LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FORBROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, andFLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people’s right to be informed on matters of public concern, a right recognized in Section6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitionersseek a writ of mandamus to compel respondent public officials to publish, and/or cause the publicationin the Official Gazette of various presidential decrees, letters of instructions, general orders,proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
The respondents, through the Solicitor General, would have this case dismissed outright on the groundthat petitioners have no legal personality or standing to bring the instant petition. The view issubmitted that in the absence of any showing that petitioners are personally and directly affected orprejudiced by the alleged non-publication of the presidential issuances in question 2 said petitionersare without the requisite legal personality to institute this mandamus proceeding, they are not being“aggrieved parties” within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglectsthe performance of an act which the law specifically enjoins as a duty resulting from an office, trust, orstation, or unlawfully excludes another from the use a rd enjoyment of a right or office to which suchother is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts withcertainty and praying that judgment be rendered commanding the defendant, immediately or at someother specified time, to do the act required to be done to Protect the rights of the petitioner, and topay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public rightand its object is to compel the performance of a public duty, they need not show any specific interestfor their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General,3
this Court held that while the general rule is that “a writ of mandamus would be granted to aprivate individual only in those cases where he has some private or particular interest to be subserved,or some particular right to be protected, independent of that which he holds with the public at large,”and “it is for the public officers exclusively to apply for the writ when public rights are to be subserved[Mithchell vs. Boardmen, 79 M.e., 469],” nevertheless, “when the question is one of public right andthe object of the mandamus is to procure the enforcement of a public duty, the people are regarded asthe real party in interest and the relator at whose instigation the proceedings are instituted need notshow that he has any legal or special interest in the result, it being sufficient to show that he is acitizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rded., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a properparty to the mandamus proceedings brought to compel the Governor General to call a special electionfor the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court,Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the relator isa proper party to proceedings of this character when a public right is sought to be enforced. If thegeneral rule in America were otherwise, we think that it would not be applicable to the case at bar forthe reason ‘that it is always dangerous to apply a general rule to a particular case without keeping inmind the reason for the rule, because, if under the particular circumstances the reason for the ruledoes not exist, the rule itself is not applicable and reliance upon the rule may well lead to error’
No reason exists in the case at bar for applying the general rule insisted upon by counsel for therespondent. The circumstances which surround this case are different from those in the United States,inasmuch as if the relator is not a proper party to these proceedings no other person could be, as wehave seen that it is not the duty of the law officer of the Government to appear and represent thepeople in cases of this character.
The reasons given by the Court in recognizing a private citizen’s legal personality in theaforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced bypetitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of anyother person to initiate the same, considering that the Solicitor General, the government officergenerally empowered to represent the people, has entered his appearance for respondents in thiscase.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirementfor the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the datethey are to take effect, publication in the Official Gazette is not indispensable for their effectivity. Thepoint stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in theOfficial Gazette, unless it is otherwise provided, …
The interpretation given by respondent is in accord with this Court’s construction of said article. In along line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in thosecases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following itspublication-but not when the law itself provides for the date when it goes into effect.
Respondents’ argument, however, is logically correct only insofar as it equates the effectivity of lawswith the fact of publication. Considered in the light of other statutes applicable to the issue at hand,the conclusion is easily reached that said Article 2 does not preclude the requirement of publication inthe Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts andresolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may berequired so to be published by law; and [5] such documents or classes of documents as the Presidentof the Philippines shall determine from time to time to have general applicability and legal effect, orwhich he may authorize so to be published. …
The clear object of the above-quoted provision is to give the general public adequate notice of thevarious laws which are to regulate their actions and conduct as citizens. Without such notice andpublication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” Itwould be the height of injustice to punish or otherwise burden a citizen for the transgression of a lawof which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken
so vital significance that at this time when the people have bestowed upon the President a powerheretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to thelegislative records—no such publicity accompanies the law-making process of the President. Thus,without publication, the people have no means of knowing what presidential decrees have actuallybeen promulgated, much less a definite way of informing themselves of the specific contents and textsof such decrees. As the Supreme Court of Spain ruled: “Bajo la denominacion generica de leyes, secomprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordinesdictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: “There shall be published in theOfficial Gazette … .” The word “shall” used therein imposes upon respondent officials an imperativeduty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should bepublished in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances “of a public nature” or “of general applicability” ismandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties fortheir violation or otherwise impose a burden or. the people, such as tax and revenue measures, fallwithin this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption thatthey have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances “of a public nature” or “of generalapplicability” is a requirement of due process. It is a rule of law that before a person may be bound bylaw, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankeesaid in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the law of theland, the requirement of due process and the Rule of Law demand that the Official Gazette as the
official government repository promulgate and publish the texts of all such decrees, orders andinstructions so that the people may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not beenpublished, shall have no force and effect. Some members of the Court, quite apprehensive about thepossible unsettling effect this decision might have on acts done in reliance of the validity of thosepresidential decrees which were published only during the pendency of this petition, have put thequestion as to whether the Court’s declaration of invalidity apply to P.D.s which had been enforced orimplemented prior to their publication. The answer is all too familiar. In similar situations in the pastthis Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs.Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found to beunconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442;Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broadstatements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may haveconsequences which cannot justly be ignored. The past cannot always be erased by a new judicialdeclaration. The effect of the subsequent ruling as to invalidity may have to be considered in variousaspects-with respect to particular conduct, private and official. Questions of rights claimed to havebecome vested, of status, of prior determinations deemed to have finality and acted upon accordingly,of public policy in the light of the nature both of the statute and of its previous application, demandexamination. These questions are among the most difficult of those which have engaged the attentionof courts, state and federal and it is manifest from numerous decisions that an all-inclusive statementof a principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a partyunder the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in theOfficial Gazette is “an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration … that an all-inclusive statement of aprinciple of absolute retroactive invalidity cannot be justified.”
From the report submitted to the Court by the Clerk of Court, it appears that of the presidentialdecrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither thesubject matters nor the texts of these PDs can be ascertained since no copies thereof are available.But whatever their subject matter may be, it is undisputed that none of these unpublished PDs hasever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that “publication is necessary to apprise the public of the contents of
[penal] regulations and make the said penalties binding on the persons affected thereby. ” Thecogency of this holding is apparently recognized by respondent officials considering the manifestationin their comment that “the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some otherpublication, even though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublishedpresidential issuances which are of general application, and unless so published, they shall have nobinding force and effect.
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished “presidential issuances” to havebinding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if madeto apply adversely to a party who is not even aware of the existence of any legislative or executive acthaving the force and effect of law. My point is that such publication required need not be confined tothe Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces tocertainty. That is too be admitted. It does not follow, however, that failure to do so would in all casesand under all circumstances result in a statute, presidential decree or any other executive act of thesame category being bereft of any binding force and effect. To so hold would, for me, raise aconstitutional question. Such a pronouncement would lend itself to the interpretation that such alegislative or presidential act is bereft of the attribute of effectivity unless published in the OfficialGazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past “presidential issuances”. Nonetheless, thisclarification is, to my mind, needed to avoid any possible misconception as to what is required for anystatute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its firstparagraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: “ThePhilippine Constitution does not require the publication of laws as a prerequisite for their effectivity,unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requiresnotice of laws to affected Parties before they can be bound thereby; but such notice is not necessarilyby publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise inagreement with its closing paragraph: “In fine, I concur in the majority decision to the extent that itrequires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be bypublication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government“must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it tothe level of mere futility, as pointed out by Justice Cardozo, “if it is unknown andunknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is thedoctrine that it must be in the Official Gazette. To be sure once published therein there is theascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published.For prior thereto, it could be that parties aware of their existence could have conducted themselves inaccordance with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on such“Presidential Issuances” could be open to question. Matters deemed settled could still be inquired into.I am not prepared to hold that such an effect is contemplated by our decision. Where such presidentialdecree or executive act is made the basis of a criminal prosecution, then, of course, its ex post factocharacter becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the dueprocess aspect. There must still be a showing of arbitrariness. Moreover, where the challengedpresidential decree or executive act was issued under the police power, the non-impairment clause of
the Constitution may not always be successfully invoked. There must still be that process of balancingto determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology,there could arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publicationis essential to the effectivity of a legislative or executive act of a general application. I am not inagreement with the view that such publication must be in the Official Gazette. The Civil Code itself inits Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following thecompletion of their publication in the Official Gazette is subject to this exception, “unless it isotherwise provided.” Moreover, the Civil Code is itself only a legislative enactment, Republic Act No.386. It does not and cannot have the juridical force of a constitutional command. A later legislative orexecutive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted,with undesirable consequences. I find myself therefore unable to yield assent to such apronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in thisseparate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. JusticeHerrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain setprocedures. The Court has consistently stressed that “it is an elementary rule of fair play and justicethat a reasonable opportunity to be informed must be afforded to the people who are commanded toobey before they can be punished for its violation, 1 citing the settled principle based on due processenunciated in earlier cases that “before the public is bound by its contents, especially its penalprovisions, a law, regulation or circular must first be published and the people officially and speciallyinformed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and theRevised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3of the Civil Code (based on constructive notice that the provisions of the law are ascertainable fromthe public and official repository where they are duly published) that “Ignorance of the law excuses noone from compliance therewith.
Respondents’ contention based on a misreading of Article 2 of the Civil Code that “only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity” ismanifestly untenable. The plain text and meaning of the Civil Code is that “laws shall take effect afterfifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ” i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to alaw that has been duly published pursuant to the basic constitutional requirements of due process. Thebest example of this is the Civil Code itself: the same Article 2 provides otherwise that it “shall takeeffect [only] one year [not 15 days] after such publication. 2 To sustain respondents’ misreading that“most laws or decrees specify the date of their effectivity and for this reason, publication in the OfficialGazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code’sindispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before thecompletion of 15 days following its publication which is the period generally fixed by the Civil Code forits proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has
to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after itspublication in the Official Gazette, it will not mean that the decree can have retroactive effect to thedate of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivitywill run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for theireffectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of dueprocess requires notice of laws to affected parties before they can be bound thereby; but such noticeis not necessarily by publication in the Official Gazette. The due process clause is not that precise.Neither is the publication of laws in theOfficial Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that “laws shall take effect after fifteen days following thecompletion of their publication in the Official Gazette, unless it is otherwise provided” Two things maybe said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to whenit will take effect. Secondly, it clearly recognizes that each law may provide not only a different periodfor reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that itshall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply “An Act to Provide forthe Uniform Publication and Distribution of the Official Gazette.” Conformably therewith, it authorizesthe publication of the Official Gazette, determines its frequency, provides for its sale and distribution,and defines the authority of the Director of Printing in relation thereto. It also enumerates what shallbe published in the Official Gazette, among them, “important legislative acts and resolutions of a
public nature of the Congress of the Philippines” and “all executive and administrative orders andproclamations, except such as have no general applicability.” It is noteworthy that not all legislativeacts are required to be published in the Official Gazette but only “important” ones “of a public nature.”Moreover, the said law does not provide that publication in the Official Gazette is essential for theeffectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. Alaw, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullifyor restrict the operation of a subsequent statute that has a provision of its own as to when and how itwill take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws becomeeffective, for no person should be bound by a law without notice. This is elementary fairness. However,I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publicationbeing in the Official Gazette.
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature orgeneral applicability ineffective, until due publication thereof.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose therequirement of publication in the Official Gazette for unpublished “presidential issuances” to havebinding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if madeto apply adversely to a party who is not even aware of the existence of any legislative or executive acthaving the force and effect of law. My point is that such publication required need not be confined tothe Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces tocertainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential decree or any other executive act of thesame category being bereft of any binding force and effect. To so hold would, for me, raise aconstitutional question. Such a pronouncement would lend itself to the interpretation that such alegislative or presidential act is bereft of the attribute of effectivity unless published in the OfficialGazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It istrue that what is decided now applies only to past “presidential issuances”. Nonetheless, thisclarification is, to my mind, needed to avoid any possible misconception as to what is required for anystatute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its firstparagraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: “ThePhilippine Constitution does not require the publication of laws as a prerequisite for their effectivity,unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requiresnotice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily
by publication in the Official Gazette. The due process clause is not that precise.1
I am likewise inagreement with its closing paragraph: “In fine, I concur in the majority decision to the extent that itrequires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be bypublication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government“must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it tothe level of mere futility, as pointed out by Justice Cardozo, “if it is unknown andunknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is thedoctrine that it must be in the Official Gazette. To be sure once published therein there is theascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published.For prior thereto, it could be that parties aware of their existence could have conducted themselves inaccordance with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on such“Presidential Issuances” could be open to question. Matters deemed settled could still be inquired into.I am not prepared to hold that such an effect is contemplated by our decision. Where such presidentialdecree or executive act is made the basis of a criminal prosecution, then, of course, its ex post factocharacter becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the dueprocess aspect. There must still be a showing of arbitrariness. Moreover, where the challengedpresidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancingto determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology,there could arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publicationis essential to the effectivity of a legislative or executive act of a general application. I am not inagreement with the view that such publication must be in the Official Gazette. The Civil Code itself inits Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following thecompletion of their publication in the Official Gazette is subject to this exception, “unless it isotherwise provided.” Moreover, the Civil Code is itself only a legislative enactment, Republic Act No.386. It does not and cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidentialdecrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted,with undesirable consequences. I find myself therefore unable to yield assent to such apronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in thisseparate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. JusticeHerrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equalapplication to all similarly circumstances and not subject to arbitrary change but only under certain setprocedures. The Court has consistently stressed that “it is an elementary rule of fair play and justicethat a reasonable opportunity to be informed must be afforded to the people who are commanded toobey before they can be punished for its violation, 1 citing the settled principle based on due processenunciated in earlier cases that “before the public is bound by its contents, especially its penalprovisions, a law, regulation or circular must first be published and the people officially and speciallyinformed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and theRevised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from
the public and official repository where they are duly published) that “Ignorance of the law excuses noone from compliance therewith.
Respondents’ contention based on a misreading of Article 2 of the Civil Code that “only laws which aresilent as to their effectivity [date] need be published in the Official Gazette for their effectivity” ismanifestly untenable. The plain text and meaning of the Civil Code is that “laws shall take effect afterfifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ” i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to alaw that has been duly published pursuant to the basic constitutional requirements of due process. Thebest example of this is the Civil Code itself: the same Article 2 provides otherwise that it “shall takeeffect [only] one year [not 15 days] after such publication. 2 To sustain respondents’ misreading that“most laws or decrees specify the date of their effectivity and for this reason, publication in the OfficialGazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code’sindispensable and essential requirement of prior publication in the Official Gazette by the simpleexpedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code forits proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it hasto be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after itspublication in the Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivitywill run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for theireffectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such noticeis not necessarily by publication in the Official Gazette. The due process clause is not that precise.Neither is the publication of laws in theOfficial Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that “laws shall take effect after fifteen days following thecompletion of their publication in the Official Gazette, unless it is otherwise provided” Two things maybe said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to whenit will take effect. Secondly, it clearly recognizes that each law may provide not only a different periodfor reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that itshall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply “An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette.” Conformably therewith, it authorizesthe publication of the Official Gazette, determines its frequency, provides for its sale and distribution,and defines the authority of the Director of Printing in relation thereto. It also enumerates what shallbe published in the Official Gazette, among them, “important legislative acts and resolutions of apublic nature of the Congress of the Philippines” and “all executive and administrative orders andproclamations, except such as have no general applicability.” It is noteworthy that not all legislativeacts are required to be published in the Official Gazette but only “important” ones “of a public nature.”Moreover, the said law does not provide that publication in the Official Gazette is essential for theeffectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. Alaw, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullifyor restrict the operation of a subsequent statute that has a provision of its own as to when and how itwill take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws becomeeffective, for no person should be bound by a law without notice. This is elementary fairness. However,I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publicationbeing in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature orgeneral applicability ineffective, until due publication thereof.
People vs Que Po LayTITLE: People of the Phils v Que Po Lay CITATION: 94 Phil 640 | GR No. 6791, March 29, 1954
The appellant was in possession of foreign exchange consisting of US dollars, USchecks and US money orders amounting to about $7000 but failed to sell thesame to the Central Bank as required under Circular No. 20.
Circular No. 20 was issued in the year 1949 but was published in the OfficialGazette only on Nov. 1951 after the act or omission imputed to Que Po Lay.
Que Po Lay appealed from the decision of the lower court finding him guilty of violating Central Bank Circular No. 20 in connection with Sec 34 of RA 265sentencing him to suffer 6 months imprisonment, pay fine of P1,000 withsubsidiary imprisonment in case of insolvency, and to pay the costs.
ISSUE: Whether or not publication of Circular 20 in the Official Gazette is
needed for it to become effective and subject violators to correspondingpenalties.
HELD:
It was held by the Supreme Court, in an en banc decision, that as a rule, circularand regulations of the Central Bank in question prescribing a penalty for itsviolation should be published before becoming effective. This is based on thetheory that before the public is bound by its contents especially its penalprovisions, a law, regulation or circular must first be published for the people to
be officially and specifically informed of such contents including its penalties.
Thus, the Supreme Court reversed the decision appealed from and acquit theappellant, with costs de oficio.
G.R. No. L-6791 March 29, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.
QUE PO LAY, defendant-appellant.
Prudencio de Guzman for appellant.First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.
MONTEMAYOR, J.:
Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guiltyof violating Central Bank Circular No. 20 in connection with section 34 of Republic Act No. 265, and
sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with subsidiaryimprisonment in case of insolvency, and to pay the costs.
The charge was that the appellant who was in possession of foreign exchange consisting of U.S.dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the same to theCentral Bank through its agents within one day following the receipt of such foreign exchange as
required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was notpublished in the Official Gazette prior to the act or omission imputed to the appellant, and thatconsequently, said circular had no force and effect. It is contended that Commonwealth Act. No.,638 and Act 2930 both require said circular to be published in the Official Gazette, it being an order or notice of general applicability. The Solicitor General answering this contention says thatCommonwealth Act. No. 638 and 2930 do not require the publication in the Official Gazette of saidcircular issued for the implementation of a law in order to have force and effect.
We agree with the Solicitor General that the laws in question do not require the publication of thecirculars, regulations and notices therein mentioned in order to become binding and effective. All thatsaid two laws provide is that laws, resolutions, decisions of the Supreme Court and Court of Appeals, notices and documents required by law to be of no force and effect. In other words, said
two Acts merely enumerate and make a list of what should be published in the Official Gazette,presumably, for the guidance of the different branches of the Government issuing same, and of theBureau of Printing.
However, section 11 of the Revised Administrative Code provides that statutes passed by Congressshall, in the absence of special provision, take effect at the beginning of the fifteenth day after thecompletion of the publication of the statute in the Official Gazette. Article 2 of the new Civil Code(Republic Act No. 386) equally provides that laws shall take effect after fifteen days following thecompletion of their publication in the Official Gazette, unless it is otherwise provided. It is true thatCircular No. 20 of the Central Bank is not a statute or law but being issued for the implementation of the law authorizing its issuance, it has the force and effect of law according to settled jurisprudence.(See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule,circulars and regulations especially like the Circular No. 20 of the Central Bank in question which
prescribes a penalty for its violation should be published before becoming effective, this, on thegeneral principle and theory that before the public is bound by its contents, especially its penalprovisions, a law, regulation or circular must first be published and the people officially andspecifically informed of said contents and its penalties.
Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws,(Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation, and thattheir promulgation shall be understood as made on the day of the termination of the publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws"include regulations and circulars issued in accordance with the same. He says:
El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de
Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, secomprenden tambien los Reglamentos, Reales decretos, Instrucciones, Circulares y Realesordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de quemuchas de sus disposiciones contienen la advertencia de que empiezan a regir el mismo diade su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no fuera deaplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Español, Vol. I. p.52 ).
In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it wasnot published until November 1951, that is, about 3 months after appellant's conviction of itsviolation. It is clear that said circular, particularly its penal provision, did not have any legal effect andbound no one until its publication in the Official Gazzette or after November 1951. In other words,appellant could not be held liable for its violation, for it was not binding at the time he was found tohave failed to sell the foreign exchange in his possession thereof.
But the Solicitor General also contends that this question of non-publication of the Circular is beingraised for the first time on appeal in this Court, which cannot be done by appellant. Ordinarily, onemay raise on appeal any question of law or fact that has been raised in the court below and which iswithin the issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court).But the question of non-publication is fundamental and decisive. If as a matter of fact Circular No. 20had not been published as required by law before its violation, then in the eyes of the law there wasno such circular to be violated and consequently appellant committed no violation of the circular or committed any offense, and the trial court may be said to have had no jurisdiction. This questionmay be raised at any stage of the proceeding whether or not raised in the court below.
In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with
naturalized Australian citizen was legally capacitated to marry petitioner.
Neither can the court grant petitioner’s prayer to declare her marriage null and
void on the ground of bigamy. After all it may turn out that under Australian law
he was really capacitated to marry petitioner as result of the divorce decree.
The SC laid down the following basic legal principles; a marriage between two
Filipino cannot be dissolved even by a divorce decree obtained abroad because
of Articles 15 and 17 of the Civil Code.
G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,vs.REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree isvalid according to the national law of the foreigner. However, the divorce decree and the governingpersonal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree andthe national law of the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7,1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:
“WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarryunder existing and applicable laws to any and/or both parties.”3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, onMarch 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a “Certificate of AustralianCitizenship” issued by the Australian government.6 Petitioner – a Filipina – and respondent weremarried on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In
their application for a marriage license, respondent was declared as “single” and “Filipino.”8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolutionof their marriage. While the two were still in Australia, their conjugal assets were divided on May 16,1996, in accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10in the court a quo,on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he marriedher on January 12, 1994. She claimed that she learned of respondent’s marriage to Editha Samsononly in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his priormarriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizenhad been validly dissolved by a divorce decree obtained in Australian in 1989; 12 thus, he was legallycapacitated to marry petitioner in 1994.1âwphi1.nêt
On July 7, 1998 – or about five years after the couple’s wedding and while the suit for the declarationof nullity was pending – respondent was able to secure a divorce decree from a family court in Sydney,
Australia because the “marriage ha[d] irretrievably broken down.”13
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated nocause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked andadmitted the documentary evidence of both parties.16 After they submitted their respectivememoranda, the case was submitted for resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia wasvalid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of anydefect in an essential element of the marriage; that is,respondent’s alleged lack of legal capacity to
remarry . Rather, it based its Decision on the divorce decree obtained by respondent. The Australiandivorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
“I
The trial court gravely erred in finding that the divorce decree obtained in Australia by therespondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him tocontract a second marriage with the petitioner.
“2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of legalcapacity to marry constitutes absence of a substantial requisite voiding the petitioner’ marriage to therespondent.
“3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
“4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of theFamily Code as the applicable provisions in this case.
“5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that thedivorce decree obtained by the respondent in Australia ipso factocapacitated the parties to remarry,without first securing a recognition of the judgment granting the divorce decree before our courts.”19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotalones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on thesetwo, there is no more necessity to take up the rest.
The Court’s Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court’s recognition of the divorce between respondent and Editha Samson.Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) theforeign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds thatrespondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriagessolemnized abroad are governed by the law of the place where they were celebrated (the lex locicelebrationist ). In effect, the Code requires the presentation of the foreign law to show the conformityof the marriage in question to the legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion.Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriagebetween two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage in case the divorce is “validlyobtained abroad by the alien spouse capacitating him or her to remarry.”26 A divorce obtained abroadby a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent withtheir respective national laws.27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can bemade. Van Dorn v. Romillo Jr. decrees that “aliens may obtain divorces abroad, which may berecognized in the Philippines, provided they are valid according to their national law.”28 Therefore,before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing it.29
Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply withthe registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read asfollows:
“ART. 11. Where a marriage license is required, each of the contracting parties shall file separately asworn application for such license with the proper local civil registrar which shall specify the following:
x x x x x x x x x
“(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
x x x x x x x x x
“ART. 13. In case either of the contracting parties has been previously married, the applicant shall berequired to furnish, instead of the birth of baptismal certificate required in the last preceding article,the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x.
“ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition anddistribution of the properties of the spouses, and the delivery of the children’s presumptive legitimesshall be recorded in the appropriate civil registry and registries of property; otherwise, the same shallnot affect their persons.”
Respondent, on the other hand, argues that the Australian divorce decree is a public document – awritten official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiaryvalue, the document must first be presented and admitted in evidence.30 A divorce obtained abroad isproven by the divorce decree itself. Indeed the best evidence of a judgment is the judgmentitself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of aforeign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as apublic or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not kept in thePhilippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic orconsular officer in the Philippine foreign service stationed in the foreign country in which the record iskept and (b) authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one issued byan Australian family court.35 However, appearance is not sufficient; compliance with the aforemetionedrules on evidence must be demonstrated.
Fortunately for respondent’s cause, when the divorce decree of May 18, 1989 was submitted inevidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had notbeen registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it wasadmissible, subject to petitioner’s qualification.37Hence, it was admitted in evidence and accordedweight by the judge. Indeed, petitioner’s failure to object properly rendered the divorce decreeadmissible as a written act of the Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondentwas no longer bound by Philippine personal laws after he acquired Australian citizenship in
1992.
39
Naturalization is the legal act of adopting an alien and clothing him with the political and civilrights belonging to a citizen.40Naturalized citizens, freed from the protective cloak of their formerstates, don the attires of their adoptive countries. By becoming an Australian, respondent severed hisallegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, becauseshe is the party challenging the validity of a foreign judgment. He contends that petitioner wassatisfied with the original of the divorce decree and was cognizant of the marital laws of Australia,because she had lived and worked in that country for quite a long time. Besides, the Australian divorcelaw is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in theexercise of sound discretion.
We are not persuaded. The burden of proof lies with “the party who alleges the existence of a fact orthing necessary in the prosecution or defense of an action.”41 In civil cases, plaintiffs have the burdenof proving the material allegations of the complaint when those are denied by the answer; anddefendants have the burden of proving the material allegations in their answer when they introducenew matters.42 Since the divorce was a defense raised by respondent, the burden of proving thepertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like anyother facts, they must be alleged and proved. Australian marital laws are not among those mattersthat judges are supposed to know by reason of their judicial function.44 The power of judicial notice
must be exercised with caution, and every reasonable doubt upon the subject should be resolved inthe negative.
Second Issue:
Respondent’s Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legallyincapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,adequately established his legal capacity to marry under Australian law.
Respondent’s contention is untenable. In its strict legal sense, divorce means the legal dissolution of alawful union for a cause arising after marriage. But divorces are of different types. The two basic onesare (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The firstkind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There isno showing in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgmentof divorce. It is in effect the same as a separation from bed and board, although an absolute divorcemay follow after the lapse of the prescribed period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and practices,still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus,the guilty party in a divorce which was granted on the ground of adultery may be prohibited fromremarrying again. The court may allow a remarriage only after proof of good behavior. 47
On its face, the herein Australian divorce decree contains a restriction that reads:
“1. A party to a marriage who marries again before this decree becomes absolute (unless the otherparty has died) commits the offence of bigamy.”48
This quotation bolsters our contention that the divorce obtained by respondent may have beenrestricted. It did not absolutely establish his legal capacity to remarry according to his national law.Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australiandivorce ipso facto restored respondent’s capacity to remarry despite the paucity of evidence on thismatter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption orpresumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for thesimple reason that no proof has been presented on the legal effects of the divorce decree obtainedunder Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not
submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of theparty concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficientto establish the legal capacity of respondent, had he duly presented it in court. A duly authenticatedand admitted certificate is prima facie evidence of legal capacity to marry on the part of the alienapplicant for a marriage license.50
As it is, however, there is absolutely no evidence that proves respondent’s legal capacity to marrypetitioner. A review of the records before this Court shows that only the following exhibits werepresented before the lower court: (1) for petitioner: (a) Exhibit “A” – Complaint;51 (b) Exhibit “B” –Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit “C” – Certificate of Marriage BetweenRederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, MetroManila;53 (d) Exhibit “D” – Office of the City Registrar of Cabanatuan City Certification that no
information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54
and(e) Exhibit “E” – Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit“1″ – Amended Answer;56 (b) Exhibit “S” – Family Law Act 1975 Decree Nisi of Dissolution of Marriage inthe Family Court of Australia;57 (c) Exhibit “3″ – Certificate of Australian Citizenship of Rederick A.Recto;58(d) Exhibit “4″ – Decree Nisi of Dissolution of Marriage in the Family Court of AustraliaCertificate;59 and Exhibit “5″ – Statutory Declaration of the Legal Separation Between Rederick A. Rectoand Grace J. Garcia Recio since October 22, 1995.60
Based on the above records, we cannot conclude that respondent, who was then a naturalizedAustralian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree withpetitioner’s contention that the court a quo erred in finding that the divorce decree ipso facto clothedrespondent with the legal capacity to remarry without requiring him to adduce sufficient evidence toshow the Australian personal law governing his status; or at the very least, to prove his legal capacityto contract the second marriage.
Neither can we grant petitioner’s prayer to declare her marriage to respondent null and void on theground of bigamy. After all, it may turn out that under Australian law, he was really capacitated tomarry petitioner as a direct result of the divorce decree. Hence, we believe that the most judiciouscourse is to remand this case to the trial court to receive evidence, if any, which show petitioner’slegal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of theparties’ marriage on the ground of bigamy, there being already in evidence two existing marriagecertificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1,1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMANDthe case to thecourt a quo for the purpose of receiving evidence which conclusively show respondent’s legal capacityto marry petitioner; and failing in that, of declaring the parties’ marriage void on the ground of bigamy,as above discussed. No costs.
SO ORDERED.
D.M. CONSUNJI vs. COURT OF APPEALS
GR No. 137873
April 20, 2001
FACTS: On November 2, 1990, Jose Juego, a construction worker of D.M. Consunji, Inc., fell 14
floors from the Renaissance Tower, Pasig City to his death. On May 9, 1991, Jose Juego´s widow, filed
in the RTC of Pasig a complaint for damages against the deceased´s employer, D.M. Consunji, Inc. The
employer raised, among other defenses, the widow´s prior availment of the benefits from the State
Insurance Fund. The RTC rendered a decision in favor of the widow Maria Juego, ordering the
defendant to pay plaintiff. On appeal by D.M. Consunji, the CA affirmed the decision of the RTC in
toto. Hence, this petition.
Issue: Whether or not the petitioner (Consunji) is negligent and should be liable.
Held:
The decision of the CA is affirmed.
The claims for damages sustained by workers in the course of their employment could be filed only
under the Workmen´s Compensation Law, to the exclusion of all further claims under other laws. The
CA held that the case at bar came under exception because private respondent was unaware of
petitioner´s negligence when she filed her claim for death benefits from the State Insurance Fund.
D. M. CONSUNJI, INC., petitioner,vs.COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J .:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc.,fell 14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a reportdated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where hewas pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] ataround 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juegotogether with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s]at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board a[p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulidplywood flooring and cable wires attached to its four corners and hooked at the 5 ton chainblock, when suddenly, the bolt or pin which was merely inserted to connect the chain blockwith the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to falldown to the basement of the elevator core, Tower D of the building under construction
thereby crushing the victim of death, save his two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was thenon board and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the pin which was merely inserted to the connecting points of the chain blockand [p]latform but without a safety lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig acomplaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer raised,among other defenses, the widow’s prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
• THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICEREPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OFPETITIONER.
• THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINEOF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ONTHE PART OF PETITIONER.
• THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER ISPRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
• THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT ISNOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.The CA ruled otherwise. It held that said report, being an entry in official records, is an exception tothe hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of hispersonal knowledge, that is, which are derived from his perception.4 A witness, therefore, may nottestify as what he merely learned from others either because he was told or read or heard the same.Such testimony is considered hearsay and may not be received as proof of the truth of what he haslearned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay asevidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be bestbrought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official records.Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a dutyspecially enjoined by law are prima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by lawto do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated,which must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the lastrequisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trialcourt. InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer whosigned the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report butadmissible insofar as it constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the portions of the report which were of his personal knowledge or whichconsisted of his perceptions and conclusions were not hearsay. The rest of the report, suchas the summary of the statements of the parties based on their sworn statements (whichwere annexed to the Report) as well as the latter, having been included in the first purposeof the offer [as part of the testimony of Major Enriquez], may then be consideredas independently relevant statements which were gathered in the course of the investigationand may thus be admitted as such, but not necessarily to prove the truth thereof. It has beensaid that:
"Where regardless of the truth or falsity of a statement, the fact that it has been madeis relevant, the hearsay rule does not apply, but the statement may be shown.Evidence as to the making of such statement is not secondary but primary, for thestatement itself may constitute a fact in issue, or be circumstantially relevant as tothe existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and madehimself available for cross-examination by the adverse party, the Report, insofar as it provedthat certain utterances were made (but not their truth), was effectively removed from theambit of the aforementioned Section 44 of Rule 130. Properly understood, this section doesaway with the testimony in open court of the officer who made the official record, considersthe matter as an exception to the hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the facts therein stated. The underlyingreasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillonv. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; theoccasions in which the officials would be summoned from his ordinary duties todeclare as a witness are numberless. The public officers are few in whose daily worksomething is not done in which testimony is not needed from official sources. Werethere no exception for official statements, hosts of officials would be found devoting
the greater part of their time to attending as witnesses in court or deliveringdeposition before an officer. The work of administration of government and theinterest of the public having business with officials would alike suffer in consequence.For these reasons, and for many others, a certain verity is accorded suchdocuments, which is not extended to private documents. (3 Wigmore on Evidence,Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they willdischarge their several trusts with accuracy and fidelity; and, therefore, whatever actsthey do in discharge of their duty may be given in evidence and shall be taken to betrue under such a degree of caution as to the nature and circumstances of each casemay appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testifyon his report. In that case the applicability of Section 44 of Rule 143 would have been ripefor determination, and this Court would have agreed with the Court of Appeals that saidreport was inadmissible since the aforementioned third requisite was not satisfied. Thestatements given by the sources of information of Major Enriquez failed to qualify as "official
information," there being no showing that, at the very least, they were under a duty to givethe statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of thestatements contained therein but is admissible insofar as it constitutes part of the testimony of PO3Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personalknowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death beyond dispute.PO3 Villanueva also conducted an ocular inspection of the premises of the building the day after theincident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that itwas totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to
the police headquarters. Upon inspection, he noticed that the chain was detached from the liftingmachine, without any pin or bolt.17
What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fallof the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness is generallynot admissible.19
Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur bythe CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of theelevator was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of anaccident or injury will not generally give rise to an inference or presumption that it was due tonegligence on defendant’s part, under the doctrine of res ipsa loquitur, which means, literally,the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raisea presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in
the injury was such as in the ordinary course of things would not happen if those who had itscontrol or management used proper care, there is sufficient evidence, or, as sometimesstated, reasonable evidence, in the absence of explanation by the defendant, that the injuryarose from or was caused by the defendant’s want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absentor not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has thebest opportunity of ascertaining it and that the plaintiff has no such knowledge, and thereforeis compelled to allege negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence. The inference which the doctrinepermits is grounded upon the fact that the chief evidence of the true cause, whether culpableor innocent, is practically accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,without knowledge of the cause, reaches over to defendant who knows or should know thecause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a ruleof necessity, in that it proceeds on the theory that under the peculiar circumstances in whichthe doctrine is applicable, it is within the power of the defendant to show that there was nonegligence on his part, and direct proof of defendant’s negligence is beyond plaintiff’s power.Accordingly, some court add to the three prerequisites for the application of the res ipsaloquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellee’s husband fell down from the 14th floor of a building to thebasement while he was working with appellant’s construction project, resulting to his death.The construction site is within the exclusive control and management of appellant. It has asafety engineer, a project superintendent, a carpenter leadman and others who are incomplete control of the situation therein. The circumstances of any accident that would occur therein are peculiarly within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur isa rule of necessity and it applies where evidence is absent or not readily available, providedthe following requisites are present: (1) the accident was of a kind which does not ordinarilyoccur unless someone is negligent; (2) the instrumentality or agency which caused the injurywas under the exclusive control of the person charged with negligence; and (3) the injurysuffered must not have been due to any voluntary action or contribution on the part of theperson injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performingwork in a construction site unless someone is negligent[;] thus, the first requisite for theapplication of the rule of res ipsa loquitur is present. As explained earlier, the constructionsite with all its paraphernalia and human resources that likely caused the injury is under theexclusive control and management of appellant[;] thus[,] the second requisite is also present.No contributory negligence was attributed to the appellee’s deceased husband[;] thus[,] the
last requisite is also present. All the requisites for the application of the rule of res ipsaloquitur are present, thus a reasonable presumption or inference of appellant’s negligencearises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur , butargues that the presumption or inference that it was negligent did not arise since it "proved that itexercised due care to avoid the accident which befell respondent’s husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, thedefendant’s negligence is presumed or inferred25 when the plaintiff establishes the requisites for theapplication of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,the burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such asthat of due care or innocence, may outweigh the inference.27 It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine hasbeen established. 1âwphi1.nêt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed beforethe police investigator as evidence of its due care. According to Fabro’s sworn statement, thecompany enacted rules and regulations for the safety and security of its workers. Moreover, theleadman and the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguingthat private respondent failed to prove negligence on the part of petitioner’s employees, also assails
the same statement for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits areinadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand totestify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonlyknown fact that, generally, an affidavit is not prepared by the affiant himself but by another who useshis own language in writing the affiant’s statements which may either be omitted or misunderstoodby the one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due careany more than private respondent can use it to prove the cause of her husband’s death. Regrettably,petitioner does not cite any other evidence to rebut the inference or presumption of negligencearising from the application of res ipsa loquitur , or to establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits providedunder the Labor Code and is, therefore, precluded from claiming from the deceased’s employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise provided, the liability of the State InsuranceFund under this Title shall be exclusive and in place of all other liabilities of the employer to
the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code,Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Sixhundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four asamended, and other laws whose benefits are administered by the System or by other
agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,provided that:
Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act toan employee by reason of a personal injury entitling him to compensation shall exclude allother rights and remedies accruing to the employee, his personal representatives,dependents or nearest of kin against the employer under the Civil Code and other lawsbecause of said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled thematter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations, failed to take the required precautions for the protection of theemployees, the heirs of the deceased employees filed a complaint against Philex Mining in the Courtof First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court EnBanc ,31 following the rule in Pacaña vs. Cebu Autobus Company , held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have a right of selection or choice of action between availing themselves of theworker’s right under the Workmen’s Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the employers byvirtue of the negligence or fault of the employers or whether they may avail themselvescumulatively of both actions, i.e., collect the limited compensation under the Workmen’sCompensation Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA442, ruled thatan injured worker has a choice of either to recover from the employer the fixedamounts set by the Workmen’s Compensation Act or to prosecute an ordinary civil actionagainst the tortfeasor for higher damages but he cannot pursue both courses of actionsimultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code despite having availed of the benefits provided under the Workmen’s CompensationAct. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss datedMay 14, 1968 before the court a quo, that the heirs of the deceased employees, namelyEmerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted noticesand claims for compensation to the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez
whose heirs decided that they be paid in installments x x x. Such allegation was admitted byherein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in thelower court, but they set up the defense that the claims were filed under the Workmen’sCompensation Act before they learned of the official report of the committee created toinvestigate the accident which established the criminal negligence and violation of law byPhilex, and which report was forwarded by the Director of Mines to then Executive Secretary
Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmen’sCompensation Act, such my not preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has been remiss in itscontractual obligations with the deceased miners only after receiving compensation under the Act. Had petitioners been aware of said violation of government rules and regulations byPhilex, and of its negligence, they would not have sought redress under the Workmen’sCompensation Commission which awarded a lesser amount for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as itwas not an intelligent choice. The case should therefore be remanded to the lower court for further proceedings. However, should the petitioners be successful in their bid before thelower court, the payments made under the Workmen’s Compensation Act should bededucted from the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael MaritimeCorporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under theAct could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the courseof their employment could be filed only under the Workmen’s Compensation Law, to theexclusion of all further claims under other laws. In Floresca, this doctrine was abrogated infavor of the new rule that the claimants may invoke either the Workmen’s Compensation Actor the provisions of the Civil Code, subject to the consequence that the choice of one
remedy will exclude the other and that the acceptance of compensation under the remedychosen will preclude a claim for additional benefits under the other remedy. The exception iswhere a claimant who has already been paid under the Workmen’s Compensation Act maystill sue for damages under the Civil Code on the basis of supervening facts or developmentsoccurring after he opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case came under the exception because privaterespondent was unaware of petitioner’s negligence when she filed her claim for death benefits fromthe State Insurance Fund. Private respondent filed the civil complaint for damages after she receiveda copy of the police investigation report and the Prosecutor’s Memorandum dismissing the criminalcomplaint against petitioner’s personnel. While stating that there was no negligence attributable tothe respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at
all," the "case is civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant asearly as November 25, 1990, the date of the police investigator’s report. The appellee merelyexecuted her sworn statement before the police investigator concerning her personalcircumstances, her relation to the victim, and her knowledge of the accident. She did not filethe complaint for "Simple Negligence Resulting to Homicide" against appellant’s employees.It was the investigator who recommended the filing of said case and his supervisor referredthe same to the prosecutor’s office. This is a standard operating procedure for police
investigators which appellee may not have even known. This may explain why nocomplainant is mentioned in the preliminary statement of the public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are beingcharged by complainant of "Simple Negligence Resulting to Homicide." It is also possiblethat the appellee did not have a chance to appear before the public prosecutor as can beinferred from the following statement in said memorandum: "Respondents who were notified
pursuant to Law waived their rights to present controverting evidence," thus there was noreason for the public prosecutor to summon the appellee. Hence, notice of appellant’snegligence cannot be imputed on appellee before she applied for death benefits under ECCor before she received the first payment therefrom. Her using the police investigation reportto support her complaint filed on May 9, 1991 may just be an afterthought after receiving acopy of the February 6, 1991 Memorandum of the Prosecutor’s Office dismissing the criminalcomplaint for insufficiency of evidence, stating therein that: "The death of the victim is notattributable to any negligence on the part of the respondents. If at all and as shown by therecords this case is civil in nature." (Underscoring supplied.) Considering the foregoing, Weare more inclined to believe appellee’s allegation that she learned about appellant’snegligence only after she applied for and received the benefits under ECC. This is a mistakeof fact that will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights aswell:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational attainment; that she did not know what damages could be recovered from thedeath of her husband; and that she did not know that she may also recover more fromthe Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint that her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because asearly as November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence Resulting to Homicide" against petitioner’s employees. On February 6, 1991,two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued aresolution finding that, although there was insufficient evidence against petitioner’s employees, thecase was "civil in nature." These purportedly show that prior to her receipt of death benefits from theECC on January 2, 1991 and every month thereafter, private respondent also knew of the twochoices of remedies available to her and yet she chose to claim and receive the benefits from theECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in theabsence of fraud by the other party. The first act of election acts as a bar .37 Equitable in nature, thedoctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests onthe moral premise that it is fair to hold people responsible for their choices. The purpose of thedoctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a singlewrong.38
The choice of a party between inconsistent remedies results in a waiver by election . Hence, the rulein Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of oneremedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver thatthe person against whom the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party’s rights or of all material facts upon which theydepended. Where one lacks knowledge of a right, there is no basis upon which waiver of itcan rest. Ignorance of a material fact negates waiver, and waiver cannot be established by aconsent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right existsand has adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with anawareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exceptionin Floresca.
It is in light of the foregoing principles that we address petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner toburden private respondent with raising waiver as an issue. On the contrary, it is the defendant whoought to plead waiver, as petitioner did in pages 2-3 of its Answer ;41 otherwise, the defense iswaived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction
over the issue when petitioner itself pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husband’s deathand the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact . In this case, the"fact" that served as a basis for nullifying the waiver is the negligence of petitioner’s employees, of which private respondent purportedly learned only after the prosecutor issued a resolution statingthat there may be civil liability. InFloresca, it was the negligence of the mining corporation andits violation of government rules and regulations. Negligence, or violation of government rules andregulations, for that matter, however, is not a fact, but aconclusion of law , over which only the courtshave the final say. Such a conclusion binds no one until the courts have decreed so. It appears,therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misappliedin Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on November 15, 1990 she accomplished her application for benefits from the ECC. Thepolice investigation report is dated November 25, 1990, 10 days after the accomplishment of theform. Petitioner filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when theclaim before the ECC was filed. On the contrary, private respondent testified that she was not awareof her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no onefrom compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claimignorance of this Court’s ruling inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitorylaws.42 This may be deduced from the language of the provision, which, notwithstanding a person’signorance, does not excuse his or her compliance with the laws. The rule in Floresca allowingprivate respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate thetotal amount private respondent ought to receive from the ECC, although it appears from Exhibit"K"43 that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," wasP596.97 and present total monthly pension was P716.40. Whether the total amount she willeventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded bythe trial court is subject to speculation, and the case is remanded to the trial court for suchdetermination. Should the trial court find that its award is greater than that of the ECC, paymentsalready received by private respondent under the Labor Code shall be deducted from the trial court'’award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent doublecompensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determinewhether the award decreed in its decision is more than that of the ECC. Should the award decreedby the trial court be greater than that awarded by the ECC, payments already made to privaterespondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
CUI vs. ARELLANO UNIVERSITY
G.R. No. L-15127
May 30, 1961
FACTS:
Plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949. He finished his law studies
in the defendant university up to and including the first semester of the fourth year. During all the time he was
studying law in defendant university, he was awarded scholarship grants, for scholastic merit, so that his semestraltuition fees were returned to him after the ends of semester and when his scholarship grants were awarded to him.
The whole amount of tuition fees paid by plaintiff to defendant and refunded to him by the latter from the first
semester up to and including the first semester of his last year in the college of law or the fourth year, is in total of
P1,033.87. However, before defendant awarded to plaintiff the scholarship grants as above stated, he was made to
sign the following contract covenant and agreement which provides that in consideration of the scholarship granted to
him by the University, he waives his right to transfer to another school without having refunded to the University
(defendant) the equivalent of his scholarship cash.
For the last semester of his law studies, plaintiff enrolled in the college of law of the Abad Santos University and
graduated therefrom. After graduating in law he applied to take the bar examination. Plaintiff then petitioned the
defendant university to issue to him the needed transcripts. However, the defendant refused until after he had paid
back the P1,033 87 which defendant refunded to him as above stated. As he could not take the bar examination
without those transcripts, plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks
to recover from defendant in this case.
ISSUE:
Whether the said provision of the contract is valid.
HELD:
No. The stipulation in question is contrary to public policy and, hence, null and void. The practice of awarding
scholarships to attract students and keep them in school is not good customs nor has it received some kind of social
and practical confirmation except in some private institutions as in Arellano University. The University of the
Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of free
scholarships to gifted children, does not require scholars to reimburse the corresponding value of the scholarships if
they transfer to other schools. So also with the leading colleges and universities of the United States after which our
educational practices or policies are patterned. In these institutions scholarships are granted not to attract and to
keep brilliant students in school for their propaganda mine but to reward merit or help gifted students in whom society
has an established interest or a first lien.
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,vs.ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of thebrothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance;(3) the denial of the motion for reconsideration of the order approving the partition; (4) the approvalof the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of saidbusiness; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failurenot to postpone the approval of the scheme of partition and the delivery of the deceased's businessto Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect theprovisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkishnationality, for which reason they are void as being in violation or article 10 of the Civil Code which,among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is inquestion, whatever may be the nature of the property or the country in which it may besituated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not inaccordance with the Turkish laws, inasmuch as he did not present any evidence showing what theTurkish laws are on the matter, and in the absence of evidence on such laws, they are presumed tobe the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,acknowledges it when he desires to be given an opportunity to present evidence on this point; so
much so that he assigns as an error of the court in not having deferred the approval of the schemeof partition until the receipt of certain testimony requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitutean error. It is discretionary with the trial court, and, taking into consideration that the oppositor wasgranted ample opportunity to introduce competent evidence, we find no abuse of discretion on thepart of the court in this particular. There is, therefore, no evidence in the record that the national lawof the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, notbeing contrary to our laws in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellantas a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken intoconsideration that such exclusion is based on the last part of the second clause of the will, whichsays:
Second. I like desire to state that although by law, I am a Turkish citizen, thiscitizenship having been conferred upon me by conquest and not by free choice, nor bynationality and, on the other hand, having resided for a considerable length of time in thePhilippine Islands where I succeeded in acquiring all of the property that I now possess, it ismy wish that the distribution of my property and everything in connection with this, my will, bemade and disposed of in accordance with the laws in force in the Philippine islands,requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehandwhatever disposition found in this will favorable to the person or persons who fail to comply
with this request.
The institution of legatees in this will is conditional, and the condition is that the institutedlegatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it,as the herein oppositor who, by his attitude in these proceedings has not respected the will of thetestator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of thecivil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered asnot imposed and shall not prejudice the heir or legatee in any manner whatsoever, evenshould the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national lawwhen, according to article 10 of the civil Code above quoted, such national law of the testator is theone to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten,and the institution of legatees in said will is unconditional and consequently valid and effective evenas to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it,and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectlyvalid and effective it not appearing that said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of thisestate be made in such a manner as to include the herein appellant Andre Brimo as one of thelegatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs.
So ordered.
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,vs.HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Courtof Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila;and ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only tobe followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and privaterespondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births,Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage startedauspiciously enough, and the couple lived together for some time in Malate, Manila where their onlychild, Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by aseparation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in privaterespondent initiating a divorce proceeding against petitioner in Germany before the SchonebergLocal Court in January, 1983. He claimed that there was failure of their marriage and that they had
been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and separation of propertybefore the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is stillpending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locallyand internationally competent for the divorce proceeding and that the dissolution of said marriagewas legally founded on and authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree, privaterespondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while stillmarried to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 andwith yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de losReyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on theground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved aresolution, dated January 8, 1986, directing the filing of two complaints for adultery against thepetitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of theRegional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided bythe respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and JamesChua" , docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, BranchXXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaidresolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed therespondent city fiscal to inform the Department of Justice "if the accused have already beenarraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entirerecords of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspendfurther proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings inCriminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said CriminalCase No. 87-52435 until after the resolution of the petition for review then pending before theSecretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8,1987. The same order also directed the arraignment of both accused therein, that is, petitioner andWilliam Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Suchrefusal of the petitioner being considered by respondent judge as direct contempt, she and her
counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with aprayer for a temporary restraining order, seeking the annulment of the order of the lower courtdenying her motion to quash. The petition is anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot beprosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as anoffended spouse having obtained a final divorce decree under his national law prior to his filing thecriminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents fromimplementing the aforesaid order of September 8, 1987 and from further proceeding with CriminalCase No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñezacted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued aresolution directing the respondent city fiscal to move for the dismissal of the complaints against thepetitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimesagainst chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with thisrule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the
jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for asworn written complaint is just as jurisdictional a mandate since it is that complaint which starts theprosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person whocan legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offendedparty. The so-called exclusive and successive rule in the prosecution of the first four offenses abovementioned do not apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiatethe criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction,abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, suchamendment did not include the crimes of adultery and concubinage. In other words, only theoffended spouse, and no other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, itnecessarily follows that such initiator must have the status, capacity or legal representation to do soat the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in
fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined asof the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean thatthe same requirement and rationale would not apply. Understandably, it may not have been foundnecessary since criminal actions are generally and fundamentally commenced by the State, throughthe People of the Philippines, the offended party being merely the complaining witness therein.However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and thepresent prosecution for adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a matter exclusively within hispower and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer theoutrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently arguedby petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is
still subsisting at the time of the institution of the criminal action for, adultery. This is a logicalconsequence since the raison d'etre of said provision of law would be absent where the supposedoffended party had ceased to be the spouse of the alleged offender at the time of the filing of thecriminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the complainant tocommence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacityto bring the action would be determined by his status before or subsequent to the commencementthereof, where such capacity or status existed prior to but ceased before, or was acquiredsubsequent to but did not exist at the time of, the institution of the case. We would thereby have theanomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue asto when precisely the status of a complainant as an offended spouse must exist where a criminalprosecution can be commenced only by one who in law can be categorized as possessed of suchstatus. Stated differently and with reference to the present case, the inquiry ;would be whether it isnecessary in the commencement of a criminal action for adultery that the marital bonds between thecomplainant and the accused be unsevered and existing at the time of the institution of the action bythe former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia withours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has theright to institute proceedings against the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution for adultery. Where, however,proceedings have been properly commenced, a divorce subsequently granted can have no legaleffect on the prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that —
'No prosecution for adultery can be commenced except on the complaint of thehusband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such whenthe prosecution was begun; and appellant insists that his status was not such as toentitle him to make the complaint. We have repeatedly said that the offense isagainst the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced . (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,considering our statutory law and jural policy on the matter. We are convinced that in cases of suchnature, the status of the complainant vis-a-vis the accused must be determined as of the time thecomplaint was filed. Thus, the person who initiates the adultery case must be an offended spouse,and by this is meant that he is still married to the accused spouse, at the time of the filing of thecomplaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, theFederal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized inthe Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a
United States court between Alice Van Dornja Filipina, and her American husband, the latter filed acivil case in a trial court here alleging that her business concern was conjugal property and prayingthat she be ordered to render an accounting and that the plaintiff be granted the right to manage thebusiness. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance,thus:
There can be no question as to the validity of that Nevada divorce in any of theStates of the United States. The decree is binding on private respondent as anAmerican citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorcesthe same being considered contrary to our concept of public policy and morality.However, aliens may obtain divorces abroad, which may be recognized in thePhilippines, provided they are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husbandentitled to exercise control over conjugal assets. ...25
Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he wasthe offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case.When said respondent initiated the divorce proceeding, he obviously knew that there would nolonger be a family nor marriage vows to protect once a dissolution of the marriage is decreed.Neither would there be a danger of introducing spurious heirs into the family, which is said to be oneof the reasons for the particular formulation of our law on adultery, 26 since there would thenceforthbe no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by privaterespondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of
the Revised Penal Code, which punished adultery "although the marriage be afterwards declaredvoid", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of amarried woman to her marital vows, even though it should be made to appear that she is entitled tohave her marriage contract declared null and void, until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that thecomplaint can still be filed after the declaration of nullity because such declaration that the marriageis void ab initio is equivalent to stating that it never existed. There being no marriage from thebeginning, any complaint for adultery filed after said declaration of nullity would no longer have a legto stand on. Moreover, what was consequently contemplated and within the purview of the decision
in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite wouldnecessarily apply where the termination of the marriage was effected, as in this case, by a validforeign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer
the same fate of inapplicability. A cursory reading of said case reveals that the offended spousetherein had duly and seasonably filed a complaint for adultery, although an issue was raised as to itssufficiency but which was resolved in favor of the complainant. Said case did not involve a factualsituation akin to the one at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE andanother one enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby madepermanent.
SO ORDERED.
WOLFGANG O. ROEHR, petitioner,vs.MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, PresidingJudge of Makati RTC, Branch 149, respondents.
QUISUMBING, J .:
At the core of the present controversy are issues of (a) grave abuse of discretion allegedlycommitted by public respondent and (b) lack of jurisdiction of the regional trial court, in matters thatspring from a divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order 1 dated September 30, 1999 of
public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional TrialCourt,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) theorder 3 dated March 31, 2000 denying his motion for reconsideration. The assailed orders partially setaside the trial court’s order dismissing Civil Case No. 96-1389, for the purpose of resolving issuesrelating to the property settlement of the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married privaterespondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987,respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage beforethe Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion todismiss,6 but it was denied by the trial court in its order 7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order 8 datedAugust 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On November 27, 1998, the appellate court denied the petition and remanded the case tothe RTC.
and 52 of the same Code, which include the dissolution of the property relations of thespouses, and the support and custody of their children, the Order dismissing this case is
partially set aside with respect to these matters which may be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied byrespondent judge in an order dated March 31, 2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is notallowed by 1997 Rules of Civil Procedure.13
2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration hadrecognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assetsalleged in the Petition for Annulment of Marriage and in the Divorce petition, and the custodyof the children had already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing her order datedSeptember 30, 1999, which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed andretained jurisdiction over the present case despite the fact that petitioner has already
obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completelyinconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure,which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim,deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground reliedupon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasissupplied.)
Petitioner avers that a court’s action on a motion is limited to dismissing the action or claim, denyingthe motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14,1999 because it had not yet attained finality, given the timely filing of respondent’s motion for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of CivilProcedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.—The trial court may set asidethe judgment or final order and grant a new trial, upon such terms as may be just, or maydeny the motion. If the court finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly .
Sec. 7. Partial new trial or reconsideration.—If the grounds for a motion under this Ruleappear to the court to affect the issues as to only a part, or less than all of the matters incontroversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest . (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that hasnot yet attained finality. Considering that private respondent filed a motion for reconsideration withinthe reglementary period, the trial court's decision of July 14, 1999 can still be modified. Moreover,
in Sañado v. Court of Appeals,16
we held that the court could modify or alter a judgment even after the same has become executory whenever circumstances transpire rendering its decision unjust andinequitable, as where certain facts and circumstances justifying or requiring such modification or alteration transpired after the judgment has become final and executory17 and when it becomesimperative in the higher interest of justice or when supervening events warrant it.18 In our view, thereare even more compelling reasons to do so when, as in this case, judgment has not yet attainedfinality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretionwhen she partially set aside her order dated July 14, 1999, despite the fact that petitioner hasalready obtained a divorce decree from the Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistentlyheld that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided suchdecree is valid according to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically recognized the validity of a divorce obtained by aGerman citizen in his country, the Federal Republic of Germany. We held in Pilapil that a foreigndivorce and its legal effects may be recognized in the Philippines insofar as respondent is concernedin view of the nationality principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not beenchallenged by either of the parties. In fact, save for the issue of parental custody, even the trial courtrecognized said decree to be valid and binding, thereby endowing private respondent the capacity toremarry. Thus, the present controversy mainly relates to the award of the custody of their twochildren, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children, must stillbe determined by our courts.23 Before our courts can give the effect of res judicata to a foreign
judgment, such as the award of custody to petitioner by the German court, it must be shown that theparties opposed to the judgment had been given ample opportunity to do so on grounds allowedunder Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of CivilProcedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreigncountry, having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title tothe thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a rightas between the parties and their successors in interest by a subsequent title; but the
judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party,collusion, fraud, or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the foreign judgment, in order for thecourt in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Courtclearly provide that with respect to actions in personam, as distinguished from actions in rem, aforeign judgment merely constitutes prima facieevidence of the justness of the claim of a party and,as such, is subject to proof to the contrary.24
In the present case, it cannot be said that private respondent was given the opportunity to challenge
the judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of petitioner to have parental custody of their two children. Theproceedings in the German court were summary. As to what was the extent of private respondent’sparticipation in the proceedings in the German court, the records remain unclear. The divorce decreeitself states that neither has she commented on the proceedings25 nor has she given her opinion tothe Social Services Office.26 Unlike petitioner who was represented by two lawyers, privaterespondent had no counsel to assist her in said proceedings.27 More importantly, the divorce
judgment was issued to petitioner by virtue of the German Civil Code provision to the effect thatwhen a couple lived separately for three years, the marriage is deemed irrefutably dissolved. Thedecree did not touch on the issue as to who the offending spouse was. Absent any finding thatprivate respondent is unfit to obtain custody of the children, the trial court was correct in setting theissue for hearing to determine the issue of parental custody, care, support and education mindful of the best interests of the children. This is in consonance with the provision in the Child and Youth
Welfare Code that the child’s welfare is always the paramount consideration in all questionsconcerning his care and custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her jurisdiction when she claimed cognizance of the issue concerning property relations betweenpetitioner and private respondent. Private respondent herself has admitted in Par. 14 of her petitionfor declaration of nullity of marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any conjugal or community propertynor have they incurred any debts during their marriage."29Herein petitioner did not contest thisaverment. Basic is the rule that a court shall grant relief warranted by the allegations and theproof.30 Given the factual admission by the parties in their pleadings that there is no property to beaccounted for, respondent judge has no basis to assert jurisdiction in this case to resolve a matter
no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two children born of the union between petitioner and private respondent. Private respondenterred, however, in claiming cognizance to settle the matter of property relations of the parties, whichis not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the
trial court has jurisdiction over the issue between the parties as to who has parental custody,including the care, support and education of the children, namely Carolynne and Alexandra KristineRoehr. Let the records of this case be remanded promptly to the trial court for continuation of appropriate proceedings. No pronouncement as to costs.
