Wednesday, February 20, 2013

LEGAL OPINION ON USE OF MIDDLE NAME

(From a Credible Lawyer's Group in the Philippines)

DATE : 20 FEBRUARY 2013



After going through the facts and papers that you have provided me and after conducting further research on the matter, we hereby render our opinion.

NARRATION OF FACTS:

On 07 October 2010, the Italian Ministry of Interior issued Circolare 29/2010, later amended and implemented by Circolare 04 (24 January 2011), which orders the removal of the maternal family name from all official Italian documents of Overseas Filipino Workers (OFWs) in Italy. Some time before this, in a memorandum sent by the Hon. Ambassador Romero Manalo to the Italian Ministry of the Interior, the Philippines requested the removal of the maternal middle name in official Italian documents of the OFWs in Italy.

Circolare 29/2010 specifically states that the Italian Government has received information from the Embassy of the Republic of the Philippines concerning the composition of names of Filipino Citizens; and that it is the Philippine Embassy which requested that the Italian authorities omit any indication of the OFWs’ middle names in their Italian official documents.

At present, there is no similar requirement for nationals of other countries working in Italy to revise their official Italian documents. Likewise, no other country in the European Union requires OFWs to remove any indication of their maternal family name from official documents.

At the instance of DFA Assistant Secretary J. Eduardo Malaya, the Department of Justice issued Opinion No. 34 Series of 2011, which ruled that use of middle name under Philippine law may be considered as only permissive and customary. Consequently, the request submitted by the OFWs in Italy for their middle names to be reflected as part of their first names in identity documents issued by Italian Authorities was not granted.

In 2012, this issue has appeared in numerous Philippine news reports. The matter has been brought up in the House of Representatives’ House Committee on Overseas Workers Affairs during its 27 November 2012 session1, where the Chairperson of the Committee, Akbayan Rep. Walden Bello, implored the Italian Government to recall such Circolare 29/2010. Likewise, representatives of OFW associations in Italy met with both Philippine Embassy officials and Italian government officials requesting for a change in this policy. However, despite all said efforts, there has been no recall or revision of the questioned circular.

In Filipino usage, middle names are used to distinguish one person from another who may have similar or identical first and last names. Dropping all indication of one’s maternal name for OFWs in Italy has resulted in confusion and increased expenses for them. OFWs in Italy now find themselves in the position of revising their official Italian documents, such as their residence documents, incurring substantial expense to do so. In addition to this, OFWs in Italy require certifications from the Philippine Embassy to reconcile any discrepancies between their Philippine Passports (which indicates a middle name) and their Italian documents (which have no middle name), also at an added expense.2 In some cases, this has resulted to some OFWs being denied their rightful insurance claims.3

OFW organizations in Italy have formed Taskforce Circolare 29, to seek the recall of this onerous circular.

  1. Following are the possible legal remedies of Taskforce Circolare 29:

  1. Submit another request for Opinion with the DOJ, asking that they reconsider Opinon No. 34 Series of 2011, with the end in view of making the Italian government recall its Circulare 29.


    1. Under Conflict of Laws principles, name is governed by a person’s national law.

The right to a name is an internationally protected right. Under the Principle 3 of theDeclaration of Rights of the Child 4, “The child shall be entitled from his birth to a name and a nationality.

Under International Law and the principles of conflict of laws, the personal status and its aspects relating to the civil status (name, domicile, capacity), shall be governed by a person’s national law, regardless of where he may reside.

This principle is further supported by Art. 15 of the New Civil Code (“CC”), which states:

Article 15. 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.

Moreover, even under conflict rules applicable to Italy, personal status and capacity and the existence and content of personal rights, including the right to a name, are governed by the national law of the interested party.5

From the above principles, the right to a name is governed by one’s national law. As such, in the case of OFWs in Italy, Philippine law should apply.

    1. Under Philippine Law, change of name may only be done by the Courts

Despite the categorical pronouncement made in DOJ Opinion No. 34, Series of 2011 that middle names are purely customary, it is important to note that in the Philippines, a change of middle name may not be effected by merely removing it from one’s identification. Instead, a change of middle name may only be done pursuant to a judicial order, save for cases of typographical or clerical errors which may be corrected by a city or municipal civil registrar or the consul general.6

By requesting the Italian Ministry of the Interior to drop the OFWs’ maternal names, the Philippine Embassy effected a change of name not pursuant to a judicial order. In effect, there is an arrogation unto itself of matters which are properly within the jurisdiction of the Philippine Courts. In granting or denying changes of name, the question of proper and reasonable cause is left to the sound discretion of the court. What is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant. The sole prerogative for making such a determination is lodged in the courts.7

In the leading case of In re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang,8 the Supreme Court dismissed the petitioner’s prayer to remove his middle name of Carulasan to conform with the Singaporean names. The Court ruled that, “The dropping of the middle name would be tantamount to giving due recognition to or application of the laws of Singapore instead of Philippine law which is controlling.”9

At the case at bar, dropping the maternal middle names of OFWs in Italy would be tantamount to giving preferential application of Italian law when it is in fact Philippine law that applies. Clearly, the actions of the Philippine Embassy in Italy were in contravention of Philippine Law.

    1. Under Philippine Law, where a person has no middle name, he has the status of an unrecognized illegitimate child.

Under Article 174 of the Family Code (FC), legitimate children have the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes filiation, in which case they may bear the father’s surname.

As was ruled by the SC in the above-mentioned case of In re: Julian Lin Carulasan Wang,“Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such.”

The removal of a Filipino citizen’s middle name could only trigger deeper inquiries regarding his true parentage. This could possibly have the effect of changing one’s status from legitimate to that of an unrecognized illegitimate child. Again, the actions of the Philippine Embassy in Italy were in contravention of Philippine Law.
Contrary to the Migrant Worker’s Law, no consultation with affected parties was done before Ambassador Romero Manalo submitted his memorandum

The Migrant Worker’s Law of 1995 (Republic Act No. 8042), guarantees the right of Filipino migrant workers to participate in the decision-making process over matters relevant to them:

Section 2. (f) The right of Filipino migrant workers and all overseas Filipinos to participate in the democratic decision-making process of the State and to be represented in institutions relevant to overseas employment is recognized and guaranteed.”

Specifically, the Department of Foreign Affairs is enjoined under this law to protect the rights of migrant workers:

Section 23. Role of Government Agencies – The following government agencies shall perform the following to promote the welfare and protect the rights of migrant workers and as far as applicable, all overseas Filipinos:

(a) Department of Foreign Affairs – The Department, through its home office of foreign posts, shall take priority action or make representation with the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos.

xxx

Section 27. Priority Concerns of Philippine Foreign Service Posts – The country-team approach, as enunciated under Executive Order No. 74, series of 1993, shall be the mode under which Philippine embassies or their personnel will operate in the protection of the Filipino migrant workers, as well as in the promotion of their welfare. The protection of the Filipino migrant workers and the promotion of their welfare, in particular, and the protection of the dignity and fundamental rights and freedoms of the Filipino citizen abroad, in general shall be the highest priority concerns of the Secretary of foreign Affairs and the Philippine Foreign Service Posts.”

However, despite these categorical provisions of law and despite the onerous monetary consequences to the OFWs involved, no consultation was made with OFWs in Italy before this measure was requested of the Italian Government.

In view of the foregoing,Taskforce Circolare 29 may properly ask the DOJ for a reconsideration of their earlier interpretation of middle names in DOJ Opinion No. 33, Series of 2011.

  1. Filing Petitions for Certiorari and Prohibiton

    1. Certiorari and Prohibiton are proper remedies under the factual circumstances

From the above discussion, it is clear that the Department of Foreign Affairs and Ambassador Manalo have arrogated upon themselves judicial functions in excess of their mandate. Thus, they have acted without or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, falling squarely into the proper subject for petitions for certiorari and prohibition.

However, this is an extreme measure that must be only used as a last resort, if there are no other possible legal remedies available to Taskforce Circolare 29.
Conduct further meetings with both the Philippine and Italian Governments to seek a recall of Circolare 29.

Aside from the above remedy, members of Taskforce Circolare 29 may continue to conduct further meetings with both Philippine and Italian Governments to seek an amicable solution to this issue. However, under this option, there is no guaranty that they will attain the relief they seek.





2 Perseus Echeminada, 200,000 OFWs in Italy face ‘identity crisis’.ABS-CBN News.http://www.abs-cbnnews.com/global-filipino/11/24/12/200000-ofws-italy-face-%E2%80%98identity-crisis%E2%80%99-0


3 Ibid.


4 Adopted by UN General Assembly Resolution 1386 (XIV) of 10 December 1959.


5 European Judicial Network, Applicable Conflict of Law Rules to Italy,http://ec.europa.eu/civiljustice/applicable_law/applicable_law_ita_en.htm


6 As allowed under Republic Act No. 9048 and 10172.


7 Republic vs. Court of Appeals, G.R. No. 97906, 209 SCRA 189 (21 May 1992).


8 G.R. No. 159966, 30 March 2005.


9 Ibid.