Premature Marriage Thesis

7/25/2019 Premature Marriage Thesis

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De La Salle UniversityRamon V. Del Rosario College of Business

Premature Marriage: A Happily Never AfterA Study on the Unconstitutionality of Art. 351 Under the

Revised Penal Code

A Thesis Proposal Paper

Presented to:

Atty. Hilario S. Caraan

Commercial Law Department

In Partial Fulfillment

Of the course requirements

In DOCULMG

Term 1 A.Y. 2014 - 2015

Christelle Ayn D. BaldosIvan Chris T. Luzuriaga

Researchers

Atty. Arvin A. JoThesis Adviser


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I. THE RESEARCH PROBLEM

A. BACKGROUND OF THE RESEARCH

Marriage, as defined by the Family Code, 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.1 Considering that marriage is an

institution described as inviolable and not subject to stipulation, having to put

restrictions on it defeats the purpose of being defined as such. As the government

would like to believe that our laws should be understood clearly, there is an entire

Article in the Constitution that devotes itself to the family and marriage2recognizing

it "as the foundation of the nation." It gives emphasis on the right of spouses to have

a family. The family must also be regarded as something so sacred that the source

of the formation of the family marriage, must also be put in such a high level of

protection from laws impinging its coming into being.

Sec. 3 The State shall defend:(1) The right of spouses to found a family in

accordance with their religious convictions and thedemands of the responsible parenthood;

The family is the natural and fundamental group unit of society and is entitled to

1FAMILY CODE, art. 1

"CONST. art. XV, sec. 3, par. (1)


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protection by society and the State.3The constitution mandates that marriage, as a

social institution, is inviolable or unbreakable and it is protected from dissolution at

the impulse of the married couple. Both the family and marriage are to be

"protected" by the state.4 Our laws give a high regard to the validity of marriage

being that the family is the foundation of society and the unity of man and woman as

honorable.5Despite being an important institution in society, there are still laws

challenging the importance and liberality of marriage. In this study, the researchers

are calling into question the constitutionality of an article found in Republic Act No.

3815 otherwise known as the Revised Penal Code of the Philippines. For this, the

Revised Penal Code, the single most comprehensive compilation of Philippine penal

laws that took effect on January 1, 1932, often receives the blame, as it is indeed

replete with discriminatory provisions that basically echoed those in its predecessor,

the Spanish Penal Code.6 The researchers, going with the premise of studying a

discriminatory article found in the Revised Penal Code with relevance to marriage7,

found that Premature Marriage is unconstitutional for it contradicts the fact that

marriage is a liberty of every human being. Regardless if man or woman, every

person may exercise this provided that it does not harm the greater majority or bring

such a threat to society that it impedes everyone elses rights.

Art. 351. Premature marriage Any widow who shall

marry within three hundred and one days from the date ofthe death of her husband, or before having delivered ifshe shall have been pregnant at the time of his death,

#Universal Declaration of Human Rights, September 1997 (1998),http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf4Suazo v. Suazo, et. al., G.R. No. 164493, March 10, 2010

5Id.

$E. Sanchez, The Filipina and the Law: A Tribute to Womens Rights, 110 (2008)7REV. PEN. CODE. title 12, ch. 2, art. 351


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shall be punished by arresto mayor and a fine notexceeding 500 pesos.

The same penalties shall be imposed upon anywoman whose marriage shall have been annulled ordissolved, if she shall marry before her delivery or before

the expiration of the period of three hundred and onedays after the legal separation.

As seen in the provision, it penalizes a person, specifically women, for re-

marrying a man in less than 301 days upon the death of her husband or before her

delivery of the child with the first husband or a woman whose marriage is dissolved

or annulled. In the defense of the law, it provides a reason why this article stands

and the purpose that it serves for providing such a standard for the limitation of

remarrying.

While the ordinary average duration of the pregnancy of awoman is nine months and some days, a tardy birth is notan impossibility or an unusual event and neither is itimpossible or unusual to have a delayed or retardedconception, one of the inexplicable mysteries of nature.For this reason, the Revised Penal Code, imposes apunishment upon a widow who marries before threehundred and one days have elapsed from the death of herhusband, a prohibition which is in accordance with otherlegal provisions, and which is intended to preventconfusion in connection with filiation and paternity,inasmuch as the widow might have conceived and becomepregnant by her late husband. The law, when fixing thesaid three hundred and one days, admits the possibility

that a woman may be in pregnancy for more than ninemonths, and that the birth of a child taking place ninemonths after it was conceived is not an impossibility.8

&U.S. vs. Dulay, 10 Phil. 302 (1908)


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The law sees that a woman giving birth may not exactly be 9 months only as

per the normal time period. There is a possibility that the woman may exceed the

ordinary 9-month period thus allowing for another month ergo making the rule 10

months (or 301 days) since this anomaly is inexplicable in the first place. This

provision seeks to prevent doubtful paternity and filiation that was harder to do in the

period where technology hasnt innovated enough to provide sufficient and accurate

evidence as to the paternity of the child. It is questionable though why penalizing the

woman for remarrying during the given period mentioned in the provision is even

necessary, for marriage is an essential liberty for every human being. It is even more

questionable as to why only women are given such a penalty and no penalties may

be found as to the remarriage of men with other women? It is in the exercise of

freedom and liberty, with regards to the law, that a person may feel that he or she is

living a fulfilled life. It is true that the article forms part of our law, but how could

imprisonment be a corrective approach to solving this so-called crime in the first

place?

Despite the restriction, the law states that the period of 301 days may be

disregarded if the first husband was impotent or sterile.9In People v. Masinsin10, the

Court of Appeals ruled that if the woman can present conclusive evidence that she

could not get pregnant with her first spouse because of the husbands sterility, or if

she is permanently impotent, or if the second spouse suffers the same infirmity,

then the rule may be disregarded. Due to this circumstance, the child bearing would

92 L. Reyes, The Revised Penal Code, 978, 17

THEdition (2008)

10People v. Masinsin[C.A.] 49 O.G. 3908


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be impossible for the woman, which would render the law inapplicable and the

exception possible since by common knowledge, there is nothing to prove if there is

no possibility of getting pregnant anyway. With respect to this, the researchers

would like to point out that there is a clear understanding as for the logic behind why

no penalties would stand with regards to men they are incapable of giving birth

therefore no doubts of maternity or parenthood may be put in to question but the

sole fact that the article on Premature Marriage actually penalizes a woman for

exercising her liberty to remarriage contests the clauses on liberty and equality

protection of the laws.

The researchers have reiterated that marriage is a liberty for every human

being as supported by Article 3, Section 1 of the 1987 Constitution11that says that:

No person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be deniedthe equal protection of the laws. (Emphasis supplied)

Art. 351 of the Revised Penal Code is erroneous when it comes to giving (or

not giving) women the right to exercise their freedom to marry. The penalties

emanating from this article is exorbitant in a sense that marriage is so sacred for

such a penalty to be imposed upon women onlywhich is evident in such a way that

arrest in itself is already a form of restriction, which in turn is not corrective in

nature, in addition to the small fine of no more than 500 pesos. Liberty is not

something to be taken lightly especially considering that the researchers are

11CONST. art. III, sec. I


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discussing the study on the view of democracy where freedom and liberty is put on

the highest pedestal. Just like any other concept in Constitutional Law, liberty does

not remain as is. It never halts. It is a concept that moves on with the changing of

times and it adjusts to the needs of the current generation without necessarily

having to contradict laws. 12 Liberty, in a sense, should be adjusted with what is

morally justified now because what may be erroneous before isnt necessarily the

same way all throughout the times. With that in mind, liberty stands through the test

of time and should be remedial in nature to how times may also bring about drastic

or minimal change. According to Gorospe

13

, liberty may be acted upon in such a

way that one may feel he is living his life without being guarded down to an extent

that his life choices are full of restraints. Regarding restraints, he has mentioned:

The same includes many of the attributes of ones beingwhich make for a fruitful life, such as the freedom to domuch of what a person might wish to do with his life, from

simply being left alone to associating with others, fromabstinence and celibacy to recreation and procreation, andfrom the imposition of a discipline of self-sacrifice to thepursuit of happiness and hedonism - but always with dueregard to the rights of others, though.

Liberty, as protected by due process of law, does not simply mean to say

freedom from physical restraint.14On this note, the researchers would like to denote

that liberty is not absolute. The limitation is set to as long as no law has been

violated and public morals remaining undisturbed. As long as one does not infringe

)"1 R. Gorospe, Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage , on paragraph1, page 85 (2006))#supranote 12 at 8414

I. Cruz, Constituional Law, page 161 (2007)


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the rights of another person and as long as his acts or words do not bring threat, evil

or harm to the greater number of society, then one may exercise his liberty freely in

accordance with the law.

In addition to restrictions of liberty, the researchers have observed how the

provision was worded and the penalties and reasons that encompass the provision.

There is an inequality that transpires from it. The Constitution upholds equality

between the sexes.15It does not mean to say that one must rise above the other. If

state grants the right of liberty, equality and fraternity to each individual, why is this

right not extended to women? Equality with women was not an easy fact to accept

especially in the earlier times of history. It was an inconceivable concept not readily

imbibed in societys standards of what equal really was.16But throughout the course

of time, there have been several laws and treaties, that the Philippines is a signatory

to, that try to abridge the inequality between the sexes and the attempt to uphold the

rights of women everywhere. As mentioned before, equality between the sexes has

gone through a rigorous process to be achieved. Article 7 of the Universal

Declaration of Human Rights states that all are equal before the law and are

entitled without any discrimination to equal protection of the law.17 This is with

regard to equality and the equal protection of the laws and both sexes are entitled to

the same equality without any discrimination.

)'supranote 12 at 341)$Ray, Globalization & Human Rights of Women with reference to Mary Wollstonecrafts Vindication of the Rights ofWomen, 3 Global Media Journal Indian Edition (2012) available at http://www.caluniv.ac.in/global-mdia-journal/Commentaries/C2%20BARNALI.pdf, accessed on July 20, 201417

supranote 3


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In this aspect of equality, women, especially now in the Age of Feminism,

should be given the equal right to marriage without having to be constrained in a

time period in which they are forced to wait and sanctioned for exercising their

liberty to marry. The researchers still give high regard to the purpose of Art. 351.

The reason behind the law is clear and it does, to some extent, still provide equality

between the sexes for this gives protection as to doubtful paternity. It is, however,

outweighed by the penalty or burden imposed to women with regards to

remarrying, especially considering how paternity may be proven easier nowadays

Lastly, on the part of women, the restrictions put by Art. 351 of the Revised

Penal Code would put an additional hindrance on women when it comes to them

being able to directly contribute to national development. The pregnancy of a

woman, though not a total liability, already impedes her from working and fulfilling

her duties not only to herself but to the nation as well. Seeing as how imprisonment

and a minor fine is the penalty for the said crime only a woman could commit

under this particular article, it creates an obstruction from opportunities she could

have had while being imprisoned because of the penalty imposed upon her which,

in the researchers perspectives, should not be an issue anymore in this day and

time. The Constitution clearly mandates in its Declaration of State Policies that

womens roles be recognized in the development of our nation18. It states that:

18CONST. art. II, sec. XIV


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Sec. 14 The State recognizes the role of women in nation-building, and shall ensure the fundamental equity beforethe law of women and men

The article alone provides a clear definition that our law also respects the

duty of women to take part in the leadership and development of our country

alongside men. Not only can this be found in our Constitution but a separate statute

on women and nation building has been upheld for the advancement of women and

their contribution to our nation. Republic Act No. 719219promotes the integration of

women as equals with men when it comes to nation al development and other

purposes of societal and economic advancement.

Sec. 2. Declaration of Policy The State recognizes therole of women in nation building and shall ensure thefundamental equality before the law of women and men.The State shall provide women the rights and opportunitiesequal to that of men.

A part of the equality that women have long been fighting for is their right to be heard

in the same level as men. Different laws have been enacted to be able to uphold the

rights of women everywhere. Those rights includes their say in nation building,

societal change and basically, for them to be heard in society and to be able to

contribute to the advancement of society. With regards to Art. 351 of the Revised

Penal Code, as discussed earlier, one of the penalties include imprisonment.

Imprisonment, as mentioned before, is in itself a form of restriction. Also in the said

19R.A. 7192, Sec. 2


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provision20, it includes the clause or before having delivered if she shall have been

pregnant at the time of his death. This implies that regardless if the woman is

proven to be pregnant or not, also regardless with whom she is pregnant with, so

long as she remarries before the 301 days (or 10 months) has elapsed, she can still

be imprisoned and charged. This is basically saying that the penalty still applies

whether or not there is paternity to be proven which, all the more, widens the

chances of a woman being imprisoned for the non-compliance of the rules stated in

the provision. This further restricts them from their capacity to serve our nation. In

the Convention on the Elimination of all Forms of Discrimination Against Women

21

,

an international treaty that the Philippines is a signatory to, it upholds the capability

and potentials of women to partake in developing the country.

Recalling that discrimination against women violates theprinciples of equality of rights and respect for humandignity, is an obstacle to the participation of women, onequal terms with men, in the political, social, economic and

cultural life of their countries, hampers the growth of theprosperity of society and the family and makes moredifficult the full development of the potentialities of womenin the service of their countries and of humanity.

As stated, it is the duty of the state to make sure that women and men are

equal at all times and also has equal terms with their contribution to our nation as a

whole. In the case of women being imprisoned under this article, the combination of

pregnancy and imprisonment does not necessarily make them think on a lighter

note and the additional emotional baggage that puts on a person will continue to

20supranote 7

21Convention on the Elimination of all Forms of Discrimination Against Women, July 17, 1980 (1981),

http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf


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hinder them from being a progressive citizen and a contributor to national

development. In this view, the researchers see that all of this will eventually bring

down the competency of what a woman is really capable of and this contradicts the

equal opportunities made available to women which in turn further restricts them to

be a player in developing our nation.

If the reason for Art. 351 of the Revised Penal Code is to prevent doubtful

paternity in the event a woman gives birth during another marriage22, so does this

mean the law is considering the pregnancy of a woman as a liability and the life of

the eventual child as a mere hindrance to the life of a man? All of us have a right to

our life, liberty and property. True enough that the prevention of doubtful paternity is

important as we are also trying to protect the right of a man and the rightful father of

the eventual child, but whether or not that is the legitimate child of the next husband,

as long as the man is willing to care for the woman and the child, ergo giving his full

consentto the custody of the child, is that not enough for a man and a woman to be

secure of going into this next relationship without having to be penalizedfor it?

The researchers see how this article is problematic and how it contains legal

issues on constitutionality. With a general idea of the provision and penalties that

come with it, the provision is clearly contestable. This study is conducted on the

grounds that the researchers do not agree with its stand but it respects the purpose

it serves.

""(n.a.), Illegal Marriages, http://www.batasnatin.com/law-library/criminal-law/crimes-and-penalties/1436-illegal-marriages.html, Last Accessed on July 10, 2014


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B. RESEARCH QUESTIONS

The researchers are contesting the constitutionality of Art. 351 of the Revised

Penal Code which penalizes Premature Marriages. As mentioned in the researchers

background, it goes against the life, liberty and property clause of the 1987

constitution. With its underlying penalties, it also restricts women in their capacity to

contribute to nation building and social and national development. The researchers

further will further explain what they are trying to contest in the succeeding

discussions. The researchers also divided the questions to be contested

The main issue of the researchers regarding the study is if Art. 351 of the

Revised Penal Code, an article on Premature Marriage is constitutional. The

researchers will then answer 3 underlying questions about the article and those are

the following:

Despite the reason of the law for why this article exists and not withstanding

the fact that, will this law still stand firm despite the changes that society has

gone through since the enactment of the Revised Penal Code?

In view of the age of feminism and the rising role of women in society, is the

law really pushing for equal protection with the continuing enactment of this

provision?


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With regards to the restrictions set by the provision in question, can women

truly be able to assist or take part in national progress and development if

they were to be restricted in this manner provided by the Art. 351 of the RPC?

Further explaining the raised questions, the researchers are asserting the idea

that this goes whether or not if there is a paternity case at hand. The provision is

clear regarding the conditions for imprisonment but the only reason the law provides

is the prevention of doubtful paternity which in this case shouldnt apply to just the

dissolution of marriage anyway. The researchers firmly believe that the provision

truly furthers the delimitation of the rights of women with regards to life, liberty, equal

protection of the laws and the potentials and capacities of women to be a

progressive individual contributing to national development.

C. OPERATIONALIZING TERMS

1.) Paternity Exclusion If the alleged father is excluded from being the

biological father of the child, it means that there are some genetic markers present in

the child that cannot be found in either the child's mother or in the tested alleged

father. In other words, the child has a paternal allele that is not found in the tested

man.23

2.) Paternity Inclusion For each genetic site tested, the child matches one

allele of the mother; therefore, the child received that genetic variant (allele) from the

mother. The other allele in the child matches the allele of the alleged father;

23Reading the DNA Test Results, http://www.genetica.com/GeneticaWebV2.nsf/XReadingtheResults.xsp (last

accessed August 3, 2014)


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therefore, he could be the child's biological father. The probability that he is the

child's father depends on the frequency with which this genetic variant is found in the

male population of the same race. We express this likelihood for the tested man to

be the biological father of the child mathematically with the Paternity Index [PI].24

3.) Short Tandem Repeat (STR) Markers A short tandem repeat (STR) is a

type of DNA polymorphism where short sequences of DNA are repeated. STRs are

usually considered junk DNA because they are introns and do not code for protein.

The number of times a DNA sequence is repeated for a given STR is variable

between different individuals and thus, STRs are often useful for forensic or

genealogical studies.25

4.) Underground Economy The underground economy involves economic

transactions not measured by government statistics and ignoring government

regulations and laws26

D. SIGNIFICANCE OF THE STUDY

The researchers see that, the review of Article 351 is necessary to society,

because it would give specific changes on how the government would act. For each

branch of the government, the criticism to be done with the said article would be a

big help in exercising their specific rights as an individual system of the government.

24Id.

25What Is A Short Tandem Repeat, http://www.genebase.com/learning/article/63 (last accessed August 3, 2014)

26Underground Economy, http://www.economicshelp.com/blog/1822/economics/underground-economy/ (last accessed

August 6, 2014)


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By examining the existence of the law, it would help in the law making and

amending powers of the Legislative branch of the government. It would be

necessary because over the years, there already have been advances and different

studies done to make the lives of people easier. With this circumstance, our law

should also be updated and be appropriate through the course of time. The State

should always be updated with what is happening around and to have a review on

the laws whether or not is should be amended or removed. There have been a lot of

laws in our country that is not currently applicable and that is non-sense because

what is happening now in our country is already different from the time our laws

were made. It is just right that the law for every state be updated to make sure that

laws would duly be exercised and not be called non-sense or outdated by people.

As with the review that the Legislative Branch would do, it would affect both

Executive and Judiciary branch of the government. As being part of the Executive

branch, the Office of the Solicitor General (OSG) would be the one greatly affected.

OSG being a representative of the government or the state upon court trials, the

review of Article 351 would affect them as well. In the event that the review on Article

351 would result to the law being amended, cases involving premature marriages

and doubtful paternity and filiation would be minimized. The work load of OSG,

would lessen and they need to appear to courts more often, which could make them

focus on other cases which are more serious and threatening to society.


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Lastly, in the Judiciary branch, the effect would be similar to the Executive

branch. Due to cases about paternity and filiation would lessen; workload of the

judge would be minimized, which could make them focus more on cases involving

more serious threat. Also, these kinds of cases, paternity and filiation, could be

settled through extra-judicial settlement which would not be heard in a courts normal

course of business. But if the cases would pursue, decision that the judge would

render would be faster that usual because the evidences that would be presented

are more reliable because of the advancements done.

E. SCOPE OF THE STUDY

The researchers delimit the study to focus only on the Article 351 of the

Revised Penal Code. The main focus of the researchers is to contest its

constitutionality and they have chosen to put the provision into question with regards

to the liberty of one to marry, equal protection of the laws between the sexes and the

nation-building capacity of women in the application of the penalty of the said

provision.

When it comes to liberty, the researchers chose this parameter because of

the fact that the Constitution clearly provides that marriage is an inviolable social

institution27 ergo making it a freedom that every human being may exercise freely

but with restrictions provided by the law. The rules provided by Art. 351 is unjust for

27CONST. art XV, sec. 2


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it solely penalizes women for the mere exercise of such freedom. The penalty goes

beyond the reason of the law provided by this article. The reason is simply because

the law wants to prevent doubtful paternity. What happens if there is no paternity

case involved and it penalizes a woman for the mere dissolution of marriage? There

are technically no laws or public morals being obstructed by the remarriage of a

woman to another man. The same applies when a man remarries another woman

but the law does not provide for a penalty pertaining to that situation.

With that in mind, it brings the study to another corollary issue and that is the

equal protection of the laws. The researchers easily found that the provision is not in

consonance with the equal protection clause of the constitution and equal protection

is closely grounded to counter this discriminatory provision. The mere fact that this

penalty exists exclusively for women is questionable. Going back to the reason of

the law, it is understood why that is so. It is contestable in a sense that why should

the law uphold such as a crime if it does not bring a grave threat or evil to the

greater majority? The law states the maintenance of peace and order, the

protection of life, liberty, and property, and promotion of the general welfare are

essential for the enjoyment by all the people of the blessings of democracy 28. The

researchers are in the belief that with the provisions mandated by the constitution,

the State and the government are set to protect the right of every human being,

regardless of age, sex, race, religion and belief because of the equal protection of

the laws must be for the benefit of the public as a whole. With the presence of the

article on Premature Marriage, the researchers highly doubt that the law will let this

28CONST. art. II, sec. 5


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pass by since it is reiterated in several provisions of the constitution that the general

welfare of its people are of its utmost priority and it has also been stated in

international treaties such as that of CEDAW29.

To take all appropriate measures, includinglegislation, to modify or abolish existing laws,regulations and customs and practices whichconstitute discrimination against women.

Even international laws support the right of women to be on equal footing with

men before the law and the mere fact that the Philippines signed this, they too plan

to take part in the abolishment of current laws that impedes the equal protection of

women from discriminatory laws that our country still upholds.

The researchers will also use national development to delimit the study.

Nation building is something that every person should be able to do as it does not

only benefit them personally but also for the greater good of the state. As previously

discussed by the researchers, the limitations imposed by the provision will not only

hamper the potential of women to be a progressive individual but also keep their

potentials constrained thus not being able to partake in the development of the state.

The International Covenant on Civil and Political Rights30, another treaty that the

Philippines is a signatory to, states that:

29supranote 21

30International Covenant of Civil and Political Rights, December 19 1966, (1986),

http://www.refworld.org/pdfid/3ae6b3aa0.pdf


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All peoples have the right of self-determination.By virtue of that right they freely determine theirpolitical status and freely pursue theireconomic, social and cultural development.

The treaty, in the view of self-determination, means to say that people may

freely progress as they please being a part of a certain country. They may freely

determine what they may do with themselves to pursue personal, economic, social

and cultural development. It is that inherent right and thinking of the people to be a

progressive individual. The researchers then deem that national development and

nation building be part of the scope of the study for the penalty imposed by the

provision in question sets a restraint unjustifiable for what the reason of the law is.

In view of the question of paternity, the researchers will add studies regarding

modern medical sciences as a more accurate solution to the test of doubtful

paternity. As mentioned earlier in the discussions, medical technology has come a

long way from what it used to be. In spite of the reasons of the law, medical sciences

may be able to give more reliable answers to paternity. The researchers will discuss

how medical technology is significant to the modern view of evidence and how it

should be admissible in the tests of paternity. We are in an era where science is able

to give light to several questionable things in life and that includes one of the studies

that the researchers have worked on.


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II. REVIEW OF RELATED LITERATURE

A. THEORETICAL LITERATURE

LIBERTY AND EQUALITY

Bunch 31 said in her study, gender-related abuse has been the most

neglected and offers the greatest challenge to the field of human rights today, which

means that up until now, this is an undying issue which society tries to resolve.

Women are treated violently for the simple reason that they are women. They use

the ground of being a woman as an excuse to abuse or belittle which in fact in

inevitable because no one could choose what gender they would be. Studies made

by Palley32, Jao et. al.33, and Ezer et. al.34have conveyed the idea that what

happened in the countrys history and culture affected the gender perspective of a

country. How women are treated long before, is not much different from how women

are being treated now. According to Jao et. al.35, the historical upbringing of our

countrys history affected how women were treated and how they are treated during

the modern times. Equality of man and woman are deeply influenced tradition

31

Bunch, Womens Rights as Human Rights: Towards a Re-Vision of Human Rights, 12 Human RightsQuarterly(1990), available at http://www.jstor.org/stable/762496, [486-498] accessed on July 27, 201432

Palley, Womens Rights as Human Rights: An International Perspective, 515 Annals at American Academy of

Political and Social Science (1991), available at http://www.jstor.org/stable/1046936, [163-178] Accessed on July 23, 201433

Jao et. al, Women, Media, and Human Rights: A Historical Approach to Gender Equality, the Cases of Korea and thePhilippines, 5 FEU Communication Journal(2005), available athttp://www.researchgate.net/publication/202055399_Women_Media_and_Human_Rights_A_Historical_Approach_to_Gender_Equality_the_Cases_of_Korea_and_the_Philippines, [40-58] Accessed on July 11, 2014 34

Ezer et. al., Protecting Womens Human Rights: A Case Study in the Philippines, 18 Human Rights Brief(2011),available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1172&context=hrbrief, accessed onJuly 13, 201435

supra.note 33 at 44


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through the emphasis on the idea of the human person. 36 Every society has

different approaches on how women are treated equally, but to sum it all up; each

society, despite of the effort to make things equal for man and women, they still

havent really gotten the equality women cry for. Bunch37 stated in her study that,

instead of the state giving notice to these kinds of abuses, they see it as something

that is normal and not alarming to society.Which may be, because of the fact that

people already see this as something that is normal due to the practice over time,

women dont really say anything to repeal this kind of standard of living. In addition,

as stated in Ray

38

, cited from Wollstonecraft, progress towards womens wellbeing

would be greatly achieved only if women were given enough education as compered

to men. If women before are fortunate to have a rational education, they may have

known what to do with the situation of violence they are in. Palley39said in her study

that gender equity is the desire of women to also enjoy the rights that are being

enjoyed by men.

Women are treated differently from men long before, it was the norm. More

rights and freedom are given to men. Despite of the cross-cultural differences

between nations, one thing is common, it is how women are treated treated less

compared to men. According to Bunch40, women are basically violated because of

their gender. This gender-based violence happens in almost every country and the

government cant do something about it because its hard to break what have been

36Id.

37supranote 31 at 490

38supra note 16 at 4




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used to. It has already been part of what is normal. From Caprioli and Douglas41,

democratization does not necessarily mean to secure womens rights. The

government usually ponders upon rights of men but womens rights are often

neglected. Even though society seeks for equilibrium on man and womans rights,

they still cant equalize it because even though they try to raise the standards of

womens rights, it is inevitable that rights of men would also go up. Despite of the

effort to try and make things fair and remove gender-based violence, minimal effects

happen because it is still overshadowed of the norm about gender roles that people

still believe in now. As stated in the study of Jao et. al

42

, as cited in Robeyns,

discrimination experienced by women now are product of historical events which

was greatly supported by the superiority of men which made a clear definition of

their gender roles. Jao et.al 43further added that womens gender roles have already

been pre-judged with being inferior to those roles of men. According to C. Taylor, as

cited in Canceran44, he said that, even for the private lives of women, it has been a

struggle to be treated and to exercise equality because of being restraint to do

household chores. Even when women think that even in their safe sanctuary,

women would still feel violated. Discrimination will always be there no matter what.

Their gender roles made an additional restriction to what women can do to prove

that they to should be allowed to freely exercise their capabilities as human.

41Caprioli & Douglas, Nation Building and Women: The Effect of Intervention on Womens Agency, Foreign Political

Analysis(2008), available at http://sites.google.com/site/internationalrelationsresearch/Home/NationBuildingandWomen--TheEffectofInterventiononWomen'sAgency.pdf, [45-65] Accessed on July 13, 201442

supra. note 3543

Id.44

D. Canceran, OP Feminist Question on the Right of Women: Womens rights are human rights!, 13 THE ANNUALJOURNAL OF THE COMMISSION ON JUSTICE, PEACE AND CARE OF CREATION, 16-27 (2008)


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Quoted from Hosken45, The very term human rights is inclusive with no

discriminatory meaning implied. However, practice does not always comply with

principle. With the ways people say on how it should be done is different on how

people are doing it. Despite of the constant reminders that human rights should not

be discriminatory, it is practiced with discrimination no matter how little it is. Palley46

said that, there should be a standard definition on what human rights are.

Regardless of how diverse we see things, there should be a standard on how

women should be treated, to achieve gender equity. In the study of Hosken47, the

fight for human rights in the international scene is barely visible. If female are still

experiencing discrimination at any form of their human rights, then, it would have an

effect on the global perspective of human rights. 48The attention given to promotion

of civil and political rights should also be of same rate on how human rights should

be pondered upon because human rights defines and gives limitations on how

women should and should not act. 49As Merry et. al.50reiterated in their study, that

the main purpose of the human rights law is to protect the dignity and well-being of

all humans regardless of their citizenship, race, gender, or class. More often than

not, women all over the world are experiencing all types of discrimination.

Accounted in the study of Ray51, as mentioned by Wollstonecraft, there have

been abuses in women where in they result to killing themselves for being a woman.

45Hosken, Towards a Definition of Womens Human Rights, 3 Human Rights Quarterly (1981), available at

http://www.jstor.org/stable/761853, [1-10] accessed on July 22, 201446

supra. note 3247

supra. note 4548

Id. at 949

Id. at 250

Merry et. al., Law from Below: Womens Human Rights and Social Movements in New York City, 44 LAW & SOCY

REV.,(2010), available at http://www.jstor.org/stable/40783640 , [101-128] accessed on July 23, 201451

supra. note 38


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"'

It is better to be killed rather than to experience all the horrors of being one.

Supported by the study of Canceran52, a person cannot fully exercise his or her right

to represent him or herself due to the need to conform to the given sexual

arrangements, roles and affected behaviors by society. Quoted from Steiner and

Alston53, Strict equality is required in the realm of civil liberties. Except in instances

of limitation on liberty as punishment, there is no justification for any exception.

In Ezer et. al. 54, it was enumerated that Philippines is a signatory to different

International Treaties that promote human rights, equality and liberty, and is against

discrimination of women. But despite of being a signatory, few regulations have

been made to be able to comply with these treaties. Discrimination against women is

still noticeable despite of the action done to prevent it. According to Steiner and

Alston 55, discrimination is not yet defined universally. People still have different

meanings and interpretations as to what discrimination is. Further added by Steiner

and Altson56, despite of not having a universally accepted definition, discrimination is

described as, consisting of actions, practices or policies that are in some

appropriate sense base on the (perceived) social group to which those

discriminated against belong. The duty of non-discrimination social groups

according to Steiner and Alston57is duties to treat people in certain ways defined by

reference to the way that others are treated. In this case, the point of reference of

52supranote 44

53H. Steiner & P. Alston, International Human Rights in Context: Law, Politics and Morals,35 - 572nd Edition (2000)



56Id.at 39

57Id.at 40


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how people be treated are men. Gender discrimination is the most widely know type

of discrimination that is being experienced anywhere.

Steiner and Alston58aforementioned in their study that there are two kind of

discrimination that people experience, it could either be direct or indirect. As

categorized by Steiner and Alston59, direct discrimination involves intent while for

indirect discrimination is wrongful acts or policies that are not intended to cause

disadvantage to a person. The main difference is the intention of causing the

discrimination to a person. Moreover, as further distinguished, in direct

discrimination, a person is being discriminated based on their traits, which are

inevitable and is innate in a person, which cannot be easily changed, in addition,

they are pre-judged based on false stereotypes which is irrational. 60As directly

quoted from Steiner and Alston 61 , indirect discrimination is, Societys major

institutions unjustifiably inflicting relative disadvantages on members of some salient

groups. It is the belittling of those groups of people in society, which we see as

groups who play minor roles in our society, for example, women. Even though it is

not intentional to discriminate or not pay attention to the needs of these marginal

groups, it is still happening because the central group of society is the main focus.

Right now, a mix of both direct and indirect discrimination, but either way whether it

is direct or indirect, discrimination is still happening. The government may provide

rules and regulation with regards to protection and security for the womens rights

58Id.at 42

59Id. at 47

60Id. at 42 - 46

61Id.at 44


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and anti-discrimination, but as Palley 62 said in her study, these rights do not

constitute equality.

WOMEN, DISCRIMINATION AND NATIONAL DEVELOPMENT

THE STRUGGLE TO MAKE A LIVING

The author of the article tells us how women in society are with regards to

employment and labor during the late 90s. Women are forced to work jobs that dont

necessarily match their skills and potentials but are forced to do so because of the

need to make a living to simply move on through life.63 It is apparent that then,

women were heavily segregated to jobs that only aim to be supportive in nature such

as household work and jobs only secondary to that of men. Examples of these

include clerks and secretaries in the public sector, jobs in the welfare department of

government offices and hospitals. Another deterrence to a womans career path is

that they hold 2 jobs that require them to work inside and outside the office. Their

work outside their formal (rather, informal) jobs is household work. Women are

stereotyped to take care of the family members both inside and outside the home

and also doing household chores for it is an assigned gender role. As seen in

Javellanas64discussion, as cited from Freeman, the law, (It seems) has done little

but perpetuate the myth of the helpless female best kept on her pedestal. In truth,

however, the pedestal is a cage bound by a constricting social system and hemmed

in by layers of archaic and anti-feminist laws. The researchers deem this as


63n.a., Working Girls, 23 IBON FACTS & FIGURES 2-5 (2000)

64Y. Javellana, Woman and the Law, 13 (1975)


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discrimination to the sexes, specifically to the female sex. They are subject to these

stereotypical restrictions and roles assigned to them by society.

In a study done by Steiner and Alston65, they are saying that discrimination

has no universal definition and that it is only subject to acts done that may be proven

as to what discrimination is. Despite the absence of a universally accepted

definition of discrimination, any practicable explication of what constitutes

discrimination will describe it as consisting of actions, practices or policies that are

in some appropriate sense base on the (perceived) social group to which those

discriminated against belong. So to abolish discrimination, one must treat others in

such a way others would want to be treated regardless of age, sex, race or religion.

Evidently, like equality, discrimination is inherently comparative. 66 It is

difficult to determine how discrimination is acted upon among different cultures. It

differs upon location and at the time of how grave discrimination has gone for that

certain period. It varies not just in the place where it is being acted upon but also for

when it has been done. For instance, if American states have a duty to provide

education to its citizens, African-American citizens should receive education on par

with education provided to white citizens.67This shows a cross-cultural reference as

to how discrimination is applied outside of the Philippine setting. This goes to show

that the author is right in saying that discrimination is very much comparative and

subject to the different acts that one performs in doing so especially if the concept of

65supra note 53

66Id. at note 55

67Id.at 43


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culture and race is involved. On a rights-based study done by Ezer, et. al., they are

saying that culture is a fluid concept subject to manipulation by those in power and

should never be used to deny a population their basic rights.68 This means that

culture must not be the basis of ones domination over another person, specifically in

the concept of sexual discrimination as it is a hindrance to womens potentials in

nation building.

WOMEN AS NATION BUILDERS

Figure 1.A chart on female workers in major industries, 1999

This chart, despite its age, shows how women are also capable of being able

to work in different industries.

68supranote 34 at


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A study done by Pecson 69 gives us an insight on Filipino women as

progressive citizens of the Philippines. She develops a sense of women

empowerment by showing the capabilities of women in different fields of work. She

does this by explaining the participating power of Filipinas and the reasons behind

their capacity to participate actively in Philippine development. Filipinas are able to

work as they are because they have always been respected throughout the course

of history and they do not have to abide by social, religious or cultural restrictions.

Filipino women are also naturally eager to work in order to support their family

despite the time of hardships.

Though regarded as a stereotype against women, women still dominate

household activities since the husband would have the tendency to consult the

woman regarding domestic affairs such as the gathering and purchasing of

resources required at home, the education of their children, and other matters

involving the home and the family.70Beyond the home, women have actually come a

long way in being progressive citizens that contribute to the betterment and

development of our nation. Pecsons studies71show narrations and statistics of

women being able to contribute to our nation.

69G. Pecson, The Filipino Women in Nation Building, WOMENS ROLE, December 1996

70Id.at 1

71Id. at 2


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Figure 2. Women in the Labor Force

Considering the time of this statistic provided above, women are continuing to

show involvement in the labor force as a way to help themselves and help the nation

in progressing. Relating to Figure 1, Figure 3 shows approximately the number of

women involved in the labor force. It is seen in the chart that as the age group goes

higher, the number of women in the labor force decreases. As early as 15 years old,

women have been engaging in work, regardless of its formality, and that they have

been contributing to the betterment of our economy and society. The women in

these age groups belong to different industries which goes to show that women dont

just work in industries where society deems them appropriate to work in. Pecsons

study further introduces the different sectors where women work.72She included

women in the economy, politics, government and non-government services. Several

noted professions have been included in the study regarding the number of women

engaging in them. Back then, there were approximately 62,804 registered

professionals, 31,858 of them are women. These professions included being

72Id.at 6


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accountants (14.7%), nurses (91%), pharmacists (83%), dentists (35%),

optometrists (19%) and midwives (100%). Women have also taken the opportunity

to join and have an interest in politics. They have also set up different professional

organizations such as the Philippine Association of University Women and the

Philippine Medical Womens Association. History has proven that we have entered a

time where women are given high regards to their full capabilities and potentials as

progressive citizens. Seeing this study that has been done approximately 15 years

ago, innovation, not just in technology but also in the laws, has brought upon us the

age of feminism.

DNA TYPING IN CASES OF PATERNITY AND FILIATION

BRIEF HISTORY OF DNA TYPING:

DNA fingerprinting or DNA typing (profiling), as known at the current times,

was first described in 1986 by English geneticist Alec Jeffreys. He found that certain

parts of the DNA contained sequences that were repeated again and again right

next to each (later on known as Short Tandem Repeat Markers). He also found that

a number of these repeating sections present in a sample of DNA was actually

different from every person. No 2 markers were the same with the exception of

special cases such as those of identical twins. Dr. Jeffreys then developed a

technique to examine the length of differences of these repeating sequences found

in the DNA. Through those experiments, he found the ability to perform identity

testing using these DNA samples and could now determine relevance of DNA

something put into comparison. The past two-and-a-half decades have seen a great


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amount of growth in the usage of DNA as admissible evidence in crime scene

investigations as well as paternity and genealogic testing. Since the mid-1990s,

computer databases that contain DNA profiles from crime scene samples, convicted

officers and in some persons that are arrested for the sole reason of doing a crime,

have found a way to make it possible to provide law enforcement with the ability to

link the offenders to said crimes.73

DNA TYPING AS EVIDENCE:

In a more formal, scientific study done by De Ungria

74

, et. al., it states that

paternity testing has changed from its early days, when conventional serum-based

testing, such as ABO blood typing and protein polymorphism, was the norm, to the

current DNA-Based analysis using Restriction Fragment Length Polymorphism

(RFLP) and/or the Polymerase Chain Reaction. It shows the subtle developments of

testing from protein-based systems to DNA-based analysis for it gives a more

precise direction to determining not just paternity but other crimes that may involve

the testing of DNA for crime scene investigations.

In a legal study done by Roth75, he narrated the probable use of DNA testing

as a supplement to court cases involving paternity and filiation. He made this study

on the basis of US courts deciding on different cases that try to seek truthful

paternity. He started by stating:

73J. Butler, Fundamentals of Forensic DNA Typing, 4 6 (2009)

74M. C. A. De Ungria, et. al., Resolving Questioned Paternity Issues Using a Philippine Genetic Database, 14

SCIENCE DILIMAN 8 16 (2002)75

A. Roth, Defying DNA: The Role of the Jury in an Age of Scientific Proof of Innocence ,http://www.bu.edu/bulawreview/files/2013/10/ROTH_DNA.pdf last accessed on August 5, 2014


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It brings discredit upon the legal professionand it makes a mockery of a court of justice to permit a juryto accept or reject in accordance with their prejudices afact capable of exact scientific determination.

The usage of DNA typing does not just represent the possible errors that the

jury may commit in absolving or declaring someone from guilt but a collective failure

of our legal mechanisms to guard against wrongful convictions.76

He explained this as the blind deference77of judges towards using DNA tests

as admissible evidence. This lies in the belief, according to Roths study, that the

jury is uniquely good at determining credibility, and that the public views it as such78

and that reserving credibility exclusively for the jury is necessary to assuage the

publics fear of a futuristic alternative, in the form of machine-like lie detectors or

truth machine-type evidence that might trump a jurys own weighing of the

evidence, and that the reliability of such evidence is not commensurate with the

mesmerizing effect it would have on jurors79. This goes without saying that this

belief only stands for that the jury, for the longest time, has been the instrument to

assist in deciding cases in the courts in US which is why DNA typing is widely used

in criminal investigations, in establishing family relationships between individuals in

simple paternity disputes and immigration cases, and identification of mass disaster

and war victims.80

76Id. at 1644

77Id. at 1647

78Id.

79Id.



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Despite being an instrument of telling the difference between the lies and

truths being contested in a case, they do not, by any means, have complete

accuracy when it comes to cases that involve the heavy usage of scientific evidence

for the jury only formulates answer based on testimony and observation. The ability

to observe witness demeanor is no longer a unique jury advantage. And, in any

event, social science has debunked the theory that humans accurately judge

credibility based on demeanor.81

PROCESS OF DNA TYPING

The process of finding DNA Typing is a complex process that involves careful

experimentation so final discernment may be given well enough to uphold justice in

the decisions of court proceedings. It is a tedious process but that saves the

accused from being convicted of a decision that they are not at fault for. Figure 3

shows an overview of how the process of DNA Typing is done for further

understanding in laymans terms and a more graphical form to show this scientific

process.

81supranote 74 at 1655 - 1656


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Figure 3. Process of Identifying and Tracing DNA

DNA TYPING: IS TRUTH ABSOLUTE?

The several studies have pointed out that the usage of DNA testing carries

with it several risks and despite the power of its accuracy, it is not all the time

perfect in giving a conviction or judgement in itself.

As humans, we also fear that technology will take complete control of our

lives. We fear that the machines might become the only witness one might need. 82

Too much dependency on modern technology removes the human essence of court

proceedings thus removing the necessity to have witnesses and testimonies in the

first place. In it is in this respect that we are trying to protect human dignity and

82Idat 1658


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valuing the opportunity of every person to be heard and protect their right to be able

to defend themselves.

Let us also put into consideration that DNA is a biological material and it may

be subject to contamination if not treated with due care and handling.

Environmental exposure degrades DNA molecules by randomly breaking them into

smaller pieces83. It takes a more technical approach to science to comprehend why

this is so. A simpler explanation would be that since DNA tests are run in

laboratories, machines may not fully comprehend the samples given to it if the

sample itself is significantly damaged due to natural activities. This may greatly err

the outcome of laboratory experiments and may not give as much truth to what is

expected of scientific research.

DNA exclusion evidence except in very limited circumstances cannot so

easily be treated as conclusive without delving into the facts of the case. 84In

relation to the human aspect of court proceedings, there must still be some form of

human interference. One cannot simply state that something is true without

investigating first hand the facts and circumstances embedded in the case at hand.

A machine merely determines the validity and correctness of certain evidence such

as DNA. Notwithstanding the truth or reliability of such confirmation from a machine,

the machine itself cannot determine the situation because it takes human senses to

identify the events that took place in a case to further aver the truth that the machine

affirmed.




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In terms of the power of a machine to process data and the usability of

biological data, another difficulty may arise from this and that is the difficulty in

distinguishing between machine stutter and true alleles85. Machines, overtime,

degrade much like DNA evidence. The power of machines, especially those that

have already aged, may give significantly wrong results especially if the material

given is also sub-par with what is required. These less-than-optimal conditions might

end up convicting the wrong person of a crime or a great misinterpretation of data.

There is a risk behind this for faulty machines and sub-par material may not uphold

the justice that one deserves.

B. CONCEPTUAL LITERATURE

The clashing opinions of different authors about women involved in nation

building gives the researchers the notion that even up to our modern times, social

restraints and gender roles still hinder women from maximizing their capacity to

contribute in the development of the country. Authors like Javellana86and journals

such as IBON87may give the readers the notion that the treatment of women with

regards to them being involved in the labor force has not changed at all. Despite the

employment, they are still set back to second-rate or supporting jobs only because

of the roles society assigns to them. Contradicting opinions from authors like

Pecson88and Ezer89state that women are being treated more fairly when it comes

85Id.at 1678

86supranote 64

87supranote 63

88supra note 69

89supra note 34


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to giving them the opportunity to fulfill their roles as contributors to national

development. The authors have given statistics and data as to the segregation of

women to different sectors and career paths. It just goes to show that up to this date,

the status of women in society regarding nation building are subject to a lot of factors

that deem these different authors to say something about the capacity of women to

be progressive citizens and contributors to nation building.

The studies of Roth90and Butler91about the usability of DNA typing present in

itself a clash in opinions and stands. Both the authors stated positive effects of

using DNA typing because of the accuracy of the results of the experiment.

Considering how biological sciences are involved in the usage of this kind of

experiment, it is difficult to argue with concrete evidence that goes beyond mere

testimony, opinions and observations. The results are good to an extent that the

results already constitute a certain truth. Machines, often super computers, are

almost flawless in formulating answers by using these biological substances

obtained for the purpose of testing. De Ungria92further supported the positive effects

of DNA typing by pointing out that this experiment really intends on delivering high

precision results that would meet the end-goal of upholding justice to those innocent

of crimes that would bring about the necessity of DNA typing. Despite the accuracy

of results, machines alone cannot present the events that occurred upon the

discovery of evidence and other circumstances that only the human sense can

detect. The different studies, besides that of De Ungrias, all point out to common

90supranote 43

91supranote 41

92supra note 42


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problems with DNA typing: DNA contamination, tampering and faulty machines. It is

unlikely, however, for such things to happen often since science has gone far

enough to be able to practice DNA typing with high precision and less prone to

errors so that correct decisions may be made through this scientific analysis.


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III. RESEARCH DESIGN

A. RESEARCH FRAMEWORK

The researcher constructed this framework as a guideline on how to

solve the issue in their research paper. In this framework, laws and international

treaties. The top most part of the framework is Article 351 of the Revised Penal

Code, which talks about Premature Marriages. In premature marriages, the main

concern of the researchers is about the liberty, unequal protection, and the

unjustifiable penalty that is enclosed with the Article.


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In the study, the researchers used both Philippine Laws and International

Treaties to further support the claim that Article 351 is violating the liberty, have

unequal protection, and unjustifiable penalty on the part of a woman. As for the

Philippine Laws, the researchers used the Philippine Constitution, Republic act no.

9710 (Magna Carta of Women), and Republic act no. 7192 (An Act Promoting The

Integration Of Women As Full And Equal Partners Of Men In Development And

Nation Building And For Other Purposes.) Researchers have analyzed all possible

laws that would be applicable in resolving the gap between man and women. While

for International Treaties, the researchers analyzed the Universal Declaration of

Human Rights (UDHR), The Convention on the Elimination of all Forms of

Discrimination against Women (CEDAW), and International Covenant on Civil and

Political Rights (ICCPR). The researchers believes that all three treaties where

Philippines is a signatory plays a big role in formation of our Philippine Laws, which

could be used as basis of how things would be regulated. All Internal Treaties

upholds Human Rights and Equality, which could be very useful in the duration of

the study, considering that all the Republic acts stated therein are a product of the

International Treaties.

The researchers supposes that with all these Laws, it would aid in proving

that Article 351 is against liberty, equal protection, and has an unjustifiable penalty

with regards to women.


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B. RESEARCH METHODOLOGY

The researchers chose four methods for the purpose of the study. It

includes the following:

Interdisciplinary studies

Philosophical approach

Historical approach

Scientific approach

With the use of interdisciplinary studies, the researchers seek to relate its

topic with social sciences to further understand the implications of the outcome of

the study to society and how it can go hand in hand with other fields of study such as

Political Science, Economics and Cultural Studies.

The researchers also understand that the laws are upheld for a reason. The

utilization of philosophy with regards to legal analysis will give the readers a better

understanding of the underlying meanings of laws relevant to the study.

The usage of history, with regards to the study, is important so that it would

inform the readers of the relevance of the study to our current generation and the

development of womens rights throughout the course of time.

Lastly, the study involves scientific evidence and research. The study also

includes the analysis of DNA testing and how it is admissible as accurate evidence

to be used by the courts. The researchers decided to use this approach to enlighten


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the readers on the purpose of DNA testing and its usability with regards to its pros

and consequences as evidence to prove paternity.