Choose to end injustice

(Part 2)

Last week, I discussed the decision of the Supreme Court in the case of Ordoña vs. The Local Civil Registrar of Pasig City (G.R. No. 215370. Nov. 9, 2021). In that case the majority decided 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 provisions in the Family Code regarding the presumed legitimacy of the child, and who could question that legitimacy. The majority made this decision even if they acknowledged that this case showed a gap in the law which resulted in an absurd and unremedied situation for the child of the petitioner, and that the granting of the petition would be more in line with the nation’s commitment to gender equality found both in our international treaties and our Constitution.

There were five other opinions issued, three concurring, a dissenting opinion from Justice Amy C. Lazaro-Javier and a concurring and dissenting opinion from Justice Mario Victor F. Leonen. In her dissent, Justice Lazaro-Javier emphasized her belief that the petitioner had proven the filiation of her son, that the procedure chosen by the petitioner had in the past been accepted as proper, and that the prior patriarchal interpretation of the law (interpreting it to mean that only the husband and his heirs have the exclusive right to question the legitimacy of the child) must be re-evaluated in a modern and more equitable context.

For his part, Justice Leonen recognized that the failure to implead the man who was registered as the father of the child limits the reliefs that may be granted to the petitioner, but also that the mandate of the Constitution to ensure the fundamental equality before the law of women and men means that the change of surname requested by the mother must be granted.

I find myself agreeing with the dissents in that an exercise of this power – and obligation – to interpret the law would allow at least a partial remedy for the concerns of those in the same state as the petitioner, without a need to wait for legislative action.

Laws are not meant to be arbitrary, whimsical creations. They are enacted with a purpose, to advance a public good. The text of the law is always a product of its time, but it must be written in such a way as to allow it to achieve its goal despite changing circumstances. This unique requirement is why interpretation of laws – by judges in the present, to apply them to facts and circumstances in the present – is an essential role of the judiciary. Laws must be read with an eye not only to their text and purpose but also with due regard to the text and purpose of other laws, treaties and our Constitution.

The reason that Courts have been protective of the legitimacy of a child may have its roots in equitable principles, arising out of a concern for stability in a child’s status and legitimacy. Forming a strong sense of identity is essential to the healthy growth of a child, and early on much of that comes from one’s family. To allow just anyone to lightly and frequently question the parentage of a child would be extremely harmful to a child’s identity formation and sense of self.

But a mother is not “just anyone.” A mother is the one person who would be even more likely than the father to know the true lineage of her child. It is this proximity to the truth, alongside vested interest and obligations, which makes it reasonable for a purported father to be allowed to question the legitimacy of his alleged child. After all, these provisions of law were never intended to protect stability of a child’s status at the expense of the truth – yet if that is what allows the father to have standing, it only stands to reason that it also should for the mother. If, as the majority has ruled in this case, the father has standing but the mother has none, the inequality before the law is obvious and unconscionable. More than that, it would go against the very thing that the law is aimed at protecting – the best interests of the child. For surely what is in a child’s best interest – what they have a right to – is the truth.

Yet, as I mentioned earlier, the Courts do not only read the law – they interpret it. This does not mean that the Courts can make their own law, in the sense that they can apply the law in a manner that directly contravenes the existing text of the law. But as laws are crafted precisely to allow room for interpretation in circumstances different from those in which they were drafted, there is still a significant space for an interpretation to validly change as time passes. As things stand in the present, would an interpretation of the law that eliminates the inequality in this case be possible? I agree with both Justices Lazaro-Javier and Leonen that it is.

While the text of the law could certainly use revision, there is much that the current law does not say. While only the father/heirs are explicitly given the right to question legitimacy, there is nothing in the law that says a mother may not. While a mother’s declaration against the legitimacy is not enough to overcome the legitimacy of her child, there is nothing in the law that prevents her from proving it. These omissions leave space for an interpretation of the law that brings it in line with the standards that even the majority believes it should have and, as Justice Leonen puts it, the Constitution gives all actors of the State the positive duty to ensure the fundamental equality of women and men before the law.

The Court has already applied this type of interpretation to equalize the treatment of mothers and fathers in the case of Alanis III vs CA (cited by both dissents) where the Court categorically interpreted that the law allowed a child to use the surname of the mother. While due process must be followed and a purported father must be impleaded in an action that questions the paternity of a child, there should be no bar to an action by a mother to change the surname of her minor child to her own surname should she establish certain facts.

A law enacted to preserve the best interests of the child is one that should be interpreted in a way consistent with those best interests. Truth, and equality, are what a child and their parents deserve.