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2009 Adoption Law is unconstitutional By Alan F. Paguia COMMENT 08/31/2010

Tuesday, August 31, 2010

2009 Adoption Law is unconstitutional

By Alan F. Paguia

COMMENT

08/31/2010
Is the 2009 Adoption Law, or Republic Act 9523, constitutional?

No. It appears violative of two constitutional principles. First, the separation of powers, and second, it contains substantial provisions which are not germane to, nor expressed in, its title.
Violation of separation of powers

1. The title of the law reads:
“AN ACT REQUIRING THE CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE A “CHILD LEGALLY AVAILABLE FOR ADOPTION” AS A PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC ACT NO. 8043, OTHERWISE KNOWN AS THE INTER-COUNTRY ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD AND YOUTH WELFARE CODE, AND FOR OTHER PURPOSES”

2. The statute materially provides:
“SEC. 8. CERTIFICATION. — The certification that a child is legally available for adoption shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.

The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption proceeding, as provided in Republic Act No. 8552, and in an inter-country adoption proceeding, as provided in Republic Act No. 8043.”

3. In other words, the Congress, through RA 9523, seeks to promulgate the certificate of availability for adoption as primary evidence in adoption proceedings which are already covered by the Supreme Court’s RULE ON ADOPTION or A.M. No. 02-6-02-SC, which took effect on Aug. 31, 2002, and which expressly repeals Rules 99 and 100 of the Rules of Court. DOES CONGRESS HAVE THIS POWER? No. Under the 1987 Constitution, the Supreme Court’s power to promulgate judicial rules is NO LONGER SHARED BY THE SUPREME COURT WITH CONGRESS (Echegaray v. Secretary of Justice, 301 SCRA 96; 1999). Most importantly, the 1987 Constitution took away the power of Congress, under the 1935 and 1973 Constitutions, to repeal, alter, or supplement rules concerning pleading, practice and procedure (Baguio Market Vendors Multi-Purpose Coperative v. Judge Illuminada Cabato-Cortes, 613 SCRA 733; 2010). As one of the safeguards of the Supreme Court’s INSTITUTIONAL INDEPENDENCE, the power to promulgate rules of pleading, practice and procedure in all courts is now the Supreme Court’s EXCLUSIVE domain (ibid.). 

4. Consequently, the REPEAL of judicial rules on adoption sought to be promulgated by RA 9523 — is UNCONSTITUTIONAL. This state of the law and jurisprudence is within the MANDATORY JUDICIAL NOTICE of all courts; and, is likewise within the MANDATORY QUASI-JUDICIAL NOTICE of the DSWD, considering that ignorance of the law excuses no one from compliance therewith (Art. 3, CIVIL CODE). If ignorance of the law is not an excuse, with greater reason is ignorance of the Constitution not an excuse.

Substance not germane to title

5. Under the Constitution: “Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.” (par. 1, Sec. 26, Art. VI).

6. RA 9523 deals with more than one subject. Generally, it refers to the requirement of a DSWD certification declaring a “child legally available for adoption” as a prerequisite for adoption proceedings. But the law actually does more than that. It does not simply impose an additional requirement. It converts the entire judicial process of adoption into an essentially administrative process. There is, therefore, a DEVIATION from the general subject of the law (Insular Lumber Company v. CTA, 104 SCRA 710) which is not expressed in the title. The conversion of adoption proceedings from JUDICIAL to ADMINISTRATIVE is not germane to, nor reasonably necessary for, the imposition of an additional requirement in adoption proceedings. The two legislative intentions are separate and distinct purposes. One can exist without the other. Hence, while the title of the law covers the matter of additional requirement, it does not express the matter of conversion (Tio v. VRB, 151 SCRA 208).

Caveat 

7. The DSWD officials are thus placed in a predicament where they have to choose between following the statute or following the Constitution. If they follow the statute which appears unconstitutional under the foregoing premises, they take the risk of incurring administrative, civil, and criminal liability. If they follow the Constitution, they take the risk of upholding the Rule of Law.... Go to Page

SourceThe Daily Tribune

URL: http://www.tribuneonline.org/commentary/20100831com6.html

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