THE FACES OF THE LAW IN PHILIPPINE
CONTEXT: A THIRD-WAVE FEMINIST PERSPECTIVE
by: Atty. Mark Gil
J. Ramolete, MA Philos
We do not only need love and sex
for the continuous existence of our species. We also need laws to regulate our behaviors. We need laws to govern our actions. We need laws to show us the way towards what
we ought to do and what we should not do. Laws can be considered as atolls or islets of empowerment. Laws are abodes for rejuvenation,
revitalization and valorization. Laws
can be considered as places of refuge whereby we seek shelter against the
encroachment and intrusion of our basic rights, such as the right to life,
liberty and property, as individuals in a given community. As provided for under our 1987 Philippine
Constitution, “no person shall be deprived of life, liberty or property without
due process of law, nor shall any person be denied the equal protection of the
laws.”[1] Thus, the State, as an artificial person or
the “Leviathan,” cannot force us to marry someone, to court someone or to love
someone because any act that will be done by the state to the contrary will be
considered unconstitutional. Any act of
the State to the contrary will be rendered unconstitutional on the ground that
the act will constitute an infraction of our right to liberty or even to our
right to life and property. Ti padas
ken ayat ket saan to pulos nga agbalin a nasamit ken nangayed no iti Estado ket
usaren na iti bileg na tapno datayo ket agkurno no siasino ti rumbeng nga intay
ayaten. Ti ayat ket agbalin to laeng
nga naalsem ket napait nga padas. However,
the State is enjoining us to make reasonable decisions when it comes to
marriage. Under the Family Code of the
Philippines which took effect August 3, 1988:
Marriage
is a special contract of permanent union between a man and a woman entered into
in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the limits
provided by the Civil Code.[2]
While the State is not directly commanding
us who are we going to marry, it is admonishing us that we can only marry
another person of the opposite sex; otherwise, any marriage that is contracted
to the contrary will be considered null and void or not legally binding by
reason of public policy and public morals.
No one should force us to marry someone or to court someone nor to force
someone to love us; otherwise, any actions done to the contrary would
constitute a ground for the violation our right to liberty. We are free to love the person we want to
love but not completely and absolutely free in marrying the person we
love.
Furthermore, the Family Code
provides that “the marriage may be annulled on the ground that during the
marriage the consent of either party was obtained by force, intimidation or
undue influence, unless the same having disappeared or ceased such party
thereafter freely cohabited with the other as husband and wife.”[3] With this contention now of the law, if a
person marry another person of the opposite sex with a vitiated consent, then
the marriage may be annulled within five years from the time the force,
intimidation or undue influence disappeared or ceased. Marrying someone now with a vitiated consent
can be seen as a ground where our right to liberty is violated. It must be noted again that as I have argued
previously, no napilpilit ti panagluom ken pannakapuros ni ayat, dakkel iti
posibilidad na nga ti agbalin to a padas ken ayat ket maysay a padas a nasaem,
naladingit, naulpit, napait ken naalsem. Furthermore, the Family Code provides that
“the marriage may also be annulled when either party was afflicted with a
sexually-transmissible disease found to be serious and appears to be incurable and/or
when either party conceals a sexually-transmissible disease, regardless of its
nature, existing at the time of the marriage.”[4] This contention now of the law seeks to
protect either spouse whereby their rights to life could be violated since STDs,
regardless of their nature, pose health risks and to the extreme can cause even
death.
Without the presence of laws in a
given society, some persons might just succumb or yield to brute forces outside
or within themselves leading to chaos or disharmonious living in a given
society. Sometimes reason alone cannot
help in times of desperate need, as can be seen on what happened on February
4, 2006. A stampede occurred within the
premises of Ultra at the City of Pasig, resulting to the death of more than 70
plus individuals and to slight or to grave physical injuries suffered by more
than 300 plus individuals. The tragic
situation that happened that day was eventually contained when the appropriate
laws were enforced by concerned authorities. We need laws not only to regulate our
conducts as individuals in a given society and to shelter us from possible
abuses that can be made not only by natural persons but also juridical persons,
such as for example a private individual or the state respectively, but we also
need laws to shelter us and to empower us to promote meaningful relationships, co-existence
and inter-subjectivity in our mode of togetherness as beings who are presencing
in the world with the others. Under the
Civil Code of the Philippines, it provides that “every person must, in the
exercise of his rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.”[5] This specific provision of law simply
establishes general principles to be followed in terms of promoting meaningful
co-existence and inter-subjective human relations; thus, giving stress on the
need for every individual in this country to act with justice, to give everyone
his/her due and to observe honesty and good faith. In consonance with the previously cited
provision in the Civil Code, another provision provided for in the Code
provides that “every person who contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.”[6] What happens then when on the occasion of a
date with someone, that person has used its dominating power to overcome and to
bombard you as an unwilling individual. As person doomed to freedom, meaning and choice who has suffered from
“date rape,” you could institute a criminal case for the punishment or
correction of the offender. From the
criminal case, the civil liability of the offender will arise for the
reparation of the damages suffered by you as the aggrieved party. Be it noted that the “criminal liability and
civil liability are separate and distinct from each other; the criminal aspect affects the social order
while the civil aspect affects private rights.”[7] Furthermore, another provision provided for
in the Code enunciates that “any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.”[8] Applying now this provision of law to an
action based on a breach or betrayal of promise to marry where there has been a
sexual intercourse involved, the aggrieved party may avail of the following: (1) the aggrieved party may ask the other to
recognize the child, should there be one, and give support to the child[9],
(2) the aggrieved party may sue for moral damages, provided that there exist a
criminal or moral seduction; nonetheless, the aggrieved party cannot claim for
moral damages if the sexual intercourse that took place came as a result of
mutual lust,[10] (3) the
aggrieved party who incurred expenses for the wedding preparations can sue for
actual damages.[11] In case that no sexual intercourse was
involved vis-à-vis to the betrayal of promise to marry, (1) the aggrieved party
could sue for actual damages provided that only provided that there has been
expenses incurred for the wedding preparation; otherwise, any claim for the
recovery of actual damages cannot prosper as a case in court;[12]
(2) the aggrieved party may also sue for
actual and moral damages provided that only provided that the other party
deliberately fails to appear at the altar during the scheduled wedding simply
because it was the latter’s intention to humiliate or embarrass the former,
causing hurt feelings, sleepless nights, besmirched reputation and possible
social ostracism.[13] Be it noted that breach of promise to marry per se is not actionable or not
recognizable in courts. Breach of
promise is only actionable in cases where the aggrieved party incurred actual
expenses for the wedding or when the promise to marry has served as the
triggering mechanism or cause in order for sexual intercourse to materialize as
an effect.
Laws
indeed can be considered as atolls or islets of empowerment. As I have argued previously in the opening
remark of our discussion, we do not only need love and sex for the continuous
existence of our species, we also need laws in order to promote and ensure the
actualization of meaningful relationships in our mode of togetherness as
subjects. But how do laws come into
being to secure their much needed presence in our mode of togetherness as
subjects? Before laws are promulgated
and eventually be enforced by a legitimate or a sovereign power, laws should be
given the necessary form by language. When we speak of language we refer to anything that can be spoken,
conceived and understood. In as much as
love is embodied in the person of the lover or the beloved while the meanings
that the lover or beloved wants to convey can be expressed through the
embodiment of language, laws are also embodied through language. The lifeblood of laws is not only generated
by a legitimate or a sovereign power promulgating or enforcing the laws, but
also through the embodiment of language. Laws can guide our actions and regulate our conducts to promote
meaningful relationships because laws have the potential to effectuate their
binding powers through language. As
pointed out by Thomas Aquinas in the Summa
Theologica, “law is a rule and
measure of acts whereby man is induced to act or is restrained from acting; for
lex (law) is derived from ligare (to bind), because it binds one
to act.”[14] But is it possible for language and as a
consequence for laws to valorize only the masculine while the feminine is not
being valorized in certain areas of human relationships? The answer is an astounding YES. Adapting the feminist view of Luce Irigaray
in the je, tu, nous, she points:
Because the power of semen is not immediately
obvious in procreation, it’s relayed by the linguistic code, logos.
This wants to become the all-embracing truth. Men’s appropriation of the linguistic code
attempts to do at least three things: (1) prove they are fathers; (2) prove
they are more powerful than mother-women; (3) prove they are capable of
engendering the cultural domain as they have been engendered in the natural
domain of the ovum, the womb, the body of a woman.[15]
In our cultures, we consider our
fathers as the “haligi ng tahanan” while our mothers are considered as the
“ilaw ng tahanan.” In this kind of
hermeneutical twist, our cultures have given more preference and inclination to
the masculine or the male subject in terms of the constitution of certain
meanings vis-à-vis to certain modes of human relationships; thus, leading to
the marginalization not only of the female subjects but also some male
subjects. Usually on the occasion of a
date, customs dictate that it should be the guy who should treat and pay for
the bills because as a future “haligi ng tahanan,” he should be a good provider
not only for his wife but to his children as well. Some female subjects would even prefer to
have boyfriends that are sporting a particular brand of car or a motor
bike. As beings thrown into the world
through the romantic relationships involved between our parents, we were given
names for social and at the same time for legal recognition from others. Examining carefully how our names are
arranged, we can see that our mothers’ surnames are pitifully and obscurely
placed in a non-strategic location between our first name and our surname that
is under the paternal linguistic economy. All these cited examples only point to one
direction that the father is the “haligi ng tahanan” and the mother is the
“ilaw ng tahanan.”
Furthermore, these views of ours
regarding the “haligi ng tahanan” and the “ilaw ng tahan” have been carried to the
extent that these views have also influenced the shaping and molding of some
provisions of law under our Family Code. The Family Code provides:
The future spouses may, in the marriage
settlements, agree upon the regime of absolute community, conjugal partnerships
or gains, complete separation of property, or any other regime to govern their
property relations. In the absence of a
marriage settlement, or when the regime agreed upon is void, the system of
absolute community of property as established in the Family Code shall govern.[16]
Under this provision of law, it is
a general rule that when the spouses failed to come up with a valid and legally
binding marriage settlement before the marriage or when the marriage settlement
agreed upon is contrary to law, good morals, good customs, public order and
public policy, then the regime of absolute community shall govern the property
relations of the spouses. In order for
the marriage settlement as well as any of its modification in correlation to
other guidelines set forth by the Family Code to become legally binding not
only between the spouses but also to third parties, certain requisites as
provided for by the Family Code should be followed, the requisites are as
follows: (1) it must be in writing, (2)
it should be signed by the future spouses involved, (3) it must be executed
before the celebration of the marriage, (4) the marriage must be celebrated, (5)
and it should be duly registered in the civil registry and registry of property
to bind third persons.[17]
Under the regime of absolute
community of property, everything shall be held in common, and the provisions
of the Civil Code on co-ownership shall complement whatever matters not
provided for by the Family Code regarding the absolute community of property
between future spouses. What
constitutes then the absolute community of property? The Family Code provides:
Unless otherwise provide by the Family Code
or in the Marriage settlements, the community property shall consist of all the
property owned by the spouses at the time of the celebration of the marriage or
acquired thereafter. However, the following
shall be excluded from the community property:
(1) property acquired during the marriage by gratuitous title by either
spouse, and the fruits as well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor that they shall form part
of the community property; (2) property for personal and exclusive use of
either spouse; nonetheless, jewelries shall form part of the community
property; (3) property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the
income, if any, of such property.[18]
In consonance now with the law,
donated properties, bonuses, properties which are considered minana or namana
and underwears are only few examples of properties deemed not included in the
absolute community of property. How
will the spouses enjoy and administer the community property? Be it noted that the provision of the law on
the administration and enjoyment of the community property is also similar to
the conjugal partnership property. The
Family Code provides:
The administration and enjoyment of the
community property (or the conjugal partnership property) shall belong to both
spouses jointly. In case of
disagreement, the husband’s decision shall prevail, subject to recourse to the
court by the wife for a proper remedy, which must be availed of within five
years from the date of the contract implementing such decision. In the event that one spouse is incapacitated
or otherwise unable to participate in the administration of the common
properties (or conjugal properties), the other spouse assume sole powers of
administration. These powers do not
include the powers of disposition or encumbrance which must have the authority
of the court or the written consent of the other spouse. In the absence of such authority or consent,
the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or authorization by
the court before offer is withdrawn by either or both offerors.[19]
It is now on this assertion or
enunciation of the law that shows preference to the “haligi ng tahanan.” As a general rule, the administration or
enjoyment of the community properties or the conjugal properties shall belong
to both spouses jointly. Exception to
the general rule, in case of disagreement in the administration and enjoyment
of the community properties or conjugal properties (not covering disposition or
encumbrance) between the spouses, the decision of the husband shall prevail,
subject to recourse to the court by the wife for a proper remedy with five
years prescriptive period; otherwise, the contract will become legally
binding. Simple disagreement alone or
disagreement per se cannot be the
cause for the setting aside of the contract.
As pointed out by Former Associate Justice of the Supreme Court, Jose C.
Vitug:
The “disagreement” itself” does not
constitute per se a cause for setting
aside, for instance, the contract entered into in the implementation of that
decision, which the law, in effect, authorizes when it had provided that “the
husband’s decision shall prevail.” The
contract of course, may be annulled or rescinded but limited to grounds that,
under the laws of general application, may render them either as voidable or as
rescissible.[20]
When for example the husband
secured the consent of the wife to mortgage or to sell a community property or
a conjugal property with a vitiated consent through mistake, violence,
intimidation, undue influence or fraud, then the wife could file a case in
court for a proper remedy. But if you
are just a plain housewife, waiting for an allowance either from your husband
or from your sons or daughters, or you are just a wife earning an income good
only for your own subsistence, how could you file a case in court? Assuming that you will avail the services of
the Public Attorney’s Office, still you cannot escape the fact that you will
not be spending any single penny.
In consonance with the provision
of law on the enjoyment and administration of the community properties or
conjugal properties, we have also the following provisions of law in or Family
Code showing more preference and inclinationation to the “haligi ng tahana” as
compared to the “ilaw ng tahanan,” the Family Code provides:
The father and the mother shall jointly
exercise parental authority over the persons of their common children. In case of disagreement, the father’s
decision shall prevail, unless there is a judicial order to the contrary. [21] Furthermore, the law contends that the father
and the mother shall jointly exercise legal guardianship over the property of
their unemancipated common child without the necessity of a court
appointment. In case of disagreement,
the father’s decision shall prevail, unless there is a judicial order to the
contrary.[22]
As we have seen in our own
families or in the families of others, some mothers do not usually aggressively
assert their own voice in the family. Sometimes, when we ask permission from our mothers to date someone or to
engage in a particular endeavor, our mothers usually say, “consult first your
father before I give my permission.” All these observations are realities that are happening in our midst
because not only of the conditioning made by our own cultures and values, but
even through our laws. Laws, therefore,
are not only atolls or islets of empowerment; laws may also serve as atolls or
islets of exclusion, marginalization and disempowerment.
With the increasing complexities
of human relationships because of the multi-faceted and plurivocal levels of
“we relationships” in our midst, “laws should not be static but vital. While there ought to be stability of the
laws, they ought not to be so inflexible as to destroy their essence, which is
the supremacy of rights.”[23] To end up this discussion on “The Faces of
the Law in Philippine Context: A Third-Wave Feminist Perspective,” I would like
to echo the claim of Luce Irigaray that sexuality should be reconfigured so
that the meaning of sex should not only be centered on the male sex but to both
sexes. This point of Irigaray is
already a good starting point for us in transforming our linguistic economy,
thus, leading to the valorization, rejuvenation and revitalization of our
linguistic economy and eventually our laws directing and regulating our
conducts as beings-in-the-world-with-the-others. Ending now this discussion with a question,
can we consider then both our mothers and father as “haligi at ilaw ng tahanan”
at the same time?
[1] See Article III, Section 1 of the 1987 Philippine Constitution
[2] See Article 1 of the Family Code of the Philippines
[3] See article 45 (4) of the Family Code of the Philippines
[4] See Article 45 (6) in relation to Article 46 (3) of the Family Code
of the Philippines
[5] See Article 19 of the Civil Code of the Philippines
[6] See Article 20 of the Civil Code of the Philippines
[7] Edgardo L. Paras, The Civil Code of the Philippines (annotated), Book I, (Philippines
[8] See Article 21 of the Civil Code of the Philippines
[9] Paras, The Civil Code of the Philippines
[10] See Hermosisima vs. CA, 109 PHIL 629.
[11] See Bunag, Jr. vs. CA, 211 SCRA 440
[12] Bunag, Jr. vs. CA
[13] Paras, The Civil Code of the Philippines
[14] Thomas Aquinas, Summa
Theologica, In The Great Political Theories, Michael Curtis (ed.),
(USA: HarperCollins, 1981), p. 196-197.
[15] Luce Irigaray, je, tu, nous, (New York: Routledge, 1993), p.
68-69.
[16] See Article 75 of the Family Code of the Philippines
[17] See Article 77 of the Family Code of the Philippines
[18] See Article 91 and 92 of the Family Code of the Philippines
[19] See Article 96 and 124 of the Family Code of the Philippines
[20] Jose C. Vitug, Persons and Family Relations, (Philippines
[21] See Article 211 of The
Family Code of the Philippines
[22] See Article 225 of the Family Code of the Philippines
[23] Justification for change made by the Code Commission created by
then President Manuel A. Roxas thru Executive Order 48, dated March 20, 1047,
in view of the need for immediate revision and codification of Philippine Laws.
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