G.R. No. 215370 - Dissenting Opinion

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]

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

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 or 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.

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 or non-marital and without mentioning the presumption of legitimacy; in the Court of Appeals' ruling, the powerful patriarchal legal fiction of 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 or 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 or 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 is 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 or 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.1 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. I 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 is gender insensitive and outrightly patriarchal.

The next step is to say that Article 170 is 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,2 the Court should abandon a rule that has proved to be intolerable and defying practical workability, where the old rule is 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 of significant application or justification.

The third step is to affirm and confirm, once and for all, consistent jurisprudence that says Rule 108 of the Rules of Court,3 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 an action as this has been technically defined.4

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,5 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 a 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 to make binding decisions and choices central to 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 to declare the illegitimacy of her child at the first instance through the child's birth certificate and pursue her Rule 108 petition to 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.

By 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.

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

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 be 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 Appeals6 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.7

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,8 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 to 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 be 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.

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 or rule has been identified except to refer to the ambiguous phrase direct action.

Two. Applying Treyes v. Larlar,9 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 is 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 an 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 or 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 to establish the fact or 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, a 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 is fundamentally different from the special proceedings in Rule 108 such that the former cannot substitute for the latter.10

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 or 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 16611 in relation to Article 17012 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 a declaration of a status, right or fact of illegitimacy of the child, but not to enforce a right against this child. The essence of this type of claim is the essence of 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 a 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 a 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."13 This includes the unearthing of facts and correction of entries in the civil register pertaining to one's filiation.

There is no other procedure as direct as Rule 108 in the impugnation of legitimate filiation. In 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.

In 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 a 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 an adversarial proceeding under Rule 108.

Five. In Treyes v. Larlar,15 the Court through Justice Caguioa held that there is no need to file a separate special proceeding to declare a status that a person already has by operation of law. In 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. Miller16 and Braza v. City Civil Registrar of Himamaylan City.17 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.

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.18

As explained in Fujiki v. Marinay,19 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.

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 their20 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 is 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.

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.

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 on 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 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.21

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—

(iii) new rights-based developments in law, such as the child's best interests, a woman's personal liberty to make binding decisions and choices central to 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 a 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 to 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 as 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.

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.22 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.23 The laws as living trees though rooted in past and present institutions must be capable of growth to meet the future.24 Laws are intended to set a standard upon which the present as well as future conduct is to be tested.25

Therefore, the meaning of Article 170 of the Family Code is 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 on 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.26 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.27 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 Appeals28 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:

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

(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.

(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.

(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.29 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.

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.,30 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, we 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.

In any event, the rule on standing or personality to sue is 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 a 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 or 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. People31 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.

(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.

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.