deemed to be a social danger; loss of custody of their children; individuals beaten by police; attacked, sometimes killed, on the street – a victim of a ‘hate crime’; regular subjection to verbal abuse; bullying at school; denial of employment, housing or health services; denial of asylum when they do manage to flee abuse; raped and otherwise tortured in detention; threatened for campaigning for their human rights; driven to suicide; [and] executed by the state.’ See Amnesty International, Sexual Orientation and Gender Identity, available at http://www.amnesty.org/en/sexual-orientation-and-gender-identity (last visited: March 3, 2011). 1-3. For reports of discrimination and hate crimes against LGBTs around the world, See Michael O’Flaherty & John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the Yogyakarta Principles, 8(2) Hum. Rts L. Rev. 207, 208-214 (2008).
  25. The evidence of discrimination provided herein is preliminary. Any test case to remedy sexual orientation and gender identity discrimination will require more extensive data and information and testimony of experts (sociologists, human resource managers, and others) in order to clearly put on record the ways LGBTs can be discriminated in the workplace.
  26. LEAP! is a non-government organization (NGO) that advocates for lesbian rights since 1990.
  27. Lesbian Advocates Philippines, Unmasked: Faces of Discrimination Against Lesbians in the Philippines 140 (2004).
  28. Aries Rufo, Silent Discrimination against gays (2002), available at http://www.newsbreak.ph/2002/07/21/silent-discrimination/
  29. Id.
  30. i.e. heterosexuals.
  31. Kristine Concordia et al., No gays allowed, Phil. Daily Inquirer, Feb 22, 2009, availableathttp://business.inquirer.net/money/features/view/20090222-190431/No-gays-allowed (last visited: January 21, 2012). 2-4.
  32. Department of Labor Employment, DOLE holds labor forum on workplace and gender discrimination (2010), available at http://www.dole.gov.ph/secondpage.php?id=1296 (last visited: January 21, 1012). 6.
  33. The Comelec denied the right of Ang Ladlad LGBT Party to run in the party-list elections because, inter alia, it advocates sexual immorality. The LGBT party questioned the ruling by filing a petition for certiorari before the Supreme Court. See Part IV for a discussion of Ang Ladlad supra note 4.
  34. CHR vows to promote gay, lesbian rights, Phil. Daily Inquirer, Dec 6, 2008, available at http://newsinfo.inquirer.net/breakingnews/nation/view/20081206-176498/CHR-vows-to-promote-gay-lesbian-rights (last visited: January 21, 2012).
  35. Silverio, supra note 2.
  36. Ang Ladlad, supra note 4.
  37. Central Bank Employees Assoc., supra note 12.
  38. The seven GFIs and their respective charters are: Land Bank of the Philippines [Rep. Act. No. 7907 (1995)]; Social Security System [Rep. Act. No 8282(1997)]; Small Business and Guarantee and Finance Corporation [Rep. Act. No. 8289 (1997)]; Government Service Insurance System [Rep. Act. No. 8291 (1997)]; Development Bank of the Philippines [Rep. Act. No. 8523(1998)]; Home Guarantee Corporation [Rep. Act. No. 8763(2000)]; and Philippine Depositors Insurance Corporation [Rep. Act. No. 9302(2004)].
  39. Central Bank Employees Assoc., supra note 12, at 347-48.
  40. The Supreme Court added an eight law to the seven cited by the petitioners. The Court noted that Rep. Act. No.  8799 (2000) also exempted the employees of the Security and Exchange Commission from the coverage of the Salary Standardization Law.
  41. Central Bank Employees Association, supra note 12, citing People v. Dela Piedra, G.R. 121777, 350 SCRA 359 January 24, 2001.
  42. Central Bank Employees Association, supra note 12,at 367.
  43. Id., at 369.
  44. I doubt if the Court would reach the same conclusion in Central Bank if only the rank-and-file of 2 or 3 GFIs were exempted from the coverage of the Salary Standardization Law. In this hypothetical scenario, the discriminatory effect of subsequent legislation may not be that palpable.
  45. There are also developments at the local government and organizational levels. For instance, Quezon City Ordinance No. SP-1309 (2003) makes it unlawful to commit discriminatory acts against LGBTs ‘in the matter of hiring, treatment, promotion or dismissal in any office [in the City], whether in the government or the private sector.’ The Social Security System, a government-owned and controlled corporation, prohibits discrimination against SSS members, employers, SSS officials or employees ‘by word or conduct, bias or prejudice based on race, religion, national or ethnic origin, gender, belief or political affiliation, sexual orientation, age, marital status, color and mental or physical disability.’ Section 8(C), Code of Ethical Standards for Social Security System Officials and Employees [SSC Resol. No. 376 (July 10, 2008)].
  46. Rep. Act No. 8551, § 59 (1998).
  47. Napolcom Memo. Circ. No. 2005-002, § 14.
  48. Facts About Homosexuality and Mental Health, UC Davis, available at http://psychology.ucdavis.edu/rainbow/html/facts_mental_health.html (last visited: March 1, 2010).
  49. Conger, J.J. (1975). Proceedings of the American Psychological Association, Incorporated, for the year 1974: Minutes of the annual meeting of the Council of Representatives. American Psychologist, 30, 620-651.
  50. Rep. Act No. 9433, § 17 (2007).
  51. § 24.
  52. CSC Office Memo. No. 29 (2010), par.2 (1).
  53. Id., at par. 1.
  54. CSC Memo. Circ. No. 3 (2001).
  55. Interview with Noreen Boots Gocon-Gragasin, Director for Personnel Management and Development of Civil Service Commission,  Quezon City, February 16, 2010.
  56. Rep. Act No. 8504, § 35 (1998). This is the Philippine AIDS Prevention and Control Act of 1998.
  57. § 37.
  58. Philippine National Aids Council, Snapshot: HIV/AIDS in the Philippinesavailable at http://www2.doh.gov.ph/naspcp/download/policies/MWP/JP_8_HIVSnapshot.pdf (last visited: February 28, 2010).
  59. Rep. Act No. 9710, § 35 (2009).
  60. § 41.
  61. § 4(b).
  62. § 3.
  63. Central Bank Employees Association, supra note 44.
  64. Central Bank Employees Assoc., supra note 12.
  65. It is worth repeating that the Court’s use of ‘homosexual’ and not ‘LGBTs’ seems to be an unintended lapse on the part of the ponente, considering that he began the quoted paragraph with reference to the COMELEC’s act of ‘differentiating LGBTs from heterosexuals.’
  66. Ang Ladlad, supra note 12, at 65.
  67. Silverio, supra note 2.
  68. Ang Ladlad, supra note 12, at 60.
  69. Pres. Dec. No. 442, art. 3.
  70. American Psychological Association Task Force on Gender Identity, Gender Variance, and Intersex Conditions, Answers to Your Questions About Transgender Individuals and Gender Identity1(2006).
  71. Pres. Dec. No. 442, art. 137(2).
  72. Art. 137(3).
  73. Philippine Telegraph and Telephone Co. v. National Labor Relations Commission (hereinafter ‘Philippine Telegraph’), G.R. No. 118978, May 23, 1997. cf. Glaxo Duncan Association of Detailman-PTGW v. Glaxo Welcome Inc. (hereinafter ‘Glaxo Duncan Association’), G.R. No. 162994, September 17, 2004 where the Supreme Court upheld a company rule that disallows the employees of Glaxo from having personal or marital relationships with employees of competitor companies. Glaxo’s policy passed thereasonableness test used by the Court – the policy protects the company against the possibility that a competitor company will gain access to its secrets and procedures.
  74. Asian Development Bank, Country Gender Assessment Philippines 42 (2004).
  75. Thomas Ling, Smith v. City of Salem: Title VII Protects Contra-Gender Behavior, 40 (1) Harv. C.R.-C.L. L. Rev. 277, 280-281 (2005). [Citations omitted.]
  76. See findings in Bureau of Women and Minors, National Planning Workshop Concerning Women and Young Workers (Proceedings June-August 1986) 7 (1986).  More recent studies are cited in the next paragraphs.
  77. Men are also protected against sex discrimination under Article 3 of the Labor Code. When the law does not distinguish, we should not distinguish.
  78. See Diaz v. Pan American World Airways Inc.,442 F.2d 385 (1971). The US 6th Circuit Court of Appeals said that Pan Am violated Title VII of the 1964 Civil Rights Act for not hiring Celio Diaz as a flight steward on the ground of his sex. ‘The primary function of an airline is to transport passengers safely from one point to another. While a pleasant environment, enhanced by the obvious cosmetic effect that female stewardesses provide as well as, according to the finding of the trial court, their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved. No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another.’
  79. It was only through the passage of Republic Act 7192 (Women in Nation Building Act) that women were allowed to get into the military academy.
  80. Richard Posner states that ‘gender’ is one ‘borrowed from grammar to designate the sexes as viewed as social rather than biological classes.’ R. Posner, Sex and Reason, 24-25 (1992) quoted in Smith v. City of Salem378 F. 3d 566, 568 (6th Cir. 2004).
  81. World Health Organization, What do we mean by ‘sex’ and ‘gender’?available at http://www.who.int/gender/whatisgender/en/(last visited: March 1, 2011) 3.  ‘Gender’ is often found in many anti-discrimination policy issuances and regulations. Due to the lack of widespread understanding of the term’s meaning, it is likely that implementers would confuse gender-based discrimination with sex-based discrimination.
  82. Rowena Guanzon et al., Engendering the Philippine Judiciary 39 (2006).
  83. Id.
  84. Id.
  85. Philippine Telegraph, supra note 79.
  86. Irene Cortes, Discrimination Against Women and Employment Policies 39 (1981). Professor Irene Cortes (later Dean of the University of the Philippines College of Law and Justice of the Supreme Court) was the Vice Chairperson of the National Commission on the Role of Filipino Women when she presented this paper.  Her findings in 1981 resonate three decades later as shown by a recent study by the Institute of Labor Studies-Department of Labor and Employment. See Philippine Senate, Strengthening Anti-discrimination Policyavailable at http://www.senate.gov.ph/press_release/2011/0127_estradaj1.asp (last visited: January 27, 2011) 5.
  87. Asian Development Bank, supra note 80.
  88. Price Waterhouse v. Hopkins (hereinafter ‘Price Waterhouse’), 490 US 228 (1989). [Citations omitted.]
  89. Ling, supra note 81, at 282 (2005).
  90. ‘It shall be an unlawful employment practice for an employer -’(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or’(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.’
  91. Price Waterhouse, supra note 94.
  92. Robert Mison et al., Sexual Orientation in the Workplace: A Reference Guide, 2(1) National Journal of Sexual Orientation Law 34, 36 (1996).
  93. Silverio, supra note 2.
  94. Developments in Law – Sexual Orientation and the Law, 102 Harv. L. Rev. 1554, 1580-81 (1989).
  95. A male-to-female (MTF) transsexual or transgender person.
  96. Smith v. City of Salem, 378 F. 3d 566, 568 (6th Cir. 2004). This decision of the Court of Appeals (6th Circuit) is the highest federal court ruling on the application of Title VII protection and the ruling in Price Waterhouse v. Hopkins, supra note 94 to transgender persons.
  97. Id., at 568.
  98. Id., at 568.
  99. Id., at 569.
  100. Id., at 569.
  101. Id., at 569.
  102. Smith v. City of Salem, 2004 FED App. 0262A (6th Cir.), 1, 12.
  103. Id., at 15.
  104. Mary Anne Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in Law and Feminist Jurisprudence, 105 Yale L.J. 1, 57 (1996).
  105. It is a familiar rule in statutory construction that ‘(t)he legal provision being therefore susceptible of two interpretations, we adopt the one in consonance with the presumed intention of the legislature to give its enactments the most reasonable and beneficial construction, the one that will render them operative and effective and harmonious with other provisions of law.’ [Javellana v. Tayo, 6 SCRA 1042, 1050, (1962)].
  106. I Azucena, The Labor Code with Comments and Cases, 26 (2010 ed.) [Case citations omitted.]
  107. See Philippine Telegraph supra note 79; Glaxo Duncan Association, supra note 79.
  108. Rules on Administrative Procedure in Sexual Harassment Cases and Guidelines on Proper Work Decorum in the Judiciary, A.M. No. 03-03-13-SC 2004-12-14, December 14, 2004.
  109. The complete document available at http://www.yogyakartaprinciples.org/principles_en.htm
  110. O’Flaherty supra note 27.
  111. Id., at 235-236.
  112. Ang Ladlad supra note 4.
  113. Id., at 79.
  114. Last Paragraph, Yogyakarta Principles.
  115. International School Alliance of Educators v. Quisumbing, G.R. No. 128845, June 1, 2000.
  116. (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;b. international custom, as evidence of a general practice accepted as law;

    c. the general principles of law recognized by civilized nations;

    d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (Emphasis Added)

  117. See United Nations Treaty Collection, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en (last visited: 20 January 2012).
  118. ‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
  119. ‘The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.’
  120. Par. 1: ‘The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.’
  121. General Comment No. 18 (24 November 2005).
  122. O’Flaherty supra note 27, at 215.
  123. ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
  124. Ang Ladlad, supra note 4.
  125. It also cited Committee on Economic, Social and Cultural Rights General Comment No. 15: The right to water, E/C.12/2002/11.26, (November 26 2002); General Comment No. 14: The right to the highest attainable standard of health, E/C.12/2000/4, (August 11 2000). Interestingly, the footnotes in the Court’s discussion on ‘Non-Discrimination and International Law’ (618 SCRA 75-77) are verbatim restatements of Section 2(A) of O’Flaherty supra note 27.
  126. 347 U.S. 483 (1954).
  127. 163 U.S. 537 (1896).
  128. Peter Irons, A People’s History of the Supreme Court, 369-370 (1999).
  129. Id., at 370.
  130. Interview with Germaine Leonin, Rainbow Rights Project (Jan. 20, 2010).
  131. Our own courts also recognize this link. ‘It is not difficult to imagine the reasons behind this censure [against LGBTs] – religious beliefs, convictions about the preservation of marriage, family and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. (Emphasis Added) See Ang Ladlad supra note 4.See also B. Williams, ‘Religion, Politics and Gay and Lesbian Rights’ Available http://falcon.fsc.edu/~bnogueira/gaylesbian.htm. Fitchburg State University, October 8, 2010 2; Judith Plaskow, Sexual Orientation and Human Rights: A Progressive Jewish Perspective in 1998 Sexual Orientation and Human Rights in American Religious Discourse as cited by B. Williams, supra.
  132. Ang Ladlad supra note 4.
  133. Ang Ladlad supra note 4.
  134. Const. art. III, § 5
  135. § 4
  136. (hereinafter ‘Lawrence’) 539 U.S. 558 (2003). [Citations omitted].
  137. Ang Ladlad supra note 4. (J. Puno, Separate Concurring Opinion).
  138. In Philippine jurisprudence, the right to privacy was first discussed in Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968. ‘The concept of liberty would be emasculated,’ writes Justice Fernando , ‘if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect Morfe, a case of first impression, adopted the findings in Griswold v. Connecticut 381 U.S. 479 (1965)] that there are zones of privacy protected by the bill of rights. In Griswold, US Supreme Court invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons.
  139. GR 118127, 455 SCRA 308, 337, April 12, 2005.
  140. G.R. No. 122846, January 20, 2009.
  141. Lawrence, supra note 142.
  142. Lawrence, supra note 142. The quotation used by the Lawrence Court is taken from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
  143. New Code of Judicial Conduct for the Philippine Judiciary (2004), canon 5, § 1
  144. Letter of Isaac Newton to Robert Hooke (Feb. 5, 1675).

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CONSTRUCTING THE PAST: LEGAL DOCUMENTS AS HISTORICAL ARTIFACTS

*

Al A. Parreño**

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Abstract

This paper argues that legal documents are artifacts, based on Western and local understanding. To prove this, the definition and elements of an artifact and legal documents are dissected. As artifacts, these legal documents in turn, can be utilized as powerful tools in constructing the past, because of the method of their creation, preservation and use.

Introduction

Common legal documents are artifacts. They are one of the best means to construct selected portions of the past. With the process, detail and emphasis placed on them by society and individuals, they provide a very healthy source of data.

Many think of artifacts as ancient creations hidden and then rediscovered through long and tedious digging and exploration under scorching heat in far-flung places. To the public, they are jars, weapons, statues and hidden talismans “shrouded in mystery”.  And yet, they are not simply just that.

The analysis in the next succeeding pages will show that they are also boring documents scattered in old court rooms, filed routinely in staff rooms, read by passionate jailed litigants and by judges. They are in the barangays carefully handwritten by a “kagawad” or a logbook with a police inspector. As important as royal burials, shipwrecks and forgotten cities, they too, now or a hundred years hence, tell a very good story.

1.     What is an artifact?

Using both the Western and Philippine lenses, the succeeding discussions show that an artifact is a verifiable product of human workmanship or skill. Neither age nor tangibility is an element.

  1. Artifacts defined from both Western and Philippine Concept

The definition of the word is uncomplicated. This very simplicity makes it prone to abuse and distinct misuse, thus, there is a need to clarify the matter.

The common understanding of artifacts is found in many dictionaries. Webster’s Third New International Dictionary defines an artifact as “a usually simple object (as a tool or an ornament) showing human workmanship and modification.” The Oxford English Dictionary defines an artifact as “anything made by human art and workmanship.”1

The common understanding of the “artifact” stems from its source. Taken from the Latin words ars (art), and factum, the past participle of facere (to make), it is what its origin says it is – “to make art”.2

In dividing natural things from those from other causes, Aristotle intricately defined the concept of an artifact as artificial products.3 It is for this reason that the general concept explains it for what it is not – “not made of nature”.4  In its simple definition, it is a creation of the mind. In the Proceedings of the Aristotelian Society, the same concept of an author or a creator was likewise emphasized, thus delineating it from natural works.5

The Philippines has adopted a similar concept, as embodied in Section 1(f) of the Amended Cultural Properties Preservation Act:

f. Artifacts are articles which are products of human skills or workmanship, especially in the simple product of primitive arts or industry representing past eras or periods.6 (Emphasis supplied)

As gleaned from above, this definition does not emphasize age, but rather put premium on its character as “product of human skills or workmanship.”

It is fortunate therefore for purposes of standardization that in its generality, both the Western and Philippine concept lie in similar planes. And yet, the general terms are not precise. Using both understandings, the probable misconceptions through a discussion of the common elements can be carved out.

  1. The Elements of an Artifact

Both the Western and local concepts of an artifact recognize the first element: man. For the purposes of this discussion, the definition is confined to something that is intentionally made by a human agent for some purpose.

The second element common to both Western and local concept is workmanship or skill. We recognize however, the ability of man to effect changes without necessarily using skill or intellect; for example, a driver breaking a small tree. Surely, the broken tree created by imprudence, while arguably a creation, cannot necessarily be classified as an artifact as there simply was no intent or skill involved.

The third element is that it must involve a product that for practical purposes is verifiable.  The word product pertains to anything produced.7 The universal understanding of this concept, as well as in the United Nations Classification system, includes both goods and services.8

  1. But Should They Be Tangible?

Tangibility implies “touch.”  What then is the nature of the product or output as defined above? Is an electronic video an artifact? Are movies or digital recordings artifacts?  Are thoughts or mere intents artifacts? Feelings? Love? Distinctions should therefore be made in light of this fundamental problem.

The criterion is not tangibility; it is verifiability, or in the context of Karl Popper, “falsifiability or refutability.”9 The test is:“can we prove or ‘disprove’ its actual existence?” 

1. Why tangibility is not an element 

Electronic creations are not tangible, yet they are still creations. This concept is similar to the Philippine understanding of cultural property as defined under the National Cultural Heritage Act:10

 (o) “Cultural property” shall refer to all products of human creativity by which a people and a nation reveal their identity, including churches, mosques and other places of religious worship, schools and natural history specimens and sites, whether public or privately-owned, movable or immovable, and tangible or intangible.” (Emphasis supplied)

In light of  man’s ability to create, “tangibility” can never be the basis in determining whether a product is in fact, an artifact.

2. Why verifiability is important

So if tangibility is not necessary, what about the other extreme: what of mere thought? There can be no doubt that they are creations of man, involving, up to a certain point, the application of skills. Thus, they can also be products.

In determining whether “thought” or “identity” is an artifact, Joanne Baldine asks:11

What of human identity?  If it is an artifact, and thereby in some sense artificial, in what sense do we identify the self as human and part of nature?  If it is an artifact, then is the self merely a product of our own reflective creation, of technological advance, of history, or a by-product of the latest cultural trends?

And yet thought, while it is an object of man’s creation, cannot be completely and accurately verified.

Men, through law, have tried to quantify what a creation is for the purpose of intellectual protection in the TRIPS agreement.12 In its local legislation, the Philippines has similarly not included mere “thought” as subject of intellectual protection.13

In contrast to thoughts,  artifacts are products that are verifiable. Thus, until such time that we can verify thoughts, we cannot classify them as artifacts using present means.

  1. Age is not an element of an artifact 

Products need not be of a certain age before they are classified as artifacts. The Philippine definition of artifacts as provided under Section 1(f) of the Amended Cultural Properties Preservation Act implies that age is not an important factor in determining whether a product is an artifact. More specifically, the use of the word, “especially” merely connotes an emphasis stating  “significance” but not necessarily an exemption or restriction. To wit, “especially for you” means primarily for you. To the chagrin of a jealous lover, it subtly connotes it is “also meant for others”, though with less vigor.

Perusing the other terminologies the Philippines uses in defining cultural history, we find the “time element” is clearly stated in other areas, such as in the definition of “antiques.” To quote the National Cultural Heritage Act of 2009:14

(c) “Antique” shall refer to a cultural property found locally which is one hundred (100) years in age, more or less, the production of which has ceased. (Emphasis supplied)

In remedial law, one element of ancient documents is that they are thirty years or more.15 In classifying what “cultural property” is considered important, structures and archival material/document must be at least fifty (50) years old.16 It can be observed in these three examples that the word “especially” was not used. Rather,  the time requirement was expressly made a requisite.

From here, an artifact therefore is a product of workmanship or skill. It must be created consciously, not through accident. Its age is not relevant. It does not have to be tangible but must be verifiable.

2. What is a legal document?

Having clarified the elements of an artifact, we now determine whether legal documents are artifacts. To do so, we must, of course, understand what a legal document is.

Most European documentalists think of documents by themselves as records, not necessarily paper. One documentalist described it as “any physical or symbolic sign, preservedor recorded, intended to represent, to reconstruct, or to demonstrate a physical or conceptual phenomenon.”17

Paul Otlet, the creator of the Universal Decimal Classification,18 aimed to categorize all knowledge and extended the definition of a ‘‘document’’ further. He admits of documents as records but he specifically includes artifacts as a subset of documents. He posits that they are graphic and written records, which are representations of ideas or of objects.  He however, extended this to include natural objects, artifacts, and objects bearing traces of human activity (such as archaeological finds).19

This understanding of documents as a record is parallel to the Philippine understanding, as embodied in Section 2 of Rule 128 of the Rules of Court, which provides that “Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression.”

Meanwhile, the advent of new forms of means of capturing records has implelled both Congress20 and the Supreme Court21 to include paper and electronic records in its definition of documents.

The document therefore per se can include any material, but what makes it an artifact as defined is the inclusion of workmanship into it as will be shown below.

To consider the document legal, it is important to examine the concept of what is legal or law. Law or the practice of law22 is encompassing and broad under both Western and Philippine definitions.

Under the Western concept, the practice of law is defined as  “the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent.”23 The practice of law is not limited to the conduct of cases in court.24

Under the Philippine concept, this definition was expanded. Thus, practice of law is defined as “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”25

Combining the common and generic understanding therefore of the terms legal and documents, we can understand it as: writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression from any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.26 [CG1

3. Why Legal Documents Are Artifacts

We now use the same parameters of what an artifact is to legal documents. The elements as described are: (1) Man; (2) Workmanship or skill; and (3) Verifiable product.

Under these parameters, legal documents clearly fall within the definition of what an artifact is.

Firstly, the involvement of man is evident and beyond debate.  Lawyer jokes notwithstanding, we know that all legal documents are products of man (the first element) using workmanship or skill (the second element).  They are created consciously even though they sometimes look like creatures of accident.  They are products easily verifiable (the second element) being mostly in paper or electronic form. Since the document’s age is not important, it is not relevant.  While tangibility is not an element necessary to be considered an artifact , legal documents are nonetheless in tangible form.

The Code of Hammurabi, the Laguna Copperplate27 and the Ten Commandments are all essentially documents of law.  Applying both tests to them, we will see that they are artifacts and that they are primarily legal documents.

The test that it is a legal document passes since the Code of Hammurabi is a writing containing letters, words or figures used in the practice of law. It is written. Its existence indicates that it was made within the context of the practice of law, being a law in itself, listing prohibitions and punishments. It falls within our definition of “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”28

On the other hand, the Laguna Copperplate, even by contemporary definition, is undeniably a legal document:  it is a material containing letters or symbols depicting principles of law. In fact, if we use the principles embedded in the Laguna Copperplate to current Philippine law, we will find the Laguna Copperplate similar to many legal concepts written today.

First, the document is the ancient counterpart of several procedures in modern-day Philippine Law practice. It provides for either a pardon (under criminal law) or a condonation or remission of an obligation (under civil law). Second, it connotes an obligation to pay. Third, it implies an obligation to perform, the source of which is unclear. Fourth, it implies a penalty for nonperformance of the obligation. It likewise talks of enforcement of a penalty. In addition, it also suggests the use of a written document as evidence, the Laguna Copperplate itself.

These legal concepts, albeit slightly different, are present in the New Civil Code of the Philipines, which traces its roots from the Spanish Codigo Civil.  The concepts of condonation, remission or cancellation of debt is found in Article 1231, which states that: “Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation.”

Despite this, many think of the Code of Hammurabi and the Laguna Copperplate as mere simple artifacts. Indeed, they are artifacts created consciously, with skill, and verifiable in material form.  But more than that, we should see them as legal documents.

4. Why Legal Documents are Very Good Means to Construct the Past

Having established that legal documents are actually artifacts, we now establish that they are actually powerful tools in constructing portions of the past.

First, they are made based on predetermined standard rules to reflect a structure or fact.  Second, the actual products were meant to be preserved.  If one seeks to construct structures, conflicts and agents, legal documents provide a strong basis. 

A. Scrutinized based on determined rules

“Legal documents” were designed for close scrutiny. Documents used in litigation, are always subject to another set of eyes that are supposed to verify the facts and the basis of what they state.29 The Philippine Rules of Court as well as the US Federal Rules of Procedure all require that most legal documents be served to the other party. It is simply part of due process.

The creation of laws likewise involves a tedious and strict process meant to ensure their integrity, accuracy and preservation. As to the creation of laws, under Philippine law, they are read three times.30 They are debated upon with experts verifying their contents and another set of judges saying if they are valid when questioned31. These proceedings must be properly recorded.32 Section 14, for example of the 1987 Philippine Constitution provides that: “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.”

As documents, even as artifacts, they provide a strong source of vetted and argued information.

B. Strong Chain of Custody for Preservation

Legal documents are meant to be preserved.   It can safely be argued that the benefactor of the Laguna Copperplate would make sure it is kept. The story of Exodus shows the importance of preserving legal documents. When the document containing the “Ten Commandments” was destroyed, Moses had to “get” a new one.33

As to present legal documents, chain of custody should always be maintained and publication is required.34  Public records are meant to be kept.35 Falsification of public document is punishable by law and so is failure to store them properly.36

Only a few artifacts go through a similar process of preservation.

Private documents used for legal purposes are equally investigated to ensure proper preservation. An example of this is Section 20, Rule 132 of the Philippine Rules of Court, which requires that “before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker.”

Not all artifacts however, go through the same tedious process of verification and standardization.  Because of this, an examination of the context under which legal documents were made should also be looked at.

5.  The Limitation of Legal Documents as Storytellers

And yet its perceived strengths are also its weaknesses. To say that legal documents paint a complete picture of the past is utterly wrong.  Because of the structure that legal documents should follow and the tedious process concomitant to its creation, they do not accurately reflect the personal stand and point of view of the creator. They also do not reflect other representations of the past, such as: individual culture, defiance of the minority, individualism, or stories of unknown agents.

Thus, a lawyer arguing against the death penalty as shown in court records might not necessarily be against it. Yet the legal document will reflect his opinion as such. The creator’s emotional style of writing legal documents is likewise limited by the rules set forth by the Court.  With stare decisis 37as prevailing doctrine in the Philippine legal system, the arguments or supposed beliefs of the lawyer as embodied in the legal document are merely mimicked from other men. In its liberal sense, it can be argued that it is not his creation, but merely a copy or collage of previous other decisions discussing the same subject matter.

Likewise, legal documents give the impression that they were created as true reflections of the past. That is not always true. Even its creation can be biased, as shown by Justice JBL Reyes in relating the state of the judiciary during Martial Law and the palpable absence of independent judges and prevalence of forced testimonies:

Martial law brought with it the suspension of the writ of habeas corpus, and judges lost independence and security of tenure, except members of the Supreme Court. They were required to submit letters of resignation and were dismissed upon the acceptance thereof. Torture to extort confessions were practiced as declared by international bodies like Amnesty International and the International Commission of Jurists.38 (Emphasis supplied)

With this therefore, legal documents while arguably factual and independent may not always be so.  There are also a lot of exceptions.

6. Using Legal Documents to Tell the Philippine Story

And yet for their limitations, legal documents as artifacts provide a good basis for a reconstruction of the past. For example, as we study the structure of Philippine society, specifically, the creation of a just and humane society, we find strong evidence in the legal documents preserved.

The Laguna Copperplate can be extrapolated to reflect the legal structures during the days it was made. Why did they have to embed the declaration on a copperplate? Is there a court that accepts this as evidence? The contract presupposes rules. It also assumes jurisdiction and other important details of law.

In the 1950 case of Hacienda Luisita v. National Labor Union,39 and in the 2010 case of Hacienda Luisita v. Presidential Agrarian Reform Council,40 the never-ending stories of Filipino farmers in Tarlac are chronicled. In 1945, the case of Yamashita41 tells the story of a Japanese General pleading before the Supreme Court to grant permission for release from the American Military Commission. A study of the records of the Constitutional Commission reveals the sufferings of the Filipinos during the Marcos dictatorship and the need for stronger laws to protect them:

Because of the wide-scale violation of human rights during the dictatorship, the 1987 Constitution contains a Bill of Rights which more jealously safeguards the people’s “fundamental liberties in the essence of a constitutional democracy.42

In Aquino, Jr. v. Military Commission No. 2,43we see the pain of an agent of history, Ninoy Aquino. There, both sides tell the story on how he was tagged as a communist and judged to die. The story of his death and the alleged injustice is told in the case of Galman vs. Manuel.44 In his Separate Opinion in the case of Republic v. Sandiganbayan,45 Justice Reynato S. Puno talks about the history of the Filipino struggle for a humane society.46 In the recent case of Cadapan v. Gloria Macapagal Arroyo,47we see the clamor for humanity when mothers of disappeared University of the Philippines students asked the government to release their daughters.

Someday, those legal documents will be the Code of Hammurabi, the Laguna Copperplate or even the Ten Commandments. When pieced together, they tell good stories.

Conclusion

As many good artifacts, they are not perfect. But legal documents are good stories indeed – they are our stories. Generations of law students, law practitioners and erudite judicial luminaries have painstakingly crafted and collected bits and pieces of our social history. Let us not take these artifacts for granted and start digging them in the libraries.


  • * Cite as Al A. Parreno, Constructing the Past: Legal Documents as Historical Artifacts, 86 Phil. L. J. (page start), (page cited) (2012)
  • ** BS Business Administration, 1996; LLB, UP Law, 2003; Partner, Diaz Parreño Caringal Law Firm.
  1. Risto Hilpinen, Artifact, The Stanford Encyclopedia of Philosophy (Edward Zalta ed., Winter 2011) available at http://plato.stanford.edu/archives/win2011/entries/artifact/ (Date last visited: Mar. 12, 2012)
  2. Id.
  3. S. Marc Cohen, Introduction to Aristotle, in Readings in Ancient Greek Philosophy 645-54 (S. Marc Cohen et al. eds., 2005) available at http://faculty.washington.edu/smcohen/433/arintro.htm (Date last visited: Mar. 12, 2012)
  4. Id.
  5. Hilpinen, supra note 1.
  6. Pres. Decree No. 374  (1974).
  7. See http://www.etymonline.com/index.php?search=product&searchmode=none&p=0&allowed_in_frame=0 for the etymology of the word “product.”
  8. See United Nations Product Classifications available at unstats.un.org (Date last visited: Mar. 12, 2012).
  9. Stephen Thornton, Karl Popper, The Stanford Encyclopedia of Philosophy(Edward Zalta ed., Summer 2009) available at http://plato.stanford.edu/archives/sum2009/entries/popper/ (Date last visited: Mar. 12, 2012)
  10. Rep. Act No. 10066, § 3 (2009).
  11. Joanne Baldine, Is Human Identity an Artifact? How Some Misconceptions of the Asian and Western Self Fare during Technological and Legal Development,  3 Society for Philosophy and Technology (1997) available at http://scholar.lib.vt.edu/ejournals/SPT/v3n2/BALDINE.html (Date last visited: Mar. 12, 2012).
  12. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO). It sets down minimum standards for many forms of intellectual property regulation.
  13. Intellectual Prop. Code of the Philippines, § 175 (1997).
  14. Rep. Act No. 10066, § 3 (2009).
  15. See Rules of Court, rule 132, § 21 (providing that an “ancient document” refers to a private document which is more than thirty (30) years old, produced from a custody in which it would naturally be found if genuine, and is unblemished by alterations or circumstances of suspicion).
  16. Rep. Act No. 10066, § 5 (2009).
  17. Michael Buckland, What Is a ‘‘Document’’?,Journal of the American Society for Information Science (Sep. 1997), available at  http://polaris.gseis.ucla.edu/gleazer/260_readings/Buckland.pdf (Date last visited: Mar. 12, 2012).
  18. UDC Consortium, About Universal Decimal Classification, available at http://www.udcc.org/about.htm (Date last visited: Mar. 12, 2012).
  19. Buckland, supra note 17.
  20. Rep. Act No. 8792 (2000). This is the E-Commerce Act. Under §  5(e) of this law, “electronic document” is defined as one that refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be prove and affirmed, which is receive, recorded, transmitted, stored, processed, retrieved or produced electronically.
  21. Rules on Electronic Evidence, Rule 2, § 1(which expanded the definition of documents to include those derived electronically).
  22. See “Law”, Online Etymology Dictionary available at http://www.etymonline.com/index.php?allowed_in_frame=0&search=law&searchmode=none (Date last visited: Mar. 12, 2012). ; Legal, Merriam-Webster’s Online Dictionary <http://www.etymonline.com/index.php?search=law&searchmode=none.> 10 October 2011
  23. Black’s Law Dictionary (3rd  ed. YEAR!) quoted in Cayetano v. Monsod, G.R. No. 100113, Sep. 3, 1991 (hereinafter “Cayetano”).
  24. Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 quoted in Cayetano.
  25. Cayetano (which included numerous definitions therein, among which are: “To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill”).
  26. Rules of Court, Rule 128, § 2 in relation to Rep. Act No. 8792 (2000) and Cayetano, supra note 26.
  27. It is reported to be an old written document found in the Philippines, whose origin is approximately in 900 A.D.
  28. See Cayetano, supra note 25.
  29. E.g., the opposing counsel, the judge and the clerks and eventually, the justices who review the decisions on appeal.
  30. Const. art. VI, §  26.
  31. Const. art. VIII, § 4.
  32. See Const. art. VI, §  16(4) (which states that “Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal.  Each House shall also keep a Record of its proceedings”).
  33. Exodus 32: 19 ( King James Version, )
  34. Exec. Order No. 200, § 1 (1987) (which states that “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided”).
  35. Rep. Act No. 9470, § 2 (2007) (which states that “Towards this end, all public records with enduring value, held by government offices, including, but not limited to, all branches of government, constitutional offices, local government units (LGUs), government-owned and controlled corporations (GOCCs), state universities and colleges, Philippine embassies, consulates and other Philippine offices abroad shall be transferred to a permanent government repository for proper management, control and regulation of record disposition”).
  36. Rev. Penal Code, art.171, 226.
  37. De Castro v. Judicial and Bar Council, G.R. No. 191002, Apr. 20, 2010 (which defined stare decisis in this wise: Stare decisis derives its name from the Latin maxim stare decisis et non quietamovere, i.e., to adhere to precedent and not to unsettle things that are settled. It simply means that a principle underlying the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority”).
  38. Jose B.L. Reyes, Present State of Human Rights in the Philippines, in lawasia Human Rights Standing Committee,  Recent Trends in Human Rights47-52 (1982).
  39. G.R. No. 13072, Mar. 30, 1960.
  40. G.R. No. 171101,  Jul. 5, 2011.
  41. Yamashita v. Styer, G.R. No. 129, Dec. 19, 1945.
  42. 1 Record of the Constitutional Commission 674 (1986).
  43. G.R. No. 37364, May 9, 1975.
  44. G.R. No. 71208-09, Aug. 30, 1985.
  45. Republic v. Sandiganbayan, G.R. No. 104768, Jul. 21, 2003 (Puno, J., concurring).
  46. “First, the Filipinos are a freedom-loving race with high regard for their fundamental and natural rights.  No amount of subjugation or suppression, by rulers with the same color as the Filipinos’ skin or otherwise, could obliterate their longing and aspiration to enjoy these rights.  Without the people’s consent to submit their natural rights to the ruler, these rights cannot forever be quelled, for like water seeking its own course and level, they will find their place in the life of the individual and of the nation; natural right, as part of nature, will take its own course.  Thus, the Filipinos fought for and demanded these rights from the Spanish and American colonizers, and in fairly recent history, from an authoritarian ruler. They wrote these rights in stone in every constitution they crafted starting from the 1899 Malolos Constitution.” See Republic v. Sandiganbayan, G.R. No. 104768, Jul. 21, 2003 (Puno, J., concurring).
  47. G.R. No. 187109, May 31, 2011.

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ANTI-MAIL ORDER BRIDE LEGISLATION AND FEMINIST LEGAL THEORY: AN INQUIRY TOWARDS A RESCRIPT OF THE DIASPORIC FILIPINO BRIDE PHENOMENON IN THE PHILIPPINES

*

 Glenda T. Litong**

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INTRODUCTION

The tag “mail-order bride”1 has often been associated with derision, stigma and illegality such that the bride herself would not dare claim such status, if only to avoid the unwarranted connotations and stereotypes that come with the label, regardless of the reasons why she entered into such a context.  In a country where it is a reality that mail-order brides continue to proliferate, the question arises as to how the Philippines has protected the women who become part of the “mail order bride industry”.  Where the mail order bride industry is illegal in the Philippines and legal in receiving countries like the United States of America, Japan and South Korea, to name a few, the appropriateness of the response of the Philippines to the context of Filipino mail-order brides comes into context.

This paper attempts to revisit the track record of the Philippine Government in addressing the question of the mail order brides and the industry that generates income out of the transaction that “sells” the promise of the intangibles (e.g. love, romance, security) to individuals.  The whole concept of mail order brides has its risks undoubtedly given the unique circumstances surrounding it, compared with any other kind of man-woman relationship. This paper focuses on the analysis of the institutionalization and relevance of the Philippine legal and regulatory system in so far as protecting the Filipino women including those in the mail order bride industry against discrimination that engenders violence, abuse and exploitation. The analysis would be assisted by an examination of feminist legal theories that interpreted the different aspects of this phenomenon, particularly woman’s agency, the evolving concepts of relationships and marriage, and use of feminist methodologies towards articulating a critical approach to the phenomenon of mail order brides and proposing recommendations designed for law reform. 

PART I. METHODOLOGY OF POSITIONALITY

 An attempt to raise critical challenge to a law from a feminist legal lens would necessarily proceed from insights, perceptions or understandings of truths, the content and substance of which, must undergo the rigor of feminist methods.  In the Philippines, it is a crime to profit from the act of matchmaking, and when attended by exploitation or slavery, the mail-order bride business becomes trafficking. Analyzing laws, which meet both the demands of legal theory and feminist methodology, reveals that the typical “victim” treatment might not be the complete and objective truth. Certain truths that affect the woman might have been overlooked or ignored in the process of framing or adopting the laws.  These facts or assumptions taken as truth by the laws should then be interrogated to see if they pass the feminist muster.

This paper utilizes the positionality feminist method.  The positional researcher puts premium on the value of experiences, which inform original perceptions towards new understandings.  The truth in this case becomes contextualized, hence, partial- derived from the individual’s own, special and unique relationships.  The diversity of one’s experiences from these relationships “define the individual’s perspective and provide the location for meaning, identity, and political commitment.”2 To increase knowledge means to extend one’s limited experience, but it does not require the accommodation of truths as one’s own, nor to reconcile competing interests.3 It calls for openness to other experiences, which could bring about other truths while being committed to one’s understanding of truth, thereby giving rise to the possibility of plurality of truths.  The results thereby achieved by the process of thinking are manifestations of concrete and actual human struggles given a particular social reality or context, not based on some “external, “discovered” moral truths or “essential” human characteristics, but by internal truths that make the most sense of experienced, social existence.”4  These are the social truths arising out of social relationships that influence social actions.  These are the facts or “truths” that must be surfaced to ground any law seeking to address social dilemmas or situations.  By design therefore, positionality adheres to a continuing process of critical examination and improvement of “reliable, experience-based grounds for assertions of truth upon which politics should be based.”5 It is in this light that the Philippine laws proscribing the mail order bride arrangements shall be revisited and re-scripted, if necessary.

PART II. PERTINENT FEMINIST LEGAL THERY AND CRITIQUES

Feminist discourse on women insofar as claiming their rightful place in the legal arena has towed the  lines of two major legal thoughts.  The several writings fall either under feminist liberalism or feminist radicalism, where the former focus on consent and the latter on women’s disempowerment.

A. Feminist Liberal Theory

The feminist liberal theory proceeds from the concept of the liberal self- the autonomous, consenting, self-directed, self-motivated individual, who is the traditional subject of the law, capacitated to enter into contracts to achieve value to his/her life.  The  liberal self presumptively applies to both man and woman.  Just like a man, a woman, is “a subject whose humanity consisted in her theoretically unlimited potential, and her capacity to exercise meaningful choice in the direction of her own life,”6 where her relationship with the State is the same as that of the man and where man and woman “create value by satiating their subjective desires through consensual choices.”7  Consent presupposes the existence of autonomy, typically understood as a pre-condition to agency, where man and woman are equally free to choose their own life plans, both concerning their public and private lives, and equally entitled to the respect from the state that freedom requires.8

Liberal thinking or the consent theory is confronted with several dilemmas.  An aspect of this defined liberation or freedom refers to human individuation from status to contracts where the individual is the owner of one’s self and where “full personhood was equated with the effective exercise of a property right in one’s body.”9 However, the history of consent with respect to contracts normally relates to the protection or the liberation of man over his property, his self, and not referring to a woman.  Being a subject of contracts has been historically denied the woman, particularly in relations to sexual relations, where woman was considered appropriated for man, and where anything relating to sex, which is part of the private domain, is considered as not part of the conventions of society.10

Also, while consent is essential to the exercise of individual freedom and equality, the exercise of consent on the other hand, presupposes the existence of individual freedom and equality, which the feminists consider as non-existent in the context of women by reason of gender.11 Consent further calls for an inquiry on the accessibility and nature of information supposed to be provided to the consent-maker,12 and where the nature of information provided or surrounding women is conforming to the cultural script, then it cannot be said that women would be in a position to give consent, or at the very least, informed consent.

For the feminist, this liberal concept presents both opportunity and challenge: the lack of autonomy can be the basis of challenges to the subordination and oppression of women brought about by patriarchal structures,13 denying to the woman the opportunity of choice.  Towards this end, legal reform tends to cater more to according women more choices as enjoyed by men14 through equality challenges.

On the other hand, such strict equality framing has been critiqued as possible to mask the aspect of women’s lives as being relational, interdependent and affective, where liberal theory deals with the objective truth, rather than the subjective.15 The assumed objectivity of the autonomous and consenting woman in making choices has tended to overlook the extent to which women make choices, which may be different from the man perceived traditionally as the liberal subject, and how women exercise agency.  This subjectivity thereby calls for an understanding of social constructivism that looks into a woman’s context which would necessarily look into systematic gender-based oppression, within which the woman exercises her agency.16 This would include the examination of underlying values that facilitate women’s choices, which could be different from the self-centeredness of liberal autonomy, but might implicate a different value altogether, like the “giving self” embodied in women in particular contexts.17 The discourse must include the “inescapable fact…that much of the misery of women endure is fully consensual.”18 If one is to take into account the phenomenological aspect of women’s lives, it is a situation that concerns both objective danger and subjective fear, where “women re-constitute themselves to control the danger and suppress the fear as giving selves.”19 It is thus, proposed that “liberal feminism would be truer to liberalism and goals of feminism if it would aim to eradicate the fear that presently dominates women’s choices rather than merely celebrating in the name of formal equality whatever choices we presently make.”  The approach then would be to “get rid of the danger, (so) we could get rid of the fear,… without fear,, choices would take on great meaning; to be strengthened rather than weakened by the voluntary transactions.”20

The legitimacy of laws that seek to address the aspect of women’s lives, particularly those that address harm, suffering and injury to women, must problematize and not ignore the issue of agency.  Any injury or harm sought to be avoided for the protection of the woman must be carefully investigated, giving  plural interpretations to it and must be based on the context within which harm, risk or injury would be prevented.  It should look into the relationships of the injuror and the injured, the nature of the injury and the knowledge of such risk,21 before the same can be considered a public wrong with which the law must concern itself.22

 

B. Feminist Radical Theory

The other thread of feminist legal thought is radical feminism, where men and women are not equally autonomous, and assumes a definitional inequality between them.23  Radical feminism is greatly influenced by McKinnon’s dominance theory, which identifies the objective unequal distribution of power, where the State and male sovereigns define women’s context, as causing women’s disempowerment.24 This includes the concept of expropriation of women’s sexuality and women’s false consciousness about her environment, which create the subjective suffering of women and gender oppression.25 Legal reform therefore tends to be directed towards removing the hierarchy and sexual inequality that perpetuates the disempowerment.

Radical feminism’s reliance on gender vulnerability has been critiqued as essentially precluding discourse that align itself with the consent theory, that men and women comprise the agency who can negotiate and contract for purposes of making their lives better, whether in terms of work or sexuality.26 It has been articulated that stereotypes of women’s oppression, if to be used to demand legal intervention, must be carefully presented to provide a complete picture of women’s understandings of their situations, towards formulating responses designed primarily to eliminate the stereotypes.  This would necessarily call for the consideration of women’s agency, which has not been taken into account by radical feminism in its legal excursion.27

Another area of critique lies in the fact that radical feminism, in attempting to use the law, refuses to credit the “phenomenological evidence that essentially descriptive claims that underlie the normative commitment to substantive equality may be false… (that) women on  occasion take pleasure in their own submissiveness is simply a manifestation of their disempowered state, not a meaningful counter-example to the posited egalitarian ideal,”28 or a case of false consciousness.29 The underlying theme of unifying victimization of women grounding this line of feminism creating the passive stereotype contradicts the idea of a women’s agency.30 This approach led to the low priority in exploring the  variety of women’s sexual engagement or pleasure,31 where neo-Victorian approaches retained the images of women’s sex stereotypes as passive, thereby essentially denying the prospect of defining new, affirmative images of women’s subjective pleasures and liberating understanding of women’s sexuality.32 State response through the law has been to repress women’s agency insofar as sexuality is concerned, as well as the intimate and private aspects of their lives, and where emphasis is almost always on sexual danger.33

Critiques of this thread posit that enabling agency means enhancing women’s power to interpret the different forces that cause their oppression,34 which is critical to the alteration of the cultural script that plays out male dominance and female subordination.35 Law must be used as a tool to reduce or eliminate the oppression and risks faced by women born out of this script towards facilitating women’s definition,36 enable empowering interpretations,  preventing domination of oppressive images of women37 and avoid stigmatizing representations of oppression that women already endure.38

It can be said that legalism would expectedly ignore the phenomenological, contextual and highly particularized narratives particularly relating to women, but feminism cannot and must not. Hence, the norms that must underlie any feminist legal theory on any issue involving women must be be drawn from a careful investigation into the stories and voices of women, which can be surfaced by  consciousness-raising, and not the other way around.39 One must not dismiss the other stories of women as false consciousness; rather, it must be enabled and examined to call for a more representative and relevant formulation of law that ensures equality and empowerment to all women, not the liberal or essential women as the definitional ideal of a woman.40 Indeed, laws designed primarily to prohibit certain acts can be a medium to socially re-construct women’s images, but law has other functions that can undertake the re-scripting of gender with the same efficacy, like in undertaking positive regulatory acts to change practices that perpetuate the dichotomy or binary of dominance/subordination between the sexes.

Taking all these academic and legal accounts, adherence to the phenomenological approach to women’s legal disempowerment or inequality issues must always inform investigations into women’s lives and integrated into the discourse. This contextual or phenomenological or narrative strain of legal theory must not only support the process of feminist legalism but must comprise its substance and content, if feminism is to contribute to the formulation of foundations of feminist legal pedagogy. The discourse can meanwhile take into account the emergence of a theory of partial agency, which respectfully recognizes the powerful value of and supplements the dominance theory by not repressing the element of agency.41It calls for what is termed as strategic flexibility, where “the goal would be to depict women as possessing a constrained but nonetheless salient capacity for self-direction, while addressing the underlying conditions of women’s oppression.”42

 

PART III. A PHENOMENOLOGICAL APPROACH TO THE MAIL ORDER BRIDE PHENOMENON FROM A FEMINIST LEGAL THEORY

A. A Face to the Phenomenon

A story often told of Filipino mail order brides concerns their exploitation at the hands of criminal syndicates and often relates to acts of trafficking.  Analyn, 20 years old at the time she was recruited to work in South Korea, was one of those mail-order brides.43  Just like in the United States of America and Japan, the mail order bride industry in South Korea is legal.44  She was recruited to work in South Korea, and to be able to enter the country, she was forced to marry a Korean twice her age.  She was only able to reporther case with the Commission of Filipinos Overseas (CFO)when she tried to secure from the latter a clearance certificate, a legal requirement for all those seeking work abroad.  The CFO is now helping Analyn in her case against the traffickers. However, in view of the difficulty of proving the exploitation element regarding her trafficking, the judge wanted to try the case under RA 6955 or the 1990 Anti Mail Order Bride Law, rather than under the RA 9208, otherwise known as the 2003 Anti-Trafficking in Persons Act.45

Analyn’s case can be clearly seen as one of trafficking and the mode of facilitating the crime is through a marriage ceremony.  The difficulty however of prosecuting such a crime constrains the courts to rely on the tamer prohibitive law against mail order marriages.  A clear understanding of the pertinent laws affecting Analyn’s case is in order to appreciate the implications of said laws on the lives of diasporic Filipina women who enters into transnational or interracial marriages.

B. Philippine Legal Environment Governing Mail Order Brides 

The former prevailing law in the Philippines affecting the mail order bride industry frames the protective mechanisms for Filipino women on the principle of protecting women’s dignity while pursuing economic upliftment towards achieving decent standard of living.46 Such law perceived that the marriage of a Filipino woman with a foreigner husband is a means by which the woman can secure for herself and her family material improvement given the rampant poverty in the Philippines. Such means however is also presumed to be disastrous to the well-being of the woman.  Towards protecting the woman, Republic Act 6955 makes the following practices unlawful:

  (a) For a person, natural or juridical, association, club or any other entity to commit, directly or indirectly, any of the following acts:

(1)             To establish or carry on a business which has for its purpose the matching of Filipino women for marriage to foreign nationals either on a mail order basis or personal introduction;

(2)             To advertise, publish, print or distribute or cause the advertisement, publication, printing or distribution of any brochure, flier or any propaganda material calculated to promote the prohibited acts in the preceding sub-paragraph;

(3)             To solicit, enlist or in any manner attract or introduce any Filipino woman to become a member in any club or association whose objective is to match women for marriage to foreign nationals either on a mail order basis or through personal introduction for a fee;

(4)             To use the postal service to promote the prohibited acts in subparagraph 1 hereof.

(b) For the manager or officer in charge or advertising manager of any newspaper, magazine, television or radio station, or other media, or of an advertising agency, printing company or other similar entities to knowingly allow, or consent to the acts prohibited in the preceding paragraph… 47

The law was enacted as a reaction to the growing number of Filipino women leaving the country as mail order brides.  As then Representative Lorna Verano Yap, main sponsor of the bill at the Lower House, argued:

Operated by unscrupulous and heartless individuals, the practice has not only cast shame on our women in the international community, but have also exposed thousands of impoverished Filipinas into further misery in the hands of their foreign spouses…

I’d like to make it a point here that whether some are happy or some are not happy, it’s the entire practice that we are concerned about. They are treated like cattle. When you really come down to it, it’s like prostitution.48

The Senate counterpart, on the other hand, supported the bill, and elaborated that:

By making Filipin[a] brides a marketable commodity and flaunting them as such like cattle in tawdry and revolting advertisements this business has gravely insulted all that we, as a nation, hold sacred.49

Republic Act 6995 does not prohibit the inter-marriage between foreign nationals and Filipino women.  The ban does not criminalize the act of a woman who enters into such an arrangement through the mail order bride business, but targets those who profit out of the act of match-making50 recognizing such actions as facilitators of the trafficking of Filipino women.  Another relevant law to consider is the Migrants Workers Act of 1995, or Republic Act 8042.51

In 2003, the industry of mail order brides has been understood as an act of trafficking in persons under RA 9208 or the Anti-Trafficking in Persons Act, when exploitation is proven.  Section 4 of said law makes unlawful for any person, natural or juridical, committing the following acts:

 (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

(c)         To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;

(d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation;52

RA 9208 defines trafficking in persons as referring:

to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs53(Emphasis supplied)

Under the law, the women of the mail-order bride industry shall “be recognized as victims of the act or acts of trafficking and as such shall not be penalized for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant.”54 Part of the authority of the government to protect the women is to include the crime of trafficking in persons as one of the extraditable offenses in extradition treaties.55 This includes the authority to have extradition treaties amended to include trafficking, including, the practice of mail order brides match-making, as an extraditable offense.  An Inter-Agency Council Against Trafficking (IACAT) was created to coordinate, monitor and oversee the implementation of laws regarding forced labor and slavery.56To complement the work of the IACAT, Executive Order 548-A was issued by the Office of the President towards enhancing coordination among agencies that deal with the problem of human trafficking through the Task Force Against Human Trafficking (TFHT) under the supervision of the CFO.

By 2009, the Philippines has institutionalized an elaborate system designed to combat the impact of the mail order bride industry, seen primarily as an act of trafficking.  This protective system is primarily overseen and implemented by the CFO, an agency which was created in 1980 to formulate an integrated program for the promotion of the welfare of Filipinos overseas,57 including prospective spouses of foreign nationals.  It was essentially an office addressing the needs of the growing Filipino migrants.  The CFO provides the following programs and services to emigrants:58

  1. Migrant Social and Economic Integration Program
  2. Pre-Departure Registration and Orientation Seminars: a requirement before departure where country-specific information is provided to assist Filipino emigrants in their adjustment in their destination countries, and includes topics like travel regulations, immigration procedures, cultural differences, settlement concerns, employment and social security concerns and rights and obligations of Filipino migrants.
  3. Nationwide Guidance and Counseling Service: provided to the fiancées, fiancés and spouses of foreign nationals for the purpose of assisting Filipino Women involved in interracial marriages and migration as a pre-requisite to the issuance of passports.59 The service is intended to help the spouses reach informed decisions concerning their marriage through the provision of information concerning migration laws, welfare and support service available abroad, their rights, and ways of coping with difficult situations.
  4. Foreign Sponsor Watch list System: for the purpose of facilitating access to information on foreign partners who have racist backgrounds or may have petitioned Filipino women more than once, especially those with a history of domestic violence.60
  5. Public Information and Education Program
  6. Community Education Program: an annual nationwide information campaign to assist prospective migrants in making informed decisions regarding working or migrating abroad, as well as generate community involvement on migration concerns. It also aims to raise public awareness on various issues concerning migration, intermarriages and existing government policies and programs directed against illegal recruitment, documentation fraud and trafficking in persons, among others.
  7. Case Monitoring System: part of the public assistance services of the agency to effectively document and monitor cases involving Filipinos overseas referred to CFO, which involve cases of trafficking, domestic violence, adoption, child support, sham marriages, blacklisting, whereabouts, document verification, immigration, repatriation, employment-related concerns, among others.
  8. CFO Information System: providing a gender-sensitive system to generate sex-disaggregated data and to be able to respond to requests for emigrant data and statistics from the other government agencies, private sector, academe, and the public.
  9. Pre-departure Briefings at the Foreign Service Institute: orientation provided to departing foreign service officers (FSOs) and employees and service attaches of various government agencies organized by the Foreign Service Institute, which includes topics on trafficking issues.
  10. Migrants Advisory Information System: computer-based information tool that aims to address the information needs on the Country Profile of Filipino Migrants’ Destination Countries, Profile of Migrants Support Groups and Welfare Organizations Overseas, Profile of Filipino Organizations Overseas and List of Philippine Embassies and Consulates.

The above programs are all aimed at addressing the informational needs of prospective migrants by making it readily available to enable the public “appreciate the realities of migration and guide them toward an informed decision.”61

However, despite the above efforts, the Philippines still continues to fall under Tier 2 of the US Watch List which describes it as not fully compliant with the minimum standards for the elimination of trafficking but is making significant efforts to do so. It explains that“the government did not show evidence of significant progress in convicting trafficking offenders, particularly those responsible for labor trafficking” nor “greater progress in prosecution and conviction of both labor and sex trafficking offenders.”62 Furthermore, the Philippines has failed as well to curtail the practice of mail order brides.

C. Philippine Mail Order Brides As a Continuing and Expanding Phenomenon: Facts and Figures

In the Philippines, migration has been feminized, where the number of female overseas migrants has increased from 50% in 1992 to 70% in 2000-2001 based on the figures from the Philippine Overseas Employment Agency.63 This migratory tendency of the Filipino women was typically seen to be part of the desire to seek greener pastures, which includes the mail order bride phenomenon.

A 1998 US Study64 on the Mail Order Bride industry (hereafter Scholes Report), which analyzed the industry and its impact on US immigration, describes the services offered as one where “women’s names, photos, biographical sketches, and addresses are presented in hard copy brochures or on the Internet,” where the “agency provides the photos and descriptions of the women, who are not charged for this listing,” while “men who wish to obtain the mailing address of any of the women they would like to contact are charged a fee of from two dollars ($2) to five dollars ($5) for each of the mailing addresses.”  Of the 100,000 to 150,000 women who were part of listings of the so-called mail order bride agencies under the study, a great majority came from Southeast Asia, including the Philippines, and Russia and other countries from the former Soviet Union.  From the Asian listings, Filipinas provided a significant number.65 In the Cherry Blossoms internet listing, 3,050 of the women came from the Philippines out of 6,000 women who advertised as seeking husbands.  From the 1,400 Asian women in the Cherry Blossoms internet listing, 3,050 of the women came from the Philippines out of 6,000 women who advertised as seeking husbands.  From 1,400 Asian women featured in five catalogues, Filipinos comprised seventy percent (70%), mostly engaged in “domestic” or “in-service” work. Sixty-one percent (61%) of the Asian women were under the age of twenty-five compared to their Soviet counterpart where only thirty-one percent (31%) were under the age of twenty-five.

The Scholes Report cited a CFO report66 which stated that the mail-order brides constitute 10 percent of the marriages between Filipinos and foreign nationals, where forty-four percent (44%) of the foreign men who married Filipinos were US citizens.  The CFO report also showed that 95,000 Filipinos were engaged to be married to foreigners between 1989 and 1994.  Aside from this, t has been observed by the Coalition Against Trafficking of Women that since 1986, about 5,000 Filipino mail-order brides went to the US annually.67

The Scholes Report further suggested that other studies have intimated that women who joined these listings wanted a “better life” since most of them came from countries with low employment and wage opportunities.  The responses of women however varied from the sources, which generally indicated an attraction to American men and aversion to native men, where “Americans… make good husbands while Filipino men do not.  Americans are thought to be faithful to their wives, while the native men are cruel and run around with other women.”

The Report cited an earlier study conducted by Jedlicka in 198868 which profiled the American men accessing the listings as “generally white (94%); highly educated (50% with two or more years of college, 6% with M.D.’s or Ph.D.’s, only five did not complete high school); politically and ideologically conservative; and generally economically and professionally successful (64 % earned more than $20,000 a year; 42 were in professional or managerial positions),” and their median age was 37.  Despite such apparent profile, Jedlicka however emphasized that experience and other observations have shown that “those who have used the mail-order bride route to find a mate have control in mind more than a loving, enduring relationship.”  The Scholes Report also cited the study conducted by Glodava and Onizuka which showed a wide age gap in most of the mail order bride couples of 20-50 years.  The Glodava/Onizuka study then concluded that older men often wanted women they can mold and therefore do not want those who are too educated, and where power and control are the motivating factors for these older men.

Further, the Report also second guessed the motivations of women who advertise in the listings as wanting more to acquire permanent residency than to have a good husband or a good marriage, based on the women’s self-description and “their willingness to marry men of advanced age and dubious character.”  Lastly, it talked about the consequences of such business practices, where fraud and abuse were quite real.  Fraud is committed by the women once legal status is gained and also, where women were recruited into prostitution, or the new form of slave trade, which however has not yet been shown to occur in the US at the time of the study.  Abuse, on the other hand, cannot be discounted in view of the misplaced or unrealistic expectations of the men for submissive wives and the women for a better life, which would surely conflict.

The statistical portion of the Scholes Report continue to be validated by current Philippine data gathering, empirically showing that the trend in mail order brides has not diminished.  As supported by the above studies, it is easy to detect through indicative variables that the phenomenon lingers and in fact is growing.  For the period starting 1989 up to 2009, the CFO has reported on the number of Filipinos who sought guidance and counseling services required of fiancees, fiances, spouses or partners of foreign nationals before issuance of their passports or their departure.  There were a total of 372,718 spouses and other partners who underwent the requisite services, where 91.4% were women.69

131% of the spouses/partners were within the age bracket of 25-29, twenty-five percent (25%) from the ages of 20-24, and nineteen percent (19%) between 15 to 19 years of age, or seventy-five percent (75%) of them were between the ages of 15 to 29 years.70 Insofar as their educational attainment is concerned, twenty-nine (29%) were college graduates and eighteen percent (18 %) reached college level, while 19.4% were high school graduates and 11.3% reached high school level.71 Of these spouses/partners, thirty-five percent (35%) did not report their occupation, while fourteen percent (14%) were housewives and categorized as unemployed.  Of the employed lot, the professional, technical & related workers and those employed in the service sectors both reflected fourteen percent (14%) each.  In sum, sixteen percent (16%) of the spouses/partners were unemployed, thirty-five (35%) did not report any occupation, while forty-nine (49%) declared to be employed.72 Forty-one percent (41%) of these spouses went to the US, twenty-nine percent (29%)  to Japan, 7.86% to Australia, 4.12% goes to Canada, and the rest went to other countries, inc. South Korea.73

As noted in the Scholes Report, the mail-order bride phenomenon has continued to grow despite the legal proscription in the Philippines.74 As also shown in a blog cited earlier, the stories of women victimized by the industry and the laws that seek to prevent the mail order bride practice have not prevented the proliferation of the such marital arrangements.Such accounts “hardly helped in stopping Filipino women from allowing themselves—even praying—to be peddled as mail-order brides.”75 “The move simply drove the mail order business underground without significantly affecting the international trade,” said Carmelita Nuqui, president of the Philippine Migrants’ Rights Watch (PMRW).76

Browsing through the data provided by the CFO website, there has not been a case reported on acts of trafficking, acts of promoting trafficking or qualified trafficking involving the mode of mail-order brides for the period 2005-2009.77 No such case emerged while undertaking this research before 2005.

Maria Regina Angela Galias, head of the Migrant Integration and Education Division of the Commission on Filipinos Overseas (CFO), believes that the mandatory counseling program are effective tools in detecting Filipino fiancees or partners of foreign nationals who are mail-order brides, where they required to talk to a counselor and fill out forms that elicit information on their relationships.  That the women were mail-order brides can be detected since “they can’t even answer simple questions like the job of their husbands.”78

With all the data and experiences of those who have contacts with migrant partners, it would not be difficult to identify a Filipino mail-order bride.  So the question arises as to why there is not a single case brought against the perpetrators?  The case of Analyn would be a good test case both under RA 6955 and 9208, if the same will be sustained. However, Analyn  is confronted with a lot of challenges that the Philippine state would not be  in a position to supplement or support.  Institutionally, the Philippine set-up is not wanting in terms of appropriate mechanisms to run after the perpetrators.

D. Feminist Interpretations of the Mail Order Bride Phenomenon

Much have been written about the mail order bride phenomenon, which particularly analyzes the gender and social contexts that brought about the industry and how such constructs have impacted on the lives of the women.  The discourses have illustrated the different levels of subordination which locates women,  particularly those who come from the typical sending countries like the Philippines.  Women are considered to be in several binds, where they are caught up in relationships that place them in situations of utter disempowerment.  These relationships involve the mail-order bride agencies, the consumers/prospective husbands, the sending State and the receiving State.

Both mail order bride agencies and the prospective husbands are seen as feeding on racial and sexual stereotypes of Filipino women as those having “traditional values who seek to please men and who do not believe in divorce,”79 while at the same time, trashing their Western female counterparts as too “liberated” and “feminist” that they are not ideal wives,80 This is reflective of the tendencies of the dominant class to pit the subordinate class against each other.81 Further, sexual and racial inequality underlie these relationships where Asian women are seen as subordinates both by reason of being women, dominated by men, and as being Asians, where the Western race is supreme.82

Beneath these relationships lie more layers of institutionalized subordination.  One layer concerns the women’s relationship with its own State.  The mail-order bride industry also derives its existence from the economic and social contexts of the Filipino women.  Poverty and gender have contributed to the “forced” option on the part of Filipino women to get involved in the industry.83 A country like the Philippines continue to be patriarchal, creating several layers of burden on the part of the woman, not to mention the growing unemployment in the country which contributed to the feminization of migration.

These relationships lie in a bigger, international context that is also burdened with power imbalance and ruled by a relationship of domination and subordination.  The global economic inequality is a primary force that drives the industry.84 It affects the ability of the developing country to be self-sufficient, thereby leaving it in an impoverished state, which engendered transmigration of women.  It also affects how the prospective husband could economically dictate the fate of the woman, and how the woman perceives the prospective husband as wealthy, coming from a Western, developed country and her sure ticket out of poverty.85 Economic colonialism clearly manifests this paternalistic attitude where developing countries and women are fitted into the perspectives and values of the dominant country and sex upon which the industry thrives.86

Another dimension driving the industry is Western sexual imperialism, which affects situations  involving a White man and a non-white woman.  This framing of the relationship takes into account the Western “White Man’s burden” style of dominating the Orient without consideration of the impact on women.  The style has utilized the twin pillars of war and rape, and where the experiences created by the military presence has been a significant contributor to the stereotypes attributed to the Asian women, based on limited exposure by the Western military men to said Asian women.87 The historical pre-disposition have relegated Asians and diasporic Asians to continue living in a colonized experience.88

As synthesized,89 the international mail-order bride industry involves the “politics of subordination perpetuated by the industry: the economic inequality and racial and gender stereotypes relied upon to exploit developing countries and women for a profit.”  All these underlying factors place the mail order brides in several binds and intersect in such a manner that locates her, including the Filipino woman, in such a disempowered context, prone to abuse and exploitation.

The same interpretation may be behind the motivations of the Philippine State in criminalizing the mail order bride industry and including it as a mode of trafficking.  However, several countries, including the USA, have not defined or regulated the mail order bride industry as human trafficking in view of the aspect of consent on the part of the bride, and the presence of legitimizing social and religious force of marriage that plays into the relationships.90

Another prong of the discourse concerns the matters of consent and marriage and were duly addressed by Constable in her book91 as a counter-interpretation of the experiences of mail order brides.  The analysis though did not proceed from the perspective of legal liberalism.  It presented a different take on the Asian mail order bride phenomenon, and addressed some of the issues raised in the studies of Glodava and Onizuka referred to in the Scholes Report.

Constable approached the mail-order bride phenomenon from a contemporary feminist ethnographic approach and presented unpublished stories of couples, which included Filipino women, who went through the experience of mail order marriages or what she termed as correspondence relationships.  She strived to present gendered heterogeneity and differences among women, and its inter-sectionality with other factors as well as the complexity of gender relations and rendition of power, which is not limited to the binary contemplation of male domination and female subordination.92

Her book noted that early critique of mail order brides are grounded on gender inequality and part of traffic in women and are economic and sexual slavery,93 which deviates from the traditional, essentialist, Western concept of gender equality regarding equality in marriage, and a liberated household.94 The greater the deviation from this understanding of gendered labor, the greater the room for exploitation.  Mail order brides who agree to this possibility are therefore victims.  They are women who do not fit this Western ideal and belong to the class of the “Third World Woman,”95 who is incapable of making her own decisions and is a passive victim.  The critique to this approach is that it has often overlooked the “variety of ways in which women in different sociocultural contexts might define liberation.”96

Another issue implicated in the mail order bride phenomenon is the understanding of marriage, a culturally-bound concept, which prevents acceptance of these kinds of correspondence marriages.  One has to allow the appreciation of all the possible stimuli or reasons that inform women in engaging in a correspondence relationship at the first instance, which could be as diverse and plural, and finally deciding to marry the person, which is another level of interrogation that a woman enters into.  These reasons are for sure influenced by one’s experiences.  And also, there are as several reasons why foreign men would want to marry an Asian.  Generalizations of these motivations run the risk of framing women and the men in a box, devoid of diversity and capacity.

The consensual nature of mail order marriages is lost in the investigation when the fact of agency and consent are seen in the context of “buying” and “selling” of brides and decisions derived by the couple, like those based on complementarity of their characters or beings, are devolved into issues of “forced option” and “victimization.”97 This essentially deny a deeper analysis of the more complex nature of gender and power relations.98

Constable then critiqued the study conducted by Glodava and Onizuka as expressing “many of the most common over-generalizations and misunderstandings about correspondence relationships, many of which are echoed in other popular sources and in trafficking literature,”99 like the Scholes Report.  Their analysis of inherent inequalities between the men and mail order wives as translating into assertions of control by the men over their wives thereby creating exploitative conditions, fail to consider the variations in every case, and that the larger political economic context does not necessarily become an issue of control.100 The Glodava and Onizuka study denies any amount of agency to the women, which however is very much present in Constable’s own study.  Constable further highlighted the fact that some women even from professions like medicine, could actually engage in such relationships, and noted the patronizing way by which Filipino mail order brides were profiled as victims “by reason of her assumed youth, innocence, lack of education, and presumed class,” despite the fact that most of them were educated.101 This understanding of women as victims in effect reified the very concepts of the essential oriental images of Asian women that feminists are supposed to seek liberation from.

The general description presented above, according to Constable, “reflects a highly problematic orientalist, essentialist, and universalizing feminist approach and makes false assumptions about the determining role of material factors and political economy,”  and thereby conflating mail order brides with prostitution.102 Feminist studies on prostitution could very well inform the analysis of the mail order brides phenomenon, but which must take into account the distinction between the two.  This concerns providing attention to the woman’s agency, to enable the mail-order bride, just like the commercial sex worker, to share their experiences and be heard, “to uncover resistances to, and contestations of, oppressive and exploitative structures and regimes as well as the visions and ideologies inscribed in women’s practices”103 and place them in the arena of discourse as capable of making choices and decision towards transformation of consciousness and everyday lives.104

ANALYSIS

 As a paper that adopts the positional approach, the law shall be interrogated to take into account the phenomenon that women experience and desiring to achieve the plural truths that may be out there that need to be taken into account in advancing women lives and well-being.  It will undertake the task with full respect to all that have been written by feminists in the struggle to achieve the ideal of equality that has long been elusive not only in the Philippines but in the world today.  As earlier expounded, the analysis seeks to arrive at the plurality of truths in women’s lives that should support a law seeking to support them.

Republic Act (RA) 6955 penalizes profiteering from the matching of Filipino women either on a mail order basis or personal introduction.  The rationale being that such an act is tantamount to prostitution, where women are treated as cattle and where women have been victimized, casting shame on the Filipinos.  It argued that the practice commodifies women and insults what the nation has held sacred.

RA 9208, on the other hand, declared the mail order bride as a route to facilitate trafficking. A mail order bride has been branded as akin to a “prostitute” and the objection to such has obviously proceeded from the fact that the body of the woman is commodified, an act that is essentially against public morals and an insult to the nation.  The law was clearly influenced by the radical feminist perspective, where the business and the resulting abuse and exploitation feeds on the several levels of subordination being experienced by Filipino women.  As in any other argument supporting the banning of prostitution, the law seeks to highlight the victimization of women, rather than theissue of agency on the part of the woman that seeks to avail of this avenue of entering into relationships for whatever reason she deems needed for her to achieve pleasure or end her suffering.  The objective truth that the law accepts is the fact of danger to the women who are the “objects” of such trade or business, and thereby presumes that women would not enter into such relationships and are actually victims in view of the injury or harm that they surely would encounter.  The response then was the law against mail order bride industry.

The treatment of mail order brides has not really taken into account the subjective aspect of women’s decision-making processes- why women participate in such activities, nor the different narratives of women who joined the practice.  A careful investigation into such realities could very well give us insights that would depict the nature of consent when women engaged in such context, whether it concerns the “liberal self” or the “giving self,” as earlier postulated, which would be material in formulating a more appropriate response to the injury sought to be avoided.

Even if taken into account, the law does not validate the narratives that differ from the preferred narratives as sufficient to acknowledge legitimacy in a woman’s action.  By such legal fiat, women who enter into such a relationship are relegated to invisibility, since the law has proclaimed them to be “prostitutes” and “an insult to the nation.”  Such has been the actual consequence of the law’s pronouncements, notwithstanding the fact that the women are supposed to be protected and that they are not to be penalized under the law.

Since the reasons why the practice is considered an insult is not clear, one can only guess that the insult relates to the gender construct of the Filipino woman as restrained and traditional, who waits for her knight in shining armor to woo her, even if that means that that knight is a man believing in the traditional roles of women.  It can also relate to the social construct of traditional notions of relationships and marriage as understood by Philippine society, where women goes through the socially or culturally constructed processes in such relationships, which could actually include the practice of arranged marriages.  The law thus takes on the cultural script that Philippine society has relegated women in terms of relationships and marriage.  Those women who seek out pleasure that would be derived from better conditions and perhaps better relationships, which could include better sexual relationships with foreign partners, are considered as not assuming the Filipino women’s image, thereby “prostitutes.”  Such a woman is therefore under a false consciousness, thereby making consent impossible, and is in need of protection from the State.  Thus, the sovereign State has again dictated what women’s experiences are and what her interpretations of her context should be, affirming further the cultural script which contributes to her continuing gender oppression.

The law did not particularize the women who enters into such relationships and instead lumped them up in one category, as has always been the case, where there is no individuation and where they are all grouped under a unifying victimization- the passive victims.  Instead of removing the cultural script of women as passive victims, the law perpetuated it and placed women anew in a box laden with gender stereotypes.

The absence of disaggregated data in view of the invisibility of this women do not allow direct evidence of the profile of women who indeed agree to be part of this mail order bride industry.  If we rely on the indirect indicators provided by the CFO, an area which could be inquired into would be the  fact that a large part of the women who enter such services are from the educated class, mostly coming from the highly productive age bracket, and cannot be said to be bereft of understanding of what they are engaging in.  The laws do not take their  agency into account, and what could be their narratives in terms of these relationships.  This effectively excluded them from the construction of  probably liberating images and identity that can be worked out of this persistent trend in relationships that cross borders.  The law merely presented perhaps a fraction of the diverse experiences that women encounter in terms of engaging in correspondence relationships.  The stories of women who have a different kind of experience are thus foreclosed and not considered as truths.  Eliminating the aspect of consent and capacity in the investigations of the mail order bride phenomenon clearly prevents a holistic understanding of the reasons why they continue to proliferate.  Due to these reasons, political development of responsive laws have not squarely addressed, much less eliminated, the drivers that contribute to the most abusive and exploitative conditions women could face in these contexts.

 

CONCLUSIONS AND RECOMMENDATIONS 

Despite the illegality of the business, Filipino women continue to engage the system that allows them to meet foreign men.  As mentioned, there is not a single prosecution under RA 6955, and under RA 9208 using this mode in trafficking women.  The case of Analyn cited earlier is clearly a case of trafficking, and for which reason, the accomplices should be prosecuted.  Given that trafficking calls for a higher degree of proof in terms of the mens rea, a prosecution under RA 6955 would be more likely.  However, the case also represents how the laws are not responsive as tools to combat trafficking through the mail order bride system.  It was a typical “after the fact” remediation- the harm has been done.  Analyn was already placed in a context of exploitation, a situation which the laws should be in a position to minimize, if not eliminate.  It is thus imperative to be open-minded about an interrogation of the laws to enable a more responsive legal and regulatory framework that would protect and prevent further oppression for the diasporic Filipina bride.  That the risk is real is not ignored in this paper.

This paper is hesitant of a full agency criterion in view of the reality that women continue to suffer from systematic gender-based oppression.  It adopts the approach of partial agency, which must take into account woman’s context of gender oppression while not repressing totally her agency.

The stigma that attached to the label mail order bride has pushed, and will continue to push, the trafficking of women underground, where they will continue to remain invisible.  If they are, then the protective mantle of the laws would not be able to reach them.  The law must first and foremost be the tool to remove these disempowering labels and stereotypes, and revise the cultural script that has in the first instance placed the women in such constructs.

Given the affirmation of the cultural script, there is no way that the women can be viewed away from the stereotypes that were being propagated by those who are in the business of mail order brides or correspondence relationships.  These businesses operate in a regime of legitimacy and they are only illegal in the Philippines.  Unless the Philippines seeks out those who engage in such businesses extraterritorially and seek extradition of those they find to be criminals under these laws, then the laws would continue to be toothless.  A reframing of the protective direction of the laws might call for a re-scripting of who the Filipino woman should be.  It is said that one of the reasons why there is violence and exploitation in relationships coming from this practice is the unjustified expectation of the men who views Asian women as your stereotypical “good wife” as well as those succumbing to the “Asian fetish.”  Since it is illegal for the Philippine State to even recognize the existence of such a practice, it is just impossible for the State to counter such stereotypes and construct images of women’s lives according to the plurality of experiences and contexts that should inform gender, towards reducing the injury or harm caused by existing societal construction of Filipino women.

The prohibitive mechanism does not augur well for the improvement of trafficking efforts that seek to prevent women from being in contexts of exploitation using the mode of mail order brides.  The fact that they are “invisible” prevented the women to seek protection from the State, so much so that they will lie about their situations.

The Philippines has already institutionalized the support system that could very well address some of the needs of these women, yet inaccessible in view of the label attached to them and the consequential stigma.  The education campaign that seeks to address informational needs of partners in general is a good start, but may still be wanting to capacitate the woman to make an informed decision.  Considering that women will “lie” to avoid being detected as mail order brides, the informational service would then be ineffective.

Perhaps, the more appropriate question is what other information would the women need to enable them to better arrive at an informed decision.  The educational program of the CFO for migrant partners could be enhanced to integrate the liberating script for Filipino woman who has the agency to decide and where the State would undertake to remove the danger or risk of exploitation.  Focus should be on being more compliant with standards towards preventing trafficking of women.

That mail-order brides are not illegal in other countries, at least until now, must be incorporated in the formulation of the appropriate legal response.  The regulatory framework and protective mechanisms being adopted by the Philippines insofar as protecting rights of migrants can very well be used in ensuring that the diasporic Filipino bride would be protected when they reached the receiving country.  Bilateral agreements with receiving countries must be enhanced towards putting into effect the re-scripting and protection of the diasporic Filipino brides.

This paper, given its limitations, cannot present all the possible interpretations of the lives of the diasporic Filipino bride and the ramifications of the structures and institutions that impact on their lives.  It however presents a partial, subjective, and contextualized “truth” that needs to be accounted in reviewing and revisiting the over-all drive to stop trafficking of women.  The law, as a tool for women’s liberation and empowerment, must re-interpret its objectives, substantive content and the processual considerations in achieving protection for the diasporic Filipino bride against violence and exploitation.  There is no pretension that the road towards arriving at the plurality of truths would not be easy, especially in light of competing ideologies.  However, one-sided interpretations will neither contribute nor enhance protection in the most tangible way.  Labeling and stigmatization would render the mail order brides invisible and underground.  Hence a more practical, objective and open-minded approach would perhaps provide a solution: where the woman’s pleasure and motives are surfaced, understood,  accepted, re-scripted and met, and the factors that breed the risk, hazard, injury or harm to the woman are eliminated.  This would call not just for legal prohibitions but more importantly, affirmative and positive actions that eliminate the drivers that place women in situations of danger.

 

 


  • * Cite as Glenda T. Litong, Anti-Mail Order Bride Legislation and Feminist Legal Theory: An Inquiry Towards a Rescript of the Diasporic Filipino Bride Phenomenon in the Philippines, 86 PHIL. L. J.  (2012).
  • ** The author is a member of the Philippine Bar. Ll.B. (University of the Philippines) Ll.M. (George Washington Law School)
  1. The author hesitates to use the label “mail order brides” and proposes that the term “diasporic Filipina bride” be used instead. However, for purposes of facilitating understanding of the phenomenon and consistency, the term “mail order brides,” as generally perceived, shall be used in this paper.
  2. Katharine T. Bartlett, Feminist Legal Methods, 103 Harvard L. Rev. 4, 880 (1990), available at http://www.jstor.org/stable/1341478
  3. Id., at 881.
  4. Id., at 884.
  5. Id.
  6. Kathryn Abrams, Sex Wars Redux: Agency and Coercion In Feminist Legal Theory,95 COLUM. L. REV. 304, 326 (1995).
  7. Robin L. West, The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN’S L. J. 149, 160.
  8. Id.
  9. Ngaire Naffine, The Legal Structure of Self-Ownership: Or the Self-Possessed Man and the Woman Possessed, 25 J. L. & SOC’Y, 193, 205 (1998), available at http://www.jstor.org/stable/1410687
  10. Id., at 207.
  11. Carole Pateman, Women and Consent, 8 Political Theory 149, 162 (May 1980) available at http://www.jstor.org/stable/190792.
  12. Matthew Weait, Harm, Consent and the Limits of Privacy, 13 Feminist Legal Studies 97, 106 (2005).
  13. Id., at 103.
  14. West, supra. note 5 at 160.
  15. Weait, supra. note 10 at 103.
  16. West, supra. note 5 at 159.
  17. West, supra. note 5 at 162.
  18.  Id., at 161.
  19. Id., at 161.
  20. Id., at 177.
  21. Weait, supra. note 10 at 106.
  22. Id., at 108.
  23. West, supra. note 5 at 180.
  24. West, supra. note 5 at 180.
  25. West, supra. note 5 at 180-184; Abrams, supra. note 4 at 308.
  26. West, supra note 5 at 316-8.
  27. Id.
  28. Id., at 184.
  29. Id., at 186.
  30. West, supra. note 5 at 337.
  31. Abrams, supra. note 4 at 310.
  32. Id., at 313.
  33. Id.
  34. Id., at 337.
  35. Id., at 341.
  36. Id., at 337.
  37. Id., at 339.
  38. Id., at 344.
  39. West, supra note 5 at 187.
  40. West, supra note 5 at 180.
  41. Abrams, supra note 4 at 354.
  42. Id., at 355.
  43. Anti Mail-Order Bride Law Philippines Doesn’t Limit Human Trafficking, Women News Network, available at: http://womennewsnetwork.net/2009/07/29/filipinatrafficking814/ (last accessed: 1 Jan. 1, 2011).
  44. Jonathan M. Hicap, Filipina Mail-Order Brides Vulnerable to Abuse, Korea Times, available at: http://www.koreatimes.co.kr/www/news/nation/2009/10/211_53320.html (last accessed: Jan. 1, 2011).
  45. Anti Mail-Order Bride Law Philippines Doesn’t Limit Human Trafficking, supra note 43.
  46. Rep. Act No. 6955 §1 (1990) entitled AN ACT TO DECLARE UNLAWFUL THE PRACTICE OF MATCHING FILIPINO WOMEN FOR MARRIAGE TO FOREIGN NATIONALS ON A MAIL-ORDER BASIS AND OTHER SIMILAR PRACTICES INCLUDING THE ADVERTISEMENT, PUBLICATION, PRINTING OR DISTRIBUTION OF BROCHURES, FLIERS AND OTHER PROPAGANDA MATERIALS IN FURTHERANCE THEREOF.
  47. Id., §2.
  48. Matt Wilkie, Mail-order schemes used to traffic and abuse Filipino women, available at: http://tropicalpenpals.com/blog/things-related-directly-about-the-philippines/archieve-news/mail-order-schemes-used-to-traffic-and-abuse-filipino-women/ (Accessed Jan. 1, 2011)
  49. Camille Reynaud,Historic, Cultural, and Legal analysis of the ‘Mail Order Bride’ Industry Case Study: The United States and the Philippines, UMI 1485457 (ProQuest LLC , 2010), quoting Xinhua General Overseas News Service, “Philippine Congress Urged to Outlaw Mail Order Bride Business,” April 13, 1989.
  50. Wilkie, supra note 48.
  51. Rep. Act No. 8042 (1995). Migrant Workers and Overseas Filipinos Act of 1995.
  52. Rep. Act. 9208. § 4.
  53. Id. § 3,
  54. Id. § 17.
  55. Id. § 26.
  56. Id. § 20.
  57. B.P. Blg. 79 (1980). §3.
  58. See Philippine Report to the UN Committee on Migrant Workers (CMW/C/phl/Q/1); see also the website of CFO, at http://www.cfo.gov.ph/.
  59. Per Republic Act 8239 and Department of Foreign Affairs Order 28-94. See also Guidelines for the Registration of Filipino emigrants and departing spouses and other partners of foreign nationals (15 June 2004 and 8 February 2007).
  60. Philippine Report to the UN CMW, supra note 58.
  61. Philippine Report to the UN CMW, supra note 58.
  62. Trafficking in Persons 2010 Report, US State Department, available at http://www.state.gov/g/tip/rls/tiprpt/2010/142761.htm (Accessed December 3 2010).
  63. Leonora Angeles and Sirijit Sunanta, Exotic Love at Your Fingertips: Intermarriage Websites, Gendered Representation,and the Transnational Migration of Filipino and Thai Women, 22 PHIL. J. Third World Studies 1, 8-9 (2007).
  64. Robert J. Scholes, The “Mail-Order Bride” Industry and Its Impact on US Immigration, 1998.
  65. Id, at 2.
  66. Citing Paredes-Maceda, 1995.
  67. Angeles, supra., note 63, 10.
  68. Scholes, supra., note 64, citing Glodava and Onizuka, 1994.
  69. Table re: Number of Filipino Spouses and Other Partners of Foreign Nationals by Sex: 1989-2009, Commission on Filipino Overseas, available at http://www.cfo.gov.ph/pdf/statistics/FS%20BY_SEX.pdf. (Accessed January 1 2011).
  70. Id.
  71. Id.
  72. Id.
  73. Id.
  74. Scholes, supra., note 64.
  75. Wilkie, supra., note 48.
  76. Id.
  77. See TFHT Tables on TIP Victims (National) by Type of Exploitation : 2005-2009, TIP Victims (International) by Type of Exploitation : 2005-2009 & TIP Victims by Gender by Age : 2005-2009, Commission on Filipino Overseas, available at http://www.cfo-antitrafficking.org.ph/statistics.htm. (last accessed at January 1, 2011).
  78. Id.
  79. Kathryn Lloyd

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LEGAL AND CONCEPTUAL FRAMEWORK OF BATTERED WOMAN SYNDROME AS A DEFENSE

*

Maria Rowena Amelia V. Guanzon**

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I. Introduction

In September 2011, a woman by the name of Shiela Macapugay hid a .38 caliber gun in the lining of her bag that was undetected by the security in the mall where her husband was working. She fired a fatal shot at her husband and in her attempt to kill herself immediately thereafter, also killed the security guard who tried to stop her from committing suicide.1

The demise of Macapugay’s husband was not a simple but common occurrence. Her husband abandoned her and their child to be with another woman, and denied them of support. These are acts of violence against women protected by Republic Act No. 9262, otherwise known as the Anti-Violence Against Women and Children Act of 2004. Sheila Macapugay is now facing charges of both parricide and murder for the tragedy. If convicted, she will suffer a fate of imprisonment, reclusion perpetua. Fortunately, because of RA 9262, she has a defense available. Her counsel may present evidence that she was suffering from Battered Woman Syndrome (BWS), a justifying circumstance under RA 9262.

Notably, years ago before there was RA 9262, a policewoman, who was battered by her husband, shot him. She pleaded guilty, and years later, was released on parole. Such case would have been a good test case for BWS as a defense but there was no RA 9262 then.

This paper will discuss the legal concepts, as well as the issues and problems of BWS as a legal defense, and the role of psychiatrists, psychologists, barangay officials and counselors. Macapugay’s case has been witnessed by society and jurisprudence since time immemorial, and now, it is a good test case to use the innovations created in RA 9262.

II. The Battered Woman Syndrome (BWS)

A. Legislative History

RA 9262,2 otherwise known as the Anti-VAWC Act, was passed after almost a decade of advocacy by women’s groups, survivors of violence, and mostly female legislators. In the House of Representatives (HOR), two bills on domestic violence were passed, which shows the diversity of women’s groups. One bill provided for protection of women in intimate relations only, while the other, the Anti-Domestic Violence Bill, gave protection to both men and women who are victims of domestic violence as well as household members. In the Senate, what expedited the legislative process was the commitment of Senate President Franklin M. Drilon that it would be passed in the 13th Congress, and the active lobbying by the National Commission on the Role of Filipino Women3 and women’s rights groups. BWS was included in RA 9262 upon the direction of Senator Luisa Estrada, who is a psychiatrist.

B. Definition

Section 3 of RA 9262 defines BWS as a “scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.” It covers all forms of abuse (physical, emotional, psychological, verbal) for as long as these result to a “pattern of psychological and behavioural symptoms.”

BWS is a provision that was writtenin the substitute Senate Bill. It did not appear in the two bills on domestic violence that were passed in the HOR. During the drafting of the substitute Senate Bill, (called a “substitute” because it became the Bill that was reported by the Chairperson to the Senate) the author of this article, who was then the Consultant on Women’s Rights to Senate President Drilon, and Atty. Myrna S. Feliciano, who was a Commissioner of the National Commission on the Role of Filipino Women, decided to include two proposed provisions: (1) Atty. Guanzon’s inclusion of BWS as a justifying circumstance which can acquit the accused woman,4 and (2) Atty. Feliciano’s inclusion of a provision on disqualification of the abuser of a woman with BWS from having custody of their common child.5 The latter envisions a situation when a woman with BWS is fighting a custody battle with her husband or the father of her child, and the circumstance of her being affected by the syndrome might be used against her suitability to be a custodial parent.

During the Bicameral Conference, Representative Imee Marcos added the words “scientifically-defined pattern” to the definition of BWS, which can be problematic in the future since BWS is not yet defined in psychiatry books. Some judges may also tend to have a strict interpretation of this definition since it requires a “scientifically-defined pattern” of abuse. The World Health Organisation also lists BWS in its International Classification of Diseases. Based on an expert in the field, BWS was defined merely as “the development of characteristic physical, psychological and social abnormalities and symptoms, such as depression, low self esteem and isolation, which follow the direct personal experience of a series of violent acts by an intimate partner.”6 The additional requirement of scientific validity can be seen in similar statutes in the United States.

However, our Supreme Court has defined the term “battered woman” in People v. Marivic Genosa,7 as a woman “who is repeatedly subjected to any forceful physical or psychological behaviour by a man in order to coerce her to do something he wants her to do without concern for her rights.” The Court further said that “in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.”8 The Court added that BWS is “characterized by the so-called ‘cycle of violence,’ which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.”9

With this categorical definition, women’s rights lawyers and advocates should now be able to hurdle the problem of definition as applicable to our domestic law. The Genosa decision is the only judicial precedent we have on BWS so far. In that case, the Supreme Court used BWS only as a mitigating circumstance that reduces the penalty, since it preceded the enactment of Section 26 of RA 9262. However, the definition by the Supreme Court was not changed by the subsequent legislation, and will be the basis of future decisions until modified. Because of the ruling in Genosa, it would now be easier for judges to accept BWS as a defense.

There was no discussion on BWS during the Bicameral Conference or on the floor. Even Senate President Drilon, former Secretary of Justice and an expert in criminal law, saw no problem with having this justifying circumstance in a special law. Because of the lack of discussion of the interpretation of the BWS provision in the records, the task is now left solely to the Supreme Court. What is clear, however, is that the syndrome is the justifying circumstance.10

We can expect some problems with the interpretation of this definition in the future. Aside from the problems of lack of sensitivity of many judges and their strict interpretation of BWS, the phrase “scientifically-defined pattern of psychological and behavioural symptoms,” leaves out a wide range of psychological state of women who suffer abuse that may not be classified as BWS. The word “scientific” can result to a restrictive definition or coverage of abuses suffered by women. As cited by other authors on BWS, it also boxes women in the stereotype that woman are irrational and helpless. This will be an obstacle to women who appear to be rational and in control of themselves at the time of the trial. Lawyers and psychiatrists or psychologists may be tempted to make their clients fall under this stereotype in order to assure an acquittal. As a guideline, the general trend in the United States is to test scientific validity under two principles, to wit:

There are no universal standards employed by courts to determine whether the basis upon which the expert testimony is tendered is sufficiently reliable (read valid) to warrant inclusion at trial, but there are two general approaches. One commonly accepted standard used in the U.S. is the Frye standard (Frye v. United States, 1923), which requires that the scientific validity of the evidence must be generally accepted by experts in the particular field of inquiry (see Giannelli, 1983)… Some courts have held that only the technique or methodology employed by the expert, as opposed to the principle itself, must be “generally accepted within the scientific community” (Dyas v. United States, 1977).11 (Emphasis supplied)

As early as 1984, BWS was first recognized as a justifying circumstance in the landmark American case of State v. Kelly,12 which was decided by the New Jersey Supreme Court. The Court defined BWS as “a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.” The Court also recited the “symptoms” of the syndrome and the common personality traits of women afflicted by it, such as low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer’s actions.

The opinion of an expert who can tell the judge whether or not the accused woman has BWS is indispensable to the courts before they could reach a decision. The Kelly opinion states that:

[T]he expert’s testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury’s evaluation of the reasonableness of defendant’s fear for her life.13

Heavily cited in the case of Kelly was prominent psychologist Dr. Leonor E. Walker, known as the “mother” of BWS. She coined the term “battered woman syndrome” and laid out a lot of important principles of BWS.

The first important concept is that it is a post-traumatic stress disorder (PTSD), and not a mental disorder.14

The second important theory is that BWS is a manifestation of learned helplessness. The “theory of learned helplessness” describes the battered woman’s perceptions that she is helpless to stop the abuse and explains why she does not leave her abuser.15

The third important concept is that a battering relationship undergoes a three-phase cycle. These phases are: (1) tension-building accompanied with rising sense of danger, (2) the acute battering incident, and (3) loving contrition.16 The understanding of this theory is crucial in the application of BWS as a legal defense.

In the first phase, there is a gradual escalation of tension displayed by discreet acts causing increased friction such as name-calling, other mean intentional behaviors, and/or physical abuse. The batterer is hostile but not in an extreme manner, while the woman attempts to pacify the batterer.17

In the second phase, the tension continues to escalate until the woman is unable to control the batterer’s angry response pattern.18 This is when the actual physical abuse occurs. In the third phase, the batterer may apologize profusely, try to assist his victim, show kindness and remorse, and shower her with gifts and/or promises. Even the batterer is made to believe that he will never allow himself to be violent again.19 This is reminiscent of when the relationship was starting out, filled with hope and promises for the future, until a second round of the cycle commences again once the woman lets herself be vulnerable.

The definition of BWS is crucial to be re-defined by our judicial system in light of the enactment of RA 9262. No case has followed Genosa even if there are thousands of women like Shiela Macapugay who are suffering violence from their abusive husbands or partners. Some of them might end up killing their partners in retaliation, and hopefully a case will be elevated to the Philippine Supreme Court to further re-define and set some standards governing BWS’s definition.

C. Philippine Jurisprudence

The jurisprudential antecedence of BWS could be gleamed half-a-century before People v. Genosa and the enactment of RA 9262. In the case of People v. Canja,20 a man who had a gambling, drinking and infidelity problem frequently beat up his lawful wife. One evening, while the man was sleeping, his wife killed him, and confessed the crime to her daughter. Her confession revealed that she was scared that if she did not kill her husband, he might kill her. The Court did not appreciate the defense of the wife, stating that the cruelty of the husband is not a justification to take away his life. However, in the separate opinion of Justice Marceliano Montemayor, he wrote that the woman deserves executive clemency based on this justification:

The violence with which the appellant killed her husband reveals the pent-up righteous anger and rebellion against years of abuse, insult, and tyranny seldom heard of. Considering all these circumstances and provocations, including the fact as already stated, that her conviction was based on her own confession, I repeat that the appellant is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of her life sentence.”21 (Emphasis supplied)

This shows that as early as the 1950s, a Supreme Court Justice already had an opinion on the unfairness of the law in the treatment of women who commit crimes propelled by the pain of abusive domestic relationships. However, in the next fifty years, there is merely a line of Supreme Court cases wherein battered women are convicted of parricide in the event they retaliated against their abusers.22

A breakthrough came in the year 2000 in thecase of Marivic Genosa,23 where the Supreme Court acknowledged that it was necessary and indispensable for the court to find out about the state of mind of the accused woman at the time of the commission of the crime, and to ensure that a conviction is based on guilt beyond reasonable doubt. The Court, speaking through Justice Artemio Panganiban, was open to the fact that the “battered wife syndrome” is a viable plea under the traditional concept of self-defense. Hence, the case was remanded to the Regional Trial Court of Ormoc City for reception of the testimony of the psychiatrist, the late Dr. Alfredo Pajarillo, as an expert witness.

The testimony of an expert on BWS who will testify on the state of mind of the accused woman at the time of the commission of the crime is indispensable to her defense. While psychiatrists are generally considered as qualified to testify as expert witnesses, the courts can also accept the expert testimony of psychologists, especially if they are clinical psychologists and/or in the academe.

Four years after the Genosa case was remanded to the trial court, the Supreme Court was faced with the issue of BWS on appeal in 2004. This time, the Supreme Court defined a woman with Battered Wife Syndrome as one “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. The trial court convicted Marivic Genosa for parricide. After remanding the case for the hearing of the expert’s testimony on BWS, the Supreme Court affirmed the conviction of Genosa for parricide but reduced her sentence from fourteen to six years after finding two mitigating circumstances. The Supreme Court applied Article 13, paragraph 9 of the Revised Penal Code on mitigating circumstances, that of “an illness which diminished the exercise of will-power of the offender without however depriving him of the consciousness of his acts.” Having served her sentence while the case was pending, Genosa was set free. Notably, former Chief Justice Hilario Davide, Jr. joined the dissent from the majority opinion in the Genosa ruling because he believed that Marivic Genosa should have been acquitted.

The reason why BWS was not fully appreciated in the case of Genosa was because the majority strictly adhered to the legal framework of self-defense and the need for “unlawful aggression.” There was a lack of appreciation of the theory of BWS as a separate defense all together because it was decided before RA 9262 took effect. That is why, ultimately, the majority simply decided on the reduction of Genosa’s penalty based on mitigating circumstances under Article 13, paragraph 9 of the Revised Penal Code, which refers to the physiological illness that is also mentally debilitating.24 With due respect, although it benefited Genosa, this is an erroneous application of the law because BWS is not a mental illness. It is also not a defense of insanity,25 which exempts the woman from criminal liability but will require her confinement in a mental institution. The woman can be aware of what she is doing when she executes the fatal act. It would be easier for judges to apply BWS if their understanding thereof is insanity, but it is not. BWS is widely recognized as Post Traumatic Stress Disorder (PTSD) or a sub-category of PTSD in the United States.

RA 9262 went further by providing that BWS is a justifying circumstance notwithstanding that any of the elements of self-defense26 is lacking. The emphasis on “notwithstanding that any of the elements of self-defense is lacking” was added precisely to avoid its confusion with the rule on self-defense under the penal laws. Under RA 9262, BWS is not merely a mitigating circumstance under Article 13 of the Revised Penal Code that has the effect of reducing the penalty by one or two degrees lower.27 BWS is a justifying circumstance that absolves the battered woman from criminal and civil liability.28

III. The Critical Elements Of BWS

Why don’t we just let the battered woman plead self-defense under the Revised Penal Code? Why provide for BWS as a justifying circumstance in RA 9262?

After weighing the options, the consultants, who helped draft the provisions on BWS in the substitute Senate Bill, proposed making BWS a justifying circumstance because they believed that it would be difficult for judges to understand the situation of a battered woman within the framework of self-defense. This is because in most cases, the element of unlawful aggression on the part of the deceased will be absent, such as when a woman executes the fatal act while the man or husband is asleep or drunk. The self-defense rule29 of the Revised Penal Code was designed by male legislators with men in mind. They pictured a fight between men, both having the capacity to strike or defend themselves, or having equal force. Hence, in the self-defense rule, the element of use of reasonable means30 to repel the attack must be present. Surely we cannot expect that as a reasonable requirement when a woman is being beaten up by her husband, because she cannot defend herself with equal force.31 The legislators did not have in mind a case where a woman, acting on a perceived serious threat to her life or her children or loved ones, strikes a fatal blow on the deceased. If you apply the self-defense rule in the battered woman’s situation, she will not get acquitted. At most, she will benefit only from the mitigating circumstance of incomplete self-defense in Article 13(l) because one element of self-defense is lacking.

The rule on self-defense is male-gendered, and because of this gender bias, the woman with BWS may not get justice. Hence the consultants recommended to Senator Luisa Estrada, chair of the Committee on Family, that BWS should be a unique defense, a justifying circumstance.

In American jurisprudence, the critical elements of BWS, as compared to self-defense justifying circumstance, are as follows: (1) The “reasonable person” standard, (2) amount of force, and (3) imminent threat.32

The first element of reasonableness is very crucial as the expert testimony must show “the reasonableness of a defendant’s belief that she was in imminent danger of death or serious injury.”33 This element heavily relies on expert testimony. The expert has to determine whether the woman, at the time she performed the allegedly criminal acts, was in a state of mind wherein she could reasonably believe that if she remains passive, her life will be in peril. This reasonableness standard will help define the next two elements, because the woman must reasonably believe that the amount of force used was necessary to overcome the imminent threat. The amount of force is a notch more complicated than the amount of force element in the traditional self-defense under Article 12 of the Revised Penal Code. Often, experts testify that a battered woman may believe from the cycles of battery that her husband is capable of killing her without a weapon,34 thereby justifying her use of a weapon to quell the imminent danger. It is also complicated by the fact that women are generally smaller in stature than men that they believe they need to use a lethal weapon, such as a gun or a knife, to defend themselves against their batterer.35 Under the rule of self-defense, it will be seen that the use of such weapons might be extreme if only the immediate circumstances are considered.

Note that “imminent” is different in BWS cases, wherein it is possible due to the history of abusive or violent acts by the batterer that the woman merely expects an attack that will put her life or those of her loved ones in peril. When a woman has BWS, the “reasonableness” of her act should be viewed within the context of the history of abuse, and her mental state at the time of the commission of the crime, which explains the seriousness of her perceived threat to her life. From her history of abuse, the judge and prosecutor can appreciate the woman’s perception of the threat to her or her loved one’s life as serious, imminent, continuing, and that there is no other way for her to survive but to strike back under the circumstances which secures her safety – e.g. hitting the batterer with a lead pipe while he is asleep due to intoxication.

Let us take a look back at the elements of self-defense under the Revised Penal Code. There are three elements of self-defense, under Article 11 of the Revised Penal Code: (1) unlawful aggression, (2) reasonable necessity of the means employed to repel or prevent the attack, and (3) no provocation on the part of the accused. To compare, Section 26 of RA 9262 states that a woman who is suffering from BWS at the time of the commission of the crime shall incur no civil or criminal liability even if any of the elements of self-defense is lacking. Since RA 9262 is a special law, if the accused woman is proven to have BWS, Section 26 of RA 9262 applies and not the self-defense rule in the Revised Penal Code.

Under the Revised Penal Code, when any of the elements of self-defense is lacking, what can also be applied is Article 13 (1) of the Revised Penal Code called “incomplete self-defense,” which mitigates the penalty or reduces it to one or two degrees. Say for example, there was some provocation on the part of the deceased, wherein he slammed his wife against the wall, prompting the wife to stab him with a knife. In incomplete self-defense, the woman will be convicted with the mitigating circumstance of incomplete self-defense (the element of reasonable necessity of means lacking), while under Sec. 26 of RA 9262, the woman will be acquitted if it is shown that she suffered from BWS.

To reiterate, in BWS, the syndrome is the justifying circumstance. The woman’s act should not be judged under the rule on self-defense. Neither should BWS be viewed as insanity, which is an exempting circumstance under the Revised Penal Code.36 True, BWS is vulnerable to the criticism that it is an “abuse excuse.” Joshua Dessler, made a critique on the BWS as a justifying circumstance, wherein he believed that it should not be treated as a justifying circumstance, especially in instances where the woman kills her abuser when the abuser is passive or vulnerable (like when he is sleeping or drunk).37 His main thesis is that while the battered woman syndrome looks into the actor, the wife, justifying circumstances do not. According to him, BWS, the way it has been used as a defense, very closely resembles the plea of temporary insanity.38 The author therefore suggests:

We do not need to focus on syndromes, however, to provide a potential excuse for severely battered women. We can provide a theory for acquittal that is, I think, more consistent with our moral intuitions, and which is not potentially demeaning to the woman. The solution is found in applying the no-fair opportunity prong of excuse theory. A no-fair-opportunity excuse claim is based on some external factor that acts on the individual in a way that convinces us that she did not have a fair opportunity to conform her conduct to the law. The key word here, of course, is fair. This is a normative judgment. We do not need expert psychiatric testimony to handle this question, because this form of excuse recognizes that there is nothing wrong with the woman—what was “wrong” were external circumstances that we believe, but for the grace of God, would probably have caused us, as well, to act unlawfully.39

Dessler therefore agrees with the result of acquittal for battered women, but is merely against the legal framework as it is implemented now in several jurisdictions. In essence, his thesis is to simplify the procedure by doing away with the expert requirement in determining the fairness of the attack. This way, it is clearer to judges that it is not because the woman was crazy, but it was the rational action for the woman to kill her husband for her to be able to quell the abuse.

Another point of comparison of BWS is Article 247 of the Revised Penal Code,40 which punishes a married person only with destierro or banishment or exile when he or she kills his or her spouse or paramour after catching them in the act or in flagrante delicto. Even though the provision seems gender-neutral, referring to “any legally married person,” the Supreme Court has only decided cases under this provision by favouring men.41 If this can be easily understood by judges and by society as a reasonable act of a dishonoured man, why can’t women with BWS be viewed likewise as being justified for killing or injuring their husbands or partners after years of cumulative abuse? Nonetheless, the current rule on death under exculpating circumstances is starkly different from BWS, because in BWS, the woman does not need to catch her husband in the act of infidelity or any other triggering circumstance. It is the continuing abuse that allows her to be free of criminal liability in the event that she kills or injures her abuser, and not the heat of the passion.

Why did the legislators write BWS as justifying circumstance and did not instead merely define it and allow the courts to apply the present law on self-defense? Why not just use insanity as an exempting circumstance42 or the provision on exempting any person who acts under the impulse of an uncontrollable fear of an equal or greater injury?43 In the United States, before several BWS statutes were legislated, the usual plea is for insanity or impaired mental capacity or crime committed at the heat of passion to reduce the penalty to manslaughter.44 This has been severely criticized because of the inherent sexual bias of thinking that a woman is only killing her husband because she is insane, and on top of that, this will only lead to her confinement in a mental institution.45 It is because these defenses do not capture or cover the nuances and reality of battered women, and because of this they might not be accorded justice. Furthermore, these defenses are also mostly likely going to be applied by judges using a male-gendered view, or they might judge a woman’s behaviour using a male standard.

Judges are appointed through a political process and not because of their qualifications for gender sensitivity.46 Gender sensitivity is not one of the requirements for an applicant for judgeship. Using primarily a male perspective, it is easy to convict a battered woman, who kills her lover or husband while he is asleep, with murder. Without seeing the context of the unlawful act and of the history of abuse, it is easy for prosecutors and judges to interpret the woman’s act of hitting the husband or lover on the head while he is asleep or unaware as treachery and convict the woman of parricide or murder. They may be unable to understand the woman’s perceived threat to her life as continuing and imminent even when her abuser is asleep at the time of the commission of the act. The “intent to kill” may also be a problem for defenders of women with BWS, such as in the case of Shiela Macapugay who planned the killing when she hid the gun in her purse, and judges might see this element as far outweighing the mental state of the woman.

As confirmed by Harvard Law School and New York University Law Professor Elizabeth Schneider:

Although the law on self defense is purportedly universally applicable, it is widely recognized that social concepts of justification have been shaped by male experience. Familiar images of self-defense are a soldier, a man protecting his home, his family, or the chastity of his wife; or a man fighting off his assailant. Yet the circumstances in which women kill in self-defense are usually related to physical or sexual abuse by an intimate, not to the conventional barroom brawl or fistfight with a stranger that shapes male experience with self defense.47

Still, Schneider does caution against the use of BWS as a special defense.

As Schneider also notes, that because of gender bias, the acts of men and women are subject to legal expectations and standards. A man who kills his wife or her paramour after catching her in the act with her lover is viewed sympathetically in Philippine society. His motivation is well understood by the courts especially that more than a majority of our judges are men. Article 247 of the Revised Penal Code48 was designed to acquit men who in the eyes of lawmakers and society, are justified in killing their wives in defense of their (male) honor. In contrast, the courts have never acquitted a wife who killed her husband after finding him with another woman, nor has the law, prior to BWS, given reprieve to a woman who kills her batterer in retaliation for repeated, cumulative abuse due to her fear of imminent danger to her or her child’s life.

Battered women defendants face major obstacles in pleading traditional self-defense, especially on (1) the temporal proximity of the danger perceived by the defendant; (2) the requirement of reasonableness of the means or force employed, and (3) the duty to retreat, the latter being used in the United States but not in our jurisdiction.

The traditional self-defense requirements of reasonableness, imminent danger, and equal force are sex-biased — a woman who kills her husband who is a batterer is viewed as inherently unreasonable or irrational because she is going against the norm of what is appropriate behaviour for a woman. She must explain why she didn’t leave him, why she did not call the police, and so on and so forth. For this reason, the history of abuse and previous calls for help by the woman should be proven in court in order for the judge to understand the woman’s difficult situation, and why she killed or injured her husband. The limitations of the Revised Penal Code are too burdensome for the woman who is suffering from BWS, and who, like any human being, merely wants to preserve her life and dignity.

Aside from proving BWS, it is indispensable that the following evidence, among others, must be offered: (1) history of the abuse, (2) economic and social situation of the woman, (3) the number and age of her children who are in her care or inside the home, (4) the lack of access of the woman to support services, (5) that she called for help in previous occasions, (6) what the neighbors or other family members inside the home saw or heard, and (7) conduct and mental state of the accused woman immediately after the act. Barangay49 officials must keep records of prior calls for help or of Barangay Protection Orders50 issued against the husband or partner.

These evidence therefore require that as professionals who are supporting battered women, the counsellors, psychologists and psychiatrists must also study the law and its application, write down notes of interviews of the woman and other informants, keep the records well, and establish a credible reputation in the community or in the country to be able to put forward their expertise and testimony with success in court.

The above evidence are necessary so that the judge can appreciate the context and reasonableness of the woman’s act, what drove her to do such a thing, and why she perceived the threat to her life as present or continuing. Also, it is important for judges to appreciate that the situation of every battered woman is different from another,51 although they will have many things in common. This will prevent stereotyping of women’s actions or reactions to the perceived continuing aggression.

Reasonableness is the area in which the social context of battering must be understood by lawyers, prosecutors and judges. Evidence of battering and the woman’s BWS will give the judge the appropriate context in which to decide whether the woman’s apprehension of imminent danger of death or great bodily harm was reasonable. It is a justifying circumstance of a different tenor, because it looks back to the totality of the experience of the woman with her abuser that led to the killing, rather than merely assessing the killing during the actual killing itself.

IV. Recommendations

A. Guidelines for Lawyers with Cases Involving BWS

As Elizabeth Schneider wrote, “In order for a defense lawyer to believe that a battered woman has a credible claim of self-defense, the lawyer will first have to overcome sex-based stereotypes of reasonableness,understand enough about the experiences of battered women to be able to consider whether the woman’s actions are reasonable, and in a manner sensitive to the problems of gender-bias, be able to listen to the woman’s experiences.”52

The framework of gender bias is useful as a mode of case analysis that must be carefully applied to the facts of each individual case. Lawyers must also understand and appreciate the framework of inequality that shapes these cases because, as Schneider wrote, “the law has been developed with a male norm in mind, and because stereotypes about women, and about battered women in particular, persist in the minds of judges, juries, and lawyers themselves, lawyers need to be critical about their own assumptions, to seek assistance from experts in the field, and to be able to recognize and point out gender bias in the law where it occurs.”53

Prosecutors and judges should do the same. They must be aware of the myths and misconceptions about battering that may impede fair trials. Aside from psychiatrists and psychologists, researchers and counselors can aid the courts in appreciating the woman’s experience of battering, the history of abuse, and the situation that women face in abusive relationships.

The defense lawyer should prove the following: (1) history of violence against the battered woman, (2) her efforts to protect herself in the past and the obstacles to these efforts, (3) the social and psychological impact of violence on her, and (4) the context in which the violence occurred.54

V. Conclusion

As a defense, BWS is not without its share of criticism. Some say that it can be an excuse for murder. Schneider states in her treatise that “the presentation of testimony on battered woman syndrome plays into the patriarchal attitudes that courts have exhibited toward women and women defendants.”55 Women will often be pictured as helpless, irrational, and not in her right mind in order to win a case, and many lawyers will be taking that track to ensure a victory. Psychiatrists who are eager or willing to help may bend over backwards to testify in favor of the woman. These problems will continue to challenge all of us because this will simply tolerate existing stereotypes instead of enlightening the courts of the leeway carved by the law especially for these women.

Aside from that, the following are some issues and problems on BWS as a legal defense: (a) the problem of “intent to kill” versus perceived threat to the woman’s life or the life of her loved ones, (b) male-gendered view or double standard of reasonableness, (c) competence and ethical problems for psychiatrists and psychologists, (d) testimony of expert witnesses are not conclusive, the judges may choose to believe them or not, (e) unevenness of the application of the defense to poor and rich women, because the latter can afford to hire the best expert witnesses and because of class can be viewed more sympathetically by the judges, and (f) stereotyping of battered women.

Some questions also include “is BWS as a justifying circumstance a step forward or backward for women?” And “have we diminished women’s role in the development of legal theory by claiming a new defense in RA 9262?”

Nevertheless, even with these issues and problems, RA 9262 still provides a viable defense for women with BWS. BWS also has probative value in custody cases, wherein the batterer will be disqualified from having custody of the children. It can also surely stand the criticism that it violates the equal protection clause, for the Supreme Court in Genosa has emphatically defined “battered wife syndrome.” With this categorical definition in place, we can be optimistic that the law and BWS as a defense can work for battered women, but if and only if the Judiciary will be true to its gender-sensitive policy.

 


  • * A paper originally delivered in the Experts’ Meeting on Battered Woman Syndrome as a Psychological Concept and a Legal Defense sponsored by the Women’s Crisis Center, Inc. and the Canadian International Development Agency in Innotech, Quezon City, August 9, 2005. It has been edited and updated for publication. Cite as Rowena V. Guanzon, Legal and Conceptual Framework of Battered Woman Syndrome as a Defense, 86 Phil L.J. 1 (page cited) (2011)
  • ** Atty. Rowena V. Guanzon (U.P. Law ‘ 84) has a degree of Master in Public Administration from Harvard University (1995). She is a litigation lawyer known in the pioneer filed of gender discrimination including violence against women. Formerly a Mayor of Cadiz City, Atty. Guanzon is a faculty member of the University of the Philippines College of Law and Officer-in-Charge of the U.P. Law Center Institute for the Administration of Justice. She authored Engendering the Philippine Judiciary, The Davide Court: Its Contributions to Gender and Women’s Rights, and the Anti-Violence Against Women and Their Children Act. In researching for this paper, she was assisted by Marcrese C. Banaag, Maria Graciela D. Base, Celeni Kristine G. Guinto, and Paula Pelaez Plaza.
  1. Penelope Endozo, Woman scorned kills husband, Phil. Daily Inquirer, Sept. 14, 2011, available at http://newsinfo.inquirer.net/59455/woman-scorned-kills-husband.
  2. Took effect on March 27, 2004. The first case filed under this law is the Petition for Temporary and Permanent Protection Order in Melissa Mercado-Martel versus Robert Puyat Martel, Regional Trial Court of Makati City. Presiding Judge Rebecca Mariano issued the first Temporary Protection Order under this law.
  3. The Chairperson of the National Commission on the Role of Filipino Women when R.A. No. 9262 was passed was Aurora Javate-de Dios, former Dean of Miriam College.
  4. Rep. Act No. 9262, §26 (2004).
  5. Rep. Act No. 9262, §28 (2004).
  6. Cited by Zoe Cavern, Battered Woman Syndrome, Australian Domestic and Family Violence Clearinghouse (2003).
  7. G.R. No. 135981, January 15, 2004.
  8. Ibid.
  9. [9] Ibid.
  10. Rev. Pen. Code, art. 11(1).
  11. Regina Schuller and Neil Vidmar, Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature, 16 Law and Human Behavior 273 (1992).
  12. State of New Jersey v. Gladys Kelly, 97 N.J. 178 (1984)
  13. Id.
  14. Leonor Walker, The Battered Woman Syndrome, 41 (2005 ed.).
  15. L. Walker, et al., Beyond the Juror’s Ken: Battered Women, 7 Vt. L. Rev. 1, 6 (1982). Cited in Note, Developments – Domestic Violence, 106 Harv. L. Rev. 1498, 1579 (1993).
  16. Walker, supra note 12 at 91.
  17. Id.
  18. Id. at 94.
  19. Id.
  20. 86 Phil. 522 (1950).
  21. Id.
  22. People v. Samson, G.R. No. 14110, 7 SCRA 478 (1963); People v. Lorenzo, G.R. No. 110107, 240 SCRA 624 (1995). Cited by Myrna Feliciano, The Battered Woman/Child Syndrome, a lecture delivered in the PWJA Convention, Manila Hotel on March 4, 2004.
  23. Supra note 8, Sept. 9, 2000 Resolution.
  24. I Luis Reyes, The Revised Penal Code Criminal Law 320-322, (2008 ed.).
  25. Rev. Pen. Code, art. 12 (1).
  26. 26Rev. Pen. Code, art. 11 (1).
  27. See Rowena Guanzon, Lucid Interval, Philippine Daily Inquirer, January 31, 2004 for the history and rationale of the provision on BWS.
  28. Rep. Act No. 9262, §26 (2004).
  29. Supra note 24.
  30. US v. Molina, 19 Phil 227 (1911); People v. Sumicad, 56 Phil. 657 (1932); US v. Macasaet, 35 Phil. 229 (1916); People v. Montalbo, 56 Phil. 443 (1931).
  31. US v. Apego, 23 Phil. 391 (1912), a case that involved a woman who killed her assailant with a knife thinking he was going after her honor. This case would not have fallen under the defense provided in Rep. Act No. 9262, §26, the attacker being her brother-in-law, however, it shows that the majority was not sensitive to the incapacity of women to match the strength of force of men without the aid of a weapon. The dissenting opinions, however, found reason in the woman’s acts and that she should have been acquitted. See also People v. Jaurigue, 76 Phil. 174 (1946). Compared to People v. Boholst-Caballero, 61 SCRA 180 (1973), where the woman was justified in grabbing her husband’s knife from his belt when he was stranggling her on the ground.
  32. Battered Women Who Kill Their Abusers, 106 Harv. L. Rev. 1574, 1580-1583 (1993).
  33. Id.
  34. Id., at 1582 citing People v. Reeves, 362 N.E.2d 9, 14 (Ill. App. Ct. 1977).
  35. Elizabeth Schneider & Susan Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, 4 Nat’l J. Crim. Def. 141, 167 (1978).
  36. Rev. Pen. Code, art. 12 (1).
  37. Joshua Dessler, Battered Women and Sleeping Abusers: Some Reflections, 3 Ohio St. J. Crim. L. 457 (2006).
  38. Id. at 462, 468.
  39. Id. at 469.
  40. Also applies to parents and the seducers of their minor children. If mere physical injuries are inflicted, the perpetrator is acquitted. See People v. Araquel, G.R. No. L-12629 (1959).
  41. People v. Coricor, 79 Phil. 672 (1947); People v. Magonawal, G.R. No. L-35783 (1975); People v. Abarca, G.R. No. 74433 (1987).
  42. Rev. Pen. Code, art. 12 (1).
  43. Rev. Pen. Code, art. 13 (6).
  44. 34 Am. Jur. Proof of Facts 2d 1, §3 (1983). Citing Elizabeth Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self Defense, 15 Harv. C.R.-C.L. L. Rev. No. 3, 623 (1980).
  45. Id.
  46. Mary Becker, Access to Justice for Battered Women, 12 Journal of Law & Policy 63 (2003).
  47. Elizabeth Schneider, Battered Women and Feminist Lawmaking, Yale University Press (2000).
  48. Art. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

    If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

    These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

    Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

  49. Elected Village Officials
  50. A Barangay Protection Order (BPO) is issued by elected barangay officials without a hearing, within 24 hours from the report of abuse.
  51. Supra note 38 at 75.
  52. Supra note 40.
  53. Id.
  54. Mary Ann Dutton, Validity of “Battered Woman Syndrome” in Criminal Cases Involving Battered Women, (Malcolm Gordon ed. 1994); Dutton, M.A., Understanding women’s responses to domestic violence: A redefinition of battered woman syndrome. 21 Hofstra L. Rev. 1191 (1993); L.E. Walker, Battered women syndrome and self-defense, 6 Notre Dame J.L. Ethics & Pub. Pol’y 321 (1992); Julie Blackman, Potential uses for expert testimony: Ideas toward the representation of battered women who kill, 9 Women’s Rts. L. Rep. 227 (1986).
  55. Supra note 41.

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REVISITING SUPREME COURT DECISIONS: ON MARRIAGE AND PROPERTY

 

Revisiting Supreme Court Decisions:

On Marriage and Property*

 

Katrina Legarda**

 

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“The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court . . . is not obliged to follow blindly a particular decision that it determines, after re-examination, to call for a rectification.”

 

—Justice Ricardo J. Francisco1

  

Introduction 

This article seeks to examine certain decisions of the Supreme Court, which due to some “mutancy,”[1] adversely impact on the marital and property relations of spouses.  First case for discussion is Mallion v. Alcantara.[2]

Wanting to get out from his marriage, Oscar Mallion filed a petition for the declaration of nullity of his marriage under Article 36 of the Family Code[3]—the inimitable psychological incapacity to comply with the essential marital obligations.  His petition was denied. About a year later, Mallion filed another petition seeking the nullity of his marriage on the ground that it was performed without a valid marriage license. Editha Alcantara countered with a motion to dismiss on the grounds of res judicata and forum shopping. Both the Regional Trial Court and the Court of Appeals denied Mallion’s appeal, prompting Mallion to seek recourse before the Supreme Court.  Extraordinarily, the Supreme Court denied Mallion’s petition, opining that res judicata[4], barred Mallion’s second petition.

Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points and matters determined in the former suit.[5] This rule, founded on the precepts of common law, is based on public policy and necessity, as well as the hardship imposed on individuals that they be vexed twice for the same cause.[6]

As a bar by prior judgment, res judicata requires the concurrence of the following requisites: (a) The former judgment is final; (b) The judgment is rendered by a court having jurisdiction over the subject matter and the parties; (c) It is a judgment or an order on the merits; and (d) There is—between the first and second actions—identity of parties, of subject matter, and of causes of action.[7] The test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions.[8] If the evidence would sustain both, the two actions are considered the same. A judgment in the first case is then a bar to the subsequent action.[9]

The Supreme Court ruled that Mallion simply invoked different grounds on the same cause of action—that is, the declaration of nullity of his marriage to Alcantara. However, a closer look shows that the Supreme Court failed to differentiate right of action (the nullity of a marriage) from cause of action (the grounds for nullity).

Unfortunately, because of the alleged technicality of res judicata, the Supreme Court validated a void marriage on the basis of a procedural rule.  This despite the Supreme Court’s own pronouncement in Sy v. CA[10], where it said:

We have relaxed observance of procedural rules, noting that technicalities are not ends in themselves but exist to protect and promote substantive rights of litigants. We said that certain rules ought not to be applied with severity and rigidity if by so doing, the very reason for their existence would be defeated. Hence, when substantial justice plainly requires, exempting a particular case from the operation of technicalities should not be subject to cavil.[11] (Emphasis supplied)

In another case, the Supreme Court said that “the stringent rules of procedures may be relaxed to serve the demands of substantial justice and in the Court’s exercise of equity jurisdiction”[12]

Mallion is just one of the many cases on marriage that not only need to be re-examined, but also rectified. The doctrines established by the cases examined here could erode the foundations of the Philippine legal system. 

BACK TO BASICS: VOID VIS-À-VIS VOIDABLE MARRIAGES

For context, a discussion on the distinction between void and voidable marriages and the elements that comprise a valid marriage is apt.

The Family Code states  three essential requisites for a valid marriage: (1)legal capacity of the contracting parties; (2) who must be a male and a female; and (3) consent freely given in the presence of a solemnizing officer[13]. In addition, formal requisites are required, which include: (1) a solemnizing officer who has authority, (2) a valid marriage license, except in special cases[14], and (3) a marriage ceremony[15].

Except as provided for in Article 35 (2) of the Family Code, the absence of any of the essential or formal requisites makes the marriage void. On the other hand, a defect in any of the essential requisites makes the marriage voidable.[16] The defect in an essential requisite can only be a defect in consent as Article 4 states that the voidable marriages are those indicated in Article 45 of the Family Code.[17] For fairly obvious reasons, there can be no irregularity in any of the essential requisites. However, in the case of an irregularity in any of the formal requisites—though the marriage is still valid—the party causing the irregularity may be civilly, criminally, and administratively liable.[18]

Pertinently, in Niñal v. Bayadog[19], the Supreme Court held that void and voidable marriages are not identical, thus:

A marriage that is annullable is valid until otherwise declared by court; whereas a marriage that is void ab initio is considered as having never to have taken place and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriage can be assailed only during the lifetime of the parties and not after [the] death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53, and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before it annulment are legitimate.[20]

These specific provisions in the Family Code are relevant to bigamy and discussion will be had on present jurisprudence that affects the rights, if not liberty, of people.

 

CONSTRUING BIGAMY AND ARTICLES 40 AND 41: WHAT WENT WRONG?

Bigamy will be discussed from three points of view: (1) where both marriages are valid in all aspects; (2) where thesecond marriage is void for reasons other than the existence of thefirst marriage; and (3) where thefirst marriage is void.

First, when both first and second marriages are valid—in the sense that all requisites are present and the first marriage has not ended in some manner—without any argument and clearly, there is bigamy.

Anent the second and third points of view, Section 29 of Marriage Law of 1929,[22] Article 83 of the New Civil Code,[23] and Article 41 of the Family Code[24] are very similar and relevant for discussion of the situation where the second marriage is void for reasons other than the existence of the first marriage. Based on this, the Supreme Court enumerated the elements of bigamy in Mercado v. Tan:[25]

  1. The offender has been legally married;

  2. The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

  3. He contracts a second or subsequent marriage; and

  4. The second or subsequent marriage has all the essential requisites for validity.[26]

According to Justice Carpio[27], the first three elements merely enumerate what has been provided for by the Revised Penal Code[28]; the last element necessarily follows from the language of the law that the offender contracts a “second or subsequent marriage.”[29] Otherwise stated, it is essential that, for a person to have committed the crime of bigamy, he must have contracted a second marriage that would have been valid (i.e., possessed all the essential requisites of a marriage) had the first (also valid) marriage not existed.

Article 35 of the Family Code provides in part that void marriages are those bigamous or polygamous marriages not falling under Article 41 of the Family Code.[30] What this means is that if the person who contracted the second marriage did not institute a summary proceeding for the declaration of presumptive death of his first spouse, then the second marriage would be void for being bigamous. Under Article 41 of the Family Code, the presumption is that the first marriage is valid.

These principles of bigamous marriages, as embodied in our civil and criminal laws, have been muddled by the Supreme Court in various cases, including Tenebro v. CA[31]. In this case, Veronico Tenebro married Leticia Ancajas in 1990. Soon after, Tenebro left Ancajas after he told her that in 1986 he was previously married to one Hilda Villareyes. Afterwards, Tenebro contracted a third marriage with a certain Nilda Villegas in 1993. Furious, Ancajas filed a complaint for bigamy against Tenebro. Both the lower court and the Court of Appeals found Tenebro guilty of the crime of bigamy.

On appeal to the Supreme Court, Tenebro alleged that a civil court had declared his marriage to Hilda Villareyes void ab initio due to the absence of a marriage ceremony and that the judicial declaration of the nullity of his marriage to Ancajas retroacted to the date on which it had been celebrated.

The Supreme Court held that Article 349 of the Revised Penal Code criminalizes any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. It further held that the Revised Penal Code penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage. The Supreme Court also ruled that a declaration of the nullity of the second marriage on the ground of psychological incapacity “is of absolutely no moment insofar as the State’s penal laws are concerned.”[32] Thus, the subsequent judicial declaration of the nullity of Tenebro’s second marriage is not a defense in avoiding criminal liability for bigamy.

And the question thus arises: Is psychological incapacity an element of legal capacity or of consent to marry? If it is neither, then the Supreme Court should have said that a marriage under Article 36 of the Family Code is more in the nature of a voidable marriage and thus, not a defense to bigamy.

Unfortunately, the Supreme Court did not utilize Article 41 of the Family Code in convicting Tenebro of bigamy. Instead, the Supreme Court based its bigamy conviction on Article 40 of the Family Code which states:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.[33]

Why was Article 40 of the Family Code applied when the Supreme Court merely considers it as a rule of procedure? [34] What are the implications of the Tenebro ruling? As Justice Carpio pointed out in his dissenting opinion in Tenebro:

  1. The mere act of entering into a second marriage contract while the first marriage subsists consummates the crime of bigamy, even if the second marriage were void ab initio on grounds other than the mere existence of the first marriage.[35]

  2. A marriage declared by law void ab initio and judicially confirmed void from the beginning, is deemed valid for the purpose of a criminal prosecution for bigamy.[36]

According to Justice Carpio, in so ruling, the majority opinion simply brushed aside the law and overturned 75 years of consistent rulings that if the second marriage were void on grounds other than the existence of the first marriage, there is no crime of bigamy. Justice Carpio reminded that, “It is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage.”[37]

Article 41 of the Family Code, not Article 40, should have been the basis for convicting Tenebro. It should be reiterated that Article 40 of the Family Code is merely a rule of procedure.[38] It contemplates a situation of two void marriages: a prior existing void marriage and a second marriage that would have been valid had there not been a prior void marriage.

To illustrate Article 40 of the Family Code, the Supreme Court consistently cites the case of Wiegel v. Sempio-Diy.[39] Here, Karl Wiegel sought the declaration of nullity of his marriage to Lilia Wiegel, which was celebrated in 1978, on the ground of Lilia’s previous existing marriage to a certain Eduardo Maxion, which was celebrated in 1972. While admitting that her marriage to Maxion existed, Lilia claimed it to be null and void because they were allegedly forced to enter the marital union. Contesting the validity of the pre-trial court order, Lilia asked that she be able to present evidence before the court not only that the first marriage was vitiated by force, but also to prove that Maxion was already married to somebody else at the time she married him. Judge Sempio-Diy did not allow the presentation of evidence since the existence of force exerted on both parties of the first marriage had already been agreed upon at pre-trial. On a side note, the question also begs itself: is it really possible under Article 48 of the Family Code[40] and its predecessors to stipulate on the ground for nullity of a marriage?

In upholding Sempio-Diy’s order, the Supreme Court held that, first, Lilia does not have to present evidence that her first marriage has been vitiated by force. A marriage vitiated by force is merely voidable—that is, valid until annulled. Since no annulment had yet been made, it is clear that when Lilia married Wiegel, she is still validly married to Maxion. Consequently, her marriage to Wiegel is void.. Second, Lilia does not have to present evidence as to her husband’s alleged marriage at the time they married. While Lilia and Maxion’s marriage is void, it still needs to be declared void by a court.[41] Thus, the Supreme Court said that since the first marriage had not been annulled or declared void, then Lilia was considered a married woman at the time she married Karl, consequently, her marriage with Karl is void. This is a proper application of Article 40, and the author agrees to the various aforementioned conclusions. However, Wiegel is not a case involving bigamy.

It is shocking therefore that the Supreme Court ruled, without qualification, in Terre v. Terre[42] that the second marriage entered into by Atty. Jordan Terre was “bigamous and criminal in nature.” In this case, Dorothy Terre accused Atty. Jordan Terre of grossly immoral conduct for contracting a second marriage and living with another woman, while his prior marriage with Dorothy remained subsisting. It turned out that Dorothy had a previous marriage with one Merlito Bercenilla, her first cousin. Jordan thus believed that his marriage to Dorothy was void ab initio, and that he could contract a second marriage with Helen Malicdem.

The Supreme Court disbarred Jordan for grossly immoral conduct under Rule 138, Sec. 27 of the Rules of Court.[43] The Court held that even if Jordan had entered into his first marriage in good faith, a judicial declaration of the nullity of the same is still required before remarriage. The Supreme Court then held his marriage to Dorothy was valid and his marriage to Helen was “bigamous and criminal” in nature.

But, why was there a need to qualify Jordan’s second marriage as “bigamous and criminal in nature”? Surely, for the criminal liability for bigamy to attach, both the first and second marriages must be valid?

Mercado[44] is yet another “difficult” ruling. Here, at the time of the celebration of the marriage of Vincent Mercado and Consuelo Tan, Mercado was already married to a certain Thelma Oliva. Consequently, Consuelo Tan filed a complaint for bigamy against Mercado. More than a month after the bigamy case was filed, Mercado filed an action for the declaration of nullity of his marriage to Thelma Oliva with the RTC, which judicially declared the marriage between Mercado and Oliva to be null and void on the basis of Article 36 of the Family Code. Mercado was still convicted of bigamy by the lower court and thus, appealed to the Supreme Court.

The Supreme Court ruled that Article 40 of the Family Code (again, a rule of procedure)[45] effectively sets aside the conflicting jurisprudence on whether a judicial declaration of nullity of marriage is necessary before one can contract a subsequent marriage. The fact that the first marriage is void from the beginning cannot now be a defense against a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting a second marriage.[46] That Mercado subsequently obtained a judicial declaration of the nullity of his first marriage was immaterial as the “crime” had already been consummated.

Another Supreme Court decision that has confused the application of the Article 40 of the Family Code is that of Marbella-Bobis v. Bobis.[47] In this case, Isagani Bobis first married a certain Dulce Javier in 1985. Without annulling, nullifying, or terminating his first marriage, Isagani married a second time, to petitioner Imelda Marbella-Bobis in 1996. Then, Isagani married a third time, to one Julia Hernandez. After an information for bigamy was filed against Isagani by Imelda, he initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it had been celebrated without a marriage license. He then moved to have the proceedings in the criminal case suspended invoking the pending civil case for the nullity of his first marriage as a prejudicial question.

The Supreme Court held that the subsequent filing of a civil action for declaration of nullity of a previous marriage does not constitute a prejudicial question to a criminal case for bigamy. Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry and that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.[48]

Surely, reductio ad absurdum, if a person is married to a sibling, there is no need for a prior declaration of nullity. The law itself tells us that the complete absence of a valid marriage license makes a marriage absolutely void.[49] Article 39 of the Family Code is very clear: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.

While Isagani Bobis should not have married three times, should the Supreme Court really have ruled on passion against the “adventurous bigamist”? And which of the three marriages was actually bigamous? Yes, the second marriage in Bobis is void. However, it cannot be considered bigamous through Article 40 of the Family Code. It is the third marriage that is void, illegal, and bigamous under Article 41 of the Family Code.

Either Bobis is right and Morigo v. People[50]is wrong, or vice-versa.

In the case of Morigo, Lucio Morigo married Lucia Barrete, who then reported back to her work in Canada eight days after their marriage. A year later, Barrete filed a petition for divorce against Morigo before the Ontario Court, which petition was granted. Morigo married Maria Lumbago and eventually filed a complaint for judicial declaration of nullity of his marriage to Barrete with the Family Court on the ground that no marriage ceremony had taken place. Soon after, a charge of bigamy was filed against Morigo by Lumbago. Morigo moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his first marriage posed a prejudicial question in the bigamy case. His motion was denied and he was convicted. While the case was on review in the Court of Appeals, the Family Court judicially declared Morigo’s first marriage void for absence of a marriage ceremony. The Court of Appeals, however, affirmed the bigamy conviction on the ground that the subsequent declaration of Morigo and Lucia’s marriage could not acquit Morigo as what is sought to be punished by the Revised Penal Code is the act of contracting a second marriage before the first marriage has been dissolved.

The Supreme Court overturned Morigo’s conviction since the first element of bigamy—that is, that the offender had been legally married—was not present. Morigo and Lucia’s marriage is void ab initio and as such, following the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning.

But was not Morigo still married when he married a second time? Did not the Supreme Court say that a person cannot judge for himself whether his marriage is valid or not? And did not the Supreme Court also tell us that the subsequent filing of a civil action for declaration of nullity of a previous marriage does not constitute a prejudicial question to a criminal case for bigamy; that Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry; and that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage? And finally, unlike Isagani Bobis, both of Morigo’s marriages took place when the Family Code was already in effect, so why was Article 40 not applied?

Interestingly, the Supreme Court distinguished Morigo from Mercado in the Bobis case. The Supreme Court said that in Mercado, while the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated,[51] unlike Morigo, the marriage in Mercado was celebrated on two occasions: “Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.”[52]

Please note, however: In Morigo, there was no marriage ceremony performed by a duly authorized solemnizing officer. In Mercado, the marriage was declared void on the basis of Article 36 of the Family Code—not on the absence of either an essential or a formal requisite. The two cases should not have been compared. Again, I raise the question: Is psychological incapacity an element of legal capacity or of consent to enter into a marriage?

Based on the case of Morigo and present jurisprudence, is it safe to say that:

  1. If one wanted to get out of a criminal conviction, the defense is not psychological incapacity or the lack of a marriage license, but the lack of a marriage ceremony?
  2. If both marriage ceremony and marriage license are elements of formal requisites, then the absence of a marriage license does not have the same effect as the absence of a marriage ceremony? [Please note: A marriage ceremony does not have a particular form, but a marriage license does.]
  3. If the defense were psychological incapacity, it will not acquit one of bigamy? Therefore, psychological incapacity does not render a marriage void? Is the Supreme Court, therefore, ready to say that the presence of psychological incapacity merely makes a marriage voidable? If so, then Mercado is correct?
  4. One will always be a bigamist even if both marriages were void and one did not seek the nullity of the first marriage before subsequently marrying?
  5. No one can ever file a petition based on newly-discovered evidence and a void marriage can be ratified on the basis of res judicata, specifically because of Mallion?
  6. The existence of a judicial declaration of a void marriage is not a defense to bigamy if the ground is any other than the absence of a marriage ceremony?

EQUALLY BOTHERSOME:

THE SUPREME COURT DECISIONS ON PROPERTY RELATIONS

The Supreme Court’s decisions on property relations relating to marriage also deserve an in-depth critique and discussion, beginning with Valdes v. RTC.[53]

Antonio Valdes and Consuelo Gomez-Valdes were married in 1971. In 1992, however, Antonio sought the declaration of the nullity of his marriage to Consuelo on the ground of Article 36 of the Family Code. The petition was granted. The lower court directed Antonio and Consuelo to start proceedings on the liquidation of their common properties under Article 147 of the Family Code, and to comply with the provisions of Articles 50, 51, and 52 of the same Code.  Consuelo sought a clarification of the portion of the decision directing compliance with Articles 50, 51, and 52, asserting that the Family Code contained no provisions on the procedure for the liquidation of common property in “unions without marriage.” The trial court clarified that the property regime of Antonio and Consuelo shall be governed by the rules on co-ownership pursuant to Article 147 of the Family Code as Article 102 on liquidation of the absolute community and Art. 129 on liquidation of the conjugal partnership have no application in Article 36 cases.

The Supreme Court agreed and held that in a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Articles 147 or 148 of the Family Code.[54] The Supreme Court ruled that if the parties had no legal impediment to marry each other, the property acquired by both spouses through their work and industry shall be governed by the rules on co-ownership wherein the property they acquired during their union is presumed to have been obtained through their joint efforts. However, the fruits of the couple’s separate property are not included in the co-ownership.[55] On the other hand, if the common-law spouses suffered a legal impediment to marry or they did not live exclusively with each other, only the property acquired by both of them through their actual joint contribution of money property, or industry shall be owned in common and in proportion to their respective contribution.[56] Finally, the first paragraph of Article 50 of the Family Code, applying Article 43 (2), (3), (4) and (5) relates only by explicit terms, to voidable marriages and exceptionally, to void marriages under Article 40 of the Family Code.

Note, however, that Valdes considers an Article 36 marriage as void; therefore, the property regime is treated as co-ownership under Article 147. If you recall my discussion earlier, I asked the question: Is psychological incapacity an element of legal capacity or consent to enter into a marriage? In the bigamy cases, the Supreme Court says that psychological incapacity is not a defense to bigamy. It does not, however, say that psychological incapacity is a voidable marriage. So how now can Valdes consider such marriage void under Article 147, when in its bigamy decisions, the Supreme Court implies that it is merely voidable? In the bigamy cases, the Supreme Court does not treat psychological incapacity as a defense to bigamy, no matter what. Consequently, it does not treat a psychological incapacity marriage as void because there is no retroactive effect when there is a final judgment declaring the marriage void. How can this be reconciled with Valdes, when after the marriage was declared void, as far as property cases are concerned, the property regime should be liquidated under Article 147 and not under Article 102 or 129? Finally, why should the legitimate children[57] of Article 36 and Article 53 void marriages be deprived of their presumptive legitime, while illegitimate children of the Article 40 marriage are entitled to presumptive legitime?

Why then did the Supreme Court rule the way it did in Cariño v. Cariño?[58]

Here, during his lifetime, the late SPO4 Santiago Cariño contracted two marriages —one with petitioner Susan Nicdao in 1969 and the other with respondent Susan Yee in 1992. Before Santiago Cariño passed away, it was Yee who took care of him and shouldered his medical costs and when he died, it was also Yee who covered the burial expenses. Both Susans filed and successfully received claims for monetary benefits and financial assistance from various government agencies. Feeling aggrieved, Yee filed a collection case against Nicdao to recover the death benefits the latter had received. To bolster her action for collection of sum of money, Yee contended that the marriage of Nicdao and Cariño was void ab initio because it was solemnized without a marriage license. The RTC ruled in favor of Yee and granted her the right to half of what Nicdao received as death benefits.

The Supreme Court ruled, however, that Nicdao is not only solely entitled to Santiago’s death benefits, despite her marriage being void for the absence of a marriage license, but that Yee’s marriage was likewise void for not complying with Article 40 of the Family Code. Yee’s marriage to Cariño was solemnized without Cariño first obtaining a judicial decree declaring his first marriage void. Article 40 of the Family Code requires the declaration of the absolute nullity of a prior marriage, whether void ab initio, for purposes of remarriage. Thus, Santiago and Yee’s marriage is bigamous and no property regime exists as between them.

The Supreme Court correctly ruled that Santiago and Nicdao’s property relations are governed by Article 147 of the Family Code. However, for some reason, the Supreme Court ruled that the property relations of Yee and Santiago are governed by Article 148 of the Family Code. But is it not that, under Article 40 and the Valdes case, the property should have been liquidated under Article 50, applying Article 43, paragraphs (2)-(5)?

Another case inconsistent with the Valdes ruling is Metrobank v. Pascual.[59] During the marital union of Pascual and Florencia Nevalga, Nevalga bought a lot with a three-door apartment in Makati. The lot was registered in Nevalga’s name, “married to Nicholson Pascual.” The marriage was later declared void under Article 36 of the Family Code. In the same decision, the lower court ordered the dissolution and liquidation of the ex-spouses’ conjugal partnership of gains. But the parties went their separate ways without liquidating their conjugal partnership. Later, Nevalga, with the spouses Oliveros, obtained a loan from Metrobank. To secure the obligation, Nevalga and the spouses Oliveros executed several real estate mortgages on their properties, including the lot with the three-door apartment. Nevalga and the spouses Oliveros failed to pay their loan, prompting Metrobank to initiate foreclosure proceedings. The land with the three-door apartment was then auctioned and sold to Metrobank, being the highest bidder. Getting wind of the foreclosure proceedings, Pascual filed with the lower court a complaint to declare the nullity of the mortgage of the subject property. According to him, it was still conjugal property and that it had been mortgaged without his consent. Metrobank countered that it was paraphernal property, it being registered in Nevalga’s name. The lower court declared void the real estate mortgage on the Makati property, ruling that the property was still conjugal in nature since it had been acquired during Pascual’s and Nevalga’s marriage.

The Court of Appeals and the Supreme Court ruled that the disputed property was still conjugal in nature despite the dissolution of the marriage. The Supreme Court further ruled that the termination of the conjugal property regime does not ipso facto end the nature of the conjugal ownership and that the character of the properties acquired before the declaration of nullity continued to subsist as conjugal properties until and after the liquidation and partition of the partnership. In the end, however, the Supreme Court ruled that pending its liquidation following its dissolution, the conjugal partnership of gains is converted into an implied ordinary co-ownership among the surviving spouse and the other heirs of the deceased.[60] And as provided in the Civil Code, each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign, or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

The discussion of the Court seemingly ignored its ruling in Valdes.

The ruling in Ravina v. Villa Abrille[61] is more acceptable.  There is a problem too with the Court’s interpretation of a particular sentence in Article 124 of the Family Code in Ravina.

Spouses Pedro and Mary Ann Villa Abrille acquired a lot and eventually built their family home there. Adjacent to this lot is one bought by Pedro while he was still single. The couple continuously introduced improvements on the lot.  In 1991, Pedro had a mistress and neglected the family. To support the family, Mary Ann, the wife of Pedro, was forced to sell or mortgage their movables. Meanwhile, Pedro offered to sell their house and the two lots to the spouses Ravina. Mary Ann objected to the sale, but the sale nevertheless proceeded. After being refused entry to the conjugal home, Mary Ann and her children filed a complaint for the annulment of sale, specific performance, damages, and attorney’s fees against Pedro and the spouses Ravina with the lower court. The lower court declared the sale void as to the conjugal portion of the lot; the Court of Appeals voided the entire sale.

The Supreme Court affirmed the lower court’s decision and ruled that Article 124 of the Family Code provides that a sale or encumbrance is void if it was done without the consent of both the husband and wife, or in case of one spouse’s inability, without the authority of the court. The court, by way of obiter, declared a problematic statement:

“Just like the rule in absolute community property, if the husband, without the knowledge and consent of the wife, sells the conjugal property, such sale is void. If the sale was with knowledge but without approval of the wife, thereby resulting in a disagreement, such sale is annullable at the instance of the wife who is given five years from the date the contract implementing the decision of the husband to institute the case.[62] (Emphasis supplied)

A disposition without consent is void. If void, the action to question it is imprescriptible. The five-year period in both Article 96[63] and Article 124[64] of the Family Code, which provisions are exactly the same, refers to the administration and enjoyment only of the property. This is the ruling in Homeowners Savings and Loan Bank v. Dailo,[65] where the Supreme Court said that the sale of conjugal property requires the consent of both the husband and wife and the absence of the consent of one renders the entire sale null and void, including the portion of the conjugal property pertaining to the husband who has contracted the sale.[66]

The same principle was applied by the Court in Siochi v. Gozon,[67] where the Supreme Court explained that the law provides that the administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly and these powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

More recently, the Supreme Court in Flores v. Lindo,[68] restating the Homeowners and Siochi rulings, ruled that the execution of a Special Power of Attorney in favor of one spouse is the acceptance by the other spouse that perfected the continuing offer as a binding contract between the parties, making the questioned Deed of Real Estate Mortgage a valid contract.

However, despite Valdes, many Family Courts are still unsure of what provision to apply to property regimes of void marriages under Article 36 of the Family Code. Table 1 tracks what provisions the Court have applied to property regimes falling under Article 36 of the Family Code from the start of the Valdes ruling until recent jurisprudence in 2011.

Table 1: A survey of property regimes applied to Article 36 of the Family Code
CASES APPLYING ARTICLE 147 CASES APPLYING ARTICLES 50-52 COMMENTS
Valdes v. RTCG.R. No. 122749, July 31, 1996 (Vitug, J., 1st Division) Article 147 or 148 is applicable to property regimes of void marriages regardless of the cause thereof.
Marcos v. MarcosG.R. No. 136490, October 19, 2000 (Panganiban, J., 3rd Division) The Supreme Court denied nullity but did not correct the Regional Trial Court when it ruled that the conjugal partnership of gains is to be dissolved according to Articles 126 and 129 in relation to Articles 50-52 of the Family Code.
Dedel v. CAG.R. No. 151867,  January 29, 2004(Ynares-Santiago, J., 1stDivision) The Supreme Court denied nullity but did not affirm separation of properties ruled by the Regional Trial Court nor corrected it that properties be registered in accordance with Article 52 of the Family Code.
Buenaventura v. CAG.R. No. 127358, March 31, 2005 (Azcuna, J., 1st Division) Correct.
Gonzales v. GonzalesG.R. No. 159521, December 16, 2005 (Sandoval-Gutierrez, J., 3rd Division) Correct.
Yu v. YuG.R. No. 164915, March 10, 2006 (Carpio-Morales, J., 3rd Division) Although this is a case of forum-shopping, the Supreme Court ruled that Articles 50-52 of the Family Code and Section 21 of the Supreme Court Rule governs petitions under Article 36 of the Family Code.
Navarro v. NavarroG.R. No. 162049, April 13, 2007 (Quisumbing, J., 2nd Division) The Supreme Court denied nullity but did not correct Regional Trial Court ruling as if it were a legal separation case and that properties are deemed as advance legitimes of the legitimate children.
Maquilan v. MaquilanG.R. No. 155409.  June 8, 2007 (Austria-Martinez, J., 3rd Division) Parties had a compromise Agreement and nullity was yet to be decided, but the Supreme Court said that Article 43 of the Family Code applies in cases falling under Article 36 of the Family Code.
Bier v. Bier, G.R. No. 173294 (February 27, 2008: Corona, 1st Division) The Supreme Court denied nullity but the Regional Trial Court was correct in applying Article 147.
Metrobank v. Pascual, G.R. No. 163744, February 29, 2008 (Velasco, 2nd Division) The Supreme Court ruled that despite the declaration of nullity under Article 36 of the Family Code, the husband could still object to the foreclosure of the conjugal property because termination of the conjugal partnership of gains regime “does not ipso facto end the nature of the conjugal ownership.”
Ugalde v. YsasiG.R. No. 130623, February 29, 2008 (Carpio, 2nd Division) Correct.
Sales v. SalesG.R. No. 174803, July 13, 2009 (Quisumbing, 1st Division) The Regional Trial Court was correct. The Supreme Court, on the other hand, just required evidence to prove ownership, etc.
Cabreza v. CabrezaG.R. No. 171260, September 11, 2009 (Peralta, 3rd Division) The Supreme Court denied nullity but did not correct the Regional Trial Court when it ruled that the conjugal partnership of gains is to be dissolved according to Article 129 of the Family Code.
Camacho-Reyes v. CamachoG.R. No. 185286, August 18, 2010 (Nachura, 2nd Division) The Supreme Court granted nullity but did not correct the Regional Trial Court decision requiring observance of Section 21 of the Supreme Court Rule on Nullity (AM 02-11-10-SC) and compliance with Articles 50-52 of the Family Code.
Baccay v. BaccayG.R. No. 173138, December 1, 2010 (Villarama, 3rd Division) The Supreme Court denied nullity, however, it should have affirmed the Regional Trial Court decision to have parties governed by the regime of complete separation of property.
Dino v. DinoG.R. No. 178044, January 19, 201 (Carpio, 2nd Division) Correct.
Yu v. Reyes-CarpioG.R. No. 189207, June 15, 2011 (Velasco, 1st Division) The Supreme Court affirmed the Regional Trial Court ruling requiring parties to follow the Supreme Court Rule on Nullity and to comply with Articles 50-51 before issuing decree of absolute nullity.

 

Looking into aspects of the absolute community property and conjugal partnership of gains

In Buado v. People,[69] spouses Buado filed a complaint for damages, against Erlinda Nicol for slander.  The lower court ruled in favor of the spouses and upon execution, after finding Erlinda’s properties were insufficient to satisfy the judgment, the deputy sheriff issued a notice of levy of real property on the conjugal property of Erlinda. A year later, Romulo Nicol, Erlinda’s husband, filed a complaint for annulment of certificate of sale and damages with preliminary injunction against the spouses Buado and the deputy sheriff. Romulo alleged that the parties had connived to levy upon and execute his real property without exhausting Erlinda’s personal properties.

In ruling in favor of the Nicol spouses, the Supreme Court found that that the contested property was conjugal in nature and that Article 122 of the Family Code explicitly provides that payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. The Court further ruled that the conjugal partnership of gains has no duty to make advance payments for the liability of the debtor-spouse and that “[P]arenthetically, by no stretch of imagination can it be concluded that the civil obligation arising from the crime of slander committed by Erlinda redounded to the benefit of the conjugal partnership.”[70]

Emphasis must be placed on the Supreme Court’s statement that, “The conjugal partnership of gains has no duty to make advance payments for the liability of the debtor-spouse.” The Supreme Court failed to take into account the whole of Article 122 of the Family Code, which provides:

Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.

However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose above-mentioned.[71] (Emphasis supplied)

The Supreme Court also ignored its ruling in People v. Lagrimas,[72] where Lagrimas was convicted of murder and the victim’s heirs applied for the issuance of a writ of preliminary attachment on the property of Lagrimas. Levy was made on certain parcels of land, which Mercedes Lagrimas, the wife of the accused, opposed. According to Mercedes, these parcels belonged to their conjugal partnership and, therefore could not be held liable for her husband’s liability for damages.

The Supreme Court ruled that the subject parcels of land may be validly attached as payment for Lagrimas’ civil liability:

Fines and indemnities imposed upon either husband or wife “may be enforced against the partnership assets after the responsibilities enumerated in article 161 have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient.” It is quite plain, therefore, that the period during which such a liability may be enforced presupposes that the conjugal partnership is still existing. The law speaks of “partnership assets.” It contemplates that the responsibilities to which enumerated in Article 161, chargeable against such assets, must be complied with first. It is thus obvious that the termination of the conjugal partnership is not contemplated as a prerequisite. Whatever doubt may still remain should be erased by the concluding portion of this article which provides that “at the time of the liquidation of the partnership such spouse shall be charged for what has been paid for the purposes above-mentioned.[73]

The Court further said that:

In doing justice to the heirs of the murdered victim, no injustice is committed against the family of the offender. It is made a condition under this article of the Civil Code that the responsibilities enumerated in Article 161, covering primarily the maintenance of the family and the education of the children of the spouses or the legitimate children of one of them as well as other obligations of a preferential character, are first satisfied.[74]

More importantly, the Court said:

What other conclusion can there be than that the interpretation placed upon this provision in the challenged order is at war with the plain terms thereof? It cannot elicit our acceptance. Nor is the reason for such a codal provision difficult to discern. It is a fundamental postulate of our law that every person criminally liable for felony is also civilly liable.[75]

Why is there the difference in treatment? Is it because the crime in Buado was not murder, but only slander? Does this mean today, heirs of a murdered victim can never be indemnified for as long as the accused is under the regime of the conjugal partnership of gains?

 

Conclusion

From the cases examined, there is undoubtedly a sharp conflict among certain decisions of the Supreme Court. These contradicting, if not erroneous, decisions not only confuse our understanding of Philippine jurisprudence, but also greatly affect how justice is served.  Clearly, there is a need for our courts to rectify and shed light on these matters. The Supreme Court can do this as it has said that “as the highest court of the land, [it] may be guided but is not controlled by precedent. Thus, the Court . . . is not obliged to follow blindly a particular decision that it determines, after re-examination, to call for a rectification.” [76]

 

 

 



* Cite as Katrina Legarda, Revisiting Supreme Court Decisions: On Marriage and Property, 86 Phil. L.J. (beginning page number) (2012). Originally a lecture for the Philippine Judicial Academy delivered at the Bayanihan Hall, Unilab Compound, Pasig City on November 23, 2011. It has been edited and formatted for purposes of publication.

** University of Bristol, England (B.A. Hons., History ’75); University of the Philippines College of Law (Ll.B. ’80, graduated 5th in class); Member, Order of the Purple Feather; Former Partner, Angara Abello Concepcion Regala and Cruz Law Offices; Professorial Lecturer, University of the Philippines College of Law; Faculty member, De La Salle University College of Law; Faculty member and special consultant, Lyceum of the Philippines University College of Law; Professorial Lecturer II and Research Group member, Philippine Judicial Academy; Co-founder and trustee, Child Justice League, a foundation that provides legal assistance to abused children and children in conflict with the law; Recipient, Soroptimist International recognitions, “Women Helping Women” and “Woman Advancing the Status of Women;” Recipient, Paralegal ng Bayan 1999 Award; Cited as a Leader of Millennium in the Philippine Year Book 2000; Recipient, Rotary International Most Outstanding Peace Advocate Award, 2010. The author would like to thank the following persons for their assistance in preparing this article:

  1. Dean Ma. Soledad Margarita Deriquito Mawis, University of the Philippines (BA PoS ’83, cum laude) (Ll.B. ’88, graduated 15th in class); Dean, Lyceum of the Philippines University College of Law; Faculty member, De La Salle University College of Law; former faculty Adamson University College of Law; former faculty John Gokongwei School of Business, Ateneo de Manila University; Director At Large and Treasurer, Philippine Association of Law Schools; Senior Partner, Gatchalian Castro and Mawis Law Firm.
  2. Sara Mae D. Mawis, currently a third year law student from the Ateneo de Manila University.
  3. Jude Amadeus R. Marfil, currently a first year law student from the University of the Philippines, Diliman.

1 De Castro v. JBC, 618 SCRA 639 (2010), citing Limketkai v. CA, 261 SCRA 464 (1996). Thank you Professor Ben Balane.

[2] 506 SCRA 336 (2006).

[3] Family Code, art. 36 provides: “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.” (As amended by Executive Order 227)

[4] Rules of Court, Rule 39, § 47 (b).

[5] Dela Cruz v. Joaquin, 464 SCRA 576 (2005), citing Taganas v. Emuslan, 410 SCRA 237, 241, (2003); Bardillon v. Barangay Masili of Calamba, 402 SCRA 440, 446, (2003); Oropeza Marketing Corp. v. Allied Banking Corp., 441 Phil. 551, 563 (2002).

[6] Supra note 3 at 342, citing Cruz v. CA, 482 SCRA 379 (2006); Heirs of the Late Faustina Adalid v. CA, 459 SCRA 27 (2005).

[7] Supra note 3 at 344, citing Luzon Development Bank v. Conquilla, 470 SCRA 533 (2005).

[8] Id.

[9] Id., citing Sangalang v. Caparas, 151 SCRA 53 (1987).

[10] 330 SCRA 550 (2000).

[11] Id. at 556 (2000), citing GSIS v. CA, 266 SCRA 187, 198 (1997); Mauna v. CA, 232 SCRA 388, 398 (1994); Aguilar v. CA, 250 SCRA 371 (1995).

[12] Almelor v. RTC, 563 SCRA 447, 457 (2008).

[13] Family Code, art. 2.

[14] Family Code, art. 27-34.

[15] Family Code, art. 3.

[16] Family Code, art. 4

[17] Id.

[18] Id.

[19] 328 SCRA 122 (1995).

[20] Id. at 134.

[21] Family Code, art. 39.

[22] Act No. 3613, § 29 (1929) provides

Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:

(a)    The first marriage was annulled or dissolved;

(b)    The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage so contracted being valid in either case until declared null and void by a competent court.

[23] Civil Code, art. 83 states,

Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:

(1)    The first marriage was annulled or dissolved; or

(2)    The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Arts. 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.”

[24] Family Code, art. 41 states,

A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

[25] 337 SCRA 122, 127 (2000).

[26] Supra at 127, citing IILuis B. Reyes, The Revised Penal Code 828 (13th ed. 1993).

[27] Tenebro v. CA, 423 SCRA 272, 298, Feb. 18, 2004 (Carpio, J., dissenting)

[28] Rev. Pen. Code., art. 349 states “The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.”

[29] Id.

[30] Family Code, art. 35 (4).

[31] 423 SCRA 272 (2004).

[32] Id. at 282.

[33] Id.; Family Code, art. 40.

[34] Atienza v. Brillantes, 243 SCRA 32, 35 (1995); Jarillo v. People, 622 SCRA 25 (2010).

[35] Supra note 38 at 302-303.

[36] Id.

[37] Supra note 38 at 293.

[38] Supra note 44.

[39] 143 SCRA 499 (1986).

[40] Family Code, art. 48 provides,

In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.

[41] Supra note 48, citing Vda. de Consuegra v. GSIS, 37 SCRA 315 (1971).

[42] 211 SCRA 6 (1992).

[43] Rules of Court, Rule 138, § 27 states that

A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

[44] Supra note 36.

[45] Supra note 44.

[46] Supra note 53.

[47] 336 SCRA 747 (2000).

[48] Id., citing Niñal v. Badayog, 243 SCRA 32 (1995).

[49] Supra note 14.

[50] 422 SCRA 376 (2004).

[51] Id., citing Mercado v. Tan, 337 SCRA 122, 124 (2000).

[52] Id.

[53] 260 SCRA 221 (1996).

[54] Id., citing Maxey v. CA, 129 SCRA 187 (1984); Aznar, et al. v. Garcia, 102 Phil. 1055 (1958).

[55] Id., citing theFamily Code, arts. 5, 37, & 38.

[56] Id., citing theFamily Code, art. 147.

[57] Family Code, art. 54.

[58] 351 SCRA 127 (2001).

[59] Metrobank v. Pascual,  547 SCRA 247 (2008)

[60] Id., citing Dael v. IAC, 171 SCRA 524, 532-533 (1989).

[61] 604 SCRA 123 (2009).

[62] Id. at 130, citing M. Sta. Maria, Persons And Family Relations Law 511 (4th ed., 2004).

[63] Family Code, art. 96 provides

The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

[64] Family Code, art. 124, states

The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

[65] 453 SCRA 283 (2005).

[66] Id. at289, citing Guiang v. CA, 353 Phil. 578 (1998).

[67] 616 SCRA 87 (2010).

[68] G.R. No. 183984, Apr. 13, 2011.

[69] 586 SCRA 397 (2009).

[70] Id. at 406.

[71] Family Code, art. 122.

[72] 29 SCRA 153 (1969).

[73] Id. at 157.

[74] Id. at 158.

[75] Id.

[76] Supra note 1.


 

RESPONSIBLE PLANNING AND REPRODUCTIVE HEALTH

  

Responsible Planning and Reproductive Health*

 Miriam Defensor-Santiago**

 

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I. The Primacy of Conscience in Catholic Theology

Reproductive Health bills have been passed by the majority of Catholic countries, particularly by Catholic developing countries such as Argentina, Colombia, Ecuador, Guatemala, and Mexico.  Other countries include Italy, Poland, Paraguay, Portugal, and Spain. When the United Nations Fund for Population Activities (UNFPA), now known as the UN Population Fund, profiled 48 Catholic countries, only six countries did not have a reproductive health law.  The Philippines is one of them.

In our country, the Catholic Church is the only major religion that opposes the RH bill.  Other major Christian churches have officially endorsed the RH bill, and in fact have published learned treatises explaining their position.  They are:

  • Interfaith Partnership for the Promotion of Responsible Parenthood, 2007
  • National Council of Churches in the Philippines, 2009
  • Iglesia ni Cristo, 2010
  • Philippine Council of Evangelical Churches, 2011

The position of these Christian churches is supported by the most authoritative body of Islamic clerics in the Philippines, the Assembly of Darul-Iftah of the Autonomous Region in Muslim Mindanao.  These Islamic clerics constitute the top-ranking ulama who are deemed to have the authority to issue opinions on matters facing Islam and Muslims.  In 2003, they issued a fatwah or religious ruling called “Call to Greatness.”  It gives Muslim couples a free choice on whether to practice family planning, particularly child spacing.

Further, the RH bill is supported by a large majority of Filipinos in the country, as shown by certain nationwide surveys.  In October 2008, Social Weather Stations reported that 71 percent of those surveyed were in favor of the RH bill.  In October 2010, Pulse Asia likewise reported that 69 percent of those surveyed were in favor of the RH bill.

Vatican Council II and the Revolution in Moral Theology

Despite these surveys, certain Catholics, notably certain bishops, seem poised to fight to the death against the RH bill.  To understand why Catholics are so divided on this issue, and why there is such fierce antipathy, we must go back to the Second Vatican Council, the greatest of the councils held by the Catholic Church.  A Vatican council is an ecumenical council, meaning that it includes the whole Christian world, or the universal Church.  The decisions of an ecumenical council are considered authoritative.

Vatican II, which was held from 1962 to 1965, immediately unleashed a tidal wave of change.  It is now viewed as the most tumultuous decade in the whole modern history of the Church.  In the words of an eminent Catholic historian: “So many spiritual and religious landmarks were suddenly swept away that the average Catholic was left in a state of complete bewilderment.”[1]

The central issue of Vatican II was authority.  Before Vatican II, the typical Catholic accepted the authoritarian structure of the Church “as a dictate of divine revelation.”[2] This author’s generation was still very young at that time.  It was a generation that was taught that the Pope was a kind of superhuman potentate whose every word was a command coming from a supernatural authority.  The autocratic procedures of the Church were positively medieval.

However, with Vatican II, the seeds of a democratic revolution were sown.  It emphasized that the Church is primarily the whole people of God.  It called for dialogue between all members of the Church.  It asserted that the Pope and bishops are collegial.  It also called for the establishment of senates among the priests, and of pastoral councils that include the laity.

With authority as the central issue, the Church reached a state of extreme tension when Pope Paul VI issued his encyclical Humanae Vitae.  An encyclical is a papal letter sent to all bishops of the Catholic Church.  Humanae Vitae condemned the use of artificial methods of contraception, including the pill.  Notably, the Pope did not act collegially with the bishops in issuing his encyclical.

The current problem of authority in the Church is rooted in a conflict between two theologies:

  1. Traditional theology, which still sees the Church as a superstate governed by an absolute monarch, whose aim is to impose the maximum amount of conformity.
  2. Progressive theology, which sees the Church as, above all, a fellowship of spiritual communities held together in essentials by their recognition of papal primacy.[3]

In the pre-Vatican II Church, the independence of the individual conscience was kept to a minimum.  In the past, the task of the layman was simply to obey the directives of bishops and priests.  However, in the post-Vatican II Church, there is now a mood of questioning.  Many Filipino Catholics, as Philippine surveys show, are no longer willing to obey the Church blindly.  “In a few years the climate in the Church changed so drastically that few bishops dared to express a hard line on Pope Paul’s birth control encyclical.  Most of them followed a generally permissive policy.”[4]

The divide between pre-Vatican II theology and post-Vatican II theology is mirrored in the RH debate among Catholic Filipinos.  Theology means the branch of knowledge that deals with Christian theistic religion.  It also means the organized body of knowledge dealing with the nature, attributes, and governance of God; in other words, divinity.

Since Vatican II, the Catholic Church has been divided into two schools of thought in theology and in ecclesiology.  The two camps in theology are:

  1. The classicist or traditional Catholics on the one hand; and
  2. The historically conditioned or progressive Catholics on the other hand.

The two schools of thoughts on ecclesiology, meaning the branch of knowledge that deals with the Christian Church, are:

  1. Pre-Vatican II ecclesiology, which stresses the constitutional and hierarchical aspects of the Church; and
  2. Post-Vatican II progressive ecclesiology, which understands the Church as the whole People of God, always in need of renewal and reform.

This division into two schools of thought in theology and in ecclesiology represents a crisis of authority within the Catholic Church.  This crisis is represented as a transition, and thus has a certain implication.  In the words of a Catholic historian:

One way of looking at the current crisis of authority is to see it as the travails of a Church still trying to make the transition from the classicist to a historically conscious worldview.  The classicist mentality viewed the Church as moving through history, but more or less unaffected by history.  The historically conscious point of view, however, acknowledged how much institutions, governing precepts, and basic ideas about religion and morality are shaped by history, and therefore how relative they are.[5]

The post-Vatican II period has seen a revolution in moral theology in the Catholic Church due to the following factors:

  • The acceptance of the historical dimension.
  • The profound shift of emphasis on the Church not only as a hierarchical institution, but also as a sacrament, as people of God, and as servants.
  • The adoption by Vatican II of an ecumenical point of view, which now considers the experience, reflection, and wisdom of the other Christian churches.

Vatican II emphasizes the nature of the Church as an eschatological, very imperfect, and unfinished reality.  Eschatology is the branch of theology that deals with the four last things – death, judgment, heaven and hell – and the final destiny of the soul and of humankind.  In the past, Catholics viewed certain moral doctrines as immutable. Today however, many Catholics now accept that so-called immutable moral doctrines should be legitimately re-examined.

One relevant shift in moral theology concerns the principle of proportionalism, which is a new way of looking at actions that cause a double effect, one good and one bad.  According to the theory of proportionalism, a person does not sin in causing the bad effect if there was a proportionate reason.  The basis for this theory is that there is no sin if the person’s intention was aimed at a good effect and not at the bad effect.  Thus, very few actions could be labeled as intrinsically evil.  Certainly the Reproductive Health (RH) Bill is not an intrinsic evil.

Another shift involves the identity of the priest, including the bishop. Today, being a priest really means:

  • The person of the priest is no longer sacred.  There is no longer a strict division between the sacred and the profane.
  •  The treatment of priests and bishops as a special caste in society is no longer observed.  The Church does not consist of the priests and bishops alone.  The Church consists of the whole faith community.  Catholicism is no longer an affair of the person who happened to be born a Catholic, but an affair of the human being who is personally committed.
  • The priest is not a special person just because he performs strictly cultic tasks such as presiding at the Eucharist and administering the sacraments.

With these recent developments in the identity of the priest, one historian was moved to comment: “It is no wonder then that many priests suffer from a sense of confusion about their role.”[6]

 

The Encyclical Humanae Vitae

The Catholic opposition to the RH bill is based on the 1968 encyclical Humanae Vitae issued by Pope Paul VI.  The Latin title literally means “Of Human Life,” but it is more popularly translated as “On the Regulation of Birth.”  This encyclical[7] was the result of a Special Papal Commission established by Pope John XXIII and concluded during the term of Pope Paul VI.  The commission submitted two reports: the majority report, and the minority report.  The majority report proposed that contraception should no longer be condemned.  The minority report urged the Pope to continue to condemn contraception.

Paradoxically, Pope Paul VI decided in favor of the minority view.  His unusual decision shook the Catholic world, and that is the reason why the Catholics in this country are so intensely divided over the RH bill.

After Pope Paul VI rejected the majority report, many Catholics were no longer ready to give blind obedience to his decree.  It is fair to say that no moral issue in the twentieth century impacted so profoundly on the discipline of moral theology.  As a result of the contretemps and the succeeding controversy, Catholics now raise such questions on how conscience is to be sought, the response due to the ordinary magisterium or teaching function of the Pope and bishops, and the meaning of the guidelines of the Holy Spirit.

Catholic theologians, and even some Episcopal conferences, voiced opposition to the Humanae Vitae encyclical, or at least took positions that were less than enthusiastic in their support[8].  Surveys in the United States, for example, have indicated that the overwhelming majority (more than 80%) of Catholics of childbearing age do not, in fact, observe the encyclical’s teachings.

On the one hand, the controversial encyclical adopted the minority report which condemns artificial contraception, based on the following arguments:

  • The constant and perennial teaching of the Church.
  • The natural law asserting that certain acts and generative processes are in some way especially inviolable, precisely because they are generative.  Contraception is evil because it changes an act, which is naturally oriented to procreation, into an act which is oriented to the mutual benefit of the spouses.

On the other hand, the encyclical rejected the majority report, which supports artificial contraception, based on the following arguments:

  • Traditional teaching fails to recognize the evolutionary character of that teaching.  For example, the official Church has changed its teaching in such matters as religious liberty and usury. [9]  A change in that traditional teaching would not necessarily undermine the moral teaching authority of the Church.  Such a change is to be seen, rather, as a step toward a more mature comprehension of the whole doctrine of the Church.
  • The natural-law theory of those who support the traditional teaching has been proved to be erroneous.  Because of this mentality, many advances in medical science were prohibited for a time, and the same was true of other areas of scientific experimentation.  The conjugal act must be viewed not as an isolated reality but in a larger context of human love, family life, education, etc.  This is called the principle of totality.  Sexuality is not ordered only to procreation.  Sacred Scripture says not only: “be fruitful and multiply” (Genesis 1:28), but also: “they become one flesh” (2:24), portraying the partner as another self (2:18).

This article shall emphasize the most categorical support for artificial contraception in the majority opinion:

In some cases intercourse can be required as a manifestation of self-giving love, directed to the good of the other person or of the community, while at the same time a new life cannot be received.  This is neither egocentricity nor hedonism, but a legitimate communication of persons through gestures proper to beings composed of body and soul with sexual powers.[10]

The whole controversy over the encyclical is painful and disturbing to a Catholic.  But it has also aroused the ordinary Catholic to be much more aware of her own personal responsibility.  It has made the Catholic realize that the Church hierarchy does not have all the answers.  It has forced her to think about the role of individual conscience.

The teaching of the Catholic Church on contraception is one of the important reasons why the absolute authority of the Church has grown weaker over the years.  The RH Act is a result of the deepened sense of history among Catholics.  Many Catholics are now more aware that Church authorities have made wrong decisions in the past.  To the mind of this author, those errors show that certain teachings should only be relative to their own times, and not permanent for all times.  The author humbly appeals to Church authorities to emphasize strong leadership on moral issues such as war and peace, poverty, and corruption in government, instead of a non-issue like the RH Act.

Humanae Vitae defends the rhythm method.  Thus, it rests its argument on the physiological structure of the act.  However, certain contemporary theologians insist that the basic criterion for the meaning of human actions is the total person, and not some isolated aspect of the person.

This author humbly submits that the reason for an exclusive rhythm method given in Humanae Vitae was too strongly biological.  It is likewise this author’s submission that Humanae Vitae has opened a disconnect with Vatican II, which allowed for a wider basis for evaluating the morality of such a human act, namely, “the full sense of mutual self-giving and human procreation in the context of true love.”[11]

A Reformulation of Catholic Doctrine

After Vatican Council II, Catholic doctrines began to be reformulated under the recent historical theology.  According to a Church historian, the guiding principles of this new historical theology are:

  • The inadequacy of every era to define truth for future eras.
  •  The traditional view of revelation as the transmission of definite fixed concepts was replaced by the idea of revelation as a personal self-disclosure by which God encounters the total person and communicates with him in a historical dialogue.
  • Therefore, no formula of faith can exhaust the truth.  It can be exchanged for another formula more meaningful to the contemporary mind.
  • Every formulation of a divine mystery is only the beginning, never the terminus.
  •  A theory of the development of dogma which emphasizes the social, historical, and non-conceptual forces impinging on this process. [12]

On the basis of these principles, Catholic doctrines have been reformulated.  This paper shall take an overview of this process.  One of the first to reformulate Catholic doctrine was a famous book entitled A New Catechism, and subtitled Catholic Faith for Adults.  It was originally published in 1966, but later revised in 1970, under the general responsibility of the Dutch hierarchy.  It became an international bestseller.

This so-called Dutch Catechism contained a section on Family Planning.  It noted that there was a clear development in the late 1960s, both within and outside the Church, toward the use of several methods in regulating births.  The Dutch Catechism said:

There is now a growing sense of the independent human value of sexuality.  Sexuality and fertility are seen more clearly as values which are combined in the one totality of life, rather than as factors simply arranged in the relationship of means to an end. . . .

Are all methods of regulation of births of equal value to the Christian conscience?  The council gave no answer to this question.  It does, however, call on married people to ask themselves conscientiously whether the practices in question do, or fail to do, full justice to the great personal values which should be expressed in sexual intercourse and in the whole of modern life. . . . The last word lies with the conscience, not with the doctor or with the confessor.  But reverence for life undoubtedly demands that no practices be chosen which could be harmful to health for the affective life. (Emphasis added) [13]

Nearly two decades later, in 1986, an Oxford University chaplain took note of the then raging debate on family planning after Vatican Council II.  He wrote:

The resolution of this dilemma between the care for the family and responsible parenthood, on the one hand, and the sustaining love, on the other, seems to be found in contraception.  But as everyone knows, the teaching of the Catholic Church forbids the use of artificial contraceptives . . . There seems to be an impasse at this point . . . .  It may be, therefore, that a positive attitude, marked by purity of heart, could help most to resolve the impasse. [14]

By 1994, a widely-hailed masterpiece, the book entitled Catholicism, stated:

The birth control question, once a sharply divisive issue in the Catholic Church, is no longer a matter of intense discussion among the theologians.  But it retains its importance as a paradigm of the 20th century debates concerning the nature of Catholic morality and the limits of Catholic teaching authority.

What is really the issue here, therefore, is not birth control in this generic sense but contraception, i.e., the intentional placing of a material obstacle to the conception of a child, e.g., a contraceptive pill, an intrauterine device, contraceptive foam, or a condom.

One side argues that contraception by such artificial means is always wrong. This remains the official teaching of the Church today. However, the other side argues that contraception may be not only legitimate under certain circumstances but even mandatory.  This side speaks in terms of “responsible parenthood. . . .” [15]

Liberation Theology

Liberation theology is a theory, originating among Latin American theologians, which interprets liberation from social, political, and economic oppression as an anticipation of eschatological salvation.  Liberation theology is a species of progressive theology, which is based on the following principles:

  • The Church, not just the hierarchy, is a mystery, or a sacrament.
  • The Church, not just the hierarchy, is the whole People of God.
  • The whole People of God participates in the mission of Christ, and not just in the mission of the hierarchy.
  • The mission of the Church includes service to those in need, and not just the preaching of the Gospel or the celebration of the sacraments.

Liberation theology is a part of post-Vatican II ecclesiology, which emphasizes the nature of the Church as an earthly community of human beings who have a mission in and for the world that includes the struggle on behalf of justice, peace, and human rights.

The appearance of liberation theology has been called “one of the most significant developments of the last several decades.”[16] It is called “a new way of doing theology.”  Classical theology is aimed at a deeper understanding of faith. Conversely, liberation theology aims to transform the world, following the famous dictum of Karl Marx that the task of philosophy is not to understand the world, but to change the world.

Classical theology seemed removed from day-to-day experience. In contrast, liberation theology has grown out of the experience of certain Catholics with the harsh reality of the miserable poor.  Classical theology interpreted Jesus’ message of the kingdom as a guide to personal morality.  Liberation theology sees Jesus’ message as, above all, a call to struggle against the social forces of oppression.  Liberation theology believes that the Kingdom of God is partially realized when social justice and love are advanced in society.  When we take a step toward social justice and love, we take one further step toward the final consummation of the Kingdom of God.

It is the author’s view that the struggle for an RH bill to protect the health and quality of life of the mother and child, in the context of unspeakable poverty, is part of liberation theology.  It emphasizes that the Church’s existence is not for itself, but for others.

According to the principal theologian of liberation theology, Gustavo Gutierrez, the Church should be a place of liberation where there is a break from an unjust social order.[17]  This author submits that, in the Philippines, the Church must take a clear stand against social injustice.  In all humility, this author echoes the call of liberation theology: the first step in abolishing injustice is to recognize how much the Church itself is tied to the unjust system that oppresses the very poor.  RH is available to the rich; why should it not be made available to the very poor?

Catholic support for RH is a call to the major themes of liberation theology in a developing country like the Philippines, namely:

  • The injustices visited on the Filipino people by neocolonialism and imperialism.
  •  Reinterpretation of salvation to include every form of servitude; and
  • The Kingdom of God as beginning in this world, in this country, the Philippines, in this time, now.

In the light of the Filipino experience of the poor, we should take a profoundly historical approach to God.  The self-revelation of God and the Filipino’s human response is an ongoing historical process.  The God revealed in Jesus Christ is not an “unmoved mover,” but rather a God whose very essence consists of love.  The RH bill is an enterprise in social justice and in love for the poor.

In 1986, the Vatican made a positive critique of liberation theology by issuing the document entitled Instruction on Christian Freedom and Liberation.  According to the Instruction, the supreme principle of the Church’s social doctrine is Jesus’ great commandment of love.  Christian love, when applied, may take various forms, in accord with the changing circumstances of history.

We now understand that, as compassionate disciples of the Lord, the Church exercises a special option for the poor, and shows them a loving preference.  The compassion and love of the Church must extend toward the poor of whatever kind – to the infant in danger of being aborted and, particularly, to the poverty-stricken Filipino mother denied the basic information about her own reproductive health.

The Primacy of Individual Conscience

In 1965, Pope Paul VI issued an encyclical letter entitled Dignitatis Humanae, also known as Declaration on Religious Freedom.  In Section 3, par. 4, he wrote:

Man perceives and acknowledges the imperatives of the divine law through the mediation of conscience.  In all his activity, a man is bound to follow his conscience in order that he may come to God, the end and purpose of life.   It follows that he is not to be forced to act in a manner contrary to his conscience.  Nor, on the other hand, is he to be restrained from acting in accordance with his conscience, especially in matters religious. [18]  (Emphasis added.)

In 1967, the same Pope Paul VI issued another encyclical entitled Populorum Progressio, also known as On the Development of Peoples.  In Section 37, he wrote:

It is for the parents to decide, with full knowledge of the matter, on the number of their children, taking into account their responsibilities towards God, themselves, the children they have already brought into the world, and the community to which they belong.  In all this they must follow the demands of their own conscience enlightened by God’s law authentically interpreted, and sustained by confidence in Him. [19]  (Emphasis added.)

In 1993, Pope John Paul II issued his encyclical entitled Veritatis Splendor, also known as The Splendor of Truth.  In Section 64, he wrote:

The authority of the Church, when she pronounces on moral questions, in no way undermines the freedom of conscience of Christians.  This is so not only because freedom of conscience is never freedom “from” the truth, but always and only freedom “in” the truth, but also because the Magisterium does not bring to the Christian conscience truths which are extraneous to it; rather, it brings to light the truths which it ought already to possess, developing them from the starting point of the primordial act of faith.  The Church puts herself always and only at the service of conscience, helping it to avoid being tossed to and fro by every wind of doctrine proposed by human deceit (cf. Eph. 4:14), and helping it not to swerve from the truth about the good of man, but rather, especially in some difficult questions, to attain the truth with certainty and to abide in it. [20]  (Emphasis added.)

Against these encyclicals on freedom of conscience, the 1968 encyclical Humanae Vitae by Pope Paul VI, based on a minority report of the papal commission, strikes a discordant note.  It declared as erroneous the principle of totality, under which contraception could be considered morally legitimate, in the context of the totality of a fruitful married life.  Instead, the encyclical declares:

The Church calling human beings back to the observance of the norm of the natural law, as interpreted by constant doctrine, teaches that each and every marriage act must remain open to the transmission of life.[21]

Humanae Vitae by itself has drawn a great divide between Catholics.  It has stirred up a storm, thus:

The negative reaction of many theologians, moralists, and non-moralists alike, was vigorous and widespread.  Bishops’ conferences around the world accepted the encyclical as authoritative teaching.  However, some of these conferences drew attention, for example, to the primacy of conscience, the need to be understanding and forgiving, and the judgment that Catholics who sincerely cannot follow the encyclical’s teaching are not thereby separated from the love of God.  Such themes were sounded by the bishops of Belgium, Germany, The Netherlands, France, Canada, and the Scandinavian countries. [22]  (Emphasis added.)

Of all the bishops who supported the primacy of individual conscience, it was the Scandinavian bishops who put it best, thus:

No one, including the Church can absolve anyone from the obligation to follow his (or her) conscience. . . . If someone for weighty and well considered reasons cannot become convinced of the argumentation of the encyclical, it has always been conceded that he (or she) is allowed to have a different view from that presented in a non-infallible statement of the Church.  No one should be considered a bad Catholic because he (or she) is of such a dissenting opinion.

The 1971 statement made by the U.S. Sacred Congregation for the Clergy over the signature of its cardinal also declares that:

Conscience is inviolable and no person is to be forced to act in a manner contrary to his (or her) conscience, as the moral tradition of the Church attests.  Thus, in pastoral practice priests must not be too quick to assume either complete innocence or moral guilt in the persons they counsel.  One must recognize persons who are “honestly trying to lead a good Christian life.”  There must be confidence “in the mercy of God and the forgiving power of Christ.” [23] (Emphasis added.)

The New Dictionary of Catholic Social Thought took note of the progress of liberal progressive Catholic thinking by analyzing the major modern encyclicals and reaching the following conclusion:

The Catholic Church, in its official pronouncements at least, continues today to affirm that natural family planning and sexual abstinence are the only morally acceptable means of controlling births.

What has become the key issue for Catholic thought in the matter of birth control, therefore, is not the intended ends sought by proponents of artificial birth control, but the morally legitimate means to the admittedly good ends that birth control advocates claim to seek and the human values that will be lost or distorted in using morally illegitimate means.

There seems to be several major concerns behind the continued opposition of Catholic social teaching to the practice of artificial means of birth control, be those means mechanical (condoms, IUDs, diaphragms, cervical caps), chemical (spermicidal agents, the “pill”), or surgical (sterilization, abortion).  Those concerns focus on the dignity of man and woman, the well-being of children and families, and God’s role in the creation of new life.  More cynical or suspicious views of Catholic social teaching would also see a fear and contempt for sex on the part of celibate clerics and a desire by those same celibates to maintain their power in the church and their control over the laity.  Whatever merit such suspicious views may have, they are not necessary to account for the continued opposition of the official teachers of the Roman Catholic Church to artificial contraception. [24]

The book Christ Among Us, which has been described as America’s most popular guide to modern Catholicism, describes the ongoing process of reformulating Catholic doctrine:
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AN ESSAY ON LAW IN SOCIAL DEVELOPMENT

  

An Essay On Law In Social Development*

Dean Merlin M. Magallona**

 

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Problems in Perspective

It would be audacious to deal with the process of social change in Philippine society in all its ethnocentric, religio-cultural complexity as combined with the dynamics of political motive forces and their legal instrumentalities.  To identify in particular the function of the legal system in this process necessarily entails the hazard of theorization and abstraction based on both historical data and assumptions.  This effort, it is realized, becomes all the more formidable in light of the difficulty of designing a paradigm by which such social reality is to be interpreted in the context of “law and development.”  At any rate, a statement of perspectives may be attempted as a response to this challenge.

There is hardly any significant connection between the cultural or ethnographic character of indigenous or traditional Philippine society and the making of what is now established national law system.  The socio-ethnological premises in the origins of the country’s national law were not historically situated in the Philippines.  This phenomenon is traceable to the complete displacement of the customary or indigenous law and its ethnico-cultural values by the legal system of colonialist Spain and, later, by Anglo-American jurisprudence of imperialist United States.  This total displacement was accomplished by the establishment of a State system as the administering mechanism of Spanish colonial empire and its subsequent replacement by a neocolonial State as a framework of American legal culture.  Basic native ideas pertaining to rights, obligations, and modes of dispute settlement did not have the benefit of systematic consideration in the wholesale transfer of legal culture through colonial annexation.

The highly formalized process of law-creation engaged by the State system thus implanted became instrumental in expediently screening out customary law from effective operation and thereby excluded the entire social context integral to the development of law.   What did not emanate as legal norms from the recognized organs of the Colonial State could not have the status of law.  At best, under the new Civil Code, what may have been observed by the native population as customary law, are accorded the status of “custom” which is required to be proved “as a fact, according to the rules of evidence,”[1] and it will not be given effect if “contrary to law, public order or public policy.”[2] It was not until the 1970s that the Muslim personal law came into formal recognition and became part of national law.  Not until the advent of the Organic Act of the Autonomous Region in Muslim Mindanao in 1989 that a token gesture was made through a formal requirement on the Regional Assembly to provide “for the codification of indigenous laws and compilation of customary laws” towards a Tribal Code, on which no significant work has been done to date.

Despite the alienation of the national legal system from the cultural and social matrix, no work of any significance has surveyed the critical problem areas, such as in the administration of justice or in dispute settlement.  Almost nil is the investigation of the social and political impact of laws enacted, studied, interpreted, and applied in a foreign language, on the receptiveness of the people to law compliance and based on the social and cultural values it embodies.  But the problem of legal norms set in foreign languages is hardly defined only in terms of translation of the legal text into the native languages.  That the very concepts or categories of thought in the law are transported from a foreign legal culture and drawn from a different stage of social development constitutes the more fundamental level of dislocation.  It is on the vehicle of this language problem that the social alienation of the legal system is perpetuated.

In the first place, conceptualized and articulated in a foreign language, the law breaks down as a means of communication in governance between the state authorities and the broad masses of people.  Secondly, failing to reflect the distinctive traits and social values of the people, the law can hardly be the mobilizing force of their creative energies which the legal system must assimilate to fulfill its social function in social development.  If the discordance of the legal system with society is on the axiological level, it stands the danger of operating as a centrifugal force, incapable of performing an organizing role in a purposeful program of development. Lastly, the legal system in such a social incongruity becomes identified with the interests of the elite whose mental processes and style of life are sustained by westernized world outlook from which the premises of the imported legal culture is historically and conceptually derived.But hardly is the law perceived as a phenomenon disjointed from the social and cultural character of the people.  What is propagated instead is the idealization of the law as a reflection of a Judaeo-Christian conscience and as the embodiment of the Anglo-American revolution for the rule of law.   The development of the Philippine legal system is largely a process of how the people have been made to grow into the law as it has developed in its varied ramifications from the colonial legal culture.  This continuity is indeed striking, but more so is the socio-cultural distance of the law from socio-cultural reality.  Legal education is thus heavily oriented toward the perpetuation of such ideals, which are transformed into mythic values without much socio-cultural substance the moment they acquire contact with reality in terms of the outlook of the broad ranks of people.

Towards a definition of the problem, a program on law in social development may start from a synthesis of the social structure and level of development of Philippine society at a relevant historical period. Given the main modalities of colonialism through the legal system, its impact on Philippine society in terms of law-and-development problems may be assessed.  The general directions of law reform may be drawn up in the light of the projected path to development as objectively required by the general nature of the problems in the legal system in relation to social objectives.  With these points as background and premise, the relation of law with social development may be brought into significance in the light of globalization trends and the adjustments these would require on the Philippine legal system.

The Function of Law in Social Development

In Asia, Latin America, and Africa, law reform projects have been undertaken in which law assumed a distinct function as an instrument for achieving the desired economic and political development.[3]  In a larger frame, this legal instrumentalism has been interpreted as a mechanism in a political teleology of modernization along the Western model of development.  As synthesized by a leading intepreter, a core conception of law may “prescribe positive programs for the legal developments of the Third World” in which [t]here is the implicit concept of development which equates it with gradual evolution in the direction of the advanced, industrial nations of the West …. [This conception] quite predictably equates modern law with the legal structures and cultures of the West.  The Third World is thus assumed to be doomed to underdevelopment until it adopts a modern Western legal system.[4]

In the Cold War period, law and development projects assumed an ideological motivation on the part of the capital-exporting Western powers and as part of a broad policy orientation to provide conditions of stability for market mechanism in the developing countries.  In the face of socialist-oriented influence, law reforms in Third World countries as sponsored by Western source propagated “rule of law” institutions to provide appropriate conditions for the promotion and protection of private foreign investments.[5]   The process of decolonization that accelerated in the 1960s under the influence of the United Nations decolonization policy accentuated the drive of the Western powers in competition with the socialist bloc to influence Third World developments toward liberal democratic directions and free-enterprise capitalism.  In this light, law and development studies became intensely political not only in terms of sectoral or piecemeal changes but, more significantly, in the rational structuring and canalization of State power as well.  Legal developments in the wake of the independence struggle became an integral part of State construction in the post-colonial regime, which both ideological camps took strategic stake in influencing.  Following the implosion of the Soviet Union, legal instrumentalism finds contemporary context in the transition of the socialist economies into liberal democratic market economies.   Even as constitutional framework undergoes adjustments, legal reforms involved the introduction of democratic regulatory measures in the shift of “command economies” into “market economic societies”, from statist ownership system to privatization.

In this context, legal instrumentalism has acquired a formidable role as a medium for developing market forces and the dissolution of statist elements.  The function of law finds important place in the reconstruction of political power in the relations between the government and the individual citizens and in the relation of the political system with the economy.[6]  On the micro-level it involves the introduction of free-market categories in law such as in contracts and property.  Without the rule of law, it is feared that the process of marketization, side by side with the freedoms of liberal democracy, would result in “klepto-capitalism” or “gangster economics” as in Russia of the early 1990’s.  As noted by one commentator in this light, “the rule of law has been considered another fundamental postulate of the political transformation in societies where the ruling party was “above the law” and arbitrary decisions and government decrees provided the bulk of the institutional framework.” [7]

On the theoretical plane, these approaches find affinity with the function of law in Weber’s paradigm in which the legal system has its highest stage of development in the rationality of modern capitalism associated with the purposive choice of means to attain a clearly defined goal towards profit.[8] Weber connects the rationality of law with the development of capitalism, although he remains imprecise in defining to what extent economic influences affect legal development.  Even as he rejects economic determinism in shaping the rationality of law, he is of the view that “certain rationalizations of economic behavior, based upon such phenomena as a market economy or freedom of contract, and the resulting awareness of underlying and increasingly complex conflicts of interests to be resolved by legal machinery have influenced the systematization of the law.”[9]  Weber’s rationality in law or legal system has been interpreted as refering to a system governed by rules, characterized by legal analysis, and the controlling place of the intellect in a systematized legal order.[10]

From the historical experience of Western industrial countries, a course of legal evolution has been abstracted into a concept of social development intertwined with legal culture.   Law as a social process entails the enforcement of a system of rules as immanent in modern society.  Social control goes into the essential function of law.  The institutionalization of social control in the development of law inevitably entails the transformation of tribal norms or traditional customs into universal or general rules as well as the formation of common social objectives which are subserved by law as a purposive system.[11] Thus, the “core conception” of modern law in social development as contrasted by Trubek from the social ordering of traditional societies, may be presented as a process of disintegration of indigenous or customary law.  This process is integral to the centralization of political authority in the formation of a state.  In the “social ordering of traditional societies”, patterns of conduct are defined and maintained by primary social groups, such as the village, lineage, or tribe.  As a result, normative prescription varies with geographic place and social situation:  There is a separate “law” for each village or tribe, and the “law” that binds the lord is not the law that binds the serf or burgher.  Modern law, on the other hand, consists of general rules applied by specialized agencies universally and uniformly through all regions and to all social strata.  Modern law is also relatively autonomous from other sources of normative order.  Thus, one unitary and superior social entity — the modern legal system — replaces the village or tribe in social control.[12]

Instead of a contrast as Trubek perceives, this phenomenon may be seen as a process of universalization of norms of social control, in which the installation of a state system assumes a central role. Thus, “the rise of modern law supplants local, ‘paternalistic’, and traditional forces, and … [becomes] the vehicle through which the State replaces communal or traditional authority.”[13]

 

Law and Social Development in Historical Experience

The scale of social and economic reality encompassed by Philippine encounter with European colonialism is certainly not comparable with the methods of law and development projects in the contemporary context.  However, the introduction of a legal system, such as on registration or recording of land rights, by the colonial power as an integral part of colonization may serve to illustrate how legal instrumentalism could impact with such massive violence on the life of the indigenous population, with enduring imprint on the country’s social structure today.   The peculiarity in the function of law in question is that it came as a logical extension of the colonial power’s level of social development, in which land even at that time had already become private property and land rights had been commodified.

On the other hand, among the indigenous population as well as among the migrants that settled in the Philippine Archipelago then, land was considered as communal.  The distribution of land parcels by the chieftains or datus of the social units called barangays was on the concept of usufruct, not on fee simple.[14]  In the Cordilleras, the indigenous communities took landholding as a shared resource of all the members together with ancestors, the gods, and future generations.[15]

The wholesale deprivation and dispossession of lands against the indigenous population came with the imposition of the regalian doctrine that unless private rights to lands were proved by the native occupants, all lands belonged to the Spanish Crown.[16]  This legal principle prevailed together with the European concept of private individual ownership, which was implemented by a documentation system. The advent of a more elaborate land registration system all the more accelerated the concentration of land ownership to a select few. Corollarily, it also resulted in the widespread loss of land rights on the part of the native communities that were unable to show documentary proof of ownership over communal lands and ancestral domains.  Land acquisition became a prerogative of the members of the native elite and those who had access to Spanish colonial authorities.  Thus, the colonial land law operated as a means of usurpation en masse that led to a social organization consisting of broad dispossessed masses who are led by a land-owning elite that came to be the repository of political  power in the post-colonial era.

The Spanish land registration law gave motivation for the datus who were the trustee of the communal lands of the barangays to have these registered in their name as individual owners.  In the 16th and 17th century, the native elite led by the Filipino upper class (the principales), enlarged their registered landholdings by encroaching on barangay communal lands and Crown lands, leading to the formation of vast tracts of lands for plantation purposes (haciendas).[17]  The Spanish friars were not to be outdone.  “Ecclesiastical estates”, Phelan notes, “were the largest single item of Spanish-owned latifundia”.[18]

Among the economic factors that motivated the conquest of the Philippines by the United States in the Spanish-American War of 1898 was the prospect of exploitation of its mineral resources.  Immediately following the victory of American naval forces at Manila Bay on 1 May 1898, U.S. Secretary of the Interior C.N. Bliss arranged with the U.S. Secretary of War for a “geologist of the U.S. Geological Survey to accompany the U.S. Military Expedition to the Philippines for the purpose of procuring information touching the geological and mineral resources of said islands.”[19] The report of the geologist “read like a mining stock prospectus.”[20]

Following the military occupation of the Philippines, the U.S. Congress enacted “The Philippine Bill of 1902” which provided for the administration of the country’s first civil government.  Well-known as the vehicle for the historic introduction of the bill of civil and political rights into the Philippine colony, this law substantially was a mining code.  Of its 88 articles, 43 came under the heading “Mineral Lands”, declaring “all valuable mineral deposits in public lands … to be free and open to exploration, occupation, and purchase” and providing  for a detailed procedure of mineral claims and patents.”  The bill of rights appeared to be a sideshow of the mining law; it became a medium of guarantee that US nationals would have the fullest freedom under a rule of law in the exploitation of mining resources.

Historical experience demonstrates that the colonial powers did not have any interest in the development of law as an end, independent from the political and economic motives of colonialism. Obviously, it was inevitable that law was employed as a means integral to that motivation.  However, although admittedly law was an instrument of colonial consolidation and expansion and was applied as a means of control on the native population.

[O]n the other hand, it also set some limits to European intervention and manipulation.  Whether these limits were to the advantage or to the disadvantage of the indigenous population is open to debate  —  but limits they were.[21]

For example, while the bill of rights in the Philippine Bill of 1902 assured U.S. nationals the freedom to deal with mineral resources as part of the general condition of colonial rule, the impact of the guarantees of due process, the rights of the accused person, the freedom of speech, press, assembly, and of religion, and  the right against unreasonable searches went into the foundation of a limited government, which operated as a constraint on the modalities of State power installed by U.S. imperialism at the time.

The complete displacement of indigenous or local law by Spanish colonial law may have been an inevitability springing from the nature of colonization that was at once a process of State construction out of relatively independent barangays in the sixteenth-century Philippines. The formation of a centralized State was not merely a political process; the religious mission of civilizing the natives by converting them to Catholicism was also a campaign of moral cleansing, the elimination of what appeared to the Spanish priests as superstitions embodied in customary law or indigenous morés. The strengthening of colonial rule had to overcome the archipelagic nature of the Philippines by a centralized state structure as the basis of local government.

The advent of U.S. imperialism, this time with the objective  of exploitation of natural resources, the expansion of market for American  manufacturers, and the beginning of direct investments entailed the penetration of Philippine culture and society with commercial and financial laws within the regime of a liberal state that provided the widest latitude for the freedom of markets and profits. More than that, this required the development of a concomitant broad legal culture to be propagated and maintained by the local intelligentsia.  The logic of that legal culture has gone to an absurd extreme in which the country’s fundamental law and legislative enactments are conceptualized, judicially interpreted, popularly disseminated, propagated in the law schools, and effectively applied, all in the English language, the language of the elite and the intellectual sectors that stand apart from the vast masses of people on account of their Westernized educational and cultural values. Hidden from view behind legal structures and political formalism is the social predicament that obstructs the mobilization of the people for meaningful social changes through law.

It may be synthesized that the imposed patterns of socio-religious ideology and practice began to find consolidating mechanism in the system introduced by Spanish colonialism and U.S. imperialism.  The idea of individual salvation of souls through the Catholic Church profoundly impacted on the tribal or family solidarity which held the barangay together and shifted the foundation and process of social development to new basis, namely, the ideology of individualism, a shift that took place with the mediation of indigenous social forces as a historical process. This process continued with the implantation of liberalism by the American colonial administration as propagated through the public school system.  Together with the penetration of the doctrine of individual salvation of souls, the civil and political rights introduced by the Philippine Bill of 1902, came to be the social and cultural forces that worked on the disintegration of tribal and communal consciousness as the social matrix at the time.

The formation of the State in the hands of the Spanish and American colonizers was a negation of social development on the internal logic of native forces at the crucial time when barangays situated in islands later identified as parts of the Philippine archipelago were in the formative process of inter-relationship toward a national community.

As a historical reality the State became a procrustean bed that was established without the formation of a national community on its own internal motion.  Instead, the national community came into being and developed within and under the aegis of the State system constructed and imposed by external forces hostile to native social processes.  The history of State formation was a process of disintegration or uprooting of nascent political tendencies based on native social pattern.  Up to the beginning of the twenty-first century it is no wonder that the broadest ranks of the people are involved in the politics of the State system without understanding their integral role in it. This deeply felt socio-political anomaly is telescoped into the portrait of a people without a civilizational base and unable to command their own force for self-determination.

 

 

 


* Cite as Merlin M. Magallona, An Essay on Law in Social Development, 86 Phil. L. J. (page start), (page cited) (2012).

** Professorial Lecturer, U.P. College of Law; Editor-in-Chief, Journal of the Integrated Bar of the Philippines; Chairman, International and Human Rights Law Department, Philippine Judicial Academy of the Supreme Court; Member, Panel of Arbitrators, Permanent Court of Arbitration, The Hague.

[1] Civil Code, art. 12.

[2] Civil Code, art. 11.

[3]  See David Trubek, Toward a Social Theory of Law: An Essay over the Study of Law and Development, 82 Yale L.J. 1, 2-3, 9-11, 42-47 (1972).

[4]  Id. at 10-11.

[5]  See Merlin M. Magallona, The Philippines-United States Tax Convention: Suggestions for a Perspective, in International Law Issues in Perspective274, 301-02, 315-29 (1996).

[6] See Mihaly Simai, The Democratic Process and the Market: Key Aspects of the Transition in Comparative Perspective, in The Democratic Process and The Market:  Challenges of the Transition37, 46-48 (Mihaly Simai ed., 1999).

[7] Id., at 46.  See also Oleg  Bogomolov, Interrelations Between Political and Economic Cha

CONCERNS AND EMERGING TRENDS ON LAWS RELATING TO FAMILY AND CHILDREN

  

Concerns and Emerging Trends On Laws

Relating to Family and Children*

Flerida Ruth P. Romero** 

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Introduction

 Some people might be familiar with “The Family of Man”, the most successful photographic exhibition ever assembled consisting of 508 photographs depicting the universality of human experience with vivid shots of birth, love and joy, as well as war, privation, illness and death. Curated by Edward Steichen, it was first shown in 1955 at the Museum of Modern Art in New York, travelled in 38 countries viewed by nine million people, turned into a book with introduction by Carl Sandburg. Steichen’s brother-in-law, and was added to UNESCO’s “Memory of the World Register”[1]

Evidently, this is a piece with the Universal Declaration of Human Rights, which asserts, in the very opening paragraph of its Preamble:

“WHEREAS, recognition of the inherent dignity and of the equal inalienable rights of the members of the human family is the foundation of freedom, justice and peace in the world.”

To be sure, this is but to emphasize the links that bind  members of the family of man such that the fate of one is the fate of all , idealized in Universal Brotherhood.

At the micro level, however, we are more concerned with “the family of a man”, for no one is without a family – except, perhaps, Adam and Eve, although they eventually produced the “Family of Man”.  In our case, we are begotten of a family and, in turn, we beget a family – or, in the case of our macho men, several families. Recognized since time out of mind in lore and legend, in prose and poetry as the bedrock of civilization, we have not let pass any opportunity to extol the place of the family in our society.

In full accord with the policy statement of the Universal Declaration of Human Rights that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State”,[2]  the Constitution of the Philippines likewise incorporates as one of its State Policies that “[t]he State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.”[3] It goes further by devoting a whole Article with four paragraphs to “The Family”, its opening statement stating:

“The State recognizes the Filipino family as the foundation of the nation.  Accordingly, it shall strengthen its solidarity and actively promote its total development.”[4]

To Justice Cecilia Munoz Palma, President of the 1986 Constitutional Commission, we owe this dominant position of the family in our 1987 Constitution. From the very inception of the sessions of the Commission, she made known to all the Members her “magnificent obsession” to have one whole Article of the Charter devoted exclusively to this personal concern of hers. Members of the Commission recall very vividly the time when she descended from the rostrum, shedding her Presidential power and authority, to champion this advocacy of hers from the floor. To clinch the commitment from her colleagues, she approached us ladies to propose that we all walk out of the Hall in case the male Members reneged on their pledge to her.

In this context, it is not difficult to understand why there is such a hue and cry over the controversial Reproductive Health (RH) Bill now pending in the halls of Congress. Perceived by some as a population measure and by others, including theologians, as a travesty on the handiwork of God, it is, Sisyphus-like, undergoing an excruciating ascent and, in the process, is generating more heat than light.   Understandably, every Juan, Pablo and Jose insists on contributing his one peso worth of opinion to any move that would seem to undermine the family.

 

Historical Backdrop

Anyone who seeks to be guided on the law pertaining to a problem concerning his/her marriage or personal relations or a scholar, wishing to do research on these subjects, would be well-advised to look up the Family Code of the Philippines principally, which took effect on August 3, 1988, as well as the Civil Code of the Philippines, legislative and administrative issuances and decisions on the subject handed down by the Supreme Court.  In our study of the origin of the law on family relations, quite often, we cite the references from the legal system of Spain and America, which were applied to the Philippines. Hardly does anyone venture to explore the law on these matters in pre-colonial times. One curiously asks:  How did the legal system look like in this era?  Or was there one?  Or can we assume that it was all a tabula rasa during our forefathers’ time?

It is a historical fact, however, that the indigenous tribes in the Philippines, upon emerging from the hunting into the agricultural stage, settled down into barangays composed of anywhere from thirty to one hundred families with a recognized leader or “datu” who discharged the functions of both legislator and arbitrator.  With the family recognized as a basic unit of society, marriage was considered a contract between families which gave their mutual consent instead of individuals.  Polygamy was tolerated and divorce or separation was relatively liberal on grounds of incompatibility, neglect, or misconduct.

In the coastal regions of southern Mindanao where by mid-13th century, the Sharia of the Muslims was being observed, not only as “law” but as a “code of life”, marriage developed to be a religious institution with strict moral standards.  Reproduction with religious overtones was considered the objective of marriage such that crimes against chastity became recognized.  The concept of separation of church and state was unknown.[5]

When the Spaniards conquered the Philippines towards the close of the nineteenth century with the sword in one hand and the cross in the other, their legal system was likewise transplanted here. At its core was the early Roman law intertwined with religion and the Code Napoleon of 1805[D1] . Actually, the Spanish Civil Code, which embodied the doctrines of the Church, was extended to our country by Royal Decree in 1889.

“The general structure of our Civil Code is based on the Code Napoleon whose, to use Lon Fuller’s phrase, ‘inner morality’ is based on the tenets of the Christian religion.  This can be seen from the hortatory and moralistic provisions of our Civil Code reminiscent of the Institutes of the pious Roman emperor Justinian.”[6]

In this Spanish Civil Code, we see the seeds of the legal concepts, which so debased the female sex that some sixty years later, our government saw fit to obliterate them.There is the concept of patria potestas[7] where the authority of the highest living male ascendant prevailed within the family. Under such rule, women were under perpetual tutelage, first under the father, and after his death, under the husband. The concept was based on the belief of mental inferiority by women, such that they were regarded as no better than chattels.

At this juncture, the author resists the attempt to lead the reader on a fascinating journey to investigate the dominant influence of the Spanish legal system on ours, vestiges of which are discernible in our laws up to the present. Instead the reader could consult two informative and well-researched books edited and authored by aw professor here in the University of the Philippines (UP) College of Law, namely: “Civil Code Reader” by Prof. Carmelo V. Sison (2005) and “Mestizo: The Story of the Philippine Legal System”, a UP Law Centennial Textbook Project by Prof. Pacifico A. Agabin, published by the UP College of Law this year. Worthy of special mention is the J.B.L. Reyes Professorial Lecture delivered on January 5, 1979 by Prof. Ruben F. Balane entitled “The Spanish Antecedents of the Philippine Civil Code” which is one of the articles in the Civil Code Reader cited above.

A bird’s eye-view of the laws governing family relations and marriage in the Philippines will reveal that the Spanish Civil Code, which took effect here in 1889, has been the underlying legal foundation in this sphere of our national life.

With the advent of the American regime, major amendments in such field of law emerged, namely: the Marriage Law[8]  and The Act to Establish Divorce.[9] The implication was, however,  that we, the conquered people, have had to adapt ourselves to the culture, mores, and tradition of our conquerors.

Happily, with the achievement of Philippine Independence after World War II, then President Manuel A. Roxas created a Commission headed by Dr. Jorge C. Bocobo in view of the “need for immediate revision of all existing substantive laws of the Philippines and of codifying them in conformity with the customs, traditions, and idiosyncrasies of the Filipino people and with modern trends in legislation and the progressive principles of law.”[10] When it took effect as Republic Act No. 386 on August 30, 1950, fifty-seven percent (57%) of the 2270 articles were still derived from the Spanish Civil Code although quite a number of new provisions were taken from other Civil Law countries. The new Code likewise restated doctrines laid down by the Supreme Court and amendments and innovations were incorporated to rectify unjust or unwise provisions heretofore in force. Quite a boost for the women were reforms liberalizing the rules concerning women’s rights and consolidating the family.

The next major effort to introduce radical amendments was the Civil Code Revision Project of the UP Law Center launched in 1979. The Project aimed to strengthen the family, clearly define the rights of women in society as equal to that of the men, provide additional safeguards for the protection of children, and bring our law on paternity and filiation in step with the latest scientific discoveries. As Director of the UP Law Center at the time, the author was privileged to be designated Chair of the Committee tasked to prepare a draft of the revision of Book I of the Civil Code jointly with the Integrated Bar of the Philippines (IBP). When the resources of the IBP ran low, the project was turned over to the Law Center with the renowned civilist Justice J.B.L. Reyes as Chairman and Justice Ricardo C. Puno as Co-Chairman.

Why was there a felt need to drastically revise Book I of the Civil Code at this time? The stated reasons are to be found in the explanatory statement submitted by the Revision Committee to President Corazon C. Aquino along with the draft of the Family Code, thus:

Close to forty years of experience under the Civil Code adopted in 1949 and changes and developments in all aspects of Filipino life since then have revealed the unsuitability of certain provisions of that Code, implanted from foreign sources, to Philippine culture; the unfairness, unjustness, and gaps or inadequacies of others; and the need to attune them to contemporary developments and trends.[11][D2]

Among the Civil Code provisions repealed were those pertaining to Marriage, Legal Separation, Rights and Obligations between Husband and Wife, Property Relations between Husband and Wife, The Family, Paternity and Filiation, Support, and Parental Authority.

When the formidable task was finished after seven years and eight months, it was signed into law as Executive Order No. 209 on July 6, 1987 by President Corazon C. Aquino in her capacity as Legislator under the Freedom Constitution of 1986. The resultant Family Code, enacted separately from the Civil Code, took effect on August 3, 1988.

 

Strengthening the Institution of Marriage

In consonance with the concept of the family as “the foundation of the nation”,[12] it is but logical for marriage to be recognized, not merely as a contract or agreement between a man and a woman, but as an institution which once founded, gives rise to far-reaching consequences, implications – and I daresay, complications unforeseen.

This is the rationale behind the revised definition of “marriage” in the Family Code whose opening line states:

“Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life.”[13]

This union envisions “permanence”, for in Catholic Philippines, marriage is regarded as a sacrament flowing from the Biblical injunction: “What God hath put together, let no man put asunder.” God has always been accepted as an unseen but ever-present partner in this union. To be sure there is never any lack of skeptics like Zsa Zsa Gabor who will be remembered as having quipped: “A man in love is incomplete until he has married. Then he’s finished”.  Or Helen Rowland who said: “Love is the quest; marriage, the conquest; divorce, the inquest.”

When the Code Commission of 1950 was confronted with a proposal to legalize absolute divorce, it was turned down by the members.  Even under the present Family Code, absolute divorce is not recognized, no matter that some witty legal scholars claim that there is indeed a remedy available through the side door.  We shall discuss this topic later in more detail.

 

A Man and a Woman: Partners in Marriage

Who are the parties to a marriage? By legal definition, a man and a woman. Moreover, a major essential requisite for a marriage to be valid is: “Legal capacity of the contracting parties who must be a male and a female”.[14] In the past, codifiers felt no need to spell this out as it was presumed or taken for granted, for isn’t procreation the unstated primary and primal purpose of the union between a male and a female? When the Committee Committee on the revision of the Civil Code initially met on this basic provision and a member suggested the inclusion of the words “man and woman”. Everybody burst out in laughter.  In chorus, they exclaimed, “But that’s understood!”  Someone interjected, “Ah, but you never can tell…”  In the end, he won the day.  Prophetic words indeed!  For now we are entering “the era of same-sex marriages”.

To an increasing extent, national and state laws are enacting legislation recognizing the validity of “gay unions”. In New York where same sex marriages were legalized in June under the New York State Law, there is a Filipino male who got married to an American male. Subsequently, Archbishop Timothy M. Dolan issued an official statement declaring: “No Catholic facility or property, including but not limited to parishes, missions, chapels, meeting halls, Cathholic educational, health, or charitable institutions or benevolent orders, or any place consecrated, or used for Catholic worship may be used for the solemnization or consecration of same-sex marriages.”[15]  Even items dedicated, consecrated, or used for the celebration of Catholic liturgy or sacred worship may not be similarly used; otherwise sanctions may be imposed on the Church personnel that participates in such ceremonies.[16]

The Archbishop reaffirmed: “The intimate partnership of life and love that constitutes the married state was established by God and endowed by Him with its own proper nature and laws.  Consequently, the Church has the authority and the serious obligation to affirm the authentic teaching on marriage, and to preserve and foster the supremely sacred value of the married state.”[17]   Conservative elders now shake their heads and mumble, “I never thought I’d live to see the day…”  Children are suddenly thrust into a bizarre situation beyond their comprehension, for unforewarned and unannounced, their families are transformed from being Dad, Mom and kids, into two Dads or two Moms and bewildered kids.

Imagine the legal problems this unusual kind of familial arrangement spawns!  Nowhere is this mentioned in the books and so it comes as a rude shock when property has to be settled upon the death of one of the partners, or death benefits have to be given by employers to lawful heirs! Some textbooks are even in the process of being revised to redefine the meaning of “family” to include two men or two women as parents.

A friend of mine called me up simply to blurt out her feelings as she bewailed, “Can you see how our society will look like in a few years’ time?”  I calmed her down, “Don’t worry.  Our lawmakers have foreseen that things may come to a head in just this manner.  That’s why in anticipation, they have included, as an essential requisite for a valid marriage, that it be between ‘a man and a woman’.”

 

Sex Change for a Change?

“But suppose”, she asked, “in a last-ditch attempt to evade the law, one decides to undergo surgery for a sex change?” The Supreme Court was once confronted with such a dilemma: “When is a man a man and when is a woman a woman? Does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex?  May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?”[18]

In turning down this petition for change of name after successfully undergoing sex reassignment surgery in Bangkok for the reason that he was “anatomically male but feels, thinks and acts as a female”, the Supreme Court declared that:

“[I]t cannot be argued that the term ‘sex’ as used (in the Civil Register Law which was enacted in the early 1900s) is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category ‘female’….

Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.  The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences.”[19]

The Supreme Court has yet to solve its initial dilemma: “When is a man a man and when is a woman a woman?”[D3]   In the above-cited case, the decision not to recognize the sex change as valid was limited only to the petition for a change of name. Of interest is the latter and enigmatic case of Republic v. Cagandahan,[20] where the Supreme Court allowed the change of name of Jennifer Cagandahan to “Jeff Cagandahan” and her change of gender from “female” to male. Cagandahan was diagnosed with  Congenital Adrenal Hyperplasia (CAH), which according to the Supreme Court, “causes the early or “inappropriate” appearance of male characteristics.”[21] Interestingly, the Supreme Court expressed a liberal view in entertaining actions of this character as can be gleaned from the following:

CAH is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted the term “intersexuality” to apply to human beings who cannot be classified as either male or female. The term is now of widespread use.  According to Wikipedia, intersexuality “is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female.  An organism with intersex may have biological characteristics of both male and female sexes.”

Intersex individuals are treated in different ways by different cultures.  In most societies, intersex individuals have been expected to conform to either a male or female gender role.  Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals.  More commonly, an intersex individual is considered as suffering from a “disorder” which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial.  “It has been suggested that there is some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’.”  The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. [22]

The Supreme Court noted that Cagandahan’s case is exceptional considering her rare condition has endowed her with predominantly male characteristics which ultimately justified her petition for change of name and gender. In toeing the line, the Court held:

Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male.  Sexual development in cases of intersex persons makes the gender classification at birth inconclusive.  It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with.  And accordingly, he has already ordered his life to that of a male.  Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not.  He chose not to do so.  Nature has instead taken its due course in respondent’s development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH.  The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female.  Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species.  Respondent is the one who has to live with his intersex anatomy.  To him belongs the human right to the pursuit of happiness and of health.  Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation.  In the absence of evidence that respondent is an “incompetent” and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent’s position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out.  In other words, we respect respondent’s congenital condition and his mature decision to be a male.  Life is already difficult for the ordinary person.  We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.[23]

The following words of the Court in Cagandahan are indicative of the times on this matter:

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex.[24]

Regardless, of the seemingly categorical statement by the Supreme Court, it nonetheless concedes that there is no law on the matter that governs these cosmetic and medical procedures that were designed to “alter” the gender of a person. Moreover, the Cagandahan case can hardly be considered a precedent to support the voluntary change of gender considering that the Court took pains highlighting the involuntary character of CAH. Indeed, the question of gender may hardly be one for courts to resolve which theretofore gave rise to the doctrines expressed in Silverio and Cagandahan. Congress must be taken to task to resolve this quandary being faced by a seemingly growing sector of our society.Until then, the fact remains that nowhere on the horizon of family law is there a definitive ruling on the effects of surgery or hormonal treatments on the gender of a person. Do they merely result in a cosmetic change or do they bestow reproductive powers upon the transformed woman?[D4]

Proxy Marriages

In other jurisdictions, proxy marriages are allowed where there can be a “stand-in” for an absent contracting party, especially during wartime.  Under the Family Code, however, one of the essential requisites of a valid marriage is “consent freely given in the presence of the solemnizing officer.”[25] Likewise, although no prescribed form or religious rite for the solemnization of the marriage is required, the very minimum requirement laid down is “for the contracting parties to appear personally before the solemnizing officer…”[26] Clearly, marriage cannot be contracted by proxy nowadays or in absentia of one of the contracting parties.

However, under the old Marriage Law of 1929, proxy marriages were explicitly allowed. Article 87 of the said law states:

Marriage may be celebrated in person, or by a proxy to whom a special power has been given; but the presence of the contracting party who is domiciled or resides in the district of the judge who is to perform the marriage ceremony shall always be required.

Again, in connection with the marriage ceremony to be performed, Article 100 of the old Marriage Law provides:

“The marriage ceremony shall be performed as follows:  The contracting parties, or one of them and the person authorized by special power of attorney to represent the absentee, shall appear before the municipal judge accompanied by two lawfully qualified adult witnesses.”

Proxy marriages of foreign/mixed marriages frequently pose conflict of law issues.  For example, in California, because many military servicemen were deployed to the Afghanistan and Iraq conflict zones, the State of California allowed proxy marriages.  In case the man dies in the war zone, the wife whom he married by proxy would receive the benefits accruing to her by law.  A Filipina went to California under a fiancee visa and married a U.S. military serviceman based in Afghanistan via a proxy marriage. How would such a marriage be characterized under our laws?

Under the doctrine of lex loci celebrationis[27], a marriage valid where contracted is valid everywhere. Does that mean, therefore, that said proxy marriage is valid in the Philippines and binding on the Filipina wife? But Philippine laws pertaining to “the status, condition and legal capacity of persons “are binding upon Filipino citizens even though living abroad under the nationality doctrine enunciated in Article 15 of the Civil Code which provides:

“Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.”

To an increasing extent, similar problems arise as a result of mixed marriages, thereby raising conflict of law issues.

Common-Law Marriages

How about common-law marriages where a man and a woman merely agree to cohabit with each other without undergoing any marriage ceremony? This practice is very common among the less privileged in our society or among formerly married couples living separately from each other for a fact, where either or both decide to live in with somebody other than their estranged partners.  Again, this informal arrangement is not considered valid under our jurisdiction where one of the essential requisites of a valid marriage is “consent freely given in the presence of the solemnizing officer”[28] and a formal requisite is “a marriage ceremony which takes place with the appearance of the contracting parties before a government functionary or a duly authorized religious person.[29] However, if a man and a woman who have been living together for at least five years without benefit of marriage decide to get married and there is no legal impediment at said time to marry each other, they are exempted from procuring a license.  Such “legalized concubinage” is  authorized under the Family Code[30] to encourage those who have merely agreed informally to live together as husband and wife to formally contract a valid marriage recognized under our laws, thereby giving legitimacy to children born thereafter.

Legal Capacity to Contract Marriage

One of the ways by which the law has sought to strengthen and stabilize the institution of marriage from its commencement is to adjust the marriageable ages of the man and the woman to meet the following standards: they must have the capacity to procreate; they must show their capacity to exercise mature judgment and discretion and be able to support the family.  To be sure, age and consent of the contracting parties go to the very essence of their capacity to get married and confront the challenges of their new status in life.

Hence, for the past century, the legal age for contracting marriage has varied in this wise: under the Spanish Civil Code till the so-called New Civil Code (1889-1950): fourteen (14) years of age for the male and twelve (12) years for the female; from the 1950 Civil Code to the Family Code, sixteen (16) years of age for the male and fourteen (14) years for the female  and from the 1988 Family Code to the present, the uniform age of eighteen (18) years for both males and females. Here is one area where the females have finally caught up and gained equality with the males, unlike in the previous laws where the difference in marriageable ages seemed to imply that females were not on par with the males in emotional and mental maturity and judgment. There are likewise variants in the imposition of the parents’ or guardians’ consent and advice relative to the ages of the contracting parties.

One of the essential requisites for a valid marriage is “legal capacity of the contracting parties…” referring primarily to the age and “consent freely given…”[31] The consent referred to here is the consent by the parties to the marriage. However, even if they are already emancipated, having reached the age of eighteen (18), the law still requires the consent of the parents when they are between the ages of eighteen (18) and twenty-one (21). Thus, the local civil registrar shall require the contracting parties to exhibit, among others, “the consent to their marriage of their father, mother, surviving parent or guardian or persons having legal charge of them…”[32] One of the grounds for the annulment of marriage is when “the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party[33]. Finally, Republic Act No. 6809,[34] amending Article 236 of the Family Code, provides: “contracting marriage shall require parental consent until the age of twenty-one.” However, provisions still requiring parental consent when the contracting parties are below twenty-one have become meaningless with the enactment of Republic Act No. 6809 which states:

 “Emancipation takes place by the attainment of majority.  Unless otherwise provided, majority commences at the age of eighteen years.”

Upon reaching the age of majority, which is eighteen years old now, a person becomes capacitated to exercise fully his civil rights, which includes the act of getting married.  Viewed in this light, the requirement of parental consent when a person decides to get married when he/she is already eighteen (18) years of age, as well as the requirement of parental advice when either or both of the contracting parties are between the ages of twenty-one (21) and twenty-five (25) is obviously in deference to our traditions and customs.

One of the strongest presumptions of law is the validity of a marriage once contracted with the observance of the essential and formal requisites.  Under Article 69 of the Spanish Civil Code, however, “a marriage contracted in good faith produces civil effects, although it be declared void” and that “good faith is presumed if the contrary is not shown.”[D5]  However, the Civil Code of 1950 considered such good faith of the parties immaterial.  For instance, the authority of the solemnizing officer was made an absolute condition for the validity of the marriage. Under the Family Code, though,  the good faith of one or both of the contracting parties saves such a putative  marriage from being void. Thus, under Article 35 (2):

“Art. 35. The following marriages shall be void from the beginning:

2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so.”

 

Liberalizing Trends Affecting Marriage

It has been often said that marriages are not made in heaven – at least, not all marriages.  For all individuals have their idiosyncrasies, their foibles and peculiarities which may not be that all evident at the courtship stage but may manifest full-blown after marriage due to the stresses and strains of responsibilities unforeseen.

These may exhibit themselves even before the so-called “seven-year itch”.  Should the couple therefore, buckle down to the pressure of a marriage that has turned sour?  On the one hand, there is the interest of the State to preserve inviolate a marriage to protect this fundamental institution, which is the cornerstone of society.  On the other hand, are not the individuals parties to a marriage entitled to happiness and the freedom to procreate as their basic human rights?  Thus, the State, through the official guardians of the morals, stability and harmony of the home and family, finds itself endlessly impaled between the twin horns of this dilemma.

State policies have tried to resolve this seemingly endless problem by laying down different options from time to time for the embattled parties to choose from.  Our forefathers, even before the coming of the Spaniards, observed relatively lax moral standards, compared to those of our modern age.  They observed both polygamy and divorce, as if divorce were not superfluous or irrelevant enough, with polygamy existing side by side with it.

But when the Spaniards landed on our shores bringing with them the stringent moral standards of the Catholic Church which prevailed over the legal system of the so-called “natives”, the era of the unity between Church and State commenced. This included the ban on absolute divorce, for the union of a man and a woman was a sacrament to be sedulously protected and upheld for “What God hath put together, let no man put asunder.”

Expanded Legal Separation

With the advent of the American regime, absolute divorce was recognized and regarded as a liberalization of the laws regulating family relations.[35] However, when the Civil Code was revised in 1950 into Republic Act No. 386, the framers opted to abolish absolute divorce.  Instead the “New Civil Code” introduced “relative divorce” or “a mensa et thoro” which literally means “from bed and board”.  It was actually legal separation on the very limited grounds of adultery of the wife and concubinage on the part of the husband, as well as an attempt by one spouse against the life of the other. After the proper legal proceedings in court, the couple was merely entitled to live separately from each other but the marriage bonds were not severed.

With the promulgation of the Family Code in 1988, legal separation continued to be recognized up to the present, but on very much expanded grounds, such as physical violence, final judgment of imprisonment on the part of  a spouse, drug addiction or habitual alcoholism, lesbianism or homosexuality, bigamy, sexual infidelity or perversion, abandonment, and the former ground of attempt by one spouse on the life of the other. From this catalog of new grounds for petitioning for legal separation, one can discern how the urbanization, increased industrialization and modernization of our society have exerted much pressure on young people.  One phenomenon in our economy is the proliferation of call centers in our major cities and statistics show that  our country has surpassed India in this respect.[36] What is abhorrent is that the young profesionals who have been assigned to night shifts suffer physically and emotionally and worse, have evolved their own lax moral standards. Quirky and perverse ways of life have come out in the open. The influence of the elders on the present generation has waned as more young people leave sheltered family homes to live solo or with partners of questionable gender.

Psychological Incapacity: A Canon Law Adaptation

Under the Family Code, absolute divorce continued to be prohibited in line with State policy.  However, the members of the Civil Code Revision Committee, in an attempt at liberalizing the grounds of terminating marriage while protecting its integrity, took a leaf from the Canon Law of the Catholic Church.  Parenthetically, this is not to say that annulment decrees granted by the matrimonial Tribunals of the Church to desperate Filipino couples who could afford the costly process as long as they could obtain relief from an oppressive marriage, were automatically recognized.

The Revision Committee decided to adopt paragraph 3 of Canon 1095 of the Code of Canon Law which became effective in 1983, since the Philippines was, and still is, a predominantly Catholic country, thus giving a novel and socially acceptable option to those Catholics who desired to break their marriage bonds without unduly doing violence to their religious scruples. Moreover, it was perceived as a substitute for the more controversial divorce rapidly being adopted even in Catholic countries.

It is of general knowledge that showbiz personalities and public figures are often quoted in media as announcing that they are just awaiting the annulment decree to be handed down by the court so that they could wed somebody else. Unknowingly, they use the term “annulment” loosely as signifying the breaking of their marriage ties to their spouse. Marriage is considered annullable or voidable due to certain specific grounds listed in Article 45 of the Family Code and nothing more. Existing at the time of the marriage, the defect is often caused by vitiated consent on the part of one of the parties due to insanity, fraud, force, intimidation or undue influence; lack of parental consent when either party is between eighteen years of age or over but below twenty-one; physical incapacity or affliction with a sexually transmissible disease. The marriage subsists until terminated due to its annulment by the court.

The novel way of terminating a marriage indicated in the new Article 36 of the Family Code is based on the sole ground of psychological incapacity to comply with the essential marital obligations of marriage of one of the contracting parties existing at the time of the celebration of the marriage. The liberating court order is not annulment but a declaration of nullity of a marriage which is void from the beginning. The “essential marital obligations of marriage” are: “… to live together, observe mutual love, respect and fidelity, and render mutual help and support.”[37] Article 36 of the Family Code provides:

“A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

From the above formulation, it is evident that the Revision Committee studiously skirted the enumeration of acts or conditions constituting “psychological incapacity”.  It even avoided giving examples which could serve as templates to the judges who would bear the onerous burden of having to exercise wide discretion and latitude in resolving cases under this novel provision, even as they gingerly tread on the unfamiliar terrain of psychological disorders. To have given specific cases would have limited the applicability of said provision under the principle of ejusdem generis which is a canon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed. To my mind, the more cogent reason for refraining from citing specific instances of psychological incapacity is, that this may be interpreted to mean that those not included are thereby excluded under the principle of inclusio unius est exclusio alterius. The intendment of the Revision Committee was precisely to give a judge leeway to decide on a case-to-case basis in  light of  its particular facts, there being no case that is “on all fours” with another case.

Obviously, it was the intention to have the judge decide each case before him “on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.…  The definition of psychological incapacity… was not cast in intractable specifics. Judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought and experience.…”[38]

An acquaintance of the author was so happy when she heard that Art. 36 was finally enacted into law in the Family Code. Dancing the Indian war dance, she whooped: “At last, I can divorce my husband, the beast!” This is the misimpression of other wives who have suffered in silence the indignities of their brute of a husband. When the provision was fully explained to to her, she asked, “But this will end my marriage to him! Right?” “Yes, but…” The author tried to explain to her patiently but decided to wait another time when her euphoria had subsided.

It is only “divorce” in the sense that if the evidence presented in court warrants the granting of relief, the marriage bonds will be cut.  Divorce indeed cuts the marital bond but at the time the causes therefore manifest themselves. This, despite the tongue-in-cheek description of Art. 36 by the Office of the Solicitor General as “the most liberal divorce procedure in the world.”[39] Under Art. 36, it is not every misconduct, perverse act, inattention or neglect or sexual infidelity that is a ground for  its application. The only acceptable ground is, to quote the law, “psychological incapacity to comply with the essential marital obligations of marriage”. Moreover, this incapacity must be present at the time of the celebration of the marriage. A more perceptive and sober lady asked me, “ If this is supposed to be present at the time we were married, I would not have married him! Hindi pa sana ako nagkaroon ng sakit ng ulo!” Definitely, our laws do not recognize absolute divorce – not on any ground, unlike in other jurisdictions where they list down certain grounds for filing a divorce or for “no fault”[40] at all. Besides, the grounds which give rise to divorce should have occurred or taken place after the celebration of the marriage.

The looming crucial question on the horizon which every judge must perforce answer is: “Does this act or acts complained of constitute psychological incapacity?” With no law to guide him, he is constrained to turn to decisions decided in other jurisdictions, but the laws in those countries do not correspond to ours. Or he may look to judicial precedents, that is, decisions of similar cases already rendered by his colleagues on the Bench. Absent such guidelines, he has no choice but to strike out on his own, with invaluable scientific assistance from psychiatric experts.

Because thousands of desperate married couples had been waiting for such a  rare opportunity to end their marriages, many walked through this wide open and inviting door. A veritable Pandora’s box was opened!  Jurisprudence started evolving with each pronouncement by the judges. To be sure, they knew better than to declare each psychological psychoses or disorder actionable. Not accepted as  examples of psychological incapacity were:  marital infidelity,[41] sexual promiscuity and perversion,[42] habitual alcoholism,[43] drug addiction,[44] homosexuality or lesbianism,[45] abandonment,[46] non-cohabitation,[47] immaturity,[48] irreconcilable differences on such matters as family finances, discipline of children[49] or problems vis-à-vis the in-laws,[50] emotional immaturity,[51] and irresponsibility,[52] refusal to look for a job,[53] physical violence with nothing else, [54] living an adulterous life,[55] frequent squabbles,[56] unfitness to remain a member of the bar,[57] difficulty, refusal, or neglect in the performance of marital obligations,[58] unbearable jealousy,[59] ad infinitum.

What have been considered, therefore, as evidences of psychological incapacity?  Here are some:  inveterate pathological liar, manifestations of psychopathic personality, infliction of physical violence, constitutional laziness or indolence, drug addiction, psychosexual anomaly and others that are grist for the judicial mills.

Absent specific instances of psychological incapacity in the law itself, the courts/judges have taken it upon themselves to clarify, concretize and interpret Art. 36 with every case brought before them, such that we now see evolving through jurisprudence a body of case law pertaining to this novel way of  terminating a marriage. The next part shall try to encapsulate the ratio decidendi of the significant cases that have been building up brick-by-brick, as it were, the full significance of Art. 36 in consonance with the intention of the Revision Committee.

The first significant principle interpreting Art. 36 was enunciated in Santos v. Court of Appeals.[60]  The Supreme Court declared:

“There is hardly any doubt that the intendment of the law has been to confine the meaning of ‘psychological incapacity’ to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.  [It should refer to] no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage… It must be characterized by (a) gravity (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.” [61]

The Santos case was followed by the much-quoted Republic v. Court of Appeals and Molina[62] which reiterated the characteristics cited in Santos but additionally laid down eight guidelines for the guidance of the Bench and Bar. After opening by affirming that the burden of proof to show the nullity of the marriage belongs to the plaintiff, it emphasized the importance of the root cause which must be medically or clinically identified; alleged in the complaint; sufficiently proven by experts and clearly explained in the decision.  The sore point in the guidelines was the injunction that:

“No decision shall be handed down unless the Solicitor General issues a certification which shall be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition.”[63]

This role of the Solicitor General raised much hue and cry among the members of the Bar as it was foreseen to cause much delay in the proceedings, that it may give an opportunity for underhanded practices and open the door to corruption and that this intervention was actually superfluous as the prosecuting attorney or fiscal were required to appear as counsel on behalf of  the State to ward off any collusion between the parties and to take care that the evidence is not suppressed or fabricated, as required by Article 48 of the Family Code. Recognizing the merits of the clamor of practicing lawyers for reform along this line, the Supreme Court issued Administrative Matter No. 02-11-10 which dispensed with the certification of the Solicitor General required in the Molina case.

A later case, Marcos v. Marcos[64]clarified that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non. Accordingly, it is no longer necessary to allege expert opinion in a petition under Article 36. The psychological incapacity, however, must be established by the totality of the evidence presented during the trial.

Analyzing dispassionately the past decisions that had been interpreting Article 36, the Supreme Court, in Ngo-Te v. Yu-Te[65], criticized the stringent application of the Molina guidelines:

“The resiliency with which the concept should be applied and the case-to-case basis by which the provision should be interpreted, as so intended by the framers, had, somehow, been rendered ineffectual by the imposition of a set of strict standards in Molina.…[T]he Court has applied the aforesaid standards, without too much regard for the law’s clear intention that each case is to be treated differently.…Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it.  Wittingly or unwittingly, the Court… has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage.”

A cautionary note, though. Ngo-Te did not intend to abandon the guidelines set forth in Molina. Thus, the Supreme Court concluded with the following caveat:

“Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case.  We simply declare that… there is need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity, under Art. 36. [T]he presentation of expert proof presupposes a thorough and in-depth assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity. The Court finds it fitting to suggest the inclusion in the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, an option for the trial judge to refer the case to a court-appointed psychologist/expert for an independent assessment and evaluation of the psychological state of the parties…. The rule, however, does not dispense with the parties’ prerogative to present their own expert witnesses.”

A further relaxation of the stringent rules in the Molina case is found in the case of Suazo v. Suazo.[66]  The Court declared that the requirement for the petitioner to allege the particular root cause of the psychological incapacity and to attach thereto the verified written report of an accredited psychologist or psychiatrist has proven to be too expensive for the parties, thus adversely affecting access to justice of poor litigants.  Moreover, the Court recognized there are provinces where these experts are not available. These matters shall, henceforth, be determined by the court during the pre-trial conference.

The expenses incident to applying for a declaration of nullity under Article 36 is cause for concern among members of the Bar and  the judges themselves.It is estimated by a judge that the cost is staggering; it can range from PhP 100,000 to millions. The money goes to the attorney (PhP 50,000), the psychiatrist (PhP 30,000 plus traveling expenses and allegedly, another  PhP 50,000 or PhP 100,000 for the judge as well as another amount for the prosecutor/solicitor). What a rich source of corruption!

“Indirect Divorce”

As stated earlier, divorce as a way of severing the marital bonds at the time the causes manifest themselves, is not recognized in the Philippines, yet the same effect is achieved indirectly in a marriage between a Filipino citizen and an alien spouse in order to place on an equal footing the Filipino spouse, usually the wife, in the event that the alien spouse obtains a divorce abroad.

The second paragraph of Art. 26 of the Family Code provides:  “Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.”[67]

The elements that must be satisfied for the application of this paragraph are:

  1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
  2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.[68]

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage but their citizenship at the time a valid divorce is obtained abroad by an alien spouse capacitating the latter to remarry.[69]

The rationale and legislative intent behind Paragraph 2 of Article 26 was elucidated in Orbecido, as follows:

Thus, taking into consideration the legislative intent and applying the rule of reason, [this paragraph] should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree.  The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice.”[70]

More importantly, the law seeks to avoid the situation where the Filipino spouse, usually the woman, would be discriminated against in her own country. Without the second paragraph of Article 26 of the Family Code, the judicial recognition of the foreign decree of divorce, whether in a proceeding instituted precisely for that purpose or as a related issue in another proceeding, would be of no significance to the Filipino spouse since our laws do not recognize divorce as a mode of severing the marital bond.[71] We would have the ludicrous spectacle of the Filipino wife still being married to an alien spouse who is no longer married to her.[72]

 

Paternity and Filiation

“In every child who is born, under no matter what circumstances, and of no matter what parents, the potentiality of the human race is born again;  and in him, too, once more, and of each of us, our terrific responsibility towards human life; towards the utmost idea of goodness, of the horror of error, and of God.” – James Agee

As pointed out earlier, international documents like the Universal Declaration of Human Rights and statements of national policy as those in our Constitution, underscore the importance of the family as the natural and fundamental group unit of society or as the foundation of the nation; thus the need to protect it, strengthen its solidarity and actively promote its total development. While the nuclear family is composed of the parents and their children, in many societies like ours, the “family” embraces its extensions, like the relatives and the clan.  The status of the children vis-à-vis their parents goes to the very essence of the stability and integrity of the family.  Thus, it is to the interest of the State to uphold the legitimacy of children inasmuch as this status spawns such rights as those to bear the surname of the father and mother, the right to receive support and to be entitled to the legitimate and other successional rights under the law.  Beyond this, the “tentacles” that attach themselves to the nuclear family cannot claim similar rights. Under recent laws, there is a discernible trend in law to favor and uphold the legitimacy of children.

At the outset, it is to be pointed out that before the Family Code was enacted which means, under the Civil Code, while the legitimate children occupied the highest category, there were several classes of illegitimate children namely, natural children,[73] natural children by legal fiction,[74] acknowledged natural children[75]and illegitimate children other than natural such as spurious and adulterous children.[76] Under Art. 163 of the Family Code, there are now only legitimate or illegitimate children, depending on whether the child was conceived or born during the marriage of the parents.

If there is a discernible trend in law to favor and uphold the legitimacy of children, especially in case of doubt, there is a similar trend to bestow more rights to the illegitimate children on the modern theory that there are no illegitimate children, only illegitimate parents.  Under the Family Code, the illegitimate children now enjoy these rights: to use only the surname and be under the parental authority of the mother and to be entitled to support and to receive legitime but only one-half of that of the legitimate child.[77] Now, thanks to a new law sponsored by Sen. Ramon Revilla Sr. in 2004 called the Revilla Law (Republic Act No. 9255), illegitimate children, if expressly acknowledged by their fathers may use his surname, not merely that of their mothers. so long as “their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father.”[78]  Such recognition will expectedly pave the way for support and increased successional or inheritance rights.

Artificial Insemination

The gigantic strides made by science and high technology have  made possible the manipulation of the procreative process in a manner that has astounded people, opened up incredible possibilities to childless couples and thrown the legal profession with its cherished presumptions pertaining to paternity and filiation all awry.  To infertile and impotent couples, artificial insemination has come as a boon that has raised high expectations and, for some, fulfilled their hitherto unrealized dreams of having a child.

Artificial insemination (AI) is the medical process by which a woman is impregnated with semen from her husband or a third-party donor without sexual intercourse. Depending on whose semen is used, AI may be classified into AIH or homologous AI using the husband’s semen or AID or heterologous AI with a donor’s semen, whether “consensual”, i.e., with the consent of the husband  or nonconsensual, i.e. without his consent or AIC, meaning confused or combined artificial insemination using the husband’s and donor’s semen.  AIC is resorted to in order that the husband may still entertain a hope that it was his seed that successfully brought a child.

First introduced in the 1940s, the cases of artificial insemination, whether abroad or here, has grown by leaps and bounds and correspondingly raised vexing legal, ethical and medical problems.  Not only is it perceived as the most feasible solution for childless couples, but it is increasingly resorted to by single women who desire, for reasons of their own, to have children without having to go to bed with men or by single lesbians. Exclaimed an incredulous bachelorette, “You mean we can now have children without having to have sex with men? And I can even choose the man whom I want to father my child? Why, that’s virgin birth!” That’s one way of looking at what some hail as a God-given “surprise gift”. Not unexpectedly, the theologians and men of the cloth vehemently object to what they describe as an unnatural, unethical and artificial way of having children.

The Philippines, in the Family Code, timely introduced an amendment to determine the status of an offspring born of artificial insemination. Article 164 provides:

“Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child.  The instrument shall be recorded in the civil registry together with the birth certificate of the child.”

Aided by the science of cryo-preservation, couples may now have children at their convenience, even in the absence of the husband, or long after the termination of the marriage or, incredibly, long after his death, simply by freezing the husband’s semen during his lifetime, then thawing and using it for AI purposes when the need arises. In such a case, Article 169 of the Family Code becomes applicable, which states:

“The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.”

In fact there was a case where the wife decided to unfreeze the semen of her living husband for purposes of AI without his knowledge and consent![D6]   In such instances, there is the legal remedy of impugning the legitimacy of the child by the husband or, in a proper case, by his heirs. [79]

Law is replete with presumptions where there is a paucity of evidentiary facts. In the Civil Code before, Articles 255 and 258 provided for prima facie and conclusive presumptions of legitimacy. In light of hithereto unheard of possibilities in the matter of filiation brought about by artificial insemination, such presumptions have become irrelevant. Article 166 of the Family Code has now provided grounds whereby the legitimacy of a child may be impugned.

Often shrouded in secrecy, there are not enough laws or rules to protect those who are only too eager to resort to artificial insemination. For instance, while donor centers abroad purport to claim that each donor can only be used a certain number of times, who is to control and monitor actual distribution and use? How do you sanction a doctor who singlehandedly provided the semen that impregnated all the women who had come to his clinic, thus making all the children born in that town related to one another. Under such a setup, how can the authorities prosecute those entering into incestuous marriages?  What about the infamous fertility clinics where poor administration and mismanagement resulted in the mixing up of deposits.  Consequently, it resulted in the wrong assumption of parenthood of resulting offspring.  So rampant has AI become that donations are now being exported and imported among countries.  In the Philippines, it is the prohibitive cost of resorting to artificial insemination that has prevented more infertile couples from availing of the medical procedure.

Bizarre cases are brought to court to indict the doctors for negligence or medical malpractice. In the United States, a white woman sued a fertility clinic and a sperm bank precisely for those illegal acts on the ground that they mistakenly substituted another man’s sperm for that of her late husband, resulting in her giving birth to a child with African American features.[80] DNA analysis confirmed that her husband, who was also white, could not have been the child’s father. It is not far-fetched to imagine how such a situation could throw the family into a state of chaos!  In another case, a man sued his ex-wife to prevent her from using or donating fertilized embryos which the couple had frozen for later use.  The Court held that individuals have “procreational autonomy” and have the right to choose whether to have a child.

In the United States, donors are often recruited from medical students, residents and interns because of their availability and knowledge on the matter. Most prefer to remain anonymous so as not to be saddled later with the burden of having to support the child or so as not to exact unwanted emotional toll from him. Problems similarly arise when another woman is used as a surrogate receptacle for an embryo, in the practice commonly called “womb for rent”.  It is plausible that once the child is born the woman may become emotionally attached to “her” child and refuse to give him up to the married couple who contracted with her to use her as their instrument.

One can imagine the endless cases that may result in litigations to hold any of these parties legally accountable: the doctor, the donor, the couple that resorts to artificial insemination, the surrogate mother, etc. What may likewise spawn litigable issues and wreak emotional havoc on the offspring of such AI cases is the search by such an AI child for his biological father, such as one sees in movies and telenovelas in an effort at establishing his real identity or in trying to determine if he may have any predisposition to a disease or an allergy or for more materialistic considerations such as a desire to claim support or successional rights.

DNA: A Tool To Determine Filiation

The determination of the filiation or parentage of a legitimate or an illegitimate child is of utmost importance, not only to the parties involved, but also to the State which seeks to uphold the stability of relationships within the family. Legitimacy is a status to be devoutly wished for, not merely for the rights attached to it by law, such as the right to bear the names of the parents, the right to support, successional rights and citizenship, and more importantly for many, is to avoid being stigmatized as a bastard or a child born outside of wedlock.  While a child born to a husband and wife during a valid marriage is presumed legitimate, the same may be  challenged, but only under the strict standards laid down by law as regards the person/persons who can bring the action to impugn the filiation of the child, the period within which this may be brought and the proof or evidence acceptable to the courts to succeed in one’s claim.[81]  Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.[82]

Until relatively recently, questions regarding parentage have been resolved using conventional methods, mostly incriminating evidence where the putative father may show incapability of sexual relations with the mother, because of either physical absence or impotency, or that the mother had sexual relations with other men at the time of conception.  However, these are, at best, indirect methods of determining paternity since they focus merely on the relationship of a man and a woman with high emotional content. Then too, parties may invoke the matter of physical resemblance between the putative father and the child, resemblance, being a trial technique unique to a paternity proceeding. “However, although likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his biological father.”[83]

But now, law is starting to realize that it has neglected the potentiality of the findings of science in furthering the ends of law and justice.  In the area of family relations, among others, DNA is a very powerful tool for human identification because of its chemical stability, the uniqueness of the DNA profile of an individual, the identity of the DNA profile of any biological sample originating from one person and the inheritability of DNA that makes possible the tracing of the relationship between parents and child or amongst kins.   Besides, DNA is objective evidence that may not be influenced by social or psychological factors.

DNA (deoxyribonucleic acid) is the fundamental building block of a person’s entire genetic make-up. Being a component of every cell in the human body, the DNA of an individual’s blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva or other body parts. DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined.  The DNA is processed to generate a pattern or a DNA profile, of the individual from whom the sample is taken.

In a paternity test, the forensic scientist looks at a number of the variable regions in an individual to produce a DNA profile.  Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child’s DNA was inherited from the mother.  The other half must have been inherited from the biological father.  The alleged father’s profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child.  If the man’s DNA types do not match that of the child, the man is excluded as the father.  If the DNA types match, then he is not excluded as the father.

Since it is the policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules and jurisprudence.”[84]

The action to impugn the legitimacy of a child has varying prescriptive periods due to the possibility that the records may be lost over time.  In the case of DNA, said prescriptive periods may even be dispensed with since the child’s DNA is a permanent record of his parents’ DNA too.

The DNA laboratories of NBI and PNP handle all DNA testing in criminal cases that are being investigated by their respective agencies. On the other hand, the DNA Analysis Laboratory of the Natural Sciences Research Institute of U.P performs DNA tests as requested by parties of a civil case or as ordered by a court of law – all for a fee.

Children in the Clutches of the Law

The Juvenile and Justice Welfare Act ( Republic Act No. 9344)

In making the family a target of special concern and attention in the Constitution, the 1986 Constitutional Commission corollarily focused on the youth as an equal pillar in nation-building.[85]  Its Section 13 provides:

“The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being.  It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.”

Complementing the above provision is the affirmation in Article XV, Section 3 (2) of the 1987 Constitution which provides that:

“The State shall defend: (2) The right of the children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development;”

Conformably to this declaration, several laws were subsequently passed in succession, seemingly to make up for the desert that in times past characterized the legislative landscape pertaining to the protection of children.

“Mankind owes to the child the best it has to give.” With this “battlecry”, The League of Nations, in 1924, adopted the Geneva Declaration of the Rights of the Child.  It took 24 years for the world to follow this up when in 1948, the Universal Declaration of Human Rights was adopted by the United Nations Assembly with two articles that specifically referred to children’s rights, namely: Art. 25 referring to childhood special care and assistance and Art. 26 dealing with the right of children to education.

With the heightened awareness on the international front of the needs of children, the UN General Assembly adopted the Declaration on the Rights of the Child on October 19, 1959.  Finally, the monumental UN Convention on the Rights of the Child (CRC) was adopted by the United Nations General Assembly on November 20, 1989.  Eager to demonstrate its whole-hearted support, the Philippines became the 31st State to ratify the treaty.

Children were acknowledged to be possessed of human rights and that by reason of their physical and mental immaturity, were entitled to special protection, care and assistance within the family and community environment before and after birth. For the first time, “children in conflict with the law” was mentioned, citing the UN Standard Minimum Rules for the Administration of Juvenile Justice, otherwise known as “The Beijing Rules”.

Now committed to setting up a juvenile justice system in line with the CRC’s doctrine of the “best interests of the child”, Congress soon passed certain laws incorporating cherished principles like: the child should not be labeled a criminal and thus be stigmatized for life; he is entitled to fair and humane treatment to attain the two-fold end of juvenile justice, namely, the promotion of the well-being of the juvenile and a proportionate reaction by the justice system to the age of the offender, as well as to the nature of the offense, illustrative of the “proportionality principle”; recognition of restorative justice which adopts a wholistic approach by actively involving the victim, the offender and the community in promoting reparation, reconciliation and reassurance through preventive measures and appropriate sanctions; definition of the diversion system under which the juvenile is removed from formal criminal justice processing to appropriate programs like victim restitution, community service and counseling, all made imperative as a therapeutic adjunct to the principle of restorative justice.[86]

Against this backdrop, Republic Act No. 9344 was passed, otherwise known as “The Juvenile and Justice Welfare Act” Among the issues it confronted were:

  1. Determination of the age of the child at the time of the commission of the offense;
  2. Determination of presence of discernment by police officers, prosecutors, judges and social workers, often causing delay in the disposition of cases;
  3. Lack of the required intervention for those children exempted from criminal responsibility; and
  4. “Detention” of children in conflict with the law and those exempted from criminal responsibility which have posed problems due to the lack of equipped detention cells and rehabilitation centers all over the country.

With the proliferation of petty offenses and high crimes being committed by the so-called “batang hamog” and “bukas kotse gang” consisting of boys in their early teens, there is a move in Congress to amend the Act by lowering the age of criminal liability from fifteen (15) but below eighteen (18) at the time of the commission of the offense to nine (9) years of age.[87] Under the present law, only those above fifteen (15) at the time of the commission of the crime are brought before the courts and are able to benefit from the programs provided for them.  Those below fifteen (15) are no longer hailed before the courts because they are exempted from criminal liability.  Although the law provides for intervention programs by the local social development units, these agencies lack the necessary logistics, the skilled personnel, the facilities and the authority to implement the same. Such intervention programs at rehabilitation centers are necessary as the minors can be taught proper values which can reform them, and give them another chance to turn a new leaf. Since these interventions cannot be implemented, the boys are released immediately and soon “graduate” into hardened criminals, continuing their criminal acts with impunity.

Will amending the law by lowering the age of criminal liability solve the problem of increased incidence of crimes by these teen-agers? As with many government programs, an increased budget allocation would go a long way in increasing the number of facilities and improving existing ones, as well as augmenting the salaries of social workers and other personnel. There should be planned and systematic training programs for the law enforcers on arrest, investigation, diversion, appearance in court, community involvement and a change in attitude in handling the offenders.  It would likewise help to put up more women and children’s desks manned by skilled and sensitive police offcers familiar with the applicable laws.  The children’s respect for the law and its enforcers will be enhanced with the latters’ sympathetic interaction with them through sports and socio-civic programs. All these reforms need planning on a comprehensive and not on an ad hoc basis.

 

Conclusion

Emerging trends in family laws brought about by modernization, increased urbanization and the impact of high-tech devices render imperative the need for the law to keep abreast with global developments and being sensitive to shifting winds of change if we are not to be laggards in the family of nations.

 


* Cite as Flerida Ruth P. Romero, Concerns and Emerging Trends Relating to Family and Children, 86 Phil L.J. 5, (page cited) (2012)

** Senior Associate Justice, Supreme Court of the Philippines (ret.). Judge, Administrative Tribunal, International Labour Organization (ILO), Geneva (2000-2005). Judge, Administrative Tribunal, Asian Development Bank (2001-2006); President, Asian Development Bank (2004-2006).

[1] This internationally- renowned photographic exhibition, “The Family of Man”, consists of 508 photographs taken by 273 photographers from 68 countries.  According to Steichen, his intention was “ to prove visually the universality of human experience and photography’s role in its documentation.” Said he: “This is a mirror of the essential oneness of mankind throughout the world.” According to the New York Times, this exhibit “symbolizes the universality of human emotions.”

[2]  Universal Declaration of Human Rights, Art. 16, ¶3.

[3]  Const., Art.  II, §12.

[4]  Const., Art. XV, §1.

[5]  Pacifico Agabin Mestizo: The Story of the Philippine Legal System __ (2011).

[6]  Ibid, p. 94

[7]  Literally means “paternal power”. Refers to the absolute authority, under Roman law, held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated. Initially the father had extensive powers over the family, including the power over life and death. Such power had a terribly despotic character. Not only was the father entitled to all the service and all the acquisitions of his child, but he had the same absolute control over his person and can inflict upon him any punishment however severe. A wife did not fall into her husband’s power but remained under her father’s until she became of full age and capacity by her father’s death.  See Black’s Law Dictionary 1287 (9th ed.). See also James Hadley Introduction to Roman Law 119-121 (1881) and William Ramsay A Manual of Roman Antiquities 291-292 (15th ed. 1894)

[8]  Act No. 3613 enacted on December 4, 1929.

[9]  Act No. 2710 which took effect on March 11, 1917.

[10] Executive Order No. 87 (Mar. 20, 1947).

[12]  1987 Const., art. XV, §1.

[13]  Family Code, art. 1.

[14]  Family Code, art. 2 (1).

[15]  Decree of Timothy M. Dolan, Archbishop of New York dated Oct. 18, 2011 available at: http://www.archny.org/media/files/Archbishop%27s%20Decree%20%20Diocesan%20Policy%20Regarding%20Same-Sex%20Civil%20Marriages.pdf (accessed on Jan. 22, 2012).

[16]  Id.

[17]  Id.

[18]  Silverio v. Republic, G. R. No. 174689, October 22, 2007, 537 SCRA 373.

[19]  Silverio v. Republic, G. R. No. 174689, October 22, 2007

[20]  G.R. No. 166676, 12 September 2008.

[21] Id.

[22]  Id.

[23]  Id.

[24]  Id.

[25]  Family Code, art. 2 (2).

[26]  Family Code, art. 6.

[27] Literally means “law of the place of the ceremony”. It refers to the law of the place where a contract, usually of marriage, is made. Black’s Law Dictionary 995 (9th ed.).

[28] Family Code, art. 2(2).

[29] Family Code, art. 3(3).

[30] Family Code, art. 34.

[31]  Family Code, art. 2(2).

[32]  Family Code, art. 14.

[33]  Family Code, art. 45(1).  Art. 45 (1), Family Code

[34]  Entitled “An Act Lowering the Age of Majority from Twenty-one to Eighteen Years, Amending for the Purpose Executive Order Numbered Two Hundred Nine, and for other Purposes”, enacted on Dec. 13, 1989.

[35]  See Act No. 2710 entitled “The Act to Establish Divorce” which took effect on Mar. 11, 1917.

[36]  See Mehul Srivastava, Philippine Call Centers Overtake India, Bloomberg Businessweek, Dec. 2, 2010, available at: http://www.businessweek.com/magazine/content/10_50/b4207017538393.htm (accessed on Jan. 22, 2012).

[37]  Family Code, art. 68.

[38]  Antonio v. Reyes, G.R. No. 155800, 484 SCRA 353, Mar. 10, 2006.

[39]  Republic v. Court of Appeals, G.R. No. 108763,  335 Phil. 664, 668, Feb. 13, 1997.

[40] Refers to a divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences. The system of no-fault divorce has been adopted throughout the United States. By 1974, 45 states had adopted no-fault divorce. By 1985, only the state of New York has yet to adopt some form of no-fault divorce. Black’s Law Dictionary 551 (9th ed.).

[41]  Dedel v. Court of Appeals, G.R. No. 151867, 421 SCRA 461 Jan. 29, 2004; Villalon v. Villalon, G.R. No. 167206, 475 SCRA 572, 582, Nov. 18, 2005; Marable v. Marable, G.R. No. 178741, 639 SCRA 557, Jan. 17, 2011.

[42]  Dedel v. Court of Appeals, G.R. No. 151867, 421 SCRA 461, Jan. 29, 2004; Navales v. Navales, G.R. No. 167523, 556 SCRA 272, Jun. 27, 2008.

[43]  Republic v. Cuison-Melgar, G.R. No. 139676, 486 SCRA 177, Mar. 31, 2006; Suazo v. Suazo, G.R. No. 164493, Mar. 10, 2010, 615 SCRA 154.

[44]  Hernandez v. Court of Appeals, G.R. No. 126010, 377 Phil. 919, Dec. 8, 1999.

[45]  Hernandez v. Court of Appeals, G.R. No. 126010, 377 Phil. 919, Dec. 8, 1999.

[46] Perez-Ferraris v. Ferraris, G.R. No. 162368, Jul. 17, 2006.

[47] Santos v. Bedia-Santos, G.R. No. 112019, January 4, 1995, 240 SCRA 20. Contra Tsoi v. Court of Appeals, 334 Phil. 294, 300-304 (1997).

[48]  Hernandez v. Court of Appeals, G.R. No. 126010, 377 Phil. 919, Dec. 8, 1999.

[49]  Republic v. Galang, G.R. No. 168335, Jun. 6, 2011; Marable v. Marable, G.R. No. 178741, 639 SCRA 557, Jan. 17, 2011; Kalaw v. Fernandez, G.R. No. 166357, Sept. 19, 2011. See also Choa v. Choa, G.R. No. 143376, 392 SCRA 641 Nov. 26, 2002.

[50] Tongol v. Tongol, G.R. No. 157610, 537 SCRA 135, Oct. 19, 2007.

[51] Pescav. Pesca, G.R. No. 136921,  356 SCRA 588, Apr. 17, 2001; Republic v. Cuison-Melgar, G.R. No. 139676, 486 SCRA 177, Mar. 31, 2006.

[52]  Republic v. Cuison-Melgar, G.R. No. 139676, 486 SCRA 177, Mar. 31, 2006; Paras v. Paras, 529 81; Yambao v. Republic, G.R. No. 184063, Jan. 24, 2011.

[53]  Republic v. Cuison-Melgar, G.R. No. 139676, 486 SCRA 177, Mar. 31, 2006; Suazo v. Suazo, G.R. No. 164493, 615 SCRA 154, Mar. 10, 2010.

[54]  Republic v. Cuison-Melgar, G.R. No. 139676, 486 SCRA 177, Mar. 31, 2006; Suazo v. Suazo, G.R. No. 164493, 615 SCRA 154, Mar. 10, 2010.

[55] Toring v. Toring, G.R. No. 165321, 626 SCRA 389, Aug. 3, 2010; Ochosa v. Alano, G.R. No. 167459, Jan. 26, 2011.

[56]  Navarro, Jr. v. Cecilio-Navarro, G.R. No. 162049, 521 SCRA 121, Apr. 13, 2007.

[57]  Paras v. Paras, G.R. No. 147824, 529 SCRA 81, Aug. 2, 2007.

[58]  Padilla-Rumbaua v. Rumbaua, G.R. No. 166738, , 596 SCRA 157, Aug. 14, 2009.

[59]  Tongol v. Tongol, G.R. No. 157610, 537 SCRA 135, Oct. 19, 2007.

[60]   Supra note 49.

[61]  Id. at __.

[62]  Supra note 41.

[63]  Id. at __.

[64]  G.R. No. 136490, 343 SCRA 755, Oct. 19, 2000.

[65]  G.R. No. 161793, 579 SCRA 193 Feb. 13, 2009.

[66]   G.R. No.164493, 615 SCRA 154, Mar. 10, 2010.

[67]  This paragraph is an amendment to Article 26 of the Family Code by Executive Order No. 227, dated July 17, 1987. The said E.O. codified the ruling of the Supreme Court in the case of Van Dorn v. Romillo, Jr. (G.R. No. L-68470, 139 SCRA 139, Oct. 8, 1985).

[68]  Republic v. Orbecido, G.R. No. 154380, 472 SCRA 114, 122, Oct. 5, 2005.

[69]  Id. Llorente v. Court of Appeals, G.R. No. 124371, 345 SCRA 592, 600, Nov. 23, 2000.

[70]  Id.

[71]  Corpuz v. Sto. Tomas, G.R. No. 186571, 628 SCRA 266, Aug. 11, 2010.

[72]  Republic v. Orbecido, supra note 70at 121.

[73]  Civil Code, art. 269.

[74]  Civil Code, art. 89.

[75]  Civil Code, art. 276.

[76]  Civil Code, arts. 287-289.

[77]  Family Code, art. 176.

[78]  Rep. Act No. 9255, §1.

[79]  Family Code, arts. 170-171.

[80]  Ronald Sullivan, Mother Accuses Sperm Bank of Mixup, The New York Times, Mar. 9, 1990, available at: http://www.nytimes.com/1990/03/09/nyregion/mother-accuses-sperm-bank-of-a-mixup.html (accessed on Jan. 22, 2012).

[81]   Family Code, arts. 170-173.

[82]   Family Code, art. 175.

[83]   Herrera v. Alba, G.R. No. 148220, 460 SCRA 197, Jun. 15, 2005.

[84]   Id. at __.

[85]  Now embodied in Article II, Section 13 of the 1987 Constitution.

[86]   Notes from the “ Rationale of the Proposed Rule on Juveniles in Conflict With the Law”.

[87]  Senate Bill No. 43, 15th Cong., sponsored by Senator Vicente C. Sotto III entitled “An Act to Lower the Age of Exemption from Criminal Responsibility Amending Sections 6, 20, 22, 23, 58, and 64 of R.A. 9344 otherwise known as the ‘Juvenile Justice and Welfare Act of 2006’ and for other purposes. Filed on Jun. 1, 2010.

GENDER EQUALITY AND JUSTICE IN THE LAW

 FOREWORD

Gender Equality and Justice in the Law*

Pia S. Cayetano**

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The 1987 Philippine Constitution affirms the equality of men and women before the law and recognizes the role of women in nation-building. Despite these constitutional mandates, much remains to be done before our society truly breaks down all forms of gender barriers and attains gender equality as envisioned in our Charter.

Many women continue to be victims of discrimination in society, at home and in the workplace. Oftentimes, their special needs are overlooked, even ignored, particularly in the areas of health, job promotion and employment opportunities, political and economic opportunities and especially in times of disasters. This is partly due to customs and traditions that are discriminatory and continue to exist, a lack of information, and the fact that in this day and age, women still constitute a minority in policy- and decision-making, both at the local and national levels.

Gender imbalances also persist in many of our laws despite breakthroughs in recent decades to advance women’s rights, including the passage of pro-women legislation. Concerted efforts from various sectors are therefore needed if we are to achieve gender equality and justice before the law.

This issue of the Philippine Law Journal is a step towards that direction. It offers scholarly discussions on relevant and timely gender issues such as discrimination, domestic violence and reproductive rights. It also explores issues that conservatives in the legislature would consider taboo, including divorce, abortion, and the rights of lesbians, gays, bisexuals and transgenders (LGBT).

First, ‘Concerns and Emerging Trends in Related Laws on Family and Children’ by Justice Flerida Ruth P. Romero, tackles emerging trends in family laws brought about by modernization, increased urbanization, and impact of high-tech devices.

Next, Senator Miriam Defensor-Santiago’s ‘Responsible Planning and Reproductive Health’ provides an in-depth look into the reasons why the Reproductive Health (RH) Bill should be passed. The article closely examines the reasons behind the Philippine Catholic Church’s opposition, and provides counter-arguments to justify the Bill’s passage. The author also extensively discusses principles in constitutional and international law which mandates the passage of the RH Bill.

Third, ‘Revisiting Supreme Court Decisions On Marriage and Property,’ reexamines certain decisions of the Supreme Court, which due to some ‘mutancy,’ have brought adverse impact on marital and property relations of spouses. Written by Katrina Legarda, the article shows the sharp conflict among certain decisions of the High Court, and puts forward the need for the courts to rectify and shed light on these matters.

Following this, in ‘Legal and Conceptual Framework of Battered Women Syndrome as a Defense,’ author Rowena Guanzon discusses the legal concepts and problems of Battered Women Syndrome as a legal defense, as well as the role of psychiatrists, psychologists and counselors.

The next article is entitled, ‘Anti-Mail Order Bride Legislation and Feminist Legal Theory: An Inquiry Towards a Rescript of the Diasporic Filipino Bride Phenomenon in the Philippines.’ Authored by Glenda T. Litong, the article reviews the government’s track record in protecting the right of Filipino women against discrimination and violence in the context of the ‘mail order bride’ phenomenon.

In the final article on gender entitled, ‘Sex in the Workplace: Approaches to Sexual Orientation and Gender Identity Discrimination in the Workplace Absent an Anti-Discrimination Law,’ wherein author Michael B. Ocampo argues that the Labor Code should be read differently in order that its anti-discrimination provisions be viewed to include the rights of lesbian, gay, bisexual and transgender individuals.

We are hopeful that these articles succeed in stirring scholarly discussions towards making our laws and current policies more relevant and responsive to the Charter’s mandate to end gender discrimination and attain genuine gender equality.

***

[Editor’s Note: To complement this issue, the editorial board has decided to include articles describing the legal atmosphere that makes gender reform plausible in our jurisdiction. Gender equality and justice is not possible without examining law and society. The first additional article is penned by Dean Merlin Magallona, in which he discusses the post-colonial legal structure and its imperviousness to social change due to the historical influence of the “rule of law” of our former colonizers. The modern legal structure was designed mainly to protect the colonizer’s economic interests and has not accommodated the various nuances of our pre-colonial cultures. His legal theory could accommodate the fact that prior to the arrival of Spaniards, women enjoyed a status in society that is equal to men.[1] The challenge now is to transgress this inherent structural limitation to accommodate reforms to improve gender and sexual issues.

In addition to Dean Magallona’s insightful article, Al Parreño’s ‘Constructing the Past: Legal Documents as Historical Artifacts’ examines how legal documents are historical artifacts and how each tell a story of the rise and fall of the Filipino people. Gender issues are one of the stories that have been embodied in such artifacts, but so far, the stories have not given a satisfactory conclusion in our systems of law. Maybe this is partly because the legal profession has been dominantly male since time immemorial. However, due to the emergence of more female lawyers, the discourse even in legal archives could expand to cater to these issues. Atty. Parreño’s theory was already witnessed in the case of People v. Genosa[2], wherein contributor Atty. Katrina Legarda interposed the novel defense of Battered Women’s Syndrome prior to the enactment of the Anti-Violence Against Women and Children Act, which contains the same defense. The power of lawyers to direct gender legislation is even bolstered with this idea that social trends are captured as artifacts through legal documents.]


* Cite asPia S. Cayetano, Gender Equality and Justice in the Law, 86 Phil. L. J. 1, (page cited) (2012).

** Member, Philippine Senate, 15th Congress; Chairperson, Committee on Health and Demography; Chairperson, Committee on Youth, Women and Family Relations; President, Coordinating Committee of Women Parliamentarians, Inter-Parliamentary Union; University of the Philippines, AB Economics (1985, cum laude), Bachelor of Laws (1991, 7th in the batch, Member of Order of the Purple Feather).

[1] Teodoro Agoncillo, History of the Filipino People 36 (1990, 8th ed.).

[2] G.R. No. 135981 (Sept. 29, 2000, Jan. 15, 2004). As cited by Prof. Rowena V. Guanzon’s in her article on Battered-Women Syndrome in this issue.