High Court Progress in Western Countries; What About the Philippines?

The wheels of equality turn slowly, and for no group of people is this more true than our LGBT brothers and sisters.  It's painful to listen to stories of so many kind, honest, and decent LGBT Filipinos whose only wish is to be treated like everyone else, rather than second class citizens.  I can't imagine what it must feel like to have to face such discrimination simply because of the sexuality one was born with.  Personally, I'm a straight man, and I believe gay rights and marriage equality are the civil rights movement of our time.  I'm proud to be an ardent supporter and advocate.

I have a gay cousin and I love him dearly, as well as his husband.  They had been a couple for a decade -- having been sweethearts since high school -- before getting married last year, and I'm grateful that we're from a country that gives them that right.  Unfortunately that's not possible in a lot of places around the world, including in the Philippines.  It is really heartbreaking to see so many wonderful LGBT couples being denied the basic right of marriage for no other reason than blind governmental adherence to heterosexist tradition.

I understand that it can be frustrating for Filipino LGBTs (along with LGBTs throughout Asia) to watch from afar as LGBTs in Western countries gain more and more equality, including marriage.  It's only natural to wonder how long you'll have to wait, or, as a friend of mine in the Philippines put it, "When will we have our day in the sun?"  The sun may rise in the East, but when it comes to equality it's taking a frustratingly long time to see the dawn.

Of the ten countries that currently have nationwide marriage equality, it was achieved through the legislature in eight of them (Argentina, Belgium, Iceland, Netherlands, Norway, Portugal, Spain, and Sweden), and through the judiciary in two (Canada and South Africa).  Additionally, courts in Brazil, Israel, and Mexico have recently ruled in favor of same-sex couples, and state and federal courts in the U.S. are issuing new rulings almost every month bolstering the rights of same-sex couples and marriage equality.  Of the six states that currently have marriage equality, four achieved that equality through the courts.

In the Philippines, the question has been asked if perhaps equality could come -- and if it should be fought for -- through the courts.  Honestly, I cannot feasibly see Philippine courts issuing rulings in favor of same-sex couples, not any time soon at least.

I'm not a pessimist, but I'm a realist.  While courts in Western countries are very sympathetic to gay rights issues, Asian courts just aren't there yet.  If cases were to be filed in the Philippines, for example, suing the government for discrimination against LGBTs in existing marriage laws, they would almost definitely lose.  That could set a harmful legal precedent that could have a negative impact on future equality cases in the courts.

Philippine courts can be summed up in a word, and that word is "conservative"

If one thing is fairly clear about the Philippine courts, it is that they can be summed up in a word:  conservative.  This is especially true of the Philippine Supreme Court, where any equality cases would ultimately end up on appeal.  Fourteen of the fifteen current Justices were appointed under former president Gloria Macapagal-Arroyo, and, like the president who appointed them, they hold very conservative views, especially on social issues.  The only Justice appointed so far by current president Benigno Aquino III is Maria Lourdes Sereno, though two other Justices are set to retire this year.

This is why who you elect as president is so important.  It is vitally important that you get registered to vote and that you actually do vote.  Presidents not only sign bills into law and propose legislative agendas, but they also have a hand in shaping the Supreme Court.  Obviously, the more conservative a president is, the more conservative the Justices he or she appoints will be, and vice versa.  In the Philippines the president does not nominate Justices to the Court, but appoints his/her choice from a shortlist of nominees delivered by the JBC (Judicial and Bar Council).  The president, though, appoints the members of the JBC, so the power of the president in the shaping of the Supreme Court is significant to say the least.

When I stated that the Philippine Supreme Court is socially conservative I wasn't merely spouting my opinion.  Their recent track-record speaks for itself.

The sad case of Mely

In 2007 a case came before the High Court involving a male-to-female transsexual Filipina named Mely.  Actually, legally speaking her name was Rommel, but after undergoing sexual reassignment surgery in Thailand in 2001 she wished to legally change her name and sex on her birth certificate and other government documents.  A Manila Regional Trial Court had actually ruled in her favor, but the Solicitor General appealed the case to the Court of Appeals which overturned the lower court's ruling because "no law allows the change of either name or sex on the grounds of sex reassignment."  Mely petitioned to the Supreme Court as a last resort, but to Mely's dismay and the dismay of all friends of personal liberty and equality, the Supremes issued as conservative a ruling as can be issued.

The Court's decision, which was 13-2 against Mely, said that if they granted the petition "it would affect the country's marriage and family law."  Well duh.  It would have affected it for the better.

The majority opinion was written by then-Associate Justice Renato Corona, who today (unfortunately) is the Chief Justice.  It stated:

"Marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.  One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.  To grant the changes sought by [plaintiff] will greatly alter the laws on marriage and family relations.  It will allow the union of a man with another man who has undergone sex reassignment."

Renato seems to think it's still 1948, which was the year he was born.  When we consider the fact that one of the males (the plaintiff) is no longer a male, I fail to see the logic in this decision.  And it was a 13-2 decision for something that may lead to a post-op transsexual female (now fully anatomically female) marrying a male.  A woman marrying a man?!  How scandalous!  Imagine if this case had dealt directly with same-sex marriage; the decision would undoubtedly have been a 15-0 defeat and would have likely set equality in the Philippines back another 30 years at least.

As Justice Matthew Thorpe, senior judge of the Court of Appeal of England, wrote, "[m]ost judges bring to their work their prejudices as an individual compounded by the prejudices of the society to which they belong."   I'm afraid that in the case of Mely, and other Filipino LGBTs, Mr. Thorpe's assessment applies quite well to the Justices of the Philippine Supreme Court.

Unfortunately, Mely's case further complicates LGBT equality -- particularly marriage equality -- in the Philippines.  It set a Supreme Court precedent wherein an official decision states that marriage, in the eyes of the Court, is a "sacred union between a man and a woman only."  It's not impossible for a future Supreme Court to go against a previous Supreme Court precedent, but it certainly isn't easily or quickly done. 

Righting legal wrongs, or legislating from the bench?

It isn't just the Philippine Supreme Court's black and white definition of marriage that catches my attention in the Mely case, but also their rigid interpretation of Article 9 of the Civil Code.  Article 9 states that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity, or insufficiency of the law."  This actually gives a good deal of legal leeway to the judicial branch of Philippine government, and means that even if current laws don't address an issue, or insufficiently address it, judges and courts have the right to remedy that discrepancy via interpretation of the constitution on the issue at hand.  

The Philippine Supreme Court in the Mely case, however, stated that Article 9 is not a license for courts to engage in judicial legislation.  The duty of the courts, they contend, is to apply or interpret the law, not to make or amend it.  They're being far too cautious and timid here, or dare I say conservative, and I think they're simply afraid of stirring up controversy over a "moral issue."  They certainly haven't had a problem with partaking in judicial legislation in other cases (e.g. Republic vs. Orbecido, Republic vs. Lorino, Republic vs. Court of Appeals and Jomoc, BANAT vs. Comelec, et al.).

This "legislating from the bench" argument is often heard from conservatives whenever judges or courts issue rulings that conservatives don't like.  Puritanicals, for example, always get themselves worked into a frenzy with cries of "liberal judges running wild" whenever state or federal courts in the U.S. rule in favor of gay rights or same-sex marriage.  This politicizes the courts and misses the whole purpose of the courts entirely.

One of the main roles of the courts is to make sure laws do not violate or inhibit peoples' constitutional rights

One of the main and vitally important roles of the courts is making sure laws do not violate or inhibit peoples' constitutional rights.  It's the reason that modern democracies have separation of powers (the executive, legislative, and judicial branches).  It sticks up for the little guy, for the minority, even when the other branches of government, and often even the prevailing popular majority, fail to do so.

It is not "legislating from the bench" for judges to uphold the rights of the minority, declare an existing law to be unconstitutional, or order the legislature to amend a discriminatory law to bring it in line with constitutional protections and guarantees.  This is what courts do -- they review laws and sometimes strike them down.  Courts in democracies the world over do this, as is their function, and Philippine law gives its courts that ability as well.

It wouldn't be so bad if conservatives weren't so amazingly hypocritical when it comes to "judicial legislation."  They cheer when a court strikes down something they hate (e.g. gun ban laws, referenda allowing physician assisted suicide, loosened abortion regulations), but they shout  for judges to be ousted if they throw out something they like (e.g. bans on same-sex marriage).  You know what we call that in grown-up world?:  Acting like a spoiled baby.  I heard a Canadian lawyer once say that "There's no such thing as 'legislating from the bench.'  That just means 'a ruling I don't like.'"

The Harvard Law Review contends that judicial legislation not be understood as the implication of judicial usurpation, but as the growth of the law at the hands of judges.  They contend that it is a desirable, and indeed a necessary, feature of a democratic judiciary.  Without judicial activism, interracial marriage might still be illegal in America, schools and public places might still be segregated, and female graduates of law school wouldn't be allowed to practice law.  These imbalances were corrected by the judiciary because the legislature failed to act or were too afraid to act, and the same is happening today on matters affecting the LGBT community.

Furthermore, Section 5 Article VIII of the Philippine Constitution states that the Supreme Court is granted additional power to promulgate rules that would protect and enforce the constitutional rights of the people.  This is rule-making power, and it complements (and at times reprimands) the power of the Congress.

The decision issued by the Philippine Supreme Court in Mely's case was incredibly disappointing and, in my opinion, a failure on their part.  They had a chance to step in and bring relief to a discriminated segment of society, as well as bring a much-needed update to some very outdated, puritanical Philippine laws.  But they did not.  They shirked their responsibility, and hid behind their own prejudices to do it.  It saddens me to say it, but if they wouldn't even issue a ruling in favor of a simple sex-change case such as Mely's, what are the chances that they would ever issue a ruling in favor of marriage equality or even partnership guarantees?

In the next post we'll see what one Filipino attorney's thoughts are on the matter, as well as see why both he and I think that, sooner or later, the Philippines will have to reform...

Continued in part two here.

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