Choose to end injustice

(Part 1)

Even if our Constitution enshrines the equality between men and women, it is an unfortunate fact that systems that perpetuate prejudice and inequality remain entrenched in our institutions and our laws. While I understand that to completely undo the damage wrought by generations of prejudice will take a lot of time and careful planning, it is important that both individuals and institutions do everything they can to remedy injustices that are already in front of them because these injustices are a multitude.

One of these injustices is illustrated in the recent case of Ordoña vs. The Local Civil Registrar of Pasig City which was decided late last year – although the text of the decision was only recently uploaded to the Supreme Court website. The case involves a woman seeking to make changes to the birth certificate of her son, changing his last name and removing certain entries regarding paternal information. At the time she gave birth to her son, she was legally married but had long been separated from her husband. Her son was the result of a relationship she had with a lover during her time working at the United Arab Emirates. She returned home to give birth to her son, and he was given the lover’s last name and there was an Affidavit of Acknowledgment/ Admission of Paternity attached to the birth certificate. However, she brought the case for correction because she wanted to change her son’s last name to her own, and she alleges that the lover was not in the country when she gave birth, so it was impossible for him to have signed the affidavit of acknowledgment. She presented evidence of this absence, but the trial court denied her petition, stating amongst others that it was in the best interests of the child to have a father, and that a public document has a presumption of validity.

Ordoña raised the decision to the Court of Appeals (CA), where she was again denied, but this time, the CA declared that Ordoña’s son should be considered the son of her estranged husband, not her lover, as the son was born while the marriage was still subsisting. The CA considered the petition filed by Ordoña to be one that was challenging the legitimacy of the son (even if the son was never recorded nor claimed as the son of the husband) and ordered the Registrar to change the son’s last name to the last name of Ordoña’s estranged husband.

While the Supreme Court set aside the changes made by the CA, it also dismissed the petition of Ordoña and allowed for no changes to the Birth Certificate. The decision stated that Ordoña’s declaration in the birth certificate and in her petition that her child is her illegitimate son cannot be treated as fact because it runs counter to Article 167 of the Family Code: “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.” It stated that the rule is that “the mother is barred from impugning or declaring against the legitimacy of her child, and only the father or in exceptional instances, his heirs, can contest in an appropriate action the legitimacy of a child born to his wife based on any of the grounds enumerated under Article 166 of the Family Code.”

That these provisions of law and prevailing rules are unjust and discriminatory against women is acknowledged in the decision of the Court, as is the fact that an adherence to the same leads to an “absurd and unremedied” situation, where Ordoña’s son remains to be illegitimate in the birth certificate and will use the surname of the lover while possessing, at the same time, a legitimate status as a child of the husband, as conferred by law. The Court states that logically, a woman would know of the circumstances that allow a man to contest legitimacy, and that only allowing a purported father to contest legitimacy is counter to the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which the Philippines is a state party.

And yet the Court claims that its hands in this instance are tied as “it may only entertain the impugnation of a child’s presumed legitimacy in a direct action filed by the proper party and within the prescribed period under the law.” Instead, the Court’s decision states that the injustice must be rectified by Congress through the passage of a law or amendment that would eliminate this disparity of treatment.

I agree that this is a matter that Congress can and should address. It is just one of many provisions of law that are remnants of outdated – yet still prevalent and harmful, patriarchal modes of thinking that have no place in our modern society. However, it will most likely take a long time before the amendments to the Family Code could be made through legislation. In the meantime, should justice be denied to a wife seeking to impugn the legitimacy of the child? Is there an interpretation of the law that would allow for the right to impugn filiation to be accorded to the wife as well?

When the actions that need to be taken to reflect truth and fairness in a particular situation are clear, when is it right to wring our hands with regret, and when is it better to find a way for immediate justice to prevail?

This is not the first time the Supreme Court has been faced with that question, and it certainly won’t be the last. I believe that there should be a certain latitude in the scope of actions that the judiciary allows itself in order to provide justice. Although relief may not always be available when the rights of others are affected, an interpretation of the law that would put an end to an injustice should be favored. When presented with an option that would put an end to an injustice and another option to perpetuate an injustice, I think the choice is clear – one must choose to end injustice.

In the next column, I will write about the dissents in the case, and share my thoughts on the same.