A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO

David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M

What do I think of gay marriage? Well, I believe

that gays have every right to be just as
miserable as the rest of us. 1

1 Movie: Man of the Year, 2006, Campaign Season Speech, on the issue of Gay
Marriage.

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
THE CASE
Rommel Jacinto Dantes Silverio wanted to get married to his American
Fianc, for that to happen, under Philippine Laws ([and] Social and
Religious conventions), he needs to be declared as a Woman to be
eligible.
But she was not born that way, although, since childhood he felt that way,
felt like a trapped Woman inside a Mans body. When he was able to, he
transformed herself into a woman by undergoing a Sex Reassignment
Surgery2. Upon doing so he petitioned to the courts for the change of his
first name and sex in his birth certificate.
The Supreme Court of the Philippines ultimately denied his petition. Ruling
that, the changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. That 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 female3.
In behalf of Silverio, we submit this communication to the International
Covenant on Civil and Political Rights for their consideration and
recommendation provided under Articles 14 and 25 of the Optional
Protocol to the International Covenant on Civil and Political
Rights.

2 http://www.surgeryencyclopedia.com/Pa-St/Sex-Reassignment-Surgery.html
3 Article 2(1), Family Code of the Philippines.
4 Art. 1: A State Party to the Covenant that becomes a Party to the present
Protocol recognizes the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
Covenant. No communication shall be received by the Committee if it concerns a
State Party to the Covenant which is not a Party to the present Protocol.
5 Art. 2: Subject to the provisions of article 1, individuals who claim that any of
their rights enumerated in the Covenant have been violated and who have
exhausted all available domestic remedies may submit a written communication
to the Committee for consideration.

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
THE PROPER FORUM
Q: Which Treaty monitoring body (or bodies), may Silverio file a
communication to question the decision? What Treaty allows the filing of
said communication?
A: Although there already exists the ASEAN Human Rights System6
abiding by the General Principles of the Universal Declaration of Human
Rights (UDHR), still, the case of Silverio may not be communicated to it,
since, it has yet to establish mechanisms for reporting, enforcement, and
compliance.
Thereby making the United Nations Human Rights Office of the High
Commissioner for Human Rights (OHCHR) the proper forum where
Silverio may file his complaint against the State (Philippines).
The following7 are the treaty bodies under the United Nations Human
Rights, Office of the High Commissioner for Human Rights (OHCHR),
monitors International Human Rights composed of independent experts
that monitor implementation of the core international human rights
treaties. Each State party to a treaty has an obligation to take steps to
ensure that everyone in the State can enjoy the rights set out in the
treaty:
1. Human Rights Committee (CCPR) monitors implementation of the
International Covenant on Civil and Political Rights (1966) and its
optional protocols;
2. Committee on Economic, Social and Cultural Rights (CESCR)
monitors implementation of the International Covenant on
Economic, Social and Cultural Rights (1966);
3. Committee on the Elimination of Racial Discrimination (CERD)
monitors implementation of the International Convention on the
Elimination of All Forms of Racial Discrimination (1965);
4. Committee on the Elimination of Discrimination against
Women (CEDAW) monitors implementation of the Convention on
the Elimination of All Forms of Discrimination against Women (1979)
and its optional protocol (1999);
5. Committee against Torture (CAT) monitors implementation of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment (1984);
6 2012 ASEAN Human Rights Declaration of Phnom Penh
7 http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
6. Committee on the Rights of the Child (CRC) monitors
implementation of the Convention on the Rights of the Child (1989)
and its optional protocols (2000);
7. Committee on Migrant Workers (CMW) monitors implementation
of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (1990);
8. Committee on the Rights of Persons with Disabilities (CRPD)
monitors implementation of the International Convention on the
Rights of Persons with Disabilities (2006);
9. Committee on Enforced Disappearances (CED) monitors
implementation of the International Convention for the Protection of
All Persons from Enforced Disappearance (2006); and
10.
The Subcommittee on Prevention of Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (SPT)
established pursuant to the Optional Protocol of the Convention
against Torture (OPCAT) (2002) visits places of detention in order to
prevent torture and other cruel, inhuman or degrading treatment or
punishment.
Of aforementioned Ten (10) Committees, Eight (8) may under certain
conditions, receive and consider individual complaints or communications
from individuals (CCPR, CERD, CAT, CEDAW, CRPD, CED, CESCR and CRC).
Any person or a third party can lodge a complaint against a state, to any
of the aforementioned committees, provided their countries have ratified
or have acceded to the treaties.8
The Philippines was one of the first countries to vote in favor of the
Universal Declaration of Human Rights (UDHR) on 10 December
1948, the day the UDHR was adopted in Paris. The Philippines have also
ratified: ICCPR, CAT, CERD, CESCR, CMW, CRC, CRPD, and CEDAW.
8 Anyone can lodge a complaint with a Committee against a State: (1) That is party to
the treaty in question (through ratification or accession) providing for the rights which
have allegedly been violated; (2) That accepted the Committees competence to
examine individual complaints, either through ratification or accession to an Optional
Protocol (in the case of ICCPR, CEDAW, CRPD, ICESCR and CRC) or by making a
declaration to that effect under a specific article of the Convention (in the case of CERD,
CAT, CED and CMW).
Complaints may also be brought by third parties on behalf of individuals, provided they
have given their written consent (without requirement as to its specific form). In certain
cases, a third party may bring a case without such consent, for example, where a person
is in prison without access to the outside world or is a victim of an enforced
disappearance. In such cases, the author of the complaint should state clearly why such
consent cannot be provided.
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
Silverios case all boils down to his or hers Civil Right of Marriage. Under
Article 16 of the UDHR which states:
Article 16.
1. Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found
a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution;
2. Marriage shall be entered into only with the free and full consent of
the intending spouses;
3. The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.
And under Article 23 of the International Covenant on Civil and
Political Rights which provides:
Article 23.
1. The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State;
2. The right of men and women of marriageable age to marry
and to found a family shall be recognized;
3. No marriage shall be entered into without the free and full consent
of the intending spouses; and
4. States Parties to the present Covenant shall take appropriate steps
to ensure equality of rights and responsibilities of spouses as to
marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of
any children.
Although it may seem that the case may also be communicated to the
CESR for their consideration and recommendation we deem it
unnecessary since under Article 109 of the International Covenant on
Economic, Social and Cultural Rights, it is clearly provided there that the
provision deals specifically only with consent as to marriage.
From the foregoing, we therefore conclude that Silverios communication
may only be submitted to the Human Rights Committee (CCPR) body for
their consideration and recommendation.

9 Article 10. The States Parties to the present Covenant recognize that: (1) x x x
Marriage must be entered into with the free consent of the intending spouses. x
xx

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
THE COMMUNICATION
In behalf of my Client, ROMMEL JACINTO DANTES SILVERIO, we submit to
this body for their consideration and recommendation this complaint
alleging that violations of his Civil Rights had been committed by the
respondent state (The Republic of the Philippines) by ultimately denying
his petition10 for change of First Name and Sex information in his
Certificate of Live Birth, in order for him to consume his Civil Right to
Marriage.
Change of Name
The Supreme Court of the Philippines ruled to deny the petition on the
grounds that a Persons First Name cannot be changed on the ground of
Sex Reassignment. It held that a change of name is a privilege and not a
right which is controlled by statutes.11 Republic Act 9048 under Section 4,
(which amended Art. 376 of the Civil Code of the Philippines) which
provides that:
SECTION 4. Grounds for Change of First Name or Nickname.
The petition for change of first name or nickname may be
allowed in any of the following cases:
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.

10 Silverio v. Republic, G.R. No. 174689, 22 October 2007.

11 ART. 376. No person can change his name or surname without judicial
authority. (This Civil Code provision was amended by RA 9048 (Clerical Error
Law).) In particular, Section 1 of RA 9048 provides: SECTION 1. 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
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
In conclusion, aside from ruling on wrong jurisdiction 12, the court held that
the petition had no merit since the use of his true and official name does
not prejudice him at all.
As to Sex
There is no Law in the Philippines that permits changing of Sex
information, as it is only determined by birth13, the Supreme Court held:
x x x Sex is defined as "the sum of peculiarities of structure
and function that distinguish a male from a female"32 or "the
distinction between male and female."33 Female is "the sex
that produces ova or bears young"34 and male is "the sex
that has organs to produce spermatozoa for fertilizing ova."35
Thus, the words "male" and "female" in everyday
understanding do not include persons who have
undergone sex reassignment. x x x 14
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. x x x15
Equity
The Supreme Court concluded its denial of the petition on the grounds of
Equity. The Court of First Instance16 held that the petition was in
consonance with the principles of justice and equity. It believed that
allowing the petition would cause no harm, injury or prejudice to anyone.
12 The petition in the trial court in so far as it prayed for the change of
petitioners first name was not within that courts primary jurisdiction as the
petition should have been filed with the local civil registrar concerned, assuming
it could be legally done. 10 id.
13 Section 5 of Act 3753 (the Civil Register Law):
14 10 Id
15 10 id
16 Regional Trial Court of Manila, Branch 8 (SP Case No. 02-105207)

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
It was held wrong, holding that the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not by
the courts:
x x x The changes sought by petitioner will have serious and
wide-ranging legal and public policy consequences. First,
even the trial court itself found that the petition was but
petitioners first step towards his eventual marriage to his
male fianc. However, 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 petitioner will
substantially reconfigure and 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 (a
male-to-female post-operative transsexual). x x x
x x x These laws underscore the public policy in relation to
women which could be substantially affected if petitioners
petition were to be granted.
It is true that Article 9 of the Civil Code mandates that
"[n]o judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of
the law." However, it is not a license for courts to
engage in judicial legislation. The duty of the courts is to
apply or interpret the law, not to make or amend it.17
Therefore denying Silverios right to Marriage by technically barring his
right to change his civil information.
To cut it short, the Philippines does not offer any legal recognition to
same-sex marriage, civil unions or domestic partnership benefits because
of the above cited legislations.
Guaranteed Rights
Lets go back again to the Universal Declaration on Human Rights18,
in the Preamble.
17 10 id.
18 http://www.un.org/en/documents/udhr/index.shtml#a23

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
Whereas recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world
Whereas the peoples of the United Nations have in the
Charter reaffirmed their faith in fundamental human rights, in
the dignity and worth of the human person and in the
equal rights of men and women and have determined
to promote social progress and better standards of life
in larger freedom.
Now to Article 16 (1):
1. Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry
and to found a family. They are entitled to equal rights
as to marriage, during marriage and at its dissolution;
xxx

Now to the International Covenant on Civil and Political Rights 19,

Preamble:
The States Parties to the present Covenant,
Considering that, in accordance with the principles
proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace
in the world,
Recognizing that these rights derive from the inherent
dignity of the human person,
Recognizing that, in accordance with the Universal
Declaration of Human Rights, the ideal of free human
beings enjoying civil and political freedom and
freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy
his civil and political rights, as well as his economic, social
and cultural rights,
19 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
Considering the obligation of States under the Charter of
the United Nations to promote universal respect for,
and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals
and to the community to which he belongs, is under a
responsibility to strive for the promotion and
observance of the rights recognized in the present
Covenant,
Agree upon the following articles:
Now to Article 23:
1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State;
2. The right of men and women of marriageable age to
marry and to found a family shall be recognized
3. No marriage shall be entered into without the free and full
consent of the intending spouses;
4. States Parties to the present Covenant shall take
appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during
marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of any
children.

THE VIOLATIONS
Contemplating from the above cited stipulations and preambles of the
Universal Declaration on Human Rights20 and the International
Covenant on Civil and Political Rights21 it is clear that it guarantees
every person, in recognition of its inherent dignity, an inalienable right to
Family since it is the foundation of Freedom, Justice and Peace in the
World.
Humanities attempt to pursue equal rights have lead us to the conclusion
that Men and Women have a common goal to achieve social progress and
20 Art. 16(1)
21 Art. 23

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
better standards of life, and that it is deemed sacred and is a protected
human right, which is acknowledged by the members of the United
Nations.
That there should be no limitation as to sexual orientation for anyone to
achieve this right, specifically for this case, the right to marry and to
found a family, it clearly entitles every person to marriage to whatever
passion they may choose.
Nowhere in the Declaration of Human Rights specifically states that
Marriage should be limited to a pair of a Man and a Woman. States parties
should take appropriate steps to ensure equality of rights.
The decision of the Supreme Court in Silverios case cited pertinent laws
and provisions that trample on this sacred right, which led to the denial of
his petition to change his information in his Certificate of Live Birth in
order for him to marry his fianc. It kills the spirit and the very goal of
family.
The social and religious convention on Homophobia is so outdated. It is
time to move on and let everyone choose for their happiness.
Conservatism22 is never a bad thing, but it should not interfere in an
individuals right of choice. Silverio clearly attempted to hide in the
litigation of his petition in the CFI and the Supreme Court the aspect of
being Gay, for he is well aware of the stigma that it connotes when it
comes to social rights, instead he chose to go directly to the courts for a
legal remedy. But cleverly enough and undeniably in favor of conservatism
denied his petition instead of justice and equity by inferring technicalities,
citing provisions of law that are completely ultra-conservative, religiously
tainted with discrimination, and homophobic.
The above cited provisions of law ultimately culminates, although the
Supreme Court didnt directly pointed to it, directly to the provisions in
Articles 1 and 223 of the Family Code (requisites of marriage) which defines
and limits marriage as between a man and a woman, which provides:

22 Conservatism is a preference for the historically inherited rather than the

abstract and ideal. This preference has traditionally rested on an organic
conception of societythat is, on the belief that society is not merely a loose
collection of individuals but a living organism comprising closely connected,
interdependent members. - http://www.britannica.com/topic/conservatism
23 Executive Order 209 The Family Code of the Philippines.

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M

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A LEGAL MEMORANDUM ON THE CURIUS CASE OF ROMMEL

JACINTO DANTES SILVERIO
David John D. Pontiga | Human Rights Law: Quiz No. 2| Atty. Glenda T.
Litong, Ll.M
Nowhere in the 1987 Philippine Constitution 24 stipulates expressly nor
impliedly that marriage should be limited to a Natural Man and a Woman.
All that there are, are Legislations that are religiously based contentions
against Same Sex Marriage. Amusingly the State provides for the
Separation of the State and Church.

24 Art. XV The Family

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