Legal institutions

and the judiciary, with the Supreme Court occupying the highest tier.^[1177] This sys­tem enunciates the principle of separation of powers, which the Philippines borrowed from the American federal system of government.

In Angara v Electoral Commission, the Supreme Court recognised the risk entailed in adopting a system of government that espoused the principle of separation of powers:

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated... ^[1178]

Angara v Electoral Commission goes on further to say that in case of conflict, it is the judiciary who is tasked with the duty �to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.^[1179] To illustrate, in Senate ofthe Philippines v Ermita,^{[1180] [1181] the Supreme Court declared void certain sections of Executive OrderNo. 46461 series of 2005, which allowed the executive branch to evade congressional requests for infor­mation without need of asserting a clear right to do so.}

4.1 Legislature

The law-making powers are conferred by the Constitution upon the bicameral legislature composed of the locally elected House of Representatives and the nationally elected Senate of the Philippines.

Law-making is generally considered a two-step process, involving the approval of both the legislature and the executive.

However, inTanadavTuvera,^[1183] the Supreme Courtheld thatwhatmakesalaw effective is its publication in a newspaper of general circulation or in the Official Gazette.^[1184] Given that our laws follow the maxim ignorantia legis non escusat or �ignorance of the law excuses no one from compliance therewith', omitting the requirement of publication offends due process since it deprives members of the public of knowing the laws that govern them.

4.2 Judiciary

Regular courts

Article VIII, s 1 of the Constitution provides that judicial power shall be vested in one Supreme Court and all such other lower courts. The 1987 Constitution expanded the scope of judicial power to cover the determination of whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.^[1185] The expanded certiorari powers of the judiciary was intended to address the frequent deference of the courts to the acts of the executive and legislature during the martial law regime on the ground of the political question doctrine.

Thejudiciary comprises four levels. At the first level are the Metropolitan Trial Courts, the Municipal Trial Courts and the Municipal Circuit Trial Courts, which have exclusive original jurisdiction over certain civil and criminal cases involv­ing violations of city or municipal ordinances committed within their territorial jurisdiction and over all offences punishable with imprisonment not exceeding six years, irrespective of the amount of fine. Likewise, the first-level courts exer­cise exclusive original jurisdiction over civil actions and probate proceedings depending on the value of the personal property, estate or demand involved.

Regional Trial Courts are second-level courts that were established in the 13 regions in the Philippines. They exercise appellate jurisdiction over all cases decided by first-level courts and original jurisdiction over civil actions in which the subject-matter of litigation is incapable of pecuniary estimation, and criminal cases that are not within the exclusive jurisdiction of any court, tribunal or body.

There are three courts that exercise jurisdiction nationwide: the Court of Appeals, the Supreme Court and the Court of Tax Appeals.

At the third level of courts, the Court of Appeals exercises its powers, functions and duties through 23 divisions, each composed of three members. It exercises exclusive appellate jurisdiction over all final judgments, resolutions, orders and awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards and commissions.^[1187]

At the apex (the fourth level) is the Supreme Court, composed of a Chief Justice and 14 Associate Justices, all of whom are appointed by the President of the Republic from a list of recommendees presented by the Judicial and Bar Council.^[1188] The Supreme Court Justices serve until they reach the age of 70 years unless they are removed by impeachment for any of the grounds provided in the Constitution.

Specialised courts

The Philippine judicial system also includes special courts. First, the Court of TaxAppeals^[1190] exercises original and appellate jurisdiction over certain criminal and civil tax cases coming under the National Internal Revenue Code, Tariffand Customs Code and other tax laws.

Second,^[1191] the Sandiganbayan functions as the anti-graft court of the country and exercises original jurisdiction in cases involving violations of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code where one or more of the principal accused persons are public officials and employees.^[1192]

Third, in Islamic regions, Shari'a Courts are in place, tasked with the duty to interpret and apply the Muslim Code on Personal Laws. Section 137 of the Code expressly provides that Shari'a Courts and the personnel thereof shall be subject to the administrative supervision of the Supreme Court. The Shari'a Courts are divided into two levels: the Circuit Courts which have exclusive original juris­diction over cases relating to Muslim family laws, and the District Courts which have appellate jurisdiction over Circuit Court decisions. On the written request of any interested party, the Office of Jurisconsult in Islamic Law, which is under the supervision of the Philippine Supreme Court, has the authority to render legal opinions, based on recognised authorities, regarding any issues on Muslim Law.^[1193]

In 1997 RepublicAct 8369 established Family Courts^[1194] in every province and city in the country. Due to financial and other constraints, the Supreme Court designated some Regional Trial Courts as Family Courts. These Family Courts exercise exclusive original jurisdiction over cases involving youth offenders as well as family controversies which include cases for custody and support of chil­dren, adoption, nullity and annulment of marriages, legal separation, paternity, guardianship, and violence against women and their children.

Judicial review and reproduction and marriage rights

As a court of last resort, the Supreme Court possesses the power and the duty to review final judgments and orders of lower courts as well as correct any grave abuse of discretion on the part of any government branch or instrumentality.^[1195]

The Court, however, has not always taken up this challenge. To illustrate, despite the plain provision of the Constitution that accords spouses the right to found a family in accordance with their religious convictions,^[1196] the City of Manila has imposed a contraceptive ban. Through Executive Order003,thecity of Manila has established programs in city-funded health centres and hospitals which offer counselling services in respect of �natural family planning and responsible par­enthood... as a way of self-awareness in promoting the culture of life while discouraging the use of artificial methods of contraception'.^[1197]

The constitutionalityof this order has been challenged,^[1198] given the veryurgent and immediate impact on the health of the petitioners. It is argued that it disad­vantages millions of the poorest citizens of Manila who can hardly feed them­selves, and have no access to family planning information and services to prevent giving birth to more children they cannot support.^[1199] That a city would decide for its constituents, especially its poor constituents, the sole acceptable family planning method is a blatant violation of the Constitution. In the Bill of Rights, the right to liberty - to informed choice, to have or not to have children, to the number and spacing of children - is a right enjoyed by individuals. The religiosity of Manila's mayor does not have any place in the decision-making process; the Constitution indubitably vests the right of family planning to the spouses, who are in a �relationship lying within the zone of privacy created by several fundamental constitutional guarantees'.^[1200]

The Court of Appeals and the Supreme Court dismissed the case and ordered that it be filed before the Manila Regional Trial Court where it has been pending since 2009.

Contrast this with Eisenstadt v Baird^[1201] in which the US Supreme Court had occasion to rule on this same issue and held that �if the right of privacy means anything, it is the right of the individual married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child'.^[1202]

The complicity of the judiciary - through sins of omission, as in the contra­ception case, and commission, as in the psychological incapacity cases - has affirmed the dominance of the Catholic Church. Through the expanded judicial review given by the Constitution to the courts, judges exercise an unprecedented amount of power that has allowed them to impose new social and legal norms instead of these changes being realised through legislation.

A case in point is that of Republic v Molina.^[1203] The case concerned art 36 of Executive OrderNo. 209, known as the Family Code, which provides: �A marriage contracted by any party who, at the time of the celebration, was psychologi­cally incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization'. Bereft of details, the Court could very well have stated that Congress would have to amend the law to give it more meat in terms of what acts or disorders would constitute psychological incapacity, or which of the marital obligations were considered essential. In view of the �novelty' of art 36, �the Court decided to go beyond merely ruling on the facts of this case vis-a-vis existing law and jurisprudence'. It issued the following guidelines in the interpretation and application of art 36 of the Family Code �for the guidance of the bench and the bar':

1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favour of the existence and continuation of the marriage and against its dissolution and nullity.

2. The root cause of the psychological incapacity must be

(a) medically or clinically identified

(b) alleged in the complaint

(c) sufficiently proven by experts

(d) clearly explained in the decision.

3. The incapacity must be proven to be existing at �the time of the celebration' of the marriage.

4. Such incapacity must also be shown to be medically or clinically permanent or incurable.

5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, �mild charactero- logical peculiarities, mood changes, [and] occasional emotional outbursts' cannot be accepted as root causes.

6. The essential marital obligations must be those embraced by arts 68-71 of the Family Code as regards the husband and wife as well as arts 220, 221 and 225 of the Code in regard to parents and their children.

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

8. The trial court must order the prosecuting attorney or fiscal and the Solic­itor General to appear as counsel for the state.

The Court was forthright about the Family Law Revision Committee borrowing art 36 from Canon 1095 of the New Code of Canon Law. It explained that since the purpose of including such provision in the Family Code is �to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal [of the Church]. Ideally - subject to our law on evidence - what is decreed as canonically invalid should also be decreed civilly void'.

Moreover, in a succeeding case the Supreme Court stated:

The Court of Appeals clearly erred when it failed to take into consideration the fact that the marriage of the parties was annulled by the Catholic Church. The appellate court apparently deemed this detail totally inconsequential as no reference was made to it anywhere in the assailed decision, despite petitioner's efforts to bring the matter to its attention. Such deliberate ignorance is in contravention of Molina... ⁸⁴

The Molina guidelines are simply not in the law. Nevertheless, the �great respect' commanded by decisions of the Catholic Church tribunals has been recognised and, henceforth, interwoven into the fabric of civil law, the law which is applied uniformly to Filipinos (except for Muslims and indigenous peoples), whether those seeking nullity of marriage are devout or non-practising Catholics, mem­bers of other Christian religions, atheists or agnostics.

A serious consequence of a no-divorce but pro-nullity stance for the Philippines is that it muddles up these two remedies, which are conceptually and legallypoles

84 Antonio vReyes, GR No. 155800,10 March2006, at 382. apart. Nullity of marriage is premised on the absence of an essential or formal requisite of a valid marriage at the time of its celebration; hence, no marriage ever came to be. Divorce on the other hand presumes a valid marriage but in the course of their married life the spouses deem continued life together unbearable. However, since there is no divorce law in the Philippines, spouses latch onto the weakness of art 36. By allowing psychological incapacity that �manifests itself later', even decades after the wedding ceremony, the petitioner in the nullity case merely needs to present a psychologist to testify to the delayed appearance of a latent personality disorder that already existed when they said their vows.

The no-divorce law in the Philippines fails to take into account the reality that some individuals are trapped in miserable marriages. This is borne out, first, by the number of petitions filed for the declaration of nullity of marriage under art 36. According to the Office of the Solicitor General, petitions for civil annulment increase by 15 per cent every year.^[1204] Annulment cases (cases of annulment and declaration of nullity including those based on psychological incapacity) increased from 4529 in 2001 to 7753 in 2007.

Second, the reality of marital violence contradicts the very foundation of marriage. According to the House Bill 4016 filed before the House of Representa­tives, the 2003 report of the Philippine National Police shows that wife battering accounted for 53.6 per cent of the total 8011 cases of violence against women.^[1205]

Third, when spouses who are in an irreparably �broken' marriage which can­not be legally severed engage in another relationship, they commit the crime of adultery or concubinage. These offences grossly differ for men and women in terms of elements of the crime and penalty, with the married women most severely punished compared to the man she has a relationship with, the unfaith­ful husband or his concubine. Consider, for instance, that every act of sexual intercourse by a married woman with a man not her husband is one count of adultery.^[1206] For a married man to be convicted of concubinage, several sexual acts would constitute only one count of concubinage and only if done under certain circumstances.^[1207]

These medieval laws still surviving in the Philippines' Family Code and the Revised Penal Code discriminate against women and provide a fertile ground for lying - all for the honour of being the largest Catholic country in Asia. In these cases, the Supreme Court disregarded the principle of separation of state and church by demonstrating unmistakable preference for Catholic doctrines and transforming them into legal rules through Unabashedjudicial legislation.

5