REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

BRANCH 144, MAKATI CITY

Mario Madlanglangit,
Petitioner,

-versus- SP-C2016-9-12-01
For: Correction of Entries
in Birth Certificates

Republic of the Philippines,

Office of the City Registrar
of Makati City, Civil Registrar
of Makati City,
Respondents.

x---------------------------------------------------x

RESPONDENTS POSITION PAPER

RESPONDENT, unto this Honorable Court, most respectfully

submits this Position Paper, and states:

PREFATORY STATEMENT

What is it that makes human society function the way it

does? What renders us higher than a mere school of fish or a
pack of dogs? Is it simply the fact that we are intellectually
superior, or is it something that runs deeper?
The issues at hand arise from a petition for a Correction
of Entry in the Birth Certificate on the ground of Judgment
from a Californian court, granting the Change of Name of
Mario Madlanglangit to Maria Heavensent, and a
corresponding Change of Sex from Male to Female.
We are in vehement opposition to the herein petition as
it is beyond the jurisdiction of the Regional Trial Court to
grant the same and, notwithstanding the same, it is against
public policy. thesis statement, please edit as needed,
thanks
Aside from the aforementioned foreign element
attendant to the case, the antecedent facts bear striking
similarity to the Silverio v. Republic case decided on years
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before by the Supreme Court. In denying the petition of
Silverio, the Court ruled that the remedies sought by the
petitioner involved questions of public policy which should
be addressed solely by the legislature, not by the courts. The
same applies to the case at bar.

The doctrine of public policy provides that no person or

government official can legally perform an act that tends to
injure the public1. Applying the doctrine as enunciated in
Matthew S. Tee v. Tacloban Electric and Ice Plant Co., Inc., et
al.2, courts of justice will not recognize or uphold any [act]
which, in its object, operation, or tendency, is calculated to
be prejudicial to the public welfare, to sound morality, or to
civic honesty. Moreover, an [act] is against public policy if it
is injurious to the interest of the public, contravenes some
established interest of society, violates some public statute,
is against good morals, tends to interfere with the public
welfare or safety, or x x x if it is at war with the interests of
society and is in conflict with the morals of the time.

It is apparent that if Mario Madlangits petition is

granted, allowing changes in the two most basic aspects of a
persons identityname and genderto be dictated merely
by the whim, caprice or desire of any individual, such will
have serious and widespread consequences. This is clearly
against public policy as it is injurious to the public and is of
such nature that it cannot be carried into execution without
reaching beyond the parties and exercising an injurious
influence over the community at large. Acceptance of the
herein petition will be tantamount to a countenancing of
immorality which will lead to the decay of society. This will
set a dangerous precedent as morality is the backbone of
public order and public policy. These, in turn, are necessary
in order for human society to prevail against the creeping
and ever-enclosing jungle that is lawlessness and
arbitrariness. The Supreme Court in Silverio aptly stated that
to grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and
family relations. It may also be used as a means to escape
obligations.

Why the instant petition should not be granted by the

Regional Trial Court is the subject of the discussion in the

1 Wests Encyclopedia of American law, edition 2 (Michigan, United

States: The Gale Group, Inc., 2008).

2 Mathew S. Tee v. Tacloban Electric and Ice Plant Co., Inc., Chan Bun
Chit and Victoriano Chan, G.R. No. L-11980, 14 Feb 1959.

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following sections of this Position Paper. More specifically,
this Position Paper will discuss clearly, methodically and in
detail the reasons why the RTC has no jurisdiction over the
instant petition, and why it should not grant the petition of
Mario Madlanglangit for Correction of Entries as to Name
Change and Sex Change, citing as a ground the Judgment of
the Californian Court.

THE FACTS OF THE CASE

1. The Petitioner, Mario Madlanglangit, is a topnotch
Filipino basketball player. He has represented the
country in Asian Games, South East Asian Games and
the Olympics. He was also a topnotch amateur player
during his time at Ateneo, and currently plays for one of
the top teams in the PBA.
2. That the Petitioner, due to his vast salary in playing
basketball, has a shoe making business in Marikina,
some Real Estate in his province, some cars and
grocery store in Manila.
3. That despite the petitioners success, he felt that
something was lacking in his life. He felt that a
womans soul is trapped inside his body.
4. The petitioner announced on national media that Mario
Madlanglangit is already dead and that a new female
person has been born, which is Maria Heavensent.
5. The petitioner, in the course of transforming to Maria
Heavensent, changed his clothing, appearance, make
up and physique into a woman.
6. The petitioner further announced that he has already
undergone sex change from Male to Female.
7. The petitioner went to the state of California and filed
his Petition for Change of Name from Mario
Madlanglangit to Maria Heavensent, and further
Petitioned for change of Sex from male to Female.
8. The State of California, after trial and presentation of
witnesses, granted the petition.
9. The petitioner then filed with the RTC a Correction of
Entry in his Birth Certificate (particularly in the entry of
name and sex) citing as a ground the Judgment of the
Californian Court.
10. The Judge ordered the Petitioner and the State to
submit their respective Memorandum on the following
issues.

THE ISSUES

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 a. Whether or not the RTC has Jurisdiction.
b. Whether or not Correction of Entry under Rule 108 is
the proper remedy.
c. Whether or not the Court will grant the correction of
entry as to the Name Change.
d. Whether or not the Court will grant the correction of
entry as to the Sex Change.

DISCUSSIONS AND ARGUMENTS

Whether or not the RTC has jurisdiction.

The RTC has no jurisdiction over the instant petition.
While it is true that pursuant to Rule 108 of the 1997
Revised Rules of Court, Regional Trial Courts have the
exclusive original jurisdiction to try cases involving
cancellation or correction of entries in the Civil Registry, the
same must refuse recognition of a foreign decree granting a
change of name and of sex to a citizen of the Philippines.
Consequently, it must divest itself of jurisdiction over the
matter.
Jurisdiction over the subject matter is conferred by law
and is defined as the authority of a court to hear and decide
cases of the general class to which the proceedings in
question belong.3 Corollary to this authority is the discretion
of the court to hear cases that have in it a foreign element.
The rule of forum non conveniens supports this authority.
Under the rule of forum non conveniens, a Philippine court or
agency may assume jurisdiction over the case if it chooses
to do so provided: (1) that the Philippine court is one to
which the parties may conveniently resort to; (2) that the
Philippine court is in a position to make an intelligent
decision as to the law and the facts; and (3) that the
Philippine court has or is likely to have power to enforce its
decision.4 The domestic forum has the prerogative to decide
whether or not it shall recognize a foreign judgment,
particularly any decree affecting the civil status of a subject
of the Philippines.

In the instant case, herein petitioner Mario

Madlanglangit prays before the RTC of Makati City for the

3 Reyes v. Diaz, G.R. No. 48754, 26 Nov 1941.

4 The Manila Hotel Corp. v. NLRC, G.R. No. 120077, 13 Oct 2000.

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recognition of a California court decree conferring upon him
the right to change his name and sex in his certificate of
birth. Given the foreign element that hinges the case, it is
within the discretion of the concerned RTC whether it will
recognize the decree or not. However, the foreign element,
that is the California decree, that touches the issue at hand
is something which the local forum must not deal with and
must consequently set aside.

There are legal impediments to the recognition of a

foreign decree of a change of name and of sex in the
Philippine forum. These shall be discussed in the following
sections.

Whether or not the court will grant the correction of

entry as to the name change.
Assuming that the RTC assumes jurisdiction over the case,
the same shall not grant the correction or change in the
name of Mario Madlangit to Maria Heavensent.
On the change of petitioners name from Mario
Madlangit to Maria Heavensent, our laws, specifically
Republic Act No. 90485, enumerates the exclusive grounds
for which a change of (first) name may be allowed, to wit:

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.

5 Act Authorizing the City or Municipal Civil Registrar or Consul General

to Correct a Clerical or Typographical Error in an Entry and/or Change
of First Name or Nickname in the Civil Register Without Need of a
Judicial Order, 2001, Republic Act 9048, 11th Cong., 3rd Sess. (22 Mar
2001).

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 Apparently, the circumstances petitioner Mario
Madlangit is in do not fall squarely within the above-cited
statutory provision. It is impossible for him to feel ridiculous
about his name when in fact, the name he has been carrying
his entire life is perceived with pride and honor, being a
topnotch Filipino basketball player and a successful
businessman. Also, Mario Madlangit is not publicly known by
his supposed new name, Maria Heavensent. There is no
showing that he has been using this name in whatever
transaction he may have entered into or engaged in. For lack
of evidence on that matter, we cannot say that Maria
Heavensent has been habitually and continually used by
herein petitioner to eventually identify him by such name by
the public. And finally, changing his name will not avoid
confusion; on the contrary, changing his first name, or his
entire name, for his declared purpose, will only stir utter
confusion among the members of the society in which he
belongs. Before a person can legally change his given name,
he must present proper or reasonable cause or any
compelling reason justifying such change. In addition, he
must show that he will be prejudiced by the use of his true
name and official name.6 In the instant case, petitioner
Madlangit failed to show, or even allege, any of the grounds
that may grant his petition for a change of entries in his birth
certificate.

Whether or not the court will grant the correction of

entry as to the sex change.

Anent the issue on whether the RTC shall grant the

petition for correction or change of entry as to the sex of
herein petitioner Madlanglangit by recognizing the California
decree granting the same, we posit that RTC shall not do so
because of the following reasons: (1) it is contrary to law and
(2) it is contrary to public policy.

Contrary to law

In Silverio v. Republic, Rommel Jacinto Dantes Silverio,

petitioner, was born and registered as male. He admitted
that he is a 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. He underwent
psychological examination, hormone treatment, breast
augmentation and sex reassignment surgery. From then on,
he lived as female and was in fact engaged to be married.
6 Silverio v. Republic, G.R. No. 174689, 22 Oct 2007.

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He then sought to have his name in his birth certificate
changed from Rommel Jacinto to Mely, and his sex from male
to female. The trial court rendered a decision in his favor.
However, on appeal by the Republic of the Philippine thru
the OSG, the Court of Appeals reversed the decision of the
lower court. It ruled that there is no law allowing the change
of either name or sex in the certificate of birth on the ground
of sex reassignment through surgery. Petitioner in this case
claimed that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of the Civil
Code, Rules 103 and 108 of the Rules of Court and RA 9048.

However, the Supreme Court ruled against Silverio. The

Court held:

The determination of a persons sex appearing

in his birth certificate is a legal issue and the
court must look to the statutes. 21 In this
connection, Article 412 of the Civil Code
provides:

ART. 412. No entry in the civil register shall

be changed or corrected without a judicial
order.

Together with Article 376 of the Civil Code, this

provision was amended by RA 9048 in so far
as clerical or typographical errors are involved.
The correction or change of such matters can
now be made through administrative
proceedings and without the need for a judicial
order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now
applies only to substantial changes and
corrections in entries in the civil register. 23

Section 2(c) of RA 9048 defines what a "clerical

or typographical error" is:

SECTION 2. Definition of Terms. As used

in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error"

refers to a mistake committed in the
performance of clerical work in
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 writing, copying, transcribing or
typing an entry in the civil register
that is harmless and innocuous, such
as misspelled name or misspelled
place of birth or the like, which is
visible to the eyes or obvious to the
understanding, and can be corrected
or changed only by reference to other
existing record or records: Provided,
however, That no correction must
involve the change of nationality,
age, status or sex of the petitioner.
(emphasis supplied)

Under RA 9048, a correction in the civil registry

involving the change of sex is not a mere
clerical or typographical error. It is a substantial
change for which the applicable procedure is
Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil

Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles
407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees

concerning the civil status of persons shall
be recorded in the civil register.

ART. 408. The following shall be entered in

the civil register:

(1) Births; (2) marriages; (3) deaths; (4)

legal separations; (5) annulments of
marriage; (6) judgments declaring
marriages void from the beginning; (7)
legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery
of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15)
voluntary emancipation of a minor; and
(16) changes of name.

The acts, events or factual errors contemplated

under Article 407 of the Civil Code include even
those that occur after birth. 25 However, no
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 reasonable interpretation of the provision can
justify the conclusion that it covers the
correction on the ground of sex reassignment.

To correct simply means "to make or set aright;

to remove the faults or error from" while to
change means "to replace something with
something else of the same kind or with
something that serves as a substitute." 26 The
birth certificate of petitioner contained no error.
All entries therein, including those
corresponding to his first name and sex, were
all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the

entry in the civil registry of certain acts (such
as legitimations, acknowledgments of
illegitimate children and
naturalization), events (such as births,
marriages, naturalization and deaths)
and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity
of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name).
These acts, events and judicial decrees produce
legal consequences that touch upon the legal
capacity, status and nationality of a person.
Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not
among those acts or events mentioned in
Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting

the legal situation (that is, the sum total of
capacities and incapacities) of a person in view
of his age, nationality and his family
membership.27

The status of a person in law includes all

his personal qualities and relations, more
or less permanent in nature, not
ordinarily terminable at his own will,
such as his being legitimate or illegitimate,
or his being married or not. The

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 comprehensive term status include such
matters as the beginning and end of legal
personality, capacity to have rights in
general, family relations, and its various
aspects, such as birth, legitimation,
adoption, emancipation, marriage, divorce,
and sometimes even
succession.28 (emphasis supplied)

A persons sex is an essential factor in marriage

and family relations. It is a part of a persons
legal capacity and civil status. In this
connection, Article 413 of the Civil Code
provides:

ART. 413. All other matters pertaining to

the registration of civil status shall be
governed by special laws.

But there is no such special law in the

Philippines governing sex reassignment and its
effects. This is fatal to petitioners cause.

Moreover, Section 5 of Act 3753 (the Civil

Register Law) provides:

SEC. 5. Registration and certification of

births. The declaration of the physician
or midwife in attendance at the birth or, in
default thereof, the declaration of either
parent of the newborn child, shall be
sufficient for the registration of a birth in
the civil register. Such declaration shall be
exempt from documentary stamp tax and
shall be sent to the local civil registrar not
later than thirty days after the birth, by
the physician or midwife in attendance at
the birth or by either parent of the
newborn child.

In such declaration, the person above

mentioned shall certify to the following
facts: (a) date and hour of birth;
(b) sex and nationality of infant; (c)
names, citizenship and religion of parents
or, in case the father is not known, of the
mother alone; (d) civil status of parents;
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 (e) place where the infant was born; and
(f) such other data as may be required in
the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate

is a historical record of the facts as they existed
at the time of birth.29Thus, the sex of a person
is determined at birth, visually done by the
birth attendant (the physician or midwife) by
examining the genitals of the infant.
Considering that there is no law legally
recognizing sex reassignment, the
determination of a persons sex made at the
time of his or her birth, if not attended by
error,30 is immutable.31

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. The words "sex," "male" and "female" as
used in the Civil Register Law and laws
concerning the civil registry (and even all other
laws) should therefore be understood in their
common and ordinary usage, there being no
legislative intent to the contrary. In this
connection, 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." 33Female
is "the sex that produces ova or bears
young"34 and male is "the sex that has organs
to produce spermatozoa for fertilizing
ova." Thus, the words "male" and "female" in
35

everyday understanding do not include persons

who have undergone sex reassignment.
Furthermore, "words that are employed in a
statute which had at the time a well-known
meaning are presumed to have been used in
that sense unless the context compels to the
contrary."36 Since the statutory language of the
Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be
argued that the term "sex" as used then is
something alterable through surgery or
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 something that allows a post-operative male-to-
female transsexual to be included in the
category "female."

For these reasons, 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.

If in the above case the Supreme Court denied and ruled

against the decision of the RTC concerned in granting the
petition of Rommel Silverio for correction or change of his
name and sex in his birth certificate, there is a much greater
reason for the RTC in the present case to deny a foreign
decree granting the right to change petitioner
Madlanglangits prayer for a correction or change of sex in
his birth certificate. The California court decree vesting him
the right of changing his sex from male to female must not
be given recognition in any of our local courts primarily
because there is no legal basis for allowing his petition for
the correction or change of his name and sex in his birth
certificate.

In the lens of private international law, we cannot adopt

the Theory of Local Law in the matter before the RTC. The
theory of Local Law mandates a local forum to apply foreign
law not because it is foreign, but because its laws, by
applying similar rules, require it to do so. 7 However, absent
any law mandating courts to recognize a change of name
vis--vis a change of sex in the civil registry records of any
person by reason of sexual reassignment, or present any law
prohibiting the recognition of the same, even a foreign
decree recognizing the petition shall not be given credence
in our domestic courts. We cannot apply the California
judgment in our courts because it would run contrary to our
own laws and jurisprudence. Our own laws, on matters
involving the change of name and sex of a person who is a
citizen of the Philippines, do not require us to apply the
foreign law from which the California decree was based for
the same runs counter to our own laws.

Contrary to public policy

Equally important to note is that the changes sought by

petitioner will have serious and wide-ranging public policy
consequences. One of the various reasons why our domestic
courts sometimes do not recognize foreign judgments is that
7 Paras, Philippine Conflict of Laws, 63.

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they may contravene our established public policies. 8 It is
one heavy ground for repelling a foreign judgment in a
Philippine forum. Article 17 of the New Civil Code supports
this ground, to wit:
Prohibitive laws concerning persons, their acts
or property, and those which have for their
object public order, public policy and good
customs shall not be rendered ineffective
by laws or judgments, or by determinations or
conversations agreed on in a foreign judgment.
There are various laws which apply particularly to
women such as the provisions of the Labor Code on
employment of women, certain felonies under the Revised
Penal Code and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court, among
others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioners
petition were to be granted.9

Whether or not correction of entry under Rule 108 of

the Rules of Court is the proper remedy.
We resolve the issue in the negative.
Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be
complied with before a judgment, authorizing the
cancellation or correction, may be annotated in the civil
registry. When a petition for cancellation or correction of an
entry in the civil register involves substantial and
controversial alterations, including those on citizenship,
legitimacy of paternity or filiation, or legitimacy of marriage,
a strict compliance with the requirements of the Rules of
Court is mandated.

In Silverio vs Republic, the court said that under RA

9048, a correction in the civil registry involving the change
of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule
108 of the Rules of Court.10

The entries envisaged in Article 412 of the Civil Code

and correctable under Rule 108 of the Rules of Court are
those provided in Articles 407 and 408 of the Civil Code:
8 Paras, Philippine Conflict of Laws, 76.

9 Silverio v. Republic.

10 Silverio v. Republic.

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 ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall
be recorded in the civil register.

ART. 408. The following shall be entered in

the civil register:

(1) Births; (2) marriages; (3) deaths; (4)

legal separations; (5) annulments of
marriage; (6) judgments declaring
marriages void from the beginning; (7)
legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery
of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15)
voluntary emancipation of a minor; and
(16) changes of name.

Corollary to the above provisions of the Civil Code are

the procedures set forth in Rule 108 on Cancellation or
Correction of Entries in the Civil Register. Applicable sections
are as follows:
Section 1.Who may file petition. Any person
interested in any act, event, order or decree
concerning the civil status of persons which has
been recorded in the civil register, may file a
verified petition for the cancellation or
correction of any entry relating thereto, with
the Court of First Instance of the province where
the corresponding civil registry is located.
Section 2. Entries subject to cancellation or
correction. Upon good and valid grounds, the
following entries in the civil register may be
cancelled or corrected: (a) births
---xxxxxxxxxxxxxxxxxx (o) changes of
name.
The petitioner filed the present case invoking the
favorable judgment he obtained from a California court of
law for recognition of our domestic court. The foreign decree
concerns his civil status recorded in the civil register here in
the Philippines. Article 407 of the Civil Code authorizes the
entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity
of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation
and changes of name). These acts, events and judicial

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decrees produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. 11
Thus, in so far as the petitioner filed the correction of
entry on the ground of a decree obtained by him from
California law, we contend that Rule 108 applies. As to the
resolution if such is a good and valid ground as required in
Section 2 of Rule 108, we vehemently posit in the negative.
As already discussed above, granting the instant
petition for correction or change of name and sex in
petitioner Madlanglangits birth certificate will only entail
grave complications, stir confusion among the members of
the society, discount public interest, run counter established
public policies, and disregard prohibitive laws of this country
affecting the matter at hand. Even assuming that Rule 108 is
petitioners proper remedy for the California decree to be
recognized in our forum, the RTC must consider the
consequences it shall imminently and potentially produce
that will disrupt the core of the legal system as well as the
moral fibers by which the Philippines stands.

The Theory of Comity is not applicable in the instant

case.
While a precise definition may be elusive, comity has
been explained as the most appropriate phrase to express
the true foundation and extent of the obligation of the laws
of one nation within the territories of another. Comity thus
serves as not only a theoretical but also a legal justification
for the resolution of conflict of laws problems a court in one
country may apply the laws of another country by virtue of
comity.12
Comity, in the legal sense, is neither a matter of
absolute obligation, on the one hand, nor a mere courtesy
and goodwill upon the other. But it is the recognition which
one nation allows within its territory, to the legislative,
executive, or judicial acts of another nation, having due
regard both to international duty and convenience, and to
the rights of its own citizens, of other persons who are under
the protection of its laws (Hilton v. Guyol, 159 U.S. 113).
Here comity serves as a judicial canon encouraging a courts
deference to a foreign sovereign a court is empowered to
balance various public, private and international factors
when determining if comity is due in cases involving
legislative, executive and judicial proclamations. Between
11 Silverio v. Republic.

12 Hessel N. Yntema, The Comity Doctrine, 65 Mich. L. Rev. 9 (1966).

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legal justification and judicial recognition lies a fertile ground
for comity as a jurisprudential concept that encourages
courts to apply foreign law or limit domestic jurisdiction out
of respect for foreign sovereignty.13
The fact that courts apply foreign law and defer to
foreign sovereigns and their courts is at one level
uncontroversial. Many transnational cases place courts in the
awkward situation of adjudicating the interstices of law
narrow fields created when legal acts or omissions occur
across borders and implicate various sovereign interests.
When courts are placed in this gap, comity bridges the
chasm by encouraging them to take account of the
sovereign interests that the exercise of judicial power would
implicate. 14 In this way, upon filling the lacuna by the
bridging theory of comity, sovereignty of the state is still
respected, and a conflict between sovereigns is either
avoided or ameliorated, thereby respecting and encouraging
international relations. In that comity helps maintain
amicable working relationships between nations, it facilitates
the transnational exchange of peoples, services, and goods,
and supports private and international interests.
However, domestic courts do not always conform to this
theory in recognizing foreign laws, decrees, or judgments.
The following are some of the exceptions to comity:
a. when the foreign law, judgment, or contract is contrary
to a sound and established public policy of the forum;
b. when the foreign law, judgment, or contract, is contrary
to almost universally conceded principles of morality
(contra bonos mores);
c. when the foreign law, judgment, or contract involves
procedural matters.
The doctrine of comity seems really to mean only that
in certain cases the sovereign is not prevented by any
principle of international law, but only by his own choice,
from establishing any rule he pleases for conflict of laws. In
other words, it is an enabling principle rather than one which
in any particular case would determine the actual rule of
law.15
It has been discussed earlier that the application of the
California judgment in our forum would run contrary to our
own laws and established public policies. Moreover, there is
13 Joel R. Paul, The Transformation of International Comity, 71 Law &
Contemp. Probs. 19, 19 (2008).

14 Paul, The Transformation of International Comity.

15 William S. Dodge, Extraterritoriality and Conflict of Laws Theory: An

Argument for Judicial Unilateralism, 39 Harv. Intl. L.J. 101, 111 (1998).

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no proof that the application of the law in question would
give protection to our citizens, residents, and transients in
our land. The grant of the same would only inure to the
benefit of Mario Madlanglangit who applied for a change of
his name and sex, by reason of sexual reassignment, as
vested by the California Laws.

The Theory of Vested Rights is also inapplicable.

The vested rights approach is based upon the principle
of territorial jurisdiction so pre-eminent in the common law.
The territorial theory mandated that the governing law for a
given transaction was that of the place where the
transaction took place. Thus, the lex loci delicti rule, the law
of the place of the injury, determines which law governs the
substantive rights of the parties in a multistate tort case. 16
A vested right is some right or interest in the property
who has become fixed and established, and is no longer
open to doubt or controversy, it is an immediate fixed right
of present and future enjoyment.17
The grant of the California Court of petitioner Mario
Madlanglangits application for name and sex change does
not give him an immediate fixed right or present and future
enjoyment of the same. The judgment of the California Court
must be alleged and proved in accordance with our Rules on
Civil Procedure. Generally, the judgment of a foreign court is
only presumptive evidence of a right on the part of the
prevailing party and of suit thereon it brought in the
Philippines, the same may be repelled by evidence of clear
mistake of law. 18 The petitioner need not only allege that a
foreign judgment affecting his civil status has been rendered
in his favor, but he must also plead and prove the law or a
certified copy thereof that confers the rights that effect
change in his legal status and capacity as a person.
However, by failing to properly allege in its petition the
corresponding California law granting the right to a
correction or change of name or sex, petitioner
Madlanglangit must be denied of the grant of this petition.

16 Francis J. Nicholson S.J., Chapter 7: Conflict of Laws, Annual

Survey of Massachusetts Law: Vol. 38, no. 10 (1982).

17 Benguet Consolidated Mining Co. v. Pineda, G.R. No. L-7231, 28 Mar

1956.

18SoorajmullNagarmull v. Binalbagan Isabela Sugar Co., Inc., L-22470,

28 May 1970.

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The Theory of Local Law is obviously not applicable.
Probably the most influential among the American legal
realists working with the example of choice-of-law method
was Walter Wheeler Cook. Cook argued that, whatever law a
court said it was choosing, however much a court seemed to
be subordinating its own law, a court always, in fact, applied
its own local law and policy. Otherwise it would not have
chosen the law that it did choose. Cook saw that a departure
from local law was as much an expression of actual local
policy as an application of local law. He saw that a departure
from the law of the forum on ostensible choice-of-law
grounds is really a change in the forums substantive policy.
He saw how the change becomes apparent to the bench and
bar in later cases, as lawyers begin to argue that the
supposed law of the forum has become an inaccurate
reflection of true forum policy as evidenced by the forums
recent departure from its own law. This was Cooks local
law theory.19

We apply foreign law not because it is foreign, but

because our laws, by applying similar rules, require us to do
so.20 However, absent any law mandating courts to recognize
a change of name vis--vis a change of sex in the civil
registry records of any person by reason of sexual
reassignment, or present any law prohibiting the recognition
of the same, even a foreign decree recognizing the petition
shall not be given credence in our domestic courts. We
cannot apply the California judgment in our courts because it
would run contrary to our own laws and jurisprudence. Our
own laws, on matters involving the change of name and sex
of a person who is a citizen of the Philippines, do not require
us to apply a foreign law.

Well-settled is the rule that a persons first name

cannot be changed on the ground of sexual reassignment
and that no law allows the change of entry in the birth
certificate as sex on the same ground. 21 We cannot apply the
California judgment in our courts because it would run
contrary to our own laws and jurisprudence. Our own laws,
on matters involving the change of name and sex of a
person who is a citizen of the Philippines, do not require us
to apply the foreign law from which the California decree was
based for the same runs counter to our own laws.

19 David F. Cavers, The Two Local Law Theories, 63 Harv. L. Rev. 822
(1950).

20 Paras, Philippine Conflict of Laws, 63.

21 Silverio v. Republic.

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The Theory of Harmony of Laws cannot likewise be
applied.
In many cases we have to apply the foreign law so that
wherever a case is decided, that is, irrespective of the forum,
the solution should approximately be the same: thus,
identical or similar problems must have identical or similar
solutions anywhere. When the goal is realized, there will be a
harmony of laws. This latter objective, however, is difficult
to achieve, as every country is, in principle, free to decide
how to deal with issues of private international law. The
theory is ideal: paradoxically it goes against reality. 22
Since the laws of the State of California and the laws
and jurisprudence of the Philippines on matters involving the
change of name and sex of a person in his records, are
conflicting, the same cannot, therefore be harmonized.

Lex Nationalii vis--vis recognition of a foreign

judgment.
The nationality of a person is the basis for determining
his capacity to act and for the pertinent laws that govern his
personal status as a transient natural person. The New Civil
Code, among others, secures this as Article 16 thereof
provides that:
Laws relating to family rights and duties, or to
the status, condition and legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad.
The foregoing codal provision embodies the principle of
lex nationalii in private international law or Conflict of Laws.
Succinctly put, the law of the nationality of a person governs
his civil status, i.e. legal capacity, capacity to act. Thus, the
Philippine State may require, for effectivity in the Philippines,
recognition by Philippine courts of a foreign judgment
affecting its citizen, over whom it exercises personal
jurisdiction relating to the status, condition and legal
capacity of such citizen.
In the case presented before us, it is not disputed that a
foreign element exists, that isthe the foreign judgment
rendered by the California State allowing the petitioner to
change his name and sex in his birth certificate. This
scenario is a factual situation that cuts across territorial lines
and is thus affected by diverse laws and of two or more
states. 23

22 Paras, Philippine Conflict of Laws, 63.

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 By way of example, a petition to recognize a foreign
judgment declaring a marriage void does not require re-
litigation under a Philippine court of the case as if it were a
new petition for declaration of nullity of marriage. Philippine
courts cannot presume to know the foreign laws under which
the foreign judgment was rendered. They cannot substitute
their judgment on the status, condition and legal capacity of
the foreign citizen who is under the jurisdiction of another
state. Thus, Philippine courts can only recognize the foreign
judgment as a fact according to the rules of evidence. 24

It must be noted that Conflict of Law is a problem of

choice of law, between foreign law and local municipal law,
with local or municipal law as a starting point. Where the
local law directs the choice of applicable law, the court
should follow the directive. 25

Lex Nationalii is an express provision of such.

Considering that the herein petitioner is under the
jurisdiction of this State, we believe that we have
satisfactorily raised the grounds why our laws dictate that
the foreign judgment cannot be recognized under our
authority.

CONCLUSION

Taking into account the present case, we can deduce its

remarkable resemblance to the Silverio case, where the
petitioner filed for the correction of his name and sex in the
birth certificate on the ground of sex reassignment. In said
case the Supreme Court denied the petition for being against
public policy.
In the instant case, petitioner shares the same prayer,
the correction of name and sex in his birth certificate but on
the ground of a foreign decree obtained in California law,
allowing for such corrections. The grounds invoked may be
different but substantially the underlying facts and
circumstances remain. Both have undergone sex
reassignment, sans the foreign decree, both are of equal
footing.

23 Ruben E. Agpalo, Conflict of Laws (Private International Law)

(Manila: Rex Book Store, 2004), 23.

24 Fujiki v. Marina, G.R. No. 196049, 26 Jun 2013.

25 Agpalo, Conflict of Laws (Private International Law), 23.

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 Having resolved that the foreign decree invoked runs
counter to our own existing laws and jurisprudence and
established public policies, thus, essentially, before us is a
petition for change of name and sex on the same ground of
sex reassignment which has been held to be not a valid
ground. We cannot discard the possibility that the petitioner,
knowing too well the result of the Silverio case, being a
landmark case in the matter, seek the refuge of a foreign
judgment just to circumvent the law.
What cannot be done directly cannot be done indirectly.

PRAYER
WHEREFORE, the premises considered, it is most respectfully
moved that the petition of Mario Madlanglangit be DENIED
for being against public policy.
Makati City, Philippines, September 5, 2016.

ATTY. MARIA YAP

Unit 3, Section 4, Regional Trial Court, Branch 144
Makati City, Philippines
Atty. Roll No. 201775/ December 21, 2005
IBP No. 2017705/Pasig City/ March 7, 2006
PTR No. 211765/ Pasig City/ March 8, 2006
MCLE No. 0011217/ Pasig City/ April 16, 2016
Valid until 2020
Phone number: 082-341-1234
Email: yaplawoffice@gmail.com

EXPLANATION

A copy of this position paper is being furnished to plaintiffs

counsel not by personal service but by registered mail due to
time constraint.

VERIFICATION

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The Republic of the Philippines, through Atty. Maria Yap, after
having been duly sworn to in accordance with law, hereby
depose and state THAT:

That on behalf of the Republic of the Philippines, I have

caused the preparation of the foregoing document and have
read the same and the contents of which are true and
correct of my own knowledge and/or on basis of authentic
documents.

IN WITNESS WHEREOF, I hereunto affix my signature this 5 th

of September 2016.

ATTY. MARIA YAP

REPUBLIC OF THE PHILIPPINES)

MANILA ) S.S

SUBSCRIBED AND SWORN to before me this

September 5, 2015 affiant exhibiting to me his TIN 345-493-
09.

WITNESS MY HAND AND SEAL this September 5,

2016 at Makati, Philippines.
Atty. Talib Caorong

Caorong and Caorong Law Offices

Fareview, Quezon City

Atty Roll No. 101010/May 10, 2006

IBP No. 101010/01-06-15,

NCR

PTR No. PL 101010-A/ 1-06-15, NCR

MCLE Compliance No. V-101010, 11-12-2016

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 Valid until April 14, 2019

Phone no: 0900-000-000

Email: attytalib@yahoo.com

Copy furnished by Registered mail

Registry Receipt No. 12345

Makati Post Office

Series of 2016

Doc No: _____

Page No. ____

Book No. ____

Series of 2016

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 Bibliography

Agpalo, Ruben. Conflict of Laws. 2004.

Cavers. David F. The Two Local Law Theories, 63 Harv. L.

Rev. 822 (1950).

Corpuz v. Sto. Tomas. GR No. 186571 (August 11, 2010).

Fujiki v. Marina. G.R. No. 196049 (June 26, 2013).

Paras, Edgar. Philippine Conflict of Laws. 1990.

Paul, Joel R. The Transformation of International Comity, 71

Law & Contemp. Probs. 19, 19 (2008).

RA 9048, An Act Authorizing the City of Municipal Civil

Registrar od the Consul General to Correct a Clerical or

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Typographical Error in An Entry And /Or Change of First
Name or Nickname in the Civil Register Without Need of a
Judicial Order, Amending.

Republic v. Belmonte. L-32600 (February 26, 1988).

Republic v. Coseteng-Magpayo. G.R. No. 189476 (February 2,

2011).

Republic v. Mercadera. G.R. No. 186027 (December 8, 2010).

Yntema, Hessel N. The Comity Doctrine, 65 Mich. L. Rev. 9

(1966).

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