EN BANC

[G.R. No. 89572. December 21, 1989.]

DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) an DIRECTOR

OF CENTER FOR EDUCATIONAL MEASUREMENT, Petitioners, v. ROBERTO REY
C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as
Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172,
Respondents.

Ramon M. Guevara for Private Respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; CASE OF TABLARIN V. GUTIERREZ, (152 SCRA 730)

UPHOLDING THE CONSTITUTIONALITY OF THE NATIONAL MEDICAL ADMISSION
TEST REITERATED IN CASE AT BAR. — In Tablarin v. Gutierrez, this Court upheld the
constitutionality of the NMAT as a measure intended to limit the admission to medical schools
only to those who have initially proved their competence and preparation for a medical
education. In the case at bar, respondent judge agreed with the petitioner that the said case was
not applicable. Her reason was that it upheld only the requirement for the admission test and said
nothing about the so-called "three-flunk rule." We see no reason why the rationale in the
Tablarin case cannot apply to the case at bar. The issue raised in both cases is the academic
preparation of the applicant. This may be gauged at least initially by the admission test and,
indeed with more reliability, by the three-flunk rule. The latter cannot be regarded any less valid
than the former in the regulation of the medical profession.

2. ID.; POLICE POWER; REQUISITES IN THE EXERCISE THEREOF. — Police power is

validly exercised if (a) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State, and (b) the means employed are reasonably
necessary to the attainment of the object sought to be accomplished and not unduly oppressive
upon individuals.

3. ID.; ID.; ID.; COMPLIED WITH IN CASE AT BAR. — The proper exercise of the police
power requires the concurrence of a lawful subject and a lawful method. The subject of the
challenged regulation is certainly within the ambit of the police power. It is the right and indeed
the responsibility of the State to insure that the medical profession is not infiltrated by

1
incompetents to whom patients may unwarily entrust their lives and health. The method
employed by the challenged regulation is not irrelevant to the purpose of the law nor is it
arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and
ultimately the medical profession from the intrusion of those not qualified to be doctors. While
every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a
doctor. This is true of any other calling in which the public interest is involved; and the closer the
link, the longer the bridge to one’s ambition. The State has the responsibility to harness its
human resources and to see to it that they are not dissipated or, no less worse, not used at all.
These resources must be applied in a manner that will best promote the common good while also
giving the individual a sense of satisfaction. A person cannot insist on being a physician if he
will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber,
he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the
other hand he may not force his entry into the bar. By the same token, a student who has
demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however
appropriate this career may be for others.

4. ID.; ID.; ACADEMIC FREEDOM, NOT ABSOLUTE. — The right to quality education is
not absolute. The Constitution also provides that "every citizen has the right to choose a
profession or course of study, subject to fair, reasonable and equitable admission and academic
requirements." The private respondent must yield to the challenged rule and give way to those
better prepared. Where even those who have qualified may still not be accommodated in our
already crowded medical schools, there is all the more reason to bar those who, like him, have
been tested and found wanting.

5. ID.; ID.; EQUAL PROTECTION CAUSE NOT VIOLATED IN CASE AT BAR. — The
contention that the challenged rule violates the equal protection clause is not well-taken. A law
does not have to operate with equal force on all persons or things to be conformable to Article
III, Section 1 of the Constitution. There can be no question that a substantial distinction exists
between medical students and other students who are not subjected to the NMAT and the three-
flunk rule. The medical profession directly affects the very lives of the people, unlike other
careers which, for this reason, do not require more vigilant regulation. The accountant, for
example, while belonging to an equally respectable profession, does not hold the same delicate
responsibility as that of the physician and so need not be similarly treated. There would be
unequal protection if some applicants who have passed the tests are admitted and others who
have also qualified are denied entrance. In other words, what the equal protection requires is
equality among equals. The Court feels that it is not enough to simply invoke the right to quality
education as a guarantee of the Constitution: one must show that he is entitled to it because of his
preparation and promise. The private respondent has failed the NMAT five times. While his
persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love.

DECISION

CRUZ, J.:

2
The issue before us is mediocrity. The question is whether a person who has thrice failed the
National Medical Admission Test (NMAT) is entitled to take it again.

The petitioner contends he may not, under its rule that —

h) A student shall be allowed only three (3) chances to take the NMAT. After three (3)
successive failures, a student shall not be allowed to take the NMAT for the fourth time.

The private respondent insists he can, on constitutional grounds.

But first the facts.

The private respondent is a graduate of the University of the East with a degree of Bachelor of
Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it as
many times. 1 When he applied to take it again, the petitioner rejected his application on the
basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro
Manila, to compel his admission to the test. chanrobles virtual lawlibrary

In his original petition for mandamus, he first invoked his constitutional rights to academic
freedom and quality education. By agreement of the parties, the private respondent was allowed
to take the NMAT scheduled on April 16, 1989, subject to the outcome of his petition. 2 In an
amended petition filed with leave of court, he squarely challenged the constitutionality of MECS
Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds raised
were due process and equal protection. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged
order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner
had been deprived of his right to pursue a medical education through an arbitrary exercise of the
police power. 3

We cannot sustain the respondent judge. Her decision must be reversed.

In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure
intended to limit the admission to medical schools only to those who have initially proved their
competence and preparation for a medical education. Justice Florentino P. Feliciano declared for
a unanimous Court: chanrob1es virtual 1aw library

Perhaps the only issue that needs some consideration is whether there is some reasonable relation
between the prescribing of passing the NMAT as a condition for admission to medical school on
the one hand, and the securing of the health and safety of the general community, on the other
hand. This question is perhaps most usefully approached by recalling that the regulation of the
practice of medicine in all its branches has long been recognized as a reasonable method of
protecting the health and safety of the public. That the power to regulate and control the practice
of medicine includes the power to regulate admission to the ranks of those authorized to practice
medicine, is also well recognized. Thus, legislation and administrative regulations requiring
those who wish to practice medicine first to take and pass medical board examinations have long

3
ago been recognized as valid exercises of governmental power. Similarly, the establishment of
minimum medical educational requirements — i.e., the completion of prescribed courses in a
recognized medical school — for admission to the medical profession, has also been sustained as
a legitimate exercise of the regulatory authority of the state. What we have before us in the
instant case is closely related: the regulation of access to medical schools. MECS Order No. 52,
s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of
the professional and technical quality of the graduates of medical schools, by upgrading the
quality of those admitted to the student body of the medical schools. That upgrading is sought by
selectivity in the process of admission, selectivity consisting, among other things, of limiting
admission to those who exhibit in the required degree the aptitude for medical studies and
eventually for medical practice. The need to maintain, and the difficulties of maintaining, high
standards in our professional schools in general, and medical schools in particular, in the current
state of our social and economic development, are widely known. chanrob les law library : red

We believe that the government is entitled to prescribe an admission test like the NMAT as a
means of achieving its stated objective of "upgrading the selection of applicants into [our]
medical schools" and of "improv[ing] the quality of medical education in the country." Given the
widespread use today of such admission tests in, for instance, medical schools in the United
States of America (the Medical College Admission Test [MCAT]) and quite probably, in other
countries with far more developed educational resources than our own, and taking into account
the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to
hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and
regulation in this area. That end, it is useful to recall, is the protection of the public from the
potentially deadly effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma. chanrobles vir tual lawlibrary

However, the respondent judge agreed with the petitioner that the said case was not applicable.
Her reason was that it upheld only the requirement for the admission test and said nothing about
the so-called "three-flunk rule."cralaw virtua1aw library

We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue
raised in both cases is the academic preparation of the applicant. This may be gauged at least
initially by the admission test and, indeed with more reliability, by the three-flunk rule. The latter
cannot be regarded any less valid than the former in the regulation of the medical profession. chanrobles law library

There is no need to redefine here the police power of the State. Suffice it to repeat that the power
is validly exercised if (a) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State, and (b) the means employed are reasonably
necessary to the attainment of the object sought to be accomplished and not unduly oppressive
upon individuals. 5

In other words, the proper exercise of the police power requires the concurrence of a lawful
subject and a lawful method.

The subject of the challenged regulation is certainly within the ambit of the police power. It is
the right and indeed the responsibility of the State to insure that the medical profession is not

4
infiltrated by incompetents to whom patients may unwarily entrust their lives and health.

The method employed by the challenged regulation is not irrelevant to the purpose of the law nor
is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and
ultimately the medical profession from the intrusion of those not qualified to be doctors. cralawnad

While every person is entitled to aspire to be a doctor, he does not have a constitutional right to
be a doctor. This is true of any other calling in which the public interest is involved; and the
closer the link, the longer the bridge to one’s ambition. The State has the responsibility to
harness its human resources and to see to it that they are not dissipated or, no less worse, not
used at all. These resources must be applied in a manner that will best promote the common good
while also giving the individual a sense of satisfaction. chanrobles.com.ph : virtual law library

A person cannot insist on being a physician if he will be a menace to his patients. If one who
wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of
course, he may not be forced to be a plumber, but on the other hand he may not force his entry
into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be
shunted aside to take a course in nursing, however appropriate this career may be for others. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

The right to quality education invoked by the private respondent is not absolute. The
Constitution also provides that "every citizen has the right to choose a profession or course of
study, subject to fair, reasonable and equitable admission and academic requirements." 6

The private respondent must yield to the challenged rule and give way to those better prepared.
Where even those who have qualified may still not be accommodated in our already crowded
medical schools, there is all the more reason to bar those who, like him, have been tested and
found wanting.

The contention that the challenged rule violates the equal protection clause is not well-taken. A
law does not have to operate with equal force on all persons or things to be conformable to
Article III, Section 1 of the Constitution.

There can be no question that a substantial distinction exists between medical students and other
students who are not subjected to the NMAT and the three-flunk rule. The medical profession
directly affects the very lives of the people, unlike other careers which, for this reason, do not
require more vigilant regulation. The accountant, for example, while belonging to an equally
respectable profession, does not hold the same delicate responsibility as that of the physician and
so need not be similarly treated.
chanrobles virtualawlibrary

There would be unequal protection if some applicants who have passed the tests are admitted and
others who have also qualified are denied entrance. In other words, what the equal protection
requires is equality among equals.

The Court feels that it is not enough to simply invoke the right to quality education as a
guarantee of the Constitution: one must show that he is entitled to it because of his preparation
and promise. The private respondent has failed the NMAT five times. 7 While his persistence is

5
noteworthy, to say the least, it is certainly misplaced, like a hopeless love. chanrob les lawlibra ry : rednad

No depreciation is intended or made against the private Respondent. It is stressed that a person
who does not qualify in the NMAT is not an absolute incompetent unfit for any work or
occupation. The only inference is that he is a probably better, not for the medical profession, but
for another calling that has not excited his interest.chanrobles.com : virtual law library

In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed
and may even be outstanding. It is for the appropriate calling that he is entitled to quality
education for the full harnessing of his potentials and the sharpening of his latent talents toward
what may even be a brilliant future.

We cannot have a society of square pegs in round holes, of dentists who should never have left
the farm and engineers who should have studied banking and teachers who could be better as
merchants.

It is time indeed that the State took decisive steps to regulate and enrich our system of education
by directing the student to the course for which he is best suited as determined by initial tests and
evaluations. Otherwise, we may be "swamped with mediocrity," in the words of Justice Holmes,
not because we are lacking in intelligence but because we are a nation of misfits.

WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January
13, 1989, is REVERSED, with costs against the private Respondent. It is so ordered.

Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortés, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Endnotes:

1. A check with the Department of Education showed that the private respondent had actually
taken and flunked four tests already and was applying to take a fifth examination.

2. He also failed this fifth test.

3. Rollo, pp. 26-34.

4. 152 SCRA 730.

5. US v. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Ynot v. Intermediate
Appellate Court, 148 SCRA 659.

6. Article XIV, Section 5(3).

7. Footnote Nos. 1 & 2.

6
Falcis III v. Civil Registrar-General refers to a petition filed by Filipino lawyer Jesus Falcis
before the Supreme Court of the Philippines.

The high court was asked about the constitutionality of the provision of the Family Code of the
Philippines defining marriage as "between a man and a woman".

History
The petition was filed by Atty. Jesus Falcis in 2015.

Oral arguments

On March 2018, the Supreme Court of the Philippines approved the scheduling of a same-sex
marriage petition that seeks to invalidate Articles 1 and 2 of the Family Code.[1]

During the second week of June 2018, the Supreme Court announced that they will hear
arguments in a case seeking the invalidation of the Family Code's provisions prohibiting same-
sex marriage.[2] The news of the historic oral arguments was also reported by the international
media. Duterte also expressed his support for same-sex marriage to be legalized in the
Philippines.[3]

On June 19, 2018, oral arguments commenced with the following arguments made: whether or
not the petition is properly the subject of the exercise of the Supreme Court's power of judicial
review, whether or not the right to marry and the right to choose whom to marry are cognates of
the right to life and liberty, whether or not the limitation of civil marriage to opposite-sex
couples is a valid exercise of police power, whether or not limiting civil marriages to opposite-
sex couples violates the Equal Protection Clause, whether or not denying same-sex couples the
right to marry amounts to a denial of their right to life and/or liberty without due process of law,
whether or not sex-based conceptions of marriage violate religious freedom, whether or not a
determination that Articles 1 and 2 of the Family Code are unconstitutional must necessarily
carry with it the conclusion that Articles 46(4) and 55(6) of the Family Code (i.e.: homosexuality
and lesbianism as grounds for annulment and legal separation) are also unconstitutional, and
whether or not the parties are entitled to the reliefs prayed for. The Office of the Solicitor
General (OSG) under Jose Calida argued against the case.[4] The second session of arguments
took place on June 26, 2018.[5]

Supreme Court justices queried Falcis on what injury was inflicted on him due to the
implementation of the Family Code but it was learned during the oral arguments that Falcis was
a single man did not apply for a marriage for himself which meant he was never denied one.
Falcis was told that his concern should have been raised in a lower court, particularly a regional
trial court first.[6]

Decision

The Supreme Court dismissed the petition on September 3, 2019 for "lack of standing" and for
"failing to raise an actual, justiciable controversy." and stated that it could only base a decision
7
on actual facts and "real adversarial presentations"[7] noting that Falcis cannot claim injury since
he is not seeking marriage for himself or has presented an actual case.[8] The high court however
added that the 1987 Constitution in "plain text" imposes no restriction on same-sex marriage.[6]
The Supreme Court suggested in its ruling that Congress should address the issue.

The petitioners were also cited for indirect contempt with the high court reasoning that "[t]o
forget [the bare rudiments of court procedure and decorum] – or worse, to purport to know them,
but really, only to exploit them by way of propaganda – and then, to jump headlong into the
taxing endeavor of constitutional litigation is a contemptuous betrayal of the high standards of
the legal profession."[9]

Falcis described the decision as a "temporary setback" and has already considered the fact that
oral arguments were held regarding his case as a victory "for the opportunity to educate the
public" about the issue of same sex marriage in the country.[6]

Reaction
Two days after the first arguments occurred, the presidential palace of Philippine President
Rodrigo Duterte stated that it was "too soon for same-sex marriage in the Philippines", causing
outrage from various human rights organizations.[10] Additionally, Senate President Tito Sotto,
an ally of Duterte, commented: "Same sex union, no problem. Marriage? Debatable", saying that
he will vote in favor of same-sex civil unions, a turnaround from previous pronouncements in
2016 and 2017 where he was against both same-sex civil unions and same-sex marriage.[11]

Roman Catholic bishops praised the dismissal of the petition interpreting the high court's
decision as a defense for the "sanctimony of marriage".[

8
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming
from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices
said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit
open. Out came two human beings; one was a male and the other was a female. Amihan
named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend
of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, 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?

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 Regional Trial Court of Manila,
Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio
Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as
"Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was
registered as "male."

He further 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.1 Feeling
trapped in a man’s body, he consulted several doctors in the United States. 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

9
reassignment surgery2 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 (petitioner) 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."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the
order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to

the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his
American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions
read:

Petitioner filed the present petition not to evade any law or judgment or any infraction
thereof or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in
consonance with the principles of justice and equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his
own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to
anybody or the community in granting the petition. On the contrary, granting the petition
would bring the much-awaited happiness on the part of the petitioner and her [fiancé] and
the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present
petition despite due notice and publication thereof. Even the State, through the [OSG] has
not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the
Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of

10
 [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and
petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition
for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of
entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It
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.
Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial
court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration
but it was denied.9 Hence, this petition.

Petitioner essentially claims 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
9048.10

The petition lacks merit.

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

Petitioner invoked his sex reassignment as the ground for his petition for change of name and
sex. As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction
thereof or for any unlawful motive but solely for the purpose of making his birth
records compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became
entitled to the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section
1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First

Name or Nickname. – No entry in a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil

11
 registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over applications for change of first name is
now primarily lodged with the aforementioned administrative officers. The intent and effect of
the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name)
and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until
and unless an administrative petition for change of name is first filed and subsequently denied.15
It likewise lays down the corresponding venue,16 form17 and procedure. 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:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change
of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor
or extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the
community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter one’s legal capacity or civil status.18
RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioner’s first name for his declared purpose may only
create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause
or any compelling reason justifying such change.19 In addition, he must show that he will be
prejudiced by the use of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name
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, that is, that 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

12
official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly
dismissed petitioner’s petition in so far as the change of his first name was concerned.

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.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial
order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as
clerical or typographical errors are involved. The correction or change of such matters can now
be made through administrative proceedings and without the need for a judicial order. In effect,
RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such
errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil
register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an entry
in the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other
existing record or records: Provided, however, That no correction must involve
the change of nationality, age, status or sex of the petitioner. (emphasis supplied)

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.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall
be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

13
 (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.25 However, no reasonable interpretation of the provision can justify
the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to
change means "to replace something with something else of the same kind or with something
that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries
therein, including those corresponding to his first name and sex, were all correct. No correction
is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as
births, marriages, naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407.
Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of
capacities and incapacities) of a person in view of his age, nationality and his family
membership.27

The status of a person in law includes all his personal qualities and relations, more or
less permanent in nature, not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The comprehensive term status…
include such matters as the beginning and end of legal personality, capacity to have rights
in general, family relations, and its various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s
legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed
by special laws.

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

14
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or

midwife in attendance at the birth or, in default thereof, the declaration of either parent of
the newborn child, shall be sufficient for the registration of a birth in the civil register.
Such declaration shall be exempt from documentary stamp tax and shall be sent to the
local civil registrar not later than thirty days after the birth, by the physician or midwife
in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a)
date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and
religion of parents or, in case the father is not known, of the mother alone; (d) civil status
of parents; (e) place where the infant was born; and (f) such other data as may be required
in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed
at the time of birth.29 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,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning
in the absence of a contrary legislative intent. 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. In this connection, sex is defined as "the sum of peculiarities of structure and
function that distinguish a male from a female"32 or "the distinction between male and female."33
Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to
produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday
understanding do not include persons who have undergone sex reassignment. Furthermore,
"words that are employed in a statute which had at the time a well-known meaning are presumed
to have been used in that sense unless the context compels to the contrary."36 Since the statutory
language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it
cannot be argued that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be included in the category
"female."

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

15
The trial court opined that its grant of the petition was in consonance with the principles of
justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice
to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but 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.37 One
of its essential requisites is the legal capacity of the contracting parties who must be a male and
a female.38 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,39 certain felonies under the Revised Penal Code40 and the
presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 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.

In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for
legislative guidelines becomes particularly important in this case where the claims asserted are
statute-based.

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.

It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to
fashion a law on that matter, or on anything else. 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.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and
[the] realization of their dreams." No argument about that. The Court recognizes 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. However, the

16
remedies petitioner seeks involve questions of public policy to be addressed solely by the
legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

17
 SECOND DIVISION

[G.R. NO. 166676, September 12, 2008]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. JENNIFER B. CAGANDAHAN,

Respondent.

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law
and seeking a reversal of the Decision1 dated January 12, 2005 of the Regional Trial Court
(RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in
Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in
Cagandahan's birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff
Cagandahan" and (2) gender from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of
Entries in Birth Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female
in the Certificate of Live Birth but while growing up, she developed secondary male
characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and female characteristics. She further
alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six,
underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests
revealed that her ovarian structures had minimized, she has stopped growing and she has no
breast or menstrual development. She then alleged that for all interests and appearances as well
as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate
be corrected such that her gender be changed from female to male and her first name be changed
from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks
and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered
his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of
the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr.
Sionzon issued a medical certificate stating that respondent's condition is known as CAH. He
explained that genetically respondent is female but because her body secretes male hormones,
her female organs did not develop normally and she has two sex organs - female and male. He
testified that this condition is very rare, that respondent's uterus is not fully developed because of
lack of female hormones, and that she has no monthly period. He further testified that

18
respondent's condition is permanent and recommended the change of gender because respondent
has made up her mind, adjusted to her chosen role as male, and the gender change would be
advantageous to her.

The RTC granted respondent's petition in a Decision dated January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs
for the granting of his petition. It was medically proven that petitioner's body produces male
hormones, and first his body as well as his action and feelings are that of a male. He has chosen
to be male. He is a normal person and wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to
make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of
the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner's school records, voter's registry, baptismal certificate, and
other pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.3
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the
abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:
I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT
BEEN COMPLIED WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX"
OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENT'S MEDICAL
CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A
"MALE"4
Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the
birth certificate of respondent to change her sex or gender, from female to male, on the ground of
her medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103
and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a

19
petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court,
respondent's petition before the court a quo did not implead the local civil registrar.5 The OSG
further contends respondent's petition is fatally defective since it failed to state that respondent is
a bona fide resident of the province where the petition was filed for at least three (3) years prior
to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court.6 The
OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate and
respondent's claimed medical condition known as CAH does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna
was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the
Local Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16,
2003 and all pleadings, orders or processes in the course of the proceedings,8 respondent is
actually a male person and hence his birth certificate has to be corrected to reflect his true
sex/gender,9 change of sex or gender is allowed under Rule 108,10 and respondent substantially
complied with the requirements of Rules 103 and 108 of the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME

SECTION 1. Venue. - A person desiring to change his name shall present the petition to the
Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the
Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. - A petition for change of name shall be signed and verified by the
person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for
at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by
an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and
shall direct that a copy of the order be published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general circulation published in the province, as the
court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an
election nor within four (4) months after the last publication of the notice.

SEC. 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The
Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government
of the Republic.

SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such
order has been published as directed and that the allegations of the petition are true, the court
20
shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge
that such name be changed in accordance with the prayer of the petition.

SEC. 6. Service of judgment. - Judgments or orders rendered in connection with this rule shall be
furnished the civil registrar of the municipality or city where the court issuing the same is
situated, who shall forthwith enter the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY

SECTION 1. Who may file petition. - Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in the civil register, may file a
verified petition for the cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil
interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and
(o) changes of name.

SEC. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the
civil registrar and all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceeding.

SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix
the time and place for the hearing of the same, and cause reasonable notice thereof to be given to
the persons named in the petition. The court shall also cause the order to be published once a
week for three (3) consecutive weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. - The civil registrar and any person having or claiming any interest under
the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of
the petition, or from the last date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. - The court in which the proceedings is brought may make
orders expediting the proceedings, and may also grant preliminary injunction for the preservation
of the rights of the parties pending such proceedings.

SEC. 7. Order. - After hearing, the court may either dismiss the petition or issue an order
granting the cancellation or correction prayed for. In either case, a certified copy of the judgment
shall be served upon the civil registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because respondent's petition did not implead the local civil

21
registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the proceedings. Likewise,
the local civil registrar is required to be made a party in a proceeding for the correction of name
in the civil registry. He is an indispensable party without whom no final determination of the
case can be had.12 Unless all possible indispensable parties were duly notified of the proceedings,
the same shall be considered as falling much too short of the requirements of the rules.13 The
corresponding petition should also implead as respondents the civil registrar and all other
persons who may have or may claim to have any interest that would be affected thereby.14
Respondent, however, invokes Section 6,15 Rule 1 of the Rules of Court which states that courts
shall construe the Rules liberally to promote their objectives of securing to the parties a just,
speedy and inexpensive disposition of the matters brought before it. We agree that there is
substantial compliance with Rule 108 when respondent furnished a copy of the petition to the
local civil registrar.

The determination of a person's sex appearing in his birth certificate is a legal issue and the court
must look to the statutes. In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.
Together with Article 37616 of the Civil Code, this provision was amended by Republic Act No.
904817 in so far as clerical or typographical errors are involved. The correction or change of
such matters can now be made through administrative proceedings and without the need for a
judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of
Court the correction of such errors. Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.18

Under Rep. Act No. 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.19

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate"
appearance of male characteristics. A person, like respondent, with this condition produces too
much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH

22
usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia
often appearing more male than female; (2) normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start
to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty.
About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions21 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.22 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.23 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.24 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'"25 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.

In the instant case, if we determine respondent to be a female, then there is no basis for a change
in the birth certificate entry for gender. But if we determine, based on medical testimony and
scientific development showing the respondent to be other than female, then a change in the

subject's birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically
female nor consistently and categorically male) composition. Respondent has female (XX)
chromosomes. However, respondent's body system naturally produces high levels of male
hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic
features of a male.

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. Respondent here
thinks of himself as a male and considering that his body produces high levels of male hormones

23
(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,26 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">27 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.

As for respondent's change of name under Rule 103, this Court has held that a change of name is
not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced
and the consequences that will follow.28 The trial court's grant of respondent's change of name
from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the
consequence that respondent's change of name merely recognizes his preferred gender, we find
merit in respondent's change of name. Such a change will conform with the change of the entry
in his birth certificate from female to male.

WHEREFORE, the Republic's petition is DENIED. The Decision dated January 12, 2005 of
the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as
to costs.

SO ORDERED.

Carpio-Morales, Tinga, Velasco, Jr., and Brion, JJ., concur.

24
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9005 June 20, 1958

ARSENIO DE LORIA and RICARDA DE LORIA, petitioners,

vs.
FELIPE APELAN FELIX, respondent.

Guido Advincula and Nicanor Lapuz for petitioners.

Nicodemus L. Dasig for respondent.

BENGZON, J.:

Review of a decision of the Court of Appeals, involving the central issue of the validity of the
marriage in articulo mortis between Matea de la Cruz and Felipe Apelan Felix.

It appears that long before, and during the War of the Pacific, these two persons lived together as
wife and husband at Cabrera Street, Pasay City. They acquired properties but had no children. In
the early part of the liberation of Manila and surrounding territory, Matea be came seriously ill.
Knowing her critical condition, two young ladies of legal age dedicated to the service of God,
named Carmen Ordiales and Judith Vizcarra1 visited and persuaded her to go to confession. They
fetched Father Gerardo Bautista, Catholic parish priest of Pasay. The latter, upon learning that
the penitent had been living with Felipe Apelan Felix without benefit of marriage, asked both
parties to ratify their union according to the rites of his Church. Both agreed. Whereupon the
priest heard the confession of the bed-ridden old woman, gave her Holy Communion,
administered the Sacrament of Extreme Unction and then solemnized her marriage with Felipe
Apelan Felix in articulo mortis,2 Carmen Ordiales and Judith Vizcarra acting as sponsors or
witnesses. It was then January 29 or 30, 1945.

After a few months, Matea recovered from her sickness; but death was not to be denied, and in
January 1946, she was interred in Pasay, the same Fr. Bautista performing the burial ceremonies.

On May 12, 1952, Arsenio de Loria and Ricarda de Loria filed this complaint to compel
defendant to an accounting and to deliver the properties left by the deceased. They are
grandchildren of Adriana de la Cruz, sister of Matea, and claim to be the only surviving forced
heirs of the latter. Felipe Apelan Felix resisted the action, setting up his rights as widower. They
obtained favorable judgment in the court of first instance, but on appeal the Court of Appeals
reversed and dismissed the complaint.

Their request for review here was given due course principally to consider the legal question-
which they amply discussed in their petition and printed brief — whether the events which took
place in January 1945 constituted, in the eyes of the law, a valid and binding marriage.

25
According to the Court of Appeals:

There is no doubt at all in the mind of this Court, that Fr. Gerardo Bautista, solemnized
the marriage in articulo mortis of Defendant Apelan Felix and Matea de la Cruz, on
January 29 and 30, 1945, under the circumstances set forth in the reverend's testimony in
court. Fr. Bautista, a respectable old priest of Pasay City then, had no reason to side one
or the other. . . . Notwithstanding this positive evidence on the celebration or performance
of the marriage in question, Plaintiffs-Appellees contend that the same was not in articulo
mortis, because Matea de la Cruz was not then on the point of death. Fr. Bautista clearly
testified, however, that her condition at the time was bad; she was bed-ridden; and
according to his observation, she might die at any moment (Exhibit 1), so apprehensive
was he about her condition that he decided in administering to her the sacrament of
extreme unction, after hearing her confession. . . . .The greatest objection of the
Appellees and the trial court against the validity of the marriage under consideration, is
the admitted fact that it was not registered.

The applicable legal provisions are contained in the Marriage Law of 1929 (Act No. 3613) as
amended by Commonwealth Act No. 114 (Nov. 1936) specially sections 1, 3, 20 and 21.

There is no question about the officiating priest's authority to solemnize marriage. There is also
no question that the parties had legal capacity to contract marriage, and that both declared before
Fr. Bautista and Carmen Ordiales and Judith Vizcarra that "they took each other as husband and
wife."

The appellants' contention of invalidity rests on these propositions:

(a) There was no "marriage contract" signed by the wedded couple the witnesses and the priest,
as required by section 3 of the Marriage Law; and

(b) The priest filed no affidavit, nor recorded the marriage with the local civil registry.

The factual basis of the first proposition — no signing — may seriously be doubted. The Court
of Appeals made no finding thereon. Indeed if anything, its decision impliedly held such
marriage contract to have been executed, since it said "the marriage in articulo mortis was a
fact", and the only question at issue was whether "the failure of Fr. Bautista to send copies of the
certificate of marriage in question to the Local Civil Registrar and to register the said marriage
in the Record of Marriages of the Pasay Catholic Church . . . renders the said marriage invalid."
And such was the only issue tendered in the court of first instance. (See p. 14, 34, Record on
Appeal.)

However, we may as well face this second issue: Does the failure to sign the "marriage
certificate or contract" constitute a cause for nullity?

Marriage contract is the "instrument in triplicate" mentioned in sec. 3 of the Marriage Law which
provides:

26
 Sec. 3. Mutual Consent. — No particular form for the ceremony of marriage is required,
but the parties with legal capacity to contract marriage must declare, in the presence of
the person solemnizing the marriage and of two witnesses of legal age, that they take
each other as husband and wife. This declaration shall be set forth in an instrument in
triplicate, signed by signature or mark by the contracting parties and said two witnesses
and attested by the person solemnizing the marriage. . . . (Emphasis ours).

In the first place, the Marriage Law itself, in sections 28, 29 and 30 enumerates the causes for
annulment of marriage. Failure to sign the marriage contract is not one of them.

In the second place, bearing in mind that the "essential requisites for marriage are the legal
capacity of the contracting parties and their consent" (section 1), the latter being manifested by
the declaration of "the parties" "in the presence of the person solemnizing the marriage and of
two witnesses of legal age that they take each other as husband and wife" — which in this case
actually occurred.3 We think the signing of the marriage contract or certificate was required by
the statute simply for the purpose of evidencing the act.4 No statutory provision or court ruling
has been cited making it an essential requisite — not the formal requirement of evidentiary
value, which we believe it is. The fact of marriage is one thing; the proof by which it may be
established is quite another.

Certificate and Record. — Statutes relating to the solemnization of marriage usually

provide for the issuance of a certificate of marriage and for the registration or recording
of marriage . . . Generally speaking, the registration or recording of a marriage is not
essential to its validity, the statute being addressed to the officials issuing the license,
certifying the marriage, and making the proper return and registration or recording. (Sec.
27 American Jurisprudence "Marriage" p. 197-198.)

Formal Requisites. — . . . The general rule, however, is that statutes which direct that a
license must be issued and procured, that only certain persons shall perform the
ceremony, that a certain number of witnesses shall be present, that a certificate of the
marriage shall be signed, returned, and recorded, and that persons violating the
conditions shall be guilty of a criminal offense, are addressed to persons in authority to
secure publicity and to require a record to be made of the marriage contract. Such statutes
do not void common-law marriages unless they do so expressly, even where such
marriage are entered into without obtaining a license and are not recorded. It is the
purpose of these statutes to discourage deception and seduction, prevent illicit intercourse
under the guise of matrimony, and relieve from doubt the status of parties who live
together as man and wife, by providing competent evidence of the marriage. . . . (Section
15 American Jurisprudence "Marriage" pp. 188-189.) Emphasis Ours. (See also Corpus
Juris Secundum "Marriage" Sec. 33.)

And our law says, "no marriage shall be declared invalid because of the absence of one or
several formal requirements of this Act . . . ." (Section 27.)

In the third place, the law, imposing on the priest the duty to furnish to the parties copies of such
marriage certificate (section 16) and punishing him for its omission (section 41) implies his

27
obligation to see that such "certificate" is executed accordingly. Hence, it would not be fair to
visit upon the wedded couple in the form of annulment, Father Bautista's omission, if any, which
apparently had been caused by the prevailing disorder during the liberation of Manila and its
environs.

Identical remarks apply to the priest's failure to make and file the affidavit required by sections
20 and 21. It was the priest's obligation; non-compliance with it, should bring no serious
consequences to the married pair, specially where as in this case, it was caused by the
emergency.

The mere fact that the parish priest who married the plaintiff's natural father and mother,
while the latter was in articulo mortis, failed to send a copy of the marriage certificate to
the municipal secretary, does not invalidate said marriage, since it does not appear that in
the celebration thereof all requisites for its validity were not present, the forwarding of a
copy of the marriage certificate not being one of the requisites. (Jones vs. Hortiguela, 64
Phil. 179.) See also Madridejo vs. De Leon, 55 Phil. 1.

The law permits in articulo mortis marriages, without marriage license; but it requires the priest
to make the affidavit and file it. Such affidavit contains the data usually required for the issuance
of a marriage license. The first practically substitutes the latter. Now then, if a marriage
celebrated without the license is not voidable (under Act 3613),5 this marriage should not also be
voidable for lack of such affidavit.

In line with the policy to encourage the legalization of the union of men and women who have
lived publicly in a state of concubinage6, (section 22), we must hold this marriage to be valid.

The widower, needless to add, has better rights to the estate of the deceased than the plaintiffs
who are the grandchildren of her sister Adriana. "In the absence of brothers or sisters and of
nephews, children of the former, . . . the surviving spouse . . . shall succeed to the entire estate of
the deceased. (Art 952, Civil Code.)

Wherefore, the Court of Appeals' decision is affirmed, with costs. So ordered.

Paras, C. J., Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia, and
Felix, JJ., concur.

28
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

A.M. No. MTJ-96-1088 July 19, 1996

RODOLFO G. NAVARRO, complainant,

vs.

JUDGE HERNANDO C. DOMAGTOY, respondent.

ROMERO, J.:p

The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del
Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts
committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy,
which, he contends, exhibits gross misconduct as well as inefficiency in office and
ignorance of the law.

First, on September 27, 1994, respondent judge solemnized the wedding between
Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely
separated from his first wife.

Second, it is alleged that he performed a marriage ceremony between Floriano Dador

Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27,
1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit Trial
Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the
respondent judge's residence in the municipality of Dapa, which does not fall within his
jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to
45 kilometers away from the municipality of Dapa, Surigao del Norte.

In his letter-comment to the office of the Court Administrator, respondent judge avers
that the office and name of the Municipal Mayor of Dapa have been used by someone
else, who, as the mayor's "lackey," is overly concerned with his actuations both as judge
and as a private person. The same person had earlier filed Administrative Matter No 94-
980-MTC, which was dismissed for lack of merit on September 15, 1994, and
Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C.
Domagtoy," which is still pending.

29
In relation to the charges against him, respondent judge seeks exculpation from his act
of having solemnized the marriage between Gaspar Tagadan, a married man separated
from his wife, and Arlyn F. Borga by stating that he merely relied on the Affidavit issued
by the Municipal Trial Judge of Basey, Samar, confirming the fact that Mr. Tagadan and
his first wife have not seen each other for almost seven years. 1 With respect to the
second charge, he maintains that in solemnizing the marriage between Sumaylo and
del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states
that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within
the court's jurisdiction;" and that article 8 thereof applies to the case in question.

The complaint was not referred, as is usual, for investigation, since the pleadings
submitted were considered sufficient for a resolution of the case. 2

Since the countercharges of sinister motives and fraud on the part of complainant have
not been sufficiently proven, they will not be dwelt upon. The acts complained of and
respondent judge's answer thereto will suffice and can be objectively assessed by
themselves to prove the latter's malfeasance.

The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn
Borga states that Tagadan's civil status is "separated." Despite this declaration, the
wedding ceremony was solemnized by respondent judge. He presented in evidence a
joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn
to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar. 3
The affidavit was not issued by the latter judge, as claimed by respondent judge, but
merely acknowledged before him. In their affidavit, the affiants stated that they knew
Gaspar Tagadan to have been civilly married to Ida D. Peñaranda in September 1983;
that after thirteen years of cohabitation and having borne five children, Ida Peñaranda
left the conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been
heard of for almost seven years, thereby giving rise to the presumption that she is
already dead.

In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient
proof of Ida Peñaranda's presumptive death, and ample reason for him to proceed with
the marriage ceremony. We do not agree.

Article 41 of the Family Code expressly provides:

A marriage contracted by any person during the 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 had 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 Articles 391 of the Civil Code, an absence of only two years
shall be sufficient.

30
 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. (Emphasis added.)

There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law
is clear and simple. Even if the spouse present has a well-founded belief that the absent
spouse was already dead, a summary proceeding for the declaration of presumptive
death is necessary in order to contract a subsequent marriage, a mandatory
requirement which has been precisely incorporated into the Family Code to discourage
subsequent marriages where it is not proven that the previous marriage has been
dissolved or a missing spouse is factually or presumptively dead, in accordance with
pertinent provisions of law.

In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the
declaration of his first wife's presumptive death. Absent this judicial declaration, he
remains married to Ida Peñaranda. Whether wittingly or unwittingly, it was manifest
error on the part of respondent judge to have accepted the joint affidavit submitted by
the groom. Such neglect or ignorance of the law has resulted in a bigamous, and
therefore void, marriage. Under Article 35 of the Family Code, " The following marriage
shall be void from the beginning: (4) Those bigamous . . . marriages not falling under
Article 41."

The second issue involves the solemnization of a marriage ceremony outside the court's
jurisdiction, covered by Articles 7 and 8 of the Family Code, thus:

Art. 7. Marriage may be solemnized by :

(1) Any incumbent member of the judiciary within the court's jurisdiction;

xxx xxx xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers the

judge or in open court, in the church, chapel or temple, or in the office of
the consul-general, consul or vice-consul, as the case may be, and not
elsewhere, except in cases of marriages contracted on the point of death
or in remote places in accordance with Article 29 of this Code, or where
both parties request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated by them in a
sworn statement to that effect.

Respondent judge points to Article 8 and its exceptions as the justification for his having
solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of
his court's jurisdiction. As the aforequoted provision states, a marriage can be held
outside of the judge's chambers or courtroom only in the following instances: (1) at the

31
point of death, (2) in remote places in accordance with Article 29 or (3) upon request of
both parties in writing in a sworn statement to this effect. There is no pretense that
either Sumaylo or del Rosario was at the point of death or in the remote place.
Moreover, the written request presented addressed to the respondent judge was made
by only one party, Gemma del Rosario. 4

More importantly, the elementary principle underlying this provision is the authority of
the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the
"authority of the solemnizing officer." Under Article 7, marriage may be solemnized by,
among others, "any incumbent member of the judiciary within the court's jurisdiction."
Article 8, which is a directory provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority of the solemnizing officer as
provided in the preceding provision. Non-compliance herewith will not invalidate the
marriage.

A priest who is commissioned and allowed by his local ordinary to marry the faithful, is
authorized to do so only within the area of the diocese or place allowed by his Bishop.
An appellate court Justice or a Justice of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of the venue, as long as the requisites of
the law are complied with. However, judges who are appointed to specific jurisdictions,
may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in
the formal requisite laid down in Article 3, which while it may not affect the validity of the
marriage, may subject the officiating official to administrative liability. 5

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica

and Burgos, he was not clothed with authority to solemnize a marriage in the
municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as
grounds for the exercise of his misplaced authority, respondent judge again
demonstrated a lack of understanding of the basic principles of civil law.

Accordingly, the Court finds respondent to have acted in gross ignorance of the law.
The legal principles applicable in the cases brought to our attention are elementary and
uncomplicated, prompting us to conclude that respondent's failure to apply them is due
to a lack of comprehension of the law.

The judiciary should be composed of persons who, if not experts, are at least, proficient
in the law they are sworn to apply, more than the ordinary laymen. They should be
skilled and competent in understanding and applying the law. It is imperative that they
be conversant with basic legal principles like the ones involved in instant case. 6 It is not
too much to expect them to know and apply the law intelligently. 7 Otherwise, the
system of justice rests on a shaky foundation indeed, compounded by the errors
committed by those not learned in the law. While magistrates may at times make
mistakes in judgment, for which they are not penalized, the respondent judge exhibited
ignorance of elementary provisions of law, in an area which has greatly prejudiced the
status of married persons.

32
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and
void, there being a subsisting marriage between Gaspar Tagadan and Ida Peñaranda.

The Office of the Court Administrator recommends, in its Memorandum to the Court, a
six-month suspension and a stern warning that a repetition of the same or similar acts
will be dealt with more severely. Considering that one of the marriages in question
resulted in a bigamous union and therefore void, and the other lacked the necessary
authority of respondent judge, the Court adopts said recommendation. Respondent is
advised to be more circumspect in applying the law and to cultivate a deeper
understanding of the law.

IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby

SUSPENDED for a period of six (6) months and given a STERN WARNING that a
repetition of the same or similar acts will be dealt with more severely.

Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

33
 FIRST DIVISION

[A.M. No. MTJ-99-1211. January 28, 2000.]

ZENAIDA S. BESO, Complainant, v. Judge JUAN DAGUMAN, MCTC, Sta. Margarita-

Tarangan-Pagsanjan, Samar, Respondent.

DECISION

YNARES-SANTIAGO, J.:

In this administrative complaint, respondent Judge stands charged with Neglect of Duty and
Abuse of Authority. In a Complaint-Affidavit dated December 12, 1997, Zenaida S. Beso
charged Judge Juan J. Daguman, Jr. with solemnizing marriage outside of his jurisdiction and of
negligence in not retaining a copy and not registering the marriage contract with the office of the
Local Civil Registrar alleging —

"a. That on August 28, 1997, I and my fiancee (sic) BERNARDITO A. YMAN got married and
our marriage was solemnized by judge (sic) Juan Daguman in his residence in J.P.R. Subdivision
in Calbayog City, Samar; . . .
chanrobles virtuallawlibrary

b. That the ceremony was attended by PACIFICO MAGHACOT who acted as our principal
sponsor and spouses RAMON DEAN and TERESITA DEAN; . . .

c. That after our wedding, my husband BERNARDINO YMAN abandoned me without any
reason at all;

d. That I smell something fishy; so what I did was I went to Calbayog City and wrote the city
Civil Registrar to inquire regarding my Marriage Contract;

e. That to my surprise, I was informed by the Local Civil Registrar of Calbayog City that my
marriage was not registered; . . .

f. That upon advisement of the Local Civil Registrar, I wrote Judge Juan Daguman, to inquire;

g. That to my second surprise, I was informed by Judge Daguman that all the copies of the
Marriage Contract were taken by Oloy (Bernardito A. Yman);

34
h. That no copy was retained by Judge Daguman;

i. That I believe that the respondent judge committed acts prejudicial to my interest such as: chanrob1es virtual 1aw library

1. Solemnizing our marriage outside his jurisdiction;

2. Negligence in not retaining a copy and not registering our marriage before the office of the
local Civil Registrar."
cralaw virtua1aw library

The Affidavit-Complaint was thereafter referred to respondent Judge for comment.

In his Comment, respondent Judge averred that: chanrob1es v irtual 1aw library

1. The civil marriage of complainant Zenaida Beso and Bernardito Yman had to be solemnized
by respondent in Calbayog City though outside his territory as municipal Judge of Sta.
Margarita, Samar due to the following and pressing circumstances: chanrob1es virtual 1aw library

1.1. On August 28, 1997 respondent was physically indisposed and unable to report to his station
in Sta. Margarita. In the forenoon of that date, without prior appointment, complainant Beso and
Mr. Yman unexpectedly came to the residence of respondent in said City, urgently requesting the
celebration of their marriage right then and there, first, because complainants said she must leave
that same day to be able to fly from Manila for abroad as scheduled; second, that for the parties
to go to another town for the marriage would be expensive and would entail serious problems of
finding a solemnizing officer and another pair of witnesses or sponsors, while in fact former
Undersecretary Pacifico Maghacot, Sangguniang Panlungsod [member] Ramon Dean were
already with them as sponsors; third, if they failed to get married on August 28, 1997,
complainant would be out of the country for a long period and their marriage license would lapse
and necessitate another publication of notice; fourth, if the parties go beyond their plans for the
scheduled marriage, complainant feared it would complicate her employment abroad; and, last,
all other alternatives as to date and venue of marriage were considered impracticable by the
parties;

1.2. The contracting parties were ready with the desired cocuments (sic) for a valid marriage,
which respondent found all in order. chanrobles.com.ph:red

1.3. Complainant bride is an accredited Filipino overseas worker, who, respondent realized,
deserved more than ordinary official attention under present Government policy.

2. At the time respondent solemnized the marriage in question, he believed in good faith that by
so doing he was leaning on the side of liberality of the law so that it may be not be too expensive
and complicated for citizens to get married.

3. Another point brought up in the complaint was the failure of registration of the duplicate and
triplicate copies of the marriage certificate, which failure was also occasioned by the following
circumstances beyond the control of respondent: chanrob1es virtual 1 aw library

35
3.1. After handing to the husband the first copy of the marriage certificate, respondent left the
three remaining copies on top of the desk in his private office where the marriage ceremonies
were held, intending later to register the duplicate and triplicate copies and to keep the forth (sic)
in his office.

3.2. After a few days following the wedding, respondent gathered all the papers relating to the
said marriage but notwithstanding diligent search in the premises and private files, all the three
last copies of the certificate were missing. Promptly, respondent invited by subpoena . . . Mr.
Yman to shed light on the missing documents and he said he saw complainant Beso put the
copies of the marriage certificate in her bag during the wedding party. Unfortunately, it was too
late to contact complainant for a confirmation of Mr. Yman’s claim.

3.3. Considering the futility of contracting complainant now that she is out of the country, a
reasonable conclusion can be drawn on the basis of the established facts so far in this dispute. If
we believe the claim of complainant that after August 28, 1997 marriage her husband, Mr.
Yman, abandoned her without any reason . . . but that said husband admitted "he had another girl
by the name of LITA DANGUYAN." . . it seems reasonably clear who of the two marriage
contracting parties probably absconded with the missing copies of the marriage certificate.

3.4. Under the facts above stated, respondent has no other recourse but to protect the public
interest by trying all possible means to recover custody of the missing documents in some
amicable way during the expected hearing of the above mentioned civil case in the City of
Marikina, failing to do which said respondent would confer with the Civil Registrar General for
possible registration of reconstituted copies of said documents.

The Office of the Court Administrator (OCA) in an evaluation report dated August 11, 1998
found that respondent Judge." committed non-feasance in office" and recommended that he be
fined Five Thousand Pesos (P5,000.00) with a warning that the commission of the same or future
acts will be dealt with more severely pointing out that: jgc:chanrobles.com.ph

"As presiding judge of the MCTC Sta. Margarita Tarangnan-Pagsanjan, Samar, the authority to
solemnize marriage is only limited to those municipalities under his jurisdiction. Clearly,
Calbayog City is no longer within his area of jurisdiction.

Additionally, there are only three instances, as provided by Article 8 of the Family Code,
wherein a marriage may be solemnized by a judge outside his chamber[s] or at a place other than
his sala, to wit:
chanrob1es virtual 1aw library

(1) when either or both of the contracting parties is at the point of death;

(2) when the residence of either party is located in a remote place;

(3) where both of the parties request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated by them in a sworn statement to that
effect.

36
The foregoing circumstances are unavailing in the instant case.

Moreover, as solemnizing officer, respondent Judge neglected his duty when he failed to register
the marriage of complainant to Bernardito Yman.

Such duty is entrusted upon him pursuant to Article 23 of the Family Code which provides: chanrobles virtua| |aw |ibrary

"It shall be the duty of the person solemnizing the marriage to furnish either of the contracting
parties the original of the marriage certificate referred to in Article 6 and to send the duplicate
and triplicate copies of the certificates not later than fifteen days after the marriage, to the local
civil registrar of the place where the marriage was solemnized. . ." (Emphasis ours)

It is clearly evident from the foregoing that not only has the respondent Judge committed non-
feasance in office, he also undermined the very foundation of marriage which is the basic social
institution in our society whose nature, consequences and incidents are governed by law.
Granting that respondent Judge indeed failed to locate the duplicate and triplicate copies of the
marriage certificate, he should have exerted more effort to locate or reconstitute the same. As a
holder of such a sensitive position, he is expected to be conscientious in handling official
documents. His imputation that the missing copies of the marriage certificate were taken by
Bernardito Yman is based merely on conjectures and does not deserve consideration for being
devoid of proof." cralaw virtua1aw library

After a careful and thorough examination of the evidence, the court finds the evaluation report of
the OCA well-taken.

Jimenez v. Republic 1 underscores the importance of marriage as a social institution thus:"

[M]arriage in this country is an institution in which the community is deeply interested. The state
has surrounded it with safeguards to maintain its purity, continuity and permanence. The security
and stability of the state are largely dependent upon it. It is the interest and duty of each and
every member of the community to prevent the bringing about of a condition that would shake its
foundation and ultimately lead to its destruction." cralaw virtua1aw library

With regard to the solemnization of marriage, Article 7 of the Family Code provides, among
others, that —

"ARTICLE 7. Marriage may be solemnized by: chanrob1es virtual 1aw librar y

(i) Any incumbent member of the judiciary within the court’s jurisdiction; . . . (Emphasis ours)

In relation thereto, Article 8 of the same statute mandates that: chanrob1es virtual 1aw library

ARTICLE 8. The marriage shall be solemnized publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-
consul, as the case may be, and not elsewhere, except in cases of marriages contracted at the
point of death or in remote places in accordance with Article 29 of this Code, or where both
parties request the solemnizing officer in writing in which case the marriage may be solemnized

37
at a house or place designated by them in a sworn statement to that effect." (Emphasis ours)

As the above-quoted provision clearly states, a marriage can be held outside the judge’s
chambers or courtroom only in the following instances: 1.] at the point of death; 2.] in remote
places in accordance with Article 29, or 3.] upon the request of both parties in writing in a sworn
statement to this effect.

In this case, there is no pretense that either complainant Beso or her fiancé Yman was at the
point of death or in a remote place. Neither was there a sworn written request made by the
contracting parties to respondent Judge that the marriage be solemnized outside his chambers or
at a place other than his sala. What, in fact, appears on record is that respondent Judge was
prompted more by urgency to solemnize the marriage of Beso and Yman because complainant
was" [a ]n overseas worker, who, respondent realized deserved more than ordinary official
attention under present Government policy." Respondent Judge further avers that in solemnizing
the marriage in question," [h]e believed in good faith that by doing so he was leaning on the side
of liberality of the law so that it may not be too expensive and complicated for citizens to get
married." chanrobles.com : red

A person presiding over a court of law must not only apply the law but must also live and abide
by it and render justice at all times without resorting to shortcuts clearly uncalled for. 2 A judge
is not only bound by oath to apply the law; 3 he must also be conscientious and thorough in
doing so. 4 Certainly, judges, by the very delicate nature of their office should be more
circumspect in the performance of their duties. 5

If at all, the reasons proffered by respondent Judge to justify his hurried solemnization of the
marriage in this case only tends to degrade the revered position enjoyed by marriage in the
hierarchy of social institutions in the country. They also betray respondent’s cavalier proclivity
on its significance in our culture which is more disposed towards an extended period of
engagement prior to marriage and frowns upon hasty, ill-advised and ill-timed marital unions.

An elementary regard for the sacredness of laws — let alone that enacted in order to preserve so
sacrosanct an inviolable social institution as marriage — and the stability of judicial doctrines
laid down by superior authority should have given respondent judge pause and made him more
vigilant in the exercise of his authority and the performance of his duties as a solemnizing
officer. A Judge is, furthermore, presumed to know the constitutional limits of the authority or
jurisdiction of his court. 6 Thus respondent Judge should be reminded that —

A priest who is commissioned and allowed by his ordinary to marry the faithful, is authorized to
do so only within the area of the diocese or place allowed by his Bishop. An appellate court
justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize
marriages, regardless of the venue, as long as the requisites of the law are complied with.
However, Judges who are appointed to specific jurisdictions may officiate in weddings only
within said areas and not beyond. Where a judge solemnizes a marriage outside his court’s
jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which
while it may not affect the validity of the marriage, may subject the officiating official to
administrative liability. 7

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Considering that respondent Judge’s jurisdiction covers the municipality of Sta. Margarita-
Tarangan-Pagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in
the City of Calbayog. 8

Furthermore, from the nature of marriage, aside from the mandate that a judge should exercise
extra care in the exercise of his authority and the performance of his duties in its solemnization,
he is likewise commanded to observe extra precautions to ensure that the event is properly
documented in accordance with Article 23 of the Family Code which states in no uncertain terms
that —

ARTICLE 23. It shall be the duty of the person solemnizing the marriage to furnish either of the
contracting parties, the original of the marriage contract referred to in Article 6 and to send the
duplicate and triplicate of the certificate not later than fifteen days after the marriage, to the local
civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by
the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate.
The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate,
the original of the marriage license and, in proper cases, the affidavit of the contracting party
regarding the solemnization of the marriage in a place other than those mentioned in Article 8.
(Emphasis supplied)

In view of the foregoing, we agree with the evaluation of the OCA that respondent Judge was
less than conscientious in handling official documents. A judge is charged with exercising extra
care in ensuring that the records of the cases and official documents in his custody are intact.
There is no justification for missing records save fortuitous events. 9 However, the records show
that the loss was occasioned by carelessness on respondent Judge’s part. This Court reiterates
that judges must adopt a system of record management and organize their dockets in order to
bolster the prompt and efficient dispatch of business. 10 It is, in fact, incumbent upon him to
devise an efficient recording and filing system in his court because he is after all the one directly
responsible for the proper discharge of his official functions. 11

In the evaluation report, the OCA recommended that respondent Judge be fined Five Thousand
Pesos (P5,000.00) and warned that a repetition of the same or similar acts will be dealt with more
severely. This Court adopts the recommendation of the OCA.

WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Five Thousand
Pesos (P5,000.00) and STERNLY WARNED that a repetition of the same or similar infractions
will be dealt with more severely.

SO ORDERED. chanroblesvirtuallawlibrary

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

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