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For judicial restraint

Names have a peculiar sort of power. By having the capacity to call someone or something, one somehow is able to define simultaneously the identity of and relationship to the one being named. And it is no accident that one of God’s first entrusted tasks to mankind was to name all living creatures as part of establishing dominion over them.

That’s perhaps one reason why the recent case of Alanis vs. Court of Appeals — a quite ordinary case of an individual trying to have official documentation changed to reflect his preferred name — struck a chord with media and the public.

Having failed to get his way at the lower courts, petitioner Alanis finally got what he wanted with the Supreme Court: to have his name legally changed to his mother’s surname.

The Civil Code (Article 314) does provide that “legitimate and legitimated children shall principally use the surname of the father.” In this case, the Supreme Court pointed out that “principally” does not mean “exclusively” and thus — considering the specific circumstances of this case (i.e., that the petitioner had been using his mother’s surname since he was a child, although his birth certificate had him using his father’s surname) — it allowed the change of name.

That should have been the end of it. The issue was straightforward and, as Manny Riguera, arguably the country’s best remedial law lecturer, in his Facebook post dated Feb. 26 dryly stated: “Alanis laid down no new doctrine of law.”

Unfortunately, certain passages within the decision have been strangely blown out of proportion by the chatterati, moving Professor Riguera to say: “a wrong reading of Alanis [is] being disseminated in media and which could mislead the public and even the members of the bench and the bar.”

Some such “wrong reading” seems to have been prompted by portions of the decision, such as one lamenting how “it is unfortunate that legislation from the past appears to be more progressive than current enactments.” Another talked about “the passive orientation of Article III, Section 1 of the Constitution” and thus the need for “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” (citing Racho vs. Tanaka, 2018).

Finally, the decision described how the “patriarchy becomes encoded in our culture when it is normalized. The more it pervades our culture, the more its chances to infect this and future generations.” Thus, the Court overturned the lower court’s decision as “the trial court’s reasoning further encoded patriarchy into our system” and “entrenches the patriarchy and with it, antiquated gender roles.”

With all due respect to the Supreme Court, the language used was unfortunate. For a couple of reasons. The first, as pointed out by Prof. Riguera, is that the “hoopla generated by Alanis vs. Court of Appeals serves as an occasion for us to revisit the difference between the ratio decidendi and obiter dicta. The former is the rationale for the decision and constitutes binding precedent.” On the other hand, obiter dicta comprise “incidental or tangential pronouncements of the court which are not necessary for the holding it reached.”

“The ratio decidendi in the Alanis case is that … there was indeed a proper and reasonable cause for the change of the surname. The pronouncements of the court on gender equality, while laudable, were merely asides or obiter as they were not necessary to the holding that it reached. It should be noted that gender equality was not even raised as an issue in the case.”

Judicial economy and prudence counsels against pronouncing on matters not raised, as logically any discussion on such would likely fall in the realm of speculation.

The other reason has to do with judicial restraint. As one of the country’s premier legal academics and San Beda Graduate School of Law Dean Fr. Ranhilio Aquino puts it (in his own column Feb. 28), issues such as the “patriarchy” or “gender equality” are “a matter of policy, and it is for the legislature to allow the discourse of the spouses in their homes, the spouses in the workplace, and the spouses in the presence of their children to permeate the halls of the legislature.”

The point is that the Supreme Court was correct to point out that “like all other government departments and agencies, must ensure the fundamental equality of women and men before the law.” And yet, by Constitutional mandate, it can only do so if the “text of a law allows” it.

Note that in the Constitution’s 21,700 words, never did the words “patriarchy,” “gender equality,” or “antiquated gender roles” appear therein. And despite the Court’s seeming call for laws to be “progressive,” the word “progressive” only appears in the context of taxation rates, civil service employment, and congressional districting.

Article II.14 talks specifically about the “fundamental equality before the law of women and men,” so it is interesting that while the Court encouraged everyone to appreciate the nuance of “principally” as opposed to “exclusively,” yet it seemed to have sidestepped the fact that “fundamental” does not mean “absolute” or “detailed.”

Finally, it must be pointed out that the Constitution actually does contain the words “sanctity of family life” and “the family as a basic autonomous social institution” (Art. II.12); “strengthen ethical and spiritual values” (Art. XIV.3.2); “Filipino national culture” (Article XIV.14); and “traditions” (Art. XVI. 2).

All told, perhaps certain laws may be antiquated, perhaps there is such a thing as a “patriarchy” or “antiquated gender roles.” There may be merit to all that. But it is not for the Court to say. Those matters are left to the discernment and judgment of the people’s elected representatives.

Courts do not make policy, it does not make law. Courts are there merely to interpret the law. And for courts to engage in policy issues is to tinker with the fine balance of the equal separation of powers that is the country’s true constitutional mechanism and guarantee against tyranny.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula

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