Monday, February 20, 2012

Rommel Jacinto, Dantes Silverio vs. Republic of the Phil. G. R. No. 174689, October 19, 2007

Facts: On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the RTC of Manila, Branch 8. Petitioner was born in the City of Manila to the spouses Melecio Silverio and Anita Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth. His sex was registered as "male."

He alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

The trial court ruled in favor of petitioner. The granting of the petition would be more in consonance with the principles of justice and equity. The Republic of the Philippines, thru the OSG, filed a petition for certiorari in the Court of Appeals. It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.The Court of Appeals ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Petitioner moved for reconsideration but it was denied. Hence, this petition.

Issue : Whether or not petitioner’s claim that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.

Held: The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege, not a right. Petitions for change of name are controlled by statutes. Article 376 of the Civil Code was amended by RA 9048 (Clerical Error Law).

RA 9048 now governs the change of first name. Under the law, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed. Petitioner’s basis in the change of his first name was his sex reassignment. However, a change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. He must show that he will be prejudiced by the use of his true and official name. In this case, he failed to show, any prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes.

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is and that no correction must involve the change of nationality, age, status or sex of the petitioner. Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

There is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. 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.

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, the petition was petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

The Court cannot render judgment judgment to change name or sex on the ground of equity 

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress.

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