Silverio vs Republic Case Digest G.R. No. 174689 ; October 22, 2007 ; S3 & 7, RA 9048

Silverio vs Republic Case Digest 

G.R. No. 174689 ; October 22, 2007 ; S3 & 7, RA 9048

PRINCIPLE/S:

Special Proceedings

a) Change of name is a privilege and not a right.

- Petitions for change of name are controlled by statutes.

Article 376 provides - No person can change his name or surname without judicial authority.

b) RA 9048 is the law that governs the change of first name

Section 1 of RA 9048. (Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname) – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.

- RA 9048 (Clerical Error Law) vest the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore jurisdiction over applications for change of the first name is now primarily lodged with the aforementioned administrative officers.

- In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.

c) Grounds for Change of First Name or Nickname (Section 4, RA 9048 [Administrative Remedy]):

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or

3.The change will avoid confusion.

d) Entries that are correctable under Rule 108 of the Rules of Court are provided in Articles 407 and 408 of the Civil Code.

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

e) Meaning of "clerical or typographical error"

Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner.

f) Change of sex is a substantial change.

-  Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change.

g) "Correct" vs. "Change:

Correct - "to make or set aright; to remove the faults or error from"

Change - "to replace something with something else of the same kind or with something that serves as a substitute."

h) No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment

- Change of sex grounded upon sex reassignment surgery is considered a substantial change which is not covered by Rule 108.

- No special law in the Philippines governing sex reassignment and its effects.

i) Sex of a person is determined at birth

Birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant.

j) Determination of a person’s sex made at the time of his or her birth is immutable.

Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.

FACTS: Petitioner Rommel Jacinto Dantes Silverio was born and registered as a male. He filed a petition for the change of his first name and sex in his birth certificate in the RTC. He admitted that he is a male transsexual who underwent sex reassignment surgery. From the time he underwent such surgery, 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."

RTC granted the petition. The Republic of the Philippines, thru the OSG, filed a petition for certiorari in the CA alleging that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. CA ruled in favor of the OSG. Hence, this petition.

ISSUE/S:

1) WON petitioner is entitled to change his name in his birth certificate.

2) WON petitioner is entitled to change his sex in his birth certificate.

HELD:

1)  NO since a person’s first name cannot be changed on the ground of sex reassignment.  RA 9048 is the law that governs the change of first name. SECTION 4 of the said law provides the Grounds for Change of First Name or Nickname. The grounds are as follows: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. As such, RA 9048 does not sanction a change of first name on the ground of sex reassignment.  

Furthermore, before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. But the petitioner in the present case failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name.

2) NO since no law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. The entries correctable under Rule 108 of the Rules of Court are those provided in Article 408 of the Civil Code. These are entries in the civil register with regard to: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. In relation to the present case, sex reassignment is not among those acts or events mentioned in Article 408. Neither is it recognized nor even mentioned by any law, expressly or impliedly. Hence it cannot be allowed even under Rules 108.

Article 413 of the Civil Code provides that “All other matters pertaining to the registration of civil status shall be governed by special laws”. But there is no such special law in the Philippines governing sex reassignment and its effects. Hence the petitioner is not entitled to change his sex in his birth certificate on the ground of sex reassignment surgery.