G.R. No. 215370, November 9, 2021,

♦ Decision,

Inting, [J]

♦ Separate Concurring Opinion,

Gesmundo, [C.J.]

♦ Concurring Opinion,

Perlas-Bernabe, [J]

♦ Separate Concurring and Dissenting Opinion,

Leonen, [J]

♦ Concurring Opinion,

Caguioa, [J]

♦ Dissenting Opinion,

Lazaro-Javier, [J]

[ G.R. No. 215370. November 09, 2021 ]

RICHELLE BUSQUE ORDOÑA, PETITIONER, VS. THE LOCAL CIVIL REGISTRAR OF PASIG CITY AND ALLAN D. FULGUERAS, RESPONDENTS.

DISSENTING OPINION

LAZARO-JAVIER,

J.:

I dissent.

Facts

Petitioner has been married since 2000 to one Ariel Libut. After the wedding, she left the Philippines to work in Qatar. While abroad, she learned that her husband was having a romantic relationship with another woman. She returned to the Philippines. The spouses later separated in fact but not in law.

In 2008, petitioner left again to work in Abu Dhabi, United Arab Emirates. There, she met one Alan Fulgueras. They were intimately involved. She got pregnant. She flew back to the Philippines and gave birth to Alrich Paul Fulgueras (Alrich) in 2010.

The birth certificate of the child indicates his last name as "Fulgueras," and the name of his father as Allan Fulgueras. His birth certificate is supported by an Affidavit of Acknowledgment/Admission of Paternity of Allan Fulgueras. Petitioner was herself the informant who supplied these details for recording in the child's birth certificate. The spaces for the place and date of marriage were left blank.

Thus, from the beginning, the birth certificate already characterized the child's filiation as non-marital or illegitimate.

Petitioner filed with the trial court a petition for correction, deletion, and cancellation of entries in the child's birth certificate under Rule 108, Rules of Court. She sought, and continues to seek, the following forms of relief:

i. Correction of Alrich's last name from "Fulgueras" (the last name of the child's alleged biological father) to "Ordoña" (petitioner's maiden name);

ii. Deletion of entries in the paternal information as stated in Item Nos. 13 to 17 of the birth certificate; and

iii. Cancellation of the Affidavit of Acknowledgment/Admission of Paternity alleged to have been falsely executed to make it appear that it was executed by the biological father of Alrich.

Petitioner claimed that the child's paternal biographical details had been falsified. Her own evidence intended to prove that the child's biological father was not in the Philippines when she gave birth and did not actually acknowledge the child's paternity.

Clearly, the petition under Rule 108 did not seek to impugn the legitimacy of Alrich because he was already declared a

non-marital

illegitimate

from the time the birth certificate was entered. The confusion arose when the

ponencia

held that the child's birth certificate

cannot determine conclusively

the child's

filiation

because his mother was and still is married when he was conceived and born and therefore he is presumably legitimate.

Thus, instead of helping settle the child's status, the

ponencia

brought about an invisible watermark of legitimacy on the illegitimate status ostensibly shown by the child's birth certificate. I maintain my stand that this case could have been decided justly and legally by granting the petition and allowing the corrections in the child's birth certificate to be made and entered.

Overview of the Dissent

I dissent because the outcome in this case, to put it simply, is

unfair, if not inhumane

to petitioner who for all intents and purposes is a

solo mother,

and of course, to her

child

who will

suffer most

from the

lack of clarity regarding his status.

Both the trial court and the Court of Appeals

endeavoured to put clarity

on the

child's status

– in the decision of the trial court, the

truth prevailed

– he is

illegitimate

non-marital

and

without mentioning

the

presumption of legitimacy;

in the Court of Appeals' ruling, the

powerful patriarchal legal fiction

presumed legitimacy

triumphed.

But here, before this Court of last resort, there is

no clarity.

There has been, in my mind, a

retrogression

in the

substantive equality

between women and men. This does not augur well with the Court's own advocacy for

substantive gender equality.

We even have institutionalized our very own

Committee on Gender Responsiveness in the Judiciary

and yet we cannot usher in gender equality in the way we decide cases that speak directly to gender bias and patriarchal interpretations of our civil laws.

Why do we have to ask our co-equal branch for salvation when salvation is within our reach to do? Besides this

institutional contradiction

is the

child's best interests

that the ruling has opted to cast aside. In his search for his identity, have we done him justice? As a result of the

ponencia

, what and who he is remain especially elusive.

On one hand, the child's birth certificate fixes his

illegitimate

non-marital status.

According to the

ponencia

, his birth certificate

cannot be corrected to reflect his own mother's surname,

a legal option which applies otherwise to a legitimate and an illegitimate child alike. His birth certificate

identifies his father

though is

silent

as regards the

date and place of his parents' marriage.

This silence

publicly announces

that he is an

illegitimate

non-marital child.

The

child's birth certificate

is a

tangible fact.

Unless corrected or cancelled and replaced, this birth certificate is the

first

and

best evidence

of the child's filiation. This is the

first document

that the

public

will encounter when dealing with the child's filiation and other birth details.

On the other hand, the

ponencia

acts like an

invisible watermark

on his birth certificate that he is

strongly presumed to be legitimate.

This is the

second document

that speaks to the child's

presumed legitimate

filiation. But, unlike the birth certificate, the

ponencia

more difficult

to understand especially to those who barely have relevant encounters with the law.

In practical terms,

since there is

no order

from this Court that his

existing birth certificate

be amended to show his

presumed legitimate status,

and there are these

two documents

which speak to the child's filiation, both petitioner and her child will

have to explain his status

– is he

legitimate

illegitimate

– every time he is asked about it.

The

ponencia

makes the child

simultaneously

the

product of the love

(perhaps at the wrong time) of

two lonely individuals,

one of whom, the father, may now possibly be regretting the tryst,

and

the

modern

and

legal version

of the

immaculate conception,

the

human being sired by the copulation of Article 164 and Article 167 of the Family Code.

While I appreciate the

ponencia

's referral of the present conundrum to Congress for its rightful action, I believe we are

not powerless

to correct here and now the

legal fiction

we are taking to the extreme –

the

extreme

being the reality that,

with both our feet closest to ground,

we have just

created a human being born out of this legal fiction.

I can only describe this outcome as

being incredible

and

surreal.

Besides, if I were the child, I

cannot

and

will not be willing to wait

for the settlement of my

identity

as a person and human being – knowing how thorough Congress must be in vetting new legislations as legislations affect broader segments of society than case law would.

As Chair of the

Committee on Gender Responsiveness in the Judiciary,

I cannot sit idly by

to wait for miracles to happen.

Because if I do, I will

not ever

be a part of the process of worthy changes and my Committee’s advocacies on gender sensitivity will all look artificial and never get any closer to reality.

In gist, beyond the generalities, what I propose in this

Opinion

is closer to

but short of

the

original

version of the

ponencia

I do not think

we have to carve out an exception. I am

not fond of exceptions

especially when

my ground for objection

is based on the

equality of all human beings in the eyes of the law.

abhor

the idea of one gendered class having more rights than other gender classifications. This is

discriminatory

and therefore

unconstitutional.

The only thing we have to do is,

first, to recognize

that our jurisprudence on

Article 170

of the

Family Code

gender insensitive

and

outrightly patriarchal.

The

next step

is to say that

Article 170

not

and

could not have been meant to be exclusive

because –

(i) Its text

does not say explicitly

that only the husband or his heirs have such right (

verba legis non est recedendum – from the words of a statute there should be no departure

(ii) Article 170 should be understood in light of the surrounding provisions, which are Articles 167, 168, 169, and 171, which equally contain no text signifying patriarchal exclusivity (noscitur a sociis).

(iii) Statutes should

receive a sensible construction,

such as will give effect to the legislative intention and so as to

avoid an unjust or an absurd conclusion.

Indeed, courts are not to give words meanings that would lead to absurd or unreasonable consequences. Had petitioner been

compelled to follow the presumption of legitimacy,

she would have

committed offenses punishable

by the

Domestic Adoption Act of 1998 and The Revised Penal Code.

There would have been

other absurd and unreasonable consequences

as well.

(iv) The rule on standing or personality to file suits is a

rule of procedure

rather than

substantive law.

While Congress is by and large the

author of causes of action,

in the sense of creating or affirming rights that if violated must give rise to remedies, it is the Supreme Court that has the

authority

to say who has the

right

to go to courts, avail of its services, and obtain relief.

The Court should

not

be tied down by precedents and the rule on stare decisis if the jurisprudence we are affirming is

antiquatedly oppressive.

As eloquently observed by then Associate Justice Delos Santos in his opinion in

Almonte v. People,

the Court should

abandon a rule

that has

proved to be intolerable

and

defying practical workability,

where

the old rule

no more than a remnant of an abandoned doctrine,

and where

facts have so changed or come to be seen differently,

as to have

robbed

the

old rule

significant application

justification.

The

third step

is to

affirm

and

confirm,

once and for all,

consistent jurisprudence

that says

Rule 108

of the

Rules of Court,

in the absence of a governing special rule of procedure

that has specific remedial safeguards, is the

direct action (i.e., procedure)

for all matters that have to be recorded in the civil registry, including particularly when the correction sought would alter the legitimate status of the child to one of illegitimacy.

This is because

Rule 108

has been

uniformly recognized

as the

procedure for ascertaining the truth about the facts recorded

therein.

This is

also

because the purpose of establishing the

true legal status

of a person is the

object of a special proceedings like Rule 108

and

not

action

as this has been

technically

defined.

Under

Section 1

of Rule 108, "[a]ny 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 Court of First Instance of the province where the corresponding civil registry is located." This

interested person

includes, obviously, the mother of the child whose birth certificate is sought to be amended or corrected,

including the change in the status of a child from legitimate to illegitimate.

The

fourth and last step

is to adjudicate whether the mother of the child has adduced

adequate evidence to overcome the presumption of legitimacy

accorded by

Articles 164

and

167

of the

Family Code.

If she has, then the amendment or correction of the child's birth certificate should be decreed. Otherwise, if she fails to do so, then the

presumption of legitimacy

must prevail over the contrary entries in the birth certificate.

Either way, we give clarity to the child's status.

In this

specific instance

where the child is born while the mother is married to another

unless

there are rules that would

prevent

decision on the merits,

the

result

would be the

correction

of the child's birth certificate. This is to

give clarity

to the

status

of the child and

not to leave

the child

hanging,

let alone,

begging

for answers.

Where a decision

on the merits

is rendered, and though the

presumption

of legitimacy

prevails,

at least the

mother

was given the

opportunity to contest

the presumption

but on the basis of pure facts and pure science on human reproduction,

it is

determined

that

the child could not have been but the child of the marriage.

The child

does not become

the

child merely of legal fiction,

but based on evidence as to facts, circumstances, and science,

the child is the offspring of some real life legally recognized couple.

In all these steps, our

analytical framework

should consider

not only

the

text

and

jurisprudence directly

relevant to petitioner's claims

by tradition

but also

equity

and

such as the

child's best interests

, a

woman's personal liberty

make binding decisions

and

choices central

individual dignity

and

autonomy,

and the ensuing

discriminatory

and

unequal treatment of a woman

in terms of rights she may exercise if such right to privacy is violated. We

must account

as well for

developments in technology

that have allowed

paternity

to be established with

absolute degree certainty

such as

DNA testing.

The

context

in which

petitioner's action

and proposed action have taken and are taking place is

also important.

Here, the

context

is as follows: Petitioner's

impugnation

of her child's

legitimacy

occurred at two (2) instances: (i) at the

first instance,

when she supplied

basically correct

details about her child's paternity; and (ii) now, by

seeking to correct

the child's birth certificate owing to apparent second thoughts about the father's relationships to petitioner and their child himself.

From the

perspective of the birth certificate

and

petitioner's claims,

petitioner is

not really focused on impugning

the

legitimacy

of her child, though it has

this effect.

Rather, she is

merely correcting in good faith

the

details about his illegitimacy

already

recorded

in the civil registry.

From

a practical perspective,

petitioner has both the

right

and

duty

declare the illegitimacy

of her child at the

first instance

through the child's birth certificate and

pursue

her

Rule 108 petition

correct

this birth certificate.

This is

demanded by criminal statutes

that

criminalize false declarations

about a child's parentage. This

would have happened had petitioner literally abided by the child's presumed legitimacy and declared falsely

her husband as the child's father and other entries pertinent to a legitimate child.

compelling her not to disclose the truth

because she cannot allegedly impugn the legitimacy of her child, she is

being forced to commit offenses

under the

Domestic Adoption Act of 1998

and

The Revised Penal Code.

Let me

expound

on this overview below.

Issues

In order to provide correct or at least reasonable answers, we must first identify the issues,

viz

1) In filing the Rule 108 petition, is petitioner

impugning

her child's

legitimacy?

a) Does the child's

illegitimate status

in the birth certificate

prevail over

the

presumption of legitimacy?

b) Does this presumption

pierce

the

prima facie

truthfulness

of the facts stated in the birth certificate

c) Is there a need to seek a

judicial order

to enforce the presumption?

2) Is petitioner

barred from impugning

her child's legitimacy?

3) Is

Rule 108

the

proper remedy

for correction, deletion, and cancellation of entries in the birth certificate of petitioner's child?

4) Should

the petition

granted

? Has petitioner been able

to prove

her factual assertions

beyond a shadow of doubt?

I. Petitioner is impugning her child's legitimacy because this is the truth and it must be so even if we cannot handle the truth.

Petitioner

registered

her child as

illegitimate.

She included the name and other details of the child's father and the father's alleged consent through an Affidavit of Acknowledgment/Admission of Paternity where his signature was forged.

She then

filed a Rule 108 petition to correct entries

in the child's birth certificate –

not

to change his

status

from legitimate to illegitimate, or vice-versa, but

merely to correct entries

to conform to the

truth of the father's participation in the execution

of the birth certificate.

In these

two instances,

petitioner

impugned

the legitimacy of her child. What is clear though from her act is that

this is the truth

– the child is

not a child

of petitioner's failed marriage.

Concepcion v. Court of Appeals

held that the

status

of a child

accrues

to the child from the

moment of birth.

Concepcion

further ruled that the child's

illegitimate status

in the birth certificate

cannot prevail over the presumption of legitimacy.

The presumption

pierces

the

prima facie

truthfulness

of the facts stated in the birth certificate, thus:

The reliance of Gerardo on Jose Gerardo's birth certificate is misplaced. It has no evidentiary value in this case because it was not offered in evidence before the trial court. The rule is that the court shall not consider any evidence which has not been formally offered.

Moreover, the

law itself establishes the status of a child from the moment of his birth.

Although a

record of birth or birth certificate may be used as primary evidence of the filiation of a child, as the status of a child is determined by the law itself, proof of filiation is necessary only when the legitimacy of the child is being questioned, or when the status of a child born after 300 days following the termination of marriage is sought to be established.

Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in this case was improper and uncalled for.

In addition, a

record of birth is merely

prima facie

evidence of the facts contained therein. As

prima facie

evidence, the statements in the record of birth may be rebutted by more preponderant evidence. It is not conclusive evidence with respect to the truthfulness of the statements

made therein by the interested parties.

Between the certificate of birth which is

prima facie

evidence of Jose Gerardo's illegitimacy and the quasi-conclusive presumption of law (rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail.

Not only does it bear more weight, it is also more conducive to the best interests of the child and in consonance with the purpose of the law.

And, there is

no need

to seek a

judicial order

to enforce the

presumption of legitimacy.

The

filiation

of a child is

presumptively fixed from birth

regardless of what the birth certificate states.

As held in

Treyes v. Larlar,

if a

status

has been

declared by law to exist from a certain moment onwards

(i.e., in that case, status of being an heir; in the case at bar, the presumed legitimacy of the child), the law itself has already made

the declaration

and there is

no more need to obtain a judicial order

confirm that declaration.

While admittedly the

presumption of legitimacy

is the law on the matter, this rule

does not conclude

this case. This

presumption,

while quasi-conclusive, is

subject to rebuttal.

My assessment of petitioner's evidence leads me to conclude that she was

able to rebut

the presumption. More on this later.

Also, while the

presumption

subsists as it is strongly upheld by the

ponencia

, there is the

contrary

statement of the child's filiation in the

birth certificate

itself that

still exists.

While

legally

the birth certificate is

no longer

prima facie

probative

of the child's filiation, the

mere fact that it still exists,

as in fact it was actually allowed to stand according to the present

ponencia

, is a

cause of confusion

and

embarrassment

not only to petitioner's husband, but

more especially

to petitioner herself, and indeed,

most especially

to the child whose status has become unstable and ill-defined.

This reality of confusion and embarrassment makes it

imperative

for us

not to rest

upon the

presumption of legitimacy

but to go

further in justly and equitably resolving this case.

For all we know, given the

prevalence of overseas employment

and

divided families,

petitioner's problematic situation may

not

unique

but

too common

to be continuously ignored.

II. Rule 108, Rules of Court is the proper procedure for the claims in the instant case.

The

ponencia

ruled that petitioner's

recourse to Rule 108 is erroneous

because her child's legitimacy could not be

impugned collaterally but only directly.

I most respectfully

disagree.

One.

To begin with, it is

not true

, as suggested by others, that there is a

catena of cases prohibiting the change of a child's marital or legitimate to non-marital or illegitimate to status

through Rule 108 of the

Rules of Court.

On the contrary,

Rule 108 has always been the procedure

to correct a child's status from legitimate to illegitimate provided that the proceedings are made adversarial in nature. To be sure, if there was such catena of cases, it would have already been easy to point out

what exactly this proper procedure

is or has been and

under what rule this procedure

could be found –

but

to this date

no such procedure

rule has been identified

except to refer to the

ambiguous

phrase

direct action.

Two.

Applying

Treyes v. Larlar,

petitioner's factual assertions

cannot be threshed out

in an

action.

This is

because

these factual assertions involve the

correction of entries

in the birth certificate of her child. This

ultimate relief

predicated upon facts

established by evidence she adduced at the trial court. She is

not claiming any relief against

any person, natural or juridical. She has

no claim against any person.

What she wants is to

correct entries

in her child's birth certificate and to

establish facts

only towards that end.

This is the

purview not

of an

action but

of a

special proceeding.

Treyes

explained the

difference

between an

action

and a

special proceeding:

In the main,

Ypon,

citing certain earlier jurisprudence,

held

that the

determination of a decedent's lawful heirs should be made

in the

corresponding special proceeding, precluding the RTC in an ordinary action for cancellation of title and reconveyance from making the same.

According to Rule 1, Section 3 (c) of the Rules,

the purpose of a special proceeding is to establish a status, right, or particular fact.

As held early on in Hagans v. Wislizenus, a

"special proceeding"

may be defined as "an application or proceeding to

establish the status

or right of a party, or a particular fact." In special proceedings, the remedy is granted generally upon an application or motion.

In Pacific Banking Corp. Employees Organization v. Court of Appeals, the Court made the crucial

distinction between

ordinary action

and a

special proceeding:

Action

is the

act by which one sues another

in a court of justice

for the enforcement or protection of a right

, or the

prevention

redress of a wrong

while

special proceeding is the act

by which one seeks

to establish the status

or right

of a party,

or a

particular fact.

Hence,

action

is distinguished from

special proceeding

in that the former is a

formal demand of a right by one against another,

while the latter is but a

petition for a declaration of a status,

right or

fact

. Where a party-litigant

seeks to recover property from another,

his remedy is to file an

action.

Where his purpose is

to seek the appointment of a guardian

for an insane, his remedy is a

special proceeding

establish the fact

status of insanity

calling for an appointment of guardianship.

Hence, the

main point of differentiation

between a

civil action

and a

special proceeding

is that in the

former,

party sues another for the enforcement or protection of a right

which the party claims he/she is entitled to, such as when a party-litigant seeks to recover property from another, 74 while in the

latter

, a party merely

seeks to have a right established

in his/her favor.

Applying the foregoing to ordinary civil actions for the cancellation of a deed

or instrument and reconveyance of property on the basis of relationship with the decedent,

i.e.

, compulsory or intestate succession, the

plaintiff does not really seek to establish his/her right as an heir.

In truth, the plaintiff

seeks the enforcement of his/her right brought about by his/her being an heir

by operation of law.

Restated, the

party does not seek to establish his/her right as an heir

because the law itself already establishes that status.

What he/she aims to do is to merely call for the nullification of a deed,

instrument, or conveyance

as an enforcement or protection of that right

which he/she already possesses by virtue of law.

Indeed, it has been held that an

action

fundamentally different

from the

special proceedings

Rule 108

such that the former cannot substitute for the latter.

Petitioner does

not seek

the

enforcement

of a right

against someone.

Hence, she has

no need

for an

action.

Instead, petitioner wants to

correct

entries in the

birth certificate

of his

illegitimate

non-marital

child. Of course, she is

required to prove facts

showing the

errors

in the existing entries

and

the

correctness

of the details she wants to enter. This is the domain of

special proceedings.

Three.

We have to

distinguish

between the

grounds

justifying petitioner's factual assertions and the

procedure

for pursuing her claims.

The

grounds

are found in

Article 166

in relation to

Article 170

of the Family Code. To be

relevant,

the evidence to be adduced by petitioner would have to

prove these grounds.

The grounds themselves under Article 166 and Article 170, however,

do not ordain

the

procedure

by which the grounds are to be established. We

cannot determine

the

procedure

from reading Articles 166 and 170. In fact, if we are to rely

only

upon these provisions we would be

misled

into believing that

impugning legitimacy

requires an

"action"

– a formal demand of a right by the presumed father against the child when

this is not the case.

What happens when

impugning legitimacy

is that the presumed father endeavours to

obtain

declaration of a status,

right or

fact of illegitimacy

of the child, but

not

enforce

right against

this child. The

essence

this type of claim

is the

essence

special proceedings.

Four.

Since petitioner has to initiate

special proceedings,

the

only logical choice

for her is the rule of procedure prescribed by

Rule 108

of the

Rules of Court.

This is because a

Rule 108

proceeding will

not just

be about

correcting entries

in the subject birth certificate,

but

more important,

ascertaining the truth about the facts

recorded therein. The

what, why, how, where and when

as regards the child's birth will

necessarily be inquired

into and

litigated

before

declaration

and

registration

of a

status

, right, or fact could be made.

These are the

twin purposes

of Rule 108 so it

cannot be said

that this rule of procedure is

not

direct

proceeding for impugning the legitimacy of the child.

Five.

Case law has

consistently held

that "even

substantial errors in a civil registry may be corrected through a petition filed under Rule 108,

with the

true facts established

and the

parties aggrieved by the error

availing themselves of the appropriate adversarial proceeding."

This

includes

the

unearthing of facts

and

correction of entries

in the civil register pertaining to one's

filiation.

There is

no other procedure

direct

Rule 108

in the

impugnation of legitimate filiation.

past cases

involving filiation and Rule 108 as the remedy resorted to, the

fact-patterns

were the same.

This

template

could be illustrated, thus: a petitioner

seeks to correct filiation,

for example, from legitimate to illegitimate,

because the petitioner's circumstances

call for such correction, such as there really was no marriage or the petitioner was sired by another man. The rule used is

Rule 108.

Evidence is presented to prove the claims.

In these past cases, except for requiring adversarial proceedings, the Court has

consistently accepted Rule 108 as the proper procedure for such purpose.

Republic v. Coseteng-Magpayo

is one of these template cases.

Coseteng-Magpayo,

the

issue

was the

proper procedure to be followed

when the change sought to be effected in the birth certificate affects the civil status of the respondent therein

from legitimate to illegitimate.

The respondent therein claimed that

his parents were never legally married;

he filed a

petition to change his name

from "Julian Edward Emerson Coseteng Magpayo," the name appearing in his birth certificate, to "Julian Edward Emerson Marquez-Lim Coseteng."

The notice setting the petition for hearing was published and, since there was no opposition, the trial court issued an order of general default and eventually granted the petition of the respondent therein by, inter alia, deleting the entry on the date and place of marriage of his parents and correcting his surname from "Magpayo" to "Coseteng."

The Supreme Court reversed the trial court's decision

since the proper remedy

would have been to file a

petition under

Rule 108 of the Rules of Court,

and

not

petition for change of name.

The Court ruled that the

change sought

by the respondent therein

involved his civil status as a legitimate child;

it may

only be given due course through

adversarial

proceeding under

Rule 108.

Five.

Treyes v. Larlar,

the Court through Justice Caguioa held that there is no need to file a separate special proceeding to

declare

status

that a person already has

by operation of law.

Treyes,

heirship accrues from the decedent's time of death. No declaration to this effect is necessary for that heir to recover property as an heir. This status can be established in the civil action for recovery of property.

Following this ruling in

Treyes,

it is true that a child born to a mother who is married to another is

deemed legitimate

and this presumed status accrues from the

moment of birth. No judicial declaration is required

to obtain legitimate status because this status is given by operation of law.

On the other hand,

the

change of status

whether from legitimacy to illegitimacy or vice-versa is

not presumed by law.

One

has to work

for this change. It is

not something

that comes about by

operation of law,

unlike legitimacy or illegitimacy or heirship.

How does one go about seeking the

declaration of a change in status?

As Treyes itself explained, this is done

through special proceedings

and

not an action.

Rule 1, Section 3 of the Rules of Court provides that "[a] special proceeding is a

remedy

by which a party

seeks to establish a status,

a right, or a particular fact."

Rule 108 creates a remedy to rectify facts of a person's life

which are

recorded by the State

pursuant to Act No. 3753, the Civil Register Law. These are facts of public consequence that include one's birth, which the State has an interest in recording.

Thus, a

Rule 108 proceeding

is the

proper procedure

, a

direct

proceeding

to establish a child's status,

since the object of special proceedings (such as that in Rule 108 of the Rules of Court) is

precisely to establish the status

or right of a party or a particular fact.

Six.

I am

aware

of the rulings in

Miller v. Miller

and

Braza v. City Civil Registrar of Himamaylan City.

These cases make the

broad statement

that Rule 108 is

inappropriate

for

declaring the nullity of one's marriage for being bigamous and impugning the illegitimate status

of an alleged half-sibling by changing the surname in the birth certificate from the surname of the purported father to the surname of the mother.

These cases are

not on all-fours

with the case here.

Braza

involved a petition that brazenly sought to

declare a marriage void for being bigamous

through a

Rule 108

proceeding. This the Supreme Court

did not allow

because there is a

specially dedicated rule of procedure for this claim – A.M. No. 02-11-10-SC.

As explained in

Fujiki v. Marinay,

Rule 108

cannot substitute

for A.M. No. 02-11-10-SC because the latter has

procedural

and

substantive safeguards in place

before a marriage may be declared a nullity. Hence,

Braza

was held in

Fujiki

to be

inapplicable

in cases that

do not involve

the use of rules of procedure

specially dedicated

to the particular claim.

Thus:

To be sure, a

petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage

under the Family Code,

A.M. No. 02-11-10-SC

and other related laws.

Among these safeguards

are the requirement of proving the limited grounds for the dissolution of marriage, support pendente lite of the spouses and children, the liquidation, partition and distribution of the properties of the spouses, and the investigation of the public prosecutor to determine collusion. A direct action for declaration of nullity or annulment of marriage is

also necessary to prevent circumvention of the jurisdiction of the Family Courts

under the Family Courts Act of 1997 (Republic Act No. 8369), as a petition for cancellation or correction of entries in the civil registry may be filed in the Regional Trial Court "where the corresponding civil registry is located."

This is the

reason.

why a petitioner

cannot dissolve their

marriage

by the mere expedient of changing their entry of marriage in the civil registry – because of the

existence

of the

rule of procedure and its safeguards

especially dedicated

to the

nullification

of marriages –

A.M. No. 02-11-10-SC.

There is therefore

no reason

to resort to Rule 108 for the purpose of declaring a marriage void.

But

a declaration of change of status from

legitimate to illegitimate

not covered

by the ruling in

Braza.

The reason is that there is

no especially dedicated rule of procedure for this

declaration. As explained above, Article 166 and Article 170

only state

the

grounds

for impugning legitimacy

but not

the

procedure

for pursuing these grounds.

With no

dedicated procedure for changing filiation,

Rule 108 fills in the void. The Supreme Court has recognized this for a long time now.

On the other hand,

Miller

has key differences with the present case.

For one

, the petitioner in

Miller

did not have personal knowledge of the actual intimacies

between his father and the respondent's mother to be able to conclude that his father is

not

also respondent's father.

Here,

petitioner

has

of facts for her to credibly conclude about the circumstances surrounding her child's birth.

For another, Miller is based on the ruling in Braza which does not apply to the case at bar because Braza pertained to the declaration of a marriage as a bigamous marriage that is governed not by Rule 108 but by A.M. No. 02-11-10-SC.

III. Petitioner is not barred from impugning her child's legitimacy.

The

bar

against petitioner from impugning her child's legitimacy is said to be founded upon

Article 170

of the

Family Code

–

The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a)

The

jurisprudence

Article 170

construed this provision as giving the

husband

and

only exceptionally his heirs

the

exclusive right to impugn

the legitimacy of a child. The rule has been expressed thus:

x x x

Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs

for the simple

reason

that

he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces

and

he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved.

It is only in exceptional cases that his heirs are allowed to contest such legitimacy.

Outside of these cases, none — even his heirs — can impugn legitimacy; that would amount to an insult to his memory.

x x x

x x x x

x x x It is settled that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress. We cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mother's alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption.

As I have stated, in

understanding this rule,

especially its

rationale,

we should consider

not only

the

text

and

jurisprudence directly

relevant to petitioner's claims

by tradition

but also according to—

(i)

equity,

(ii)

factual context,

(iii)

new rights-based developments in law,

such as the

child's best interests,

woman's personal liberty

make binding decisions

and

choices central

individual dignity

and

autonomy,

and the ensuing

discriminatory

and

unequal treatment of a woman

in terms of rights she may exercise if such right to privacy is violated, and

(iv)

developments in technology

for proving

paternity

such as

DNA testing.

I most respectfully submit that the

rationale

for the rule is

gender insensitive

and

utterly patriarchal.

The

rationale

presupposes the wife's fault. Regardless of fault, it

conceals

but dignifies

the implicit

silencing

of the wife on

choices central to her dignity and autonomy.

One such choice that is

denied her

is her volition to

make a declaration

as regards

her child's paternity

True, unrequited love and failed relationships are

painful

and

stressful

for the abandoned, either the woman or the man. But both of them have the

equal right

to fall in and out of love. It is

not only

the husband who falls and fails; the wife

does too

and

she should not be punished more than the husband would be.

Denying her the standing to impugn the legitimacy of her own child is one

punishment over and above

that

meted

upon a

husband

who

sires

child outside of marriage.

While the

community holds value judgments,

the

law ought to be neutral

and to hold both of them to be

equal possessors

of the

right

establish truthfully

the child's paternity. This is especially true, and actually we must be more solicitous, to the wife

because

the child, before evidence is even presented on

paternity,

is first and foremost

already

her child.

The

rationale

for the

jurisprudence

on Article 170 also

accepts

taken for granted

and

natural

the

moral and economic power

of the husband over the wife. This may be true in some instances but this has been the

product of gender roles

that society has nurtured for so long. Now,

that power

must be

equally shared

. The

moral

and

economic compass

is for

both the husband and the wife to share

as regards the rights and privileges and the duties and responsibilities appurtenant thereto. It is

no longer

the

husband who decides

by his lonesome. He is expected to share

at least

the decision-making power to the wife.

So there is every reason to

disown now

the

rationale

for the

rule of exclusivity in favour of the husband.

Contrary to some favoured opinions, the

doctrine of gender equality

does

not

arise only from the

Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW). While an important of international social legislation, CEDAW is

not the only

binding legal document on

gender equality.

We do not have to bother ourselves about

judicially legislating

the provisions of CEDAW into our municipal law – this is because we

do not have to look far

for authoritative precedents on gender equality. We have

ample supply of local laws

that await implementation in actual cases.

The following list is

not exhaustive

but illustrative:

Constitution,

Article II, Section 14: "The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men."

Constitution,

Article XIII, Section 14: "SECTION 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation."

RA 9710 (2009) "The Magna Carta of Women"

RA 11313 (2019) "An Act Defining Gender-Based Sexual Harassment In Streets, Public Spaces, Online, Workplaces, And Educational Or Training Institutions, Providing Protective Measures And Prescribing Penalties Therefor"

RA 9995 (2010) "An Act Defining And Penalizing The Crime Of Photo And Video Voyeurism, Prescribing Penalties Therefor, And For Other Purposes"

RA 9262 (2004) "An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefor, And For Other Purposes"

RA 8505 (1998), "An Act Providing Assistance And Protection For Rape Victims, Establishing For The Purpose A Rape Crisis Center In Every Province And City, Authorizing The Appropriation Of Funds Therefor, And For Other Purposes"

RA 8353 (1997) "An Act Expanding The Definition Of The Crime Of Rape, Reclassifying The Same As A Crime Against Persons, Amending For The Purpose Act No. 3815, As Amended, Otherwise Known As The Revised Penal Code And For Other Purposes"

RA 7877 (1995) "An Act Declaring Sexual Harassment Unlawful In The Employment, Education Or Training Environment, And For Other Purposes"

RA 7192 (1992) "An Act Promoting The Integration Of Women As Full And Equal Partners Of Men In Development And Nation Building And For Other Purposes"

PD 633 (1975) "Creating A National Commission On The Role Of Filipino Women"

RA 11210 (2019) "An Act Increasing The Maternity Leave Period To One Hundred Five (105) Days For Female Workers With An Option To Extend For An Additional Thirty (30) Days Without Pay, And Granting An Additional Fifteen (15) Days For Solo Mothers, And For Other Purposes"

RA 10398 (2013) "An Act Declaring November Twenty-Five Of Every Year As "National Consciousness Day For The Elimination Of Violence Against Women And Children"

RA 8972 (2000) "An Act Providing For Benefits And Privileges To Solo Parents And Their Children, Appropriating Funds Therefor And For Other Purposes"

PCW BR 001-10 (2010) "Approving And Adopting The Implementing Rules And Regulations Of Republic Act No. 9710 Otherwise Known As The "Magna Carta Of Women"

EO 77 (2002) "Approving And Adopting The Framework Plan For Women

2001-2004

And Intensifying The Implementation Of The 5% Budget Provision For Gender And Development Programs And Projects"

DPWH DO 130-16(2016) "Subject: Guidelines for the Implementation of the Provisions of Republic Act No. 6685 and Republic Act No. 9710 or the Magna Carta of Women)"

Clearly, the Philippines has enough set of

local laws

that demand

substantive

equality between men and women.

While these laws could have better been expanded to equality among all genders and non-genders alike, for purposes of the present case, suffice it to state that

we have enough laws on gender equality

that

ought to be reflected in the way this Court and other courts interpret legal provisions.

Laws are

living trees.

Seen this way,

narrow technical approaches

to understanding the laws are to be

eschewed.

This

also suggests

that

the past plays a critical but non-exclusive role in determining the content of the rights and obligations

outlined by our laws.

The laws as living trees

though rooted in past and present institutions

must be

capable of growth to meet the future

Laws are

intended to set a standard upon which the present as well as future conduct

is to be tested.

Therefore, the

meaning of Article 170

of the

Family Code

not to be determined solely

by the degree to which this provision was understood by the framers of this provision in the

Family Code

since their

deliberations were prior to the enactment of laws

meant to provide

affirmative relief

gender equality.

This admonition is as apt in defining the standing of a mother to challenge the legitimacy of her child as it is in abandoning jurisprudence requiring separate special proceedings to declare the heirs of a deceased.

The mother's standing to do so, while rooted in and hence to some extent defined by historical and existing practices, cannot be viewed as frozen by particular historical anomalies.

What must be sought is the broader philosophy underlying the historical development of the mother's standing on this matter – a philosophy which is not only capable of explaining the past but also of animating the future. This underlying philosophy is that our society and jurisprudence have long been under the yoke of patriarchy which legal developments in our country have deigned to reject to achieve gender equality.

This method of interpreting provisions in our civil laws has been accepted as the way to go by the Supreme Court.

In Alanis III v. Court of Appeals

the Court interpreted Article 364 of the Civil Code in a manner that speaks to the constitutional value and mandate of gender equality. The Court invoked the CEDAW as it did the same legal developments referred to above. The Court found no issue respecting the direct application of CEDAW to actual cases.

Illustrative of this enlightened method of statutory construction, which is adopted in this Opinion to support the jettisoning of the jurisprudence on Article 170 of the Family Code, Alanis III expounded:

The fundamental equality of women and men before the law shall be ensured by the State. This is guaranteed by no less than the Constitution, a statute, and an international convention to which the Philippines is a party.

In 1980, the Philippines became a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women, and is thus now part of the Philippine legal system. As a state party to the Convention, the Philippines bound itself to the following:

Article 2

(f) to take all appropriate measures, including legislation: to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

Article 5

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women[.]

Non-discrimination against women is also an emerging customary norm. Thus, the State has the duty to actively modify what is in its power to modify, to ensure that women are not discriminated.

Accordingly, Article II, Section 14 of the 1987 Constitution reiterated the State's commitment to ensure gender equality:

SECTION 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

In keeping with the Convention, Article II, Section 14 of the Constitution requires that the State be active in ensuring gender equality. This provision is even more noticeably proactive than the more widely-invoked equal protection and due process clauses under the Bill of Rights. In Racho v. Tanaka, this Court observed:

This constitutional provision provides a more active application than the passive orientation of Article III, Section 1 of the Constitution does, which simply states that no person shall "be denied the equal protection of the laws." Equal protection, within the context of Article III, Section 1 only provides that any legal burden or benefit that is given to men must also be given to women. It does not require the State to actively pursue "affirmative ways and means to battle the patriarchy — that complex of political, cultural, and economic factors that ensure women's disempowerment."

Article II, Section 14 implies the State's positive duty to actively dismantle the existing patriarchy by addressing the culture that supports it.

With the Philippines as a state party to the Convention, the emerging customary norm, and not least of all in accordance with its constitutional duty, Congress enacted Republic Act No. 7192, or the Women in Development and Nation Building Act. Reiterating Article II, Section 14, the law lays down the steps the government would take to attain this policy:

SECTION 2. Declaration of Policy. — The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men. The State shall provide women rights and opportunities equal to that of men.

To attain the foregoing policy:

(1) A substantial portion of official development assistance funds received from foreign governments and multilateral agencies and organizations shall be set aside and utilized by the agencies concerned to support programs and activities for women;

(2) All government departments shall ensure that women benefit equally and participate directly in the development programs and projects of said department, specifically those funded under official foreign development assistance, to ensure the full participation and involvement of women in the development process; and

(3) All government departments and agencies shall review and revise all their regulations, circulars, issuances and procedures to remove gender bias therein.

Courts, like all other government departments and agencies, must ensure the fundamental equality of women and men before the law. Accordingly, where the text of a law allows for an interpretation that treats women and men more equally, that is the correct interpretation.

We must also appraise technological developments that have made paternity determinations exact and foolproof. One such progress is DNA testing. When Article 170 of the Family Code was deliberated upon, the advantages that we now have of resorting to DNA testing to establish paternity were not available. The framers of Article 170 were clearly and convincingly not cognizant of this scientific testing because, otherwise, they would have mentioned or referred to it. But with DNA testing, it has become illogical and contrary to reason to continue denying to the wife the standing to question or challenge her own child's legitimacy.

Technological developments have made the overarching power of presumptions such as the presumption of legitimacy and its concomitant bar-rule or preclusion rule anachronistic and arbitrary because the presumptions these doctrines hold can already be easily debunked by science. The situation is akin to putting premium to form over undeniable substance should we continue to restrict the standing to impugn legitimacy to the husband and only exceptionally his heirs and deny this same personality to the wife despite the availability of infallible means to establish the wife's claim of illegitimacy.

Further, in addition to the foregoing factors that the interpretation of Article 170 should weigh in, the Court could resort to the traditional analytical tools of statutory construction to reach the ineluctable conclusion that Article 170 is not and could not have been meant to exclude the wife.

Thus:

(i) Its text does not say explicitly that only the husband or his heirs have such right (verba legis non est recedendum – from the words of a statute there should be no departure).

The text identifies the husband and his heirs as parties to impugn the legitimacy of a child. It does not say however that only they could do so. So the verba legis cannot justify the rule of exclusivity that jurisprudence has ruled to be the case.

Neither can we point to Articles 167, 168, 169 and 171 to justify the rule of exclusivity.

In fact, Article 167 mentions that the wife may impugn the legitimacy of her child – but the child is nonetheless presumed to be legitimate.

So Article 167 establishes the presumption of legitimacy but does not exclude the mother from being able to impugn the child's legitimacy. In fact, it says that the mother may declare against the child's legitimacy.

Speaking to the termination of a marriage and the birth of a child within 300 days after such termination, Article 168 is not relevant to the issue because it says nothing about the mother not being able to impugn the legitimacy of her child.

Article 169 refers to Article 168 – but the important takeaway from Article 169 is that "whoever alleges such legitimacy or illegitimacy" is bound to prove the claim if the child is born after 300 days from the termination of marriage. Article 169 does not impose a rule of exclusivity but recognizes the right of "whoever" to impugn a child's legitimacy.

Finally, Article 171 imposes no rule that only the heirs may impugn the legitimacy of a child. It says "the heirs of the husband may impugn..." Of course, the wife is an heir but it is irrelevant to this case because petitioner's husband is still alive.

As the surrounding provisions themselves show, there is nothing sacrosanct about this rule of exclusivity as the jurisprudential rationale for Article 170 makes it appear to be so. The provisions around Article 170 are not indicative of an intention to impose a rule of exclusivity.

(iii) Statutes should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion. Indeed, courts are not to give words meanings that would lead to absurd or unreasonable consequences. Had petitioner been compelled to follow the presumption of legitimacy, she would have committed offenses punishable by the Domestic Adoption Act of 1998 and The Revised Penal Code. There would have been other absurd and unreasonable consequences as well.

We cannot impose the rule of exclusivity here because it would compel petitioner to commit crimes punishable by the Domestic Adoption Act of 1998 and The Revised Penal Code. Consider these statutes:

1. Section 21, RA 8552 (2019), Domestic Adoption Act of 1998: "Violations and Penalties. — … (b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth and shall be punished by

prision mayor

in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00)."

2. Article 347, The Revised Penal Code: "Simulation of Births Substitution of On Child for Another and Concealment or Abandonment of a Legitimate Child. — The simulation of births and the substitution of one child for another shall be punished by prisión mayor and a fine of not exceeding 1,000 pesos…."

3. Article 172, The Revised Penal Code: "Falsification by Private Individuals and Use of Falsified Documents. — The penalty of

prision correccional

in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon... 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document.... Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree."

Another absurd result if the right to impugn is withheld from the mother of the subject child is to foster an illusion or a false reality upon the child. If unrebutted by the person who is in the most unique position to know, the presumption of the child's legitimacy would run counter to the actual facts of his being.

Not only is the child being rejected by the father whom the law through the presumption is foisting upon him to be his father. Still, the law says he is the child's father. But his public record in the form of his birth certificate introduces a different father or no father to the world. In real life situations, the child will be required to explain the discrepancy in his situation – why his father in the birth certificate is either unknown or different from the father whom he is forced to introduce as his father by legal fiction.

This is a traumatic scenario for a child. He has no clarity as to his being. He is forced to publicly announce his illegitimacy every time the presumption compels him to declare otherwise. The only solution to avoid this trauma is to give the mother the liberty to declare the true facts behind the child's status. To rule otherwise is to subvert the best interests of the child.

Additionally, the rule of exclusivity deprives the wife of her right to make personal choices on matters central to her dignity and autonomy. No doubt, the paternity of the child she carried for nine months and will be rearing by her lonesome is central to her dignity and autonomy. There is no debate on this. No husband has the credibility to argue otherwise since he was not the one who carried the child for nine months and neither will he have the opportunity to rear the child who is not his own.

Denying the wife her standing to challenge her child's legitimacy is most acutely oppressive when the wife finds herself in abusive situations. It is a strong public policy to protect the wife and her child from all forms of criminal abuse. This protection is constant and absolute – it is not diminished by the wife's justified or unjustified infidelity. It is both for the child's best interests and the wife's fundamental privacy right that she or the child be allowed to prove the child's true paternity and in the process challenge the child's legitimacy. A wife who has a pedophile for a husband or an abuser for a spouse, and who finds happiness and dignity with some other male partner, is entitled to seek relief from the courts to prove her child's true provenance. To continue to refuse her this standing and relief is abusing her twice over, initially by her husband and soon after by the interpretation of Article 170. I rebuff any suggestion that the framers of Article 170 intended to be instruments of abuse for all of eternity who would never wish to change their minds amidst the continuing awareness and dedication of the law to gender equality and technological advancements.

As then Justice Reyes stressed in his opinion in Spouses Imbong v. Ochoa Jr.,

the wife/mother is a woman, an individual, a human being, and a possessor of rights on her own accord. Her person and dignity are defined not only by her association to another or others but also if not more by her own self-worth and self-image –

Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. While the law affirms that the right of privacy inheres in marital relationships, it likewise recognizes that a spouse, as an individual per se, equally has personal autonomy and privacy rights apart from the right to marital privacy guaranteed by the Constitution. A spouse's personal autonomy and privacy rights, as an individual per se, among others, necessitates that his/her decision on matters affecting his/her health, including reproductive health, be respected and given preference.

Indeed, to keep the right to impugn exclusive to the male spouse in the family is to perpetuate the discriminatory practice against women in general.

There are practical considerations as well. If petitioner's husband would be the only person who could set right the child's paternity, what incentive would he have to act to impugn the child's legitimacy?

The child's birth certificate still enters him as an illegitimate or non-marital child. True, there is the presumption of legitimacy fictionally watermarked on his birth certificate. Nonetheless the birth certificate remains silent on the child's date of marriage, name of father, and surname. Would this presumption of legitimacy still matter at all to the husband when his name is not even implicated in the birth certificate?

More, assuming that petitioner's husband is minded to act, in practical terms, what document will be the object of his direct action so petitioner's husband can impugn the presumed legitimacy of the child? Will it be the

ponencia

that confirmed the presumption of legitimacy even if the

ponencia

towards the end of its discussion itself suggested the alternative that the child may after all be illegitimate? Will the object document be the child's birth certificate though it still says that the child is illegitimate?

Lastly, it will

not be for the best interests of the child

to compel the father to

disown the child

repeatedly

in public

and at a

forum

that would be distressing and scarring to the latter.

In contrast,

actually now have

the

perfect legal scenario to avoid

this public and cruel embarrassment to petitioner, her husband, petitioner's non-marital partner, and

most especially the child.

The

present proceeding

is this option. Given the arguments in this

Opinion,

what petitioner did and what she is now seeking from the Court, taken collectively, will be the

most discreet legal action

that could be

taken to avoid

the distress and scars to the child.

These are considerations that warrant a review and reversal of the

rule of exclusivity

that Article 170 has been

forced to signify

by jurisprudence.

(iv) The rule on standing or personality to file suits is a

rule of procedure

rather than

substantive law.

While Congress is by and large the

author of causes

of action, in the sense of creating or affirming rights that if violated must give rise to remedies, it is the Supreme Court that has the

authority

to say who has the

right

to go to courts, avail of its services, and obtain relief.

In any event, the

rule on standing

personality to sue

the Court's duty

and

authority

to establish. This is a

procedural rule

that the

Constitution

has textually committed to the Court to ordain. It is

not a substantive rule

that emanates from Article 170, which as argued above,

does not anyway say so.

This Court is

duty-bound

to correct an error in the interpretation of Article 170. This Court must

not perpetuate

discriminatory

and

flawed

interpretation of Article 170.

We also

do not have to wait

for Congressional action, which though helpful, is not necessary. The issue is one of

standing

personality

to start a suit. The Court

owns

that power.

In fact, Section 1 of Rule 108 already gives the mother the standing to file a petition thereunder:

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 Court of First Instance of the province where the corresponding civil registry is located.

Obviously, the mother is an

interested party

to seek the correction of the

birth certificate

of her child.

In sum, as I have said, the Court should

reject antiquatedly oppressive precedents.

Then Justice Delos Santos in his opinion in

Almonte v. People

said as much:

As to the legal effect of case laws, the Philippines exercises a unique brand of the common law doctrine of stare decisis. Up to a certain degree, this Court will uphold an established precedent and,

if need be, evaluate such prior ruling by:

(a) determining whether the rule

has proved to be intolerable

simply in

defying practical workability

; (b) considering whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (c) determining

whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine;

and, (d) finding out

whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification.

The above-discussions

clearly illustrate

each of the highlighted instances why a

precedent

should be

abandoned.

And we ought not to forget, here, we are

not just

talking about

lifeless

legal provisions but principles of law

infused by real lives of existing individuals.

The Court is respectfully implored

to act now.

It has the

power to make a difference

in real peoples' lives.

We must grant the right to the mother

of a child to impugn the legitimacy of her child. There are

no adverse consequences

to this but

only beneficial ones.

There is

nothing to fear

because she

still has to prove the merits

of her claims

beyond a shadow of doubt

IV. Petitioner's factual assertions and prayer should be granted because she was able to prove the same beyond a shadow of doubt.

Petitioner's factual assertions are based on Article 166 (1) (b), which states:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of... (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible x x x

Hence, Petitioner, therefore, was

able to rebut the presumption of legitimacy

and

prove beyond reasonable doubt

her child's

illegitimacy.

As for the surname of petitioner's child, petitioner was also

able to prove clearly and convincingly, more than preponderantly,

that the child's father did not sign the birth certificate and did not execute the Affidavit of Acknowledgment/Admission of Paternity.

Conclusion

ACCORDINGLY

, I vote to grant the present petition and declare petitioner's child Alrich Paul Fulgueras a non-marital or illegitimate child, and order the correction of entries in the child's birth certificate as prayed for by his mother, herein petitioner.

Footnotes

Attributed to Dr. Prem Jagyasi, Good Reads at https://www.goodreads.com/quotes/tag/idle (last accessed July 8, 2021).

G.R. No. 252117, July 28, 2020.

Cancellation or correction of entries in the Civil Registry.

Treyes v. Larlar, G.R. No. 232579, September 8, 2020.

See also Rule 3 of the Implementing Rules and Regulations of RA No. 9048.

See 505 Phil. 529, 542 (2005).

Id.

Supra

note at 4.

Id.

Republic v. Ontuca, G.R. No. 232053, July 15, 2020; Onde v. The Local Civil Registrar, 742 Phil. 691 (2014); Spouses Cerulla v. Delantar, 513 Phil. 237, (2005); Barco v. Court of Appeals, 465 Phil. 39 (2004).

ARTICLE 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)

ARTICLE 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a)

Supra

note 10 at 55; see also Republic v. Ontuca, GR. No. 232053, July 15, 2020: Republic v. Manda, G.R. No. 200102, (2019); Onde v. The Local Civil Registrar of Las Piñas City, 742 Phil. 691, 696 (2014).

See 656 Phil. 550 (2011).

Supra

note 4.

G.R. No. 200344, August 28, 2019.

622 Phil. 654, 659 (2019).

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES.

See 712 Phil. 524 (2009).

I use "their" to indicate gender neutrality, indeterminacy or non-affiliation with traditional gender categories.

Liyao v. Tanhoti-Liyao, 428 Phil. 628, 641 (2002).

See Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403,[ 1991 ] 2 S.C.R. 158,[ 1991 ] (Supreme Court of Canada).

Id.

Supra

note 4.

Supra

note 22.

G.R. No. 216425, November 11, 2020.

The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)

See 732 Phil. 1, 531 (2014).

G.R. No. 252117, July 28, 2020.

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