1 An Examination of Some Rules and Jurisprudence on Special Proceedings: A Recommendation of Modifications To Promote Human Rights* Naomi Therese F.

Corpuz** Speak for people who cannot speak for themselves. Protect the rights of all who are helpless. Proverbs 31: 8 A close examination has been made on some rules and jurisprudence on Special Proceedings. The aim of this paper is to recommend three modifications to make the laws and jurisprudence consistent to the rights of the mentally disabled persons with mental disorders apart from insanity or psychosis and to the rights of the LGBTs (lesbian, gays, bisexuals and transsexuals). It is recommended that: The rule on hospitalization of the Insane be modified to hospitalization of the Mentally Disabled Persons Change of First Name be allowed based on ones gender identity without judicial order Change of Sex be allowed based on ones gender identity without judicial order or certification from a doctor

A. Change Recommended for Rule 101 or Proceedings for Hospitalization of Insane Persons Rule 101 of the Rules of Court establishes the procedure for having a person allegedly insane committed to an institution.1 A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance (now Regional Trial Court) of the province where the person alleged to be insane is found.2 The petition shall be filed by the Director of Health (now Secretary of Health) in all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane and such person or the one having charge of him is opposed to his being taken to a hospital or other place for the insane.3 Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public
*

Cite as Naomi Therese F. Corpuz, An Examination of Some Rules and Jurisprudence on Special Proceedings: A Recommendation of Modifications To Promote Human Rights (2014) ** J.D., University of the Philippines College of Law (2015, expected); A.B. Psychology, cum laude, University of the Philippines (2003). 1 Antonio Bautista, BASIC SPECIAL PROCEEDINGS (2004). 2 RULES OF COURT, Rule 101, Sec. 1. 3 Id.

2 welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health.4 Why does Rule 101 limit the hospitalization only to insane persons? Why not include persons with mental disorders who are not necessarily insane but are debilitating as insanity? It can be deduced that since rules in Special Proceedings are ancient as described by Chief Justice Reynato Puno 5 in his foreword in Bautistas Special Proceedings book, psychiatry was not yet introduced in the Philippines. Therefore when Rule 101 was made, persons with mental disorders or psychological disorders did not come into the mind of the lawmakers. Psychiatry which is a medical specialty devoted to the study, diagnosis, treatment, and prevention of mental disorders, was a term coined in the 1800s 6 . However it was only in1953 7 that psychopharmacology8 , the science of determining which drugs alleviate which mental disorders and why they do so, was introduced in the Philippines. Today, Philippine Psychiatry has paved a long way since the early age. Psychiatrists and clinical psychologists have increased through the years and even undergo further training abroad.9 It is now recommended therefore, that Rule 101 must change the term insane persons to mentally disabled persons. Insanity is not the same as mental disability. Mental Disability is a wider term that covers insanity. In law, insanity under Article 12 of the Revised Penal Code means that the accused must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime.10 In medicine, insanity coincides more with psychosis11, a mental state often described as involving a "loss of contact with reality"12 that includes symptoms of delusions and hallucinations.13 Mental Disability on the other
4 5

Id., Rule 101, Sec. 3. Bautista, Supra at Note 1. 6 Psychiatry, available at http://en.wikipedia.org/wiki/Psychiatry (Last visited: April 1, 2014). 7 Ma. Luz Querubin & Sonia Rodriguez, BEYOND THE PHYSICAL: THE STATE OF THE NATIONS MENTAL HEALTH REPORT (2002). 8 Websters Dictionary, available at http://en.wikipedia.org/wiki/Psychopharmacology (Last visited: April 1, 2014). 9 Naomi Therese F. Corpuz, THE MENTALLY DISABLED in Philippine Setting: A Call for Equal Protection. A Critique on the Rights and Privileges Of the Mentally Disabled Filipinos And Their Place in Philippine Health Laws (2013). 10 People vs. Formigones, 87 Phil. 658, 660. 11 Interview with Dr. Jercyl Leilani Demeterio, past Philippine Psychiatric Association President, former professor of U.P. College of Medicine and current psychiatrist at Cardinal Santos Medical Center, Quezon City (March 30, 2014). 12 Psychosis available at http://en.wikipedia.org/wiki/Psychosis (Last visited: April 1, 2014). 13 Psychosis available at http://www.nhs.uk/conditions/Psychosis/Pages/Introduction.aspx (Last visited: April 1, 2014).

3 hand, as defined in the Implementing Rules and Regulations (IRR) of the Magna Carta for Disabled Persons, is a disability resulting from organic brain syndromes (example: mental retardation, acquired lesions of the central nervous system, dementia) and mental illnesses (psychotic and non-psychotic disorders),14 which is more encompassing. This recommended change is consistent with the Constitutional provision on Social Justice and Human Rights under Article XIII where three of its sections under Health state: Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the under-privileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health, manpower development, and research, responsive to the country's health needs and problems. Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and self-reliance, and their integration into the mainstream of society. (Emphases supplied). It is also stated in the policy of the Magna Carta for Disabled Persons under Section 2 that the grant of the rights and privileges for disabled persons shall be guided by the following principles: a. Disabled persons are part of Philippine society, thus the State shall give full support to the improvement of the total well-being of disabled persons and their integration into the mainstream of society. Toward this end, the State shall adopt policies ensuring the rehabilitation, self-development and self-reliance of disabled persons. It shall develop their skills and potentials to enable them to compete favorably for available opportunities. b. Disabled persons have the same rights as other people to take their proper place in society. They should be able to live freely and as independently as possible. This must be the concern of everyone the family, community and all government and non-government organizations. Disabled persons' rights must never be perceived as welfare services by the Government.
14

IRR of the Magna Carta for Disabled Persons, Rule 1.

c. The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capacity to attain a more meaningful, productive and satisfying life. To reach out to a greater number of disabled persons, the rehabilitation services and benefits shall be expanded beyond the traditional urban-based centers to community based programs, that will ensure full participation of different sectors as supported by national and local government agencies. xxx

With the aforementioned policy of the Magna Carta that in summary states (a) the State shall give full support to the total well-being of the disabled, (b) Disabled persons have the same rights as other people to take their proper place in society, (c) The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capacity to attain a more meaningful, productive and satisfying life shall we all the more push for the hospitalization or institutionalization of the mentally disabled and not only the insane. Mental Disability covers both mental illness and insanity. People refer to the mentally-ill to be sirang-ulo or insane but mental illness is not always about insanity. Dr. Lourdes Ignacio who is a past president of the Philippine Psychiatric Association says mental illness is not just for the sirang-ulo or insane.15 She clarifies that to have a mental health problem may simply mean that ones thoughts, feelings and behavior show disturbances which threaten the balance and stability of a person in his daily life.16 Depression for instance, which is a normal occurrence for human beings, can be a mental illness if it becomes severe. Major depression is a mental health disorder which causes prolonged feelings of despair, worthlessness, irritability, and fatigue. 17 Major depression can strike at any age, although it is most common in young adulthood. 18 Both men and women can experience major depression, however the disorder is more common in women. 19 Depression is sometimes called the "common cold" of mental health, because it is so common--nearly 10% of the population suffers from a depressive illness in any given year, according to the National Institute for Mental Health (NIMH). It is the leading cause of disability in the US and worldwide, according to the World Health Organization (WHO).20 This mental disorder is debilitating and may even cause suicide
15

Rina Jimenez David, At Large: Not Just for the Sirang-ulo at http://opinion.inquirer.net/8977/not-just-for-the-sirang-ulo (Last visited April 1, 2014). 16 Id. 17 Major Depression, available at http://depressedtest.com/major_depression.html (Last visited: April 1, 2014). 18 Id. 19 Id. 20 Id.

5 when left untreated. A recent case of suicide is that of a depressed Fil-Am model Helena Belmonte with bi-polar disorder and who belongs to a well-to-do family. Philippine Star columnist Sari Yap narrated that shortly after midnight of March 19, 2014, after a very happy day spent having dinner with girlfriends, then drinks at a wine bar with her boyfriend and other friends, she went home, and for some inexplicable reason, fell to her death from the 28th floor. Why would a girl who loved life and had just made plans to attend Barre 3 classes three times a week and yoga sessions twice a week take her own life? The answer is she didnt. Her condition was responsible for this tragic occurrence. Perhaps if society were more accepting of mental illness and treated it like the normal occurrence that it is among many men and women we live and work with every day, Helena would have accepted it as part and parcel of the human condition she had been dealt. Perhaps she would have continued seeing a doctor, and maybe taken a more proactive, positive stance to overcome it, instead of being ashamed, deep inside, that she had it. Because depression, when it hits is an acute pain that permeates every cell of ones physical, psychological and emotional being. There is no respite from it, because it takes away ones very ability to feel joy in anything. One would gladly cut off an arm to experience some relief.21 If Fil-Am Helena Belmonte who could afford medicine and maintenance for her bi-polar disorder but chose not to see a doctor can commit suicide how much more detriment can result for impoverished people also afflicted with mental disorders? Sadly, not all Filipinos with mental disability such as major depression can afford to have the maintenance treatment and medication. In the Philippines alone, a disability survey done in 2009 by the National Statistics Office (NSO) found out that mental illness was the third most common form of disability. 22 Prevalence rate of mental disorders were 88 per 100,000 populations and was highest among the elderly group. This finding was supported by a more recent data from the social weather survey commissioned by the Department of Health (DOH) in 2004.23 It revealed that 0.7% of the total household have a family member afflicted with mental disability.24 The Philippine Government may argue that institutionalization of the mentally disabled is an added burden to the financial budget and that there are other more important priorities. However the fact remains that mental health is of primordial importance. The State must live up to its mandate to take care of the mental health of its citizens as provided in our Constitution and Magna Carta for Disabled Persons. As a signatory of the United Nations Convention of Rights of Disabled Persons it must live up
21

Sari Yap, Why would Helena Belmonte, a girl who loved life, take her own life? Available at http://m.philstar.com/366247/show/beb87463a36678fad8a6e2d14e33e6c7/ (Last visited: April 1, 2014). 22 Interview with Mr. Nelson Mendoza, National Program Coordinator, National Mental Health Program and Degenerative Disease Office, Department of Health, Philippines (March 30, 2012). 23 Id. 24 Id.

6 to the principle of non-discrimination25 such that the mentally disabled should have equal benefits and privileges under the law as insane persons. Mental health after all is the matrix on which all health is built26 and this does not only pertain to treatment of insanity but all types of mental disorders. Although mental disorders are numerous, the Department of Health is not at a loss in identifying persons with such disorders as it can always rely on DSM-V. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is the handbook used by health care professionals in the United States and much of the world as the authoritative guide to the diagnosis of mental disorders,27 such as in the Philippines. DSM contains descriptions, symptoms, and other criteria for diagnosing mental disorders. It provides a common language for clinicians to communicate about their patients and establishes consistent and reliable diagnoses that can be used in the research of mental disorders.28 It is a manual for assessment and diagnosis of mental disorders and does not include information or guidelines for treatment of any disorder.29 That said, determining an accurate diagnosis is the first step toward being able to appropriately treat any medical condition, and mental disorders are no exception.30 A mental disorder is invisible to the naked eye as it has many symptoms that are only felt by the sufferer. Hence, many people do not understand this ailment. Let us not continue to have people afflicted with this disease be misunderstood by making them also invisible in governments priorities as can be gleaned in Rule 101. B. Overturning Silverio v. Republic31

In Silverio v. Republic, Rommel Silverio who was born male but has undergone sex reassignment surgery sought to change his name Rommel to Mely and his sex from male to female. The Supreme Court dismissed the petition of Silverio on the ground that sex assignment is determined at birth. Soon after this case was decided, the case of Cagandahan v. Republic32 was ruled. In Cagandahan case, Jennifer Cagandahan who sought to have her name and sex changed in her birth certificate suffered from Congenital Adrenal Hyperplasia (CAH) which was described by the court as a condition where persons thus afflicted possess both male and female characteristics. The court
25 26

Convention of Rights of Diabled Persons, Article 2. Supra at Note 7. 27 DSM-V Development available at http://www.dsm5.org/about/Pages/faq.aspx (Last visited: April 1, 2014). 28 Id. 29 Id. 30 Id. 31 G.R. No. 174689, October 22, 2007. 32 G.R. No. 166676, September 12, 2008.

7 allowed Jennifer to change her name to Jeff and change her sex from female to male. The Supreme Court based its decision in Cagandahan case on medical condition while in Silverio case was based on sex being determined at birth. Or so they thought. The Cagandahan and Silverio cases that are viewed to be different from one another have actually more similarities than differences. This is predicated by the fact that Rommel Silverios and Jennifer Cagandahans sexual orientations are both due to a biomedical condition. If Cagandahans case was based on CAH, Silverios case was based on sexual orientation determined by the brain. Studies have been made which found that people like Rommel Silverio, have unique brain characteristics as distinguished from their straight male counterparts. One of these is a study conducted by a scientist known as Simon LeVay at the Salk Institute who autopsied people and confirmed that men, on average, have a larger number of nerve cells in the hypothalamus, called INAH3, than women do, on average. 33 He also discovered that this region in gay men was closer in size to the average womans than the average mans the region to be known as gender shifted.34 LeVay argues that sexual orientation is an aspect of gender that emerges from the prenatal sexual differentiation of the brain, being determined by a combination of sex hormones, genes, and the womb environment, including factors such as stress during pregnancy; the influence of genes and hormones continues over the life span rather than stopping at birth.35 The decision in Silverio v. Republic was questionable in ruling against Rommel Silverio without even conducting scientific research and gathering data in relation to his gender identity when such is the very reason why he underwent transexualism, a term used when an individual identifies with a gender inconsistent or not culturally associated with their assigned sex, i.e. in which a person's assigned sex at birth conflicts with their psychological gender. 36 The Supreme Court simply rationated in Silverio that when words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. Therefore it used the ordinary and common meaning of male and female as the "the sex that has organs to produce spermatozoa for fertilizing ova and as "the sex that produces ova or bears young" respectively. The High Court did not even bother to find out the root cause of Silverios sex reassignment even after stating the facts that he alleged to be 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. Under such circumstances on his gender
33

Gay, Straight and the Reason Why, available at http://psychcentral.com/lib/gaystraight-the-reason-why-the-science-of-sexual-orientation/00018682 (Last visited: April 1, 2014). 34 Id. 35 Gay, Straight and the Reason Why, available at http://en.wikipedia.org/wiki/Gay,_Straight,_and_the_Reason_Why (Last visited: April 1, 2014). 36 Transexualism available at http://en.wikipedia.org/wiki/Transsexualism (Last visited: April 2, 2013.

8 identity, it was also stated in the facts that Silverio feeling trapped in a mans body, he consulted several doctors in the United States and underwent psychological examination. It was only after these consultations and psychological examination he had his sexual reassignment surgery. If the Supreme Court can rationate that Jennifer Cagandahan who thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male why cant the Court also consider Rommel Silverio a female when he felt like a woman but trapped in a mans body and even underwent psychological examination and consulted several doctors in the United States? Isnt that blatant discrimination against Silverio? Psychiatry in United States where Silverio had several medical consultations is guided by the American Psychiatric Association (APA) which has the following position statements approved in 2012: a. Supports laws that protect the civil rights of transgender and gender variant individuals b. Urges the repeal of laws and policies that discriminate against transgender and gender variant individuals. c. Opposes all public and private discrimination against transgender and gender variant individuals in such areas as health care, employment, housing, public accommodation, education, and licensing. d. Declares that no burden of proof of such judgment, capacity, or reliability shall be placed upon these individuals greater than that imposed on any other persons.37 (Emphases supplied). In 1973, APA removed the diagnosis of homosexuality from the DSM-II (Diagnostic and Statistiscal Manual of Mental Disorders) and issued a position statement of support of gay and lesbian civil rights38. The APA declares in its vision statement that it is, the voice and conscience of modern psychiatry and such position statements are motivated by compassion similar to what motivated the Supreme Court in Cagandahan v. Republic where the Court unequivocally declared that in deciding the case, it considers the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. In addition to this, the APA also states in its article on its position statement that discrimination and lack of equal civil rights is damaging to the mental health of transgender and gender variant individuals.39 This means denial of Rommel Silverio to change his name to Mely and sex to female, can also be damaging to his mental heath as such denial is a form of discrimination against transgenders that can have a negative psychological impact. It is not only the sex-reassignment therefore but also the allowance of change of name and sex in his birth certificate as form of nondiscrimination and protection of his civil rights as a transgender which is the cure of the
37

American Psychiatric Association, Position Statement on Discrimination Against Transgender and Gender Variant Individuals, Approved by the Board of Trustees, July 2012; Approved by the Assembly, May 2012
38 39

Id. Id.

9 biomedical condition of Rommel. The APA, in making its position statements, is also guided by the DSM-V which is the very same Diagnostic and Statistical Manual of Mental Disorders used by psychiatrists in the Philippines.40 The Supreme Court should have conducted research further and taken this fact of great weight but it failed to do so thereby ruling Silverio v. Republic differently from Republic v. Cagandahan when both private parties had biomedical conditions when if not cured their mental health could suffer. It is the policy of the State to afford equal protection to its citizens, but this was not given to Rommel as he was not treated fairly and equally as Jennifer by the High Court. Change of Sex If we examine closely, there are repercussions for transsexuals if they are not allowed to change their sex in their birth certificate and consequently in other public documents to the gender they identify with. An actual case is that of three transsexual Filipinos who sued the government for discriminating against gays before the United Nations. 41 Their lawyer, Evalyn Ursua, said her clients (male-to-female or MTF transsexuals) still carried Philippine passports that identified them as males, owing to the 2007 Silverio v. Republic ruling that said the absence of a law regulating sexual reassignments meant that Philippine jurisprudence could not recognize their new gender. The transsexuals, with the help of Ursua and students in UP-Dilimans women and development studies program, complained to the UN Human Rights Council (UNHRC) in May 2011, urging the world body to compel the Philippine government to issue a law that will recognize their change of sexual identity. One of their contentions was, their lack of gender-appropriate legal identity has severely restricted their freedom of movement and right to travel. If Silverio v. Republic holds, a transsexual MTF (male-to-female), since his legal gender is male though biologically female through transsexual surgery, is forced to enter a males restroom when the use of such is only for the purpose of the call of nature based on ones genitalia and not for anything else. Naturally this will be abhorred or even opposed by their straight male counterparts who will be going to the males restroom simultaneously with a transsexual MTF who looks like a female. The Philippines, despite being a signatory to the United Nations charter, has been slow-paced in protecting Lesbian, Gay, Bisexual and Transsexual (LGBT) rights. When States become Members of the United Nations, they agree to accept the obligations of the UN Charter one of which is to cooperate in promoting human rights. 42 One step in promoting LGBT rights is to permit the change of name and sex in the correction of
40 41

Interview with Dr. Jercyl Leilani Demeterio at Supra Note 11. Filipino transsexuals sue PH for discrimination vs gays at UN available at http://newsinfo.inquirer.net/18739/filipino-transsexuals-sue-ph-for-discrimination-vsgays-at-un#ixzz2xigBHa2h (Last visited: April 2, 2014). 42 The UN in Brief: How the UN Works available at http://www.un.org/Overview/uninbrief/about.shtml (Last visited: April 2, 2014).

10 entries of individuals that conforms with their gender identity without the permission of a judge or a certification of a doctor. This however should only be availed of once and cannot be reverted back to its original name and sex to prevent abuse. This then calls for the amendment of the rules on change of name and sex that will overturn the ruling of Silverio v. Republic. It is recommended that the Philippines be guided by the law of Argentina, a signatory of the United Nations Charter, which is the Gender Identity Law. Since the passage of Argentinas revolutionary law in 2012 it has lessened the discrimination against transsexuals particularly on the workforce and on availing of health and insurance benefits.43 The law states in its first three provisions: Article 1 Right to gender identity. All persons have the right, a) To the recognition of their gender identity; b) To the free development of their person according to their gender identity; c) To be treated according to their gender identity and, particularly, to be identified in that way in the documents proving their identity in terms of the first name/s, image and sex recorded there. Article 2 Definition. Gender identity is understood as the internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth, including the personal experience of the body. This can involve modifying bodily appearance or functions through pharmacological, surgical or other means, provided it is freely chosen. It also includes other expressions of gender such as dress, ways of speaking and gestures. Article 3 Exercise. All persons can request that the recorded sex be amended, along with the changes in first name and image, whenever they do not correspond with the self-perceived gender identity. (Emphases supplied). It must be stressed that the above-quoted law in the change of name or sex does not require permission from a judge or a certification from a doctor. It also does not require sex-reassignment in order for a person can change his name or sex. Sex re-assignment is not necessary as asserted by Hender Gergio44, a transsexual MTF (male-to-female) and a member of the University of the Philippines LGBT organization Babaylan. She says, An act to amend legal gender will be awesome. However, I don't agree that it should be
43

Argentinas Gender Identity Law Is The Best In The World available at http://www.buenosairesherald.com/article/152224/argentinas-gender-identity-law-isthe-best-in-the-world- (Last visited April 2, 2014). 44 Interview with Hender Gergio, member of UP Babaylan and a transsexual female (March 29, 2014).

11 contingent on one having had genital surgery because genitals do not determine gender. Gender identity should be the only basis of legal sex/gender, not genitals, nor initial sex assignment at birth, nor surgeries or any medical procedures. If you'll require surgery it will be a discrimination against those who (1) have no money for surgery or (2) have health conditions that prevent them from undergoing surgery. Change of Name This rule on Change of Sex will consequently affect the rule on Change of Name. In Change of Name, the petitioner must show not only some proper or compelling reason therefore but also that he will be prejudiced by the use of his true and official name. Among the grounds for change of name which have been held valid are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. It does not require further explanation why a male who has been allowed to change his sex from male to female cannot be allowed to change his name Juan to Juana. Permission of the change of name as a consequence of the change of sex will prevent the name to be ridiculous and will avoid confusion. The change of sex is also a compelling reason enough to change ones first name to be consistent with his gender identity without which the person will be prejudiced by the use of his old first name.