Article 9 of the Civil Code of the Philippines

ARTICLE 9. NO JUDGE OR COURT SHALL DECLINE TO RENDER JUDGMENT BY REASON OF THE SILENCE, OBSCURITY OR INSUFFICIENCY OF THE LAWS. (6)  

Article 9 speaks of a basic principle. One of the most fundamental in the case of effect and application of law. If there is no law, how will you resolve a legal issue? In this particular article, a judge should not refrain from rendering a judgment just because there is no law that governs a particular case. He must give a decision, whether he knows what law to apply or not. Thus, even if he does not know the rules of cockfighting, he must still decide the case. 

Go back to the question, how will you resolve an issue legally when there is no law at all? As a judge you are bound to resolve an issue legally. You must apply first the law as a basis in making a decision. Of course, you have to consider also some jurisprudence. Jurisprudence refers to the theory or philosophy of law. 

In case of silence, obscurity or insufficiency of the laws, a judgment may still be guided by the following:

1. Customs which are not contrary to law, public order or public policy;

2. Court decisions, foreign or local court, in similar cases; 

3. Legal opinions of highly qualified writers and professors; 

4. General principles of justice and equity; and

5. Rules of statutory construction.

HOW IF THE LAW IS UNJUST?

It is the duty of the court to apply the law without fear and favor, to follow its mandate and not to tamper with it. 

JUDGE IS DUTY BOUND TO APPLY THE LAW.

The judge had no other alternative except to impose the rule of law despite of his religious and political beliefs; and respect and apply the law regardless of his private opinions.

CASE (1):

ROMMEL JACINTO DANTES SILVERIO vs. REPUBLIC OF THE PHILIPPINES

G.R. No. 174689. October 22, 2007

CORONA, J.:

FACT: 

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

On June 4, 2003, the trial court rendered a decision in favor of petitioner GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of petitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 

On August 18, 2003, the Republic of the Philippines, thru the OSG, filed a petition for certiorari in the Court of Appeals. 

ISSUE: 

1. Is the petition of  Rommel Jacinto Dantes Silverio's  valid?

RULING:

NO. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. 

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. 

RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest.

While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

CASE (2):

REPUBLIC OF THE PHILIPPINES vs. JENNIFER B. CAGANDAHAN

G.R. No. 166676, September 12, 2008

Quisumbing, J.

FACT:

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate.

She alleged that she was born on January 13, 1981 and was registered as a female in her Birth Certificate but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. 

She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 ORDERING the Civil Register of Pakil, Laguna to correct the name of the petitioner from Jennifer Cagandahan to JEFF CAGANDAHAN; and change the gender from female to MALE.

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data.

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the RTC's ruling.

ISSUE: 

Is the prayer of the petitioner’s valid?

RULING:

YES. In the absence of a law on the matter, the Court shall not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences. 

The respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. The respondent has also the right to be equally respected and protected under the law. In so ruling, the Court shall do no more than to give respect to the diversity of nature; and how the petitioner deals with what nature has handed him out. Moreover, the Court shall respect respondent’s congenital condition and his mature decision to be a male.

(RE-POST)