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G.R. No.

112193 March 13, 1996


JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA.
IMMACULADA T. ALANON, ROBERTO A. TORRES, CRISTINA A.
TORRES, JUSTO JOSE TORRES and AGUSTIN
TORRES, petitioners,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and
ANTONIA ARUEGO, respondents.

6. The plaintiffs' father, Jose M. Aruego, acknowledged and recognized


the herein plaintiffs as his children verbally among plaintiffs' and their
mother's family friends, as well as by myriad different paternal ways,
including but not limited to the following:
(a) Regular support and educational expenses;
(b) Allowance to use his surname;
(c) Payment of maternal bills;

HERMOSISIMA, JR., J.:p


(d) Payment of baptismal expenses and attendance therein;
On March 7, 1983, a Complaint 1 for Compulsory Recognition and
Enforcement of Successional Rights was filed before Branch 30 of the
Regional Trial Court of Manila by the minors, private respondent
Antonia F. Aruego and her alleged sister Evelyn F. Aruego, represented
by their mother and natural guardian, Luz M. Fabian. Named
defendants therein were Jose E. Aruego, Jr. and the five (5) minor
children of the deceased Gloria A. Torres, represented by their father
and natural guardian, Justo P. Torres, Jr., now the petitioners herein.

(e) Taking them to restaurants and department stores on occasions of


family rejoicing;
(f) Attendance to school problems of plaintiffs;
(g) Calling and allowing plaintiffs to his office every now and then;
(h) Introducing them as such children to family friends.

In essence, the complaint avers that the late Jose M. Aruego, Sr., a
married man, had an amorous relationship with Luz M. Fabian
sometime in 1959 until his death on March 30, 1982. Out of this
relationship were born Antonia F. Aruego and Evelyn F. Aruego on
October 5, 1962 and September 3, 1963, respectively. The complaint
prayed for an Order praying that herein private respondent and Evelyn
be declared the illegitimate children of the deceased Jose M. Aruego,
Sr.; that herein petitioners be compelled to recognize and acknowledge
them as the compulsory heirs of the deceased Jose M. Aruego; that
their share and participation in the estate of their deceased father be
determined and ordered delivered to them.

7. The plaintiffs are thus, in continuous possession of the status


of (illegitimate) children of the deceased Jose M. Aruego who showered
them, with the continuous and clear manifestations of paternal care and
affection as above outlined. 2
Petitioners denied all these allegations.
After trial, the lower court rendered judgment, dated June 15, 1992, the
dispositive portion of which reads:
WHEREFORE, judgment is rendered

The main basis of the action for compulsory recognition is their alleged
"open and continuous possession of the status of illegitimate children"
as stated in paragraphs 6 and 7 of the Complaint, to wit:

1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego


and Luz Fabian;

2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with Luz


Fabian;

Reconsideration when filed was denied by the respondent court in a


minute resolution, dated October 13, 1993.

3. Declaring that the estate of deceased Jose Aruego are the following:

Hence, this Petition for Review on Certiorari under Rule 45 alleging the
following grounds:

xxx xxx xxx


4. Antonia Aruego is entitled to a share equal to 1/2 portion of share of
the legitimate children of Jose Aruego;
5. Defendants are hereby ordered to recognize Antonia Aruego as the
illegitimate daughter of Jose Aruego with Luz Fabian;
6. Defendants are hereby ordered to deliver to Antonia Aruego (her)
share in the estate of Jose Aruego, Sr.;

A. RESPONDENT COURT HAD DECIDED A QUESTION OF


SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW
AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE
DECISION ALREADY ISSUED BY THIS HONORABLE
COURT.
B. RESPONDENT COURT ERRED IN HOLDING THAT THE
PETITION FILED BY PETITIONERS BEFORE IT DOES NOT
INVOLVE A QUESTION OF JURISDICTION.

7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the sum


of P10,000.00 as atty's fee;
8. Cost against the defendants.

Herein petitioners filed a Motion for Partial Reconsideration of the


decision alleging loss of jurisdiction on the part of the trial court over the
complaint by virtue of the passage of Executive Order No. 209 (as
amended by Executive Order No. 227), otherwise known as the Family
Code of the Philippines which took effect on August 3, 1988. This
motion was denied by the lower court in the Order, dated January 14,
1993.
Petitioners interposed an appeal but the lower court refused to give it
due course on the ground that it was filed out of time.
A Petition for Prohibition and Certiorari with prayer for a Writ of
Preliminary Injunction was filed by herein petitioners before respondent
Court of Appeals, the petition was dismissed for lack of merit in a
decision promulgated on August 31, 1993. A Motion for

C. RESPONDENT COURT HAD CLEARLY ERRED IN RULING


THAT THERE IS NO PERCEPTIBLE DIFFERENCE BETWEEN
THE CIVIL CODE PROVISION AND THOSE OF THE FAMILY
CODE ANENT THE TIME AN ACTION FOR COMPULSORY
RECOGNITION MAY BE MADE AND THAT THERE IS NO
DIFFERENCE UNDER THE CIVIL CODE FROM THAT OF
THE FAMILY CODE CONCERNING THE REQUIREMENT
THAT AN ACTION FOR COMPULSORY RECOGNITION ON
THE GROUND OF CONTINUOUS POSSESSION OF THE
STATUS OF AN ILLEGITIMATE CHILD SHOULD BE FILED
DURING THE LIFETIME OF THE PUTATIVE PARENT, IN
UTTER DISREGARD OF THE RULING OF THIS
HONORABLE COURT IN THE UYGUANGCO CASE THAT
THE CIVIL CODE PROVISION HAD BEEN SUPERSEDED OR
AT LEAST MODIFIED BY THE CORRESPONDING ARTICLES
IN THE FAMILY CODE.

D. RESPONDENT
COURT
ERRED
IN
DISMISSING
PETITIONERS' PETITION FOR PROHIBITION AND IN
HOLDING THAT PETITIONERS REMEDY IS THAT OF AN
APPEAL WHICH ALLEGEDLY HAD ALREADY BEEN LOST. 4
Private respondent's action for compulsory recognition as an
illegitimate child was brought under Book I, Title VIII of the Civil Code
on PERSONS, specifically Article 285 thereof, which state the manner
by which illegitimate children may prove their filiation, to wit:

(2) An admission of legitimate filiation in a public document or a private


handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.

Art. 285. The action for the recognition of natural children may be
brought only during the lifetime of the presumed parents, except in the
following cases:
(1) If the father or mother died during the minority of the child, in which
case the latter may file the action before the expiration of four years
from the attainment of his majority; . . . .
Petitioners, on the other hand, submit that with the advent of the New
Family Code on August 3, 1988, the trial court lost jurisdiction over the
complaint of private respondent on the ground of prescription,
considering that under Article 175, paragraph 2, in relation to Article
172 of the New Family Code, it is provided that an action for
compulsory recognition of illegitimate filiation, if based on the "open
and continuous possession of the status of an illegitimate child," must
be brought during the lifetime of the alleged parent without any
exception, otherwise the action will be barred by prescription.
The law cited reads:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment;
or

Art. 175. Illegitimate children may establish their illegitimate filiation in


the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article
173 [during the lifetime of the child], except when the action is based
on the second paragraph of Article 172, in which case the action may
be brought during the lifetime of the alleged parent.
In the case at bench, petitioners point out that, since the complaint of
private respondent and her alleged sister was filed on March 7, 1983,
or almost one (1) year after the death of their presumed father on
March 30, 1982, the action has clearly prescribed under the new rule
as provided in the Family Code. Petitioners, further, maintain that even
if the action was filed prior to the effectivity of the Family Code, this new
law must be applied to the instant case pursuant to Article 256 of the
Family Code which provides:
This Code shall, have retroactive effect insofar as it does not prejudice
or impair vested of acquired rights in accordance with the Civil Code or
other laws.
The basic question that must be resolved in this case, therefore,
appears to be:
Should the provisions of the Family Code be applied in the instant
case? As a corollary Will the application of the Family Code in this case

prejudice or impair any vested right of the private respondent such that
it should not be given retroactive effect in this particular case?
The phrase "vested or acquired rights" under Article 256, is not defined
by the Family Code. "The Committee did not define what is meant by a
'vested or acquired right,' thus leaving it to the courts to determine what
it means as each particular issue is submitted to them. It is difficult to
provide the answer for each and every question that may arise in the
future." 5
In Tayag vs. Court of Appeals, 6 a case which involves a similar
complaint denominated as "Claim for Inheritance" but treated by this
court as one to compel recognition as an illegitimate child brought prior
to the effectivity of the Family Code by the mother of the minor child,
and based also on the "open and continuous possession of the status
of an illegitimate child," we had occasion to rule that:
Under the circumstances obtaining in the case at bar, we hold that the
right of action of the minor child has been vested by the filing of the
complaint in court under the regime of the Civil Code and prior to the
effectivity of the Family Code. We herein adopt our ruling in the recent
case of Republic of the Philippines vs. Court of Appeals, et. al. 7 where
we held that the fact of filing of the petition already vested in the
petitioner her right to file it and to have the same proceed to final
adjudication in accordance with the law in force at the time, and such
right can no longer be prejudiced or impaired by the enactment of a
new law.

Tayag applies four-square with the case at bench. The action brought
by private respondent Antonia Aruego for compulsory recognition and
enforcement of successional rights which was filed prior to the advent
of the Family Code, must be governed by Article 285 of the Civil Code
and not by Article 175, paragraph 2 of the Family Code. The present
law cannot be given retroactive effect insofar as the instant case is
concerned, as its application will prejudice the vested right of private
respondent to have her case decided under Article 285 of the Civil
Code. The right was vested to her by the fact that she filed her action
under the regime of the Civil Code. Prescinding from this, the
conclusion then ought to be that the action was not yet barred,
notwithstanding the fact that it was brought when the putative father
was already deceased, since private respondent was then still a minor
when it was filed, an exception to the general rule provided under
Article 285 of the Civil Code. Hence, the trial court, which acquired
jurisdiction over the case by the filing of the complaint, never lost
jurisdiction over the same despite the passage of E.O. No. 209, also
known as the Family Code of the Philippines.
Our ruling herein reinforces the principle that the jurisdiction of a court,
whether in criminal or civil cases, once attached cannot be ousted by
subsequent happenings or events, although of a character which would
have prevented jurisdiction from attaching in the first instance, and it
retains jurisdiction until it finally disposes of the case. 8
WHEREFORE, the petition is DENIED and the decision of the Court of
Appeals dated August 31, 1993 and its Resolution dated October 13,
1993 are hereby AFFIRMED.

xxx xxx xxx


SO ORDERED.
Accordingly, Article 175 of the Family Code finds no proper application
to the instant case since it will ineluctably affect adversely a right of
private respondent and, consequentially, of the minor child she
represents, both of which have been vested with the filing of the
complaint in court. The trial court is, therefore, correct in applying the
provisions of Article 285 of the Civil Code and in holding that private
respondent's cause of action has not yet prescribed.

Padilla, Bellosillo and Kapunan, JJ., concur.


Separate Opinions
VITUG, J., concuring:

I also believe that the Court of Appeals did not err in holding that the
petition before it did not involve a question of jurisdiction and cannot
thus be a substitute for a lost appeal.
G.R. No. 140500

January 21, 2002

ERNESTINA BERNABE, petitioner,


vs.
CAROLINA ALEJO as guardian ad litem for the minor ADRIAN
BERNABE, respondent.
PANGANIBAN, J.:
The right to seek recognition granted by the Civil Code to illegitimate
children who were still minors at the time the Family Code took effect
cannot be impaired or taken away. The minors have up to four years
from attaining majority age within which to file an action for recognition.
Statement of the Case
Before us is a Petition1 for Review on Certiorari under Rule 45 of the
Rules of Court, praying for (1) the nullification of the July 7, 1999 Court
of Appeals2 (CA) Decision3 in CA-GR CV No. 51919 and the October
14, 1999 CA Resolution4 denying petitioners Motion for
Reconsideration, as well as (2) the reinstatement of the two Orders
issued by the Regional Trial Court (RTC) of Pasay City (Branch 109)
concerning the same case. The dispositive portion of the assailed
Decision reads as follows:

The undisputed facts are summarized by the Court of Appeals in this


wise:
"The late Fiscal Ernesto A. Bernabe allegedly fathered a son with his
secretary of twenty-three (23) years, herein plaintiff-appellant Carolina
Alejo. The son was born on September 18, 1981 and was named
Adrian Bernabe. Fiscal Bernabe died on August 13, 1993, while his wife
Rosalina died on December 3 of the same year, leaving Ernestina as
the sole surviving heir.
"On May 16, 1994, Carolina, in behalf of Adrian, filed the aforesaid
complaint praying that Adrian be declared an acknowledged illegitimate
son of Fiscal Bernabe and as such he (Adrian) be given his share in
Fiscal Bernabes estate, which is now being held by Ernestina as the
sole surviving heir.
"On July 16, 1995, the Regional Trial Court dismissed the complaint,
ruling that under the provisions of the Family Code as well as the case
of Uyguangco vs. Court of Appeals, the complaint is now barred x x x."6
Orders of the Trial Court
In an Order dated July 26, 1995, the trial court granted Ernestina
Bernabes Motion for Reconsideration of the trial courts Decision and
ordered the dismissal of the Complaint for recognition. Citing Article
175 of the Family Code, the RTC held that the death of the putative
father had barred the action.

"WHEREFORE, premises considered, the order of the lower court


dismissing Civil Case No. 94-0562 is REVERSED and SET ASIDE. Let
the records of this case be remanded to the lower court for trial on the
merits."5

In its Order dated October 6, 1995, the trial court added that since the
putative father had not acknowledged or recognized Adrian Bernabe in
writing, the action for recognition should have been filed during the
lifetime of the alleged father to give him the opportunity to either affirm
or deny the childs filiation.

The Facts

Ruling of the Court of Appeals

On the other hand, the Court of Appeals ruled that in the interest of
justice, Adrian should be allowed to prove that he was the illegitimate
son of Fiscal Bernabe. Because the boy was born in 1981, his rights
are governed by Article 285 of the Civil Code, which allows an action
for recognition to be filed within four years after the child has attained
the age of majority. The subsequent enactment of the Family Code did
not take away that right.
Hence, this appeal.7

First and Second Issues: Period to File Action for Recognition


Because the first and the second issues are interrelated, we shall
discuss them jointly.
Petitioner contends that respondent is barred from filing an action for
recognition, because Article 285 of the Civil Code has been supplanted
by the provisions of the Family Code. She argues that the latter Code
should be given retroactive effect, since no vested right would be
impaired. We do not agree.

Issues
In her Memorandum,8 petitioner raises the following issues for our
consideration:
I.

II.

III.

"Whether or not respondent has a cause of action to file a


case against petitioner, the legitimate daughter of the
putative father, for recognition and partition with accounting
after the putative fathers death in the absence of any
written acknowledgment of paternity by the latter.
"Whether or not the Honorable Court of Appeals erred in
ruling that respondents had four years from the attainment
of minority to file an action for recognition as provided in Art.
285 of the Civil Code, in complete disregard of its repeal by
the [express] provisions of the Family Code and the
applicable jurisprudence as held by the Honorable Court of
Appeals.
"Whether or not the petition for certiorari filed by the
petition[er] is fatally defective for failure to implead the
Court of Appeals as one of the respondents."9

The Courts Ruling


The Petition has no merit.

Article 285 of the Civil Code provides the period for filing an action for
recognition as follows:
"ART. 285. The action for the recognition of natural children may be
brought only during the lifetime of the presumed parents, except in the
following cases:
(1) If the father or mother died during the minority of the child, in which
case the latter may file the action before the expiration of four years
from the attainment of his majority;
(2) If after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both
parents recognize the child.
"In this case, the action must be commenced within four years from the
finding of the document."
The two exceptions provided under the foregoing provision, have
however been omitted by Articles 172, 173 and 175 of the Family Code,
which we quote:
"ART. 172. The filiation of legitimate children is established by any of
the following:

(1) The record of birth appearing in the civil register or a final judgment;
or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
"In the absence of the foregoing evidence, the legitimate filiation shall
be proved by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws."
"ART. 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the
child die during minority or in a state of insanity. In these cases, the
heirs shall have a period of five years within which to institute the
action.
"The action already commenced by the child shall
notwithstanding the death of either or both of the parties."

survive

"ART. 175. Illegitimate children may establish their illegitimate filiation in


the same way and on the same, evidence as legitimate children.
"The action must be brought within the same period specified in Article
173, except when the action is based on the second paragraph of
Article 172, in which case the action may be brought during the lifetime
of the alleged parent."
Under the new law, an action for the recognition of an illegitimate child
must be brought within the lifetime of the alleged parent. The Family
Code makes no distinction on whether the former was still a minor
when the latter died. Thus, the putative parent is given by the new
Code a chance to dispute the claim, considering that "illegitimate
children are usually begotten and raised in secrecy and without the

legitimate family being aware of their existence. x x x The putative


parent should thus be given the opportunity to affirm or deny the childs
filiation, and this, he or she cannot do if he or she is already dead." 10
Nonetheless, the Family Code provides the caveat that rights that have
already vested prior to its enactment should not be prejudiced or
impaired as follows:
"ART. 255. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the
Civil Code or other laws."
The crucial issue to be resolved therefore is whether Adrians right to
an action for recognition, which was granted by Article 285 of the Civil
Code, had already vested prior to the enactment of the Family Code.
Our answer is affirmative.
A vested right is defined as "one which is absolute, complete and
unconditional, to the exercise of which no obstacle exists, and which is
immediate and perfect in itself and not dependent upon a contingency x
x x."11Respondent however contends that the filing of an action for
recognition is procedural in nature and that "as a general rule, no
vested right may attach to [or] arise from procedural laws."12
Bustos v. Lucero13 distinguished substantive from procedural law in
these words:
"x x x. Substantive law creates substantive rights and the two terms in
this respect may be said to be synonymous. Substantive rights is a
term which includes those rights which one enjoys under the legal
system prior to the disturbance of normal relations. Substantive law is
that part of the law which creates, defines and regulates rights, or
which regulates the rights and duties which give rise to a cause of
action; that part of the law which courts are established to administer;
as opposed to adjective or remedial law, which prescribes the method
of enforcing rights or obtains redress for their invasion." 14 (Citations
omitted)

Recently, in Fabian v. Desierto,15 the Court laid down the test for
determining whether a rule is procedural or substantive:
"[I]n determining whether a rule prescribed by the Supreme Court, for
the practice and procedure of the lower courts, abridges, enlarges, or
modifies any substantive right, the test is whether the rule really
regulates procedure, that is, the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them. If the rule
takes away a vested right, it is not procedural. If the rule creates a right
such as the right to appeal, it may be classified as a substantive matter;
but if it operates as a means of implementing an existing right then the
rule deals merely with procedure."16
Applying the foregoing jurisprudence, we hold that Article 285 of the
Civil Code is a substantive law, as it gives Adrian the right to file his
petition for recognition within four years from attaining majority age.
Therefore, the Family Code cannot impair or take Adrians right to file
an action for recognition, because that right had already vested prior to
its enactment.
Uyguangco v. Court of Appeals 17 is not applicable to the case at bar,
because the plaintiff therein sought recognition as an illegitimate child
when he was no longer a minor. On the other hand, in Aruego Jr. v.
Court of Appeals18 the Court ruled that an action for recognition filed
while the Civil Code was in effect should not be affected by the
subsequent enactment of the Family Code, because the right had
already vested.
Not Limited to Natural Children
To be sure, Article 285 of the Civil Code refers to the action for
recognition of "natural" children. Thus, petitioner contends that the
provision cannot be availed of by respondent, because at the time of
his conception, his parents were impeded from marrying each other. In
other words, he is not a natural child.

A "natural child" is one whose parents, at the time of conception, were


not disqualified by any legal impediment from marrying each other.
Thus, in De Santos v. Angeles,19 the Court explained:
"A childs parents should not have been disqualified to marry each other
at the time of conception for him to qualify as a natural child." 20
A strict and literal interpretation of Article 285 has already been frowned
upon by this Court in the aforesaid case of Aruego, which allowed
minors to file a case for recognition even if their parents were
disqualified from marrying each other. There, the Complaint averred
that the late Jose Aruego Sr., a married man, had an extramarital liason
with Luz Fabian. Out of this relationship were born two illegitimate
children who in 1983 filed an action for recognition. The two children
were born in 1962 and 1963, while the alleged putative father died in
1982. In short, at the time of their conception, the two childrens parents
were legally disqualified from marrying each other. The Court allowed
the Complaint to prosper, even though it had been filed almost a year
after the death of the presumed father. At the time of his death, both
children were still minors.
Moreover, in the earlier case Divinagracia v. Rovira,21 the Court said
that the rules on voluntary and compulsory acknowledgment of natural
children, as well as the prescriptive period for filing such action, may
likewise be applied to spurious children. Pertinent portions of the case
are quoted hereunder:
"The so-called spurious children, or illegitimate children other than
natural children, commonly known as bastards, include those
adulterous children or those born out of wedlock to a married woman
cohabiting with a man other than her husband or to a married man
cohabiting with a woman other than his wife. They are entitled to
support and successional rights. But their filiation must be duly proven.
"How should their filiation be proven? Article 289 of the Civil Code
allows the investigation of the paternity or maternity or spurious
children under the circumstances specified in articles 283 and 284 of

the Civil Code. The implication is that the rules on compulsory


recognition of natural children are applicable to spurious children.
"Spurious children should not be in a better position than natural
children. The rules on proof of filiation of natural children or the rules on
voluntary and compulsory acknowledgment for natural children may be
applied to spurious children.
"That does not mean that spurious children should be acknowledged,
as that term is used with respect to natural children. What is simply
meant is that the grounds or instances for the acknowledgment of
natural children are utilized to establish the filiation of spurious children.
"A spurious child may prove his filiation by means of a record of birth, a
will, a statement before a court of record, or in any authentic writing.
These are the modes of voluntary recognition of natural children.

Indeed, our overriding consideration is to protect the vested rights of


minors who could not have filed suit, on their own, during the lifetime of
their putative parents. As respondent aptly points out in his
Memorandum,24 the State as parens patriae should protect a minors
right. Born in 1981, Adrian was only seven years old when the Family
Code took effect and only twelve when his alleged father died in 1993.
The minor must be given his day in court.
Third Issue: Failure to Implead the CA
Under Section 4(a) of Rule 45 of the current Rules of Court, it is
no longer required to implead "the lower courts or judges x x x either as
petitioners or respondents." Under Section 3, however, the lower
tribunal should still be furnished a copy of the petition. Hence, the
failure of petitioner to implead the Court of Appeals as a party is not a
reversible error; it is in fact the correct procedure.

"In case there is no evidence on the voluntary recognition of the


spurious child, then his filiation may be established by means of the
circumstances or grounds for compulsory recognition prescribed in the
aforementioned articles 283 and 284.

WHEREFORE, the Petition is hereby DENIED and the assailed


Decision and Resolution AFFIRMED. Costs against petitioner.

"The prescriptive period for filing the action for compulsory recognition
in the case of natural children, as provided for in article 285 of the Civil
Code, applies to spurious children."22 (Citations omitted, italics supplied)

Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.


Vitug, J., no part. Relationship with family.

SO ORDERED.

G.R. No. 178902


Thus, under the Civil Code, natural children have superior successional
rights over spurious ones.23 However,Rovira treats them as equals with
respect to other rights, including the right to recognition granted by
Article 285.
To emphasize, illegitimate children who were still minors at the time the
Family Code took effect and whose putative parent died during their
minority are thus given the right to seek recognition (under Article 285
of the Civil Code) for a period of up to four years from attaining majority
age. This vested right was not impaired or taken away by the passage
of the Family Code.

April 21, 2010

MANUEL O. FUENTES and LETICIA L. FUENTES, Petitioners,


vs.
CONRADO G. ROCA, ANNABELLE R. JOSON, ROSE MARIE R.
CRISTOBAL and PILAR MALCAMPO,Respondents.
DECISION
ABAD, J.:

This case is about a husbands sale of conjugal real property,


employing a challenged affidavit of consent from an estranged wife.
The buyers claim valid consent, loss of right to declare nullity of sale,
and prescription.

Fuentes spouses. They then paid him the additional P140,000.00


mentioned in their agreement. A new title was issued in the name of the
spouses5 who immediately constructed a building on the lot. On
January 28, 1990 Tarciano passed away, followed by his wife Rosario
who died nine months afterwards.

The Facts and the Case


Sabina Tarroza owned a titled 358-square meter lot in Canelar,
Zamboanga City. On October 11, 1982 she sold it to her son, Tarciano
T. Roca (Tarciano) under a deed of absolute sale. 1 But Tarciano did not
for the meantime have the registered title transferred to his name.
Six years later in 1988, Tarciano offered to sell the lot to petitioners
Manuel and Leticia Fuentes (the Fuentes spouses). They arranged to
meet at the office of Atty. Romulo D. Plagata whom they asked to
prepare the documents of sale. They later signed an agreement to sell
that Atty. Plagata prepared 2 dated April 29, 1988, which agreement
expressly stated that it was to take effect in six months.
The agreement required the Fuentes spouses to pay Tarciano a down
payment of P60,000.00 for the transfer of the lots title to him. And,
within six months, Tarciano was to clear the lot of structures and
occupants and secure the consent of his estranged wife, Rosario
Gabriel Roca (Rosario), to the sale. Upon Tarcianos compliance with
these conditions, the Fuentes spouses were to take possession of the
lot and pay him an additional P140,000.00 or P160,000.00, depending
on whether or not he succeeded in demolishing the house standing on
it. If Tarciano was unable to comply with these conditions, the Fuentes
spouses would become owners of the lot without any further formality
and payment.
The parties left their signed agreement with Atty. Plagata who then
worked on the other requirements of the sale. According to the lawyer,
he went to see Rosario in one of his trips to Manila and had her sign an
affidavit of consent.3 As soon as Tarciano met the other conditions, Atty.
Plagata notarized Rosarios affidavit in Zamboanga City. On January
11, 1989 Tarciano executed a deed of absolute sale 4 in favor of the

Eight years later in 1997, the children of Tarciano and Rosario, namely,
respondents Conrado G. Roca, Annabelle R. Joson, and Rose Marie R.
Cristobal, together with Tarcianos sister, Pilar R. Malcampo,
represented by her son, John Paul M. Trinidad (collectively, the Rocas),
filed an action for annulment of sale and reconveyance of the land
against the Fuentes spouses before the Regional Trial Court (RTC) of
Zamboanga City in Civil Case 4707. The Rocas claimed that the sale to
the spouses was void since Tarcianos wife, Rosario, did not give her
consent to it. Her signature on the affidavit of consent had been forged.
They thus prayed that the property be reconveyed to them upon
reimbursement of the price that the Fuentes spouses paid Tarciano.6
The spouses denied the Rocas allegations. They presented Atty.
Plagata who testified that he personally saw Rosario sign the affidavit
at her residence in Paco, Manila, on September 15, 1988. He admitted,
however, that he notarized the document in Zamboanga City four
months later on January 11, 1989. 7 All the same, the Fuentes spouses
pointed out that the claim of forgery was personal to Rosario and she
alone could invoke it. Besides, the four-year prescriptive period for
nullifying the sale on ground of fraud had already lapsed.
Both the Rocas and the Fuentes spouses presented handwriting
experts at the trial. Comparing Rosarios standard signature on the
affidavit with those on various documents she signed, the Rocas expert
testified that the signatures were not written by the same person.
Making the same comparison, the spouses expert concluded that they
were.8
On February 1, 2005 the RTC rendered judgment, dismissing the case.
It ruled that the action had already prescribed since the ground cited by
the Rocas for annulling the sale, forgery or fraud, already prescribed

under Article 1391 of the Civil Code four years after its discovery. In this
case, the Rocas may be deemed to have notice of the fraud from the
date the deed of sale was registered with the Registry of Deeds and the
new title was issued. Here, the Rocas filed their action in 1997, almost
nine years after the title was issued to the Fuentes spouses on January
18, 1989.9
Moreover, the Rocas failed to present clear and convincing evidence of
the fraud. Mere variance in the signatures of Rosario was not
conclusive proof of forgery.10 The RTC ruled that, although the Rocas
presented a handwriting expert, the trial court could not be bound by
his opinion since the opposing expert witness contradicted the same.
Atty. Plagatas testimony remained technically unrebutted. 11

Considering, however, that the sale between the Fuentes spouses and
Tarciano was merely voidable, the CA held that its annulment entitled
the spouses to reimbursement of what they paid him plus legal interest
computed from the filing of the complaint until actual payment. Since
the Fuentes spouses were also builders in good faith, they were
entitled under Article 448 of the Civil Code to payment of the value of
the improvements they introduced on the lot. The CA did not award
damages in favor of the Rocas and deleted the award of attorneys fees
to the Fuentes spouses.13
Unsatisfied with the CA decision, the Fuentes spouses came to this
court by petition for review.14
The Issues Presented

Finally, the RTC noted that Atty. Plagatas defective notarization of the
affidavit of consent did not invalidate the sale. The law does not require
spousal consent to be on the deed of sale to be valid. Neither does the
irregularity vitiate Rosarios consent. She personally signed the affidavit
in the presence of Atty. Plagata.12
On appeal, the Court of Appeals (CA) reversed the RTC decision. The
CA found sufficient evidence of forgery and did not give credence to
Atty. Plagatas testimony that he saw Rosario sign the document in
Quezon City. Its jurat said differently. Also, upon comparing the
questioned signature with the specimen signatures, the CA noted
significant variance between them. That Tarciano and Rosario had
been living separately for 30 years since 1958 also reinforced the
conclusion that her signature had been forged.
Since Tarciano and Rosario were married in 1950, the CA concluded
that their property relations were governed by the Civil Code under
which an action for annulment of sale on the ground of lack of spousal
consent may be brought by the wife during the marriage within 10 years
from the transaction. Consequently, the action that the Rocas, her
heirs, brought in 1997 fell within 10 years of the January 11, 1989 sale.

The case presents the following issues:


1. Whether or not Rosarios signature on the document of consent to
her husband Tarcianos sale of their conjugal land to the Fuentes
spouses was forged;
2. Whether or not the Rocas action for the declaration of nullity of that
sale to the spouses already prescribed; and
3. Whether or not only Rosario, the wife whose consent was not had,
could bring the action to annul that sale.
The Courts Rulings
First. The key issue in this case is whether or not Rosarios signature
on the document of consent had been forged. For, if the signature were
genuine, the fact that she gave her consent to her husbands sale of
the conjugal land would render the other issues merely academic.
The CA found that Rosarios signature had been forged. The CA
observed a marked difference between her signature on the affidavit of
consent15 and her specimen signatures.16 The CA gave no weight to

Atty. Plagatas testimony that he saw Rosario sign the document in


Manila on September 15, 1988 since this clashed with his declaration in
the jurat that Rosario signed the affidavit in Zamboanga City on
January 11, 1989.
The Court agrees with the CAs observation that Rosarios signature
strokes on the affidavit appears heavy, deliberate, and forced. Her
specimen signatures, on the other hand, are consistently of a lighter
stroke and more fluid. The way the letters "R" and "s" were written is
also remarkably different. The variance is obvious even to the untrained
eye.
Significantly, Rosarios specimen signatures were made at about the
time that she signed the supposed affidavit of consent. They were,
therefore, reliable standards for comparison. The Fuentes spouses
presented no evidence that Rosario suffered from any illness or
disease that accounted for the variance in her signature when she
signed the affidavit of consent. Notably, Rosario had been living
separately from Tarciano for 30 years since 1958. And she resided so
far away in Manila. It would have been quite tempting for Tarciano to
just forge her signature and avoid the risk that she would not give her
consent to the sale or demand a stiff price for it.
What is more, Atty. Plagata admittedly falsified the jurat of the affidavit
of consent. That jurat declared that Rosario swore to the document and
signed it in Zamboanga City on January 11, 1989 when, as Atty.
Plagata testified, she supposedly signed it about four months earlier at
her residence in Paco, Manila on September 15, 1988. While a
defective notarization will merely strip the document of its public
character and reduce it to a private instrument, that falsified jurat, taken
together with the marks of forgery in the signature, dooms such
document as proof of Rosarios consent to the sale of the land. That the
Fuentes spouses honestly relied on the notarized affidavit as proof of
Rosarios consent does not matter. The sale is still void without an
authentic consent.

Second. Contrary to the ruling of the Court of Appeals, the law that
applies to this case is the Family Code, not the Civil Code. Although
Tarciano and Rosario got married in 1950, Tarciano sold the conjugal
property to the Fuentes spouses on January 11, 1989, a few months
after the Family Code took effect on August 3, 1988.
When Tarciano married Rosario, the Civil Code put in place the system
of conjugal partnership of gains on their property relations. While its
Article 165 made Tarciano the sole administrator of the conjugal
partnership, Article 16617 prohibited him from selling commonly owned
real property without his wifes consent. Still, if he sold the same
without his wifes consent, the sale is not void but merely voidable.
Article 173 gave Rosario the right to have the sale annulled during the
marriage within ten years from the date of the sale. Failing in that, she
or her heirs may demand, after dissolution of the marriage, only the
value of the property that Tarciano fraudulently sold. Thus:
Art. 173. The wife may, during the marriage, and within ten years from
the transaction questioned, ask the courts for the annulment of any
contract of the husband entered into without her consent, when such
consent is required, or any act or contract of the husband which tends
to defraud her or impair her interest in the conjugal partnership
property. Should the wife fail to exercise this right, she or her heirs,
after the dissolution of the marriage, may demand the value of property
fraudulently alienated by the husband.
But, as already stated, the Family Code took effect on August 3, 1988.
Its Chapter 4 on Conjugal Partnership of Gains expressly superseded
Title VI, Book I of the Civil Code on Property Relations Between
Husband and Wife.18 Further, the Family Code provisions were also
made to apply to already existing conjugal partnerships without
prejudice to vested rights.19 Thus:
Art. 105. x x x The provisions of this Chapter shall also apply to
conjugal partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to vested rights

already acquired in accordance with the Civil Code or other laws, as


provided in Article 256. (n)

Art. 1410. The action or defense for the declaration of the inexistence
of a contract does not prescribe.

Consequently, when Tarciano sold the conjugal lot to the Fuentes


spouses on January 11, 1989, the law that governed the disposal of
that lot was already the Family Code.

Here, the Rocas filed an action against the Fuentes spouses in 1997
for annulment of sale and reconveyance of the real property that
Tarciano sold without their mothers (his wifes) written consent. The
passage of time did not erode the right to bring such an action.

In contrast to Article 173 of the Civil Code, Article 124 of the Family
Code does not provide a period within which the wife who gave no
consent may assail her husbands sale of the real property. It simply
provides that without the other spouses written consent or a court
order allowing the sale, the same would be void. Article 124 thus
provides:

Besides, even assuming that it is the Civil Code that applies to the
transaction as the CA held, Article 173 provides that the wife may bring
an action for annulment of sale on the ground of lack of spousal
consent during the marriage within 10 years from the transaction.
Consequently, the action that the Rocas, her heirs, brought in 1997 fell
within 10 years of the January 11, 1989 sale. It did not yet prescribe.

Art. 124. x x x In the event that one spouse is incapacitated or


otherwise unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition
or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void. x x x

The Fuentes spouses of course argue that the RTC nullified the sale to
them based on fraud and that, therefore, the applicable prescriptive
period should be that which applies to fraudulent transactions, namely,
four years from its discovery. Since notice of the sale may be deemed
given to the Rocas when it was registered with the Registry of Deeds in
1989, their right of action already prescribed in 1993.

Under the provisions of the Civil Code governing contracts, a void or


inexistent contract has no force and effect from the very beginning. And
this rule applies to contracts that are declared void by positive provision
of law,20 as in the case of a sale of conjugal property without the other
spouses written consent. A void contract is equivalent to nothing and is
absolutely wanting in civil effects. It cannot be validated either by
ratification or prescription.21

But, if there had been a victim of fraud in this case, it would be the
Fuentes spouses in that they appeared to have agreed to buy the
property upon an honest belief that Rosarios written consent to the
sale was genuine. They had four years then from the time they learned
that her signature had been forged within which to file an action to
annul the sale and get back their money plus damages. They never
exercised the right.

But, although a void contract has no legal effects even if no action is


taken to set it aside, when any of its terms have been performed, an
action to declare its inexistence is necessary to allow restitution of what
has been given under it.22 This action, according to Article 1410 of the
Civil Code does not prescribe. Thus:

If, on the other hand, Rosario had agreed to sign the document of
consent upon a false representation that the property would go to their
children, not to strangers, and it turned out that this was not the case,
then she would have four years from the time she discovered the fraud
within which to file an action to declare the sale void. But that is not the
case here. Rosario was not a victim of fraud or misrepresentation. Her
consent was simply not obtained at all. She lost nothing since the sale

without her written consent was void. Ultimately, the Rocas ground for
annulment is not forgery but the lack of written consent of their mother
to the sale. The forgery is merely evidence of lack of consent.
Third. The Fuentes spouses point out that it was to Rosario, whose
consent was not obtained, that the law gave the right to bring an action
to declare void her husbands sale of conjugal land. But here, Rosario
died in 1990, the year after the sale. Does this mean that the right to
have the sale declared void is forever lost?
The answer is no. As stated above, that sale was void from the
beginning. Consequently, the land remained the property of Tarciano
and Rosario despite that sale. When the two died, they passed on the
ownership of the property to their heirs, namely, the Rocas. 23 As lawful
owners, the Rocas had the right, under Article 429 of the Civil Code, to
exclude any person from its enjoyment and disposal.1avvphi1
In fairness to the Fuentes spouses, however, they should be entitled,
among other things, to recover from Tarcianos heirs, the Rocas,
the P200,000.00 that they paid him, with legal interest until fully paid,
chargeable against his estate.
Further, the Fuentes spouses appear to have acted in good faith in
entering the land and building improvements on it. Atty. Plagata, whom
the parties mutually entrusted with closing and documenting the
transaction, represented that he got Rosarios signature on the affidavit
of consent. The Fuentes spouses had no reason to believe that the
lawyer had violated his commission and his oath. They had no way of
knowing that Rosario did not come to Zamboanga to give her consent.
There is no evidence that they had a premonition that the requirement
of consent presented some difficulty. Indeed, they willingly made a 30
percent down payment on the selling price months earlier on the
assurance that it was forthcoming.
Further, the notarized document appears to have comforted the
Fuentes spouses that everything was already in order when Tarciano
executed a deed of absolute sale in their favor on January 11, 1989. In

fact, they paid the balance due him. And, acting on the documents
submitted to it, the Register of Deeds of Zamboanga City issued a new
title in the names of the Fuentes spouses. It was only after all these
had passed that the spouses entered the property and built on it. He is
deemed a possessor in good faith, said Article 526 of the Civil Code,
who is not aware that there exists in his title or mode of acquisition any
flaw which invalidates it.
As possessor in good faith, the Fuentes spouses were under no
obligation to pay for their stay on the property prior to its legal
interruption by a final judgment against them. 24 What is more, they are
entitled under Article 448 to indemnity for the improvements they
introduced into the property with a right of retention until the
reimbursement is made. Thus:
Art. 448. The owner of the land on which anything has been built, sown
or planted in good faith, shall have the right to appropriate as his own
the works, sowing or planting, after payment of the indemnity provided
for in Articles 546 and 548, or to oblige the one who built or planted to
pay the price of the land, and the one who sowed, the proper rent.
However, the builder or planter cannot be obliged to buy the land if its
value is considerably more than that of the building or trees. In such
case, he shall pay reasonable rent, if the owner of the land does not
choose to appropriate the building or trees after proper indemnity. The
parties shall agree upon the terms of the lease and in case of
disagreement, the court shall fix the terms thereof. (361a)
The Rocas shall of course have the option, pursuant to Article 546 of
the Civil Code,25 of indemnifying the Fuentes spouses for the costs of
the improvements or paying the increase in value which the property
may have acquired by reason of such improvements.
WHEREFORE, the Court DENIES the petition and AFFIRMS WITH
MODIFICATION the decision of the Court of Appeals in CA-G.R. CV
00531 dated February 27, 2007 as follows:

1. The deed of sale dated January 11, 1989 that Tarciano T. Roca
executed in favor of Manuel O. Fuentes, married to Leticia L. Fuentes,
as well as the Transfer Certificate of Title T-90,981 that the Register of
Deeds of Zamboanga City issued in the names of the latter spouses
pursuant to that deed of sale are DECLARED void;
2. The Register of Deeds of Zamboanga City is DIRECTED to reinstate
Transfer Certificate of Title 3533 in the name of Tarciano T. Roca,
married to Rosario Gabriel;
3. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose Marie R.
Cristobal, and Pilar Malcampo are ORDERED to pay petitioner
spouses Manuel and Leticia Fuentes the P200,000.00 that the latter
paid Tarciano T. Roca, with legal interest from January 11, 1989 until
fully paid, chargeable against his estate;
4. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose Marie R.
Cristobal, and Pilar Malcampo are further ORDERED, at their option, to
indemnify petitioner spouses Manuel and Leticia Fuentes with their
expenses for introducing useful improvements on the subject land or
pay the increase in value which it may have acquired by reason of
those improvements, with the spouses entitled to the right of retention
of the land until the indemnity is made; and
5. The RTC of Zamboanga City from which this case originated is
DIRECTED to receive evidence and determine the amount of indemnity
to which petitioner spouses Manuel and Leticia Fuentes are entitled.

HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN


MARIATEGUI and PAULINA MARIATEGUI,respondents.
BIDIN, J.:
This is a petition for review on certiorari of the decision * of the Court of
Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled
"Jacinto Mariategui, et al. v. Maria del Rosario Mariategui, et al.,"
reversing the judgment of the then Court of First Instance of Rizal,
Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for
respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui
contracted three (3) marriages. With his first wife, Eusebia Montellano,
who died on November 8, 1904, he begot four (4) children, namely:
Baldomera, Maria del Rosario, Urbana and Ireneo. Baldomera died and
was survived by her children named Antero, Rufina, Catalino, Maria,
Gerardo, Virginia and Federico, all surnamed Espina. Ireneo also died
and left a son named Ruperto. With his second wife, Flaviana
Montellano, he begot a daughter named Cresenciana who was born on
May 8, 1910 (Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married
sometime in 1930. They had three children, namely: Jacinto, born on
July 3, 1929, Julian, born on February 16, 1931 and Paulina, born on
April 19, 1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid).

SO ORDERED.

G.R. No. L-57062 January 24, 1992

At the time of his death, Lupo Mariategui left certain properties which
he acquired when he was still unmarried (Brief for respondents, Rollo,
pp. 116; 4). These properties are described in the complaint as Lots
Nos. 163, 66, 1346 and 156 of the Muntinglupa Estate (Rollo, Annex
"A", p. 39).

MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners,


vs.

On December 2, 1967, Lupo's descendants by his first and second


marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia, all

ROBERTO
Associate Justice

A.

ABAD

surnamed Mariategui and Antero, Rufina, Catalino, Maria, Gerardo,


Virginia and Federico, all surnamed Espina, executed a deed of
extrajudicial partition whereby they adjudicated unto themselves Lot
No. 163 of the Muntinglupa Estate. Thereafter, Lot No. 163 was the
subject of a voluntary registration proceedings filed by the adjudicatees
under Act No. 496, and the land registration court issued a decree
ordering the registration of the lot. Thus, on April 1, 1971, OCT No.
8828 was issued in the name of the above-mentioned heirs.
Subsequently, the registered owners caused the subdivision of the said
lot into Lots Nos. 163-A to 163-H, for which separate transfer
certificates of title were issued to the respective parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with Felipa
Velasco (Jacinto, Julian and Paulina) filed with the lower court an
amended complaint claiming that Lot No. 163 together with Lots Nos.
669, 1346 and 154 were owned by their common father, Lupo
Mariategui, and that, with the adjudication of Lot No. 163 to their coheirs, they (children of the third marriage) were deprived of their
respective shares in the lots. Plaintiffs pray for partition of the estate of
their deceased father and annulment of the deed of extrajudicial
partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia
Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos were
impleaded in the complaint as unwilling defendants as they would not
like to join the suit as plaintiffs although they acknowledged the status
and rights of the plaintiffs and agreed to the partition of the parcels of
land as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record
on Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim
(Amended Record on Appeal, p. 13). Thereafter, they filed a motion to
dismiss on the grounds of lack of cause of action and prescription.
They specifically contended that the complaint was one for recognition
of natural children. On August 14, 1974, the motion to dismiss was
denied by the trial court, in an order the dispositive portion of which
reads:

It is therefore the opinion of the Court that Articles 278 and 285 of the
Civil Code cited by counsel for the defendants are of erroneous
application to this case. The motion to dismiss is therefore denied for
lack of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners'
counterclaim were dismissed by the trial court, in its decision stating
thus:
The plaintiffs' right to inherit depends upon the acknowledgment or
recognition of their continuous enjoyment and possession of status of
children of their supposed father. The evidence fails to sustain either
premise, and it is clear that this action cannot be sustained. (Ibid, Rollo,
pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the ground
that the trial court committed an error ". . . in not finding that the parents
of the appellants, Lupo Mariategui and Felipa Velasco (were) lawfully
married, and in holding (that) they (appellants) are not legitimate
children of their said parents, thereby divesting them of their inheritance
. . . " (Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a decision
declaring all the children and descendants of Lupo Mariategui,
including appellants Jacinto, Julian and Paulina (children of the third
marriage) as entitled to equal shares in the estate of Lupo Mariategui;
directing the adjudicatees in the extrajudicial partition of real properties
who eventually acquired transfer certificates of title thereto, to execute
deeds of reconveyance in favor, and for the shares, of Jacinto, Julian
and Paulina provided rights of innocent third persons are not prejudiced
otherwise the said adjudicatees shall reimburse the said heirs the fair
market value of their shares; and directing all the parties to submit to
the lower court a project of partition in the net estate of Lupo Mariategui
after payment of taxes, other government charges and outstanding
legal obligations.

The defendants-appellees filed a motion for reconsideration of said


decision but it was denied for lack of merit. Hence, this petition which
was given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or
not prescription barred private respondents' right to demand the
partition of the estate of Lupo Mariategui, and (b) whether or not the
private respondents, who belatedly filed the action for recognition, were
able to prove their successional rights over said estate. The resolution
of these issues hinges, however, on the resolution of the preliminary
matter, i.e., the nature of the complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the
children of the deceased spouses Lupo Mariategui . . . and Felipa
Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly
acknowledged and confirmed plaintiffs as his children and the latter, in
turn, have continuously enjoyed such status since their birth"; and "on
the basis of their relationship to the deceased Lupo Mariategui and in
accordance with the law on intestate succession, plaintiffs are entitled
to inherit shares in the foregoing estate (Record on Appeal, pp. 5 & 6).
It prayed, among others, that plaintiffs be declared as children and
heirs of Lupo Mariategui and adjudication in favor of plaintiffs their
lawful shares in the estate of the decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows
that the action is principally one of partition. The allegation with respect
to the status of the private respondents was raised only collaterally to
assert their rights in the estate of the deceased. Hence, the Court of
Appeals correctly adopted the settled rule that the nature of an action
filed in court is determined by the facts alleged in the complaint
constituting the cause of action (Republic vs. Estenzo, 158 SCRA 282
[1988]).
It has been held that, if the relief demanded is not the proper one which
may be granted under the law, it does not characterize or determine the
nature of plaintiffs' action, and the relief to which plaintiff is entitled
based on the facts alleged by him in his complaint, although it is not the

relief demanded, is what determines the nature of the action (1 Moran,


p. 127, 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for
partition of the estate of Lupo Mariategui, the Court of Appeals aptly
held that the private respondents are legitimate children of the
deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been lawfully
married in or about 1930. This fact is based on the declaration
communicated by Lupo Mariategui to Jacinto who testified that "when
(his) father was still living, he was able to mention to (him) that he and
(his) mother were able to get married before a Justice of the Peace of
Taguig, Rizal." The spouses deported themselves as husband and wife,
and were known in the community to be such. Although no marriage
certificate was introduced to this effect, no evidence was likewise
offered to controvert these facts. Moreover, the mere fact that no record
of the marriage exists does not invalidate the marriage, provided all
requisites for its validity are present (People vs. Borromeo, 133 SCRA
106 [1984]).
Under these circumstances, a marriage may be presumed to have
taken place between Lupo and Felipa. The laws presume that a man
and a woman, deporting themselves as husband and wife, have
entered into a lawful contract of marriage; that a child born in lawful
wedlock, there being no divorce, absolute or from bed and board is
legitimate; and that things have happened according to the ordinary
course of nature and the ordinary habits of life (Section 5 (z), (bb), (cc),
Rule 131, Rules of Court; Corpus v. Corpus, 85 SCRA 567 [1978];
Saurnaba v. Workmen's Compensation, 85 SCRA 502 [1978]; Alavado
v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court of
Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it is
founded on the following rationale:

The basis of human society throughout the civilized world is that of


marriage. Marriage in this jurisdiction is not only a civil contract, but it is
a new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any counterpresumption or
evidence special to that case, to be in fact married. The reason is that
such is the common order of society and if the parties were not what
they thus hold themselves out as being, they would be living in the
constant
violation
of
decency
and
of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in
Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband and
wife and such relationship is not denied nor contradicted, the
presumption of their being married must be admitted as a fact (Alavado
v. City Gov't. of Tacloban, supra).
The Civil Code provides for the manner under which legitimate filiation
may be proven. However, considering the effectivity of the Family Code
of the Philippines, the case at bar must be decided under a new if not
entirely dissimilar set of rules because the parties have been overtaken
by events, to use the popular phrase (Uyguangco vs. Court of Appeals,
G.R. No. 76873, October 26, 1989). Thus, under Title VI of the Family
Code, there are only two classes of children legitimate and
illegitimate. The fine distinctions among various types of illegitimate
children have been eliminated (Castro vs. Court of Appeals, 173 SCRA
656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate
children may be established by the record of birth appearing in the civil
register or a final judgment or by the open and continuous possession
of the status of a legitimate child.
Evidence on record proves the legitimate filiation of the private
respondents. Jacinto's birth certificate is a record of birth referred to in
the said article. Again, no evidence which tends to disprove facts

contained therein was adduced before the lower court. In the case of
the two other private respondents, Julian and Paulina, they may not
have presented in evidence any of the documents required by Article
172 but they continuously enjoyed the status of children of Lupo
Mariategui in the same manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be inconsequential
and lacking in substance as to certain dates and names of relatives
with whom their family resided, these are but minor details. The
nagging fact is that for a considerable length of time and despite the
death of Felipa in 1941, the private respondents and Lupo lived
together until Lupo's death in 1953. It should be noted that even the
trial court mentioned in its decision the admission made in the affidavit
of Cresenciana Mariategui Abas, one of the petitioners herein, that " . . .
Jacinto, Julian and Paulina Mariategui ay pawang mga kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that
private respondents are legitimate children and heirs of Lupo
Mariategui and therefore, the time limitation prescribed in Article 285 for
filing an action for recognition is inapplicable to this case. Corollarily,
prescription does not run against private respondents with respect to
the filing of the action for partition so long as the heirs for whose benefit
prescription is invoked, have not expressly or impliedly repudiated the
co-ownership. In other words, prescription of an action for partition
does not lie except when the co-ownership is properly repudiated by
the co-owner (Del Banco vs. Intermediate Appellate Court, 156 SCRA
55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share
of the other co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs. De Vega, 148
SCRA 342 [1987]). Furthermore, an action to demand partition is
imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156
SCRA 55 [1987]). On the other hand, an action for partition may be
seen to be at once an action for declaration of co-ownership and for

segregation and conveyance of a determinate portion of the property


involved (Roque vs. IAC, 165 SCRA 118 [1988]).
Petitioners contend that they have repudiated the co-ownership when
they executed the extrajudicial partition excluding the private
respondents and registered the properties in their own names (Petition,
p. 16; Rollo, p. 20). However, no valid repudiation was made by
petitioners to the prejudice of private respondents. Assuming
petitioners' registration of the subject lot in 1971 was an act of
repudiation of the co-ownership, prescription had not yet set in when
private respondents filed in 1973 the present action for partition (Ceniza
vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their
demands, petitioners, except the unwilling defendants in the lower
court, failed and refused to acknowledge and convey their lawful shares
in the estate of their father (Record on Appeal, p. 6). This allegation,
though denied by the petitioners in their answer (Ibid, p. 14), was never
successfully refuted by them. Put differently, in spite of petitioners'
undisputed knowledge of their relationship to private respondents who
are therefore their co-heirs, petitioners fraudulently withheld private
respondent's share in the estate of Lupo Mariategui. According to
respondent Jacinto, since 1962, he had been inquiring from petitioner
Maria del Rosario about their (respondents) share in the property left by
their deceased father and had been assured by the latter (Maria del
Rosario) not to worry because they will get some shares. As a matter of
fact, sometime in 1969, Jacinto constructed a house where he now
resides on Lot No. 163 without any complaint from petitioners.

made known to the other co-owners; (3) the evidence thereon is clear
and conclusive; and (4) he has been in possession through open,
continuous, exclusive, and notorious possession of the property for the
period required by law.
xxx xxx xxx
It is true that registration under the Torrens system is constructive
notice of title, but it has likewise been our holding that the Torrens title
does not furnish shield for fraud. It is therefore no argument to say that
the act of registration is equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-standing rule that registration
operates as a universal notice of title.
Inasmuch as petitioners registered the properties in their names in
fraud of their co-heirs prescription can only be deemed to have
commenced from the time private respondents discovered the
petitioners' act of defraudation (Adille vs. Court of Appeals, supra).
Hence, prescription definitely may not be invoked by petitioners
because private respondents commenced the instant action barely two
months after learning that petitioners had registered in their names the
lots involved.
WHEREFORE, the petition is DENIED and the assailed decision of the
Court of Appeals dated December 24, 1980 is Affirmed.
SO ORDERED.
Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur.

Petitioners' registration of the properties in their names in 1971 did not


operate as a valid repudiation of the co-ownership. In Adille vs. Court
of Appeals (157 SCRA 455, 461-462 [1988]), the Court held:
Prescription, as a mode of terminating a relation of co-ownership, must
have been preceded by repudiation (of the co-ownership). The act of
repudiation, in turn, is subject to certain conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act of repudiation is clearly

Panganiban

September 9, 1933

JOSE R. PAGANIBAN, complainant,


vs.
ELIAS BORROMEO, respondent.
MALCOLM, J.:

These proceedings looking to the disbarment of the respondent


attorney are before us on the representations of the Solicitor-General
that the respondent appear and show cause, if any he has, why he
should not be proceeded against for professional malpractice. The
respondent admits that, in his capacity as notary public he legalized the
document which is the basis of the complaint against him, and that the
document contains provisions contrary to law, morals and good
customs, but by way of defense disclaims any previous knowledge of
the illegal character of the document.
On November 25, 1931, Alejandro Pabro and Juana Mappala husband
and wife, subscribed a contract before the notary public Elias
Borromeo, who was at that time a regularly admitted member of the
Philippine Bar. The contract in question had been prepared by the
municipal secretary of Naguilian, Isabela. Attorney Borromeo
cooperated in the execution of the document and had, at lease, some
knowledge of its contents, although he may not have been fully
informed because of a difference in dialect. The contract in substance
purported to formulate an agreement between the husband and the
wife which permitted the husband to take unto himself a concubine and
the wife to live in adulterous relationship with another man, without
opposition from either one of them.
Two questions are suggested by the record. The first concerns the
points of whether or not the contract sanctioned an illicit and immoral
purpose. The second concerns the point, on the supposition that the
contract did sanction an illicit and immoral purpose, of whether a lawyer
may be disciplined for misconduct as a notary public.
The contract of the spouses, it will be recalled, was executed at a time
when the Spanish Penal Code, as modified by Act No. 1773 was in
force. Conceding, however, that the more liberal provisions of the
Revised Penal Code should be given application, it is herein provided
that the consent or pardon given by the offended party constitutes a bar
to prosecution for adultery or concubinage. In this instance, if the
spouses should retain their present frame of mind, no prosecution of
either one by the other could be expected. Nevertheless, we think it far

from the purpose of the Legislature to legalize adultery and


concubinage. They still remain crimes, with the qualification that
prosecution cannot be instituted if the offended party consent to the act
or pardon the offender. This is a matter of future contingency and is not
matter for legalization in wanton disregard of good morals. We hold the
contract to contain provisions contrary to law, morals and public order,
and as a consequence not judicially recognizable.
Passing to the second question, we think there can be no question as
to the right of the court to discipline an attorney who, in his capacity as
notary public, has been guilty of misconduct. To the office of notary
public there is not attached such importance under present conditions
as under the Spanish administration. Even so, the notary public
exercise duties calling for carefulness and faithfulness. It is for the
notary to inform himself of the facts to which he intends to certify, and
to take part in no illegal enterprise. The notary public is usually a
person who has been admitted to the practice of law, and such, in the
commingling of his duties as notary and lawyer, must be held
responsible for both. We are led to hold that a member of the bar who
performs an act as a notary public of a disgraceful or immoral character
may be held to account by the court even to the extent of disbarment.
(See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell
[1909], 115 N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In
re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2 Phil., 266; In
re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796;
De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating
circumstances, there may be taken into consideration (1) that the
attorney may not have realized the full purport of the document to
which he took acknowledgment, (2) that no falsification of facts was
attempted, and (3) that the commission of the respondent as a notary
public has been revoked. Accordingly, we are disposed in this case to
exercise clemency and to confine our discipline of the respondent to
severe censure. So ordered.

Avancea, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, and


Imperial, JJ., concur.
A.M. No. 804-CJ May 19, 1975
SATURNINO
vs.
ALEJANDRO
E.
City, respondent.

SELANOVA, complainant,
MENDOZA,

City

Judge

of

Mandaue

RESOLUTION

AQUINO, J.:+.wph!1
Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue
City with gross ignorance of the law for having prepared and ratified a
document dated November 21, 1972, extrajudicially liquidating the
conjugal partnership of the complainant and his wife, Avelina Ceniza.
One condition of the liquidation was that either spouse (as the case
may be) would withdraw the complaint for adultery or concubinage
which each had filed against the other and that they waived their "right
to prosecute each other for whatever acts of infidelity" either one would
commit against the other.
Judge Mendoza in his comment on the charge purposed to convey the
impression that he was aware of the invalidity of the agreement but he
nevertheless ratified it and gave it his nihil obstat on the assurance of
the spouses that they would ask the Court of First Instance of Negros
Oriental (where they were residing) to approve the agreement. That
pretension is disbelieved by the Judicial Consultant.
Respondent Judge alleged that he relied on the provision that "the
husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval" (Par. 4,
Art. 191, Civil Code).

He argues that to give the prohibition against an extrajudicial liquidation


of the conjugal partnership during the marriage "an unqualified and
literal legal construction" would lender nugatory the aforequoted
provisions of article 191. He cites Lacson vs. San Jose-Lacson, L23482, L-23767 and L-24259, August 30, 1968, 24 SCRA 837 as
authority for the propriety of an extrajudicial agreement for the
dissolution during the marriage of the conjugal partnership as long as
the agreement is subsequently approved by the court.
However, the respondent overlooks the unmistakable ruling of this
Court in the Lacson case that judicial sanction for the dissolution of the
conjugal
partnership
during
the
marriage
should
be
"secured beforehand."
Respondent Judge surmised that Selanova's complaint was instigated
by a lawyer whose case was adversely decided by the Judge. That
speculation was denied by Selanova who also belied Judge Mendoza's
version that the complainant and his wife, Avelina Ceniza, "together
with their parents", came to the office of Judge Mendoza and solicited
his help in the amicable settlement of their marital imbroglio.
According to Selanova, in 1972 his father was already dead and his
mother was ninety-one years old. They could not possibly have come
to Judge Mendoza's office. Selanova said that only he and his brotherin-law, Arcadio Ceniza, an alleged classmate of Judge Mendoza, were
the persons who went to the Judge's office. But that version may be
inaccurate and oversimplified, considering that the agreement was
signed before Judge Mendoza not only by Selanova but also by his
wife and two witnesses, Lamberts M. Ceniza and Florencio C. Pono.
Judge Mendoza retired on February 27, 1975 when he reached the age
of seventy. In his letter of April 8, 1975 he asked for a compassionate
view of his case considering his forty-three years' service in the
government (he started his public career in 1932 as a policeman and
became a justice of the peace in 1954). He also cited the financial
predicament of his big family occasioned by the delay in the payment of
his retirement and terminal leave pay.

The case was not referred to a Judge of the Court of First Instance for
investigation because actually no factual issues necessitate a hearing
and presentation of evidence. Respondent Judge admitted that he was
responsible for the execution of the questioned document, an
extrajudicial "Liquidation of Conjugal Properties", which he caused
complainant Saturnino Selanova and his wife, Avelina Ceniza, to sign.
In that instrument Judge Mendoza divided the two pieces of conjugal
assets of the spouses by allocating to the husband a thirteen-hectare
riceland and to the wife the residential house and lot. The last
paragraph of the instrument, which licensed either spouse to commit
any act of infidelity, was in effect a ratification of their personal
separation. The agreement in question is void because it contravenes
the following provisions of the Civil Code:t.hqw
ART. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extrajudicial agreement, during marriage, for the dissolution
of the conjugal partnership of gains or of the absolute community of
property between husband and wife;
xxx xxx xxx
Even before the enactment of the new Civil Code, this Court held that
the extrajudicial dissolution of the conjugal partnership without judicial
approval was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs.
Linatoc, 74 Phil. 15, De La Rosa vs. Barruga, L-2368, June 30, 1950, 4
ROP Digest 171, sec. 29).
On the other hand, disciplinary action had been taken against notaries
who authenticated agreements for the personal separation of spouses
wherein either spouse was permitted to commit acts of infidelity.
Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely
censured for having notarized a document containing "an agreement

between the husband and the wife which permitted the husband to take
unto himself a concubine and the wife to live in adulterous relationship
with another man, without opposition from either one of them". The
document was prepared by another person.
In that case this Court noted that while adultery and concubinage are
private crimes, "they still remain crimes" and a contract legalizing their
commission is "contrary to law, morals and public order, and as a
consequence not judicially recognizable". Since the notary's
commission was already revoked, this Court did not disbar him. The
fact that he "may not have realized the full purport of the document to
which he took acknowledgment' was considered mitigating.
Severe censure was also administered to a notary of Cebu City who
ratified a document entitled "Legal Separation", executed by husband
and wife, wherein they agreed that they separated mutually and
voluntarily, that they renounced their rights and obligations, and that
they authorized each other to remarry, renouncing any action to which
they might be entitled and each promising not to be a witness against
the other. Those covenants are contrary to law, morals and good
customs and tend to subvert the vital foundation of the legitimate family
(Biton vs. Momongon, 62 Phil. 7).
In the Santiago case respondent lawyer prepared for a married couple
(who had been separated for nine years) a document wherein it was
stipulated, inter alia, that they authorized each other to marry again, at
the same time renouncing whatever right of action one might have
against the other. When the husband inquired if there would be no
trouble, respondent lawyer pointed to his diploma which was hanging
on the wall and said: "I would tear that off if this document turns out not
to be valid." The husband remarried. The respondent was suspended
from the practice of law for one year for having been ignorant of the law
or being careless in giving legal advice (In reSantiago, 70 Phil. 66).
In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon
prepared an affidavit wherein he declared that he was married to
Vertudes Marquez, from whom he had been separated, their conjugal

partnership having been dissolved, and that he was consorting with


Regina S. Balinon his "new found life-partner," to whom he would
"remain loyal and faithful" "as a lawful and devoted loving husband for
the rest of" his life "at all costs". Attorney Justo T. Velayo notarized that
affidavit. This Court reprimanded Velayo and suspended De Leon from
the practice of law for three years.
In the instant case, respondent Judge, due to his unawareness of the
legal prohibition against contracts for the personal separation of
husband and wife and for the extrajudicial dissolution of their conjugal
partnership, prepared the said void agreement which was
acknowledged before him as "City Judge and Notary Public Ex-Officio".
(Because he was admitted to the bar in 1948 and, consequently, he did
not study the new Civil Code in the law school, he might not have been
cognizant of its aforecited article 221).
Taking into account that circumstance and his apparent good faith and
honest desire to terminate the marital conflict between the complainant
and his wife, we are of the opinion that a drastic penalty should not be
imposed on him. But he deserves a severe censure for his mistake in
preparing and notarizing the aforementioned immoral and illegal
agreement. Such severe reprimand should not be an obstacle to his
enjoyment of retirement privileges, assuming that there are no causes
for depriving him of such benefits.
WHEREFORE, the respondent is severely censured.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ.,
concur.1wph1.t

THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE


VICENTE DE LEON, respondents..
MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Court of
Appeals in CA-G.R. CV No. 06649 dated June 30, 1987 the decision of
the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December
29, 1983; and its resolution dated November 24, 1987 denying the
motion for reconsideration.
The antecedent facts are as follows:
On October 18, 1969, private respondent Jose Vicente De Leon and
petitioner Sylvia Lichauco De Leon were united in wedlock before the
Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child
named Susana L. De Leon was born from this union.
Sometime in October, 1972, a de facto separation between the
spouses occured due to irreconcilable marital differences, with Sylvia
leaving the conjugal home. Sometime in March, 1973, Sylvia went to
the United States where she obtained American citizenship.
On November 23, 1973, Sylvia filed with the Superior Court of
California, County of San Francisco, a petition for dissolution of
marriage against Jose Vicente. In the said divorce proceedings, Sylvia
also filed claims for support and distribution of properties. It appears,
however, that since Jose Vicente was then a Philippine resident and did
not have any assets in the United States, Sylvia chose to hold in
abeyance the divorce proceedings, and in the meantime, concentrated
her efforts to obtain some sort of property settlements with Jose
Vicente in the Philippines.

G.R. No. 80965 June 6, 1990


SYLVIA LICHAUCO DE LEON, petitioner,
vs.

Thus, on March 16, 1977, Sylvia succeeded in entering into a LetterAgreement with her mother-in-law, private respondent Macaria De
Leon, which We quote in full, as follows (pp. 40-42, Rollo):

March 16, 1977

D. 2470 Wexford Ave., South San Francisco, California,


U.S.A. (Lot 18 Block 22 Westborough Unit No. 2). (Fully
paid).

Mrs. Macaria Madrigal de Leon


12 Jacaranda, North Forbes Park
Makati, Metro Manila

E. 1) The sum of One Hundred Thousand Pesos


(P100,000)

Dear Dora Macaria:


2) $30,000
This letter represents a contractual undertaking among (A) the
undersigned (B) your son, Mr. Jose Vicente de Leon, represented by
you, and (C) yourself in your personal capacity.
You hereby bind yourself jointly and severally to answer for the
undertakings of Joe Vincent under this contract.
In consideration for a peaceful and amicable termination of relations
between the undersigned and her lawfully wedded husband, Jose
Vicente de Leon, your son, the following are agreed upon:
Obligations of Jose Vicente de Leon and/ or yourself in a joint and
several capacity:

3) $5,000
2. To give monthly support payable six (6) months in advance
every year to any designated assignee of the wife for the care
and upbringing of Susana Lichauco de Leon which is hereby
pegged at the exchange rate of 7.50 to the dollar subject to
adjustments in the event of monetary exchange fluctuations.
Subsequent increase on actual need upon negotiation.
3. To respect the custody of said minor daughter as pertaining
exclusively to the wife except as herein provided.
Obligations of the wife:

1. To deliver with clear title free from all liens and


encumbrances and subject to no claims in any form whatsoever
the following properties to Sylvia Lichauco-de Leon hereinafter
referred to as the wife:
A. Suite 11-C, Avalon Condominium, Ortigas Ave.,
corner Xavier St., Mandaluyong, Rizal, Philippines.
B. Apartment 702, Wack Wack
Mandaluyong, Rizal, Philippines.

Condominium,

C. The rights to assignment of 2 Ayala lots in Alabang,


Rizal (Corner lots, 801 s q. meters each). (Fully paid).

1. To agree to a judicial separation of property in accordance


with Philippine law and in this connection to do all that may be
necessary to secure said separation of property including her
approval in writing of a joint petition or consent decree.
2. To amend her complaint in the United States before the
Federal Court of California, U.S.A. entitled "Sylvia Lichauco de
Leon vs. Jose V. de Leon" in a manner compatible with the
objectives of this herein agreement. It is the stated objective of
this agreement that said divorce proceedings will continue.
3. All the properties herein described for assignment to the wife
must be assigned to Sylvia Lichauco de Leon upon the decree
of the Court of First Instance in the Joint Petition for Separation

of Property; except for the P100,000, $30,000 and $5,000


which will be paid immediately.
4. This contract is intended to be applicable both in the
Republic of the Philippines and in the United States of America.
It is agreed that this will constitute an actionable document in
both jurisdictions and the parties herein waive their right to
object to the use of this document in the event a legal issue
should arise relating to the validity of this document. In the
event of a dispute, this letter is subject to interpretation under
the laws of California, U.S.A.
5. To allow her daughter to spend two to three months each
year with the father upon mutual convenience.
Very truly yours,
(Sgd.)
Sylvia
de
CONFORME:
s/t/MACARIA
with
my
s/t/JUAN L. DE LEON

xxx xxx xxx


(c) The following properties shall be adjudicated to petitioner Sylvia
Lichauco De Leon. These properties will be free of any and all liens and
encumbrances, with clear title and subject to no claims by third parties.
Petitioner Jose Vicente De Leon fully assumes all responsibility and
liability in the event these properties shall not be as described in the
previous sentence:
Sedan (1972 model)
Suite
11-C,
Avalon
Ortigas
Ave.,
comer
Mandaluyong, Rizal, Philippines
Apt.
702,
Wack-Wack
Mandaluyong, Rizal, Philippines

Leon

t/

SYLVIA

M.

DE
marital

L.

DE

Condominium,
Xavier
St.,

Condominium,

LEON
LEON
consent:

On the same date, Macaria made cash payments to Sylvia in the


amount of P100,000 and US$35,000.00 or P280,000.00, in compliance
with her obligations as stipulated in the aforestated Letter-Agreement.
On March 30, 1977, Sylvia and Jose Vicente filed before the then Court
of First Instance of Rizal a joint petition for judicial approval of
dissolution of their conjugal partnership, the main part of which reads
as follows (pp. 37-38,Rollo):
5. For the best interest of each of them and of their minor child,
petitioners have agreed to dissolve their conjugal partnership and to
partition the assets thereof, under the following terms and conditionsthis document, a pleading being intended by them to embody and
evidence their agreement:

The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots,


801 sq. meters each) (Fully paid)
2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18,
Block 22 Westborough Unit 2) (Fully paid)
The sum of One Hundred Thousand Pesos (P100,000.00)
$30,000.00
at
current
$5,000.00 at current exchange rate

exchange

rate

After ex-parte hearings, the trial court issued an Order dated February
19, 1980 approving the petition, the dispositive portion of which reads
(p. 143, Rollo):
WHEREFORE, it is hereby declared that the conjugal partnership of the
Spouses is DISSOLVED henceforth, without prejudice to the terms of
their agreement that each spouse shall own, dispose of, possess,
administer and enjoy his or her separate estate, without the consent of

the other, and all earnings from any profession, business or industries
shall likewise belong to each spouse.
On March 17, 1980, Sylvia moved for the execution of the abovementioned order. However, Jose Vicente moved for a reconsideration
of the order alleging that Sylvia made a verbal reformation of the
petition as there was no such agreement for the payment of P4,500.00
monthly support to commence from the alleged date of separation in
April, 1973 and that there was no notice given to him that Sylvia would
attempt verbal reformation of the agreement contained in the joint
petition
While the said motion for reconsideration was pending resolution, on
April 20, 1980, Macaria filed with the trial court a motion for leave to
intervene alleging that she is the owner of the properties involved in the
case. The motion was granted. On October 29, 1980, Macaria, assisted
by her husband Juan De Leon, filed her complaint in intervention. She
assailed the validity and legality of the Letter-Agreement which had for
its purpose, according to her, the termination of marital relationship
between Sylvia and Jose Vicente. However, before any hearing could
be had, the judicial reorganization took place and the case was
transferred to the-Regional Trial Court of Pasig. On December 29,
1983, the trial court rendered judgment, the dispositive portion of which
reads (pp. 35-36, Rollo):
WHEREFORE, judgment is hereby rendered on the complaint in
intervention in favor of the intervenor, declaring null and void the letter
agreement dated March 16, 1977 (Exhibits 'E' to 'E-2'), and ordering
petitioner Sylvia Lichauco De Leon to restore to intervenor the amount
of P380,000.00 plus legal interest from date of complaint, and to pay
intervenor the amount of P100,000.00 as and for attorney's fees, and to
pay the costs of suit.
Judgment is likewise rendered affirming the order of the Court dated
February 19, 1980 declaring the conjugal partnership of the spouses
Jose Vicente De Leon and Sylvia Lichauco De Leon DISSOLVED; and
adjudicating to each of them his or her share of the properties and

assets of said conjugal partnership in accordance with the agreement


embodied in paragraph 5 of the petition, except insofar as the
adjudication to petitioner Sylvia L. De Leon of the properties belonging
to and owned by Intervenor Macaria De Leon is concerned.
Henceforth, (a) each spouse shall own, dispose of, possess, administer
and enjoy his or her separate estate, present and future without the
consent of the other; (b) an earnings from any profession, business or
industry shall likewise belong to each of them separately; (c) the minor
child Susana De Leon shall stay with petitioner Sylvia Lichauco De
Leon for two to three months every year-the transportation both ways of
the child for the trip to the Philippines to be at the expense of the
petitioner Jose Vicente De Leon; and (d) petitioner Jose Vicente De
Leon shall give petitioner Sylvia Lichauco De Leon the sum of
P4,500.00 as monthly support for the minor child Susana to commence
from February 19, 1980.
Sylvia appealed to the respondent Court of Appeals raising the
following errors:
1) The trial court erred in finding that the cause or consideration of the
Letter- Agreement is the termination of marital relations;
2) The trial court failed to appreciate testimonial and documentary
evidence proving that Macaria de Leon's claims of threat, intimidation
and mistake are baseless; and
3) The trial court erred in finding that Sylvia Lichauco de Leon
committed breach of the Letter-Agreement; and further, failed to
appreciate evidence proving Macaria de Leon's material breach
thereof.
The respondent court affirmed the decision in toto. The motion for
reconsideration was denied. Hence, the present petition.
The only basis by which Sylvia may lay claim to the properties which
are the subject matter of the Letter-Agreement, is the Letter-Agreement

itself. The main issue, therefore, is whether or not the Letter-Agreement


is valid. The third paragraph of the Letter-Agreement, supra, reads:
In consideration for a peaceful and amicable termination
of relations between the undersigned and her lawfully wedded
husband, Jose Vicente De Leon, your son, the following are agreed
upon: (emphasis supplied)
It is readily apparent that the use of the word "relations" is ambiguous,
perforce, it is subject to interpretation. There being a doubt as to the
meaning of this word taken by itself, a consideration of the general
scope and purpose of the instrument in which it occurs (see Germann
and Co. v. Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the
Civil Code which provides that the various stipulations of a contract
shall be interpreted together, attributing to the doubtful ones that sense
which may result from all of them taken jointly, is necessary.
Sylvia insists that the consideration for her execution of the LetterAgreement was the termination of property relations with her husband.
Indeed, Sylvia and Jose Vicente subsequently filed a joint petition for
judicial approval of the dissolution of their conjugal partnership,
sanctioned by Article 191 of the Civil Code. On the other hand, Macaria
and Jose Vicente assert that the consideration was the termination of
marital relationship.

wanted to peacefully and amicably terminate had intended to terminate


all kinds of relations, both marital and property. While there could be
inherent benefits to a termination of conjugal property relationship
between the spouses, the court could not clearly perceive the
underlying benefit for the intervenor insofar as termination of property
relationship between petitioners is concerned, unless the underlying
consideration for intervenor is the termination of marital relationship by
divorce proceedings between her son Jose Vicente and his wife
petitioner Sylvia. The last sentence of paragraph 2 under "Obligations
of the Wife" unequivocally states: "It is the stated objective of this
agreement that said divorce proceedings (in the United States) will
continue. "There is merit in concluding that the consideration by which
Intervenor executed Exhibit 'E' to 'E-2' was to secure freedom for her
son petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor,
which is (sic) agreement signed by petitioner Sylvia to consent to and
pardon Jose Vicente De Leon for adultery and concubinage (among
others) would be considered. In the light, therefore, of the foregoing
circumstances, this Court finds credible the testimony of intervenor as
follows:
Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting
of three pages and inform us whether or not this is the letter of March
16, 1977 which you just referred to?
A Yes, this is the letter.

We sustain the observations and conclusion made by the trial court, to


wit (pp. 44- 46, Rollo):
On page two of the letter agreement (Exhibit' E'), the parties
contemplated not only to agree to a judicial separation of property of
the spouses but likewise to continue with divorce proceedings
(paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If taken
with the apparently ambiguous provisions in Exhibit E' regarding
termination of 'relations', the parties clearly contemplated not only the
termination of property relationship but likewise of marital relationship
in its entirety. Furthermore, it would be safe to assume that the parties
in Exhibit 'E' not having specified the particular relationship which they

Why did you affix your signature to this Exh. 'E'-intervenor (sic)?
A Because at that time when I signed it I want to buy peace for myself
and for the whole family.
Q From whom did you want to buy peace and/or what kind of peace?
A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of
'matapang;' so I want peace for me and primarily for the peaceful and
amicable termination of marital relationship between my son, Joe

Vincent and Sylvia. (Deposition dated September 6, 1983-Macaria de


Leon, p. 6-7)
This Court, therefore, finds and holds that the cause or consideration
for the intervenor Macaria De Leon in having executed Exhibits 'E' to
'E-2' was the termination of the marital relationship between her son
Jose Vicente De Leon and Sylvia Lichauco de Leon.
Article 1306 of the New Civil Code provides:
Art. 1306. The contracting parties may establish such stipulations,
clauses, terms, and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order or
public policy.
If the stipulation is contrary to law, morals or public policy, the contract
is void and inexistent from the beginning.
Art. 1409. The following contracts are inexistent and void from the
beginning:
Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy;

From the foregoing provisions of the New Civil Code, this court is of the
considered opinion and so holds that intervenor's undertaking under
Exhibit 'E' premised on the termination of marital relationship is not only
contrary to law but contrary to Filipino morals and public Policy. As
such, any agreement or obligations based on such unlawful
consideration and which is contrary to public policy should be deemed
null and void. (emphasis supplied)
Additionally, Article 191 of the Civil Case contemplates properties
belonging to the spouses and not those belonging to a third party, who,
in the case at bar., is Macaria. In the petition for the dissolution of the
conjugal partnership, it was made to appear that the said properties are
conjugal in nature. However, Macaria was able to prove that the
questioned properties are owned by her. Neither Sylvia nor Jose
Vicente adduced any contrary evidence.
Granting, in gratia argumenti, that the consideration of the LetterAgreement was the termination of property relations, We agree with the
respondent court that (pp. 46-47, Rollo):
... the agreement nevertheless is void because it contravenes the
following provisions of the Civil Code:
Art. 221. The following shall be void and of no effect:

xxx xxx xxx


(1) Any contract for personal separation between husband and wife;
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up the
defense of illegality be waived.
But marriage is not a mere contract but a sacred social institution.
Thus, Art. 52 of the Civil Code provides:
Art. 52. Marriage is not a mere contract but an inviolable social
institution. Its nature, consequences and incidents are governed by law
and not subject to stipulations...

(2) Every extra-judicial agreement, during marriage, for the dissolution


of the conjugal partnership of gains or of the absolute community of
property between husband and wife;
Besides, the Letter-Agreement shows on its face that it was prepared
by Sylvia, and in this regard, the ambiguity in a contract is to be
taken contra proferentem, i.e., construed against the party who caused
the ambiguity and could have also avoided it by the exercise of a little
more care. Thus, Article 1377 of the Civil Code provides: "The
interpretation of obscure words of stipulations in a contract shall not

favor the party who caused the obscurity" (see Equitable Banking Corp.
vs. IAC, G.R. No. 74451, May 25, 1988, 161 SCRA 518).
Sylvia alleges further that since the nullity of the Letter-Agreement
proceeds from the unlawful consideration solely of Macaria, applying
the pari delicto rule, it is clear that she cannot recover what she has
given by reason of the Letter-Agreement nor ask for the fulfillment of
what has been promised her. On her part, Macaria raises the defenses
of intimidation and mistake which led her to execute the LetterAgreement. In resolving this issue, the trial court said (pp. 148151, Rollo):
In her second cause of action, intervenor claims that her signing of
Exhibits 'E' to 'E- 2' was due to a fear of an unpeaceful and
troublesome separation other son with petitioner Sylvia Lichauco de
Leon. In support of her claim, intervenor testified as follows:
Q Will you please inform us how did Sylvia Lichauco disturb or threaten
your son or yourself?
A Despite the fact that Sylvia Lichauco voluntarily left my son Joe
Vincent and abandoned him, she unashamedly nagged Joe and me to
get money and when her demands were not met she resorted to
threats like, she threatened to bring Joe to court for support. Sylvia
threatened to scandalize our family by these baseless suits; in fact she
caused the service of summons to Joe when he went to the United
States. (Intervenor's deposition dated Sept. 6, 1983, p. 8).
On the other hand, petitioner Sylvia claims that it was intervenor and
petitioner Jose Vicente who initiated the move to convince her to agree
to a dissolution of their conjugal partnership due to the alleged extramarital activities of petitioner Jose Vicente de Leon. She testified as
follows:
Q Now in her testimony, Macaria Madrigal de Leon also said that you
threatened her by demanding money and nagged her until she agreed
to the letter agreement of March 1977, what can you say about that?

A I think with all the people sitting around with Atty. Quisumbing, Atty.
Chuidian, my father-in-law, my sister-in-law and I, you know, it can be
shown that this was a friendly amicable settlement that they were much
really interested in settling down as I was. I think there were certain
reasons that they wanted to get done or planned, being at that time
Jose was already remarried and had a child. That since she then found
out that since she was worried about what might be, you know, involved
in any future matters. She just wanted to do what she could. She just
want me out of the picture. So in no way, it cannot be said that I nagged
and threatened her. (TSN dated December 8, 1983, p. 137-138)
In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor,
which was not controverted by petitioner Sylvia. A reading of Exhibit 'R'
would show that petitioner Sylvia would consent to and pardon
petitioner Jose Vicente, son of intervenor, for possible crimes of
adultery and/or concubinage, with a sizing attached; that is, the transfer
of the properties subject herein to her. There appears some truth to the
apprehensions of intervenor for in petitioner Sylvia's testimony she
confirms the worry of intervenor as follows:'... being at that time Jose
(De Leon) was already remarried and had a child. That since she
(intervenor) found out that, she was worried about what might be, you
know, involved in any future matters. She just want me out of the
picture." The aforesaid fear of intervenor was further corroborated by
her witness Concepcion Tagudin who testified as follows:
Q Now, you mentioned that you were present when Mrs. Macaria De
Leon signed this Exhibit 'E-2, ' will you inform us whether there was
anything unusual which you noticed when Mrs. Macaria M. De Leon
signed this Exhibit 'E-2'?
A Mrs. Macaria M. De Leon was in a state of tension and anger. She
was so mad that she remarked: 'Punetang Sylvia ito bakit ba niya ako
ginugulo. Ipakukulong daw niya si Joe Vincent kung hindi ko
pipirmahan ito. Sana matapos na itong problemang ito pagkapirmang
ito,' sabi niya.' (Deposition-Concepcion Tagudin, Oct. 21, 1983, pp. 1011)

In her third cause of action, intervenor claims mistake or error in having


signed Exhibits '1' to 'E-2' alleging in her testimony as follows:
Q Before you were told such by your lawyers what if any were your
basis to believe that Sylvia would no longer have inheritance rights
from your son, Joe Vincent?
A Well, that was what Sylvia told me. That she will eliminate any
inheritance rights from me or my son Joe Vincent's properties if I sign
the document amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp. 910).
On the other hand, petitioner Sylvia claims that intervenor could not
have been mistaken in her having signed the document as she was
under advice of counsel during the time that Exhibits 'E' to 'E-2' was
negotiated. To support such claims by Sylvia Lichauco De Leon, the
deposition testimony of Atty. Vicente Chuidian was presented before
this Court:
Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would
you be able to tell us in what capacity he was present in that
negotiation?
Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent,
the spouse of Sylvia. (Deposition of V. Chuidian, December 16, 1983,
p. 8)

The preponderance of evidence leans in favor of intervenor who even


utilized the statement of the divorce lawyer of petitioner Sylvia (Mr.
Penrod) in support of the fact that intervenor was mistaken in having
signed Exhibits 'E' to 'E-2' because when she signed said Exhibits she
believed that fact that petitioner Sylvia would eliminate her inheritance
rights and there is no showing that said intervenor was properly
advised by any American lawyer on the fact whether petitioner Sylvia,
being an American citizen, could rightfully do the same. Transcending,
however, the issue of whether there was mistake of fact on the part of
intervenor or not, this Court could not. see a valid cause or
consideration in favor of intervenor Macaria De Leon having signed
Exhibits 'E' to 'E-2.' For even if petitioner Sylvia had confirmed Mr.
Penrod's statement during the divorce proceedings in the United States
that she would undertake to eliminate her hereditary rights in the event
of the property settlement, under Philippine laws, such contract would
likewise be voidable, for under Art. 1347 of the New Civil Code 'no
contract may be entered into upon future inheritance.
We do not subscribe to the aforestated view of the trial court. Article
1335 of the Civil Code provides:
xxx xxx xxx
There is intimidation when one of the contracting parties is compelled
by a reasonable and well-grounded fear of an imminent and grave evil
upon his person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent.

The New Civil Code provides:


Art. 1330. A contract where consent is given through mistake, violence,
intimidation, undue influence or fraud is voidable.
Art. 1331. In order that mistake may invalidate consent, it should refer
to the substance of the thing which is the object of the contract, or to
those conditions which have principally moved one or both parties to
enter into a contract. ...

To determine the degree of the intimidation, the age, sex and condition
of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim
is just or legal, does not vitiate consent.
In order that intimidation may vitiate consent and render the contract
invalid, the following requisites must concur: (1) that the intimidation
must be the determining cause of the contract, or must have caused

the consent to be given; (2) that the threatened act be unjust or


unlawful; (3) that the threat be real and serious, there being an evident
disproportion between the evil and the resistance which all men can
offer, leading to the choice of the contract as the lesser evil; and (4) that
it produces a reasonable and well-grounded fear from the fact that the
person from whom it comes has the necessary means or ability to inflict
the threatened injury. Applying the foregoing to the present case, the
claim of Macaria that Sylvia threatened her to bring Jose Vicente to
court for support, to scandalize their family by baseless suits and that
Sylvia would pardon Jose Vicente for possible crimes of adultery and/or
concubinage subject to the transfer of certain properties to her, is
obviously not the intimidation referred to by law. With respect to
mistake as a vice of consent, neither is Macaria's alleged mistake in
having signed the Letter-Agreement because of her belief that Sylvia
will thereby eliminate inheritance rights from her and Jose Vicente, the
mistake referred to in Article 1331 of the Civil Code, supra. It does not
appear that the condition that Sylvia "will eliminate her inheritance
rights" principally moved Macaria to enter into the contract. Rather,
such condition was but an incident of the consideration thereof which,
as discussed earlier, is the termination of marital relations.

When money is paid or property delivered for an illegal purpose, the


contract may be repudiated by one of the parties before the purpose
has been accomplished, or before any damage has been caused to a
third person. In such case, the courts may, if the public interest wig thus
be subserved, allow the party repudiating the contract to recover the
money or property.

In the ultimate analysis, therefore, both parties acted in violation of the


laws. However, the pari delicto rule, expressed in the maxims "Ex dolo
malo non oritur actio" and "In pari delicto potior est conditio
defendentis," which refuses remedy to either party to an illegal
agreement and leaves them where they are, does not apply in this
case. Contrary to the ruling of the respondent Court that (pp. 4748, Rollo):

SO ORDERED.

... [C]onsequently, intervenor appellees' obligation under the said


agreement having been annulled, the contracting parties shall restore
to each other that things which have been subject matter of the
contract, their fruits and the price or its interest, except as provided by
law (Art. 1398, Civil Code).
Article 1414 of the Civil Code, which is an exception to the pari
delicto rule, is the proper law to be applied. It provides:

Since the Letter-Agreement was repudiated before the purpose has


been accomplished and to adhere to the pari delicto rule in this case is
to put a premium to the circumvention of the laws, positive relief should
be granted to Macaria. Justice would be served by allowing her to be
placed in the position in which she was before the transaction was
entered into.
With the conclusions thus reached, We find it unnecessary to discuss
the other issues raised.
ACCORDINGLY, the petition is hereby DENIED. The decision of the
respondent Court of Appeals dated June 30, 1987 and its resolution
dated November 24, 1987 are AFFIRMED.

Narvasa (Chairman), Cruz and Gancayco, JJ., concur.


Grio-Aquino, J., is on leave
A.M. No. P-94-1054

March 11, 2003

EDWIN A. ACEBEDO, petitioner,


vs.
EDDIE P. ARQUERO, respondent.
CARPIO MORALES, J.:

By letter-complaint1 dated June 1, 1994, Edwin A. Acebedo charged


Eddie P. Arquero, Process Server of the Municipal Trial Court (MTC) of
Brooke's Point, Palawan for immorality.
Complainant alleged that his wife, Dedje Irader Acebedo, a former
stenographer of the MTC Brooke's Point, and respondent unlawfully
and scandalously cohabited as husband and wife at Bancudo Pulot,
Brooke's Point, Palawan as a result of which a girl, Desiree May Irader
Arquero, was born to the two on May 21, 1989. Attached to the lettercomplaint was the girl's Baptismal Certificate 2 reflecting the names of
respondent and Dedje Irader as her parents. Also attached to the lettercomplaint was a copy of a marriage contract 3 showing that
complainant and Dedje Irader contracted marriage on July 10, 1979.
By Resolution of September 7, 1994, this Court required respondent to
file an answer to the complaint.4
By his Answer5 of October 6, 1994, respondent vehemently denied the
charge of immorality, claiming that it is "just a (sic) mere harassment
and a product of complainant's hatred and extreme jealousy to (sic) his
wife."6Attached to the answer were the September 27, 1987 affidavit of
desistance7 executed by complainant in favor of his wife with respect to
an administrative complaint he had much earlier filed against her, and
complainant's sworn statement8 dated September 13, 1994
acknowledging paternity of a child born out of wedlock, which
documents, respondent claims, support his contention that the
complaint filed against him is but a malicious scheme concocted by
complainant to harass him.
Additionally, respondent claimed that sometime in 1991, complainant
likewise instituted a criminal complaint against him for "adultery" which
was, however, dismissed after preliminary investigation.
Finally, respondent claimed that complainant himself had been
cohabiting with another woman.

By Resolution of February 6, 1995, this Court referred the case to then


Executive Judge Filomeno A. Vergara of the Regional Trial Court of
Puerto
Princesa,
Palawan
for
investigation,
report
and
9
recommendation. Judge Vergara having retired during the pendency of
the investigation, the case was referred to Executive Judge Nelia Y.
Fernandez who was, by Resolution of August 16, 2000, directed by this
Court to (1) verify the authenticity of the marriage certificate and
baptismal certificate submitted by complainant; (2) conduct an
investigation as to the information contained in the said baptismal
certificate and the circumstances under which it was issued, and such
other verifiable matters relevant to the charge; and (3) submit her report
and recommendation thereon.10
In her Investigation Report of February 12, 2001, Judge Fernandez
recommends that the complaint be dismissed for failure to adduce
adequate evidence to show that respondent is guilty of the
charge.11 The report focuses on the non-appearance of complainant
and Dedje Irader Acebedo, thusly:
xxx

xxx

xxx

Having appeared that the complainant Edwin Acebedo and Dedjie


Irader who per reliable information cannot be notified for reason that
subject persons are no longer residing in their given address and their
whereabouts is unknown as shown by the return of the subpoena dated
November 7, 2000, and the inadmissibility of the baptismal certificate
alleging therein that the father of Desiree Arquero is the respondent
herein, and for the reason that the same had not been testified to by
Dedje Irader who is the informant of the entries contained therein, this
Court had not received adequate proof or relevant evidence to support
a conclusion that respondent herein could be held liable of the charge
imputed against him, hence, he should be absolved from any liability.
xxx

xxx

xxx12 (Quoted verbatim).

By Resolution of April 25, 2001, this Court referred the case to the
Office of the Court Administrator (OCA) for evaluation, report and
recommendation.
By Memorandum of December 12, 2001, the OCA, disagreeing with the
recommendation of the Investigating Judge that the case should be
dismissed, recommends that respondent be held guilty of immorality
and that he be suspended from office for a period of one (1) year
without pay.13 Thus the OCA ratiocinates:
. . . [R]espondent admitted the fact that for eight (8) to nine (9)
months, he a single man maintained relations with Dedje Irader
Acebedo, wife of herein complainant, attended with "sexual union"
(TSN dated 23 November 2000, pp. 14-15). Based on his testimony, we
observed that respondent justified his having a relationship with
Dedje I. Acebedo solely on the written document purportedly a
"Kasunduan" or agreement entered into by complainant and his
wife, consenting to and giving freedom to either of them to seek
any partner and to live with him or her. Being a court employee
respondent should have known that said agreement was void despite it
having been notarized. Even granting that Dedjie I. Acebedo was
separated from her husband during their short lived relation, to hold on
to said scandalous agreement and enter an immoral relationship with a
very much married woman and a co-court employee at that is highly
improper. It is contrary to the Code of Conduct and Ethical Standards of
Public Officials and Employees which provides that public employees of
which respondent is one, . . . "shall at all times (sic) respect the rights of
others, and shall refrain from doing acts contrary to law, good morals,
good customs, public policy, public order, public safety and public
interest. Moreover, respondent cannot seek refuge and "sling mud" at
complainant for having executed an Affidavit dated September 13,
1994, acknowledging that he bore a woman other than his wife, a child.
It would seem that respondent would want to apply the principle of in
pari delicto in the instant case. Respondent would have it appear that a
married man with an extra-marital relation and an illegitimate child is
precluded from complaining if his wife enters into a relationship with
another man.

Second, the records show that an Affidavit of Desistance was executed


by herein complainant. However, a cursory reading of said document
reveals that it favors only Dedje Irader Acebedo and not herein
respondent. Interestingly, the date of said affidavit is 2 September
1987. Respondent had the temerity to claim it as evidence in his favor
when the instant complaint was only filed sometime in 1994.
Third, when respondent was asked by the investigating judge if he
attended the baptism of the daughter of Dedje Irader Acebedo, his
former co-employee and ex-intimate friend, he answered, "I did not. I'm
not sure the child is mine". From his answer, we could infer that
respondent did not categorically rule out the possibility that said child
might be her (sic) daughter, only that he is doubtful of her paternity.
xxx
original)

xxx

xxx14 (Emphasis supplied; underscoring in the

While the complainant appears to have lost interest in the prosecution


of the present case, the same does not ipso facto warrant its dismissal.
Once administrative charges have been filed, this Court may not be
divested of its jurisdiction to investigate and ascertain the truth
thereof.15 For it has an interest in the conduct of those in the service of
the Judiciary and in improving the delivery of justice to the people, and
its efforts in the direction may not be derailed by the complainant's
desistance from prosecuting the case he initiated.16
On the merits of the case, the entry of respondent's name as father in
the baptismal certificate of Desiree May I. Arquero cannot be used to
prove for her filiation and, therefore, cannot be availed of to imply that
respondent maintained illicit relations with Dedje Irader Acebedo. A
canonical certificate is conclusive proof only of the baptism
administered, in conformity with the rites of the Catholic Church by the
priest who baptized the child, but it does not prove the veracity of the
declarations and statements contained therein which concern the
relationship of the person baptized. 17 It merely attests to the fact which
gave rise to its issue, and the date thereof, to wit, the fact of the

administration of the sacrament on the date stated, but not the truth of
the statement therein as to the percentage of the child baptized.18
By respondent's own admission, however,
relationship with complainant's wife:

he

had

an illicit

Q:
During the formal offer of the possible nature of your testimony
before the Court by your counsel, did the Court get it correct that there
has been a short lived relation between you and Dedgie Irader, am I
correct in my impression?
A:
During that time that I have heard she and her husband have
parted ways already, I joking informed her that she is now being
separated, she is now single and is free to have some commitment.
So,I courted her and she accepted me, so we have a short lived
relation and after that we parted ways.
Q:
For how long was this short lived relation you made mention a
while ago?
A:

May be (sic) about eight (8) to nine (9) months.

Q:
When you said you have (sic) a short lived relationship from 8
to 9 months, you mean to tell the Court that you have (sic) a sexual
union with this woman?
A:

Yes ma'am.19 (Emphasis and underscoring supplied).

Respondent justified his pursuing a relationship with complainant's wife


with the spouses having priorly entered into a settlement with respect to
their marriage which was embodied in a "Kasunduan", the pertinent
portions of which are reproduced hereunder:
Kami, EDWIN AGUINALDO ACEBEDO at DEDJE IRADER ACEBEDO,
may sapat na taong gulang, mag-asawa, Pilipino, at kasalukuyang
nakatira sa Poblacion, Broke's (sic) Point, Palawan, ay malayang
nagkasundo ng mga sumusunod:

1. Na, yayamang hindi kami magkasundo bilang mag-asawa, at


magiging miserable lamang ang aming mga buhay kung aming
ipagpapatuloy pa ang aming pagsasama bilang mag-asawa, kami ay
malayang nagkasundo ngayon na maghiwalay na bilang mag-asawa,
at ang bawat isa sa amin ay may kalayaan na humanap na ng
kaniyang makakasama sa buhay bilang asawa at hindi kami
maghahabol sa isat isa sa alin pa mang hukuman;
xxx

xxx

xxx20 (Italics supplied)

Respondent's justification fails. Being an employee of the judiciary,


respondent ought to have known that theKasunduan had absolutely no
force and effect on the validity of the marriage between complainant
and his wife. Article 1 of the Family Code provides that marriage is "an
inviolable social institution whose nature, consequences, and incidents
are governed by law and not subject to stipulation." It is an institution
of public order or policy, governed by rules established by law which
cannot be made inoperative by the stipulation of the parties. 21
Republic Act 6713, otherwise known as the Code of Conduct and
Ethical Standards for Public Officials and Employees, enunciates the
State's policy of promoting a high standard of ethics and utmost
responsibility in the public service.22
Although every office in the government service is a public trust, no
position exacts a greater demand for moral righteousness and
uprightness from an individual than in the judiciary.23 That is why this
Court has firmly laid down exacting standards morality and decency
expected of those in the service of the judiciary.24 Their conduct, not to
mention behavior, is circumscribed with the heavy burden of
responsibility,25 characterized by, among other things, propriety and
decorum so as to earn and keep the public's respect and confidence in
the judicial service.26 It must be free from any whiff of impropriety, not
only with respect to their duties in the judicial branch but also to their
behaviour outside the court as private individuals.27 There is no
dichotomy of morality; court employees are also judged by their private
morals.28

Respondent's act of having illicit relations with complainant's wife is,


within the purview of Section 46(5) of Subtitle A, Title I, Book V of
Executive Order No. 292, otherwise known as the Administrative Code
of 1987, a disgraceful and immoral conduct.

SO ORDERED.

be held on balance are the states interest and the respondents


religious freedom. In this highly sensitive area of law, the task of
balancing between authority and liberty is most delicate because to the
person invoking religious freedom, the consequences of the case are
not only temporal. The task is not made easier by the American origin
of our religion clauses and the wealth of U.S. jurisprudence on these
clauses for in the United States, there is probably no more intensely
controverted area of constitutional interpretation than the religion
clauses.1 The U.S. Supreme Court itself has acknowledged that in this
constitutional area, there is "considerable internal inconsistency in the
opinions of the Court."2 As stated by a professor of law, "(i)t is by now
notorious that legal doctrines and judicial decisions in the area of
religious freedom are in serious disarray. In perhaps no other area of
constitutional law have confusion and inconsistency achieved such
undisputed sovereignty."3 Nevertheless, this thicket is the only path to
take to conquer the mountain of a legal problem the case at bar
presents. Both the penetrating and panoramic view this climb would
provide will largely chart the course of religious freedom in Philippine
jurisdiction. That the religious freedom question arose in an
administrative case involving only one person does not alter the
paramount importance of the question for the "constitution commands
the positive protection by government of religious freedom -not only for
a minority, however small- not only for a majority, however large- but for
each of us."4

Puno, Panganiban, Sandoval-Gutierrez and Corona, JJ ., concur.

I. Facts

Under Rule IV, Section 52A(15) of the Revised Uniform Rules on


Administrative Cases in the Civil Service, an immoral conduct is
classified as a grave offense which calls for a penalty of suspension for
six (6) months and one (1) day to one (1) year for the first offense, and
dismissal is imposed for the second offense.
Since the present charge of immorality against respondent constitutes
his first offense, his suspension for six (6) months and one (1) day is in
order.
WHEREFORE, this Court finds respondent Eddie P. Arquero, Process
Server of the Municipal Trial Court of Brooke's Point, Palawan, GUILTY
of immorality, for which he is hereby SUSPENDED for six (6) months
and one (1) day without pay with a STERN WARNING that commission
of the same or similar acts shall be dealt with severely.
Let a copy of this decision be filed in the personal record of respondent.

A.M. No. P-02-1651

August 4, 2003

ALEJANDRO ESTRADA, Complainant,


vs.
SOLEDAD S. ESCRITOR, Respondent.
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state. To

The facts of the case will determine whether respondent will prevail in
her plea of religious freedom. It is necessary therefore to lay down the
facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch
253, Regional Trial Court of Las Pias City, requesting for an
investigation of rumors that respondent Soledad Escritor, court
interpreter in said court, is living with a man not her husband. They
allegedly have a child of eighteen to twenty years old. Estrada is not

personally related either to Escritor or her partner and is a resident not


of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the
charge against Escritor as he believes that she is committing an
immoral act that tarnishes the image of the court, thus she should not
be allowed to remain employed therein as it might appear that the court
condones her act.5

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano


D. Quilapio, Jr., as my mate in marital relationship; that I have done all
within my ability to obtain legal recognition of this relationship by the
proper public authorities and that it is because of having been unable to
do so that I therefore make this public declaration pledging faithfulness
in this marital relationship.

Judge Caoibes referred the letter to Escritor who stated that "there is
no truth as to the veracity of the allegation" and challenged Estrada to
"appear in the open and prove his allegation in the proper
forum."6 Judge Caoibes set a preliminary conference on October 12,
2000. Escritor moved for the inhibition of Judge Caoibes from hearing
her case to avoid suspicion and bias as she previously filed an
administrative complaint against him and said case was still pending in
the Office of the Court Administrator (OCA). Escritors motion was
denied. The preliminary conference proceeded with both Estrada and
Escritor in attendance. Estrada confirmed that he filed the lettercomplaint for immorality against Escritor because in his frequent visits
to the Hall of Justice of Las Pias City, he learned from conversations
therein that Escritor was living with a man not her husband and that she
had an eighteen to twenty-year old son by this man. This prompted him
to write to Judge Caoibes as he believed that employees of the
judiciary should be respectable and Escritors live-in arrangement did
not command respect.7

I recognize this relationship as a binding tie before Jehovah God and


before all persons to be held to and honored in full accord with the
principles of Gods Word. I will continue to seek the means to obtain
legal recognition of this relationship by the civil authorities and if at any
future time a change in circumstances make this possible, I promise to
legalize this union.

Respondent Escritor testified that when she entered the judiciary in


1999,8 she was already a widow, her husband having died in
1998.9 She admitted that she has been living with Luciano Quilapio, Jr.
without the benefit of marriage for twenty years and that they have a
son. But as a member of the religious sect known as the Jehovahs
Witnesses and the Watch Tower and Bible Tract Society, their conjugal
arrangement is in conformity with their religious beliefs. In fact, after ten
years of living together, she executed on July 28, 1991 a "Declaration
of Pledging Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS

Signed this 28th day of July 1991.10


Escritors partner, Quilapio, executed a similar pledge on the same
day.11 Both pledges were executed in Atimonan, Quezon and signed by
three witnesses. At the time Escritor executed her pledge, her husband
was still alive but living with another woman. Quilapio was likewise
married at that time, but had been separated in fact from his wife.
During her testimony, Escritor volunteered to present members of her
congregation to confirm the truthfulness of their "Declarations of
Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and
considered her identification of her signature and the signature of
Quilapio sufficient authentication of the documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon
recommendation of Acting Court Administrator Zenaida N. Elepao,
directed Escritor to comment on the charge against her. In her
comment, Escritor reiterated her religious congregations approval of
her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she
reiterates to state with candor that there is no truth as to the veracity of

same allegation. Included herewith are documents denominated as


Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly
signed by both respondent and her mate in marital relationship with the
witnesses concurring their acceptance to the arrangement as approved
by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch.

Q: Now, insofar as the pre-marital relationship is concern (sic), can you


cite some particular rules and regulations in your congregation?

Same marital arrangement is recognized as a binding tie before


"JEHOVAH" God and before all persons to be held to and honored in
full accord with the principles of Gods Word.

Q: What is that document?

xxx

Q: What are the relations of the document Declaration of Pledge of


faithfulness, who are suppose (sic) to execute this document?

xxx

xxx

Undersigned submits to the just, humane and fair discretion of the


Court with verification from the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch . . . to which undersigned believes to be a
high authority in relation to her case.13
Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Pias City for investigation, report and
recommendation. In the course of Judge Macedas investigation,
Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain
the basis of her congregations belief and practice regarding her
conjugal arrangement. Escritor started living with Quilapio twenty years
ago when her husband was still alive but living with another woman.
She met this woman who confirmed to her that she was living with her
(Escritors) husband.14
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985,
also testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a "Declaration of
Pledging Faithfulness", viz:

A: Well, we of course, talk to the persons with regards (sic) to all the
parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.

A: Declaration of Pledge of faithfulness.

A: This must be signed, the document must be signed by the elders of


the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this
document?
A: Actually, sir, the signing of that document, ah, with the couple has
consent to marital relationship (sic) gives the Christian Congregation
view that the couple has put themselves on record before God and man
that they are faithful to each other. As if that relation is validated by
God.
Q: From your explanation, Minister, do you consider it a pledge or a
document between the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic)
pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one
who contracted with the opposite member of my congregation, opposite

sex, and that this document will give us the right to a marital
relationship.
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?

Escritor and Quilapios declarations are recorded in the Watch Tower


Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted
from the article, "Maintaining Marriage in Honor Before God and
Men," 16 in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.

A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living
under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved
as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in the
Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of
the Bible, Jesus said "that everyone divorcing his wife, except on
account of fornication, makes her a subject for adultery, and whoever
marries a divorced woman commits adultery.15
Escritor and Quilapio transferred to Salazars Congregation, the
Almanza Congregation in Las Pias, in May 2001. The declarations
having been executed in Atimonan, Quezon in 1991, Salazar had no
personal knowledge of the personal circumstances of Escritor and
Quilapio when they executed their declarations. However, when the two
transferred to Almanza, Salazar inquired about their status from the
Atimonan Congregation, gathered comments of the elders therein, and
requested a copy of their declarations. The Almanza Congregation
assumed that the personal circumstances of the couple had been
considered by the Atimonan Congregation when they executed their
declarations.

The declaration requires the approval of the elders of the Jehovahs


Witnesses congregation and is binding within the congregation all over
the world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed,
the couple cannot secure the civil authorities approval of the marital
relationship because of legal impediments. It is thus standard practice
of the congregation to check the couples marital status before giving
imprimatur to the conjugal arrangement. The execution of the
declaration finds scriptural basis in Matthew 5:32 that when the spouse
commits adultery, the offended spouse can remarry. The marital status
of the declarants and their respective spouses commission of adultery
are investigated before the declarations are executed. Thus, in the
case of Escritor, it is presumed that the Atimonan Congregation
conducted an investigation on her marital status before the declaration
was approved and the declaration is valid everywhere, including the
Almanza Congregation. That Escritors and Quilapios declarations
were approved are shown by the signatures of three witnesses, the
elders in the Atimonan Congregation. Salazar confirmed from the
congregations branch office that these three witnesses are elders in
the Atimonan Congregation. Although in 1998 Escritor was widowed,
thereby lifting the legal impediment to marry on her part, her mate is
still not capacitated to remarry. Thus, their declarations remain valid.
Once all legal impediments for both are lifted, the couple can already
register their marriage with the civil authorities and the validity of the
declarations ceases. The elders in the congregations can then
solemnize their marriage as authorized by Philippine law. In sum,
therefore, insofar as the congregation is concerned, there is nothing
immoral about the conjugal arrangement between Escritor and Quilapio
and they remain members in good standing in the congregation.17

Salvador Reyes, a minister at the General de Leon, Valenzuela City


Congregation of the Jehovahs Witnesses since 1974 and member of
the headquarters of the Watch Tower Bible and Tract Society of the
Philippines, Inc., presented the original copy of the magazine article
entitled, "Maintaining Marriage Before God and Men" to which Escritor
and Minister Salazar referred in their testimonies. The article appeared
in the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower
Bible and Tract Society of the Philippines, Inc., authorized Reyes to
represent him in authenticating the article. The article is distributed to
the Jehovahs Witnesses congregations which also distribute them to
the public.18
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and
binding in their own religious congregation, the Jehovahs Witnesses.
Complainant Estrada adds however, that the effect of the relationship to
Escritors administrative liability must likewise be determined. Estrada
argued, through counsel, that the Declaration of Pledging Faithfulness
recognizes the supremacy of the "proper public authorities" such that
she bound herself "to seek means to . . . legalize their union." Thus,
even assuming arguendo that the declaration is valid and binding in her
congregation, it is binding only to her co-members in the congregation
and serves only the internal purpose of displaying to the rest of the
congregation that she and her mate are a respectable and morally
upright couple. Their religious belief and practice, however, cannot
override the norms of conduct required by law for government
employees. To rule otherwise would create a dangerous precedent as
those who cannot legalize their live-in relationship can simply join the
Jehovahs Witnesses congregation and use their religion as a defense
against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice of
her religion, the Jehovahs Witnesses. She quoted portions of the

magazine article entitled, "Maintaining Marriage Before God and Men,"


in her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2")
executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovahs Witnesses admit and
recognize (sic) the supremacy of the proper public authorities in the
marriage arrangement. However, it is helpful to understand the relative
nature of Caesars authority regarding marriage. From country to
country, marriage and divorce legislation presents a multitude of
different angles and aspects. Rather than becoming entangled in a
confusion of technicalities, the Christian, or the one desiring to become
a disciple of Gods Son, can be guided by basic Scriptural principles
that hold true in all cases.
Gods view is of first concern. So, first of all the person must consider
whether that ones present relationship, or the relationship into which
he or she contemplates entering, is one that could meet with Gods
approval, or whether in itself, it violates the standards of Gods Word.
Take, for example, the situation where a man lives with a wife but also
spends time living with another woman as a concubine. As long as
such a state of concubinage prevails, the relationship of the second
woman can never be harmonized with Christian principles, nor could
any declaration on the part of the woman or the man make it so. The
only right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of ones immediate family, or a
homosexual relationship or other such situation condemned by Gods
Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural and
hence, immoral. Hence, a person involved in such a situation could not
make any kind of "Declaration of Faithfulness," since it would have no
merit in Gods eyes.
If the relationship is such that it can have Gods approval, then, a
second principle to consider is that one should do all one can to
establish the honorableness of ones marital union in the eyes of all.
(Heb. 13:4). If divorce is possible, then such step should now be taken

so that, having obtained the divorce (on whatever legal grounds may be
available), the present union can receive civil validation as a
recognized marriage.
Finally, if the marital relationship is not one out of harmony with the
principles of Gods Word, and if one has done all that can reasonably
be done to have it recognized by civil authorities and has been blocked
in doing so, then, a Declaration Pledging Faithfulness can be signed. In
some cases, as has been noted, the extreme slowness of official action
may make accomplishing of legal steps a matter of many, many years
of effort. Or it may be that the costs represent a crushingly heavy
burden that the individual would need years to be able to meet. In such
cases, the declaration pledging faithfulness will provide the
congregation with the basis for viewing the existing union as honorable
while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a
Minister of Jehovah God, should be able to approach the matter in a
balanced way, neither underestimating nor overestimating the
validation offered by the political state. She always gives primary
concern to Gods view of the union. Along with this, every effort should
be made to set a fine example of faithfulness and devotion to ones
mate, thus, keeping the marriage "honorable among all." Such course
will bring Gods blessing and result to the honor and praise of the
author of marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that
complainants
Memorandum
came
from
Judge
Caoibes
chambers21 whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritors factual allegations credible as they were supported by
testimonial and documentary evidence. He also noted that "(b)y strict
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: that which is
willful, flagrant, or shameless, and which shows a moral indifference to

the opinion of the good and respectable members of the community (7


C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed
out, however, that "the more relevant question is whether or not to
exact from respondent Escritor, a member of Jehovahs Witnesses,
the strict moral standards of the Catholic faith in determining her
administrative responsibility in the case at bar." 22 The investigating
judge acknowledged that "religious freedom is a fundamental right
which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his
Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M.
Fernandos separate opinion in German vs. Barangan, 135 SCRA 514,
530-531)" and thereby recommended the dismissal of the complaint
against Escritor.23
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge
Maceda but departed from his recommendation to dismiss the
complaint. DCA Lock stressed that although Escritor had become
capacitated to marry by the time she joined the judiciary as her
husband had died a year before, "it is due to her relationship with a
married man, voluntarily carried on, that respondent may still be subject
to disciplinary action."24 Considering the ruling of the Court in Dicdican
v. Fernan, et al.25 that "court personnel have been enjoined to adhere to
the exacting standards of morality and decency in their professional
and private conduct in order to preserve the good name and integrity of
the court of justice," DCA Lock found Escritors defense of freedom of
religion unavailing to warrant dismissal of the charge of immorality.
Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months
and one day without pay with a warning that a repetition of a similar act
will be dealt with more severely in accordance with the Civil Service
Rules.26
II. Issue

Whether or not respondent should be found guilty of the administrative


charge of "gross and immoral conduct." To resolve this issue, it is
necessary to determine the sub-issue of whether or not respondents
right to religious freedom should carve out an exception from the
prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct"
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in
the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx

xxx

xxx

(5) Disgraceful and immoral conduct; xxx.


Not represented by counsel, respondent, in laymans terms, invokes
the religious beliefs and practices and moral standards of her religion,
the Jehovahs Witnesses, in asserting that her conjugal arrangement
with a man not her legal husband does not constitute disgraceful and
immoral conduct for which she should be held administratively liable.
While not articulated by respondent, she invokes religious freedom
under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required
for the exercise of civil or political rights.

IV. Old World Antecedents of the American Religion Clauses


To understand the life that the religion clauses have taken, it would be
well to understand not only its birth in the United States, but its
conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience. 27 This
fresh look at the religion clauses is proper in deciding this case of first
impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was
marked by religious ceremonies. Tribal society survived because
religious sanctions effectively elicited adherence to social customs. A
person who broke a custom violated a taboo which would then bring
upon him "the wrathful vengeance of a superhuman mysterious
power."28 Distinction between the religious and non-religious would thus
have been meaningless to him. He sought protection from all kinds of
evil - whether a wild beast or tribe enemy and lightning or wind - from
the same person. The head of the clan or the Old Man of the tribe or
the king protected his wards against both human and superhuman
enemies. In time, the king not only interceded for his people with the
divine powers, but he himself was looked upon as a divine being and
his laws as divine decrees.29
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated
from the responsibility of leading the tribe in war and policing it in peace
as to require the full-time services of a special priest class. This saw
the birth of the social and communal problem of the competing claims
of the king and priest. Nevertheless, from the beginning, the king and
not the priest was superior. The head of the tribe was the warrior, and
although he also performed priestly functions, he carried out these
functions because he was the head and representative of the
community.30

There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man
and man promulgated laws concerning mans obligations to the
supernatural. This authority was the king who was the head of the state
and the source of all law and who only delegated performance of rituals
and sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes;
regulated the fees of surgeons and the wages of masons and tailors
and prescribed rules for inheritance of property; 31 and also catalogued
the gods and assigned them their places in the divine hierarchy so as
to put Hammurabis own god to a position of equality with existing
gods.32 In sum, the relationship of religion to the state (king) in preHebreic times may be characterized as a union of the two forces, with
the state almost universally the dominant partner.33
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion:
theocracy. The authority and power of the state was ascribed to
God.34 The Mosaic creed was not merely regarded as the religion of the
state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of
God, Moses decided when the people should travel and when to pitch
camp, when they should make war and when peace. Saul and David
were made kings by the prophet Samuel, disciple of Eli the priest. Like
the Code of Hammurabi, the Mosaic code combined civil laws with
religious mandates, but unlike the Hammurabi Code, religious laws
were not of secondary importance. On the contrary, religious motivation
was primary and all-embracing: sacrifices were made and Israel was
prohibited from exacting usury, mistreating aliens or using false
weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used
religion as an engine to advance the purposes of the state. Hammurabi
unified Mesopotamia and established Babylon as its capital by
elevating its city-god to a primary position over the previous reigning
gods.35 Moses, on the other hand, capitalized on the natural yearnings
of the Hebrew slaves for freedom and independence to further Gods

purposes. Liberation and Exodus were preludes to Sinai and the receipt
of the Divine Law. The conquest of Canaan was a preparation for the
building of the temple and the full worship of God.36
Upon the monotheism of Moses was the theocracy of Israel founded.
This monotheism, more than anything else, charted not only the future
of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is
acknowledged by many writers, among whom is Northcott who pointed
out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion. Ancient religions
were regarded as confined to each separate people believing in them,
and the question of change from one religious belief to another did not
arise. It was not until an exclusive fellowship, that the questions of
proselytism, change of belief and liberty of religion arose. 37 (emphasis
supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel.
In this period, religion was not only superior to the state, but it was all of
the state. The Law of God as transmitted through Moses and his
successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from
Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay
Samuel the prophet of God.38 Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to
further the states purposes. He reformed the order of priesthood
established by Moses because the high priest under that order
endorsed the claim of his rival to the throne.39
The subordination of religion to the state was also true in pre-Christian
Rome which engaged in emperor-worship. When Augustus became

head of the Roman state and the priestly hierarchy, he placed religion
at a high esteem as part of a political plan to establish the real religion
of pre-Christian Rome - the worship of the head of the state. He set his
great uncle Julius Caesar among the gods, and commanded that
worship of Divine Julius should not be less than worship of Apollo,
Jupiter and other gods. When Augustus died, he also joined the ranks
of the gods, as other emperors before him.40

enacted "that every person who cherishes the desire to observe the
Christian religion shall freely and unconditionally proceed to observe
the same without let or hindrance." Furthermore, it was provided that
the "same free and open power to follow their own religion or worship is
granted also to others, in accordance with the tranquillity of our times,
in order that every person may have free opportunity to worship the
object of his choice."(emphasis supplied)44

The onset of Christianity, however, posed a difficulty to the emperor as


the Christians dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the
death of Jesus, Christians were subjected to persecution. By the time
of the emperor Trajan, Christians were considered outlaws. Their crime
was "hatred of the human race", placing them in the same category as
pirates and brigands and other "enemies of mankind" who were subject
to summary punishments.41

Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion
became an engine of state policy as Constantine considered
Christianity a means of unifying his complex empire. Within seven
years after the Edict of Milan, under the emperors command, great
Christian edifices were erected, the clergy were freed from public
burdens others had to bear, and private heathen sacrifices were
forbidden.

In 284, Diocletian became emperor and sought to reorganize the


empire and make its administration more efficient. But the closely-knit
hierarchically controlled church presented a serious problem, being a
state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an
alliance with it and procure political control over it. He opted for force
and revived the persecution, destroyed the churches, confiscated
sacred books, imprisoned the clergy and by torture forced them to
sacrifice.42 But his efforts proved futile.

The favors granted to Christianity came at a price: state interference in


religious affairs. Constantine and his successors called and dismissed
church councils, and enforced unity of belief and practice. Until recently
the church had been the victim of persecution and repression, but this
time it welcomed the states persecution and repression of the
nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.

The later emperor, Constantine, took the second option of alliance.


Constantine joined with Galerius and Licinius, his two co-rulers of the
empire, in issuing an edict of toleration to Christians "on condition that
nothing is done by them contrary to discipline." 43 A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the
history of religious liberty. It provided "that liberty of worship shall not be
denied to any, but that the mind and will of every individual shall be
free to manage divine affairs according to his own choice." (emphasis
supplied) Thus, all restrictive statutes were abrogated and it was

Both in theory as in practice, the partnership between church and state


was not easy. It was a constant struggle of one claiming dominance
over the other. In time, however, after the collapse and disintegration of
the Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood as
the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leos crowning of
Charlemagne, became the churchs accepted principle of its
relationship to the state in the Middle Ages. As viewed by the church,
the union of church and state was now a union of the state in the
church. The rulers of the states did not concede to this claim of

supremacy. Thus, while Charlemagne received his crown from the


Pope, he himself crowned his own son as successor to nullify the
inference of supremacy.45 The whole history of medieval Europe was a
struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about
the second quarter of the 13th century, the Inquisition was established,
the purpose of which was the discovery and extermination of heresy.
Accused heretics were tortured with the approval of the church in the
bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in
the establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty
and its acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate
to say that the "same causes that gave rise to the Protestant revolution
also resulted in the widespread acceptance of the principle of religious
liberty, and ultimately of the principle of separation of church and
state."46 Pleas for tolerance and freedom of conscience can without
doubt be found in the writings of leaders of the Reformation. But just as
Protestants living in the countries of papists pleaded for toleration of
religion, so did the papists that lived where Protestants were
dominant.47Papist and Protestant governments alike accepted the idea
of cooperation between church and state and regarded as essential to
national unity the uniformity of at least the outward manifestations of
religion.48 Certainly, Luther, leader of the Reformation, stated that
"neither pope, nor bishop, nor any man whatever has the right of
making one syllable binding on a Christian man, unless it be done with
his own consent."49 But when the tables had turned and he was no
longer the hunted heretic, he likewise stated when he made an alliance
with the secular powers that "(h)eretics are not to be disputed with, but
to be condemned unheard, and whilst they perish by fire, the faithful
ought to pursue the evil to its source, and bathe their hands in the
blood of the Catholic bishops, and of the Pope, who is a devil in
disguise."50 To Luther, unity among the peoples in the interests of the
state was an important consideration. Other personalities in the

Reformation such as Melanchton, Zwingli and Calvin strongly espoused


theocracy or the use of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made absence from the
sermon a crime, he included criticism of the clergy in the crime of
blasphemy punishable by death, and to eliminate heresy, he
cooperated in the Inquisition.51
There were, however, those who truly advocated religious liberty.
Erasmus, who belonged to the Renaissance than the Reformation,
wrote that "(t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and
burnings, all these things I can see accomplish nothing except to make
the evil more widespread." 52 The minority or dissident sects also
ardently advocated religious liberty. The Anabaptists, persecuted and
despised, along with the Socinians (Unitarians) and the Friends of the
Quakers founded by George Fox in the 17th century, endorsed the
supremacy and freedom of the individual conscience. They regarded
religion as outside the realm of political governments. 53 The English
Baptists proclaimed that the "magistrate is not to meddle with religion or
matters of conscience, nor compel men to this or that form of religion." 54
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine
of state policy as demonstrated by Luthers belief that civic cohesion
could not exist without religious unity so that coercion to achieve
religious unity was justified. The second was founded on ecclesiastical
supremacy and the use of state machinery to further religious interests
as promoted by Calvin. The third, which was yet to achieve ultimate
and complete expression in the New World, was discernibly in its
incipient form in the arguments of some dissident minorities that
the magistrate should not intermeddle in religious affairs.55 After
the Reformation, Erastianism pervaded all Europe except for Calvins
theocratic Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted by
Parliament in 1678, which, to encourage woolen trade, imposed on all

clergymen the duty of seeing to it that no person was buried in a shroud


made of any substance other than wool. 56 Under Elizabeth, supremacy
of the crown over the church was complete: ecclesiastical offices were
regulated by her proclamations, recusants were fined and imprisoned,
Jesuits and proselytizing priests were put to death for high treason, the
thirty-nine Articles of the Church of England were adopted and English
Protestantism attained its present doctrinal status. 57 Elizabeth was to
be recognized as "the only Supreme Governor of this realm . . . as well
in all spiritual or ecclesiastical things or causes as temporal." She and
her successors were vested, in their dominions, with "all manner of
jurisdictions, privileges, and preeminences, in any wise touching or
concerning any spiritual or ecclesiastical jurisdiction." 58 Later, however,
Cromwell established the constitution in 1647 which granted full liberty
to all Protestant sects, but denied toleration to Catholics. 59 In 1689,
William III issued the Act of Toleration which established a de facto
toleration for all except Catholics. The Catholics achieved religious
liberty in the 19th century when the Roman Catholic Relief Act of 1829
was adopted. The Jews followed suit in 1858 when they were finally
permitted to sit in Parliament.60
When the representatives of the American states met in Philadelphia in
1787 to draft the constitutional foundation of the new republic, the
theocratic state which had flourished intermittently in Israel, Judea, the
Holy Roman Empire and Geneva was completely gone. The prevailing
church-state relationship in Europe was Erastianism embodied in the
system of jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist with
freedom in various degrees. No nation had yet adopted as the basis of
its church-state relations the principle of the mutual independence of
religion and government and the concomitant principle that neither
might be used as an engine to further the policies of the other, although
the principle was in its seminal form in the arguments of some dissident
minorities and intellectual leaders of the Renaissance. The religious
wars of 16th and 17th century Europe were a thing of the past by the
time America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the


colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the
power of government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had persecuted
Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another
shade of belief, and all of these had from time to time persecuted Jews.
In efforts to force loyalty to whatever religious group happened to be on
top and in league with the government of a particular time and place,
men and women had been fined, cast in jail, cruelly tortured, and killed.
Among the offenses for which these punishments had been inflicted
were such things as speaking disrespectfully of the views of ministers
of government-established churches, non-attendance at those
churches, expressions of non-belief in their doctrines, and failure to pay
taxes and tithes to support them.61
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States
Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the
secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.62
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized
by persecution, oppression, hatred, bloodshed, and war, all in the name
of the God of Love and of the Prince of Peace. Second, likewise with
minor exceptions, this history witnessed the unscrupulous use of
religion by secular powers to promote secular purposes and policies,
and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious
princes and emperors in exchange for religions invaluable service. This
was the context in which the unique experiment of the principle of

religious freedom and separation of church and state saw its birth in
American constitutional democracy and in human history.63
V.
Factors
Contributing
of the American Religion Clauses

to

the

Adoption

Settlers fleeing from religious persecution in Europe, primarily in


Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants
brought with them their religious and political ideas from England and
English books and pamphlets largely provided their cultural fare. 64But
although these settlers escaped from Europe to be freed from bondage
of laws which compelled them to support and attend government
favored churches, some of these settlers themselves transplanted into
American soil the oppressive practices they escaped from. The
charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the
destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to
support or attend.65 At one time, six of the colonies established a state
religion. Other colonies, however, such as Rhode Island and Delaware
tolerated a high degree of religious diversity. Still others, which
originally tolerated only a single religion, eventually extended support to
several different faiths.66
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of
the experiment cannot be attributed to a single cause or event. Rather,
a number of interdependent practical and ideological factors
contributed in bringing it forth. Among these were the "English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation
on the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and
the success of their experiments, the writings of Locke, the social
contract theory, the Great Awakening, and the influence of European
rationalism and deism."67 Each of these factors shall be briefly
discussed.

First, the practical factors. Englands policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects
in the colonies. With an Erastian justification, English lords chose to
forego protecting what was considered to be the true and eternal
church of a particular time in order to encourage trade and commerce.
The colonies were large financial investments which would be profitable
only if people would settle there. It would be difficult to engage in trade
with persons one seeks to destroy for religious belief, thus tolerance
was a necessity. This tended to distract the colonies from their
preoccupations over their religion and its exclusiveness, encouraging
them "to think less of the Church and more of the State and of
commerce."68 The diversity brought about by the colonies open gates
encouraged religious freedom and non-establishment in several ways.
First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the
exclusive rightness of ones religion, which impels persecution for the
sake of ones religion, waned. Finally, because of the great diversity of
the sects, religious uniformity was not possible, and without such
uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there
was a scarcity of adherents. Only about four percent of the entire
population of the country had a church affiliation at the time the republic
was founded.70This might be attributed to the drifting to the American
colonies
of
the
skepticism
that
characterized
European
71
Enlightenment. Economic considerations might have also been a
factor. The individualism of the American colonist, manifested in the
multiplicity of sects, also resulted in much unaffiliated religion which
treated religion as a personal non-institutional matter. The prevalence
of lack of church affiliation contributed to religious liberty and
disestablishment as persons who were not connected with any church
were not likely to persecute others for similar independence nor accede
to compulsory taxation to support a church to which they did not
belong.72

However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act
of Toleration of 1689. In England, this Act conferred on Protestant
dissenters the right to hold public services subject to registration of their
ministers and places of worship. 73 Although the toleration accorded to
Protestant dissenters who qualified under its terms was only a modest
advance in religious freedom, it nevertheless was of some influence to
the American experiment.74 Even then, for practical considerations,
concessions had to be made to other dissenting churches to ensure
their cooperation in the War of Independence which thus had a unifying
effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th
century, an evangelical religious revival originating in New England,
caused a break with formal church religion and a resistance to coercion
by established churches. This movement emphasized an emotional,
personal religion that appealed directly to the individual, putting
emphasis on the rights and duties of the individual conscience and its
answerability exclusively to God. Thus, although they had no quarrel
with orthodox Christian theology as in fact they were fundamentalists,
this group became staunch advocates of separation of church and
state.75
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations but
on the concept of mutual independence of religion and government. In
1663, Rhode Island obtained a charter from the British crown which
declared that settlers have it "much on their heart to hold forth a livelie
experiment that a most flourishing civil state may best be
maintained . . . with full libertie in religious concernments." 76 In Williams
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace, 77 he articulated
the philosophical basis for his argument of religious liberty. To him,
religious freedom and separation of church and state did not constitute
two but only one principle. Religious persecution is wrong because it

"confounds the Civil and Religious" and because "States . . . are proved
essentially Civil. The "power of true discerning the true fear of God" is
not one of the powers that the people have transferred to Civil
Authority.78 Williams Bloudy Tenet is considered an epochal milestone
in the history of religious freedom and the separation of church and
state.79
William Penn, proprietor of the land that became Pennsylvania, was
also an ardent advocate of toleration, having been imprisoned for his
religious convictions as a member of the despised Quakers. He
opposed coercion in matters of conscience because "imposition,
restraint and persecution for conscience sake, highly invade the Divine
prerogative." Aside from his idealism, proprietary interests made
toleration in Pennsylvania necessary. He attracted large numbers of
settlers by promising religious toleration, thus bringing in immigrants
both from the Continent and Britain. At the end of the colonial period,
Pennsylvania had the greatest variety of religious groups. Penn was
responsible in large part for the "Concessions and agreements of the
Proprietors, Freeholders, and inhabitants of West Jersey, in America", a
monumental document in the history of civil liberty which provided
among others, for liberty of conscience. 80 The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition
started by the leaders of their denominations. Aside from the Baptists
and the Quakers, the Presbyterians likewise greatly contributed to the
evolution of separation and freedom. 81 The Constitutional fathers who
convened in Philadelphia in 1787, and Congress and the states that
adopted the First Amendment in 1791 were very familiar with and
strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed
to the American experiment. The social contract theory popularized by
Locke was so widely accepted as to be deemed self-evident truth in
Americas Declaration of Independence. With the doctrine of natural
rights and equality set forth in the Declaration of Independence, there
was no room for religious discrimination. It was difficult to justify
inequality in religious treatment by a new nation that severed its

political bonds with the English crown which violated the self-evident
truth that all men are created equal.83
The social contract theory was applied by many religious groups in
arguing against establishment, putting emphasis on religion as a
natural right that is entirely personal and not within the scope of the
powers of a political body. That Locke and the social contract theory
were influential in the development of religious freedom and separation
is evident from the memorial presented by the Baptists to the
Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention
in every one the better to preserve himself, his liberty and property. The
power of the society, or Legislature constituted by them, can never be
supposed to extend any further than the common good, but is obliged
to secure every ones property. To give laws, to receive obedience, to
compel with the sword, belong to none but the civil magistrate; and on
this ground we affirm that the magistrates power extends not to
establishing any articles of faith or forms of worship, by force of laws;
for laws are of no force without penalties. The care of souls cannot
belong to the civil magistrate, because his power consists only in
outward force; but pure and saving religion consists in the inward
persuasion of the mind, without which nothing can be acceptable to
God.84 (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government
was acceptable to both the religionist and rationalist. To the religionist,
God or Christ did not desire that government have that jurisdiction
("render unto Caesar that which is Caesars"; "my kingdom is not of this
world") and to the rationalist, the power to act in the realm of religion
was not one of the powers conferred on government as part of the
social contract.85
Not only the social contract theory drifted to the colonies from Europe.
Many of the leaders of the Revolutionary and post-revolutionary period
were also influenced by European deism and rationalism, 86 in general,
and some were apathetic if not antagonistic to formal religious worship

and institutionalized religion. Jefferson, Paine, John Adams,


Washington, Franklin, Madison, among others were reckoned to be
among the Unitarians or Deists. Unitarianism and Deism contributed
to the emphasis on secular interests and the relegation of historic
theology to the background.87 For these men of the enlightenment,
religion should be allowed to rise and fall on its own, and the state must
be protected from the clutches of the church whose entanglements has
caused intolerance and corruption as witnessed throughout
history.88 Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the
popularity of Paines Age of Reason.89
Finally, the events leading to religious freedom and separation in
Virginia contributed significantly to the American experiment of the First
Amendment. Virginia was the "first state in the history of the world to
proclaim the decree of absolute divorce between church and
state."90 Many factors contributed to this, among which were that half to
two-thirds of the population were organized dissenting sects, the Great
Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had
alienated many influential laymen with its identification with the Crowns
tyranny, and above all, present in Virginia was a group of political
leaders who were devoted to liberty generally,91 who had accepted the
social contract as self-evident, and who had been greatly influenced by
Deism and Unitarianism. Among these leaders were Washington,
Patrick Henry, George Mason, James Madison and above the rest,
Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of
the following provision in the Bill of Rights of the states first
constitution:
That religion, or the duty which we owe to our Creator, and the manner
of discharging it, can be directed only by reason and conviction, not by
force or violence; and therefore, all men are equally entitled to the free
exercise of religion according to the dictates of conscience; and that it

is the mutual duty of all to practice Christian forbearance, love, and


charity towards each other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While
the majority of the population were dissenters, a majority of the
legislature were churchmen. The legislature compromised and enacted
a bill in 1776 abolishing the more oppressive features of establishment
and granting exemptions to the dissenters, but not guaranteeing
separation. It repealed the laws punishing heresy and absence from
worship and requiring the dissenters to contribute to the support of the
establishment.93 But the dissenters were not satisfied; they not only
wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the
established church would not allow that only they would pay taxes while
the rest did not, the legislature enacted in 1779 a bill making permanent
the establishments loss of its exclusive status and its power to tax its
members; but those who voted for it did so in the hope that a general
assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every
person to enroll his name with the county clerk and indicate which
"society for the purpose of Religious Worship" he wished to support. On
the basis of this list, collections were to be made by the sheriff and
turned over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
society was to be divided proportionately among the societies. 94 The bill
evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers
of the Christian Religion" was introduced requiring all persons "to pay a
moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship." 95 This likewise
aroused the same opposition to the 1779 bill. The most telling blow
against the 1784 bill was the monumental "Memorial and
Remonstrance against Religious Assessments" written by Madison and

widely distributed before the reconvening of legislature in the fall of


1785.96 It stressed natural rights, the governments lack of jurisdiction
over the domain of religion, and the social contract as the ideological
basis of separation while also citing practical considerations such as
loss of population through migration. He wrote, viz:
Because we hold it for a fundamental and undeniable truth, that
religion, or the duty which we owe to our creator, and the manner of
discharging it, can be directed only by reason and conviction, not by
force or violence. The religion, then, of every man, must be left to the
conviction and conscience of every man; and it is the right of every man
to exercise it as these may dictate. This right is, in its nature, an
unalienable right. It is unalienable, because the opinions of men,
depending only on the evidence contemplated in their own minds,
cannot follow the dictates of other men; it is unalienable, also, because
what is here a right towards men, is a duty towards the creator. It is the
duty of every man to render the creator such homage, and such only as
he believes to be acceptable to him; this duty is precedent, both in
order of time and degree of obligation, to the claims of civil society.
Before any man can be considered as a member of civil society, he
must be considered as a subject of the governor of the universe; and if
a member of civil society, who enters into any subordinate association,
must always do it with a reservation of his duty to the general authority,
much more must every man who becomes a member of any particular
civil society do it with the saving his allegiance to the universal
sovereign.97 (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial.
The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier
1779 bill of Jefferson which had not been voted on, the "Bill for
Establishing Religious Freedom", and it was finally passed in January
1786. It provided, viz:

Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and
meanness, and are a departure from the plan of the Holy Author of our
religion, who being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty power to do;

necessary.104 Jeffersons religious freedom statute was a milestone in


the history of religious freedom. The United States Supreme Court has
not just once acknowledged that the provisions of the First Amendment
of the U.S. Constitution had the same objectives and intended to afford
the same protection against government interference with religious
liberty as the Virginia Statute of Religious Liberty.

xxx

Even in the absence of the religion clauses, the principle that


government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the
Constitution of 1787. This could be deduced from the prohibition of any
religious test for federal office in Article VI of the Constitution and the
assumed lack of power of Congress to act on any subject not expressly
mentioned in the Constitution.105However, omission of an express
guaranty of religious freedom and other natural rights nearly prevented
the ratification of the Constitution. 106 In the ratifying conventions of
almost every state, some objection was expressed to the absence of a
restriction on the Federal Government as regards legislation on
religion.107 Thus, in 1791, this restriction was made explicit with the
adoption of the religion clauses in the First Amendment as they are
worded to this day, with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause,
viz:

xxx

xxx

Be it therefore enacted by the General Assembly. That no man shall be


compelled to frequent or support any religious worship, place or
ministry whatsoever, nor shall be enforced, restrained, molested or
burdened in his body or goods, nor shall otherwise suffer on account of
his religious opinions or beliefs, but that all men shall be free to profess,
and by argument to maintain, their opinions in matters of religion, and
that the same shall in no wise diminish, enlarge or affect their civil
capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular establishment in
Virginia.99 But the passage of this law was obtained not only because of
the influence of the great leaders in Virginia but also because of
substantial popular support coming mainly from the two great
dissenting sects, namely the Presbyterians and the Baptists. The
former were never established in Virginia and an underprivileged
minority of the population. This made them anxious to pull down the
existing state church as they realized that it was impossible for them to
be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere
advocates of separation100 grounded on rational, secular arguments
and to the language of natural religion. 101 Influenced by Roger Williams,
the Baptists, on the other hand, assumed that religion was essentially a
matter of concern of the individual and his God, i.e., subjective, spiritual
and supernatural, having no relation with the social order.102 To them,
the Holy Ghost was sufficient to maintain and direct the Church without
governmental assistance and state-supported religion was contrary ti
the
spirit
of
the
Gospel.103 Thus,
separation
was

Congress shall make no law respecting an establishment of religion or


prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as
to what these clauses specifically require, permit and forbid. No
agreement has been reached by those who have studied the religion
clauses as regards its exact meaning and the paucity of records in
Congress renders it difficult to ascertain its meaning. 108 Consequently,

the jurisprudence in this area is volatile and fraught with inconsistencies


whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.109 Government runs even family planning, sex education, adoption
and foster care programs.110 Stated otherwise and with some
exaggeration, "(w)hereas two centuries ago, in matters of social life
which have a significant moral dimension, government was the
handmaid of religion, today religion, in its social responsibilities, as
contrasted with personal faith and collective worship, is the handmaid
of government."111 With government regulation of individual conduct
having become more pervasive, inevitably some of those regulations
would reach conduct that for some individuals are religious. As a result,
increasingly, there may be inadvertent collisions between purely
secular government actions and religion clause values.112
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and
cults. Churches run day-care centers, retirement homes, hospitals,
schools at all levels, research centers, settlement houses, halfway
houses for prisoners, sports facilities, theme parks, publishing houses
and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring
the line between many types of activities undertaken by religious
groups and secular activities. Churches have also concerned
themselves with social and political issues as a necessary outgrowth of
religious faith as witnessed in pastoral letters on war and peace,
economic justice, and human life, or in ringing affirmations for racial
equality on religious foundations. Inevitably, these developments have

brought about substantial entanglement of religion and government.


Likewise, the growth in population density, mobility and diversity has
significantly changed the environment in which religious organizations
and activities exist and the laws affecting them are made. It is no longer
easy for individuals to live solely among their own kind or to shelter
their children from exposure to competing values. The result is
disagreement over what laws should require, permit or prohibit; 113 and
agreement that if the rights of believers as well as non-believers are all
to be respected and given their just due, a rigid, wooden interpretation
of the religion clauses that is blind to societal and political realities must
be avoided.114
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits
religion. These cases are easier to resolve as, in general, these actions
are plainly unconstitutional. Still, this kind of cases poses difficulty in
ascertaining proof of intent to aid or inhibit religion. 115The more difficult
religion clause cases involve government action with a secular purpose
and general applicability which incidentally or inadvertently aids or
burdens religious exercise. In Free Exercise Clause cases, these
government actions are referred to as those with "burdensome effect"
on religious exercise even if the government action is not religiously
motivated.116 Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting
laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened turn to the courts for
protection.117 Most of these free exercise claims brought to the Court
are for exemption, not invalidation of the facially neutral law that has a
"burdensome" effect.118
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition
of religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult task
for even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
constitutional and other legal purposes.119 It was in the 1890 case of

Davis v. Beason120 that the United States Supreme Court first had
occasion to define religion, viz:
The term religion has reference to ones views of his relations to his
Creator, and to the obligations they impose of reverence for his being
and character, and of obedience to his will. It is often confounded with
the cultus or form of worship of a particular sect, but is distinguishable
from the latter. The First Amendment to the Constitution, in declaring
that Congress shall make no law respecting the establishment of
religion, or forbidding the free exercise thereof, was intended to allow
everyone under the jurisdiction of the United States to entertain such
notions respecting his relations to his Maker and the duties they impose
as may be approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not
injurious to the equal rights of others, and to prohibit legislation for the
support of any religious tenets, or the modes of worship of any sect.121

he determined that it would be "a violation of his moral code to take


human life and that he considered this belief superior to any obligation
to the state." The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of
religion in the Universal Military Training and Service Act of 1940 which
exempt from combat anyone "who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any form."
Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the
designation God, was merely clarifying the meaning of religious
tradition and belief so as to embrace all religions and to exclude
essentially political, sociological, or philosophical views (and) the test of
belief in relation to a Supreme Being is whether a given belief that is
sincere and meaningful occupies a place in the life of its possessor
parallel to the orthodox belief in God. (emphasis supplied)

The definition was clearly theistic which was reflective of the popular
attitudes in 1890.

The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.

In 1944, the Court stated in United States v. Ballard 122 that the free
exercise of religion "embraces the right to maintain theories of life and
of death and of the hereafter which are rank heresy to followers of the
orthodox faiths."123 By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism
and Taoism.124 In 1961, the Court, in Torcaso v. Watkins, 125 expanded
the term "religion" to non-theistic beliefs such as Buddhism, Taoism,
Ethical Culture, and Secular Humanism. Four years later, the Court
faced a definitional problem in United States v. Seeger 126 which
involved four men who claimed "conscientious objector" status in
refusing to serve in the Vietnam War. One of the four, Seeger, was not
a member of any organized religion opposed to war, but when
specifically asked about his belief in a Supreme Being, Seeger stated
that "you could call (it) a belief in a Supreme Being or God. These just
do not happen to be the words that I use." Forest Peter, another one of
the four claimed that after considerable meditation and reflection "on
values derived from the Western religious and philosophical tradition,"

Federal and state courts have expanded the definition of religion in


Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet four
criteria to qualify as religion under the First Amendment. First, there
must be belief in God or some parallel belief that occupies a central
place in the believers life. Second, the religion must involve a moral
code transcending individual belief, i.e., it cannot be purely subjective.
Third, a demonstrable sincerity in belief is necessary, but the court
must not inquire into the truth or reasonableness of the belief. 127 Fourth,
there must be some associational ties, 128although there is also a view
that religious beliefs held by a single person rather than being part of
the teachings of any kind of group or sect are entitled to the protection
of the Free Exercise Clause.129
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court
then has to draw lines to determine what is or is not permissible under

the religion clauses. In this task, the purpose of the clauses is the
yardstick. Their purpose is singular; they are two sides of the same
coin.130 In devoting two clauses to religion, the Founders were stating
not two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
circumstances.131 The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with
the free exercise of religion and the limitation on the power of
government to establish, aid, and support religion - is the protection
and promotion of religious liberty.132 The end, the goal, and the rationale
of the religion clauses is this liberty.133 Both clauses were adopted to
prevent government imposition of religious orthodoxy; the great evil
against
which
they
are
directed
is
government-induced
134
homogeneity. The Free Exercise Clause directly articulates the
common objective of the two clauses and the Establishment Clause
specifically addresses a form of interference with religious liberty with
which the Framers were most familiar and for which government
historically had demonstrated a propensity.135 In other words, free
exercise is the end, proscribing establishment is a necessary means to
this end to protect the rights of those who might dissent from whatever
religion is established.136 It has even been suggested that the sense of
the First Amendment is captured if it were to read as "Congress shall
make no law respecting an establishment of religion or otherwise
prohibiting the free exercise thereof" because the fundamental and
single purpose of the two religious clauses is to "avoid any infringement
on the free exercise of religions"137 Thus, the Establishment Clause
mandates separation of church and state to protect each from the
other, in service of the larger goal of preserving religious liberty. The
effect of the separation is to limit the opportunities for any religious
group to capture the state apparatus to the disadvantage of those of
other faiths, or of no faith at all 138 because history has shown that
religious fervor conjoined with state power is likely to tolerate far less
religious disagreement and disobedience from those who hold different
beliefs than an enlightened secular state. 139 In the words of the U.S.
Supreme Court, the two clauses are interrelated, viz: "(t)he structure of
our government has, for the preservation of civil liberty, rescued the

temporal institutions from religious interference. On the other hand, it


has secured religious liberty from the invasion of the civil authority." 140
In upholding religious liberty as the end goal in religious clause cases,
the line the court draws to ensure that government does not establish
and instead remains neutral toward religion is not absolutely straight.
Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic purpose of
these provisions, which is to insure that no religion be sponsored or
favored, none commanded and none inhibited.141 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,142 even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer version
of strict neutrality or separation) and benevolent neutrality or
accommodation. A view of the landscape of U.S. religion clause cases
would be useful in understanding these two strains, the scope of
protection of each clause, and the tests used in religious clause cases.
Most of these cases are cited as authorities in Philippine religion clause
cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of
Reynolds v. United States.143 This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives
and that the failure to practice polygamy by male members of his
religion when circumstances would permit would be punished with
damnation in the life to come. Reynolds act of contracting a second
marriage violated Section 5352, Revised Statutes prohibiting and
penalizing bigamy, for which he was convicted. The Court affirmed
Reynolds conviction, using what in jurisprudence would be called the
belief-action test which allows absolute protection to belief but not to
action. It cited Jeffersons Bill Establishing Religious Freedom which,
according to the Court, declares "the true distinction between what

properly belongs to the Church and what to the State." 144The bill,
making a distinction between belief and action, states in relevant part,
viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once
destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against
peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties or
subversive of good order. . .
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended
that the civil government under which he lived could not interfere to
prevent a sacrifice? Or if a wife religiously believed it was her duty to
burn herself upon the funeral pile of her dead husband, would it be
beyond the power of the civil government to prevent her carrying her
belief into practice?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages shall
not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances.146

The construct was thus simple: the state was absolutely prohibited by
the Free Exercise Clause from regulating individual religious beliefs,
but placed no restriction on the ability of the state to regulate religiously
motivated conduct. It was logical for belief to be accorded absolute
protection because any statute designed to prohibit a particular
religious belief unaccompanied by any conduct would most certainly be
motivated only by the legislatures preference of a competing religious
belief. Thus, all cases of regulation of belief would amount to regulation
of religion for religious reasons violative of the Free Exercise Clause.
On the other hand, most state regulations of conduct are for public
welfare purposes and have nothing to do with the legislatures religious
preferences. Any burden on religion that results from state regulation of
conduct arises only when particular individuals are engaging in the
generally regulated conduct because of their particular religious beliefs.
These burdens are thus usually inadvertent and did not figure in the
belief-action test. As long as the Court found that regulation address
action rather than belief, the Free Exercise Clause did not pose any
problem.147 The Free Exercise Clause thus gave no protection against
the proscription of actions even if considered central to a religion unless
the legislature formally outlawed the belief itself.148
This belief-action distinction was held by the Court for some years as
shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v.
United States.149 However, more than a century since Reynolds was
decided, the Court has expanded the scope of protection from belief to
speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone
unchallenged. The belief-action distinction is still of some importance
though as there remains an absolute prohibition of governmental
proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs151 and proscribes government from
questioning a persons beliefs or imposing penalties or disabilities
based solely on those beliefs. The Clause extends protection to both

beliefs and unbelief. Thus, in Torcaso v. Watkins, 152 a unanimous Court


struck down a state law requiring as a qualification for public office an
oath declaring belief in the existence of God. The protection also allows
courts to look into the good faith of a person in his belief, but prohibits
inquiry into the truth of a persons religious beliefs. As held in United
States v. Ballard,153 "(h)eresy trials are foreign to the Constitution. Men
may believe what they cannot prove. They may not be put to the proof
of their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious
speech and expressive religious conduct are accorded the highest
degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,154 the Court struck down a state law prohibiting door-todoor solicitation for any religious or charitable cause without prior
approval of a state agency. The law was challenged by Cantwell, a
member of the Jehovahs Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior
approval necessary was held to be a censorship of religion prohibited
by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the rankest
error to his neighbor. To persuade others to his point of view, the
pleader, as we know, resorts to exaggeration, to vilification of men who
have been, or are, prominent in church or state, and even to false
statement. But the people of this nation have ordained in the light of
history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the
Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regulation for the

protection of society. . . In every case, the power to regulate must be so


exercised as not, in attaining a permissible end, unduly to infringe the
protected freedom. (emphasis supplied)156
The Court stated, however, that government had the power to regulate
the times, places, and manner of solicitation on the streets and assure
the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,157 ruled that police could not prohibit members of the
Jehovahs Witnesses from peaceably and orderly proselytizing on
Sundays merely because other citizens complained. In another case
likewise involving the Jehovahs Witnesses, Niemotko v.
Maryland,158 the Court unanimously held unconstitutional a city
councils denial of a permit to the Jehovahs Witnesses to use the city
park for a public meeting. The city councils refusal was because of the
"unsatisfactory" answers of the Jehovahs Witnesses to questions
about Catholicism, military service, and other issues. The denial of the
public forum was considered blatant censorship. While protected,
religious speech in the public forum is still subject to reasonable time,
place and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain
areas to maintain the safe and orderly flow of pedestrians and vehicular
traffic as held in the case of Heffron v. International Society for Krishna
Consciousness.159
The least protected under the Free Exercise Clause is religious
conduct, usually in the form of unconventional religious practices.
Protection in this realm depends on the character of the action and the
government rationale for regulating the action. 160 The Mormons
religious conduct of polygamy is an example of unconventional
religious practice. As discussed in the Reynolds case above, the Court
did not afford protection to the practice. Reynolds was reiterated in the
1890 case of Davis again involving Mormons, where the Court held,
viz: "(c)rime is not the less odious because sanctioned by what any
particular sect may designate as religion."161

The belief-action test in Reynolds and Davis proved unsatisfactory.


Under this test, regulation of religiously dictated conduct would be
upheld no matter how central the conduct was to the exercise of
religion and no matter how insignificant was the governments nonreligious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic beliefaction distinction and instead recognized the deliberate-inadvertent
distinction, i.e., the distinction between deliberate state interference of
religious exercise for religious reasons which was plainly
unconstitutional and governments inadvertent interference with religion
in pursuing some secular objective.162 In the 1940 case of Minersville
School District v. Gobitis, 163 the Court upheld a local school board
requirement that all public school students participate in a daily flag
salute program, including the Jehovahs Witnesses who were forced to
salute the American flag in violation of their religious training, which
considered flag salute to be worship of a "graven image." The Court
recognized that the general requirement of compulsory flag salute
inadvertently burdened the Jehovah Witnesses practice of their
religion, but justified the government regulation as an appropriate
means of attaining national unity, which was the "basis of national
security." Thus, although the Court was already aware of the deliberateinadvertent distinction in government interference with religion, it
continued to hold that the Free Exercise Clause presented no problem
to interference with religion that was inadvertent no matter how serious
the interference, no matter how trivial the states non-religious
objectives, and no matter how many alternative approaches were
available to the state to pursue its objectives with less impact on
religion, so long as government was acting in pursuit of a secular
objective.
Three years later, the Gobitis decision was overturned in West Virginia
v. Barnette164 which involved a similar set of facts and issue. The Court
recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of
students to declare a belief. The Court ruled that "compulsory
unification of opinions leads only to the unanimity of the graveyard" and
exempt the students who were members of the Jehovahs Witnesses

from saluting the flag. A close scrutiny of the case, however, would
show that it was decided not on the issue of religious conduct as the
Court said, "(n)or does the issue as we see it turn on ones possession
of particular religious views or the sincerity with which they are held.
While religion supplies appellees motive for enduring the discomforts of
making the issue in this case, many citizens who do not share these
religious views hold such a compulsory rite to infringe constitutional
liberty of the individual." (emphasis supplied) 165 The Court pronounced,
however, that, "freedoms of speech and of press, of assembly, and of
worship . . . are susceptible only of restriction only to prevent grave and
immediate danger to interests which the state may lawfully
protect."166 The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty of political
minorities - a specially protected constitutional value - to the common
everyday economic and public welfare objectives of the majority in the
legislature. This time, even inadvertent interference with religion must
pass judicial scrutiny under the Free Exercise Clause with only grave
and immediate danger sufficing to override religious liberty. But the
seeds of this heightened scrutiny would only grow to a full flower in the
1960s.167
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence. 168 A twopart balancing test was established in Braunfeld v. Brown 169 where the
Court considered the constitutionality of applying Sunday closing laws
to Orthodox Jews whose beliefs required them to observe another day
as the Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a severe
burden on Sabattarian retailers. He noted, however, that since the
burden was the indirect effect of a law with a secular purpose, it would
violate the Free Exercise Clause only if there were alternative ways of
achieving the states interest. He employed a two-part balancing test of
validity where the first step was for plaintiff to show that the regulation
placed a real burden on his religious exercise. Next, the burden would
be upheld only if the state showed that it was pursuing an overriding
secular goal by the means which imposed the least burden on religious
practices.170 The Court found that the state had an overriding secular

interest in setting aside a single day for rest, recreation and tranquility
and there was no alternative means of pursuing this interest but to
require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the
1963 case of Sherbert v. Verner.171 This test was similar to the two-part
balancing test in Braunfeld,172 but this latter test stressed that the state
interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for
refusal to work on Saturdays on religious grounds. Her claim was
denied. She sought recourse in the Supreme Court. In laying down the
standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within
the reach of state legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellants constitutional
challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional
rights of free exercise, or because any incidental burden on the free
exercise of appellants religion may be justified by a compelling state
interest in the regulation of a subject within the States constitutional
power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d
405, 421, 83 S Ct 328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic
that it is not sufficient to merely show a rational relationship of the
substantial infringement to the religious right and a colorable
state interest. "(I)n this highly sensitive constitutional area, [o]nly the
gravest abuses, endangering paramount interests, give occasion for
permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed
430, 440, 65 S Ct 315."174 The Court found that there was no such
compelling state interest to override Sherberts religious liberty. It added
that even if the state could show that Sherberts exemption would pose

serious detrimental effects to the unemployment compensation fund


and scheduling of work, it was incumbent upon the state to show
that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state,
however, did not discharge this burden. The Court thus carved out for
Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits.
The Court reasoned that upholding the denial of Sherberts benefits
would force her to choose between receiving benefits and following her
religion. This choice placed "the same kind of burden upon the free
exercise of religion as would a fine imposed against (her) for her
Saturday worship." This germinal case of Sherbert firmly established
the exemption doctrine, 175 viz:
It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some compelling
state interest intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert
(or even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem
under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state
interest - the highest level of constitutional scrutiny short of a holding of
a per se violation. Thus, the problem posed by the belief-action
test and the deliberate-inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards,
the Burger Court, the rationale in Sherbert continued to be applied. In
Thomas v. Review Board177 and Hobbie v. Unemployment Appeals
Division,178 for example, the Court reiterated the exemption doctrine
and held that in the absence of a compelling justification, a state could
not withhold unemployment compensation from an employee who
resigned or was discharged due to unwillingness to depart from
religious practices and beliefs that conflicted with job requirements. But
not every governmental refusal to allow an exemption from a regulation

which burdens a sincerely held religious belief has been invalidated,


even though strict or heightened scrutiny is applied. In United States v.
Lee,179 for instance, the Court using strict scrutiny and referring to
Thomas, upheld the federal governments refusal to exempt Amish
employers who requested for exemption from paying social security
taxes on wages on the ground of religious beliefs. The Court held that
"(b)ecause the broad public interest in maintaining a sound tax system
is of such a high order, religious belief in conflict with the payment of
taxes affords no basis for resisting the tax." 180 It reasoned that unlike in
Sherbert, an exemption would significantly impair governments
achievement of its objective - "the fiscal vitality of the social security
system;" mandatory participation is indispensable to attain this
objective. The Court noted that if an exemption were made, it would be
hard to justify not allowing a similar exemption from general federal
taxes where the taxpayer argues that his religious beliefs require him to
reduce or eliminate his payments so that he will not contribute to the
governments war-related activities, for example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies
that collided with religious practices. Although the members of the
Court often disagreed over which governmental interests should be
considered compelling, thereby producing dissenting and separate
opinions in religious conduct cases, this general test established a
strong presumption in favor of the free exercise of religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder182 where the Court upheld the religious practice of the Old Order
Amish faith over the states compulsory high school attendance law.
The Amish parents in this case did not permit secular education of their
children beyond the eighth grade. Chief Justice Burger, writing for the
majority, held, viz:
It follows that in order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such attendance

interferes with the practice of a legitimate religious belief, it must


appear either that the State does not deny the free exercise of religious
belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgement of
the need for universal education, the Religion Clauses had specially
and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less
explicit, prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion have been
zealously protected, sometimes even at the expense of other interests
of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that
only those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause. It
is true that activities of individuals, even when religiously based, are
often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare, or
the Federal government in the exercise of its delegated powers . . . But
to agree that religiously grounded conduct must often be subject to the
broad police power of the State is not to deny that there are areas of
conduct protected by the Free Exercise Clause of the First Amendment
and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does not
become easier because respondents were convicted for their "actions"
in refusing to send their children to the public high school; in this
context belief and action cannot be neatly confined in logic-tight
compartments. . . 183
The onset of the 1990s, however, saw a major setback in the
protection afforded by the Free Exercise Clause. In Employment
Division, Oregon Department of Human Resources v. Smith,184 the
sharply
dividedRehnquist Court dramatically departed from
the

heightened scrutiny and compelling justification approach and imposed


serious limits on the scope of protection of religious freedom afforded
by the First Amendment. In this case, the well-established practice of
the Native American Church, a sect outside the Judeo-Christian
mainstream of American religion, came in conflict with the states
interest in prohibiting the use of illicit drugs. Oregons controlled
substances statute made the possession of peyote a criminal offense.
Two members of the church, Smith and Black, worked as drug
rehabilitation counselors for a private social service agency in Oregon.
Along with other church members, Smith and Black ingested peyote, a
hallucinogenic drug, at a sacramental ceremony practiced by Native
Americans for hundreds of years. The social service agency fired Smith
and Black citing their use of peyote as "job-related misconduct". They
applied for unemployment compensation, but the Oregon Employment
Appeals Board denied their application as they were discharged for jobrelated misconduct. Justice Scalia, writing for the majority, ruled that "if
prohibiting the exercise of religion . . . is . . . merely the incidental effect
of a generally applicable and otherwise valid law, the First Amendment
has not been offended." In other words, the Free Exercise Clause
would be offended only if a particular religious practice were singled out
for proscription. The majority opinion relied heavily on the Reynolds
case and in effect, equated Oregons drug prohibition law with the antipolygamy statute in Reynolds. The relevant portion of the majority
opinion held, viz:
We have never invalidated any governmental action on the basis of the
Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The governments ability to enforce
generally applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, "cannot depend on

measuring the effects of a governmental action on a religious objectors


spiritual development." . . .To make an individuals obligation to obey
such a law contingent upon the laws coincidence with his religious
beliefs except where the States interest is "compelling" - permitting
him, by virtue of his beliefs, "to become a law unto himself," . . . contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the
majoritys rejection of the compelling governmental interest test was the
most controversial part of the decision. Although she concurred in the
result that the Free Exercise Clause had not been offended, she
sharply criticized the majority opinion as a dramatic departure "from
well-settled First Amendment jurisprudence. . . and . . . (as)
incompatible with our Nations fundamental commitment to religious
liberty." This portion of her concurring opinion was supported by
Justices Brennan, Marshall and Blackmun who dissented from the
Courts decision. Justice OConnor asserted that "(t)he compelling state
interest test effectuates the First Amendments command that religious
liberty is an independent liberty, that it occupies a preferred position,
and that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling
government interest of the highest order." Justice Blackmun registered
a separate dissenting opinion, joined by Justices Brennan and
Marshall. He charged the majority with "mischaracterizing" precedents
and "overturning. . . settled law concerning the Religion Clauses of our
Constitution." He pointed out that the Native American Church
restricted and supervised the sacramental use of peyote. Thus, the
state had no significant health or safety justification for regulating the
sacramental drug use. He also observed that Oregon had not
attempted to prosecute Smith or Black, or any Native Americans, for
that matter, for the sacramental use of peyote. In conclusion, he said
that "Oregons interest in enforcing its drug laws against religious use of
peyote (was) not sufficiently compelling to outweigh respondents right
to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith.
The Courts standard in Smith virtually eliminated the requirement that

the government justify with a compelling state interest the burdens on


religious exercise imposed by laws neutral toward religion. The Smith
doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise
jurisprudence.185 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority.
A deliberate regulatory interference with minority religious freedom is
the worst form of this tyranny. But regulatory interference with a
minority religion as a result of ignorance or sensitivity of the religious
and political majority is no less an interference with the minoritys
religious freedom. If the regulation had instead restricted the majoritys
religious practice, the majoritarian legislative process would in all
probability have modified or rejected the regulation. Thus, the
imposition of the political majoritys non-religious objectives at the
expense of the minoritys religious interests implements the majoritys
religious viewpoint at the expense of the minoritys. Second,
government impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture where
direct and deliberate regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the
most deeply held fundamental religious convictions of an individual in
order to pursue some trivial state economic or bureaucratic objective.
This is especially true when there are alternative approaches for the
state to effectively pursue its objective without serious inadvertent
impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of
mainstream religious groups against smaller, more peripheral groups
who lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions
and Smith virtually wiped out their judicial recourse for
exemption.189 Thus, the Smith decision elicited much negative public

reaction especially from the religious community, and commentaries


insisted that the Court was allowing the Free Exercise Clause to
disappear.190 So much was the uproar that a majority in Congress was
convinced to enact the Religious Freedom Restoration Act (RFRA) of
1993. The RFRA prohibited government at all levels from substantially
burdening a persons free exercise of religion, even if such burden
resulted from a generally applicable rule, unless the government could
demonstrate a compelling state interest and the rule constituted the
least restrictive means of furthering that interest.191 RFRA, in effect,
sought to overturn the substance of the Smith ruling and restore the
status quo prior to Smith. Three years after the RFRA was enacted,
however, the Court, dividing 6 to 3, declared the RFRA unconstitutional
in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts
vital principles necessary to maintain separation of powers and the
federal balance." It emphasized the primacy of its role as interpreter of
the Constitution and unequivocally rejected, on broad institutional
grounds, a direct congressional challenge of final judicial authority on a
question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah193 which was ruled consistent with the Smith doctrine. This
case involved animal sacrifice of the Santeria, a blend of Roman
Catholicism and West African religions brought to the Carribean by
East African slaves. An ordinance made it a crime to "unnecessarily kill,
torment, torture, or mutilate an animal in public or private ritual or
ceremony not for the primary purpose of food consumption." The
ordinance came as a response to the local concern over the sacrificial
practices of the Santeria. Justice Kennedy, writing for the majority,
carefully pointed out that the questioned ordinance was not a generally
applicable criminal prohibition, but instead singled out practitioners of
the Santeria in that it forbade animal slaughter only insofar as it took
place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
non-religious speech, and unconventional religious practice receives

less protection; nevertheless conduct, even if its violates a law, could


be accorded protection as shown in Wisconsin.194
B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the
1947 case of Everson v. Board of Education. 195 Prior cases had made
passing reference to the Establishment Clause 196 and raised
establishment questions but were decided on other grounds. 197 It was in
the Everson case that the U.S. Supreme Court adopted Jeffersons
metaphor of "a wall of separation between church and state" as
encapsulating the meaning of the Establishment Clause. The often and
loosely used phrase "separation of church and state" does not appear
in the U.S. Constitution. It became part of U.S. jurisprudence when the
Court in the 1878 case of Reynolds v. United States198 quoted
Jeffersons famous letter of 1802 to the Danbury Baptist Association in
narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between
man and his God; that he owes account to none other for his faith or his
worship; that the legislative powers of the Government reach actions
only, and not opinions, I contemplate with sovereign reverence that act
of the whole American people which declared that their Legislature
should make no law respecting an establishment of religion or
prohibiting the free exercise thereof, thus building a wall of separation
between Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as
this does from an acknowledged leader of the advocates of the
measure, it may be accepted almost as an authoritative declaration of
the scope and effect of the amendment thus secured." 200
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools
and prayer in public schools.201 In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to

and from Catholic schools. The reimbursement was part of a general


program under which all parents of children in public schools and
nonprofit private schools, regardless of religion, were entitled to
reimbursement for transportation costs. Justice Hugo Black, writing for
a sharply divided Court, justified the reimbursements on the child
benefit theory, i.e., that the school board was merely furthering the
states legitimate interest in getting children "regardless of their religion,
safely and expeditiously to and from accredited schools." The Court,
after narrating the history of the First Amendment in Virginia,
interpreted the Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions,
or prefer one religion over another. Neither can force nor influence a
person to go to or remain away from church against his will or force him
to profess a belief or disbelief in any religion. No person can be
punished for entertaining or professing religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to teach
or practice religion. Neither a state nor the Federal Government can,
openly or secretly participate in the affairs of any religious organizations
or groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a wall of
separation between Church and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state.
That wall must be kept high and impregnable. We could not approve
the slightest breach. New Jersey has not breached it here.203
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and
1960s and laid down a three-pronged test in Lemon v. Kurtzman 204 in
determining the constitutionality of policies challenged under the

Establishment Clause. This case involved a Pennsylvania statutory


program providing publicly funded reimbursement for the cost of
teachers salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to
teachers in parochial schools. The Lemon test requires a challenged
policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236,
243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute
must not foster an excessive entanglement with religion. (Walz v.Tax
Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
[1970])" (emphasis supplied)205 Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were
unconstitutional as fostering excessive entanglement between
government and religion.

prayer in the Pennsylvania and Maryland schools. The Court held that
to withstand the strictures of the Establishment Clause, a statute must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:

The most controversial of the education cases involving the


Establishment Clause are the school prayer decisions. "Few decisions
of the modern Supreme Court have been criticized more intensely than
the school prayer decisions of the early 1960s." 206 In the 1962 case of
Engel v. Vitale,207 the Court invalidated a New York Board of Regents
policy that established the voluntary recitation of a brief generic prayer
by children in the public schools at the start of each school day. The
majority opinion written by Justice Black stated that "in this country it is
no part of the business of government to compose official prayers for
any group of the American people to recite as part of a religious
program carried on by government." In fact, history shows that this very
practice of establishing governmentally composed prayers for religious
services was one of the reasons that caused many of the early
colonists to leave England and seek religious freedom in America. The
Court called to mind that the first and most immediate purpose of the
Establishment Clause rested on the belief that a union of government
and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School
District v. Schempp208 and Murray v. Curlett209 where the Court struck
down the practice of Bible reading and the recitation of the Lords

The school prayer decisions drew furious reactions. Religious leaders


and conservative members of Congress and resolutions passed by
several state legislatures condemned these decisions. 211 On several
occasions, constitutional amendments have been introduced in
Congress to overturn the school prayer decisions. Still, the Court has
maintained its position and has in fact reinforced it in the 1985 case of
Wallace v. Jaffree212 where the Court struck down an Alabama law that
required public school students to observe a moment of silence "for the
purpose of meditation or voluntary prayer" at the start of each school
day.

The wholesome neutrality of which this Courts cases speak thus


stems from a recognition of the teachings of history that powerful sects
or groups might bring about a fusion of governmental and religious
functions or a concert or dependency of one upon the other to the end
that official support of the State of Federal Government would be
placed behind the tenets of one or of all orthodoxies. This the
Establishment Clause prohibits. And a further reason for neutrality is
found in the Free Exercise Clause, which recognizes the value of
religious training, teaching and observance and, more particularly, the
right of every person to freely choose his own course with reference
thereto, free of any compulsion from the state.210

Religious instruction in public schools has also pressed the Court to


interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive
of the Establishment Clause in the 1948 case of McCollum v. Board of
Education,213 decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to
offer classes in religious instruction to public school students in grades
four to nine. Religion classes were attended by pupils whose parents

signed printed cards requesting that their children be permitted to


attend. The classes were taught in three separate groups by Protestant
teachers, Catholic priests and a Jewish rabbi and were held weekly
from thirty to forty minutes during regular class hours in the regular
classrooms of the school building. The religious teachers were
employed at no expense to the school authorities but they were subject
to the approval and supervision of the superintendent of schools.
Students who did not choose to take religious instruction were required
to leave their classrooms and go to some other place in the school
building for their secular studies while those who were released from
their secular study for religious instruction were required to attend the
religious classes. The Court held that the use of tax-supported property
for religious instruction and the close cooperation between the school
authorities and the religious council in promoting religious education
amounted to a prohibited use of tax-established and tax-supported
public school system to aid religious groups spread their faith. The
Court rejected the claim that the Establishment Clause only prohibited
government preference of one religion over another and not an
impartial governmental assistance of all religions. In Zorach v.
Clauson,214 however, the Court upheld released time programs allowing
students in public schools to leave campus upon parental permission to
attend religious services while other students attended study hall.
Justice Douglas, the writer of the opinion, stressed that "(t)he First
Amendment does not require that in every and all respects there shall
be a separation of Church and State." The Court distinguished Zorach
from McCollum, viz:
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to promote that
instruction. . . We follow the McCollum case. But we cannot expand it to
cover the present released time program unless separation of Church
and State means that public institutions can make no adjustments of
their schedules to accommodate the religious needs of the people. We
cannot read into the Bill of Rights such a philosophy of hostility to
religion.215

In the area of government displays or affirmations of belief, the Court


has given leeway to religious beliefs and practices which have acquired
a secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland, 216 the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the
obvious religious underpinnings of the restrictions. Citing the secular
purpose of the Sunday closing laws and treating as incidental the fact
that this day of rest happened to be the day of worship for most
Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions
and people with no religion regard Sunday as a time for family activity,
for visiting friends and relatives, for later sleeping, for passive and
active entertainments, for dining out, and the like. 217
In the 1983 case of Marsh v. Chambers, 218 the Court refused to
invalidate Nebraskas policy of beginning legislative sessions with
prayers offered by a Protestant chaplain retained at the taxpayers
expense. The majority opinion did not rely on the Lemon test and
instead drew heavily from history and the need for accommodation of
popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative
sessions with prayer has become the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is not,
in these circumstances, an "establishment" of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs
widely held among the people of this country. As Justice Douglas
observed, "(w)e are a religious people whose institutions presuppose a
Supreme Being." (Zorach c. Clauson, 343 US 306, 313
[1952])219 (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
"inevitably be embarrassed if it were to attempt to strike down a
practice that occurs in nearly every legislature in the United States,

including the U.S. Congress."220 That Marsh was not an aberration is


suggested by subsequent cases. In the 1984 case of Lynch v.
Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode
Island. By a 5-4 decision, the majority opinion hardly employed the
Lemon test and again relied on history and the fact that the creche had
become a "neutral harbinger of the holiday season" for many, rather
than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been
exempt from local property taxes and their income exempt from federal
and state income taxes. In the 1970 case of Walz v. Tax
Commission,222 the New York City Tax Commissions grant of property
tax exemptions to churches as allowed by state law was challenged by
Walz on the theory that this required him to subsidize those churches
indirectly. The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of
religious worship within a broad class of property owned by non-profit,
quasi-public corporations . . . The State has an affirmative policy that
considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the
public interest.223
The Court added that the exemption was not establishing religion but
"sparing the exercise of religion from the burden of property taxation
levied on private profit institutions" 224 and preventing excessive
entanglement between state and religion. At the same time, the Court
acknowledged the long-standing practice of religious tax exemption and
the Courts traditional deference to legislative bodies with respect to the
taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national
life, beginning with pre-Revolutionary colonial times, than for the
government to exercise . . . this kind of benevolent neutrality toward

churches and religious exercise generally so long as none was favored


over others and none suffered interference.225(emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has
passed upon. Court rulings contrary to or making nuances of the above
cases may be cited. Professor McConnell poignantly recognizes this,
viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian
minister to lead the legislature in daily prayers (Marsh v. Chambers,
463 US783, 792-93[1983]), but unconstitutional for a state to set aside
a moment of silence in the schools for children to pray if they want to
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
state to require employers to accommodate their employees work
schedules to their sabbath observances (Estate of Thornton v. Caldor,
Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a
state to require employers to pay workers compensation when the
resulting inconsistency between work and sabbath leads to discharge (.
. .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for
the government to give money to religiously-affiliated organizations to
teach adolescents about proper sexual behavior (Bowen v. Kendrick,
487 US 589, 611 [1988]), but not to teach them science or history
(Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional
for the government to provide religious school pupils with books (Board
of Education v. Allen, 392 US 236, 238 [1968]), but not with maps
(Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to
religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]),
but not from school to a museum on a field trip (Wolman v. Walter, 433
US 229, 252-55 [1977]); with cash to pay for state-mandated
standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related
maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.226

But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law
regarding particular religious beliefs or conduct colliding with particular
government regulations. Rather, the cases discussed above suffice to
show that, as legal scholars observe, this area of jurisprudence has
demonstrated two main standards used by the Court in deciding
religion clause cases: separation (in the form of strict separation or the
tamer version of strict neutrality or separation) and benevolent
neutrality or accommodation. The weight of current authority, judicial
and in terms of sheer volume, appears to lie with the separationists,
strict or tame.227 But the accommodationists have also attracted a
number of influential scholars and jurists. 228 The two standards
producing two streams of jurisprudence branch out respectively from
the history of the First Amendment in England and the American
colonies and climaxing in Virginia as narrated in this opinion and
officially acknowledged by the Court in Everson, and from American
societal life which reveres religion and practices age-old religious
traditions. Stated otherwise, separation - strict or tame - protects the
principle of church-state separation with a rigid reading of the principle
while benevolent neutrality protects religious realities, tradition and
established practice with a flexible reading of the principle. 229 The latter
also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress
intended to allow government support of religion, at least as long as
that support did not discriminate in favor of one particular religion. . .
the Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that
appointed a chaplain, he declared several national days of prayer and
fasting during his presidency, and he sponsored Jeffersons bill for
punishing Sabbath breakers; moreover, while president, Jefferson
allowed federal support of religious missions to the Indians. . . And so,
concludes one recent book, there is no support in the Congressional
records that either the First Congress, which framed the First
Amendment, or its principal author and sponsor, James Madison,
intended that Amendment to create a state of complete independence

between religion and government. In fact, the evidence in the public


documents goes the other way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent
neutrality that gives room for accommodation, less than twenty-four
hours after Congress adopted the First Amendments prohibition on
laws respecting an establishment of religion, Congress decided to
express its thanks to God Almighty for the many blessings enjoyed by
the nation with a resolution in favor of a presidential proclamation
declaring a national day of Thanksgiving and Prayer. Only two
members of Congress opposed the resolution, one on the ground that
the move was a "mimicking of European customs, where they made a
mere mockery of thanksgivings", the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout
Western history was acknowledged and the motion was passed without
further recorded discussion.231 Thus, accommodationists also go back
to the framers to ascertain the meaning of the First Amendment, but
prefer to focus on acts rather than words. Contrary to the claim of
separationists that rationalism pervaded America in the late 19th
century and that America was less specifically Christian during those
years than at any other time before or since, 232accommodationaists
claim that American citizens at the time of the Constitutions origins
were a remarkably religious people in particularly Christian terms.233
The two streams of jurisprudence - separationist or
accommodationist - are anchored on a different reading of the
"wall of separation." The strict separtionist view holds that Jefferson
meant the "wall of separation" to protect the state from the church.
Jefferson was a man of the Enlightenment Era of the eighteenth
century, characterized by the rationalism and anticlericalism of that
philosophic bent.234 He has often been regarded as espousing Deism or
the rationalistic belief in a natural religion and natural law divorced from
its medieval connection with divine law, and instead adhering to a
secular belief in a universal harmony.235 Thus, according to this
Jeffersonian view, the Establishment Clause being meant to protect the
state from the church, the states hostility towards religion allows no
interaction between the two.236 In fact, when Jefferson became

President, he refused to proclaim fast or thanksgiving days on the


ground that these are religious exercises and the Constitution
prohibited the government from intermeddling with religion. 237 This
approach erects an absolute barrier to formal interdependence of
religion and state. Religious institutions could not receive aid, whether
direct or indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a
free choice among political views thus a strict "wall of separation" is
necessary.239 Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous
amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from
religion. Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never
likely to.240
A tamer version of the strict separationist view, the strict neutrality or
separationist view is largely used by the Court, showing the Courts
tendency to press relentlessly towards a more secular society.241 It finds
basis in the Everson case where the Court declared that Jeffersons
"wall of separation" encapsulated the meaning of the First Amendment
but at the same time held that the First Amendment "requires the state
to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State
power is no more to be used so as to handicap religions than it is to
favor them." (emphasis supplied)242While the strict neutrality approach
is not hostile to religion, it is strict in holding that religion may not be
used as a basis for classification for purposes of governmental action,
whether the action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular
programs to religious belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion
clauses of the first amendment is that the freedom and separation

clauses should be read as a single precept that government cannot


utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer a
benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means
government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government
from acting except for secular purposes and in ways that have primarily
secular effects.245
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in
the public schools as in Engel and Schempp. 246 The McCollum case
prohibiting optional religious instruction within public school premises
during regular class hours also demonstrates strict neutrality. In these
education cases, the Court refused to uphold the government action as
they were based not on a secular but on a religious purpose. Strict
neutrality was also used in Reynolds and Smith which both held that if
government acts in pursuit of a generally applicable law with a secular
purpose that merely incidentally burdens religious exercise, the First
Amendment has not been offended. However, if the strict neutrality
standard is applied in interpreting the Establishment Clause, it could de
facto void religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Schempp, strict
neutrality could lead to "a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution.247 Professor Laurence Tribe commented
in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the
very idea of a free exercise clause. The Framers, whatever specific
applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing
the free exercise of religion but not, say, of philosophy or science. The
strict neutrality approach all but erases this distinction. Thus it is not

surprising that the Supreme Court has rejected strict neutrality,


permitting and sometimes mandating religious classifications.248
The separationist approach, whether strict or tame, is caught in a
dilemma because while the Jeffersonian wall of separation "captures
the spirit of the American ideal of church-state separation", in real life
church and state are not and cannot be totally separate. 249 This is all
the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and
activity, resulting in the intersection of government and religion at many
points.250
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the "wall of separation" associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes
classic, The Garden and the Wilderness, he asserts that to the extent
the Founders had a wall of separation in mind, it was unlike the
Jeffersonian wall that is meant to protect the state from the church;
instead, the wall is meant to protect the church from the state, 251i.e., the
"garden" of the church must be walled in for its own protection from the
"wilderness" of the world252 with its potential for corrupting those values
so necessary to religious commitment.253 Howe called this the
"theological" or "evangelical" rationale for church-state separation while
the wall espoused by "enlightened" statesmen such as Jefferson and
Madison, was a "political" rationale seeking to protect politics from
intrusions by the church.254 But it has been asserted that this contrast
between the Williams and Jeffersonian positions is more accurately
described as a difference in kinds or styles of religious thinking, not as
a conflict between "religious" and "secular (political)"; the religious style
was biblical and evangelical in character while the secular style was
grounded in natural religion, more generic and philosophical in its
religious orientation.255
The Williams wall is, however, breached for the church is in the state
and so the remaining purpose of the wall is to safeguard religious
liberty. Williams view would therefore allow for interaction between

church and state, but is strict with regard to state action which would
threaten the integrity of religious commitment. 256 His conception of
separation is not total such that it provides basis for certain interactions
between church and state dictated by apparent necessity or
practicality.257 This "theological" view of separation is found in Williams
writings, viz:
. . . when they have opened a gap in the hedge or wall of separation
between the garden of the church and the wilderness of the world, God
hath ever broke down the wall itself, removed the candlestick, and
made his garden a wilderness, as this day. And that therefore if He will
eer please to restore His garden and paradise again, it must of
necessity be walled in peculiarly unto Himself from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that
has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent neutrality which
will permit religious exercise to exist without sponsorship and without
interference.259 (emphasis supplied)
The Zorach case expressed the doctrine of accommodation, 260 viz:
The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall
be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly.
Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire protection
to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our
legislative halls; the appeals to the Almighty in the messages of the

Chief Executive; the proclamations making Thanksgiving Day a holiday;


"so help me God" in our courtroom oaths- these and all other
references to the Almighty that run through our laws, our public rituals,
our ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with which the
Court opens each session: God save the United States and this
Honorable Court.

automobile could not exist, as a going system, without a carburetor. . .


Most writers list religion among the functional prerequisites. 263

xxx

Benevolent neutrality thus recognizes that religion plays an important


role in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of "In God We Trust"
on American currency, the recognition of America as "one nation under
God" in the official pledge of allegiance to the flag, the Supreme Courts
time-honored practice of opening oral argument with the invocation
"God save the United States and this honorable Court," and the
practice of Congress and every state legislature of paying a chaplain,
usually of a particular Protestant denomination to lead representatives
in prayer.265 These practices clearly show the preference for one
theological viewpoint -the existence of and potential for intervention by
a god - over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing
and in other forms of poor relief, in the treatment of alcoholism and
drug addiction, in foreign aid and other government activities with
strong moral dimension.266 The persistence of these de facto
establishments are in large part explained by the fact that throughout
history, the evangelical theory of separation, i.e., Williams wall, has
demanded respect for these de facto establishments. 267 But the
separationists have a different explanation. To characterize these as de
jure establishments according to the principle of the Jeffersonian wall,
the U.S. Supreme Court, the many dissenting and concurring opinions
explain some of these practices as "de minimis instances of
government endorsement or as historic governmental practices that
have largely lost their religious significance or at least have proven not
to lead the government into further involvement with religion. 268

xxx

xxx

We are a religious people whose institutions presuppose a Supreme


Being. We guarantee the freedom to worship as one chooses. . . When
the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best
of our traditions. For it then respects the religious nature of our people
and accommodates the public service to their spiritual needs. To hold
that it may not would be to find in the Constitution a requirement that
the government show a callous indifference to religious groups. . . But
we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against
efforts
to
widen
their
effective
scope
of
religious
261
influence. (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus
there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may
be no felt need for religion and thus it is optional or even dispensable,
for society it is not, which is why there is no human society without one
or more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground
religion(s) and surrogate religion(s) in their ideology.262 As one
sociologist wrote:
It is widely held by students of society that there are certain functional
prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an

Another noted sociologist, Talcott Parsons, wrote: "There is no known


human society without something which modern social scientists would
classify as a religionReligion is as much a human universal as
language."264

With religion looked upon with benevolence and not hostility,


benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take
religion specifically into account not to promote the governments
favored form of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect therefore is to
remove a burden on, or facilitate the exercise of, a persons or
institutions religion. As Justice Brennan explained, the "government
[may] take religion into accountto exempt, when possible, from
generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or
to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."269 (emphasis supplied) Accommodation
is forbearance and not alliance. it does not reflect agreement with the
minority, but respect for the conflict between the temporal and spiritual
authority in which the minority finds itself.270
Accommodation is distinguished from strict neutrality in that the latter
holds that government should base public policy solely on secular
considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at
base a question of means: "Is the freedom of religion best achieved
when the government is conscious of the effects of its action on the
various religious practices of its people, and seeks to minimize
interferences with those practices? Or is it best advanced through a
policy of religious blindness - keeping government aloof from religious
practices and issues?" An accommodationist holds that it is good public
policy, and sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with religious
freedom. On the other hand, the strict neutrality adherent believes that
it is good public policy, and also constitutionally required, for the
government to avoid religion-specific policy even at the cost of
inhibiting religious exercise.271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position.
First, the accommodationist interpretation is most consistent with the

language of the First Amendment. The religion clauses contain two


parallel provisions, both specifically directed at "religion." The
government may not "establish" religion and neither may government
"prohibit" it. Taken together, the religion clauses can be read most
plausibly as warding off two equal and opposite threats to religious
freedom - government action that promotes the (political) majoritys
favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in view is the
preservation of the autonomy of religious life and not just the formal
process value of ensuring that government does not act on the basis of
religious bias. On the other hand, strict neutrality interprets the religion
clauses as allowing government to do whatever it desires to or for
religion, as long as it does the same to or for comparable secular
entities. Thus, for example, if government prohibits all alcoholic
consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses
violate the religion clauses, so to speak, since the religion clauses
single out religion by name for special protection. Second, the
accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment is that
freedom to carry out ones duties to a Supreme Being is an inalienable
right, not one dependent on the grace of legislature. Although
inalienable, it is necessarily limited by the rights of others, including the
public right of peace and good order. Nevertheless it is a substantive
right and not merely a privilege against discriminatory legislation. The
accomplishment of the purpose of the First Amendment requires more
than the "religion blindness" of strict neutrality. With the pervasiveness
of government regulation, conflicts with religious practices become
frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the government
must make special provisions to preserve a degree of independence for
religious entities for them to carry out their religious missions according
to their religious beliefs. Otherwise, religion will become just like other
secular entities subject to pervasive regulation by majoritarian
institutions. Third, the accommodationist interpretation is particularly
necessary to protect adherents of minority religions from the inevitable
effects of majoritarianism, which include ignorance and indifference and

overt hostility to the minority. In a democratic republic, laws are


inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those
holding different world views, even in the absence of a deliberate intent
to interfere with religious practice. At times, this effect is unavoidable as
a practical matter because some laws are so necessary to the common
good that exceptions are intolerable. But in other instances, the injury
to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural
traditions, legislators and executive officials are frequently willing to
make such exemptions when the need is brought to their attention, but
this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In
these cases, a constitutional interpretation that allows accommodations
prevents needless injury to the religious consciences of those who can
have an influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths
that are less able to protect themselves in the political arena. Fourth,
the accommodationist position is practical as it is a commonsensical
way to deal with the various needs and beliefs of different faiths in a
pluralistic nation. Without accommodation, many otherwise beneficial
laws would interfere severely with religious freedom. Aside from laws
against serving alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring hard hats in
construction areas can effectively exclude Amish and Sikhs from the
workplace, or employment anti-discrimination laws can conflict with the
Roman Catholic male priesthood, among others. Exemptions from such
laws are easy to craft and administer and contribute much to promoting
religious freedom at little cost to public policy. Without exemptions,
legislature would be frequently forced to choose between violating
religious conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption
seems manifestly more reasonable than either of the alternative: no
exemption or no law.272

Benevolent neutrality gives room for different kinds of accommodation:


those which are constitutionally compelled, i.e., required by the Free
Exercise Clause; and those which are discretionary or legislative, i.e.,
and those not required by the Free Exercise Clause but nonetheless
permitted by the Establishment Clause. 273 Some Justices of the
Supreme Court have also used the term accommodation to describe
government actions that acknowledge or express prevailing religious
sentiments of the community such as display of a religious symbol on
public property or the delivery of a prayer at public ceremonial
events.274 Stated otherwise, using benevolent neutrality as a standard
could result to three situations of accommodation: those where
accommodation is required, those where it is permissible, and those
where it is prohibited. In the first situation, accommodation is required
to preserve free exercise protections and not unconstitutionally infringe
on religious liberty or create penalties for religious freedom. Contrary to
the Smith declaration that free exercise exemptions are "intentional
government advancement", these exemptions merely relieve the
prohibition on the free exercise thus allowing the burdened religious
adherent to be left alone. The state must create exceptions to laws of
general applicability when these laws threaten religious convictions or
practices in the absence of a compelling state interest. 275 By allowing
such exemptions, the Free Exercise Clause does not give believers the
right or privilege to choose for themselves to override sociallyprescribed decision; it allows them to obey spiritual rather than
temporal authority276 for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a
matter less of rights than duties; more precisely, it is a matter of rights
derived from duties. To deny a person or a community the right to act
upon such a duty can be justified only by appeal to a yet more
compelling duty. Of course, those denied will usually not find the reason
for the denial compelling. "Because they may turn out to be right about
the duty in question, and because, even if they are wrong, religion
bears witness to that which transcends the political order, such denials
should be rare and painfully reluctant."277
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to

enrolling their children in high school as required by law. The Sherbert


case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious
convictions of Sherbert.278 In these cases of "burdensome effect", the
modern approach of the Court has been to apply strict scrutiny, i.e., to
declare the burden as permissible, the Court requires the state to
demonstrate that the regulation which burdens the religious exercise
pursues a particularly important or compelling government goal through
the least restrictive means. If the states objective could be served as
well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, such an exemption
must be given.279 This approach of the Court on "burdensome effect"
was only applied since the 1960s. Prior to this time, the Court took the
separationist view that as long as the state was acting in pursuit of nonreligious ends and regulating conduct rather than pure religious beliefs,
the Free Exercise Clause did not pose a hindrance such as in
Reynolds.280 In the second situation where accommodation is
permissible, the state may, but is not required to, accommodate
religious interests. The Walz case illustrates this situation where the
Court upheld the constitutionality of tax exemption given by New York
to church properties, but did not rule that the state was required to
provide tax exemptions. The Court declared that "(t)he limits of
permissible state accommodation to religion are by no means coextensive with the noninterference mandated by the Free Exercise
Clause."281 The Court held that New York could have an interest in
encouraging religious values and avoiding threats to those values
through the burden of property taxes. Other examples are the Zorach
case allowing released time in public schools and Marsh allowing
payment of legislative chaplains from public funds. Finally, in the
situation where accommodation is prohibited, establishment concerns
prevail over potential accommodation interests. To say that there are
valid exemptions buttressed by the Free Exercise Clause does not
mean that all claims for free exercise exemptions are valid. 282 An
example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school
premises.283 In effect, the last situation would arrive at a strict neutrality
conclusion.

In the first situation where accommodation is required, the approach


follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the
free exercise of his religious beliefs, the burden shifts to the
government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or compelling) secular objective
and that it is the least restrictive means of achieving that objective. If
the plaintiff meets this burden and the government does not, the plaintiff
is entitled to exemption from the law or practice at issue. In order to be
protected, the claimants beliefs must be sincere, but they need not
necessarily be consistent, coherent, clearly articulated, or congruent
with those of the claimants religious denomination. Only beliefs rooted
in religion are protected by the Free Exercise Clause; secular beliefs,
however sincere and conscientious, do not suffice.284
In other words, a three-step process (also referred to as the "two-step
balancing process" supra when the second and third steps are
combined) as in Sherbert is followed in weighing the states interest
and religious freedom when these collide. Three questions are
answered in this process. First, "(h)as the statute or government action
created a burden on the free exercise of religion?" The courts often
look into the sincerity of the religious belief, but without inquiring into
the truth of the belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and Cantwell. The sincerity of
the claimants belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. As evidence of sincerity, the
U.S. Supreme Court has considered historical evidence as in
Wisconsin where the Amish people had held a long-standing objection
to enrolling their children in ninth and tenth grades in public high
schools. In another case, Dobkin v. District of Columbia, 285 the Court
denied the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court
might erroneously deny some claims because of a misjudgment of
sincerity, this is not as argument to reject all claims by not allowing
accommodation as a rule. There might be injury to the particular

claimant or to his religious community, but for the most part, the
injustice is done only in the particular case. 286 Aside from the sincerity,
the court may look into the centrality of those beliefs, assessing them
not on an objective basis but in terms of the opinion and belief of the
person seeking exemption. In Wisconsin, for example, the Court noted
that the Amish peoples convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly, in
Sherbert, the Court concluded that the prohibition against Saturday
work was a "cardinal principle." 287 Professor Lupu puts to task the
person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant
religious practice must be demonstrated. Religious command should
outweigh custom, individual conscience should count for more than
personal convenience, and theological principle should be of greater
significance than institutional ease. Sincerity matters, (footnote omitted)
and longevity of practice - both by the individual and within the
individuals religious tradition - reinforces sincerity. Most importantly, the
law of free exercise must be inclusive and expansive, recognizing nonChristian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of
the intensity and scope of fundamentalist creed. 288
Second, the court asks: "(i)s there a sufficiently compelling state
interest to justify this infringement of religious liberty?" In this step, the
government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than
assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined if
exemptions are granted.289 The person claiming religious freedom, on
the other hand, will endeavor to show that the interest is not legitimate
or that the purpose, although legitimate, is not compelling compared to
infringement of religious liberty. This step involves balancing, i.e.,
weighing the interest of the state against religious liberty to determine
which is more compelling under the particular set of facts. The greater
the states interests, the more central the religious belief would have to
be to overcome it. In assessing the state interest, the court will have to

determine the importance of the secular interest and the extent to


which that interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there will be
no requirement that the state diminish the effectiveness of its regulation
by granting the exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate
purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?"291The analysis requires the state to show
that the means in which it is achieving its legitimate state objective is
the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious
liberties. In Cantwell, for example, the Court invalidated the license
requirement for the door-to-door solicitation as it was a forbidden
burden on religious liberty, noting that less drastic means of insuring
peace and tranquility existed. As a whole, in carrying out the compelling
state interest test, the Court should give careful attention to context,
both religious and regulatory, to achieve refined judgment. 292
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of
1876. Civil authorities exercised religious functions and the friars
exercised civil powers.294 Catholics alone enjoyed the right of engaging
in public ceremonies of worship.295 Although the Spanish Constitution
itself was not extended to the Philippines, Catholicism was also the
established church in our country under the Spanish rule. Catholicism

was in fact protected by the Spanish Penal Code of 1884 which was in
effect in the Philippines. Some of the offenses in chapter six of the
Penal Code entitled "Crimes against Religion and Worship" referred to
crimes against the state religion.296 The coming of the Americans to our
country, however, changed this state-church scheme for with the
advent of this regime, the unique American experiment of "separation
of church and state" was transported to Philippine soil.

This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that "(t)he separation
between State and Church shall be real, entire and absolute." 300

Even as early as the conclusion of the Treaty of Paris between the


United States and Spain on December 10, 1898, the American
guarantee of religious freedom had been extended to the Philippines.
The Treaty provided that "the inhabitants of the territories over which
Spain relinquishes or cedes her sovereignty shall be secured in the free
exercise of religion."297 Even the Filipinos themselves guaranteed
religious freedom a month later or on January 22, 1899 upon the
adoption of the Malolos Constitution of the Philippine Republic under
General Emilio Aguinaldo. It provided that "the State recognizes the
liberty and equality of all religion (de todos los cultos) in the same
manner as the separation of the Church and State." But the Malolos
Constitution and government was short-lived as the Americans took
over the reigns of government.298

No law shall be made respecting an establishment of religion or


prohibiting the free exercise thereof, and that free exercise and
enjoyment of religious worship, without discrimination or preference,
shall forever be allowed.

With the Philippines under the American regime, President McKinley


issued Instructions to the Second Philippine Commission, the body
created to take over the civil government in the Philippines in 1900. The
Instructions guaranteed religious freedom, viz:

That no law shall be made respecting an establishment of religion or


prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be
required for the exercise of civil or political rights. No public money or
property shall ever be appropriated, applied, donated, or used, directly
or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or other religious
teachers or dignitary as such.

That no law shall be made respecting the establishment of religion or


prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no
minister of religion shall be forced upon the community or upon any
citizen of the Islands, that, on the other hand, no minister of religion
shall be interfered with or molested in following his calling.299

Thereafter, every organic act of the Philippines contained a provision


on freedom of religion. Similar to the religious freedom clause in the
Instructions, the Philippine Bill of 1902 provided that:

In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902
"caused the complete separation of church and state, and the abolition
of all special privileges and all restrictions theretofor conferred or
imposed upon any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it
with a restriction against using public money or property for religious
purposes, viz:

This was followed by the Philippine Independence Law or TydingsMcDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It
enjoined Filipinos to include freedom of religion in drafting their

constitution preparatory to the grant of independence. The law


prescribed that "(a)bsolute toleration of religious sentiment shall be
secured and no inhabitant or religious organization shall be molested in
person or property on account of religious belief or mode of worship." 303
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman
of the Committee on Bill of Rights acknowledged that "(i)t was the
Treaty of Paris of December 10, 1898, which first introduced religious
toleration in our country. President McKinleys Instructions to the
Second Philippine Commission reasserted this right which later was
incorporated into the Philippine Bill of 1902 and in the Jones Law." 304 In
accordance with the Tydings-McDuffie Law, the 1935 Constitution
provided in the Bill of Rights, Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required
for the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by
the Convention.305 In his speech as Chairman of the Committee on Bill
of Rights, Delegate Laurel said that modifications in phraseology of the
Bill of Rights in the Jones Law were avoided whenever possible
because "the principles must remain couched in a language expressive
of their historical background, nature, extent and limitations as
construed and interpreted by the great statesmen and jurists that
vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution
contained an almost identical provision on religious freedom in the Bill
of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination or

preference, shall forever be allowed. No religious test shall be required


for the exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in
Section 15 that "(t)he separation of church and state shall be
inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the
Bill of Rights in Article III, Section 5. 307 Likewise, the provision on
separation of church and state was included verbatim in the 1987
Constitution, but this time as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and
the intent to adopt the historical background, nature, extent and
limitations of the First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising that nearly all the
major Philippine cases involving the religion clauses turn to U.S.
jurisprudence in explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases would also reveal
that while U.S. jurisprudence on religion clauses flows into two main
streams of interpretation - separation and benevolent neutrality - the
well-spring of Philippine jurisprudence on this subject is for the most
part, benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of "religion". "Religion" is derived
from the Middle English religioun, from Old French religion, from Latin
religio, vaguely referring to a "bond between man and the gods." 308 This
pre-Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible. 309 While the U.S.
Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a nontheistic belief or act is covered by the religion clauses, this Court has

not been confronted with the same issue. In Philippine jurisprudence,


religion, for purposes of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case of Aglipay v.
Ruiz310 involving the Establishment Clause, defined "religion" as a
"profession of faith to an active power that binds and elevates man to
his Creator." Twenty years later, the Court cited the Aglipay definition in
American Bible Society v. City of Manila, 311 a case involving the Free
Exercise clause. The latter also cited the American case of Davis in
defining religion, viz: "(i)t has reference to ones views of his relations to
His Creator and to the obligations they impose of reverence to His
being and character and obedience to His Will." The Beason definition,
however, has been expanded in U.S. jurisprudence to include nontheistic beliefs.

The difficulty in interpretation sets in when belief is externalized into


speech and action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the
bible in the course of its ministry. The defendant City of Manila required
plaintiff to secure a mayors permit and a municipal license as ordinarily
required of those engaged in the business of general merchandise
under the citys ordinances. Plaintiff argued that this amounted to
"religious censorship and restrained the free exercise and enjoyment of
religious profession, to wit: the distribution and sale of bibles and other
religious literature to the people of the Philippines."

1. Free Exercise Clause


Freedom of choice guarantees the liberty of the religious conscience
and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of ones religion. The Free Exercise Clause
principally guarantees voluntarism, although the Establishment Clause
also assures voluntarism by placing the burden of the advancement of
religious groups on their intrinsic merits and not on the support of the
state.312
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education 313 is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by
ones imagination and thought. So is the freedom of belief, including
religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of belief
and the exercise of said belief, there is quite a stretch of road to
travel.314

After defining religion, the Court, citing Tanada and Fernando, made
this statement, viz:
The constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate
religious information. Any restraint of such right can only be justified like
other restraints of freedom of expression on the grounds that there is a
clear and present danger of any substantive evil which the State has
the right to prevent. (Tanada and Fernando on the Constitution of the
Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)
This was the Courts maiden unequivocal affirmation of the "clear and
present danger" rule in the religious freedom area, and in Philippine
jurisprudence, for that matter.315 The case did not clearly show,
however, whether the Court proceeded to apply the test to the facts and
issues of the case, i.e., it did not identify the secular value the
government regulation sought to protect, whether the religious speech
posed a clear and present danger to this or other secular value
protected by government, or whether there was danger but it could not
be characterized as clear and present. It is one thing to apply the test
and find that there is no clear and present danger, and quite another
not to apply the test altogether.

Instead, the Court categorically held that the questioned ordinances


were not applicable to plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for profit. To add, the Court,
citing Murdock v. Pennsylvania, 316 ruled that applying the ordinance
requiring it to secure a license and pay a license fee or tax would impair
its free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." Thus, in
American Bible Society, the "clear and present danger" rule was laid
down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance, 317 also
involving the sale of religious books, the Court distinguished the
American Bible Society case from the facts and issues in Tolentino and
did not apply the American Bible Society ruling. In Tolentino, the
Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior restraint. The
Court held, however, that the fixed amount of registration fee was not
imposed for the exercise of a privilege like a license tax which
American Bible Society ruled was violative of religious freedom. Rather,
the registration fee was merely an administrative fee to defray part of
the cost of registration which was a central feature of the VAT system.
Citing Jimmy Swaggart Ministries v. Board of Equalization, 318 the Court
also declared prefatorily that "the Free Exercise of Religion Clause
does not prohibit imposing a generally applicable sales and use tax on
the sale of religious materials by a religious organization." In the Courts
resolution of the motion for reconsideration of the Tolentino decision,
the Court noted that the burden on religious freedom caused by the tax
was just similar to any other economic imposition that might make the
right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona
v. Secretary of Education,319 this time involving conduct expressive of
religious belief colliding with a rule prescribed in accordance with law.
In this case, petitioners were members of the Jehovahs Witnesses.
They challenged a Department Order issued by the Secretary of
Education implementing Republic Act No. 1265 which prescribed

compulsory flag ceremonies in all public schools. In violation of the


Order, petitioners children refused to salute the Philippine flag, sing the
national anthem, or recite the patriotic pledge, hence they were
expelled from school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on account of their
religious belief that the Philippine flag is an image and saluting the
same is contrary to their religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield to the
latter. The Government steps in and either restrains said exercise or
even prosecutes the one exercising it. (emphasis supplied)320
The Court then proceeded to determine if the acts involved constituted
a religious ceremony in conflict with the beliefs of the petitioners with
the following justification:
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meaning to be given to a certain
ritual or ceremony as there are religious groups or sects or followers, all
depending upon the meaning which they, though in all sincerity and
good faith, may want to give to such ritual or ceremony.321
It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the
singing of the national anthem as it speaks only of love of country,
patriotism, liberty and the glory of suffering and dying for it. The Court
upheld the questioned Order and the expulsion of petitioners children,
stressing that:
Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of love of
country, reverence for the flag, national unity and patriotism, they can

hardly afford to differ, for these are matters in which they are mutually
and vitally interested, for to them, they mean national existence and
survival as a nation or national extinction.322
In support of its ruling, the Court cited Justice Frankfurters dissent in
the Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of
religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable
and non-discriminatory laws, rules and regulations promulgated by
competent authority.324
Thus, the religious freedom doctrines one can derive from Gerona are:
(1) it is incumbent upon the Court to determine whether a certain ritual
is religious or not; (2) religious freedom will not be upheld if it clashes
with the established institutions of society and with the law such that
when a law of general applicability (in this case the Department Order)
incidentally burdens the exercise of ones religion, ones right to
religious freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of
Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
Rope Workers Union.326 In this unanimously decided en banc case,
Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope
Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the

application and coverage of a closed shop agreement employees


belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from the
union after Republic Act No. 3350 took effect. The union notified the
company of Victorianos resignation, which in turn notified Victoriano
that unless he could make a satisfactory arrangement with the union,
the company would be constrained to dismiss him from the service.
Victoriano sought to enjoin the company and the union from dismissing
him. The court having granted the injunction, the union came to this
Court on questions of law, among which was whether Republic Act No.
3350 was unconstitutional for impairing the obligation of contracts and
for granting an exemption offensive of the Establishment Clause. With
respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal
right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84
L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom
of religion. It is only where unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be justified, and
only to the smallest extent necessary.327 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed or
the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed.
1148, 1153), but also assures the free exercise of ones chosen form of
religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the
broadest possible liberty of conscience, to allow each man to believe as
his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the

common good. (footnote omitted). Any legislation whose effect or


purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though
the burden may be characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state
regulates conduct by enacting, within its power, a general law which
has for its purpose and effect to advance the states secular goals, the
statute is valid despite its indirect burden on religious observance,
unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct.
144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449) 328(emphasis
supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not
precluded from pursuing valid objectives secular in character even if
the incidental result would be favorable to a religion or sect." It also
cited Board of Education v. Allen, 330 which held that in order to
withstand the strictures of constitutional prohibition, a statute must have
a secular legislative purpose and a primary effect that neither advances
nor inhibits religion. Using these criteria in upholding Republic Act No.
3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by
averting that certain persons be refused work, or be dismissed from
work, or be dispossessed of their right to work and of being impeded to
pursue a modest means of livelihood, by reason of union security
agreements. . . . The primary effects of the exemption from closed shop
agreements in favor of members of religious sects that prohibit their
members from affiliating with a labor organization, is the protection of
said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious
beliefs, and . . . eliminating to a certain extent economic insecurity due
to unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those
who are members of religious sects that prohibit their members from

joining labor unions, the benefit upon the religious sects is merely
incidental and indirect."332 In enacting Republic Act No. 3350, Congress
merely relieved the exercise of religion by certain persons of a burden
imposed by union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court concluded the
issue of exemption by citing Sherbert which laid down the rule that
when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some "compelling state interest" intervenes.
The Court then abruptly added that "(i)n the instant case, We see no
compelling state interest to withhold exemption."333
A close look at Victoriano would show that the Court mentioned several
tests in determining when religious freedom may be validly limited.
First, the Court mentioned the test of "immediate and grave danger to
the security and welfare of the community" and "infringement of
religious freedom only to the smallest extent necessary" to justify
limitation of religious freedom. Second, religious exercise may be
indirectly burdened by a general law which has for its purpose and
effect the advancement of the states secular goals, provided that there
is no other means by which the state can accomplish this purpose
without imposing such burden. Third, the Court referred to the
"compelling state interest" test which grants exemptions when general
laws conflict with religious exercise, unless a compelling state interest
intervenes.
It is worth noting, however, that the first two tests were mentioned only
for the purpose of highlighting the importance of the protection of
religious freedom as the secular purpose of Republic Act No. 3350.
Upholding religious freedom was a secular purpose insofar as it
relieved the burden on religious freedom caused by another law, i.e, the
Industrial Peace Act providing for union shop agreements. The first two
tests were only mentioned in Victoriano but were not applied by the
Court to the facts and issues of the case. The third, the "compelling
state interest" test was employed by the Court to determine whether the
exemption provided by Republic Act No. 3350 was not unconstitutional.
It upheld the exemption, stating that there was no "compelling state
interest" to strike it down. However, after careful consideration of the

Sherbert case from which Victoriano borrowed this test, the inevitable
conclusion is that the "compelling state interest" test was not
appropriate and could not find application in the Victoriano case. In
Sherbert, appellant Sherbert invoked religious freedom in seeking
exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment
benefits. It was the appellees, members of the South Carolina
Employment Commission, a government agency, who propounded the
state interest to justify overriding Sherberts claim of religious freedom.
The U.S. Supreme Court, considering Sherberts and the Commissions
arguments, found that the state interest was not sufficiently compelling
to prevail over Sherberts free exercise claim. This situation did not
obtain in the Victoriano case where it was the government itself,
through Congress, which provided the exemption in Republic Act No.
3350 to allow Victorianos exercise of religion. Thus, the government
could not argue against the exemption on the basis of a compelling
state interest as it would be arguing against itself; while Victoriano
would not seek exemption from the questioned law to allow the free
exercose of religion as the law in fact provides such an exemption. In
sum, although Victoriano involved a religious belief and conduct, it did
not involve a free exercise issue where the Free Exercise Clause is
invoked to exempt him from the burden imposed by a law on his
religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni
Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v.
National Labor Union, et al.,335 and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.336
Then came German v. Barangan in 1985 at the height of the antiadministration rallies. Petitioners were walking to St. Jude Church
within the Malacanang security area to pray for "an end to violence"
when they were barred by the police. Invoking their constitutional
freedom of religious worship and locomotion, they came to the Court on
a petition for mandamus to allow them to enter and pray inside the St.
Jude Chapel. The Court was divided on the issue. The slim majority of

six recognized their freedom of religion but noted their absence of good
faith and concluded that they were using their religious liberty to
express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on
matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to
believe and freedom to act. The first is absolute, but in the nature of
things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the manner by
which they had attempted to translate the same to action. This
curtailment is in accord with the pronouncement of this Court in Gerona
v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said religious
belief clashes with the established institutions of society and with the
law, then the former must yield and give way to the latter. The
government steps in and either restrains said exercise or even
prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was
"necessary to maintain the smooth functioning of the executive branch
of the government, which petitioners mass action would certainly
disrupt"338and denied the petition. Thus, without considering the tests
mentioned in Victoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:

A brief restatement of the applicable constitutional principles as set


forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA
553[1983]) should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8
of our Bill of Rights. (footnote omitted) Freedom of worship, alongside
with freedom of expression and speech and peaceable assembly
"along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that
on the judiciary - even more so than on the other departments - rests
the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so felicitously
termed by Justice Holmes as the sovereign prerogative of judgment.
Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do
precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior
restraint although there may be subsequent punishment of any illegal
acts committed during the exercise of such basic rights. The sole
justification for a prior restraint or limitation on the exercise of these
basic rights is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that
the State has a right (and duty) to prevent (Idem, at pp. 560561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that
case was a permit sought by retired Justice J.B.L. Reyes, on behalf of
the Anti-Bases Coalition, from the City of Manila to hold a peaceful
march and rally from the Luneta to the gates of the U.S. Embassy.
Nevertheless Bagatsing was used by Justice Teehankee in his dissent
which had overtones of petitioner German and his companions right to
assemble and petition the government for redress of grievances. 340

In 1993, the issue on the Jehovahs Witnesses participation in the flag


ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.341 A unanimous Court overturned the
Gerona ruling after three decades. Similar to Gerona, this case
involved several Jehovahs Witnesses who were expelled from school
for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge, in violation of the Administrative Code of 1987. In
resolving the same religious freedom issue as in Gerona, the Court this
time transported the "grave and imminent danger" test laid down in
Justice Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA
514, 517) is the existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public safety, public
morals, public health or any other legitimate public interest, that the
State has a right (and duty) to prevent. Absent such a threat to public
safety, the expulsion of the petitioners from the schools is not
justified.342(emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a small portion
of the school population will shake up our part of the globe and
suddenly produce a nation untaught and uninculcated in and unimbued
with reverence for the flag, patriotism, love of country and admiration
for national heroes (Gerona v. Secretary of Education, 106 Phil. 224).
After all, what the petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where they may study
the Constitution, the democratic way of life and form of government,
and learn not only the arts, sciences, Philippine history and culture but
also receive training for a vocation or profession and be taught the
virtues of patriotism, respect for human rights, appreciation of national
heroes, the rights and duties of citizenship, and moral and spiritual

values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula.
Expelling or banning the petitioners from Philippine schools will bring
about the very situation that this Court has feared in Gerona. Forcing a
small religious group, through the iron hand of the law, to participate in
a ceremony that violates their religious beliefs, will hardly be conducive
to love of country or respect for duly constituted authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained
through coercion- is not a goal that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by
prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046).344
Towards the end of the decision, the Court also cited the Victoriano
case and its use of the "compelling state interest" test in according
exemption to the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the
coverage of a closed shop agreement between their employer and a
union because it would violate the teaching of their church not to join
any group:
x x x It is certain that not every conscience can be accommodated by
all the laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some compelling
state interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed.
2d 965, 970, 83 S.Ct. 1790)
We hold that a similar exemption may be accorded to the Jehovahs
Witnesses with regard to the observance of the flag ceremony out of
respect for their religious beliefs, however bizarre those beliefs may
seem to others.345

The Court annulled the orders expelling petitioners from school.


Thus, the "grave and imminent danger" test laid down in a dissenting
opinion in German which involved prior restraint of religious worship
with overtones of the right to free speech and assembly, was
transported to Ebralinag which did not involve prior restraint of religious
worship, speech or assembly. Although, it might be observed that the
Court faintly implied that Ebralinag also involved the right to free
speech when in its preliminary remarks, the Court stated that
compelling petitioners to participate in the flag ceremony "is alien to the
conscience of the present generation of Filipinos who cut their teeth on
the Bill of Rights which guarantees their rights to free speech and the
free exercise of religious profession and worship;" the Court then stated
in a footnote that the "flag salute, singing the national anthem and
reciting the patriotic pledge are all forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in
Ebralinag. In the Solicitor Generals consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public
respondents was that "(t)he States compelling interests being pursued
by the DECs lawful regulations in question do not warrant exemption of
the school children of the Jehovahs Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only towards
the end of the decision and did not even mention what the Solicitor
General argued as the compelling state interest, much less did the
Court explain why the interest was not sufficiently compelling to
override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia
ni Cristo v. Court of Appeals, et al. 348Although there was a dissent with
respect to the applicability of the "clear and present danger" test in this
case, the majority opinion in unequivocal terms applied the "clear and
present danger" test to religious speech. This case involved the
television program, "Ang Iglesia ni Cristo," regularly aired over the
television. Upon petitioner Iglesia ni Cristos submission of the VTR
tapes of some of its episodes, respondent Board of Review for Motion

Pictures and Television classified these as "X" or not for public viewing
on the ground that they "offend and constitute an attack against other
religions which is expressly prohibited by law." Invoking religious
freedom, petitioner alleged that the Board acted without jurisdiction or
with grave abuse of discretion in requiring it to submit the VTR tapes of
its television program and x-rating them. While upholding the Boards
power to review the Iglesia television show, the Court was emphatic
about the preferred status of religious freedom. Quoting Justice Cruz
commentary on the constitution, the Court held that freedom to believe
is absolute but freedom to act on ones belief, where it affects the
public, is subject to the authority of the state. The commentary quoted
Justice Frankfurters dissent in Barnette which was quoted in Gerona,
viz: "(t)he constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not
civil immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious
dogma."349 Nevertheless, the Court was quick to add the criteria by
which the state can regulate the exercise of religious freedom, that is,
when the exercise will bring about the "clear and present danger of
some substantive evil which the State is duty bound to prevent, i.e.,
serious detriment to the more overriding interest of public health, public
morals, or public welfare."350
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including
religious speech and the x-rating was a suppression of petitioners
freedom of speech as much as it was an interference with its right to
free exercise of religion. Citing Cantwell, the Court recognized that the
different religions may criticize one another and their tenets may
collide, but the Establishment Clause prohibits the state from protecting
any religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first
laid down in the American Bible Society case and the test of "immediate
and grave danger" with "infringement only to the smallest extent
necessary to avoid danger" in Victoriano and pointed out that the
reviewing board failed to apply the "clear and present danger" test.
Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed
by the respondent appellate court, is completely bereft of findings of
facts to justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing
whatsoever of the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on
speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which
has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the "clear and present
danger" test to the case, the Court acknowledged the permutations that
the test has undergone, but stressed that the test is still applied to four
types of speech: "speech that advocates dangerous ideas, speech that
provokes a hostile audience reaction, out of court contempt and release
of information that endangers a fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to
apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily provoke
hostile audience reaction. It cannot be doubted that religious truths
disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding
that religious freedom cannot be invoked to seek exemption from
compliance with a law that burdens ones religious exercise. It also
reiterated the "clear and present danger" test in American Bible Society
and the "grave and imminent danger" in Victoriano, but this time clearly
justifying its applicability and showing how the test was applied to the
case.

In sum, the Philippine Supreme Court has adopted a posture of


not invalidating a law offensive to religious freedom, but carving
out an exception or upholding an exception to accommodate
religious exercise where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values
sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the
human conscience which, as discussed above, is also protected by the
free exercise clause. From the religious perspective, religion requires
voluntarism because compulsory faith lacks religious efficacy.
Compelled religion is a contradiction in terms. 354 As a social value, it
means that the "growth of a religious sect as a social force must come
from the voluntary support of its members because of the belief that
both spiritual and secular society will benefit if religions are allowed to
compete on their own intrinsic merit without benefit of official
patronage. Such voluntarism cannot be achieved unless the political
process is insulated from religion and unless religion is insulated from
politics."355 Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith
dissension.356
The neutrality principle was applied in the first significant nonestablishment case under the 1935 Constitution. In the 1937 case of
Aglipay v. Ruiz,357 the Philippine Independent Church challenged the
issuance and sale of postage stamps commemorating the Thirty-Third
International Eucharistic Congress of the Catholic Church on the
ground that the constitutional prohibition against the use of public
money for religious purposes has been violated. It appears that the
Director of Posts issued the questioned stamps under the provisions of
Act No. 4052358 which appropriated a sum for the cost of plates and
printing of postage stamps with new designs and authorized the
Director of Posts to dispose of the sum in a manner and frequency

"advantageous to the Government." The printing and issuance of the


postage stamps in question appears to have been approved by
authority of the President. Justice Laurel, speaking for the Court, took
pains explaining religious freedom and the role of religion in society,
and in conclusion, found no constitutional infirmity in the issuance and
sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to
the historical background of this principle in our country, it is sufficient to
say that our history, not to speak of the history of mankind, has taught
us that the union of church and state is prejudicial to both, for
occasions might arise when the state will use the church, and the
church the state, as a weapon in the furtherance of their respective
ends and aims . . . It is almost trite to say now that in this country we
enjoy both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their oath to
support and defend the Constitution, bind themselves to recognize and
respect the constitutional guarantee of religious freedom, with its
inherent limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere
toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in
so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society is

recognized here as elsewhere. In fact, certain general concessions are


indiscriminately accorded to religious sects and denominations. . . 359
xxx

xxx

xxx

It is obvious that while the issuance and sale of the stamps in question
may be said to be inseparably linked with an event of a religious
character, the resulting propaganda, if any, received by the Roman
Catholic Church, was not the aim and purpose of the Government. We
are of the opinion that the Government should not be embarrassed in
its activities simply because of incidental results, more or less religious
in character, if the purpose had in view is one which could legitimately
be undertaken by appropriate legislation. The main purpose should not
be frustrated by its subordination to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168)360 (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down
the doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it incidentally
aids a particular religion.
Almost
forty-five
years
after
Aglipay
came
Garces
v.
361
Estenzo. Although the Court found that the separation of church and
state was not at issue as the controversy was over who should have
custody of a saints image, it nevertheless made pronouncements on
the separation of church and state along the same line as the Aglipay
ruling. The Court held that there was nothing unconstitutional or illegal
in holding a fiesta and having a patron saint for the barrio. It adhered to
the barrio resolutions of the barangay involved in the case stating that
the barrio fiesta is a socio-religious affair, the celebration of which is an
"ingrained tradition in rural communities" that "relieves the monotony
and drudgery of the lives of the masses." Corollarily, the Court found
nothing illegal about any activity intended to facilitate the worship of the
patron saint such as the acquisition and display of his image bought
with funds obtained through solicitation from the barrio residents. The
Court pointed out that the image of the patron saint was "purchased in

connection with the celebration of the barrio fiesta honoring the patron
saint, San Vicente Ferrer, and not for the purpose of favoring any
religion nor interfering with religious matters or the religious beliefs of
the barrio residents." Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of
public funds and which has some religious tint is violative of the
constitutional provisions regarding separation of church and state,
freedom of worship and banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al. 362 which presented
a novel issue involving the religion clauses. In this case, Section 2175
of the Revised Administrative Code of 1917 disqualifying ecclesiastics
from appointment or election as municipal officer was challenged. After
protracted deliberation, the Court was sharply divided on the issue.
Seven members of the Court, one short of the number necessary to
declare a law unconstitutional, approached the problem from a free
exercise perspective and considered the law a religious test offensive
of the constitution. They were Justices Fernando, Teehankee, MuozPalma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: "The challenged
Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face,
inconsistent with the religious freedom guaranteed by the Constitution."
Citing Torcaso v. Watkins,363 the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has
persuasive weight. What was there involved was the validity of a
provision in the Maryland Constitution prescribing that no religious test
ought ever to be required as a disqualification for any office or profit or
trust in this State, other than a declaration of belief in the existence of
God ***. Such a constitutional requirement was assailed as contrary to
the First Amendment of the United States Constitution by an appointee
to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the
Maryland Court of Appeals but prevailed in the United States Supreme
Court, which reversed the state court decision. It could not have been

otherwise. As emphatically declared by Justice Black: this Maryland


religious test for public office unconstitutionally invades the appellants
freedom of belief and religion and therefore cannot be enforced against
him.
The analogy appears to be obvious. In that case, it was lack of belief in
God that was a disqualification. Here being an ecclesiastic and
therefore professing a religious faith suffices to disqualify for a public
office. There is thus an incompatibility between the Administrative Code
provision relied upon by petitioner and an express constitutional
mandate.364
On the other hand, the prevailing five other members of the Court Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino approached the case from a non-establishment perspective and upheld
the law as a safeguard against the constant threat of union of church
and state that has marked Philippine history. Justice Makasiar stated:
"To allow an ecclesiastic to head the executive department of a
municipality is to permit the erosion of the principle of separation of
Church and State and thus open the floodgates for the violation of the
cherished liberty of religion which the constitutional provision seeks to
enforce and protect." Consequently, the Court upheld the validity of
Section 2175 of the Revised Administrative Code and declared
respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals 365 is the
leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly violates
the law it professes to administer, or is in conflict with the law of the
land, it will not be followed by the civil courts. . . In some instances, not
only have the civil courts the right to inquire into the jurisdiction of the
religious tribunals and the regularity of their procedure, but they have

subjected their decisions to the test of fairness or to the test furnished


by the constitution and the law of the church. . .367
The Court then ruled that petitioner Fonacier was legitimately ousted
and respondent de los Reyes was the duly elected head of the Church,
based on their internal laws. To finally dispose of the property issue, the
Court, citing Watson v. Jones, 368 declared that the rule in property
controversies within religious congregations strictly independent of any
other superior ecclesiastical association (such as the Philippine
Independent Church) is that the rules for resolving such controversies
should be those of any voluntary association. If the congregation
adopts the majority rule then the majority should prevail; if it adopts
adherence to duly constituted authorities within the congregation, then
that should be followed. Applying these rules, Fonacier lost the case.
While the Court exercised jurisdiction over the case, it nevertheless
refused to touch doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion
and abandonment of faith or abjuration alleged by appellant, having to
do with faith, practice, doctrine, form of worship, ecclesiastical law,
custom and rule of a church and having reference to the power of
excluding from the church those allegedly unworthy of membership, are
unquestionably ecclesiastical matters which are outside the province of
the civil courts.369
VIII. Free Exercise Clause vis--vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between a
command not to establish religion and a command not to inhibit its
practice; this tension between the religion clauses often leaves the
courts with a choice between competing values in religion cases.370
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point
of view, and decided in opposite directions. In Pamil, the majority gave

more weight to the religious liberty of the priest in holding that the
prohibition of ecclesiastics to assume elective or appointive
government positions was violative of the Free Exercise Clause. On the
other hand, the prevailing five justices gave importance to the
Establishment Clause in stating that the principle of separation of
church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount
to support of the religion in violation of the Establishment Clause. This
was the case in the Free Exercise Clause case of Sherbert where the
U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of
the Seventh-day Adventist religion in South Carolina, for the extension
of unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not represent
that involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case where
the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious bodies in
violation of the Establishment Clause. But the Court held that the
exemption was not a case of establishing religion but merely upholding
the Free Exercise Clause by "sparing the exercise of religion from the
burden of property taxation levied on private profit institutions." Justice
Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and either of
which, if expanded to a logical extreme, would tend to clash with the
other.372

Similarly, the Philippine Supreme Court in the Victoriano case held that
the exemption afforded by law to religious sects who prohibit their
members from joining unions did not offend the Establishment Clause.
We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely
to relieve the exercise of religion, by certain persons, of a burden that is
imposed by union security agreements.373 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In
Schempp, Justice Brennan stated: "(t)here are certain practices,
conceivably violative of the Establishment Clause, the striking down of
which might seriously interfere with certain religious liberties also
protected by the First Amendment."
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the
actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses
should be balanced against each other. The courts must review all the
relevant facts and determine whether there is a sufficiently strong free
exercise right that should prevail over the Establishment Clause
problem. In the United States, it has been proposed that in balancing,
the free exercise claim must be given an edge not only because of
abundant historical evidence in the colonial and early national period of
the United States that the free exercise principle long antedated any
broad-based support of disestablishment, but also because an
Establishment Clause concern raised by merely accommodating a
citizens free exercise of religion seems far less dangerous to the
republic than pure establishment cases. Each time the courts side with
the Establishment Clause in cases involving tension between the two
religion clauses, the courts convey a message of hostility to the religion
that in that case cannot be freely exercised. 374 American professor of
constitutional law, Laurence Tribe, similarly suggests that the free
exercise principle "should be dominant in any conflict with the anti-

establishment principle." This dominance would be the result of


commitment to religious tolerance instead of "thwarting at all costs even
the faintest appearance of establishment." 375 In our jurisdiction, Fr.
Joaquin Bernas, S.J. asserts that a literal interpretation of the religion
clauses does not suffice. Modern society is characterized by the
expanding regulatory arm of government that reaches a variety of
areas of human conduct and an expanding concept of religion. To
adequately meet the demands of this modern society, the societal
values the religion clauses are intended to protect must be considered
in their interpretation and resolution of the tension. This, in fact, has
been the approach followed by the Philippine Court. 376
IX.
Philippine Religion
Clauses:
Nature,
Purpose,
Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the
U.S. Constitution. The religion clauses in the First Amendment were
contained in every organic Act of the Philippines under the American
regime. When the delegates of the 1934 Constitutional Convention
adopted a Bill of Rights in the 1935 Constitution, they purposely
retained the phraseology of the religion clauses in the First Amendment
as contained in the Jones Law in order to adopt its historical
background, nature, extent and limitations. At that time, there were not
too many religion clause cases in the United States as the U.S.
Supreme Court decided an Establishment Clause issue only in the
1947 Everson case. The Free Exercise Clause cases were also scarce
then. Over the years, however, with the expanding reach of government
regulation to a whole gamut of human actions and the growing plurality
and activities of religions, the number of religion clause cases in the
U.S. exponentially increased. With this increase came an expansion of
the interpretation of the religion clauses, at times reinforcing prevailing
case law, at other times modifying it, and still at other times creating
contradictions so that two main streams of jurisprudence had become
identifiable. The first stream employs separation while the second
employs benevolent neutrality in interpreting the religious clauses.

Alongside this change in the landscape of U.S. religion clause


jurisprudence, the Philippines continued to adopt the 1935 Constitution
religion clauses in the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of
U.S. religion clause jurisprudence and the two identifiable streams;
thus, when a religion clause case comes before the Court, a
separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might
conclude that as the history of the First Amendment as narrated by the
Court in Everson supports the separationist approach, Philippine
jurisprudence should also follow this approach in light of the Philippine
religion clauses history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently burdens
his religious exercise, he faces an almost insurmountable wall in
convincing the Court that the wall of separation would not be breached
if the Court grants him an exemption. These conclusions, however, are
not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three
constitutions.1wphi1 It is a cardinal rule in constitutional construction
that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner
that will give to all of them full force and effect. 377 From this
construction, it will be ascertained that the intent of the framers was to
adopt a benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement of this
intent is the goal of construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution provided for
an Establishment Clause, it also provided for tax exemption of church
property in Article VI, Section 22, par. 3(b), viz:

(3) Cemeteries, churches, and parsonages or convents, appurtenant


thereto, and all lands, buildings, and improvements used exclusively for
religious, charitable, or educational purposes shall be exempt from
taxation.

the regime of the 1935 Constitution. The provision, as stated in the


deliberations, was an acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty, thereby evincing
benevolence towards religious exercise.

Before the advent of the 1935 Constitution, Section 344 of the


Administrative Code provided for a similar exemption. To the same
effect, the Tydings-McDuffie Law contained a limitation on the taxing
power of the Philippine government during the Commonwealth
period.379 The original draft of the Constitution placed this provision in
an ordinance to be appended to the Constitution because this was
among the provisions prescribed by the Tydings-McDuffie Law.
However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision was
introduced in the body of the Constitution on the rationale that "if
churches, convents [rectories or parsonages] and their accessories are
always necessary for facilitating the exercise of such [religious]
freedom, it would also be natural that their existence be also
guaranteed by exempting them from taxation." 380 The amendment was
readily approved with 83 affirmative votes against 15 negative votes. 381

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

The Philippine constitutional provision on tax exemption is not found in


the U.S. Constitution. In the U.S. case of Walz, the Court struggled to
justify this kind of exemption to withstand Establishment Clause
scrutiny by stating that church property was not singled out but was
exempt along with property owned by non-profit, quasi-public
corporations because the state upheld the secular policy "that
considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the
public interest." The Court also stated that the exemption was meant to
relieve the burden on free exercise imposed by property taxation. At the
same time, however, the Court acknowledged that the exemption was
an exercise of benevolent neutrality to accommodate a long-standing
tradition of exemption. With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and not merely as an
ordinance appended to the Constitution, the benevolent neutrality
referred to in the Walz case was given constitutional imprimatur under

(3) No public money, or property shall ever be appropriated, applied, or


used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution or system of religion, for the
use, benefit or support of any priest, preacher, ministers or other
religious teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces or to
any penal institution, orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of
section 3 of the Jones Law which did not contain the above exception,
viz:
No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect,
church denomination, sectarian institution, or system of religion, or for
the use, benefit or support of any priest, preacher, minister, or dignitary
as such382
In the deliberations of this draft provision, an amendment was proposed
to strike down everything after "church denomination." 383 The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence
of the Malolos Constitution to restore the situation under the Malolos
Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt about
its legality. It was pointed out, however, that even with the prohibition
under the Jones Law, appropriations were made to chaplains of the
national penitentiary and the Auditor General upheld its validity on the
basis of a similar United States practice. But it was also pointed out that
the U.S. Constitution did not contain a prohibition on appropriations

similar to the Jones Law.384 To settle the question on the


constitutionality of payment of salaries of religious officers in certain
government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials
with compensation, the exception in the 1935 provision was introduced
and approved. The provision garnered 74 affirmative votes against 34
negative votes.385 As pointed out in the deliberations, the U.S.
Constitution does not provide for this exemption. However, the U.S.
Supreme Court in Cruz v. Beto, apparently taking a benevolent
neutrality approach, implicitly approved the state of Texas payment of
prison chaplains salaries as reasonably necessary to permit inmates to
practice their religion. Also, in the Marsh case, the U.S. Supreme Court
upheld the long-standing tradition of beginning legislative sessions with
prayers offered by legislative chaplains retained at taxpayers expense.
The constitutional provision exempting religious officers in government
institutions affirms the departure of the Philippine Constitution from the
U.S. Constitution in its adoption of benevolent neutrality in Philippine
jurisdiction. While the provision prohibiting aid to religion protects the
wall of separation between church and state, the provision at the same
time gives constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated
in the Philippine Establishment Clause, the 1935 Constitution provides
for optional religious instruction in public schools in Article XIII, Section
5, viz:
. . . Optional religious instruction shall be maintained in the public
schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code,
viz:

It shall be lawful, however, for the priest or minister of any church


established in the town where a public school is situated, either in
person or by a designated teacher of religion, to teach religion for onehalf hour three times a week, in the school building, to those publicschool pupils whose parents or guardians desire it and express their
desire therefor in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first
held that the teaching of religion in public schools should be prohibited
as this was a violation of the principle of separation of church and state
and the prohibition against the use of public funds for religious
purposes. The second favored the proposed optional religious
instruction as authorized by the Administrative Code and recognized
that the actual practice of allowing religious instruction in the public
schools was sufficient proof that religious instruction was not and would
not be a source of religious discord in the schools. 386 The third wanted
religion to be included as a course in the curriculum of the public
schools but would only be taken by pupils at the option of their parents
or guardians. After several rounds of debate, the second camp
prevailed, thus raising to constitutional stature the optional teaching of
religion in public schools, despite the opposition to the provision on the
ground of separation of church and state. 387 As in the provisions on
church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for
optional religious instruction in public schools. In fact, in the McCollum
case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the
school premises. The constitutional provision on optional religious
instruction shows that Philippine jurisdiction rejects the strict neutrality
approach which does not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the
Filipino people "implored (ing) the aid of Divine Providence (,) in order
to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence

under a regime of justice, liberty, and democracy, (in) ordain(ing) and


promulgat(ing) this Constitution." A preamble is a "key to open the mind
of the authors of the constitution as to the evil sought to be prevented
and the objects sought to be accomplished by the provisions
thereof."388 There was no debate on the inclusion of a "Divine
Providence" in the preamble. In Aglipay, Justice Laurel noted that when
the Filipino people implored the aid of Divine Providence, "(t)hey
thereby manifested their intense religious nature and placed unfaltering
reliance upon Him who guides the destinies of men and nations." 389 The
1935 Constitutions religion clauses, understood alongside the other
provisions on religion in the Constitution, indubitably shows not hostility,
but benevolence, to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that
the property should not only be used directly, but also actually and
exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also
contained a similar provision on salaries of religious officials employed
in the enumerated government institutions. Article XIII, Section 5 of the
1935 Constitution on optional religious instruction was also carried to
the 1973 Constitution in Article XV, Section 8(8) with the modification
that optional religious instruction shall be conducted "as may be
provided by law" and not "as now authorized by law" as stated in the
1935 Constitution. The 1973 counterpart, however, made explicit in the
constitution that the religious instruction in public elementary and high
schools shall be done "(a)t the option expressed in writing by the
parents or guardians, and without cost to them and the government."
With the adoption of these provisions in the 1973 Constitution, the
benevolent neutrality approach continued to enjoy constitutional
sanction. In Article XV, Section 15 of the General Provisions of the 1973
Constitution this provision made its maiden appearance: "(t)he
separation of church and state shall be inviolable." The 1973
Constitution retained the portion of the preamble "imploring the aid of
Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and


Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the
Everson case and reiterated in Schempp - i.e., neutrality not only as
between one religion and another but even as between religion and
non-religion - is embodied in the Philippine Constitution. The subcommittees answer was that it did not seem so. Citing the Aglipay case
where Justice Laurel recognized the "elevating influence of religion in
human society" and the Filipinos imploring of Divine Providence in the
1935 Constitution, the sub-committee asserted that the state may not
prefer or aid one religion over another, but may aid all religions equally
or the cause of religion in general. 391 Among the position papers
submitted to the Committee on Church on State was a background
paper for reconsideration of the religion provisions of the constitution by
Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not
hostile to religion and in fact recognizes the value of religion and
accommodates religious values.392 Stated otherwise, the Establishment
Clause contemplates not a strict neutrality but benevolent neutrality.
While the Committee introduced the provision on separation of church
and state in the General Provisions of the 1973 Constitution, this was
nothing new as according to it, this principle was implied in the 1935
Constitution even in the absence of a similar provision. 393
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification
in Article VI, Section 28(3) of the 1987 Constitution. The same is true
with respect to the prohibition on the use of public money and property
for religious purposes and the salaries of religious officers serving in
the enumerated government institutions, now contained in Article VI,
Section 29(2). Commissioner Bacani, however, probed into the
possibility of allowing the government to spend public money for
purposes which might have religious connections but which would
benefit the public generally. Citing the Aglipay case, Commissioner
Rodrigo explained that if a public expenditure would benefit the
government directly, such expense would be constitutional even if it

results to an incidental benefit to religion. With that explanation,


Commissioner Bacani no longer pursued his proposal.394
The provision on optional religious instruction was also adopted in the
1987 Constitution in Article XIV, Section 3(3) with the modification that it
was expressly provided that optional instruction shall be conducted
"within the regular class hours" and "without additional cost to the
government". There were protracted debates on what additional cost
meant, i.e., cost over and above what is needed for normal operations
such as wear and tear, electricity, janitorial services, 395 and when during
the day instruction would be conducted. 396 In deliberating on the phrase
"within the regular class hours," Commissioner Aquino expressed her
reservations to this proposal as this would violate the time-honored
principle of separation of church and state. She cited the McCullom
case where religious instruction during regular school hours was
stricken down as unconstitutional and also cited what she considered
the most liberal interpretation of separation of church and state in
Surach v. Clauson where the U.S. Supreme Court allowed only release
time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception
to the rule on non-establishment of religion, because if it were not
necessary to make this exception for purposes of allowing religious
instruction, then we could just drop the amendment. But, as a matter of
fact, this is necessary because we are trying to introduce something
here which is contrary to American practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.
The provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State
Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The
separation of Church and State is inviolable, is almost a useless
statement; but at the same time it is a harmless statement. Hence, I am

willing to tolerate it there, because, in the end, if we look at the


jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the nonestablishment clause in the Bill of Rights.398
The preamble changed "Divine Providence" in the 1935 and 1973
Constitutions to "Almighty God." There was considerable debate on
whether to use "Almighty God" which Commissioner Bacani said was
more reflective of Filipino religiosity, but Commissioner Rodrigo recalled
that a number of atheistic delegates in the 1971 Constitutional
Convention objected to reference to a personal God. 399 "God of
History", "Lord of History" and "God" were also proposed, but the
phrase "Almighty God" prevailed. Similar to the 1935 and 1971
Constitutions, it is obvious that the 1987 Constitution is not hostile nor
indifferent to religion;400 its wall of separation is not a wall of hostility or
indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal
without doubt that the Filipino people, in adopting these constitutions,
did not intend to erect a high and impregnable wall of separation
between the church and state.402 The strict neutrality approach which
examines only whether government action is for a secular purpose and
does not consider inadvertent burden on religious exercise protects
such a rigid barrier. By adopting the above constitutional provisions on
religion, the Filipinos manifested their adherence to the benevolent
neutrality approach in interpreting the religion clauses, an approach
that looks further than the secular purposes of government action and
examines the effect of these actions on religious exercise. Benevolent
neutrality recognizes the religious nature of the Filipino people and the
elevating influence of religion in society; at the same time, it
acknowledges that government must pursue its secular goals. In
pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these
religious exercises as required by the Free Exercise Clause. It allows

these breaches in the wall of separation to uphold religious liberty,


which after all is the integral purpose of the religion clauses. The case
at bar involves this first type of accommodation where an exemption is
sought from a law of general applicability that inadvertently burdens
religious exercise.
Although our constitutional history and interpretation mandate
benevolent neutrality, benevolent neutrality does not mean that the
Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices and
that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss
a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this precisely is the
protection afforded by the religion clauses of the Constitution, i.e., that
in the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion
clauses justify it. While the Court cannot adopt a doctrinal formulation
that can eliminate the difficult questions of judgment in determining the
degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue
its interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed. 403 We here lay down
the doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as discussed above,
but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed
is the protection of religious liberty "not only for a minority, however
small- not only for a majority, however large- but for each of us" to the
greatest extent possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has
also been recognized in Philippine jurisprudence, albeit not expressly
called "benevolent neutrality" or "accommodation". In Aglipay, the Court

not only stressed the "elevating influence of religion in human society"


but acknowledged the Constitutional provisions on exemption from tax
of church property, salary of religious officers in government institutions,
and optional religious instruction as well as the provisions of the
Administrative Code making Thursday and Friday of the Holy Week,
Christmas Day and Sundays legal holidays. In Garces, the Court not
only recognized the Constitutional provisions indiscriminately granting
concessions to religious sects and denominations, but also
acknowledged that government participation in long-standing traditions
which have acquired a social character - "the barrio fiesta is a socioreligious affair" - does not offend the Establishment Clause. In
Victoriano, the Court upheld the exemption from closed shop provisions
of members of religious sects who prohibited their members from
joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve the
burden on free exercise of religion. In Ebralinag, members of the
Jehovahs Witnesses were exempt from saluting the flag as required by
law, on the basis not of a statute granting exemption but of the Free
Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and
origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality approach.
The Philippine religion clauses have taken a life of their own, breathing
the air of benevolent neutrality and accommodation. Thus, the wall of
separation in Philippine jurisdiction is not as high and impregnable as
the wall created by the U.S. Supreme Court in Everson. 404 While the
religion clauses are a unique American experiment which
understandably came about as a result of Americas English
background and colonization, the life that these clauses have taken in
this jurisdiction is the Philippines own experiment, reflective of the
Filipinos own national soul, history and tradition. After all, "the life of the
law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the

interest of the state should also be afforded utmost protection. To do


this, a test must be applied to draw the line between permissible and
forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their
religious liberty, the law must set a limit when their exercise offends the
higher interest of the state. To do otherwise is self-defeating for
unlimited freedom would erode order in the state and foment anarchy,
eventually destroying the very state its members established to protect
their freedoms. The very purpose of the social contract by which people
establish the state is for the state to protect their liberties; for this
purpose, they give up a portion of these freedoms - including the
natural right to free exercise - to the state. It was certainly not the
intention of the authors of the constitution that free exercise could be
used to countenance actions that would undo the constitutional order
that guarantees free exercise.405
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American
Bible Society, the Court mentioned the "clear and present danger" test
but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The
Victoriano case mentioned the "immediate and grave danger" test as
well as the doctrine that a law of general applicability may burden
religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the
"grave and immediate danger" test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the "clear and present
danger" test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on freedom

of expression. On the other hand, the Gerona and German cases set
the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the
authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test. Victoriano was the
only case that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate to the facts
of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger"
and "grave and immediate danger" tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction.
Similar to Victoriano, the present case involves purely conduct arising
from religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct has
different effects on the states interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test
that would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary. However,
not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of
all human rights", in the words of Jefferson. 406 This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty,407 thus
the Filipinos implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert, only
the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right
with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental
right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to

batter religion, especially the less powerful ones until they are
destroyed.408 In determining which shall prevail between the states
interest and religious liberty, reasonableness shall be the guide. 409 The
"compelling state interest" serves the purpose of revering religious
liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the "compelling
state interest" test, by upholding the paramount interests of the state,
seeks to protect the very state, without which, religious liberty will not
be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of "disgraceful and immoral
conduct" for which he/she may be held administratively liable. 410 In
these cases, there was not one dissent to the majoritys ruling that their
conduct was immoral. The respondents themselves did not foist the
defense that their conduct was not immoral, but instead sought to prove
that they did not commit the alleged act or have abated from
committing the act. The facts of the 1975 case of De Dios v. Alejo 411 and
the 1999 case of Maguad v. De Guzman,412 are similar to the case at
bar - i.e., the complainant is a mere stranger and the legal wife has not
registered any objection to the illicit relation, there is no proof of
scandal or offense to the moral sensibilities of the community in which
the respondent and the partner live and work, and the government
employee is capacitated to marry while the partner is not capacitated
but has long been separated in fact. Still, the Court found the
government employees administratively liable for "disgraceful and
immoral conduct" and only considered the foregoing circumstances to
mitigate the penalty. Respondent Escritor does not claim that there is
error in the settled jurisprudence that an illicit relation constitutes
disgraceful and immoral conduct for which a government employee is
held liable. Nor is there an allegation that the norms of morality with
respect to illicit relations have shifted towards leniency from the time

these precedent cases were decided. The Court finds that there is no
such error or shift, thus we find no reason to deviate from these rulings
that such illicit relationship constitutes "disgraceful and immoral
conduct" punishable under the Civil Service Law. Respondent having
admitted the alleged immoral conduct, she, like the respondents in the
above-cited cases, could be held administratively liable. However, there
is a distinguishing factor that sets the case at bar apart from the cited
precedents, i.e., as a defense, respondent invokes religious freedom
since her religion, the Jehovahs Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on
the churchs religious beliefs and practices. This distinguishing factor
compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar,
both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case. A
discussion on morality is in order.
At base, morality refers to, in Socrates words, "how we ought to live"
and why. Any definition of morality beyond Socrates simple formulation
is bound to offend one or another of the many rival theories regarding
what it means to live morally.413 The answer to the question of how we
ought to live necessarily considers that man does not live in isolation,
but in society. Devlin posits that a society is held together by a
community of ideas, made up not only of political ideas but also of
ideas about the manner its members should behave and govern their
lives. The latter are their morals; they constitute the public morality.
Each member of society has ideas about what is good and what is evil.
If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the
society on common agreement, the agreement collapses, the society
will disintegrate. Society is kept together by the invisible bonds of
common thought so that if the bonds are too loose, the members would
drift apart. A common morality is part of the bondage and the bondage
is part of the price of society; and mankind, which needs society, must
pay its price.414 This design is parallel with the social contract in the

realm of politics: people give up a portion of their liberties to the state to


allow the state to protect their liberties. In a constitutional order, people
make a fundamental agreement about the powers of government and
their liberties and embody this agreement in a constitution, hence
referred to as the fundamental law of the land. A complete break of this
fundamental agreement such as by revolution destroys the old order
and creates a new one.415 Similarly, in the realm of morality, the
breakdown of the fundamental agreement about the manner a societys
members should behave and govern their lives would disintegrate
society. Thus, society is justified in taking steps to preserve its moral
code by law as it does to preserve its government and other essential
institutions.416 From these propositions of Devlin, one cannot conclude
that Devlin negates diversity in society for he is merely saying that in
the midst of this diversity, there should nevertheless be a "fundamental
agreement about good and evil" that will govern how people in a
society ought to live. His propositions, in fact, presuppose diversity
hence the need to come to an agreement; his position also allows for
change of morality from time to time which may be brought about by
this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in establishing
and maintaining their society, and these fundamental values and
principles are translated into legislation that governs the order of
society, laws that may be amended from time to time. Harts argument
propounded in Mr. Justice Vitugs separate opinion that, "Devlins view
of people living in a single society as having common moral foundation
(is) overly simplistic" because "societies have always been diverse"
fails to recognize the necessity of Devlins proposition in a democracy.
Without fundamental agreement on political and moral ideas, society
will fall into anarchy; the agreement is necessary to the existence and
progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral discernment has
access to the public square where people deliberate the order of their
life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal

access to the public square. In this representative democracy, the state


is prohibited from determining which convictions and moral judgments
may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. 417 Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws
will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups.418 Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies -including protection of religious freedom "not only for a minority,
however small- not only for a majority, however large- but for each of
us" -- the majority imposes upon itself a self-denying ordinance. It
promises not to do what it otherwise could do: to ride roughshod over
the dissenting minorities.419 In the realm of religious exercise,
benevolent neutrality that gives room for accommodation carries out
this promise, provided the compelling interests of the state are not
eroded for the preservation of the state is necessary to the preservation
of religious liberty. That is why benevolent neutrality is necessary in a
pluralistic society such as the United States and the Philippines to
accommodate those minority religions which are politically powerless. It
is not surprising that Smith is much criticized for it blocks the judicial
recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, "(t)he law is the witness and deposit of our moral
life."420 "In a liberal democracy, the law reflects social morality over a
period of time."421Occasionally though, a disproportionate political
influence might cause a law to be enacted at odds with public morality
or legislature might fail to repeal laws embodying outdated traditional
moral views.422 Law has also been defined as "something men create in
their best moments to protect themselves in their worst
moments."423 Even then, laws are subject to amendment or repeal just
as judicial pronouncements are subject to modification and reversal to
better reflect the public morals of a society at a given time. After all, "the
life of the law...has been experience," in the words of Justice Holmes.
This is not to say though that law is all of morality. Law deals with the
minimum standards of human conduct while morality is concerned with

the maximum. A person who regulates his conduct with the sole object
of avoiding punishment under the law does not meet the higher moral
standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about
a proper or ideal public morality for a society" 425 in pursuit of moral
progress.
In Magno v. Court of Appeals, et al., 426 we articulated the relationship
between law and public morality. We held that under the utilitarian
theory, the "protective theory" in criminal law, "criminal law is founded
upon the moral disapprobation x x x of actions which are immoral, i.e.,
which are detrimental (or dangerous) to those conditions upon which
depend the existence and progress of human society. This
disapprobation is inevitable to the extent that morality is generally
founded and built upon a certain concurrence in the moral opinions of
all. x x x That which we call punishment is only an external means of
emphasizing moral disapprobation: the method of punishment is in
reality the amount of punishment."427 Stated otherwise, there are certain
standards of behavior or moral principles which society requires to be
observed and these form the bases of criminal law. Their breach is an
offense not only against the person injured but against society as a
whole.428 Thus, even if all involved in the misdeed are consenting
parties, such as in the case at bar, the injury done is to the public
morals and the public interest in the moral order. 429 Mr. Justice Vitug
expresses concern on this point in his separate opinion. He observes
that certain immoral acts which appear private and not harmful to
society such as sexual congress "between a man and a prostitute,
though consensual and private, and with no injured third party, remains
illegal in this country." His opinion asks whether these laws on private
morality are justified or they constitute impingement on ones freedom
of belief. Discussion on private morality, however, is not material to the
case at bar for whether respondents conduct, which constitutes
concubinage,430 is private in the sense that there is no injured party or
the offended spouse consents to the concubinage, the inescapable fact
is that the legislature has taken concubinage out of the sphere of
private morals. The legislature included concubinage as a crime under
the Revised Penal Code and the constitutionality of this law is not being

raised in the case at bar. In the definition of the crime of concubinage,


consent of the injured party, i.e., the legal spouse, does not alter or
negate the crime unlike in rape431 where consent of the supposed victim
negates the crime. If at all, the consent or pardon of the offended
spouse in concubinage negates the prosecution of the action, 432 but
does not alter the legislatures characterization of the act as a moral
disapprobation punishable by law. The separate opinion states that,
"(t)he ponencia has taken pains to distinguish between secular and
private morality, and reached the conclusion that the law, as an
instrument of the secular State should only concern itself with secular
morality." The Court does not draw this distinction in the case at bar.
The distinction relevant to the case is not, as averred and discussed by
the separate opinion, "between secular and private morality," but
between public and secular morality on the one hand, and religious
morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs
which are not punishable by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing with Human Relations,
provide for the recognition of the wrong and the concomitant
punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and
observe honesty and good faith.
xxx

xxx

xxx

Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it
was approved), would vouchsafe adequate legal remedy for that untold
numbers of moral wrongs which is impossible for human foresight to
provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the
boundary line between morality and law? The answer is that, in the last
analysis, every good law draws its breath of life from morals, from
those principles which are written with words of fire in the conscience of
man. If this premise is admitted, then the proposed rule is a prudent
earnest of justice in the face of the impossibility of enumerating, one by
one, all wrongs which cause damages. When it is reflected that while
codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can
not but feel that it is safe and salutary to transmute, as far as may be,
moral norms into legal rules, thus imparting to every legal system that
enduring quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the
social order than that a person may with impunity cause damage to his
fellow-men so long as he does not break any law of the State, though
he may be defying the most sacred postulates of morality. What is
more, the victim loses faith in the ability of the government to afford him
protection or relief.
A provision similar to the one under consideration is embodied in article
826 of the German Civil Code.433(emphases supplied)
The public morality expressed in the law is necessarily secular for in
our constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions. Religious
morality proceeds from a persons "views of his relations to His Creator
and to the obligations they impose of reverence to His being and
character and obedience to His Will," in accordance with this Courts
definition of religion in American Bible Society citing Davis. Religion
also dictates "how we ought to live" for the nature of religion is not just
to know, but often, to act in accordance with mans "views of his

relations to His Creator."434 But the Establishment Clause puts a


negative bar against establishment of this morality arising from one
religion or the other, and implies the affirmative "establishment" of a
civil order for the resolution of public moral disputes. This agreement on
a secular mechanism is the price of ending the "war of all sects against
all"; the establishment of a secular public moral order is the social
contract produced by religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers 436, or
"public morals" in the Revised Penal Code, 437 or "morals" in the New
Civil Code,438 or "moral character" in the Constitution,439 the distinction
between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind. 440 The morality referred
to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed
in public debate may influence the civil public order but public moral
disputes may be resolved only on grounds articulable in secular
terms."441 Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals
would require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be compelled
to conform to a standard of conduct buttressed by a religious belief, i.e.,
to a "compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for
all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. Expansive religious freedom
therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with
this policy of neutrality.442
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct

because it is "detrimental (or dangerous) to those conditions upon


which depend the existence and progress of human society" and not
because the conduct is proscribed by the beliefs of one religion or the
other. Although admittedly, moral judgments based on religion might
have a compelling influence on those engaged in public deliberations
over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion
and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner, harmonizing
earth with heaven.443 Succinctly put, a law could be religious or Kantian
or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass
scrutiny of the religion clauses. Otherwise, if a law has an apparent
secular purpose but upon closer examination shows a discriminatory
and prohibitory religious purpose, the law will be struck down for being
offensive of the religion clauses as in Church of the Lukumi Babalu Aye,
Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting
animal sacrifice of the Santeria. Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however, the
Philippine constitutions religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strives
to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws
is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.
Mr. Justice Vitugs separate opinion embraces the benevolent neutrality
approach when it states that in deciding the case at bar, the approach
should consider that, "(a)s a rule . . . moral laws are justified only to the
extent that they directly or indirectly serve to protect the interests of the
larger society. It is only where their rigid application would serve to
obliterate the value which society seeks to uphold, or defeat the
purpose for which they are enacted would, a departure be justified." In
religion clause parlance, the separate opinion holds that laws of

general applicability governing morals should have a secular purpose


of directly or indirectly protecting the interests of the state. If the strict
application of these laws (which are the Civil Service Law and the laws
on marriage) would erode the secular purposes of the law (which the
separate opinion identifies as upholding the sanctity of marriage and
the family), then in a benevolent neutrality framework, an
accommodation of the unconventional religious belief and practice
(which the separate opinion holds should be respected on the ground
of freedom of belief) that would promote the very same secular purpose
of upholding the sanctity of marriage and family through the Declaration
Pledging Faithfulness that makes the union binding and honorable
before God and men, is required by the Free Exercise Clause. The
separate opinion then makes a preliminary discussion of the values
society seeks to protect in adhering to monogamous marriage, but
concludes that these values and the purposes of the applicable laws
should be thoroughly examined and evidence in relation thereto
presented in the OCA. The accommodation approach in the case at bar
would also require a similar discussion of these values and
presentation of evidence before the OCA by the state that seeks to
protect its interest on marriage and opposes the accommodation of the
unconventional religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed albeit not exclusively - in the law, on the one hand, and religious
morality, on the other, is important because the jurisdiction of the Court
extends only to public and secular morality. Whatever pronouncement
the Court makes in the case at bar should be understood only in this
realm where it has authority. More concretely, should the Court declare
respondents conduct as immoral and hold her administratively liable,
the Court will be holding that in the realm of public morality, her conduct
is reprehensible or there are state interests overriding her religious
freedom. For as long as her conduct is being judged within this realm,
she will be accountable to the state. But in so ruling, the Court does not
and cannot say that her conduct should be made reprehensible in the
realm of her church where it is presently sanctioned and that she is
answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should

the Court declare her conduct permissible, the Court will be holding that
under her unique circumstances, public morality is not offended or that
upholding her religious freedom is an interest higher than upholding
public morality thus her conduct should not be penalized. But the Court
is not ruling that the tenets and practice of her religion are correct nor
that other churches which do not allow respondents conjugal
arrangement should likewise allow such conjugal arrangement or
should not find anything immoral about it and therefore members of
these churches are not answerable for immorality to their Supreme
Being. The Court cannot speak more than what it has authority to say.
In Ballard, the U.S. Supreme Court held that courts cannot inquire
about the truth of religious beliefs. Similarly, in Fonacier, this Court
declared that matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a churchare
unquestionably ecclesiastical matters which are outside the province of
the civil courts."444 But while the state, including the Court, accords
such deference to religious belief and exercise which enjoy protection
under the religious clauses, the social contract and the constitutional
order are designed in such a way that when religious belief flows into
speech and conduct that step out of the religious sphere and overlap
with the secular and public realm, the state has the power to regulate,
prohibit and penalize these expressions and embodiments of belief
insofar as they affect the interests of the state. The states inroad on
religion exercise in excess of this constitutional design is prohibited by
the religion clauses; the Old World, European and American history
narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under
this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held
administratively liable. The line is not easy to draw for it is like "a line
that divides land and sea, a coastline of irregularities and
indentations."445 But the case at bar does not require us to
comprehensively delineate between those immoral acts for which one
may be held administratively liable and those to which administrative
liability does not attach. We need not concern ourselves in this case

therefore whether "laziness, gluttony, vanity, selfishness, avarice and


cowardice" are immoral acts which constitute grounds for administrative
liability. Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal acts are
immoral, or different jurisdictions have different standards of morality as
discussed by the dissents and separate opinions, although these
observations and propositions are true and correct. It is certainly a
fallacious argument that because there are exceptions to the general
rule that the "law is the witness and deposit of our moral life," then the
rule is not true; in fact, that there are exceptions only affirms the truth of
the rule. Likewise, the observation that morality is relative in different
jurisdictions only affirms the truth that there is morality in a particular
jurisdiction; without, however, discounting the truth that underneath the
moral relativism are certain moral absolutes such as respect for life and
truth-telling, without which no society will survive. Only one conduct is
in question before this Court, i.e., the conjugal arrangement of a
government employee whose partner is legally married to another
which Philippine law and jurisprudence consider both immoral and
illegal. Lest the Court inappropriately engage in the impossible task of
prescribing comprehensively how one ought to live, the Court must
focus its attention upon the sole conduct in question before us.
In interpreting "disgraceful and immoral conduct," the dissenting
opinion of Mme. Justice Ynares-Santiago groped for standards of
morality and stated that the "ascertainment of what is moral or immoral
calls for the discovery of contemporary community standards" but did
not articulate how these standards are to be ascertained. Instead, it
held that, "(f)or those in the service of the Government, provisions of
law and court precedents . . . have to be considered." It identified the
Civil Service Law and the laws on adultery and concubinage as laws
which respondents conduct has offended and cited a string of
precedents where a government employee was found guilty of
committing a "disgraceful and immoral conduct" for maintaining illicit
relations and was thereby penalized. As stated above, there is no
dispute that under settled jurisprudence, respondents conduct
constitutes "disgraceful and immoral conduct." However, the cases
cited by the dissent do not involve the defense of religious freedom

which respondent in the case at bar invokes. Those cited cases cannot
therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United
States446 in laying down the standard of morality, viz: "(w)hether an act
is immoral within the meaning of the statute is not to be determined by
respondents concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact
perform, the act which it condemns." The Mann Act under consideration
in the Cleveland case declares as an offense the transportation in
interstate commerce of "any woman or girl for the purpose of
prostitution or debauchery, or for any other immoral purpose." 447 The
resolution of that case hinged on the interpretation of the phrase
"immoral purpose." The U.S. Supreme Court held that the petitioner
Mormons act of transporting at least one plural wife whether for the
purpose of cohabiting with her, or for the purpose of aiding another
member of their Mormon church in such a project, was covered by the
phrase "immoral purpose." In so ruling, the Court relied on Reynolds
which held that the Mormons practice of polygamy, in spite of their
defense of religious freedom, was "odious among the northern and
western nations of Europe,"448 "a return to barbarism,"449 "contrary to
the spirit of Christianity and of the civilization which Christianity has
produced in the Western world,"450 and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in
the case at bar. The pronouncements of the U.S. Supreme Court that
polygamy is intrinsically "odious" or "barbaric" do not apply in the
Philippines where Muslims, by law, are allowed to practice polygamy.
Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the
Jehovahs Witnesses under the same circumstances as respondent will
not prevail over the laws on adultery, concubinage or some other law.
We cannot summarily conclude therefore that her conduct is likewise
so "odious" and "barbaric" as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more
on determining the applicable moral standards and less on religious

freedom, Mme. Justice Ynares-Santiagos dissent nevertheless


discussed respondents plea of religious freedom and disposed of this
defense by stating that "(a) clear and present danger of a substantive
evil, destructive to public morals, is a ground for the reasonable
regulation of the free exercise and enjoyment of religious profession.
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In
addition to the destruction of public morals, the substantive evil in this
case is the tearing down of morality, good order, and discipline in the
judiciary." However, the foregoing discussion has shown that the "clear
and present danger" test that is usually employed in cases involving
freedom of expression is not appropriate to the case at bar which
involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of "disgraceful and
immoral conduct." The Reynolds ruling, however, was reached with a
strict neutrality approach, which is not the approach contemplated by
the Philippine constitution. As discussed above, Philippine jurisdiction
adopts benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict
neutrality does not reflect the constitutional intent of employing
benevolent neutrality in interpreting the Philippine religion clauses. His
dissent avers that respondent should be held administratively liable not
for "disgraceful and immoral conduct" but "conduct prejudicial to the
best interest of the service" as she is a necessary co-accused of her
partner in concubinage. The dissent stresses that being a court
employee, her open violation of the law is prejudicial to the
administration of justice. Firstly, the dissent offends due process as
respondent was not given an opportunity to defend herself against the
charge of "conduct prejudicial to the best interest of the service." In
addition, there is no evidence of the alleged prejudice to the best
interest of the service. Most importantly, the dissent concludes that
respondents plea of religious freedom cannot prevail without so much
as employing a test that would balance respondents religious freedom
and the states interest at stake in the case at bar. The foregoing
discussion on the doctrine of religious freedom, however, shows that
with benevolent neutrality as a framework, the Court cannot simply
reject respondents plea of religious freedom without even subjecting it

to the "compelling state interest" test that would balance her freedom
with the paramount interests of the state. The strict neutrality employed
in the cases the dissent cites -Reynolds, Smith and People v. Bitdu
decided before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality - is not contemplated by our
constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
Nabdar J. Malik451 cited in Mr. Justice Carpios dissent decisive of the
immorality issue in the case at bar. In that case, the Court dismissed
the charge of immorality against a Tausug judge for engaging in an
adulterous relationship with another woman with whom he had three
children because "it (was) not immoral by Muslim standards for Judge
Malik to marry a second time while his first marriage (existed)." Putting
the quoted portion in its proper context would readily show that the Sulu
Islamic case does not provide a precedent to the case at bar.
Immediately prior to the portion quoted by the dissent, the Court
stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, provides that the
penal laws relative to the crime of bigamy shall not apply to a person
married x x x under Muslim Law, it is not immoral by Muslim standards
for Judge Malik to marry a second time while his first marriage
exists."452 It was by law, therefore, that the Muslim conduct in question
was classified as an exception to the crime of bigamy and thus an
exception to the general standards of morality. The constitutionality of
P.D. No. 1083 when measured against the Establishment Clause was
not raised as an issue in the Sulu Islamic case. Thus, the Court did not
determine whether P.D. No. 1083 suffered from a constitutional infirmity
and instead relied on the provision excepting the challenged Muslim
conduct from the crime of bigamy in holding that the challenged act is
not immoral by Muslim standards. In contradistinction, in the case at
bar, there is no similar law which the Court can apply as basis for
treating respondents conduct as an exception to the prevailing
jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.

B.
Application
of
Benevolent
Neutrality
Compelling State Interest Test to the Case at Bar

and

the

The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the "compelling state
interest" test from a benevolent neutrality stance - i.e. entertaining the
possibility that respondents claim to religious freedom would warrant
carving out an exception from the Civil Service Law; necessarily, her
defense of religious freedom will be unavailing should the government
succeed in demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondents right to
religious freedom has been burdened. There is no doubt that choosing
between keeping her employment and abandoning her religious belief
and practice and family on the one hand, and giving up her
employment and keeping her religious practice and family on the other
hand, puts a burden on her free exercise of religion. In Sherbert, the
Court found that Sherberts religious exercise was burdened as the
denial of unemployment benefits "forces her to choose between
following the precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand." The burden on respondent in the case
at bar is even greater as the price she has to pay for her employment is
not only her religious precept but also her family which, by the
Declaration Pledging Faithfulness, stands "honorable before God and
men."
The second step is to ascertain respondents sincerity in her religious
belief. Respondent appears to be sincere in her religious belief and
practice and is not merely using the "Declaration of Pledging
Faithfulness" to avoid punishment for immorality. She did not secure
the Declaration only after entering the judiciary where the moral
standards are strict and defined, much less only after an administrative
case for immorality was filed against her. The Declaration was issued to
her by her congregation after ten years of living together with her
partner, Quilapio, and ten years before she entered the judiciary.
Ministers from her congregation testified on the authenticity of the

Jehovahs Witnesses practice of securing a Declaration and their


doctrinal or scriptural basis for such a practice. As the ministers
testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the "union" of their members
under respondents circumstances "honorable before God and men." It
is also worthy of notice that the Report and Recommendation of the
investigating judge annexed letters 453 of the OCA to the respondent
regarding her request to be exempt from attending the flag ceremony
after Circular No. 62-2001 was issued requiring attendance in the flag
ceremony. The OCAs letters were not submitted by respondent as
evidence but annexed by the investigating judge in explaining that he
was caught in a dilemma whether to find respondent guilty of immorality
because the Court Administrator and Deputy Court Administrator had
different positions regarding respondents request for exemption from
the flag ceremony on the ground of the Jehovahs Witnesses contrary
belief and practice. Respondents request for exemption from the flag
ceremony shows her sincerity in practicing the Jehovahs Witnesses
beliefs and not using them merely to escape punishment. She is a
practicing member of the Jehovahs Witnesses and the Jehovah
ministers testified that she is a member in good standing. Nevertheless,
should the government, thru the Solicitor General, want to further
question the respondents sincerity and the centrality of her practice in
her faith, it should be given the opportunity to do so. The government
has not been represented in the case at bar from its incipience until this
point.
In any event, even if the Court deems sufficient respondents evidence
on the sincerity of her religious belief and its centrality in her faith, the
case at bar cannot still be decided using the "compelling state interest"
test. The case at bar is one of first impression, thus the parties were not
aware of the burdens of proof they should discharge in the Courts use
of the "compelling state interest" test. We note that the OCA found
respondents defense of religious freedom unavailing in the face of the
Courts ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat, from

the judge to the lowest of its personnel. Court personnel have been
enjoined to adhere to the exacting standards of morality and decency in
their professional and private conduct in order to preserve the good
name and integrity of the courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary by
maintaining among its ranks a high standard of morality and decency.
However, there is nothing in the OCAs memorandum to the Court that
demonstrates how this interest is so compelling that it should override
respondents plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least
restrictive to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the
government which is the Office of the Solicitor General. To properly
settle the issue in the case at bar, the government should be given the
opportunity to demonstrate the compelling state interest it seeks to
uphold in opposing the respondents stance that her conjugal
arrangement is not immoral and punishable as it comes within the
scope of free exercise protection. Should the Court prohibit and punish
her conduct where it is protected by the Free Exercise Clause, the
Courts action would be an unconstitutional encroachment of her right
to religious freedom.454 We cannot therefore simply take a passing look
at respondents claim of religious freedom, but must instead apply the
"compelling state interest" test. The government must be heard on the
issue as it has not been given an opportunity to discharge its burden of
demonstrating the states compelling interest which can override
respondents religious belief and practice. To repeat, this is a case of
first impression where we are applying the "compelling state interest"
test in a case involving purely religious conduct. The careful application
of the test is indispensable as how we will decide the case will make a
decisive difference in the life of the respondent who stands not only
before the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court


Administrator. The Solicitor General is ordered to intervene in the case
where it will be given the opportunity (a) to examine the sincerity and
centrality of respondents claimed religious belief and practice; (b) to
present evidence on the states "compelling interest" to override
respondents religious belief and practice; and (c) to show that the
means the state adopts in pursuing its interest is the least restrictive to
respondents religious freedom. The rehearing should be concluded
thirty (30) days from the Office of the Court Administrators receipt of
this Decision.
SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ.,
concur.
Bellosillo and Vitug,
JJ.,
please
see
separate
opinion.
Ynares-Santiago,
and Carpio,
JJ.,
see
dissenting
opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting
opinion
of
J.
Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
A.C. No.
8392
[ Formerly CBD Case No. 08-2175 ]

June

29,

Per Curiam:

After respondent hired her as his secretary in 2002, she became his
lover and common-law wife. In October 2007, respondent brought her
to the mountainous Upper San Agustin in Caibiran, Biliran where he left
her with a religious group known as the Faith Healers Association of the
Philippines, of which he was the leader. Although he visited her daily,
his visits became scarce in November to December 2007, prompting
her to return home to Naval, Biliran. Furious, respondent brought her
back to San Agustin where, on his instruction, his followers tortured,
brainwashed and injected her with drugs. When she tried to escape on
December 24, 2007, the members of the group tied her spread-eagled
to a bed. Made to wear only a T-shirt and diapers and fed stale food,
she was guarded 24 hours a day by the women members including a
certain Bernardita Tadeo.
Her mother, Delia Tambis Vda. De Mecaral (Delia), having received
information that she was weak, pale and walking barefoot along the
streets in the mountainous area of Caibiran, sought the help of the
Provincial Social Welfare Department which immediately dispatched
two women volunteers to rescue her. The religious group refused to
release her, however, without the instruction of respondent. It took PO3
Delan G. Lee (PO3 Lee) and PO1 Arnel S. Robedillo (PO1 Robedillo)
to rescue and reunite her with her mother.

2010

ROSARIO
T.
MECARAL, Complainant,
vs.
ATTY. DANILO S. VELASQUEZ, Respondent.
DECISION

Rosario T. Mecaral (complainant) charged Atty. Danilo S. Velasquez


(respondent) before the Integrated Bar of the Philippines (IBP)
Committee on Bar Discipline (CBD)1 with Gross Misconduct and Gross
Immoral Conduct which she detailed in her Position Paper2 as follows:

Hence, the present disbarment complaint against respondent.


Additionally, complainant charges respondent with bigamy for
contracting a second marriage to Leny H. Azur on August 2, 1996,
despite the subsistence of his marriage to his first wife, Ma. Shirley G.
Yunzal.
In support of her charges, complainant submitted documents including
the following: Affidavit3 of Delia dated February 5, 2008; Affidavit of PO3
Lee and PO1 Robedillo4 dated February 14, 2008; photocopy of the

Certificate of Marriage5 between respondent and Leny H. Azur;


photocopy of the Marriage Contract 6 between respondent and Shirley
G. Yunzal; National Statistics Office Certification 7 dated April 23, 2008
showing the marriage of Ma. Shirley G. Yunzal to respondent on April
27, 1990 in Quezon City and the marriage of Leny H. Azur to
respondent on August 2, 1996 in Mandaue City, Cebu; and certified
machine copy of the Resolution 8 of the Office of the Provincial
Prosecutor of Naval, Biliran and the Information9 lodged with the RTCBranch 37-Caibiran, Naval, Biliran, for Serious Illegal Detention against
respondent and Bernardita Tadeo on complaint of herein complainant.
Despite respondents receipt of the February 22, 2008 Order 10 of the
Director for Bar Discipline for him to submit his Answer within 15 days
from receipt thereof, and his expressed intent to "properly make [his]
defense in a verified pleading,"11 he did not file any Answer.1avvphi1
On the scheduled Mandatory Conference set on September 2, 2008 of
which the parties were duly notified, only complainants counsel was
present. Respondent and his counsel failed to appear.
Investigating Commissioner Felimon C. Abelita III of the CBD, in his
Report and Recommendation12 dated September 29, 2008, found that:
[respondents] acts of converting his secretary into a mistress;
contracting two marriages with Shirley and Leny, are grossly immoral
which no civilized society in the world can countenance. The
subsequent detention and torture of the complainant is gross
misconduct [which] only a beast may be able to do. Certainly, the
respondent had violated Canon 1 of the Code of Professional
Responsibility which reads:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the
land and promote respect for law and legal processes.
xxxx

In the long line of cases, the Supreme Court has consistently imposed
severe penalty for grossly immoral conduct of a lawyer like the case at
bar. In the celebrated case of Joselano Guevarra vs. Atty. Jose Manuel
Eala, the [Court] ordered the disbarment of the respondent for
maintaining extra-marital relations with a married woman, and having a
child with her. In the instant case, not only did the respondent commit
bigamy for contracting marriages with Shirley Yunzal in 1990 and Leny
Azur in 1996, but the respondent also made his secretary (complainant)
his mistress and subsequently, tortured her to the point of death. All
these circumstances showed the moral fiber respondent is made of,
which [leave] the undersigned with no choice but to recommend the
disbarment of Atty. Danilo S. Velasquez. 13 (emphasis and underscoring
supplied)
The IBP Board of Governors of Pasig City, by Resolution 14 dated
December 11, 2008, ADOPTED the Investigating Commissioners
findings and APPROVED the recommendation for the disbarment of
respondent.
As did the IBP Board of Governors, the Court finds the IBP
Commissioners evaluation and recommendation well taken.
The practice of law is not a right but a privilege bestowed by the state
upon those who show that they possess, and continue to possess, the
qualifications required by law for the conferment of such
privilege.15 When a lawyers moral character is assailed, such that his
right to continue
practicing his cherished profession is imperiled, it behooves him to
meet the charges squarely and present evidence, to the satisfaction of
the investigating body and this Court, that he is morally fit to keep his
name in the Roll of Attorneys.16
Respondent has not discharged the burden. He never attended the
hearings before the IBP to rebut the charges brought against him,
suggesting that they are true.17 Despite his letter dated March 28, 2008

manifesting that he would come up with his defense "in a verified


pleading," he never did.
Aside then from the IBPs finding that respondent violated Canon 1 of
the Code of Professional Responsibility, he also violated the Lawyers
Oath reading:
I _________, having been permitted to continue in the practice of law in
the Philippines, do solemnly swear that I recognize the supreme
authority of the Republic of the Philippines; I will support its Constitution
and obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood, nor consent to the doing of
any in court; I will not wittingly or willingly promote or sue any
groundless, false or unlawful suit, nor give aid nor consent to the same;
I will delay no man for money or malice, and will conduct myself as a
lawyer according to the best of my knowledge and discretion with all
good fidelity as well as to the courts as to my clients; and I impose
upon myself this voluntary obligation without any mental reservation or
purpose of evasion. So help me God, (underscoring supplied),
and Rule 7.03, Canon 7 of the same Code reading:
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he, whether in public or private
life, behave in a scandalous manner to the discredit of the legal
profession.
The April 30, 2008 Resolution18 of the Provincial Prosecutor on
complainants charge against respondent and Bernardita Tadeo for
Serious Illegal Detention bears special noting, viz:
[T]he counter-affidavit of x x x Bernardita C. Tadeo (co-accused in the
complaint) has the effect of strengthening the allegations against Atty.
Danilo Velasquez. Indeed, it is clear now that there was really physical
restraint employed by Atty. Velasquez upon the person of Rosario
Mecaral. Even as he claimed that on the day private complainant was
fetched by the two women and police officers, complainant was already

freely roaming around the place and thus, could not have been
physically detained. However, it is not really necessary that Rosario be
physically kept within an enclosure to restrict her freedom of
locomotion. In fact, she was always accompanied wherever she would
wander, that it could be impossible for her to escape especially
considering the remoteness and the distance between Upper San
Agustin, Caibiran, Biliran to Naval, Biliran where she is a resident. The
people from the Faith Healers Association had the express and implied
orders coming from respondent Atty. Danilo Velasquez to keep
guarding Rosario Mecaral and not to let her go freely. That can be
gleaned from the affidavit of co-respondent Bernardita Tadeo. The latter
being reprimanded whenever Atty. Velasquez would learn that
complainant had untangled the cloth tied on her wrists and
feet.19 (emphasis and underscoring supplied)
That, as reflected in the immediately-quoted Resolution in the criminal
complaint against respondent, his therein co-respondent corroborated
the testimonies of complainants witnesses, and that the allegations
against him remain unrebutted, sufficiently prove the charges against
him by clearly preponderant evidence, the quantum of evidence
needed in an administrative case against a lawyer.20
In fine, by engaging himself in acts which are grossly immoral and acts
which constitute gross misconduct, respondent has ceased to possess
the qualifications of a lawyer.21
WHEREFORE, respondent, Atty. Danilo S. Velasquez, is
DISBARRED, and his name ORDERED STRICKEN from the Roll of
Attorneys. This Decision is immediately executory and ordered to be
part of the records of respondent in the Office of the Bar Confidant,
Supreme Court of the Philippines.
Let copies of the Decision be furnished the Integrated Bar of the
Philippines and circulated to all courts.
SO ORDERED.

A.M. No. MTJ-92-710

June 19, 2003

PEDRITA M. HARAYO, Complainant,


vs.
JUDGE MAMERTO Y. COLIFLORES, Respondent.
BELLOSILLO, J.:
Complainant Pedrita M. Harayo, former clerk-stenographer, Municipal
Trial Court, Minglanilla, Cebu, in a sworn complaint dated 15
September 1992, charged respondent Judge Mamerto Y. Coliflores,
Presiding Judge of the same court, with grave misconduct for (a)
dismissing for monetary consideration Crim. Case No. 2307 for
violation of PD No. 18661 and Crim. Case No. 2308 for violation of RA
No. 6425;2 (b) assigning Court Aide Jose M. Agosto as domestic helper
and driver of respondents passenger jeepney; (c) solemnizing illegal
marriages and collecting fees therefor; (d) allowing her name
(complainants) to be placed as witness in a marriage contract by
forging her signature; (e) falsifying the date when he signed the
verification portion of the complaint and the joint affidavit of the
arresting officers in Crim. Case No. 2388; and, (f) changing for
monetary consideration the joint affidavit of arresting officers Jerome
Abatayo, Erasmo Gako and Eugene Hernani relative to Crim. Cases
Nos. 2307 and 2308.

Clerk of Court, and the latter, when he chided her about her belligerent
attitude towards Hermosa and his remark that after all she
(complainant) was not qualified for the position she was seeking and
even as court stenographer since she had no knowledge of stenotyping.
On the matter of the illegal marriage, charged in the complaint,
respondent claimed that he desisted from officiating the marriages
upon discovery that the documents were not complete despite
assurances by complainant to the contrary.
This Court in a resolution dated 23 February 1993 referred the instant
case to the Office of the Court Administrator (OCA) for evaluation,
report and recommendation. Thereafter, the OCA submitted its
memorandum dated 29 March 1993 prepared by Deputy Court
Administrator Eutropio Migrio recommending the dismissal of the
complaints for lack of merit.

In a related letter-complaint dated 7 September 1992 complainant


Pedrita Harayo charged respondents Josefina R. Hermosa and Jose M.
Agosto, Clerk of Court and Court Aide respectively, of MTC, Minglanilla,
Cebu, with falsification of entries in their daily time record and daily
attendance book.

On 11 May 1993 the Court again passed a resolution referring the


instant case to Executive Judge Generoso Juaban of the Regional Trial
Court, Cebu, for investigation, report and recommendation. In his
report, Judge Juaban recommended that respondent be exonerated on
the first and third charges, i.e., that he dismissed cases for monetary
consideration, and that he utilized Court Aide Jose Agosto as his
domestic helper and personal driver. However, on the charge that he
performed illegal marriages, Judge Juaban recommended that
respondent be admonished and his salary equivalent to one (1) or two
(2) months be suspended for having signed three (3) marriage
contracts before the corresponding marriage licenses were obtained by
the parties. Judge Juaban reported that

By way of comment, respondent Judge denied the allegations in the


complaint and countered that complainant might have been prompted
to file the instant complaint after he indorsed Josefina Hermosa over
complainant for the position of Clerk of Court II. He added that
complainant likewise vented her ire on Hermosa and Agosto when
Hermosa did not accede to her request not to pursue her application for

While there is no hard proof that respondent Judge demanded money


in the solemnization of these marriages, suspicion is strong that there
could be some monetary consideration. The investigator now seems to
doubt the verity of respondents denial. If the marriage contracts were
signed by him and no solemnization ever had, as he alleges, because
he desisted from doing so in the first instance, why did he repeat the

same procedure in the second and the third time? Signing the marriage
contracts before the marriage licenses were so obtained on these three
(3) marriages is indicative of respondents imprudence in this respect
that calls for appropriate measures of admonition.3
On 9 August 1994 this Court referred the report of Judge Juaban to the
OCA for further evaluation, report and recommendation. Accordingly, on
15 September 1994 the OCA submitted a memorandum essentially
adopting the recommendations of Investigating Judge Juaban but with
the proposal that with regard to the second charge, respondent be fined
in the amount equivalent to his one (1) month salary.
In an En Banc resolution dated 30 May 1995, the Supreme Court noted
that the report of Judge Juaban failed to address certain key issues
which were likewise raised in the complaint, namely: (a) that
respondent allowed complainants name to be placed as witness in the
marriage contract signed by Emmanuel Plantar and Elizabeth Nacor on
10 May 1989 by forging her signature; (b) that he falsified the date
when he signed the verification portion of the complaint and the joint
affidavit of the arresting officers in Crim. Case No. 2388 by making it
appear that he was in the office and signed the documents on 15
August 1992 when in fact it was only on 20 August 1992 that he went to
the court and signed the same; and, (c) that for monetary
consideration, he changed the joint affidavit of the arresting officers in
order to lay the groundwork for the dismissal of Crim. Cases Nos. 2307
and 2308.
In justifying the inclusion of the above-mentioned charges, the Court
opined that these accusations should have been included in the
investigation as they were embodied in the reply of complainant to the
comment of respondent Judge. Consequently, the Court directed the
National Bureau of Investigation (NBI), Cebu City, to conduct an
investigation and submit its report and recommendation on the (a)
alleged forgery of complainants signature on the marriage contract
signed by Emmanuel Plantar and Elizabeth Nacor on 10 May 1989;
and (b) purported falsification of the joint affidavit of the arresting

officers in Crim. Cases Nos. 2307 and 2308, and of the date affixed in
the verification of the complaint in Crim. Case No. 2388.
In partial compliance with the Courts directive, the NBI through
Regional Director Florencio Villarin submitted a report on 2 November
1995 which contained its findings and conclusions on the examination
of the marriage contract containing complainants alleged forged
signature. It concluded that "(t)he questioned signatures Pedrita
Harayo and the standard/sample signatures and handwritings of one
Pedrita Harayo were not written by one and the same person."4
With respect to the alleged falsification of the joint affidavit of the
arresting officers, and of the date affixed in the verification of the
complaint in Crim. Case No. 2388, the NBI reports disclosed the
following: " (a) as regards the joint affidavit executed on 23 August
1991, ". . . indicative that they were not typed from one and the same
source/ typewriter;5 (b) as regards the joint affidavit executed on 15
August 1992 ". . . indicative that they were not typed from one and the
same source/typewriter;"6 and (c) "the questioned and the standard
sample/signatures (of) Jesus P. Carel were written by one and the
same person. The questioned typewritten entries/figures reading 15 is
NOT altered."7
Upon receipt of the last report of the NBI, the Second Division of this
Court again referred the matter to the OCA which in turn recommended
that the matter be "REFERRED BACK" to the executive judge of RTC,
Cebu, for a more exhaustive investigation, report and recommendation,
particularly on those matters raised by the complainant but were not
touched in the investigation conducted by former Executive Judge
Generoso Juaban.
On 8 January 2003, Investigating Judge Galicano Arriesgado, who
replaced Judge Generoso Juaban as Executive Judge, RTC-Cebu,
together with Judges Isaias Dicdican and Pampio Abarintos, First Vice
Executive Judge and Second Vice-Executive Judge, respectively,
submitted their report with the recommendation that all the charges

against respondent Judge be dismissed for lack of merit. 8 In arriving at


their findings and conclusions, the Investigating Judges said -9
On the charge that respondent judge allowed the forging of
complainants signature in the marriage contract x x x x no sufficient
proof was adduced that respondent judge had personal knowledge,
much less, allowed the commission of the forgery. While it is true that
the NBI result impliedly reported a forgery, however, the same cannot
be directly pointed to respondent x x x x
On the second charge of falsifying the date in the verification portion of
the joint affidavit of the police officers in Criminal Case 2388, the
investigation revealed a total lack of evidence to support the same x x x
x In the absence of proof to the contrary, the best evidence is the
document, which has been, for all intents, proven not only to be regular,
but also to be without any alterations. Hence, in the normal course of
things, it is logical to presume that the document was signed by
respondent on the 15th and have been filed with and received by the
court on the 18th as appearing on the official stamp x x x x
On the charge that respondent judge changed the joint affidavits of the
arresting officers in order to facilitate the dismissal of Criminal Cases
Nos. 2307 and 2308, the same June 1, 2000 report of the NBI did not
yield conclusive results that the questioned affidavits were typed at the
MTC Minglanilla x x x x
On the first charge, there is absolutely no proof, other than the
unsubstantiated allegation of the complainant, that respondent Judge
had received pecuniary consideration from a brother of the accused in
exchange for the dismissal of Crim. Cases Nos. 2307 and 2308. If we
were to believe complainants account of the incident, the payoff was
supposed to have been made outside the chambers of respondent
Judge and in the presence of lawyers and court employees; in other
words, in open public view a venue which no sensible perpetrator of a
crime would choose as it would unnecessarily expose him to the
dangers of eventual prosecution. Moreover, her allusion that
respondent offered her P100.00, apparently as goodwill money,

becomes even more preposterous considering that a considerable


amount, P15,000.00 or P20,000.00, was supposed to have changed
hands. As pointed out by respondent, P100.00 is an amount too
miniscule to buy the silence of a potential witness to a crime.
On the second charge, we also find unpersuasive complainants
allegation that respondent improperly utilized the services of Court Aide
Jose Agosto as domestic helper and driver of his passenger jeepney.
This bare accusation, devoid of corroboration, cannot nudge this Court
into precipitate belief.
On the charge that respondent Judge solemnized civil marriages for
exorbitant fees without the requisite marriage license, the records
would reveal that on three (3) different occasions he had indeed signed
marriage contracts, which were undated as to the time the marriages
were solemnized and with the space provided for the license number
left blank.
In his comment, respondent Judge denied having solemnized
marriages without a license.1wphi1 He explained that in the first
instance involving the marriage between Didier and Basan, he signed
the marriage contract only after assurances were made by complainant
that the papers were in order but collected said documents back and
kept them inside his drawer soon after learning that the marriage
license was indeed missing. In the other two (2) instances, he also
denied having officiated at the marriage between Bin Osman and
Librea and that of Cabreros and Batto when informed that the
contracting parties could not produce their respective marriage
licenses.
Indeed, there is nothing in the records that would indicate that
respondent had in fact solemnized the marriages without the mandated
license. After all, who could best prove the existence of this fact other
than the contracting parties themselves? Nonetheless, there is an
inescapable showing that in at least three (3) different occasions
respondent Judge actually signed the marriage contracts, admittedly
prior to the issuance of the licenses.

Be that as it may, we cannot reject outright, in the absence of a more


convincing evidence en contra by the complainant, the verity of
respondents assertion that he desisted from performing marriages
upon learning of the contracting parties failure to produce the requisite
marriage licenses, which was corroborated by other defense witnesses.
But we cannot also help but register our strong suspicion that there are
more serious irregularities than meet the eye behind respondents
actuations. Committing the same act of imprudence three (3) times is
one too many for comfort, casting respondents motives in serious
question. In the absence however of clear and convincing proof that he
actually solemnized the three (3) marriages without the marriage
licenses, no culpability of such nature can be ascribed to him.

doing so, he exhibited a cavalier proclivity of ignoring the norms of


diligence, efficiency, competence and dedication expected of a man
donning a judicial robe. Thus, he deserves a more severe disciplinary
sanction than that recommended.

Nonetheless, respondents admission of signing the marriage contracts


before the issuance of the requisite marriage licenses, although not
necessarily fraudulent, amounts to gross negligence, if not gross
irresponsibility, in performing his official functions.

His serious negligence and irresponsibility in signing three (3) marriage


contracts, allegedly in blank, and without the requisite marriage
licenses are simply too palpable for this Court to assume an air of
nonchalance and suspend in midair the fall of the gavel when it should.

On the charge of forgery by respondent of complainants signature as


witness in a marriage contract, there appears to be sufficient basis for
the conclusion of the NBI of an implied forgery on the documents in
question although there is no direct evidence on who actually
committed the forgery. But the fact is that it happened with respondents
apparent tolerance, if not acquiescence, for which he should be held
accountable.

WHEREFORE, the recommendations of Investigating Judges


Generoso Juaban and Galicano Arriesgado are APPROVED,
particularly exonerating respondent Judge Mamerto Y. Coliflores of the
charges against him, with the exception of his act of signing the three
(3) marriage contracts without the required marriage licenses for which
the Court finds him administratively liable and is ORDERED suspended
immediately for one (1) month and to pay a fine equivalent to two (2)
months salary which shall be withheld from his retirement benefits
when he retires.

As regards the allegation of complainant that respondent falsified the


date when he signed the verification portion of the complaint and the
joint affidavit of the arresting officers in Crim. Case No. 2388, and that
he changed for monetary consideration the joint affidavit of the
arresting officers in connection with Crim. Cases Nos. 2307 and 2308,
we can only rely, in the absence of proof to the contrary, on the findings
of the NBI that no alterations were made on the subject documents.

Although the accusations against respondent Judge do not appear to


have been fully substantiated, the Court cannot let him go unpunished.
In Negre v. Rivera,10 we admonished a municipal judge for signing a
marriage contract where no marriage license had been issued.
Considering that in the instant case, respondent repeatedly committed
these procedural gaffes, a penalty more severe must be meted against
him.

SO ORDERED.
Quisumbing,
and
Callejo,
Austria-Martinez, J., on leave.
G.R. No. 174689

In sum, respondent, for gratuitously signing marriage contracts in utter


disregard of its legal effects, had been remiss in his duty of exercising
due care and circumspection in the performance of his official duties. In

Sr.,

JJ.,

October 22, 2007

concur.

ROMMEL JACINTO DANTES SILVERIO, petitioner,


vs.
REPUBLIC OF THE PHILIPPINES, respondent.
CORONA, J.:
When God created man, He made him in the likeness of God; He
created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she
heard voices coming from inside the bamboo. "Oh North Wind! North
Wind! Please let us out!," the voices said. She pecked the reed once,
then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the woman "Maganda"
(Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular,
does the law recognize the changes made by a physician using scalpel,
drugs and counseling with regard to a persons sex? May a person
successfully petition for a change of name and sex appearing in the
birth certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed
a petition for the change of his first name and sex in his birth certificate
in the Regional Trial Court of Manila, Branch 8. The petition, docketed
as SP Case No. 02-105207, impleaded the civil registrar of Manila as
respondent.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April
4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio"
in his certificate of live birth (birth certificate). His sex was registered as
"male."
He further alleged that he is a male transsexual, that is, "anatomically
male but feels, thinks and acts as a female" and that he had always

identified himself with girls since childhood. 1 Feeling trapped in a mans


body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent sex reassignment
surgery2 in Bangkok, Thailand. He was thereafter examined by Dr.
Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to
be married. He then sought to have his name in his birth certificate
changed from "Rommel Jacinto" to "Mely," and his sex from "male" to
"female."
An order setting the case for initial hearing was published in the
Peoples Journal Tonight, a newspaper of general circulation in Metro
Manila, for three consecutive weeks.3 Copies of the order were sent to
the Office of the Solicitor General (OSG) and the civil registrar of
Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as
witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.

The [c]ourt rules in the affirmative.


Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and
acted like a woman, now possesses the physique of a female.
Petitioners misfortune to be trapped in a mans body is not his own
doing and should not be in any way taken against him.

02-105207. Petitioner moved


denied.9 Hence, this petition.

for

reconsideration

but

it

was

Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness
on the part of the petitioner and her [fianc] and the realization of their
dreams.

A Persons First Name Cannot Be Changed On the Ground of Sex


Reassignment

Finally, no evidence was presented to show any cause or ground to


deny the present petition despite due notice and publication thereof.
Even the State, through the [OSG] has not seen fit to interpose any
[o]pposition.

Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present
sex. (emphasis supplied)

WHEREFORE, judgment is hereby rendered GRANTING the petition


and ordering the Civil Registrar of Manila to change the entries
appearing in the Certificate of Birth of [p]etitioner, specifically for
petitioners first name from "Rommel Jacinto" to MELY and petitioners
gender from "Male" to FEMALE. 5

Petitioner believes that after having acquired the physical features of a


female, he became entitled to the civil registry changes sought. We
disagree.

On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals. 6 It alleged
that there is no law allowing the change of entries in the birth certificate
by reason of sex alteration.
On February 23, 2006, the Court of Appeals 7 rendered a decision8 in
favor of the Republic. It ruled that the trial courts decision lacked legal
basis. There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery.
Thus, the Court of Appeals granted the Republics petition, set aside
the decision of the trial court and ordered the dismissal of SP Case No.

Petitioner invoked his sex reassignment as the ground for his petition
for change of name and sex. As found by the trial court:

The State has an interest in the names borne by individuals and entities
for purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes. 13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error
Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. No entry in a civil register shall

be changed or corrected without a judicial order, except for clerical or


typographical errors and change of first name or nickname which can
be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act
and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power
and authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from
the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until
and unless an administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative
in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name
may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The
petition for change of first name or nickname may be allowed in any of
the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known by
that first name or nickname in the community; or

Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the
sex he thought he transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or civil status. 18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners
first name for his declared purpose may only create grave
complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the
use of his true and official name. 20 In this case, he failed to show, or
even allege, any prejudice that he might suffer as a result of using his
true and official name.
In sum, the petition in the trial court in so far as it prayed for the change
of petitioners first name was not within that courts primary jurisdiction
as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper
remedy because the proper remedy was administrative, that is, that
provided under RA 9048. It was also filed in the wrong venue as the
proper venue was in the Office of the Civil Registrar of Manila where
his birth certificate is kept. More importantly, it had no merit since the
use of his true and official name does not prejudice him at all. For all
these reasons, the Court of Appeals correctly dismissed petitioners
petition in so far as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is
a legal issue and the court must look to the statutes. 21 In this
connection, Article 412 of the Civil Code provides:

(3) The change will avoid confusion.


ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended
by RA 9048 in so far as clerical or typographical errors are involved.
The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of
Court the correction of such errors. 22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error"
is:
SECTION 2. Definition of Terms. As used in this Act, the following
terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the


performance of clerical work in writing, copying, transcribing or typing
an entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible
to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records: Provided, however, That no correction must involve the
change of nationality, age, status or sex of the petitioner. (emphasis
supplied)
Under RA 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules of
Court.
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:


(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth. 25 However, no
reasonable interpretation of the provision can justify the conclusion that
it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and sex,
were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and nationality
of a person. Their effects are expressly sanctioned by the laws. In
contrast, sex reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized nor even mentioned
by any law, expressly or impliedly.

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

father is not known, of the mother alone; (d) civil status of parents; (e)
place where the infant was born; and (f) such other data as may be
required in the regulations to be issued.

The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not. The comprehensive term status include
such matters as the beginning and end of legal personality, capacity to
have rights in general, family relations, and its various aspects, such as
birth, legitimation, adoption, emancipation, marriage, divorce, and
sometimes even succession.28 (emphasis supplied)

xxx

A persons sex is an essential factor in marriage and family relations. It


is a part of a persons legal capacity and civil status. In this connection,
Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for
the registration of a birth in the civil register. Such declaration shall be
exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of the newborn
child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of
infant; (c) names, citizenship and religion of parents or, in case the

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of


the facts as they existed at the time of birth. 29 Thus, the sex of a person
is determined at birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment,
the determination of a persons sex made at the time of his or her birth,
if not attended by error,30is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary legislative
intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other
laws) should therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of structure and
function that distinguish a male from a female" 32 or "the distinction
between male and female."33 Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female"
in everyday understanding do not include persons who have undergone
sex reassignment. Furthermore, "words that are employed in a statute
which had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be
argued that the term "sex" as used then is something alterable through
surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no

law authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance
with the principles of justice and equity. It believed that allowing the
petition would cause no harm, injury or prejudice to anyone. This is
wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioners first step towards his
eventual marriage to his male fianc. However, marriage, one of the
most sacred social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family relations.
It will allow the union of a man with another man who has undergone
sex reassignment (a male-to-female post-operative transsexual).
Second, there are various laws which apply particularly to women such
as the provisions of the Labor Code on employment of
women,39 certain felonies under the Revised Penal Code 40 and the
presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court,41 among others. These laws underscore the public
policy in relation to women which could be substantially affected if
petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or
court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to apply
or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to


do so, to determine what guidelines should govern the recognition of
the effects of sex reassignment. The need for legislative guidelines
becomes particularly important in this case where the claims asserted
are statute-based.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex reassignment
the privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the guidelines in
turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on
when a person may be recognized as having successfully changed his
sex. However, this Court has no authority to fashion a law on that
matter, or on anything else. The Court cannot enact a law where no law
exists. It can only apply or interpret the written word of its co-equal
branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them,
life is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not
by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.

Puno, C.J.,
JJ., concur.

Chairperson,

Sandoval-Gutierrez,

A.M. No. P-99-1312

Azcuna,

Garcia,

July 31, 2002

ERMELINDA ESCLEO, complainant,


vs.
MARITESS DORADO, Court Stenographer II, Metropolitan Trial
Court, Branch 66, Makati City, respondent.
KAPUNAN, J.:
Before this Court is an administrative complaint instituted by Ms
Ermelinda Escleo against Ms Maritess Dorado, Court Stenographer II,
Branch 22, Metropolitan Trial Court (MeTC), Makati City. Respondent is
alleged to have solicited from complainants sister the amount of
P2,000.00 as down payment of an unauthorized "facilitation fee" to
expedite the latters marriage.
Complainant narrates that on January 8, 1998, her sister, Ma. Phoebe
Q. Carbon went to the City Hall of Makati to secure a marriage license.
Ms. Carbon was then engaged to a Korean citizen. She approached
respondent who asked her to fill up some forms and to pay the amount
of P5,000.00. After some bargaining, the amount was reduced to
P4,000.00. Ms Carbon made a down payment of P2,000.00, and was
informed that the marriage ceremony was scheduled for January 12,
1998 at 1:30 p.m.
Upon returning home, Ms. Carbon informed complainant of the
arrangements. Finding the amount paid by her sister exorbitant,
complainant went to respondents office the following day. She
demanded that respondent return the down payment of P2,000.00 and
the document evidencing the legal capacity of her sisters fianc to
marry, which had been given to respondent for processing.
Respondent, however, refused to return the money and the document
allegedly because she had given them to a certain Caloy of Imus,
Cavite.

A shouting match ensued between the parties. The commotion caught


the attention of respondents superior, MeTC Judge Estella Bernabe,
who inquired as to the cause of the argument. Complainant explained
to the Judge the events that had just transpired. Judge Bernabe
informed complainant that no fees are supposed to be charged for the
solemnization of marriage and instructed her to put her complaint in
writing. Judge Bernabe referred complainant to MeTC Executive Judge
Leticia Ulibarri.
When complainant returned the next day, January 11, 1998, respondent
still failed to return the money as well as the document. Respondent
even told complainant that they should consider themselves fortunate
that they were charged on P4,000.00, considering that the so-called
"japayukis" were ordinarily charged P15,000.00. Complainant said she
did not care and demanded the document evidencing the Koreans
legal capacity to marry. Respondent told her to withdraw her complaint
first. Complainant refused however.1
Ms. Escleo registered her complaint before Executive Judge Ulibarri.
On January 13 and 14, 1998, Judge Ulibarri conducted an investigation
of the charges against respondent. Both complainant and respondent
were in attendance on both dates. Phoebe Carbon was also present in
the investigation held on January 14, 1998. The proceedings before
Judge Ulibarri were transcribed and the case was subsequently
referred to the Office of the Court Administrator (OCA).
Directed to file an answer, respondent submitted an affidavit
vehemently denying the charges. She related that on January 8, 1998,
while she was busy transcribing her stenographic notes, a certain Ma.
Phoebe Q. Carbon, together with her foreigner-fianc, approached her.
Ms. Carbon sought her assistance on how they could be married at the
soonest possible time without having to await the lapse of the 10-day
period of publication of their application for a marriage license. Ms.
Carbon explained that the urgency of the wedding was due to the fact
that they were already deemed overstaying in the country. Since
respondent was allegedly busy at work, she directed Ms Carbon to
proceed to the Office of the Local Civil Registrar to secure a marriage

license and to return to her only after she already had in her
possession the necessary document. Since Ms. Carbon, then almost in
tears, was quite insistent in her request for assistance, respondent
decided to seek the help of a friend from Cavite in securing a marriage
license for Ms Carbon and her fianc.
The next day, a very angry complainant came to respondents office.
Respondent explained to her that, "hindi ako ang naglalakad ng kasal
at wala na sa akin ang legal capacity dahilan sa ipinaprocess na ni Phoebe ng
madalian,
at
babalik
na
lamang
si Phoebe para magbayad at magpakasal sa January 12 or 13."
Complainant proceeded to report the matter to MeTC Executive Judge
Ulibarri, who then ordered respondent to return the documents of
complainants sister.
Respondent denied having done anything wrong or having received
money from either complainant or Ms Carbon. On the contrary, she
asserted that she was actually trying to be helpful in expediting the
couples application for a marriage license.2
Appended to respondents affidavit were the affidavits 3 of Ma. Elvie N.
Cruz and Luzviminda C. Sional, who both claimed to be present when
the January 9, 1998 encounter between complainant and respondent
took place. Affiants stated that complainant shouted at respondent,
spewing unpleasant words. Respondent calmly tried to explain to
complainant but the latter continued yelling at her.
In a Resolution dated June 9, 1999, the Court resolved to refer the
case to Sandiganbayan Justice Romulo Quimbo (Ret.), consultant of
the OCA, for investigation, report and recommendation.
Justice Quimbo related in his Report the proceedings that transpired in
his investigation:

We set the first hearing on September 13, 1999. Subpoenas were sent
to both complainant and respondent. Only the respondent appeared. It
does not appear on record whether the complainant received the
subpoena mailed to her.
The respondent sought the postponement of the hearing as she wanted
to retain the services of a lawyer. For this reason, we reset the hearing
to October 6, 1999 but because respondent suffered a miscarriage and
could not be present, we cancelled said hearing. On October 20, 1999,
respondent appeared with Atty. Editha Mia of the Public Attorneys
Office. Complainant was again absent.
The undersigned asked respondent whether she made answers to
questions propounded by Hon. Leticia Querubin-Ulibarri, Executive
Judge of the Makati MeTC and contained in two transcripts of
stenographic notes taken at an investigation of the complaint of the
present complainant which the said Judge Ulibarri conducted on
January 13 and 14, 1998. These two transcripts now form part of the
record of this case having been transmitted by Judge Ulibarri.
Respondents counsel manifested that the said answers were given
under duress. We, therefore, called Judge Ulibarri to appear and testify
in the investigation. On December 1, 1999, Judge Ulibarri, under oath,
assured the undersigned that the answers which respondent gave and
which appear in the two transcripts were voluntarily made and that no
compulsion was exerted to extract the same.
After the declaration of Judge Ulibarri, the respondent opted not to
testify in her own behalf nor to present evidence. Instead she prayed
for time to file a "position paper" which the undersigned received on
December 21, 1999.4
In her Position Paper dated December 15, 1999, respondent prayed
that the complaint be dismissed for lack of evidence. She argued that
the failure of the complainant to attend the investigation violated her
right to cross-examine her accuser. She added that the complaint is
based merely on hearsay, complainant not having personal knowledge
of the transaction between respondent and complainants sister.

Respondent likewise contended that she was deprived of her right to


due process. In the investigation by Judge Ulibarri, which was
conducted a day after the complaint was filed, respondent was not
given the opportunity to answer the complaint in writing. Neither was
she given the usual three days to prepare for trial. Moreover, the Judge
not inform her of her right against self-incrimination.
The acts complained of, respondent also pointed out, are not within her
duties and hence, could not be punished therefor. Finally, it was
complainants sister who solicited respondents help and respondent
should not be penalized for merely helping one in need.
Respondent attached, as Annex 1 to her Position Paper, an Affidavit
executed by one Felicitas Sanje, who claimed to be a
Minister/Reverend of the Spiritual Filipino Catholic Church and, as
such, was authorized to conduct marriages within Metro Manila. The
authority was evidenced by a Certificate of Registration and Authority to
Solemnize Marriage5 signed by the Civil Registry Coordinator (for the
Civil Registrar General).
Sanje alleged that he frequents he City Hall of Makati. He is regularly
approached by those who wish to get married but whose papers are
not in order and, hence, cannot be married by a judge. He stated that
he usually charges P2,000.00 for Filipinos and P5,000.00 for
foreigners. The fee covers the processing of the marriage license,
counseling, and other requirements, including a certified photocopy of
the marriage certificate.
On January 8, 1998, at around 2:30 to 3:00 p.m., Sanje saw
respondent talking to two persons. One of them, the woman, was on
the verge of tears as she talked to respondent who was then busy with
her typewriter. Sanje claimed that he overheard the woman pleading for
respondent to help them. The woman said that they needed to get
married (right away), otherwise, they would be deemed overstaying in
the country. Sanje heard respondent say, "[A]ng alam
ko P5,000.00 ang bayad kapag foreigner ang ikinakasal, kasama na
ang lahat ng papeles, pero hindi ako masyadong sigurado, kaya

bahala ng kayong mag-usap." The couple then handed respondent the


document evidencing the Koreans legal capacity to marry and their
application for a marriage license. They asked respondent to wait for
them while they had their money converted to local currency.
Respondent and Sanje waited for the two until 5:00 p.m. but the couple
did not return. As Sanje had overheard their conversation, respondent
gave him the documents. Sanje had the papers processed since he
would be conducting the marriage ceremony.
When Sanje returned to City Hall the next day, he learned that the
couple had not returned. Instead, one Esmerlinda (sic) Escleo
demanded from respondent the document evidencing the foreigners
legal capacity to marry. Respondent informed her that the document
had already been filed in Imus, Cavite, where the marriage license was
to be obtained. Sanje subsequently discovered that Escleo had filed a
complaint against respondent for charging exorbitant fees, although no
money had been even actually paid. Despite such failure to pay, Sanje
gave the couple their marriage license. He did not solemnize their
marriage, however, because they were "magulong kausap."
In his Report, dated January 7, 2000, Justice Quimbo found respondent
guilty of misconduct, "although it may not be characterized as gross
misconduct." He recommended that respondent be suspended for a
period of three (3) months, without pay, and that she be warned that the
commission of the same or similar act would merit a more severe
punishment.6
The Court concurs with the Hearing
recommendation, save for the penalty.

Officers

findings

and

Whether or not the complaint is hearsay, and whether or not


respondent was deprived of her right to cross-examine complainant,
who failed to attend the hearing called by Justice Quimbo, are largely
immaterial. Respondents purpose in raising these issues is obviously
to exclude the evidence presented by complainant. But assuming these
arguments are meritorious, there is still ample evidence to establish
respondents guilt evidence provided by respondent herself.

In the investigation conducted by Judge Ulibarri, respondent bared that


she had the papers processed, handing the document and the amount
of P2,000.00 to a certain Raquel from the "property." She also revealed
that, by merely antedating the marriage license, the 10-day posting
requirement could be skirted. The "agent" or go-between justified the
large fee.

Maritess Dorado
- Sa Property ata yon.
Court
- Property ng?

Maritess Dorado
Maritess Dorado
- Kasi Maam, magpapakasal daw sila. Tapos, sabi ko, dito pwede ten
days, sabi ko sa kanila, tapos sabi ko

- Ng Makati.

Court

Court

- Tapos sabi niya, magkano ang sisingilin mo?

- Property o licensing?

Maritess Dorado

Maritess Dorado

- Sabi ko, pwede na ang P1,500.00 kasi foreigner. Tapos sabi niya, eh
kasi uuwi na sila sa Iloilo. Tapos sabi ko, kasi pwede nating iano yan,
kaya lang mahal, maybayad kasi hindi tayo makakakuha tsaka hindi ka
makaka-aalis, sabi kong ganon sa kanya, pumayag naman sila,
Huwebes yon Maam, nagmamadali sila, eh di pinalakad ko na po,
Maam nung Huwebes.

- Property.
Court
- Ano ang full name niya?
Maritess Dorado

Court
- Basta Raquel ang alam ko.
- Kanino mo pinalakad?
Court
Maritess Dorado
- Eh tapos binigay mo yung pera, yung P2,000.00?
- Duon po sa naglalakad ng license, kay Raquel.
Maritess Dorado
Court
- Sino yung Raquel, saan [sic] nagtatrabajo?

- Maam, kailangan ng license, dahil kasi i-a-anti-date yung ano ng


kapatid niya, dahil yuon ng ang request nila para makasal sila dahil
aalis sila daw.

Court

Court

- I-a-anti-date, alin ang i-a-antidate?

- Mura ang singil mo, P1,500.00, ang sinabi mo P1,500.00?

Maritess Dorado

Maritess Dorado

- yung pong license.

- Hindi ho syempre Maam, may-agent naman yan tsaka tatawad pa


naman.

Court
Court
- Bakit, na-a-antidate ba yon?
- Bakit kailangan may-agent pa ang kasal?
Maritess Dorado
Maritess Dorado
- Hindi ko po alam, kasi hindi po ako ang naglalakad, basta yon lang
ang inaano niya.
Court
- So yung P2,000.00 ibinigay mo kay Raquel?
Maritess Dorado
- Yes, Maam.
Court
- Ngayon, ang sabi eh di P2,000.00, pero may balance pang P2,000.00
dahil P4,000.00 ang usapan ninyo, bakit nag-sisingil ka ng ganoong
kalaki, eh wala namang bayad ang eh ang alam ko singkwenta
pesos lang, bakit nagsisingil ka ng ganoong kalaki?

- Hindi ko naman ho kilala, kung baga ini-refer lang sila sa akin.


Respondent was not deprived of due process in the investigation
conducted by Judge Ulibarri. What is repugnant to due process is the
denial of the opportunity to be heard. 8 In administrative proceedings,
moreover, technical rules of procedure are not strictly
applied.9 Respondent cannot deny that she was accorded, and indeed
availed herself of, the opportunity to be heard in the proceedings before
Judge Ulibarri.
Respondent also claims that she had a right to be informed of her right
against self-incrimination, pursuant to Section 12 (1), Article III of the
Constitution:
Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice.

Maritess Dorado
- Siya lang naman po ang nag-ano, sinabi ko naman sa kanila na
pwede mura dahil dito.

This provision is not applicable because respondent was not under


"investigation for the commission of an offense"; hence, the rights
granted by said provision did not attach. Judge Ulibarri was under no
constitutional obligation to inform respondent of such right.

Lastly, respondent insists that the acts complained of have no


connection with her duties as court stenographer and that she was
merely helping complainants sister, for which punishment is
undeserved.
The law prescribes certain requirements for a valid marriage license to
issue.10 By agreeing to make it appear that complainants sister and her
fianc complied with these requirements, specifically by the antedating
of the marriage license, respondent abetted the circumvention of the
law. Worse, she did this for a fee. If respondent believes such to be an
act of kindness, she certainly has a skewed notion of charity.
Clearly, respondent may be held for her acts although they do not
involve her functions as stenographer. The Code of Conduct and
Ethical Standards for Public Officials and Employees 11 mandates all
public officials and employees "to refrain from doing acts contrary to
law, good morals, good customs, public policy, public order, public
safety and public interest." 12 The conduct especially of court personnel
must always be beyond reproach and circumscribed with the heavy
burden of responsibility as to let them be free of any suspicion that may
taint the judiciary.13
For abetting the circumvention of the legal requirements in the issuance
of a marriage license, respondent is guilty of Simple Misconduct
punishable by suspension for one (1) month and one (1) day to six (6)
months. This appearing to be her first offense, a one month and one
day suspension is deemed sufficient as her penalty.14
WHEREFORE, respondent Maritess M. Dorado is found guilty of
Simple Misconduct and is SUSPENDED for a period of ONE (1)
MONTH AND ONE (1) DAY, without pay. She is WARNED that a
repetition of the same or similar offense will be dealt with more
severely.
SO ORDERED.
Davide, Jr., Vitug, Ynares-Santiago, and Austria-Martinez, JJ., concur.

G.R. No. 133778

March 14, 2000

ENGRACE NIAL for Herself and as Guardian ad Litem of the


minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL &
PEPITO NIAL, JR., petitioners,
vs.
NORMA BAYADOG, respondent.
YNARES-SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration of
nullity of his marriage after his death?
Pepito Nial was married to Teodulfa Bellones on September 26, 1974.
Out of their marriage were born herein petitioners. Teodulfa was shot
by Pepito resulting in her death on April 24, 1985. One year and 8
months thereafter or on December 11, 1986, Pepito and respondent
Norma Badayog got married without any marriage license. In lieu
thereof, Pepito and Norma executed an affidavit dated December 11,
1986 stating that they had lived together as husband and wife for at
least five years and were thus exempt from securing a marriage
license. On February 19, 1997, Pepito died in a car accident. After their
father's death, petitioners filed a petition for declaration of nullity of the
marriage of Pepito to Norma alleging that the said marriage was void
for lack of a marriage license. The case was filed under the assumption
that the validity or invalidity of the second marriage would affect
petitioner's successional rights. Norma filed a motion to dismiss on the
ground that petitioners have no cause of action since they are not
among the persons who could file an action for "annulment of marriage"
under Article 47 of the Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City,
Cebu, Branch 59, dismissed the petition after finding that the Family
Code is "rather silent, obscure, insufficient" to resolve the following
issues:

(1) Whether or not plaintiffs have a cause of action against defendant in


asking for the declaration of the nullity of marriage of their deceased
father, Pepito G. Nial, with her specially so when at the time of the
filing of this instant suit, their father Pepito G. Nial is already dead;
(2) Whether or not the second marriage of plaintiffs' deceased father
with defendant is null and void ab initio;
(3) Whether or not plaintiffs are estopped from assailing the validity of
the second marriage after it was dissolved due to their father's death. 1
Thus, the lower court ruled that petitioners should have filed the action
to declare null and void their father's marriage to respondent before his
death, applying by analogy Article 47 of the Family Code which
enumerates the time and the persons who could initiate an action for
annulment of marriage. 2 Hence, this petition for review with this Court
grounded on a pure question of law.
This petition was originally dismissed for non-compliance with Section
11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the
verification failed to state the basis of petitioner's averment that the
allegations in the petition are "true and correct"." It was thus treated as
an unsigned pleading which produces no legal effect under Section 3,
Rule 7, of the 1997 Rules. 3 However, upon motion of petitioners, this
Court reconsidered the dismissal and reinstated the petition for
review. 4
The two marriages involved herein having been solemnized prior to the
effectivity of the Family Code (FC), the applicable law to determine their
validity is the Civil Code which was the law in effect at the time of their
celebration. 5 A valid marriage license is a requisite of marriage under
Article 53 of the Civil Code, 6 the absence of which renders the
marriage void ab initio pursuant to Article 80(3) 7 in relation to Article
58. 8 The requirement and issuance of marriage license is the State's
demonstration of its involvement and participation in every marriage, in
the maintenance of which the general public is interested. 9 This
interest proceeds from the constitutional mandate that the State

recognizes the sanctity of family life and of affording protection to the


family as a basic "autonomous social institution." 10 Specifically, the
Constitution considers marriage as an "inviolable social institution," and
is the foundation of family life which shall be protected by the
State. 11 This is why the Family Code considers marriage as "a special
contract of permanent union" 12 and case law considers it "not just an
adventure but a lifetime commitment." 13
However, there are several instances recognized by the Civil Code
wherein a marriage license is dispensed with, one of which is that
provided in Article 76, 14 referring to the marriage of a man and a
woman who have lived together and exclusively with each other as
husband and wife for a continuous and unbroken period of at least five
years before the marriage. The rationale why no license is required in
such case is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of
persons outside a valid marriage due to the publication of every
applicant's name for a marriage license. The publicity attending the
marriage license may discourage such persons from legitimizing their
status. 15 To preserve peace in the family, avoid the peeping and
suspicious eye of public exposure and contain the source of gossip
arising from the publication of their names, the law deemed it wise to
preserve their privacy and exempt them from that requirement.
There is no dispute that the marriage of petitioners' father to
respondent Norma was celebrated without any marriage license. In lieu
thereof, they executed an affidavit stating that "they have attained the
age of majority, and, being unmarried, have lived together as husband
and wife for at least five years, and that we now desire to marry each
other." 16 The only issue that needs to be resolved pertains to what
nature of cohabitation is contemplated under Article 76 of the Civil
Code to warrant the counting of the five year period in order to exempt
the future spouses from securing a marriage license. Should it be a
cohabitation wherein both parties are capacitated to marry each other
during the entire five-year continuous period or should it be a
cohabitation wherein both parties have lived together and exclusively
with each other as husband and wife during the entire five-year

continuous period regardless of whether there is a legal impediment to


their being lawfully married, which impediment may have either
disappeared or intervened sometime during the cohabitation period?

Art. 63: . . . This notice shall request all persons having knowledge of
any impediment to the marriage to advice the local civil registrar
thereof. . . .

Working on the assumption that Pepito and Norma have lived together
as husband and wife for five years without the benefit of marriage, that
five-year period should be computed on the basis of a cohabitation as
"husband and wife" where the only missing factor is the special contract
of marriage to validate the union. In other words, the five-year commonlaw cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not
been for the absence of the marriage. This 5-year period should be the
years immediately before the day of the marriage and it should be a
period of cohabitation characterized by exclusivity meaning no third
party was involved at anytime within the 5 years and continuity that
is unbroken. Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the parties were
capacitated to marry each other during the entire five years, then the
law would be sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same footing with
those who lived faithfully with their spouse. Marriage being a special
relationship must be respected as such and its requirements must be
strictly observed. The presumption that a man and a woman deporting
themselves as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any excuse
to not comply with every single requirement and later use the same
missing element as a pre-conceived escape ground to nullify their
marriage. There should be no exemption from securing a marriage
license unless the circumstances clearly fall within the ambit of the
exception. It should be noted that a license is required in order to notify
the public that two persons are about to be united in matrimony and
that anyone who is aware or has knowledge of any impediment to the
union of the two shall make it known to the local civil registrar.17 The
Civil Code provides:

Art. 64: Upon being advised of any alleged impediment to the marriage,
the local civil registrar shall forthwith make an investigation, examining
persons under oath. . . .
This is reiterated in the Family Code thus:
Art. 17 provides in part: . . . This notice shall request all persons having
knowledge of any impediment to the marriage to advise the local civil
registrar thereof. . . .
Art. 18 reads in part: . . . In case of any impediment known to the local
civil registrar or brought to his attention, he shall note down the
particulars thereof and his findings thereon in the application for a
marriage license. . . .
This is the same reason why our civil laws, past or present, absolutely
prohibited the concurrence of multiple marriages by the same person
during the same period. Thus, any marriage subsequently contracted
during the lifetime of the first spouse shall be illegal and void, 18 subject
only to the exception in cases of absence or where the prior marriage
was dissolved or annulled. The Revised Penal Code complements the
civil law in that the contracting of two or more marriages and the having
of extramarital affairs are considered felonies, i.e., bigamy and
concubinage and adultery. 19 The law sanctions monogamy.
In this case, at the time of Pepito and respondent's marriage, it cannot
be said that they have lived with each other as husband and wife for at
least five years prior to their wedding day. From the time Pepito's first
marriage was dissolved to the time of his marriage with respondent,
only about twenty months had elapsed. Even assuming that Pepito and
his first wife had separated in fact, and thereafter both Pepito and
respondent had started living with each other that has already lasted for
five years, the fact remains that their five-year period cohabitation was

not the cohabitation contemplated by law. It should be in the nature of a


perfect union that is valid under the law but rendered imperfect only by
the absence of the marriage contract. Pepito had a subsisting marriage
at the time when he started cohabiting with respondent. It is immaterial
that when they lived with each other, Pepito had already been
separated in fact from his lawful spouse. The subsistence of the
marriage even where there was actual severance of the filial
companionship between the spouses cannot make any cohabitation by
either spouse with any third party as being one as "husband and wife".
Having determined that the second marriage involved in this case is not
covered by the exception to the requirement of a marriage license, it is
void ab initio because of the absence of such element.
The next issue to be resolved is: do petitioners have the personality to
file a petition to declare their father's marriage void after his death?
Contrary to respondent judge's ruling, Article 47 of the Family
Code 20 cannot be applied even by analogy to petitions for declaration
of nullity of marriage. The second ground for annulment of marriage
relied upon by the trial court, which allows "the sane spouse" to file an
annulment suit "at anytime before the death of either party" is
inapplicable. Article 47 pertains to the grounds, periods and persons
who can file an annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a petition to declare the
nullity of a marriage. Voidable and void marriages are not identical. A
marriage that is annulable is valid until otherwise declared by the court;
whereas a marriage that is void ab initio is considered as having never
to have taken place21 and cannot be the source of rights. The first can
be generally ratified or confirmed by free cohabitation or prescription
while the other can never be ratified. A voidable marriage cannot be
assailed collaterally except in a direct proceeding while a void marriage
can be attacked collaterally. Consequently, void marriages can be
questioned even after the death of either party but voidable marriages
can be assailed only during the lifetime of the parties and not after
death of either, in which case the parties and their offspring will be left
as if the marriage had been perfectly valid. 22 That is why the action or

defense for nullity is imprescriptible, unlike voidable marriages where


the action prescribes. Only the parties to a voidable marriage can assail
it but any proper interested party may attack a void marriage. Void
marriages have no legal effects except those declared by law
concerning the properties of the alleged spouses, regarding coownership or ownership through actual joint contribution, 23 and its
effect on the children born to such void marriages as provided in Article
50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the
Family Code. On the contrary, the property regime governing voidable
marriages is generally conjugal partnership and the children conceived
before its annulment are legitimate.
Contrary to the trial court's ruling, the death of petitioner's father
extinguished the alleged marital bond between him and respondent.
The conclusion is erroneous and proceeds from a wrong premise that
there was a marriage bond that was dissolved between the two. It
should be noted that their marriage was void hence it is deemed as if it
never existed at all and the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial decree is
necessary in order to establish the nullity of a marriage. 24 "A void
marriage does not require a judicial decree to restore the parties to
their original rights or to make the marriage void but though no
sentence of avoidance be absolutely necessary, yet as well for the sake
of good order of society as for the peace of mind of all concerned, it is
expedient that the nullity of the marriage should be ascertained and
declared by the decree of a court of competent jurisdiction." 25 "Under
ordinary circumstances, the effect of a void marriage, so far as
concerns the conferring of legal rights upon the parties, is as though no
marriage had ever taken place. And therefore, being good for no legal
purpose, its invalidity can be maintained in any proceeding in which the
fact of marriage may be material, either direct or collateral, in any civil
court between any parties at any time, whether before or after the
death of either or both the husband and the wife, and upon mere proof
of the facts rendering such marriage void, it will be disregarded or
treated as non-existent by the courts." It is not like a voidable marriage
which cannot be collaterally attacked except in direct proceeding

instituted during the lifetime of the parties so that on the death of either,
the marriage cannot be impeached, and is made good ab initio. 26 But
Article 40 of the Family Code expressly provides that there must be a
judicial declaration of the nullity of a previous marriage, though void,
before a party can enter into a second marriage 27 and such absolute
nullity can be based only on a final judgment to that effect. 28 For the
same reason, the law makes either the action or defense for the
declaration of absolute nullity of marriage imprescriptible. 29 Corollarily,
if the death of either party would extinguish the cause of action or the
ground for defense, then the same cannot be considered
imprescriptible.
However, other than for purposes of remarriage, no judicial action is
necessary to declare a marriage an absolute nullity.1wphi1 For other
purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court may pass
upon the validity of marriage even in a suit not directly instituted to
question the same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in the case.
When such need arises, a final judgment of declaration of nullity is
necessary even if the purpose is other than to remarry. The clause "on
the basis of a final judgment declaring such previous marriage void" in
Article 40 of the Family Code connotes that such final judgment need
not be obtained only for purpose of remarriage.
WHEREFORE, the petition is GRANTED. The assailed Order of the
Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil
Case No. T-639, is REVERSED and SET ASIDE. The said case is
ordered REINSTATED.1wphi1.nt
SO ORDERED.
Davide,
Jr.,
C.J.,
Puno
and
Pardo, J., on official business abroad.

Kapunan,

G.R. No. 103047 September 2, 1994

JJ.,

concur.

REPUBLIC OF THE PHILIPPINES, petitioner,


vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
PUNO, J.:
The case at bench originated from a petition filed by private respondent
Angelina M. Castro in the Regional Trial Court of Quezon City seeking
a judicial declaration of nullity of her marriage to Edwin F.
Cardenas. 1 As ground therefor, Castro claims that no marriage license
was ever issued to them prior to the solemnization of their marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer.
Consequently, he was declared in default. Trial proceeded in his
absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were
married in a civil ceremony performed by Judge Pablo M. Malvar, City
Court Judge of Pasay City. The marriage was celebrated without the
knowledge of Castro's parents. Defendant Cardenas personally
attended to the processing of the documents required for the
celebration of the marriage, including the procurement of the marriage,
license. In fact, the marriage contract itself states that marriage license
no. 3196182 was issued in the name of the contracting parties on June
24, 1970 in Pasig, Metro Manila.
The couple did not immediately live together as husband and wife since
the marriage was unknown to Castro's parents. Thus, it was only in
March 1971, when Castro discovered she was pregnant, that the
couple decided to live together. However, their cohabitation lasted only
for four (4) months. Thereafter, the couple parted ways. On October 19,
1971, Castro gave birth. The baby was adopted by Castro's brother,
with the consent of Cardenas.

The baby is now in the United States. Desiring to follow her daughter,
Castro wanted to put in order her marital status before leaving for the
States. She thus consulted a lawyer, Atty. Frumencio E. Pulgar,
regarding the possible annulment of her marriage. Through her lawyer's
efforts, they discovered that there was no marriage license issued to
Cardenas prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the
Civil Register of Pasig, Metro Manila. It reads:

Unsatisfied with the decision, Castro appealed to respondent appellate


court. She insisted that the certification from the local civil registrar
sufficiently established the absence of a marriage license.
As stated earlier, respondent appellate court reversed the Decision of
the trial court. 3 It declared the marriage between the contracting parties
null and void and directed the Civil Registrar of Pasig to cancel the
subject marriage contract.
Hence this petition for review on certiorari.

February 20, 1987


TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS and ANGELINA
M. CASTRO who were allegedly married in the Pasay City Court on
June 21, 1970 under an alleged (s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970
cannot be located as said license no. 3196182 does not appear from
our records.

Petitioner Republic of the Philippines urges that respondent appellate


court erred when it ruled that the certification issued by the civil
registrar that marriage license no. 3196182 was not in their record
adequately proved that no such license was ever issued. Petitioner also
faults the respondent court for relying on the self-serving and
uncorroborated testimony of private respondent Castro that she had no
part in the procurement of the subject marriage license. Petitioner thus
insists that the certification and the uncorroborated testimony of private
respondent are insufficient to overthrow the legal presumption
regarding the validity of a marriage.

Issued upon request of Mr. Ed Atanacio.


(Sgd)
CENONA
Senior Civil Registry Officer

D.

QUINTOS

Castro testified that she did not go to the civil registrar of Pasig on or
before June 24, 1970 in order to apply for a license. Neither did she
sign any application therefor. She affixed her signature only on the
marriage contract on June 24, 1970 in Pasay City.
The trial court denied the petition. 2 It held that the above certification
was inadequate to establish the alleged non-issuance of a marriage
license prior to the celebration of the marriage between the parties. It
ruled that the "inability of the certifying official to locate the marriage
license is not conclusive to show that there was no marriage license
issued."

Petitioner also points that in declaring the marriage between the parties
as null and void, respondent appellate court disregarded the
presumption that the solemnizing officer, Judge Pablo M. Malvar,
regularly performed his duties when he attested in the marriage
contract that marriage license no. 3196182 was duly presented to him
before the solemnization of the subject marriage.
The issues, being interrelated, shall be discussed jointly.
The core issue presented by the case at bench is whether or not the
documentary and testimonial evidence presented by private respondent
are sufficient to establish that no marriage license was issued by the
Civil Registrar of Pasig prior to the celebration of the marriage of
private respondent to Edwin F. Cardenas.

We affirm the impugned Decision.


At the time the subject marriage was solemnized on June 24, 1970, the
law governing marital relations was the New Civil Code. The
law 4 provides that no marriage shall be solemnized without a marriage
license first issued by a local civil registrar. Being one of the essential
requisites of a valid marriage, absence of a license would render the
marriage voidab initio. 5
Petitioner posits that the certification of the local civil registrar of due
search and inability to find a record or entry to the effect that marriage
license no. 3196182 was issued to the parties is not adequate to prove
its non-issuance.
We hold otherwise. The presentation of such certification in court is
sanctioned by Section 29, Rule 132 of the Rules of Court, viz.:
Sec. 29. Proof of lack of record. A written statement signed by an
officer having custody of an official record or by his deputy, that after
diligent search, no record or entry of a specified tenor is found to exist
in the records of his office, accompanied by a certificate as above
provided, is admissible as evidence that the records of his office
contain no such record or entry.
The above Rule authorized the custodian of documents to certify that
despite diligent search, a particular document does not exist in his
office or that a particular entry of a specified tenor was not to be found
in a register. As custodians of public documents, civil registrars are
public officers charged with the duty, inter alia, of maintaining a register
book where they are required to enter all applications for marriage
licenses, including the names of the applicants, the date the marriage
license was issued and such other relevant data. 6
The certification of "due search and inability to find" issued by the civil
registrar of Pasig enjoys probative value, he being the officer charged
under the law to keep a record of all data relative to the issuance of a
marriage license. Unaccompanied by any circumstance of suspicion

and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate
of "due search and inability to find" sufficiently proved that his office did
not issue marriage license no. 3196182 to the contracting parties.
The fact that private respondent Castro offered only her testimony in
support of her petition is, in itself, not a ground to deny her petition. The
failure to offer any other witness to corroborate her testimony is mainly
due to the peculiar circumstances of the case. It will be remembered
that the subject marriage was a civil ceremony performed by a judge of
a city court. The subject marriage is one of those commonly known as
a "secret marriage" a legally non-existent phrase but ordinarily used
to refer to a civil marriage celebrated without the knowledge of the
relatives and/or friends of either or both of the contracting parties. The
records show that the marriage between Castro and Cardenas was
initially unknown to the parents of the former.
Surely, the fact that only private respondent Castro testified during the
trial cannot be held against her. Her husband, Edwin F. Cardenas, was
duly served with notice of the proceedings and a copy of the petition.
Despite receipt thereof, he chose to ignore the same. For failure to
answer, he was properly declared in default. Private respondent cannot
be faulted for her husband's lack of interest to participate in the
proceedings. There was absolutely no evidence on record to show that
there was collusion between private respondent and her husband
Cardenas.
It is noteworthy to mention that the finding of the appellate court that
the marriage between the contracting parties is null and void for lack of
a marriage license does not discount the fact that indeed, a spurious
marriage license, purporting to be issued by the civil registrar of Pasig,
may have been presented by Cardenas to the solemnizing officer.
In fine, we hold that, under the circumstances of the case, the
documentary and testimonial evidence presented by private respondent
Castro sufficiently established the absence of the subject marriage
license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of


any reversible error committed by respondent appellate court.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
G.R. No. 175581

The records disclose that on 24 November 1986, Jose and Felisa were
married at the Pasay City Hall. The marriage was solemnized by Rev.
Tomas V. Atienza.2 In lieu of a marriage license, Jose and Felisa
executed a sworn affidavit,3 also dated 24 November 1986, attesting
that both of them had attained the age of maturity, and that being
unmarried, they had lived together as husband and wife for at least five
years.

March 28, 2008

REPUBLIC OF THE PHILIPPINES, Petitioner,


vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x

On 7 July 1993, Jose filed a Complaint4 for Annulment and/or


Declaration of Nullity of Marriage with the Regional Trial Court (RTC),
Bian, Laguna, Branch 25. He contended that his marriage with Felisa
was a sham, as no marriage ceremony was celebrated between the
parties; that he did not execute the sworn affidavit stating that he and
Felisa had lived as husband and wife for at least five years; and that his
consent to the marriage was secured through fraud.

G.R. No. 179474


FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
CHICO-NAZARIO, J.:
Before us are two consolidated petitions. G.R. No. 175581 and G.R.
No. 179474 are Petitions for Review under Rule 45 of the Rules of
Court filed by the Republic of the Philippines and Felisa Tecson-Dayot
(Felisa), respectively, both challenging the Amended Decision 1 of the
Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759,
which declared the marriage between Jose Dayot (Jose) and Felisa
void ab initio.

In his Complaint, Jose gave his version of the events which led to his
filing of the same. According to Jose, he was introduced to Felisa in
1986. Immediately thereafter, he came to live as a boarder in Felisas
house, the latter being his landlady. Some three weeks later, Felisa
requested him to accompany her to the Pasay City Hall, ostensibly so
she could claim a package sent to her by her brother from Saudi
Arabia. At the Pasay City Hall, upon a pre-arranged signal from Felisa,
a man bearing three folded pieces of paper approached them. They
were told that Jose needed to sign the papers so that the package
could be released to Felisa. He initially refused to do so. However,
Felisa cajoled him, and told him that his refusal could get both of them
killed by her brother who had learned about their relationship.
Reluctantly, he signed the pieces of paper, and gave them to the man
who immediately left. It was in February 1987 when he discovered that
he had contracted marriage with Felisa. He alleged that he saw a piece
of paper lying on top of the table at the sala of Felisas house. When he
perused the same, he discovered that it was a copy of his marriage
contract with Felisa. When he confronted Felisa, the latter feigned
ignorance.

In opposing the Complaint, Felisa denied Joses allegations and


defended the validity of their marriage. She declared that they had
maintained their relationship as man and wife absent the legality of
marriage in the early part of 1980, but that she had deferred contracting
marriage with him on account of their age difference. 5 In her pre-trial
brief, Felisa expounded that while her marriage to Jose was subsisting,
the latter contracted marriage with a certain Rufina Pascual (Rufina) on
31 August 1990. On 3 June 1993, Felisa filed an action for bigamy
against Jose. Subsequently, she filed an administrative complaint
against Jose with the Office of the Ombudsman, since Jose and Rufina
were both employees of the National Statistics and Coordinating
Board.6 The Ombudsman found Jose administratively liable for
disgraceful and immoral conduct, and meted out to him the penalty of
suspension from service for one year without emolument. 7
On 26 July 2000, the RTC rendered a Decision 8 dismissing the
Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence
presented by both parties, this Court finds and so holds that the
[C]omplaint does not deserve a favorable consideration. Accordingly,
the above-entitled case is hereby ordered DISMISSED with costs
against [Jose].9
The RTC ruled that from the testimonies and evidence presented, the
marriage celebrated between Jose and Felisa on 24 November 1986
was valid. It dismissed Joses version of the story as implausible, and
rationalized that:
Any person in his right frame of mind would easily suspect any attempt
to make him or her sign a blank sheet of paper. [Jose] could have
already detected that something was amiss, unusual, as they were at
Pasay City Hall to get a package for [Felisa] but it [was] he who was
made to sign the pieces of paper for the release of the said package.
Another indirect suggestion that could have put him on guard was the
fact that, by his own admission, [Felisa] told him that her brother would
kill them if he will not sign the papers. And yet it took him, more or less,

three months to "discover" that the pieces of paper that he signed was
[sic] purportedly the marriage contract. [Jose] does not seem to be that
ignorant, as perceived by this Court, to be "taken in for a ride" by
[Felisa.]
[Joses] claim that he did not consent to the marriage was belied by the
fact that he acknowledged Felisa Tecson as his wife when he wrote
[Felisas] name in the duly notarized statement of assets and liabilities
he filled up on May 12, 1988, one year after he discovered the marriage
contract he is now claiming to be sham and false. [Jose], again, in his
company I.D., wrote the name of [Felisa] as the person to be contacted
in case of emergency. This Court does not believe that the only reason
why her name was written in his company I.D. was because he was
residing there then. This is just but a lame excuse because if he really
considers her not his lawfully wedded wife, he would have written
instead the name of his sister.
When [Joses] sister was put into the witness stand, under oath, she
testified that she signed her name voluntarily as a witness to the
marriage in the marriage certificate (T.S.N., page 25, November 29,
1996) and she further testified that the signature appearing over the
name of Jose Dayot was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on
November 29, 1996), and when she was asked by the Honorable Court
if indeed she believed that Felisa Tecson was really chosen by her
brother she answered yes. The testimony of his sister all the more
belied his claim that his consent was procured through fraud. 10
Moreover, on the matter of fraud, the RTC ruled that Joses action had
prescribed. It cited Article 8711 of the New Civil Code which requires
that the action for annulment of marriage must be commenced by the
injured party within four years after the discovery of the fraud. Thus:
That granting even for the sake of argument that his consent was
obtained by [Felisa] through fraud, trickery and machinations, he could
have filed an annulment or declaration of nullity of marriage at the
earliest possible opportunity, the time when he discovered the alleged

sham and false marriage contract. [Jose] did not take any action to void
the marriage at the earliest instance. x x x.12
Undeterred, Jose filed an appeal from the foregoing RTC Decision to
the Court of Appeals. In a Decision dated 11 August 2005, the Court of
Appeals found the appeal to be without merit. The dispositive portion of
the appellate courts Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.13
The Court of Appeals applied the Civil Code to the marriage between
Jose and Felisa as it was solemnized prior to the effectivity of the
Family Code. The appellate court observed that the circumstances
constituting fraud as a ground for annulment of marriage under Article
8614 of the Civil Code did not exist in the marriage between the parties.
Further, it ruled that the action for annulment of marriage on the ground
of fraud was filed beyond the prescriptive period provided by law. The
Court of Appeals struck down Joses appeal in the following manner:
Nonetheless, even if we consider that fraud or intimidation was
employed on Jose in giving his consent to the marriage, the action for
the annulment thereof had already prescribed. Article 87 (4) and (5) of
the Civil Code provides that the action for annulment of marriage on the
ground that the consent of a party was obtained by fraud, force or
intimidation must be commenced by said party within four (4) years
after the discovery of the fraud and within four (4) years from the time
the force or intimidation ceased. Inasmuch as the fraud was allegedly
discovered by Jose in February, 1987 then he had only until February,
1991 within which to file an action for annulment of marriage. However,
it was only on July 7, 1993 that Jose filed the complaint for annulment
of his marriage to Felisa.15
Likewise, the Court of Appeals did not accept Joses assertion that his
marriage to Felisa was void ab initio for lack of a marriage license. It
ruled that the marriage was solemnized under Article 76 16 of the Civil
Code as one of exceptional character, with the parties executing an
affidavit of marriage between man and woman who have lived together

as husband and wife for at least five years. The Court of Appeals
concluded that the falsity in the affidavit to the effect that Jose and
Felisa had lived together as husband and wife for the period required
by Article 76 did not affect the validity of the marriage, seeing that the
solemnizing officer was misled by the statements contained therein. In
this manner, the Court of Appeals gave credence to the good-faith
reliance of the solemnizing officer over the falsity of the affidavit. The
appellate court further noted that on the dorsal side of said affidavit of
marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he
took steps to ascertain the ages and other qualifications of the
contracting parties and found no legal impediment to their marriage.
Finally, the Court of Appeals dismissed Joses argument that neither he
nor Felisa was a member of the sect to which Rev. Tomas V. Atienza
belonged. According to the Court of Appeals, Article 56 17 of the Civil
Code did not require that either one of the contracting parties to the
marriage must belong to the solemnizing officers church or religious
sect. The prescription was established only in Article 7 18 of the Family
Code which does not govern the parties marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion for
Reconsideration thereof.1avvphi1 His central opposition was that the
requisites for the proper application of the exemption from a marriage
license under Article 76 of the Civil Code were not fully attendant in the
case at bar. In particular, Jose cited the legal condition that the man
and the woman must have been living together as husband and wife for
at least five years before the marriage. Essentially, he maintained that
the affidavit of marital cohabitation executed by him and Felisa was
false.
The Court of Appeals granted Joses Motion for Reconsideration and
reversed itself. Accordingly, it rendered an Amended Decision, dated 7
November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and
SET ASIDE and another one entered declaring the marriage between
Jose A. Dayot and Felisa C. Tecson void ab initio.

Furnish a copy of this Amended Decision to the Local Civil Registrar of


Pasay City.19
In its Amended Decision, the Court of Appeals relied on the ruling of
this Court in Nial v. Bayadog,20 and reasoned that:
In Nial v. Bayadog, where the contracting parties to a marriage
solemnized without a marriage license on the basis of their affidavit that
they had attained the age of majority, that being unmarried, they had
lived together for at least five (5) years and that they desired to marry
each other, the Supreme Court ruled as follows:
"x x x In other words, the five-year common-law cohabitation period,
which is counted back from the date of celebration of marriage, should
be a period of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at
any time within the 5 years and continuity that is unbroken.
Otherwise, if that continuous 5-year cohabitation is computed without
any distinction as to whether the parties were capacitated to marry
each other during the entire five years, then the law would be
sanctioning immorality and encouraging parties to have common law
relationships and placing them on the same footing with those who
lived faithfully with their spouse. Marriage being a special relationship
must be respected as such and its requirements must be strictly
observed. The presumption that a man and a woman deporting
themselves as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any excuse
to not comply with every single requirement and later use the same
missing element as a pre-conceived escape ground to nullify their
marriage. There should be no exemption from securing a marriage
license unless the circumstances clearly fall within the ambit of the
exception. It should be noted that a license is required in order to notify
the public that two persons are about to be united in matrimony and
that anyone who is aware or has knowledge of any impediment to the
union of the two shall make it known to the local civil registrar.

Article 80(3) of the Civil Code provides that a marriage solemnized


without a marriage license, save marriages of exceptional character,
shall be void from the beginning. Inasmuch as the marriage between
Jose and Felisa is not covered by the exception to the requirement of a
marriage license, it is, therefore, void ab initio because of the absence
of a marriage license.21
Felisa sought reconsideration of the Amended Decision, but to no avail.
The appellate court rendered a Resolution 22 dated 10 May 2007,
denying Felisas motion.
Meanwhile, the Republic of the Philippines, through the Office of the
Solicitor General (OSG), filed a Petition for Review before this Court in
G.R. No. 175581, praying that the Court of Appeals Amended Decision
dated 7 November 2006 be reversed and set aside for lack of merit,
and that the marriage between Jose and Felisa be declared valid and
subsisting. Felisa filed a separate Petition for Review, docketed as G.R.
No. 179474, similarly assailing the appellate courts Amended Decision.
On 1 August 2007, this Court resolved to consolidate the two Petitions
in the interest of uniformity of the Court rulings in similar cases brought
before it for resolution.23
The Republic of the Philippines propounds the following arguments for
the allowance of its Petition, to wit:
I.

RESPONDENT
FAILED
TO
OVERTHROW
THE
PRESUMPTION OF THE VALIDITY OF HIS MARRIAGE
TO FELISA.

II.

RESPONDENT DID NOT COME TO THE COURT WITH


CLEAN HANDS AND SHOULD NOT BE ALLOWED TO
PROFIT FROM HIS OWN FRAUDULENT CONDUCT.

III.

RESPONDENT IS ESTOPPED FROM ASSAILING THE


LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE
LICEN[S]E.24

Correlative to the above, Felisa submits that the Court of Appeals


misapplied Nial.25 She differentiates the case at bar from Nial by
reasoning that one of the parties therein had an existing prior marriage,
a circumstance which does not obtain in her cohabitation with Jose.
Finally, Felisa adduces that Jose only sought the annulment of their
marriage after a criminal case for bigamy and an administrative case
had been filed against him in order to avoid liability. Felisa surmises
that the declaration of nullity of their marriage would exonerate Jose
from any liability.
For our resolution is the validity of the marriage between Jose and
Felisa. To reach a considered ruling on the issue, we shall jointly tackle
the related arguments vented by petitioners Republic of the Philippines
and Felisa.
The Republic of the Philippines asserts that several circumstances give
rise to the presumption that a valid marriage exists between Jose and
Felisa. For her part, Felisa echoes the claim that any doubt should be
resolved in favor of the validity of the marriage by citing this Courts
ruling in Hernandez v. Court of Appeals. 26 To buttress its assertion, the
Republic points to the affidavit executed by Jose and Felisa, dated 24
November 1986, attesting that they have lived together as husband and
wife for at least five years, which they used in lieu of a marriage
license. It is the Republics position that the falsity of the statements in
the affidavit does not affect the validity of the marriage, as the essential
and formal requisites were complied with; and the solemnizing officer
was not required to investigate as to whether the said affidavit was
legally obtained. The Republic opines that as a marriage under a
license is not invalidated by the fact that the license was wrongfully
obtained, so must a marriage not be invalidated by the fact that the
parties incorporated a fabricated statement in their affidavit that they
cohabited as husband and wife for at least five years. In addition, the
Republic posits that the parties marriage contract states that their
marriage was solemnized under Article 76 of the Civil Code. It also
bears the signature of the parties and their witnesses, and must be
considered a primary evidence of marriage. To further fortify its Petition,
the Republic adduces the following documents: (1) Joses notarized

Statement of Assets and Liabilities, dated 12 May 1988 wherein he


wrote Felisas name as his wife; (2) Certification dated 25 July 1993
issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay
City, attesting that Jose and Felisa had lived together as husband and
wife in said barangay; and (3) Joses company ID card, dated 2 May
1988, indicating Felisas name as his wife.
The first assignment of error compels this Court to rule on the issue of
the effect of a false affidavit under Article 76 of the Civil Code. A survey
of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was
celebrated on 24 November 1986, prior to the effectivity of the Family
Code. Accordingly, the Civil Code governs their union. Article 53 of the
Civil Code spells out the essential requisites of marriage as a contract:
ART. 53. No marriage shall be solemnized unless all these requisites
are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character.
(Emphasis ours.)
Article 5827 makes explicit that no marriage shall be solemnized without
a license first being issued by the local civil registrar of the municipality
where either contracting party habitually resides, save marriages of an
exceptional character authorized by the Civil Code, but not those under
Article 75.28 Article 80(3)29 of the Civil Code makes it clear that a
marriage performed without the corresponding marriage license is void,
this being nothing more than the legitimate consequence flowing from
the fact that the license is the essence of the marriage contract. 30 This
is in stark contrast to the old Marriage Law, 31 whereby the absence of a

marriage license did not make the marriage void. The rationale for the
compulsory character of a marriage license under the Civil Code is that
it is the authority granted by the State to the contracting parties, after
the proper government official has inquired into their capacity to
contract marriage.32

whether the falsity of an affidavit of marital cohabitation, where the


parties have in truth fallen short of the minimum five-year requirement,
effectively renders the marriage void ab initio for lack of a marriage
license.
We answer in the affirmative.

Under the Civil Code, marriages of exceptional character are covered


by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these
marriages are: (1) marriages in articulo mortis or at the point of death
during peace or war, (2) marriages in remote places, (2) consular
marriages,33 (3) ratification of marital cohabitation, (4) religious
ratification of a civil marriage, (5) Mohammedan or pagan marriages,
and (6) mixed marriages.34
The instant case pertains to a ratification of marital cohabitation under
Article 76 of the Civil Code, which provides:
ART. 76. No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least five
years, desire to marry each other. The contracting parties shall state
the foregoing facts in an affidavit before any person authorized by law
to administer oaths. The official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to ascertain
the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage.
The reason for the law,35 as espoused by the Code Commission, is that
the publicity attending a marriage license may discourage such persons
who have lived in a state of cohabitation from legalizing their status.36
It is not contested herein that the marriage of Jose and Felisa was
performed without a marriage license. In lieu thereof, they executed an
affidavit declaring that "they have attained the age of maturity; that
being unmarried, they have lived together as husband and wife for at
least five years; and that because of this union, they desire to marry
each other."37 One of the central issues in the Petition at bar is thus:

Marriages of exceptional character are, doubtless, the exceptions to the


rule on the indispensability of the formal requisite of a marriage license.
Under the rules of statutory construction, exceptions, as a general rule,
should be strictly38 but reasonably construed.39 They extend only so far
as their language fairly warrants, and all doubts should be resolved in
favor of the general provisions rather than the exception. 40 Where a
general rule is established by statute with exceptions, the court will not
curtail the former or add to the latter by implication. 41 For the exception
in Article 76 to apply, it is a sine qua non thereto that the man and the
woman must have attained the age of majority, and that, being
unmarried, they have lived together as husband and wife for at least
five years.
A strict but reasonable construction of Article 76 leaves us with no other
expediency but to read the law as it is plainly written. The exception of
a marriage license under Article 76 applies only to those who have lived
together as husband and wife for at least five years and desire to marry
each other. The Civil Code, in no ambiguous terms, places a minimum
period requirement of five years of cohabitation. No other reading of the
law can be had, since the language of Article 76 is precise. The
minimum requisite of five years of cohabitation is an indispensability
carved in the language of the law. For a marriage celebrated under
Article 76 to be valid, this material fact cannot be dispensed with. It is
embodied in the law not as a directory requirement, but as one that
partakes of a mandatory character. It is worthy to mention that Article
76 also prescribes that the contracting parties shall state the requisite
facts42 in an affidavit before any person authorized by law to administer
oaths; and that the official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to ascertain

the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived together
for five years at the time they executed their sworn affidavit and
contracted marriage. The Republic admitted that Jose and Felisa
started living together only in June 1986, or barely five months before
the celebration of their marriage.43 The Court of Appeals also noted
Felisas testimony that Jose was introduced to her by her neighbor,
Teresita Perwel, sometime in February or March 1986 after the EDSA
Revolution.44 The appellate court also cited Felisas own testimony that
it was only in June 1986 when Jose commenced to live in her house. 45
Moreover, it is noteworthy that the question as to whether they satisfied
the minimum five-year requisite is factual in nature. A question of fact
arises when there is a need to decide on the truth or falsehood of the
alleged facts.46Under Rule 45, factual findings are ordinarily not subject
to this Courts review.47 It is already well-settled that:
The general rule is that the findings of facts of the Court of Appeals are
binding on this Court. A recognized exception to this rule is when the
Court of Appeals and the trial court, or in this case the administrative
body, make contradictory findings. However, the exception does not
apply in every instance that the Court of Appeals and the trial court or
administrative body disagree. The factual findings of the Court of
Appeals remain conclusive on this Court if such findings are supported
by the record or based on substantial evidence.48
Therefore, the falsity of the affidavit dated 24 November 1986,
executed by Jose and Felisa to exempt them from the requirement of a
marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of the
statements in the parties affidavit will not affect the validity of marriage,
since all the essential and formal requisites were complied with. The
argument deserves scant merit. Patently, it cannot be denied that the
marriage between Jose and Felisa was celebrated without the formal

requisite of a marriage license. Neither did Jose and Felisa meet the
explicit legal requirement in Article 76, that they should have lived
together as husband and wife for at least five years, so as to be
excepted from the requirement of a marriage license.
Anent petitioners reliance on the presumption of marriage, this Court
holds that the same finds no applicability to the case at bar. Essentially,
when we speak of a presumption of marriage, it is with reference to the
prima facie presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful contract of
marriage.49 Restated more explicitly, persons dwelling together in
apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to the case, to be in fact
married.50 The present case does not involve an apparent marriage to
which the presumption still needs to be applied. There is no question
that Jose and Felisa actually entered into a contract of marriage on 24
November 1986, hence, compelling Jose to institute a Complaint for
Annulment and/or Declaration of Nullity of Marriage, which spawned
the instant consolidated Petitions.
In the same vein, the declaration of the Civil Code 51 that every
intendment of law or fact leans towards the validity of marriage will not
salvage the parties marriage, and extricate them from the effect of a
violation of the law. The marriage of Jose and Felisa was entered into
without the requisite marriage license or compliance with the stringent
requirements of a marriage under exceptional circumstance. The
solemnization of a marriage without prior license is a clear violation of
the law and would lead or could be used, at least, for the perpetration
of fraud against innocent and unwary parties, which was one of the
evils that the law sought to prevent by making a prior license a
prerequisite for a valid marriage. 52 The protection of marriage as a
sacred institution requires not just the defense of a true and genuine
union but the exposure of an invalid one as well. 53 To permit a false
affidavit to take the place of a marriage license is to allow an abject
circumvention of the law. If this Court is to protect the fabric of the
institution of marriage, we must be wary of deceptive schemes that
violate the legal measures set forth in our laws.

Similarly, we are not impressed by the ratiocination of the Republic that


as a marriage under a license is not invalidated by the fact that the
license was wrongfully obtained, so must a marriage not be invalidated
by a fabricated statement that the parties have cohabited for at least
five years as required by law. The contrast is flagrant. The former is
with reference to an irregularity of the marriage license, and not to the
absence of one. Here, there is no marriage license at all. Furthermore,
the falsity of the allegation in the sworn affidavit relating to the period of
Jose and Felisas cohabitation, which would have qualified their
marriage as an exception to the requirement for a marriage license,
cannot be a mere irregularity, for it refers to a quintessential fact that
the law precisely required to be deposed and attested to by the parties
under oath. If the essential matter in the sworn affidavit is a lie, then it is
but a mere scrap of paper, without force and effect. Hence, it is as if
there was no affidavit at all.
In its second assignment of error, the Republic puts forth the argument
that based on equity, Jose should be denied relief because he
perpetrated the fabrication, and cannot thereby profit from his
wrongdoing. This is a misplaced invocation. It must be stated that
equity finds no room for application where there is a law.54 There is a
law on the ratification of marital cohabitation, which is set in precise
terms under Article 76 of the Civil Code. Nonetheless, the authorities
are consistent that the declaration of nullity of the parties marriage is
without prejudice to their criminal liability.55
The Republic further avers in its third assignment of error that Jose is
deemed estopped from assailing the legality of his marriage for lack of
a marriage license. It is claimed that Jose and Felisa had lived together
from 1986 to 1990, notwithstanding Joses subsequent marriage to
Rufina Pascual on 31 August 1990, and that it took Jose seven years
before he sought the declaration of nullity; hence, estoppel had set in.

This is erroneous. An action for nullity of marriage is


imprescriptible.56 Jose and Felisas marriage was celebrated sans a
marriage license. No other conclusion can be reached except that it is
void ab initio. In this case, the right to impugn a void marriage does not
prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the
five-year common-law cohabitation period under Article 76 means a
five-year period computed back from the date of celebration of
marriage, and refers to a period of legal union had it not been for the
absence of a marriage.57 It covers the years immediately preceding the
day of the marriage, characterized by exclusivity - meaning no third
party was involved at any time within the five years - and continuity that
is unbroken.58
WHEREFORE, the Petitions are DENIED. The Amended Decision of
the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No.
68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot
void ab initio, is AFFIRMED, without prejudice to their criminal liability, if
any. No costs.
SO ORDERED.
MINITA
Associate Justice

V.

G.R. No. 175581

CHICO-NAZARIO

March 28, 2008

REPUBLIC OF THE PHILIPPINES, Petitioner,


vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474

FELISA TECSON-DAYOT, Petitioner,


vs.
JOSE A. DAYOT, Respondent.
CHICO-NAZARIO, J.:
Before us are two consolidated petitions. G.R. No. 175581 and G.R.
No. 179474 are Petitions for Review under Rule 45 of the Rules of
Court filed by the Republic of the Philippines and Felisa Tecson-Dayot
(Felisa), respectively, both challenging the Amended Decision 1 of the
Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759,
which declared the marriage between Jose Dayot (Jose) and Felisa
void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa were
married at the Pasay City Hall. The marriage was solemnized by Rev.
Tomas V. Atienza.2 In lieu of a marriage license, Jose and Felisa
executed a sworn affidavit,3 also dated 24 November 1986, attesting
that both of them had attained the age of maturity, and that being
unmarried, they had lived together as husband and wife for at least five
years.
On 7 July 1993, Jose filed a Complaint4 for Annulment and/or
Declaration of Nullity of Marriage with the Regional Trial Court (RTC),
Bian, Laguna, Branch 25. He contended that his marriage with Felisa
was a sham, as no marriage ceremony was celebrated between the
parties; that he did not execute the sworn affidavit stating that he and
Felisa had lived as husband and wife for at least five years; and that his
consent to the marriage was secured through fraud.
In his Complaint, Jose gave his version of the events which led to his
filing of the same. According to Jose, he was introduced to Felisa in
1986. Immediately thereafter, he came to live as a boarder in Felisas
house, the latter being his landlady. Some three weeks later, Felisa
requested him to accompany her to the Pasay City Hall, ostensibly so
she could claim a package sent to her by her brother from Saudi
Arabia. At the Pasay City Hall, upon a pre-arranged signal from Felisa,

a man bearing three folded pieces of paper approached them. They


were told that Jose needed to sign the papers so that the package
could be released to Felisa. He initially refused to do so. However,
Felisa cajoled him, and told him that his refusal could get both of them
killed by her brother who had learned about their relationship.
Reluctantly, he signed the pieces of paper, and gave them to the man
who immediately left. It was in February 1987 when he discovered that
he had contracted marriage with Felisa. He alleged that he saw a piece
of paper lying on top of the table at the sala of Felisas house. When he
perused the same, he discovered that it was a copy of his marriage
contract with Felisa. When he confronted Felisa, the latter feigned
ignorance.
In opposing the Complaint, Felisa denied Joses allegations and
defended the validity of their marriage. She declared that they had
maintained their relationship as man and wife absent the legality of
marriage in the early part of 1980, but that she had deferred contracting
marriage with him on account of their age difference. 5 In her pre-trial
brief, Felisa expounded that while her marriage to Jose was subsisting,
the latter contracted marriage with a certain Rufina Pascual (Rufina) on
31 August 1990. On 3 June 1993, Felisa filed an action for bigamy
against Jose. Subsequently, she filed an administrative complaint
against Jose with the Office of the Ombudsman, since Jose and Rufina
were both employees of the National Statistics and Coordinating
Board.6 The Ombudsman found Jose administratively liable for
disgraceful and immoral conduct, and meted out to him the penalty of
suspension from service for one year without emolument. 7
On 26 July 2000, the RTC rendered a Decision 8 dismissing the
Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence
presented by both parties, this Court finds and so holds that the
[C]omplaint does not deserve a favorable consideration. Accordingly,
the above-entitled case is hereby ordered DISMISSED with costs
against [Jose].9

The RTC ruled that from the testimonies and evidence presented, the
marriage celebrated between Jose and Felisa on 24 November 1986
was valid. It dismissed Joses version of the story as implausible, and
rationalized that:
Any person in his right frame of mind would easily suspect any attempt
to make him or her sign a blank sheet of paper. [Jose] could have
already detected that something was amiss, unusual, as they were at
Pasay City Hall to get a package for [Felisa] but it [was] he who was
made to sign the pieces of paper for the release of the said package.
Another indirect suggestion that could have put him on guard was the
fact that, by his own admission, [Felisa] told him that her brother would
kill them if he will not sign the papers. And yet it took him, more or less,
three months to "discover" that the pieces of paper that he signed was
[sic] purportedly the marriage contract. [Jose] does not seem to be that
ignorant, as perceived by this Court, to be "taken in for a ride" by
[Felisa.]
[Joses] claim that he did not consent to the marriage was belied by the
fact that he acknowledged Felisa Tecson as his wife when he wrote
[Felisas] name in the duly notarized statement of assets and liabilities
he filled up on May 12, 1988, one year after he discovered the marriage
contract he is now claiming to be sham and false. [Jose], again, in his
company I.D., wrote the name of [Felisa] as the person to be contacted
in case of emergency. This Court does not believe that the only reason
why her name was written in his company I.D. was because he was
residing there then. This is just but a lame excuse because if he really
considers her not his lawfully wedded wife, he would have written
instead the name of his sister.
When [Joses] sister was put into the witness stand, under oath, she
testified that she signed her name voluntarily as a witness to the
marriage in the marriage certificate (T.S.N., page 25, November 29,
1996) and she further testified that the signature appearing over the
name of Jose Dayot was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on
November 29, 1996), and when she was asked by the Honorable Court

if indeed she believed that Felisa Tecson was really chosen by her
brother she answered yes. The testimony of his sister all the more
belied his claim that his consent was procured through fraud. 10
Moreover, on the matter of fraud, the RTC ruled that Joses action had
prescribed. It cited Article 8711 of the New Civil Code which requires
that the action for annulment of marriage must be commenced by the
injured party within four years after the discovery of the fraud. Thus:
That granting even for the sake of argument that his consent was
obtained by [Felisa] through fraud, trickery and machinations, he could
have filed an annulment or declaration of nullity of marriage at the
earliest possible opportunity, the time when he discovered the alleged
sham and false marriage contract. [Jose] did not take any action to void
the marriage at the earliest instance. x x x.12
Undeterred, Jose filed an appeal from the foregoing RTC Decision to
the Court of Appeals. In a Decision dated 11 August 2005, the Court of
Appeals found the appeal to be without merit. The dispositive portion of
the appellate courts Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.13
The Court of Appeals applied the Civil Code to the marriage between
Jose and Felisa as it was solemnized prior to the effectivity of the
Family Code. The appellate court observed that the circumstances
constituting fraud as a ground for annulment of marriage under Article
8614 of the Civil Code did not exist in the marriage between the parties.
Further, it ruled that the action for annulment of marriage on the ground
of fraud was filed beyond the prescriptive period provided by law. The
Court of Appeals struck down Joses appeal in the following manner:
Nonetheless, even if we consider that fraud or intimidation was
employed on Jose in giving his consent to the marriage, the action for
the annulment thereof had already prescribed. Article 87 (4) and (5) of
the Civil Code provides that the action for annulment of marriage on the
ground that the consent of a party was obtained by fraud, force or

intimidation must be commenced by said party within four (4) years


after the discovery of the fraud and within four (4) years from the time
the force or intimidation ceased. Inasmuch as the fraud was allegedly
discovered by Jose in February, 1987 then he had only until February,
1991 within which to file an action for annulment of marriage. However,
it was only on July 7, 1993 that Jose filed the complaint for annulment
of his marriage to Felisa.15
Likewise, the Court of Appeals did not accept Joses assertion that his
marriage to Felisa was void ab initio for lack of a marriage license. It
ruled that the marriage was solemnized under Article 76 16 of the Civil
Code as one of exceptional character, with the parties executing an
affidavit of marriage between man and woman who have lived together
as husband and wife for at least five years. The Court of Appeals
concluded that the falsity in the affidavit to the effect that Jose and
Felisa had lived together as husband and wife for the period required
by Article 76 did not affect the validity of the marriage, seeing that the
solemnizing officer was misled by the statements contained therein. In
this manner, the Court of Appeals gave credence to the good-faith
reliance of the solemnizing officer over the falsity of the affidavit. The
appellate court further noted that on the dorsal side of said affidavit of
marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he
took steps to ascertain the ages and other qualifications of the
contracting parties and found no legal impediment to their marriage.
Finally, the Court of Appeals dismissed Joses argument that neither he
nor Felisa was a member of the sect to which Rev. Tomas V. Atienza
belonged. According to the Court of Appeals, Article 56 17 of the Civil
Code did not require that either one of the contracting parties to the
marriage must belong to the solemnizing officers church or religious
sect. The prescription was established only in Article 7 18 of the Family
Code which does not govern the parties marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion for
Reconsideration thereof.1avvphi1 His central opposition was that the
requisites for the proper application of the exemption from a marriage
license under Article 76 of the Civil Code were not fully attendant in the
case at bar. In particular, Jose cited the legal condition that the man

and the woman must have been living together as husband and wife for
at least five years before the marriage. Essentially, he maintained that
the affidavit of marital cohabitation executed by him and Felisa was
false.
The Court of Appeals granted Joses Motion for Reconsideration and
reversed itself. Accordingly, it rendered an Amended Decision, dated 7
November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and
SET ASIDE and another one entered declaring the marriage between
Jose A. Dayot and Felisa C. Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar of
Pasay City.19
In its Amended Decision, the Court of Appeals relied on the ruling of
this Court in Nial v. Bayadog,20 and reasoned that:
In Nial v. Bayadog, where the contracting parties to a marriage
solemnized without a marriage license on the basis of their affidavit that
they had attained the age of majority, that being unmarried, they had
lived together for at least five (5) years and that they desired to marry
each other, the Supreme Court ruled as follows:
"x x x In other words, the five-year common-law cohabitation period,
which is counted back from the date of celebration of marriage, should
be a period of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at
any time within the 5 years and continuity that is unbroken.
Otherwise, if that continuous 5-year cohabitation is computed without
any distinction as to whether the parties were capacitated to marry
each other during the entire five years, then the law would be
sanctioning immorality and encouraging parties to have common law
relationships and placing them on the same footing with those who

lived faithfully with their spouse. Marriage being a special relationship


must be respected as such and its requirements must be strictly
observed. The presumption that a man and a woman deporting
themselves as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any excuse
to not comply with every single requirement and later use the same
missing element as a pre-conceived escape ground to nullify their
marriage. There should be no exemption from securing a marriage
license unless the circumstances clearly fall within the ambit of the
exception. It should be noted that a license is required in order to notify
the public that two persons are about to be united in matrimony and
that anyone who is aware or has knowledge of any impediment to the
union of the two shall make it known to the local civil registrar.

The Republic of the Philippines propounds the following arguments for


the allowance of its Petition, to wit:

Article 80(3) of the Civil Code provides that a marriage solemnized


without a marriage license, save marriages of exceptional character,
shall be void from the beginning. Inasmuch as the marriage between
Jose and Felisa is not covered by the exception to the requirement of a
marriage license, it is, therefore, void ab initio because of the absence
of a marriage license.21

III

Felisa sought reconsideration of the Amended Decision, but to no avail.


The appellate court rendered a Resolution 22 dated 10 May 2007,
denying Felisas motion.
Meanwhile, the Republic of the Philippines, through the Office of the
Solicitor General (OSG), filed a Petition for Review before this Court in
G.R. No. 175581, praying that the Court of Appeals Amended Decision
dated 7 November 2006 be reversed and set aside for lack of merit,
and that the marriage between Jose and Felisa be declared valid and
subsisting. Felisa filed a separate Petition for Review, docketed as G.R.
No. 179474, similarly assailing the appellate courts Amended Decision.
On 1 August 2007, this Court resolved to consolidate the two Petitions
in the interest of uniformity of the Court rulings in similar cases brought
before it for resolution.23

I
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF
THE VALIDITY OF HIS MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN
HANDS AND SHOULD NOT BE ALLOWED TO PROFIT FROM HIS
OWN FRAUDULENT CONDUCT.

RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF


HIS MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E. 24
Correlative to the above, Felisa submits that the Court of Appeals
misapplied Nial.25 She differentiates the case at bar from Nial by
reasoning that one of the parties therein had an existing prior marriage,
a circumstance which does not obtain in her cohabitation with Jose.
Finally, Felisa adduces that Jose only sought the annulment of their
marriage after a criminal case for bigamy and an administrative case
had been filed against him in order to avoid liability. Felisa surmises
that the declaration of nullity of their marriage would exonerate Jose
from any liability.
For our resolution is the validity of the marriage between Jose and
Felisa. To reach a considered ruling on the issue, we shall jointly tackle
the related arguments vented by petitioners Republic of the Philippines
and Felisa.
The Republic of the Philippines asserts that several circumstances give
rise to the presumption that a valid marriage exists between Jose and
Felisa. For her part, Felisa echoes the claim that any doubt should be

resolved in favor of the validity of the marriage by citing this Courts


ruling in Hernandez v. Court of Appeals. 26 To buttress its assertion, the
Republic points to the affidavit executed by Jose and Felisa, dated 24
November 1986, attesting that they have lived together as husband and
wife for at least five years, which they used in lieu of a marriage
license. It is the Republics position that the falsity of the statements in
the affidavit does not affect the validity of the marriage, as the essential
and formal requisites were complied with; and the solemnizing officer
was not required to investigate as to whether the said affidavit was
legally obtained. The Republic opines that as a marriage under a
license is not invalidated by the fact that the license was wrongfully
obtained, so must a marriage not be invalidated by the fact that the
parties incorporated a fabricated statement in their affidavit that they
cohabited as husband and wife for at least five years. In addition, the
Republic posits that the parties marriage contract states that their
marriage was solemnized under Article 76 of the Civil Code. It also
bears the signature of the parties and their witnesses, and must be
considered a primary evidence of marriage. To further fortify its Petition,
the Republic adduces the following documents: (1) Joses notarized
Statement of Assets and Liabilities, dated 12 May 1988 wherein he
wrote Felisas name as his wife; (2) Certification dated 25 July 1993
issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay
City, attesting that Jose and Felisa had lived together as husband and
wife in said barangay; and (3) Joses company ID card, dated 2 May
1988, indicating Felisas name as his wife.
The first assignment of error compels this Court to rule on the issue of
the effect of a false affidavit under Article 76 of the Civil Code. A survey
of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was
celebrated on 24 November 1986, prior to the effectivity of the Family
Code. Accordingly, the Civil Code governs their union. Article 53 of the
Civil Code spells out the essential requisites of marriage as a contract:
ART. 53. No marriage shall be solemnized unless all these requisites
are complied with:

(1) Legal capacity of the contracting parties;


(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character.
(Emphasis ours.)
Article 5827 makes explicit that no marriage shall be solemnized without
a license first being issued by the local civil registrar of the municipality
where either contracting party habitually resides, save marriages of an
exceptional character authorized by the Civil Code, but not those under
Article 75.28 Article 80(3)29 of the Civil Code makes it clear that a
marriage performed without the corresponding marriage license is void,
this being nothing more than the legitimate consequence flowing from
the fact that the license is the essence of the marriage contract. 30 This
is in stark contrast to the old Marriage Law, 31 whereby the absence of a
marriage license did not make the marriage void. The rationale for the
compulsory character of a marriage license under the Civil Code is that
it is the authority granted by the State to the contracting parties, after
the proper government official has inquired into their capacity to
contract marriage.32
Under the Civil Code, marriages of exceptional character are covered
by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these
marriages are: (1) marriages in articulo mortis or at the point of death
during peace or war, (2) marriages in remote places, (2) consular
marriages,33 (3) ratification of marital cohabitation, (4) religious
ratification of a civil marriage, (5) Mohammedan or pagan marriages,
and (6) mixed marriages.34
The instant case pertains to a ratification of marital cohabitation under
Article 76 of the Civil Code, which provides:
ART. 76. No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being

unmarried, have lived together as husband and wife for at least five
years, desire to marry each other. The contracting parties shall state
the foregoing facts in an affidavit before any person authorized by law
to administer oaths. The official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to ascertain
the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage.
The reason for the law,35 as espoused by the Code Commission, is that
the publicity attending a marriage license may discourage such persons
who have lived in a state of cohabitation from legalizing their status.36
It is not contested herein that the marriage of Jose and Felisa was
performed without a marriage license. In lieu thereof, they executed an
affidavit declaring that "they have attained the age of maturity; that
being unmarried, they have lived together as husband and wife for at
least five years; and that because of this union, they desire to marry
each other."37 One of the central issues in the Petition at bar is thus:
whether the falsity of an affidavit of marital cohabitation, where the
parties have in truth fallen short of the minimum five-year requirement,
effectively renders the marriage void ab initio for lack of a marriage
license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the exceptions to the
rule on the indispensability of the formal requisite of a marriage license.
Under the rules of statutory construction, exceptions, as a general rule,
should be strictly38 but reasonably construed.39 They extend only so far
as their language fairly warrants, and all doubts should be resolved in
favor of the general provisions rather than the exception. 40 Where a
general rule is established by statute with exceptions, the court will not
curtail the former or add to the latter by implication. 41 For the exception
in Article 76 to apply, it is a sine qua non thereto that the man and the
woman must have attained the age of majority, and that, being
unmarried, they have lived together as husband and wife for at least
five years.

A strict but reasonable construction of Article 76 leaves us with no other


expediency but to read the law as it is plainly written. The exception of
a marriage license under Article 76 applies only to those who have lived
together as husband and wife for at least five years and desire to marry
each other. The Civil Code, in no ambiguous terms, places a minimum
period requirement of five years of cohabitation. No other reading of the
law can be had, since the language of Article 76 is precise. The
minimum requisite of five years of cohabitation is an indispensability
carved in the language of the law. For a marriage celebrated under
Article 76 to be valid, this material fact cannot be dispensed with. It is
embodied in the law not as a directory requirement, but as one that
partakes of a mandatory character. It is worthy to mention that Article
76 also prescribes that the contracting parties shall state the requisite
facts42 in an affidavit before any person authorized by law to administer
oaths; and that the official, priest or minister who solemnized the
marriage shall also state in an affidavit that he took steps to ascertain
the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived together
for five years at the time they executed their sworn affidavit and
contracted marriage. The Republic admitted that Jose and Felisa
started living together only in June 1986, or barely five months before
the celebration of their marriage.43 The Court of Appeals also noted
Felisas testimony that Jose was introduced to her by her neighbor,
Teresita Perwel, sometime in February or March 1986 after the EDSA
Revolution.44 The appellate court also cited Felisas own testimony that
it was only in June 1986 when Jose commenced to live in her house. 45
Moreover, it is noteworthy that the question as to whether they satisfied
the minimum five-year requisite is factual in nature. A question of fact
arises when there is a need to decide on the truth or falsehood of the
alleged facts.46Under Rule 45, factual findings are ordinarily not subject
to this Courts review.47 It is already well-settled that:
The general rule is that the findings of facts of the Court of Appeals are
binding on this Court. A recognized exception to this rule is when the

Court of Appeals and the trial court, or in this case the administrative
body, make contradictory findings. However, the exception does not
apply in every instance that the Court of Appeals and the trial court or
administrative body disagree. The factual findings of the Court of
Appeals remain conclusive on this Court if such findings are supported
by the record or based on substantial evidence.48
Therefore, the falsity of the affidavit dated 24 November 1986,
executed by Jose and Felisa to exempt them from the requirement of a
marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of the
statements in the parties affidavit will not affect the validity of marriage,
since all the essential and formal requisites were complied with. The
argument deserves scant merit. Patently, it cannot be denied that the
marriage between Jose and Felisa was celebrated without the formal
requisite of a marriage license. Neither did Jose and Felisa meet the
explicit legal requirement in Article 76, that they should have lived
together as husband and wife for at least five years, so as to be
excepted from the requirement of a marriage license.
Anent petitioners reliance on the presumption of marriage, this Court
holds that the same finds no applicability to the case at bar. Essentially,
when we speak of a presumption of marriage, it is with reference to the
prima facie presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful contract of
marriage.49 Restated more explicitly, persons dwelling together in
apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to the case, to be in fact
married.50 The present case does not involve an apparent marriage to
which the presumption still needs to be applied. There is no question
that Jose and Felisa actually entered into a contract of marriage on 24
November 1986, hence, compelling Jose to institute a Complaint for
Annulment and/or Declaration of Nullity of Marriage, which spawned
the instant consolidated Petitions.

In the same vein, the declaration of the Civil Code 51 that every
intendment of law or fact leans towards the validity of marriage will not
salvage the parties marriage, and extricate them from the effect of a
violation of the law. The marriage of Jose and Felisa was entered into
without the requisite marriage license or compliance with the stringent
requirements of a marriage under exceptional circumstance. The
solemnization of a marriage without prior license is a clear violation of
the law and would lead or could be used, at least, for the perpetration
of fraud against innocent and unwary parties, which was one of the
evils that the law sought to prevent by making a prior license a
prerequisite for a valid marriage. 52 The protection of marriage as a
sacred institution requires not just the defense of a true and genuine
union but the exposure of an invalid one as well. 53 To permit a false
affidavit to take the place of a marriage license is to allow an abject
circumvention of the law. If this Court is to protect the fabric of the
institution of marriage, we must be wary of deceptive schemes that
violate the legal measures set forth in our laws.
Similarly, we are not impressed by the ratiocination of the Republic that
as a marriage under a license is not invalidated by the fact that the
license was wrongfully obtained, so must a marriage not be invalidated
by a fabricated statement that the parties have cohabited for at least
five years as required by law. The contrast is flagrant. The former is
with reference to an irregularity of the marriage license, and not to the
absence of one. Here, there is no marriage license at all. Furthermore,
the falsity of the allegation in the sworn affidavit relating to the period of
Jose and Felisas cohabitation, which would have qualified their
marriage as an exception to the requirement for a marriage license,
cannot be a mere irregularity, for it refers to a quintessential fact that
the law precisely required to be deposed and attested to by the parties
under oath. If the essential matter in the sworn affidavit is a lie, then it is
but a mere scrap of paper, without force and effect. Hence, it is as if
there was no affidavit at all.
In its second assignment of error, the Republic puts forth the argument
that based on equity, Jose should be denied relief because he
perpetrated the fabrication, and cannot thereby profit from his

wrongdoing. This is a misplaced invocation. It must be stated that


equity finds no room for application where there is a law.54 There is a
law on the ratification of marital cohabitation, which is set in precise
terms under Article 76 of the Civil Code. Nonetheless, the authorities
are consistent that the declaration of nullity of the parties marriage is
without prejudice to their criminal liability.55
The Republic further avers in its third assignment of error that Jose is
deemed estopped from assailing the legality of his marriage for lack of
a marriage license. It is claimed that Jose and Felisa had lived together
from 1986 to 1990, notwithstanding Joses subsequent marriage to
Rufina Pascual on 31 August 1990, and that it took Jose seven years
before he sought the declaration of nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage is
imprescriptible.56 Jose and Felisas marriage was celebrated sans a
marriage license. No other conclusion can be reached except that it is
void ab initio. In this case, the right to impugn a void marriage does not
prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the
five-year common-law cohabitation period under Article 76 means a
five-year period computed back from the date of celebration of
marriage, and refers to a period of legal union had it not been for the
absence of a marriage.57 It covers the years immediately preceding the
day of the marriage, characterized by exclusivity - meaning no third
party was involved at any time within the five years - and continuity that
is unbroken.58
WHEREFORE, the Petitions are DENIED. The Amended Decision of
the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No.
68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot
void ab initio, is AFFIRMED, without prejudice to their criminal liability, if
any. No costs.
SO ORDERED.

A.M. No. MTJ-92-721 September 30, 1994


JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and
APOLLO A. VILLAMORA, complainants,
vs.
HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B.
ESMERALDA-BAROY, Clerk of Court II, both of the Municipal Trial
Court of Tinambac, Camarines Sur, respondents.
PER CURIAM, J.:
Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo,
and Apollo Villamora, are Stenographer I, Interpreter I, Clerk II, and
Process Server, respectively, of the Municipal Trial Court of Tinambac,
Camarines Sur. Respondents Judge Lucio P. Palaypayon, Jr. and Nelia
B. Esmeralda-Baroy are respectively the Presiding Judge and Clerk of
Court II of the same court.
In an administrative complaint filed with the Office of the Court
Administrator on October 5, 1992, herein respondents were charged
with the following offenses, to wit: (1) illegal solemnization of marriage;
(2) falsification of the monthly reports of cases; (3) bribery in
consideration of an appointment in the court; (4) non-issuance of
receipt for cash bond received; (5) infidelity in the custody of detained
prisoners; and (6) requiring payment of filing fees from exempted
entities. 1
Pursuant to a resolution issued by this Court respondents filed their
respective Comments. 2 A Reply to Answers of Respondents was filed
by complainants. 3 The case was thereafter referred to Executive Judge
David C. Naval of the Regional Trial Court, Naga City, for investigation
report and recommendation. The case was however transferred to First
Assistant Executive Judge Antonio N. Gerona when Judge Naval
inhibited himself for the reason that his wife is a cousin of respondent
Judge Palaypayon, Jr. 4

The contending versions of the parties regarding the factual


antecedents of this administrative matter, as culled from the records
thereof, are set out under each particular charge against respondents.
1. Illegal solemnization of marriage
Complainants allege that respondent judge solemnized marriages even
without the requisite marriage license. Thus, the following couples were
able to get married by the simple expedient of paying the marriage fees
to respondent Baroy, despite the absence of a marriage license, viz.:
Alano P. Abellano and Nelly Edralin, Francisco Selpo and Julieta
Carrido, Eddie Terrobias and Maria Gacer, Renato Gamay and Maricris
Belga, Arsenio Sabater and Margarita Nacario, and Sammy Bocaya
and Gina Bismonte. As a consequence, their marriage contracts
(Exhibits B, C, D, F, G, and A, respectively) did not reflect any marriage
license number. In addition, respondent judge did not sign their
marriage contracts and did not indicate the date of solemnization, the
reason being that he allegedly had to wait for the marriage license to be
submitted by the parties which was usually several days after the
ceremony. Indubitably, the marriage contracts were not filed with the
local civil registrar. Complainant Ramon Sambo, who prepares the
marriage contracts, called the attention of respondents to the lack of
marriage licenses and its effect on the marriages involved, but the latter
opted to proceed with the celebration of said marriages.

Respondent Nelia Baroy claims that when she was appointed Clerk of
Court II, the employees of the court were already hostile to her,
especially complainant Ramon Sambo who told her that he was filing a
protest against her appointment. She avers that it was only lately when
she discovered that the court had a marriage Register which is in the
custody of Sambo; that it was Sambo who failed to furnish the parties
copies of the marriage contract and to register these with the local civil
registrar; and that apparently Sambo kept these marriage contracts in
preparation for this administrative case. Complainant Sambo, however,
claims that all file copies of the marriage contracts were kept by
respondent Baroy, but the latter insists that she had instructed Sambo
to follow up the submission by the contracting parties of their marriage
licenses as part of his duties but he failed to do so.
Respondent Judge Palaypayon, Jr. contends that the marriage
between Alano P. Abellano and Nelly Edralin falls under Article 34 of the
Civil Code, hence it is exempt from the marriage license requirement;
that he gave strict instructions to complainant Sambo to furnish the
couple a copy of the marriage contract and to file the same with the civil
registrar, but the latter failed to do so; that in order to solve the problem,
the spouses subsequently formalized their marriage by securing a
marriage license and executing their marriage contract, a copy of which
was filed with the civil registrar; that the other five marriages alluded to
in the administrative complaint were not illegally solemnized because
the marriage contracts were not signed by him and they did not contain
the date and place of marriage; that copies of these marriage contracts
are in the custody of complainant Sambo; that the alleged marriage of
Francisco Selpo and Julieta Carrido, Eddie Terrobias and Maria Emma
Gaor, Renato Gamay and Maricris Belga, and of Arsenio Sabater and
Margarita Nacario were not celebrated by him since he refused to
solemnize them in the absence of a marriage license; that the marriage
of Samy Bocaya and Gina Bismonte was celebrated even without the
requisite license due to the insistence of the parties in order to avoid
embarrassment to their guests but that, at any rate, he did not sign their
marriage contract which remains unsigned up to the present.

2. Falsification of monthly report for July, 1991 regarding the number of


marriages solemnized and the number of documents notarized.
It is alleged that respondent judge made it appear that he solemnized
seven (7) marriages in the month of July, 1992, when in truth he did not
do so or at most those marriages were null and void; that respondents
likewise made it appear that they have notarized only six (6) documents
for July, 1992, but the Notarial Register will show that there were one
hundred thirteen (113) documents which were notarized during that
month; and that respondents reported a notarial fee of only P18.50 for
each document, although in fact they collected P20.00 therefor and
failed to account for the difference.
Respondent Baroy contends, however, that the marriage registry where
all marriages celebrated by respondent judge are entered is under the
exclusive control and custody of complainant Ramon Sambo, hence he
is the only one who should be held responsible for the entries made
therein; that the reported marriages are merely based on the payments
made as solemnization fees which are in the custody of respondent
Baroy. She further avers that it is Sambo who is likewise the custodian
of the Notarial Register; that she cannot be held accountable for
whatever alleged difference there is in the notarial fees because she is
liable only for those payments tendered to her by Sambo himself; that
the notarial fees she collects are duly covered by receipts; that of the
P20.00 charged, P18.50 is remitted directly to the Supreme Court as
part of the Judiciary Development Fund and P150 goes to the general
fund of the Supreme Court which is paid to the Municipal Treasurer of
Tinambac, Camarines Sur. Respondent theorizes that the
discrepancies in the monthly report were manipulated by complainant
Sambo considering that he is the one in charge of the preparation of
the monthly report.
Respondent Judge Palaypayon avers that the erroneous number of
marriages celebrated was intentionally placed by complainant Sambo;
that the number of marriages solemnized should not be based on
solemnization fees paid for that month since not all the marriages paid
for are solemnized in the same month. He claims that there were

actually only six (6) documents notarized in the month of July, 1992
which tallied with the official receipts issued by the clerk of court; that it
is Sambo who should be held accountable for any unreceipted payment
for notarial fees because he is the one in charge of the Notarial
Register; and that this case filed by complainant Sambo is merely in
retaliation for his failure to be appointed as the clerk of court.
Furthermore, respondent judge contends that he is not the one
supervising or preparing the monthly report, and that he merely has the
ministerial duty to sign the same.
3. Bribery in consideration of an appointment in the court
Complainants allege that because of the retirement of the clerk of court,
respondent judge forwarded to the Supreme Court the applications of
Rodel Abogado, Ramon Sambo, and Jessell Abiog. However, they
were surprised when respondent Baroy reported for duty as clerk of
court on October 21, 1991. They later found out that respondent Baroy
was the one appointed because she gave a brand-new air-conditioning
unit to respondent judge.
Respondent Baroy claims that when she was still in Naga City she
purchased an air-conditioning unit but when she was appointed clerk of
court she had to transfer to Tinambac and, since she no longer needed
the air conditioner, she decided to sell the same to respondent judge.
The installation and use thereof by the latter in his office was with the
consent of the Mayor of Tinambac.
Respondent judge contends that he endorsed all the applications for
the position of clerk of court to the Supreme Court which has the sole
authority over such appointments and that he had no hand in the
appointment of respondent Baroy. He contends that the air-conditioning
unit
was
bought
from
his
co-respondent on installment basis on May 29, 1992, eight (8) months
after Baroy had been appointed clerk of court. He claims that he would
not be that naive to exhibit to the public as item which could not be
defended as a matter of honor and prestige.

4. Cash bond issued without a receipt

6. Unlawful collection of docket fees

It is alleged that in Criminal Case No. 5438, entitled "People vs.


Mendeza, et al., "bondswoman Januaria Dacara was allowed by
respondent judge to change her property bond to cash bond; that she
paid the amount of P1,000.00 but was never issued a receipt therefor
nor was it made to appear in the records that the bond has been paid;
that despite the lapse of two years, the money was never returned to
the bondswoman; and that it has not been shown that the money was
turned over to the Municipal Treasurer of Tinambac.

Finally, respondents are charged with collecting docket fees from the
Rural Bank of Tinambac, Camarines Sur, Inc. although such entity is
exempt by law from the payment of said fees, and that while the
corresponding receipt was issued, respondent Baroy failed to remit the
amount to the Supreme Court and, instead, she deposited the same in
her personal account.

Respondent Baroy counters that the cash bond was deposited with the
former clerk of court, then turned over to the acting clerk of court and,
later, given to her under a corresponding receipt; that the cash bond is
deposited with the bank; and that should the bondswoman desire to
withdraw the same, she should follow the proper procedure therefor.
Respondent judge contends that Criminal Case No. 5438 was
archieved for failure of the bondsman to deliver the body of the
accused in court despite notice; and that he has nothing to do with the
payment of the cash bond as this is the duty of the clerk of court.
5. Infidelity in the custody of prisoners
Complainants contend that respondent judge usually got detention
prisoners to work in his house, one of whom was Alex Alano, who is
accused in Criminal Case No. 5647 for violation of the Dangerous
Drugs Act; that while Alano was in the custody of respondent judge, the
former escaped and was never recaptured; that in order to conceal this
fact, the case was archived pursuant to an order issued by respondent
judge dated April 6, 1992.
Respondent judge denied the accusation and claims that he never
employed detention prisoners and that he has adequate household
help; and that he had to order the case archived because it had been
pending for more than six (6) months and the accused therein
remained at large.

Respondents Baroy contends that it was Judge-Designate Felimon


Montenegro (because respondent judge was on sick leave) who
instructed her to demand payment of docket fees from said rural bank;
that the bank issued a check for P800.00; that she was not allowed by
the Philippine National Bank to encash the check and, instead, was
instructed to deposit the same in any bank account for clearing; that
respondent deposited the same in her account; and that after the check
was cleared, she remitted P400.00 to the Supreme Court and the other
P400.00 was paid to the Municipal Treasurer of Tinambac.
On the basis of the foregoing contentions, First Vice-Executive Judge
Antonio N. Gerona prepared and submitted to us his Report and
Recommendations dated May 20, 1994, together with the
administrative matter. We have perspicaciously reviewed the same and
we are favorably impressed by the thorough and exhaustive
presentation and analysis of the facts and evidence in said report. We
commend the investigating judge for his industry and perspicacity
reflected by his findings in said report which, being amply substantiated
by the evidence and supported by logical illations, we hereby approve
and hereunder reproduce at length the material portions thereof.
xxx xxx xxx
The first charge against the respondents is illegal solemnization of
marriage. Judge Palaypayon is charged with having solemnized without
a marriage license the marriage of Sammy Bocaya and Gina Besmonte
(Exh. A). Alano Abellano and Nelly Edralin (Exh. B), Francisco Selpo
and Julieta Carrido (Exh. C), Eddie Terrobias and Maria Emma Gaor

(Exh. D), Renato Gamay and Maricris Belga (Exh. F) and Arsenio
Sabater and Margarita Nacario (Exh. G).
In all these aforementioned marriages, the blank space in the marriage
contracts to show the number of the marriage was solemnized as
required by Article 22 of the Family Code were not filled up. While the
contracting parties and their witnesses signed their marriage contracts,
Judge Palaypayon did not affix his signature in the marriage contracts,
except that of Abellano and Edralin when Judge Palaypayon signed
their marriage certificate as he claims that he solemnized this marriage
under Article 34 of the Family Code of the Philippines. In said
marriages the contracting parties were not furnished a copy of their
marriage contract and the Local Civil Registrar was not sent either a
copy of the marriage certificate as required by Article 23 of the Family
Code.
The marriage of Bocaya and Besmonte is shown to have been
solemnized by Judge Palaypayon without a marriage license. The
testimonies of Bocay himself and Pompeo Ariola, one of the witnesses
of the marriage of Bocaya and Besmonte, and the photographs taken
when Judge Palaypayon solemnized their marriage (Exhs. K-3 to K-9)
sufficiently show that Judge Palaypayon really solemnized their
marriage. Bocaya declared that they were advised by Judge
Palaypayon to return after ten (10) days after their marriage was
solemnized and bring with them their marriage license. In the
meantime, they already started living together as husband and wife
believing that the formal requisites of marriage were complied with.

a simulated solemnization of marriage and not a real one. This


happened because of the pleading of the mother of one of the
contracting parties that he consent to be photographed to show that as
if he was solemnizing the marriage as he was told that the food for the
wedding reception was already prepared, visitors were already invited
and the place of the parties where the reception would be held was
more than twenty (20) kilometers away from the poblacion of Tinambac.
The denial made by Judge Palaypayon is difficult to believe. The fact
alone that he did not sign the marriage certificate or contract, the same
did not bear a date and the parties and the Local Civil Registrar were
not furnished a copy of the marriage certificate, do not by themselves
show that he did not solemnize the marriage. His uncorroborated
testimony cannot prevail over the testimony of Bocaya and Ariola who
also declared, among others, that Bocaya and his bride were advised
by Judge Palaypayon to return after ten (10) days with their marriage
license and whose credibility had not been impeached.
The pictures taken also from the start of the wedding ceremony up to
the signing of the marriage certificate in front of Judge Palaypayon and
on his table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K-4, K-4-a, K-4-b, K-4-c,
K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and K-9), cannot possibly
be just to show a simulated solemnization of marriage. One or two
pictures may convince a person of the explanation of Judge
Palaypayon, but not all those pictures.

Judge Palaypayon denied that he solemnized the marriage of Bocaya


and Besmonte because the parties allegedly did not have a marriage
license. He declared that in fact he did not sign the marriage certificate,
there was no date stated on it and both the parties and the Local Civil
Registrar did not have a copy of the marriage certificate.

Besides, as a judge it is very difficult to believe that Judge Palaypayon


would allows himself to be photographed as if he was solemnizing a
marriage on a mere pleading of a person whom he did not even know
for the alleged reasons given. It would be highly improper and
unbecoming of him to allow himself to be used as an instrument of
deceit by making it appear that Bocaya and Besmonte were married by
him when in truth and in fact he did not solemnize their marriage.

With respect to the photographs which show that he solemnized the


marriage of Bocaya and Besmonte, Judge Palaypayon explains that
they merely show as if he was solemnizing the marriage. It was actually

With respect to the marriage of Abellano and Edralin (Exh. B), Judge
Palaypayon admitted that he solemnized their marriage, but he claims
that it was under Article 34 of the Family Code, so a marriage license

was not required. The contracting parties here executed a joint affidavit
that they have been living together as husband and wife for almost six
(6) years already (Exh. 12; Exh. AA).
In their marriage contract which did not bear any date either when it
was solemnized, it was stated that Abellano was only eighteen (18)
years, two (2) months and seven (7) days old. If he and Edralin had
been living together as husband and wife for almost six (6) years
already before they got married as they stated in their joint affidavit,
Abellano must ha(ve) been less than thirteen (13) years old when he
started living with Edralin as his wife and this is hard to believe. Judge
Palaypayon should ha(ve) been aware of this when he solemnized their
marriage as it was his duty to ascertain the qualification of the
contracting parties who might ha(ve) executed a false joint affidavit in
order to have an instant marriage by avoiding the marriage license
requirement.
On May 23, 1992, however, after this case was already filed, Judge
Palaypayon married again Abellano and Edralin, this time with a
marriage license (Exh. BB). The explanation given by Judge
Palaypayon why he solemnized the marriage of the same couple for
the second time is that he did not consider the first marriage he
solemnized under Article 34 of the Family Code as (a) marriage at all
because complainant Ramon Sambo did not follow his instruction that
the date should be placed in the marriage certificate to show when he
solemnized the marriage and that the contracting parties were not
furnished a copy of their marriage certificate.

This act of Judge Palaypayon of solemnizing the marriage of Abellano


and Edralin for the second time with a marriage license already only
gave rise to the suspicion that the first time he solemnized the marriage
it was only made to appear that it was solemnized under exceptional
character as there was not marriage license and Judge Palaypayon
had already signed the marriage certificate. If it was true that he
solemnized the first marriage under exceptional character where a
marriage license was not required, why did he already require the
parties to have a marriage license when he solemnized their marriage
for the second time?
The explanation of Judge Palaypayon that the first marriage of Abellano
and Edralin was not a marriage at all as the marriage certificate did not
state the date when the marriage was solemnized and that the
contracting parties were not furnished a copy of their marriage
certificate, is not well taken as they are not any of those grounds under
Article(s) 35, 36, 37 and 38 of the Family Code which declare a
marriage void from the beginning. Even if no one, however, received a
copy of the marriage certificate, the marriage is still valid (Jones vs.
H(o)rtiguela, 64 Phil. 179). Judge Palaypayon cannot just absolve
himself from responsibility by blaming his personnel. They are not the
guardian(s) of his official function and under Article 23 of the Family
Code it is his duty to furnish the contracting parties (a) copy of their
marriage contract.
With respect to the marriage of Francisco Selpo and Julieta Carrido
(Exh. C), and Arsenio Sabater and Margarita Nacario (Exh. G), Selpo
and Carrido and Sabater and Nacarcio executed joint affidavits that
Judge Palaypayon did not solemnize their marriage (Exh. 13-A and
Exh. 1). Both Carrido and Nacario testified for the respondents that
actually Judge Palaypayon did not solemnize their marriage as they did
not have a marriage license. On cross-examination, however, both
admitted that they did not know who prepared their affidavits. They
were just told, Carrido by a certain Charito Palaypayon, and Nacario by
a certain Kagawad Encinas, to just go to the Municipal building and
sign their joint affidavits there which were already prepared before the
Municipal Mayor of Tinambac, Camarines Sur.

With respect to the marriage of Renato Gamay and Maricris Belga


(Exh. f), their marriage contract was signed by them and by their two
(2) witnesses, Atty. Elmer Brioso and respondent Baroy (Exhs. F-1 and
F-2). Like the other aforementioned marriages, the solemnization fee
was also paid as shown by a receipt dated June 7, 1992 and signed by
respondent Baroy (Exh. F-4).
Judge Palaypayon also denied having solemnized the marriage of
Gamay and Belga allegedly because there was no marriage license.
On her part, respondent Baroy at first denied that the marriage was
solemnized. When she was asked, however, why did she sign the
marriage contract as a witness she answered that she thought the
marriage was already solemnized (TSN, p. 14; 10-28-93).
Respondent Baroy was, and is, the clerk of court of Judge Palaypayon.
She signed the marriage contract of Gamay and Belga as one of the
two principal sponsors. Yet, she wanted to give the impression that she
did not even know that the marriage was solemnized by Judge
Palaypayon. This is found very difficult to believe.
Judge Palaypayon made the same denial of having solemnized also
the marriage of Terrobias and Gaor (Exh. D). The contracting parties
and their witnesses also signed the marriage contract and paid the
solemnization fee, but Judge Palaypayon allegedly did not solemnize
their marriage due to lack of marriage license. Judge Palaypayon
submitted the affidavit of William Medina, Vice-Mayor of Tinambac, to
corroborate his testimony (Exh. 14). Medina, however, did not testify in
this case and so his affidavit has no probative value.
Judge Palaypayon testified that his procedure and practice have been
that before the contracting parties and their witnesses enter his
chamber in order to get married, he already required complainant
Ramon Sambo to whom he assigned the task of preparing the marriage
contract, to already let the parties and their witnesses sign their
marriage contracts, as what happened to Gamay and Belga, and
Terrobias and Gaor, among others. His purpose was to save his
precious time as he has been solemnizing marriages at the rate of

three (3)
2-1-94).

to

four

(4)

times

everyday

(TSN,

p.

12;

This alleged practice and procedure, if true, is highly improper and


irregular, if not illegal, because the contracting parties are supposed to
be first asked by the solemnizing officer and declare that they take
each other as husband and wife before the solemnizing officer in the
presence of at least two (2) witnesses before they are supposed to sign
their marriage contracts (Art. 6, Family Code).
The uncorroborated testimony, however, of Judge Palaypayon as to his
alleged practice and procedure before solemnizing a marriage, is not
true as shown by the picture taken during the wedding of Bocaya and
Besmonte (Exhs. K-3 to K-9) and by the testimony of respondent Baroy
herself who declared that the practice of Judge Palaypayon ha(s) been
to let the contracting parties and their witnesses sign the marriage
contract only after Judge Palaypayon has solemnized their marriage
(TSN,
p.
53;
10-28-93).
Judge Palaypayon did not present any evidence to show also that he
was really solemnizing three (3) to four (4) marriages everyday. On the
contrary his monthly report of cases for July, 1992 shows that his court
had only twenty-seven (27) pending cases and he solemnized only
seven (7) marriages for the whole month (Exh. E). His monthly report of
cases for September, 1992 shows also that he solemnized only four (4)
marriages during the whole month (Exh. 7).
In this first charge of having illegally solemnized marriages, respondent
Judge Palaypayon has presented and marked in evidence several
marriage contracts of other persons, affidavits of persons and
certification issued by the Local Civil Registrar (Exhs. 12-B to 12-H).
These persons who executed affidavits, however, did not testify in this
case. Besides, the marriage contracts and certification mentioned are
immaterial as Judge Palaypayon is not charged of having solemnized
these marriages illegally also. He is not charged that the marriages he
solemnized were all illegal.

The second charge against herein respondents, that of having falsified


the monthly report of cases submitted to the Supreme Court and not
stating in the monthly report the actual number of documents notarized
and issuing the corresponding receipts of the notarial fees, have been
sufficiently proven by the complainants insofar as the monthly report of
cases for July and September, 1992 are concerned.
The monthly report of cases of the MTC of Tinambac, Camarines Sur
for July, 1992 both signed by the respondents, show that for said month
there were six (6) documents notarized by Judge Palaypayon in his
capacity as Ex-Officio Notary Public (Exhs. H to H-1-b). The notarial
register of the MTC of Tinambac, Camarines Sur, however, shows that
there were actually one hundred thirteen (113) documents notarized by
Judge Palaypayon for the said month (Exhs. Q to Q-45).
Judge Palaypayon claims that there was no falsification of the monthly
report of cases for July, 1992 because there were only six (6) notarized
documents that were paid (for) as shown by official receipts. He did not,
however, present evidence of the alleged official receipts showing that
the notarial fee for the six (6) documetns were paid. Besides, the
monthly report of cases with respect to the number of documents
notarized should not be based on how many notarized documents were
paid of the notarial fees, but the number of documents placed or
recorded in the notarial register.
Judge Palaypayon admitted that he was not personally verifying and
checking anymore the correctness of the monthly reports because he
relies on his co-respondent who is the Clerk of Court and whom he has
assumed to have checked and verified the records. He merely signs
the monthly report when it is already signed by respondent Baroy.
The explanation of Judge Palaypayon is not well taken because he is
required to have close supervision in the preparation of the monthly
report of cases of which he certifies as to their correctness. As a judge
he is personally responsible for the proper discharge of his functions
(The Phil. Trial Lawyer's Asso. Inc. vs. Agana, Sr., 102 SCRA 517). In
Nidera vs. Lazaro, 174 SCRA 581, it was held that "A judge cannot take

refuge behind the inefficiency or mismanagement of his court


personnel."
On the part of respondent Baroy, she puts the blame of the falsification
of the monthly report of cases on complainant Sambo whom she
allegedly assigned to prepare not only the monthly report of cases, but
the preparation and custody of marriage contracts, notarized
documents and the notarial register. By her own admission she has
assigned to complainant Sambo duties she was supposed to perform,
yet according to her she never bother(ed) to check the notarial register
of the court to find out the number of documents notarized in a month
(TSN, p. 30; 11-23-93).
Assuming that respondent Baroy assigned the preparation of the
monthly report of cases to Sambo, which was denied by the latter as he
claims that he only typed the monthly report based on the data given to
him by her, still it is her duty to verify and check whether the report is
correct.
The explanation of respondent Baroy that Sambo was the one in
custody of marriage contracts, notarized documents and notarial
register, among other things, is not acceptable not only because as
clerk of court she was supposed to be in custody, control and
supervision of all court records including documents and other
properties of the court (p. 32, Manual for Clerks of Court), but she
herself admitted that from January, 1992 she was already in full control
of all the records of the court including receipts (TSN, p. 11; 11-23-93).
The evidence adduced in this cases in connection with the charge of
falsification, however, also shows that respondent Baroy did not
account for what happened to the notarial fees received for those
documents notarized during the month of July and September, 1992.
The evidence adduced in this case also sufficiently show that she
received cash bond deposits and she did not deposit them to a bank or
to the Municipal Treasurer; and that she only issued temporary receipts
for said cash bond deposits.

For July, 1992 there were only six (6) documents reported to have been
notarized by Judge Palaypayon although the documents notarized for
said month were actually one hundred thirteen (113) as recorded in the
notarial register. For September, 1992, there were only five (5)
documents reported as notarized for that month, though the notarial
register show(s) that there were fifty-six (56) documents actually
notarized. The fee for each document notarized as appearing in the
notarial register was P18.50. Respondent Baroy and Sambo declared
that what was actually being charged was P20.00. Respondent Baroy
declared that P18.50 went to the Supreme Court and P1.50 was being
turned over to the Municipal Treasurer.
Baroy, however, did not present any evidence to show that she really
sent to the Supreme Court the notarial fees of P18.50 for each
document notarized and to the Municipal Treasurer the additional
notarial fee of P1.50. This should be fully accounted for considering
that Baroy herself declared that some notarial fees were allowed by her
at her own discretion to be paid later. Similarly, the solemnization fees
have not been accounted for by Baroy considering that she admitted
that even (i)n those instances where the marriages were not
solemnized due to lack of marriage license the solemnization fees were
not returned anymore, unless the contracting parties made a demand
for their return. Judge Palaypayon declared that he did not know of any
instance when solemnization fee was returned when the marriage was
not solemnized due to lack of marriage license.
Respondent Baroy also claims that Ramon Sambo did not turn over to
her some of the notarial fees. This is difficult to believe. It was not only
because Sambo vehemently denied it, but the minutes of the
conference of the personnel of the MTC of Tinambac dated January 20,
1992 shows that on that date Baroy informed the personnel of the court
that she was taking over the functions she assigned to Sambo,
particularly the collection of legal fees (Exh. 7). The notarial fees she
claims that Sambo did not turn over to her were for those documents
notarized (i)n July and September, 1992 already. Besides there never
was any demand she made for Sambo to turn over some notarial fees
supposedly in his possession. Neither was there any memorandum she

issued on this matter, in spite of the fact that she has been holding
meetings and issuing memoranda to the personnel of the court (Exhs.
V, W, FF, FF-1, FF-2, FF-3; Exhs. 4-A (supplement(s), 5-8, 6-S, 7-S and
8-S).
It is admitted by respondent Baroy that on October 29, 1991 a cash
bond deposit of a certain Dacara in the amount of One Thousand
(P1,000.00) Pesos was turned over to her after she assumed office and
for this cash bond she issued only a temporary receipt (Exh. Y). She
did not deposit this cash bond in any bank or to the Municipal
Treasurer. She just kept it in her own cash box on the alleged ground
that the parties in that case where the cash bond was deposited
informed her that they would settle the case amicably.
Respondent Baroy declared that she finally deposited the
aforementioned cash bond of One Thousand (P1,000.00) Pesos with
the Land Bank of the Philippines (LBP) in February, 1993, after this
administrative case was already filed (TSN, pp. 27-28; 12-22-93). The
Pass Book, however, shows that actually Baroy opened an account
with the LBP, Naga Branch, only on March 26, 1993 when she
deposited an amount of Two Thousand (P2,000.00) Pesos (Exhs. 8 to
8-1-a). She claims that One Thousand (P1,000.000) Pesos of the initial
deposit was the cash bond of Dacara. If it were true, it was only after
keeping to herself the cash bond of One Thousand (P1,000.00) Pesos
for around one year and five months when she finally deposited it
because of the filing of this case.
On April 29, 1993, or only one month and two days after she finally
deposited the One Thousand (P1,000.00) Pesos cash bond of Dacara,
she withdrew it from the bank without any authority or order from the
court. It was only on July 23, 1993, or after almost three (3) months
after she withdrew it, when she redeposited said cash bond (TSN, p. 6;
1-4-94).
The evidence presented in this case also show that on February 28,
1993 respondent Baroy received also a cash bond of Three Thousand
(P3,000.00) Pesos from a certain Alfredo Seprones in Crim. Case No.

5180. For this cash bond deposit, respondent Baroy issued only an
annumbered temporary receipt (Exh. X and X-1). Again Baroy just kept
this Three Thousand (P3,000.00) Pesos cash bond to herself. She did
not deposit it either (in) a bank or (with) the Municipal Treasurer. Her
explanation was that the parties in Crim. Case No. 5180 informed her
that they would settle the case amicably. It was on April 26, 1993, or
almost two months later when Judge Palaypayon issued an order for
the release of said cash bond (Exh. 7).
Respondent Baroy also admitted that since she assumed office on
October 21, 1991 she used to issue temporary receipt only for cash
bond deposits and other payments and collections she received. She
further admitted that some of these temporary receipts she issued she
failed to place the number of the receipts such as that receipt marked
Exhibit X (TSN, p. 35; 11-23-93). Baroy claims that she did not know
that she had to use the official receipts of the Supreme Court. It was
only from February, 1993, after this case was already filed, when she
only started issuing official receipts.
The next charge against the respondents is that in order to be
appointed Clerk of Court, Baroy gave Judge Palaypayon an air
conditioner as a gift. The evidence adduced with respect to this charge,
show that on August 24, 1991 Baroy bought an air conditioner for the
sum of Seventeen Thousand Six Hundred (P17,600.00) Pesos (Exhs. I
and I-1). The same was paid partly in cash and in check (Exhs. I-2 and
I-3). When the air conditioner was brought to court in order to be
installed in the chamber of Judge Palaypayon, it was still placed in the
same box when it was bought and was not used yet.
The respondents claim that Baroy sold it to Judge Palaypayon for
Twenty Thousand (P20,00.00) Pesos on installment basis with a down
payment of Five Thousand (P5,000.00) Pesos and as proof thereof the
respondents presented a typewritten receipt dated May 29, 1993 (Exh.
22). The receipt was signed by both respondents and by the Municipal
Mayor of Tinambac, Camarines Sur and another person as witness.

The alleged sale between respondents is not beyond suspicion. It was


bought by Baroy at a time when she was applying for the vacant
position of Clerk of Court (to) which she was eventually appointed in
October, 1991. From the time she bought the air conditioner on August
24, 1991 until it was installed in the office of Judge Palaypayon it was
not used yet. The sale to Judge Palaypayon was only evidenced by a
mere typewritten receipt dated May 29, 1992 when this case was
already filed. The receipt could have been easily prepared. The
Municipal Mayor of Tinambac who signed in the receipt as a witness
did not testify in this case. The sale is between the Clerk of Court and
the Judge of the same court. All these circumstances give rise to
suspicion of at least impropriety. Judges should avoid such action as
would subject (them) to suspicion and (their) conduct should be free
from the appearance of impropriety (Jaagueta vs. Boncasos, 60 SCRA
27).
With respect to the charge that Judge Palaypayon received a cash
bond deposit of One Thousand (P1,000.00) Pesos from Januaria
Dacara without issuing a receipt, Dacara executed an affidavit
regarding this charge that Judge Palaypayon did not give her a receipt
for the P1,000.00 cash bond she deposited (Exh. N). Her affidavit,
however, has no probative value as she did not show that this cash
bond of P1,000.00 found its way into the hands of respondent Baroy
who issued only a temporary receipt for it and this has been discussed
earlier.
Another charge against Judge Palaypayon is the getting of detention
prisoners to work in his house and one of them escaped while in his
custody and was never found again. To hide this fact, the case against
said accused was ordered archived by Judge Palaypayon. The
evidence adduced with respect to this particular charge, show that in
Crim. Case No. 5647 entitled People vs. Stephen Kalaw, Alex Alano
and Allan Adupe, accused Alex Alano and Allan Adupe were arrested
on April 12, 1991 and placed in the municipal jail of Tinambac,
Camarines Sur (Exhs. 0, 0-1, 0-2 and 0-3; Exh. 25). The evidence
presented that Alex Alano was taken by Judge Palaypayon from the
municipal jail where said accused was confined and that he escaped

while in custody of Judge Palaypayon is solely testimonial, particularly


that of David Ortiz, a former utility worker of the MTC of Tinambac.
Herein investigator finds said evidence not sufficient. The complainants
should have presented records from the police of Tinambac to show
that Judge Palaypayon took out from the municipal jail Alex Alano
where he was under detention and said accused escaped while in the
custody of Judge Palaypayon.
The order, however, of Judge Palaypayon dated April 6, 1992 in Crim.
Case No. 5047 archiving said case appears to be without basis. The
order states: "this case was filed on April 12, 1991 and the records
show that the warrant of arrest (was) issued against the accused, but
up to this moment there is no return of service for the warrant of arrest
issued against said accused" (Exh. 0-4). The records of said case,
however, show that in fact there was a return of the service of the
warrant of arrest dated April 12, 1991 showing that Alano and Adupe
were arrested (Exh. 0-3).
Judge Palaypayon explained that his order dated April 6, 1992
archiving Crim. Case No. 5047 referred only to one of the accused who
remained at large. The explanation cannot be accepted because the
two other accused, Alano and Adupe, were arrested. Judge Palaypayon
should have issued an order for the arrest of Adupe who allegedly
jumped bail, but Alano was supposed to be confined in the municipal
jail if his claim is true that he did not take custody of Alano.
The explanation also of Judge Palaypayon why he ordered the case
archived was because he heard from the police that Alano escaped.
This explanation is not acceptable either. He should ha(ve) set the case
and if the police failed to bring to court Alano, the former should have
been required to explain in writing why Alano was not brought to court.
If the explanation was that Alano escaped from jail, he should have
issued an order for his arrest. It is only later on when he could not be
arrested when the case should have been ordered archived. The order
archiving this case for the reason that he only heard that Alano
escaped is another circumstance which gave rise to a suspicion that

Alano might have really escaped while in his custody only that the
complainants could not present records or other documentary evidence
to prove the same.
The last charge against the respondents is that they collected filing fees
on collection cases filed by the Rural Bank of Tinambac, Camarines
Sur which was supposed to be exempted in paying filing fees under
existing laws and that the filing fees received was deposited by
respondent Baroy in her personal account in the bank. The evidence
presented show that on February 4, 1992 the Rural Bank of Tinambac
filed ten (10) civil cases for collection against farmers and it paid the
total amount of Four Hundred (P400.00) Pesos representing filing fees.
The complainants cited Section 14 of Republic Act 720, as amended,
which exempts Rural Banks (from) the payment of filing fees on
collection of sums of money cases filed against farmers on loans they
obtained.
Judge Palaypayon, however, had nothing to do with the payment of the
filing fees of the Rural Bank of Tinambac as it was respondent Baroy
who received them and besides, on February 4, 1992, he was on sick
leave. On her part Baroy claims that the bank paid voluntarily the filing
fees. The records, however, shows that respondent Baroy sent a letter
to the manager of the bank dated January 28, 1992 to the effect that if
the bank would not pay she would submit all Rural Bank cases for
dismissal (Annex 6, comment by respondent Baroy).
Respondent Baroy should have checked whether the Rural Bank of
Tinambac was really exempt from the payment of filing fees pursuant to
Republic Act 720, as amended, instead of threatening the bank to have
its cases be submitted to the court in order to have them dismissed.
Here the payment of the filing fees was made on February 4, 1992, but
the Four Hundred (P400.00) Pesos was only turned over to the
Municipal Treasurer on March 12, 1992. Here, there is an undue delay
again in complying with her obligation as accountable officer.
In view of the foregoing findings that the evidence presented by the
complainants sufficiently show that respondent Judge Lucio P.

Palaypayon, Jr. had solemnized marriages, particularly that of Sammy


Bocaya and Gina Besmonte, without a marriage license, and that it
having been shown that he did not comply with his duty in closely
supervising his clerk of court in the preparation of the monthly report of
cases being submitted to the Supreme Court, particularly for the
months of July and September, 1992 where it has been proven that the
reports for said two (2) months were falsified with respect to the
number of documents notarized, it is respectfully recommended that he
be imposed a fine of TEN THOUSAND (P10,000.00) PESOS with a
warning that the same or similar offenses will be more severely dealt
with.
The fact that Judge Palaypayon did not sign the marriage contracts or
certificates of those marriages he solemnized without a marriage
license, there were no dates placed in the marriage contracts to show
when they were solemnized, the contracting parties were not furnished
their marriage contracts and the Local Civil Registrar was not being
sent any copy of the marriage contract, will not absolve him from
liability. By solemnizing alone a marriage without a marriage license he
as the solemnizing officer is the one responsible for the irregularity in
not complying (with) the formal requ(i)sites of marriage and under
Article 4(3) of the Family Code of the Philippines, he shall be civilly,
criminally and administratively liable.
Judge Palaypayon is likewise liable for his negligence or failure to
comply with his duty of closely supervising his clerk of court in the
performance of the latter's duties and functions, particularly the
preparation of the monthly report of cases (Bendesula vs. Laya, 58
SCRA 16). His explanation that he only signed the monthly report of
cases only when his clerk of court already signed the same, cannot be
accepted. It is his duty to closely supervise her, to check and verify the
records if the monthly reports prepared by his clerk of court do not
contain false statements. It was held that "A judge cannot take refuge
behind the inefficiency or incompetence of court personnel (Nidua vs.
Lazaro, 174 SCRA 158).

In view also of the foregoing finding that respondent Nelia EsmeraldaBaroy, the clerk of court of the Municipal Trial Court of Tinambac,
Camarines Sur, has been found to have falsified the monthly report of
cases for the months of July and September, 1992 with respect to the
number of documents notarized, for having failed to account (for) the
notarial fees she received for said two (2) months period; for having
failed to account (for) the solemnization fees of those marriages
allegedly not solemnized, but the solemnization fees were not returned;
for unauthorized issuance of temporary receipts, some of which were
issued unnumbered; for receiving the cash bond of Dacara on October
29, 1991 in the amount of One Thousand (P1,000.00) Pesos for which
she issued only a temporary receipt (Exh. Y) and for depositing it with
the Land Bank of the Philippines only on March 26, 1993, or after one
year and five months in her possession and after this case was already
filed; for withdrawing said cash bond of One Thousand (P1,000.00)
Pesos on April 29, 1993 without any court order or authority and
redepositing it only on July 23, 1993; for receiving a cash bond of Three
Thousand (P3,000.00) Pesos from Alfredo Seprones in Crim. Case No.
5180, MTC, Tinambac, Camarines Sur, for which she issued only an
unnumbered temporary receipt (Exhs. X and X-1) and for not
depositing it with a bank or with the Municipal Treasurer until it was
ordered released; and for requiring the Rural Bank of Tinambac,
Camarines Sur to pay filing fees on February 4, 1992 for collection
cases filed against farmers in the amount of Four Hundred (P400.00)
Pesos, but turning over said amount to the Municipal Treasurer only on
March 12, 1992, it is respectfully recommended that said respondent
clerk of court Nelia Esmeralda-Baroy be dismissed from the service.
It is provided that "Withdrawal of court deposits shall be by the clerk of
court who shall issue official receipt to the provincial, city or municipal
treasurer for the amount withdrawn. Court deposits cannot be
withdrawn except by order of the court, . . . ." (Revised Manual of
Instructions for Treasurers, Sec. 183, 184 and 626; p. 127, Manual for
Clerks of Court). A circular also provides that the Clerks of Court shall
immediately issue an official receipt upon receipt of deposits from party
litigants and thereafter deposit intact the collection with the municipal,
city or provincial treasurer and their deposits, can only be withdrawn

upon proper receipt and order of the Court (DOJ Circular No. 52, 26
April 1968; p. 136, Manual for Clerks of Court). Supreme Court
Memorandum Circular No. 5, 25 November 1982, also provides that "all
collections of funds of fiduciary character including rental deposits, shall
be deposited immediately by the clerk of court concerned upon receipt
thereof with City, Municipal or Provincial Treasurer where his court is
located" and that "no withdrawal of any of such deposits shall be made
except upon lawful order of the court exercising jurisdiction over the
subject matter.
Respondent Baroy had either failed to comply with the foregoing
circulars, or deliberately disregarded, or even intentionally violated
them. By her conduct, she demonstrated her callous unconcern for the
obligations and responsibility of her duties and functions as a clerk of
court and accountable officer. The gross neglect of her duties shown by
her constitute(s) a serious misconduct which warrant(s) her removal
from office. In the case of Belen P. Ferriola vs. Norma Hiam, Clerk of
Court, MTCC, Branch I, Batangas City; A.M. No. P-90-414; August 9,
1993, it was held that "The clerk of court is not authorized to keep funds
in his/her custody; monies received by him/her shall be deposited
immediately upon receipt thereof with the City, Municipal or Provincial
Treasurer. Supreme Court Circular Nos. 5 dated November 25, 1982
and 5-A dated December 3, 1982. Respondent Hiam's failure to remit
the cash bail bonds and fine she collected constitutes serious
misconduct and her misappropriation of said funds constitutes
dishonesty. "Respondent Norma Hiam was found guilty of dishonesty
and serious misconduct prejudicial to the best interest of the service
and (the Court) ordered her immediate dismissal (from) the service.
xxx xxx xxx
We here emphasize once again our adjuration that the conduct and
behavior of everyone connected with an office charged with the
dispensation of justice, from the presiding judge to the lowliest clerk,
should be circumscribed with the heavy burden of responsibility. His
conduct, at all times, must not only be characterized by propriety and
decorum but, above all else, must be beyond suspicion. Every

employee should be an example of integrity, uprightness and


honesty. 5 Integrity in a judicial office is more than a virtue, it is a
necessity. 6 It applies, without qualification as to rank or position, from
the judge to the least of its personnel, they being standard-bearers of
the exacting norms of ethics and morality imposed upon a Court of
justice.
On the charge regarding illegal marriages the Family Code pertinently
provides that the formal requisites of marriage are, inter alia, a valid
marriage
license
except
in
the
cases
provided
for
therein. 7 Complementarily, it declares that the absence of any of the
essential or formal requisites shall generally render the marriage
void ab initio and that, while an irregularity in the formal requisites shall
not affect the validity of the marriage, the party or parties responsible
for the irregularity shall be civilly, criminally and administratively liable. 8
The civil aspect is addressed to the contracting parties and those
affected by the illegal marriages, and what we are providing for herein
pertains to the administrative liability of respondents, all without
prejudice to their criminal responsibility. The Revised Penal Code
provides that "(p)riests or ministers of any religious denomination or
sect, or civil authorities who shall perform or authorize any illegal
marriage ceremony shall be punished in accordance with the provisions
of the Marriage Law." 9 This is of course, within the province of the
prosecutorial agencies of the Government.
The recommendation with respect to the administrative sanction to be
imposed on respondent judge should, therefore, be modified. For one,
with respect to the charge of illegal solemnization of marriages, it does
appear that he had not taken to heart, but actually trifled with, the law's
concern for the institution of marriage and the legal effects flowing from
civil status. This, and his undeniable participation in the other offenses
charged as hereinbefore narrated in detail, approximate such serious
degree of misconduct and of gross negligence in the performance of
judicial duties as to ineludibly require a higher penalty.

WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on


respondent Judge Lucio P. Palaypayon. Jr., with a stern warning that
any repetition of the same or similar offenses in the future will definitely
be severely dealt with. Respondent Nelia Esmeralda-Baroy is hereby
DISMISSED from the service, with forfeiture of all retirement benefits
and with prejudice to employment in any branch, agency or
instrumentality of the Government, including government-owned or
controlled corporations.
Let copies of this decision be spread on their records and furnished to
the Office of the Ombudsman for appropriate action.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur. Cruz, J., took no part. Bidin, J., is on leave.
A.M. No. MTJ-96-1088 July 19, 1996
RODOLFO G. NAVARRO, complainant,

First, on September 27, 1994, respondent judge solemnized the


wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the
knowledge that the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between
Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's
jurisdiction on October 27, 1994. Respondent judge holds office and
has jurisdiction in the Municipal Circuit Trial Court of Sta. MonicaBurgos, Surigao del Norte. The wedding was solemnized at the
respondent judge's residence in the municipality of Dapa, which does
not fall within his jurisdictional area of the municipalities of Sta. Monica
and Burgos, located some 40 to 45 kilometers away from the
municipality of Dapa, Surigao del Norte.
In his letter-comment to the office of the Court Administrator,
respondent judge avers that the office and name of the Municipal
Mayor of Dapa have been used by someone else, who, as the mayor's
"lackey," is overly concerned with his actuations both as judge and as a
private person. The same person had earlier filed Administrative Matter
No 94-980-MTC, which was dismissed for lack of merit on September
15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio
Adapon v. Judge Hernando C. Domagtoy," which is still pending.

vs.
JUDGE HERNANDO C. DOMAGTOY, respondent.
ROMERO, J.:p
The complainant in this administrative case is the Municipal Mayor of
Dapa, Surigao del Norte, Rodolfo G. Navarro. He has submitted
evidence in relation to two specific acts committed by respondent
Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he
contends, exhibits gross misconduct as well as inefficiency in office and
ignorance of the law.

In relation to the charges against him, respondent judge seeks


exculpation from his act of having solemnized the marriage between
Gaspar Tagadan, a married man separated from his wife, and Arlyn F.
Borga by stating that he merely relied on the Affidavit issued by the
Municipal Trial Judge of Basey, Samar, confirming the fact that Mr.
Tagadan and his first wife have not seen each other for almost seven
years. 1 With respect to the second charge, he maintains that in
solemnizing the marriage between Sumaylo and del Rosario, he did not
violate Article 7, paragraph 1 of the Family Code which states that:
"Marriage may be solemnized by: (1) Any incumbent member of the
judiciary within the court's jurisdiction;" and that article 8 thereof applies
to the case in question.

The complaint was not referred, as is usual, for investigation, since the
pleadings submitted were considered sufficient for a resolution of the
case. 2

where there is danger of death under the circumstances set forth in the
provisions of Articles 391 of the Civil Code, an absence of only two
years shall be sufficient.

Since the countercharges of sinister motives and fraud on the part of


complainant have not been sufficiently proven, they will not be dwelt
upon. The acts complained of and respondent judge's answer thereto
will suffice and can be objectively assessed by themselves to prove the
latter's malfeasance.

For the purpose of contracting the subsequent marriage under the


preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance
of the absent spouse. (Emphasis added.)

The certified true copy of the marriage contract between Gaspar


Tagadan and Arlyn Borga states that Tagadan's civil status is
"separated." Despite this declaration, the wedding ceremony was
solemnized by respondent judge. He presented in evidence a joint
affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed
and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial
Judge of Basey, Samar. 3 The affidavit was not issued by the latter
judge, as claimed by respondent judge, but merely acknowledged
before him. In their affidavit, the affiants stated that they knew Gaspar
Tagadan to have been civilly married to Ida D. Pearanda in September
1983; that after thirteen years of cohabitation and having borne five
children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon
and that she has not returned nor been heard of for almost seven
years, thereby giving rise to the presumption that she is already dead.

There is nothing ambiguous or difficult to comprehend in this provision.


In fact, the law is clear and simple. Even if the spouse present has a
well-founded belief that the absent spouse was already dead, a
summary proceeding for the declaration of presumptive death is
necessary in order to contract a subsequent marriage, a mandatory
requirement which has been precisely incorporated into the Family
Code to discourage subsequent marriages where it is not proven that
the previous marriage has been dissolved or a missing spouse is
factually or presumptively dead, in accordance with pertinent provisions
of law.

In effect, Judge Domagtoy maintains that the aforementioned joint


affidavit is sufficient proof of Ida Pearanda's presumptive death, and
ample reason for him to proceed with the marriage ceremony. We do
not agree.

In the case at bar, Gaspar Tagadan did not institute a summary


proceeding for the declaration of his first wife's presumptive death.
Absent this judicial declaration, he remains married to Ida Pearanda.
Whether wittingly or unwittingly, it was manifest error on the part of
respondent judge to have accepted the joint affidavit submitted by the
groom. Such neglect or ignorance of the law has resulted in a
bigamous, and therefore void, marriage. Under Article 35 of the Family
Code, " The following marriage shall be void from the beginning: (4)
Those bigamous . . . marriages not falling under Article 41."

Article 41 of the Family Code expressly provides:


A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the celebration
of the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief
that the absent spouse was already dead. In case of disappearance

The second issue involves the solemnization of a marriage ceremony


outside the court's jurisdiction, covered by Articles 7 and 8 of the Family
Code, thus:
Art. 7. Marriage may be solemnized by :

(1) Any incumbent member of the judiciary within the court's


jurisdiction;
xxx xxx xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers the
judge or in open court, in the church, chapel or temple, or in the office
of the consul-general, consul or vice-consul, as the case may be, and
not elsewhere, except in cases of marriages contracted on the point of
death or in remote places in accordance with Article 29 of this Code, or
where both parties request the solemnizing officer in writing in which
case the marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect.
Respondent judge points to Article 8 and its exceptions as the
justification for his having solemnized the marriage between Floriano
Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As
the aforequoted provision states, a marriage can be held outside of the
judge's chambers or courtroom only in the following instances: (1) at
the point of death, (2) in remote places in accordance with Article 29 or
(3) upon request of both parties in writing in a sworn statement to this
effect. There is no pretense that either Sumaylo or del Rosario was at
the point of death or in the remote place. Moreover, the written request
presented addressed to the respondent judge was made by only one
party, Gemma del Rosario. 4
More importantly, the elementary principle underlying this provision is
the authority of the solemnizing judge. Under Article 3, one of the
formal requisites of marriage is the "authority of the solemnizing
officer." Under Article 7, marriage may be solemnized by, among
others, "any incumbent member of the judiciary within the court's
jurisdiction." Article 8, which is a directory provision, refers only to the
venue of the marriage ceremony and does not alter or qualify the
authority of the solemnizing officer as provided in the preceding
provision. Non-compliance herewith will not invalidate the marriage.

A priest who is commissioned and allowed by his local ordinary to


marry the faithful, is authorized to do so only within the area of the
diocese or place allowed by his Bishop. An appellate court Justice or a
Justice of this Court has jurisdiction over the entire Philippines to
solemnize marriages, regardless of the venue, as long as the requisites
of the law are complied with. However, judges who are appointed to
specific jurisdictions, may officiate in weddings only within said areas
and not beyond. Where a judge solemnizes a marriage outside his
court's jurisdiction, there is a resultant irregularity in the formal requisite
laid down in Article 3, which while it may not affect the validity of the
marriage, may subject the officiating official to administrative liability. 5
Inasmuch as respondent judge's jurisdiction covers the municipalities of
Sta. Monica and Burgos, he was not clothed with authority to solemnize
a marriage in the municipality of Dapa, Surigao del Norte. By citing
Article 8 and the exceptions therein as grounds for the exercise of his
misplaced authority, respondent judge again demonstrated a lack of
understanding of the basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross
ignorance of the law. The legal principles applicable in the cases
brought to our attention are elementary and uncomplicated, prompting
us to conclude that respondent's failure to apply them is due to a lack
of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at
least, proficient in the law they are sworn to apply, more than the
ordinary laymen. They should be skilled and competent in
understanding and applying the law. It is imperative that they be
conversant with basic legal principles like the ones involved in instant
case. 6 It is not too much to expect them to know and apply the law
intelligently. 7 Otherwise, the system of justice rests on a shaky
foundation indeed, compounded by the errors committed by those not
learned in the law. While magistrates may at times make mistakes in
judgment, for which they are not penalized, the respondent judge
exhibited ignorance of elementary provisions of law, in an area which
has greatly prejudiced the status of married persons.

The marriage between Gaspar Tagadan and Arlyn Borga is considered


bigamous and void, there being a subsisting marriage between Gaspar
Tagadan and Ida Pearanda.
The Office of the Court Administrator recommends, in its Memorandum
to the Court, a six-month suspension and a stern warning that a
repetition of the same or similar acts will be dealt with more severely.
Considering that one of the marriages in question resulted in a
bigamous union and therefore void, and the other lacked the necessary
authority of respondent judge, the Court adopts said recommendation.
Respondent is advised to be more circumspect in applying the law and
to cultivate a deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C.
Domagtoy is hereby SUSPENDED for a period of six (6) months and
given a STERN WARNING that a repetition of the same or similar acts
will be dealt with more severely.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.
G.R. No. 108763 February 13, 1997
REPUBLIC OF THE PHILIPPINES,
vs.
COURT OF APPEALS and RORIDEL OLAVIANO
MOLINA, respondents.
PANGANIBAN, J.:
The Family Code of the Philippines provides an entirely new ground (in
addition to those enumerated in the Civil Code) to assail the validity of
a marriage, namely, "psychological incapacity." Since the Code's
effectivity, our courts have been swamped with various petitions to
declare marriages void based on this ground. Although this Court had
interpreted the meaning of psychological incapacity in the recent case
of Santos vs. Court of Appeals, still many judges and lawyers find
difficulty in applying said novel provision in specific cases. In the

present case and in the context of the herein assailed Decision of the
Court of Appeals, the Solicitor General has labelled exaggerated to
be sure but nonetheless expressive of his frustration Article 36 as
the "most liberal divorce procedure in the world." Hence, this Court in
addition to resolving the present case, finds the need to lay down
specific guidelines in the interpretation and application of Article 36 of
the Family Code.
Before us is a petition for review on certiorari under Rule 45 challenging
the January 25, 1993 Decision 1of the Court of Appeals 2 in CA-G.R. CV
No. 34858 affirming in toto the May 14, 1991 decision of the Regional
Trial Court of La Trinidad, 3 Benguet, which declared the marriage of
respondent Roridel Olaviano Molina to Reynaldo Molina void ab
initio, on the ground of "psychological incapacity" under Article 36 of the
Family Code.
The Facts
This case was commenced on August 16, 1990 with the filing by
respondent Roridel O. Molina of a verified petition for declaration of
nullity of her marriage to Reynaldo Molina. Essentially, the petition
alleged that Roridel and Reynaldo were married on April 14, 1985 at
the San Agustin Church 4 in Manila; that a son, Andre O. Molina was
born; that after a year of marriage, Reynaldo showed signs of
"immaturity and irresponsibility" as a husband and a father since he
preferred to spend more time with his peers and friends on whom he
squandered his money; that he depended on his parents for aid and
assistance, and was never honest with his wife in regard to their
finances, resulting in frequent quarrels between them; that sometime in
February 1986, Reynaldo was relieved of his job in Manila, and since
then Roridel had been the sole breadwinner of the family; that in
October 1986 the couple had a very intense quarrel, as a result of
which their relationship was estranged; that in March 1987, Roridel
resigned from her job in Manila and went to live with her parents in
Baguio City; that a few weeks later, Reynaldo left Roridel and their
child, and had since then abandoned them; that Reynaldo had thus
shown that he was psychologically incapable of complying with

essential marital obligations and was a highly immature and habitually


quarrel some individual who thought of himself as a king to be served;
and that it would be to the couple's best interest to have their marriage
declared null and void in order to free them from what appeared to be
an incompatible marriage from the start.
In his Answer filed on August 28, 1989, Reynaldo admitted that he and
Roridel could no longer live together as husband and wife, but
contended that their misunderstandings and frequent quarrels were due
to (1) Roridel's strange behavior of insisting on maintaining her group of
friends even after their marriage; (2) Roridel's refusal to perform some
of her marital duties such as cooking meals; and (3) Roridel's failure to
run the household and handle their finances.

Evidence for herein respondent wife consisted of her own testimony


and that of her friends Rosemarie Ventura and Maria Leonora Padilla
as well as of Ruth G. Lalas, a social worker, and of Dr. Teresita
Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and
Medical Center. She also submitted documents marked as Exhibits "A"
to "E-1." Reynaldo did not present any evidence as he appeared only
during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring the
marriage void. The appeal of petitioner was denied by the Court of
Appeals which affirmed in toto the RTC's decision. Hence, the present
recourse.
The Issue

During the pre-trial on October 17, 1990, the following were stipulated:
1. That the parties herein were legally married on April 14, 1985 at the
Church of St. Augustine, Manila;
2. That out of their marriage, a child named Albert Andre Olaviano
Molina was born on July 29, 1986;

In his petition, the Solicitor General insists that "the Court of Appeals
made an erroneous and incorrect interpretation of the phrase
'psychological incapacity' (as provided under Art. 36 of the Family
Code) and made an incorrect application thereof to the facts of the
case," adding that the appealed Decision tended "to establish in effect
the most liberal divorce procedure in the world which is anathema to
our culture."

3. That the parties are separated-in-fact for more than three years;
4. That petitioner is not asking support for her and her child;
5. That the respondent is not asking for damages;
6. That the common child of the parties is in the custody of the
petitioner wife.

In denying the Solicitor General's appeal, the respondent Court


relied 5 heavily on the trial court's findings "that the marriage between
the parties broke up because of their opposing and conflicting
personalities." Then, it added it sown opinion that "the Civil Code
Revision Committee (hereinafter referred to as Committee) intended to
liberalize the application of our civil laws on personal and family rights. .
. ." It concluded that:
As ground for annulment of marriage, We view psychologically
incapacity as a broad range of mental and behavioral conduct on the
part of one spouse indicative of how he or she regards the marital
union, his or her personal relationship with the other spouse, as well as
his or her conduct in the long haul for the attainment of the principal
objectives of marriage. If said conduct, observed and considered as a

whole, tends to cause the union to self-destruct because it defeats the


very objectives of marriage, then there is enough reason to leave the
spouses to their individual fates.
In the case at bar, We find that the trial judge committed no indiscretion
in analyzing and deciding the instant case, as it did, hence, We find no
cogent reason to disturb the findings and conclusions thus made.
Respondent, in her Memorandum, adopts these discussions of the
Court of Appeals.
The petitioner, on the other hand, argues that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, explaining
that such ground "is not simply the neglect by the parties to the
marriage of their responsibilities and duties, but a defect in their
psychological nature which renders them incapable of performing such
marital responsibilities and duties."

us to be more of a "difficulty," if not outright "refusal" or "neglect" in the


performance of some marital obligations. Mere showing of
"irreconciliable differences" and "conflicting personalities" in no wise
constitutes psychological incapacity. It is not enough to prove that the
parties failed to meet their responsibilities and duties as married
persons; it is essential that they must be shown to be incapable of
doing so, due to some psychological (nor physical) illness.
The evidence adduced by respondent merely showed that she and her
husband could nor get along with each other. There had been no
showing of the gravity of the problem; neither its juridical antecedence
nor its incurability. The expert testimony of Dr. Sison showed no
incurable psychiatric disorder but only incompatibility, not psychological
incapacity. Dr. Sison testified: 8
COURT

The Court's Ruling

Q It is therefore the recommendation of the psychiatrist based on your


findings that it is better for the Court to annul (sic) the marriage?

The petition is meritorious.

A Yes, Your Honor.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr.
Justice Jose C. Vitug, ruled that "psychological incapacity should refer
to no less than a mental (nor physical) incapacity . . . and that (t)here is
hardly any doubt that the intendment of the law has been to confine the
meaning of 'psychological incapacity' to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage. This
psychologic condition must exist at the time the marriage is celebrated."
Citing Dr. Gerardo Veloso, a former presiding judge of the Metropolitan
Marriage Tribunal of the Catholic Archdiocese of Manila, 7 Justice Vitug
wrote that "the psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability."

Q There is no hope for the marriage?


A There is no hope, the man is also living with another woman.
Q Is it also the stand of the psychiatrist that the parties are
psychologically unfit for each other but they are psychologically fit with
other parties?
A Yes, Your Honor.
Q Neither are they psychologically unfit for their professions?
A Yes, Your Honor.

On the other hand, in the present case, there is no clear showing to us


that the psychological defect spoken of is an incapacity. It appears to

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged


personality traits were constitutive of psychological incapacity existing
at the time of marriage celebration. While some effort was made to
prove that there was a failure to fulfill pre-nuptial impressions of
"thoughtfulness and gentleness" on Reynaldo's part of being
"conservative, homely and intelligent" on the part of Roridel, such
failure of expectation is nor indicative of antecedent psychological
incapacity. If at all, it merely shows love's temporary blindness to the
faults and blemishes of the beloved.
During its deliberations, the Court decided to go beyond merely ruling
on the facts of this case vis-a-visexisting law and jurisprudence. In view
of the novelty of Art. 36 of the Family Code and the difficulty
experienced by many trial courts interpreting and applying it, the Court
decided to invite two amici curiae, namely, the Most Reverend Oscar V.
Cruz, 9 Vicar Judicial (Presiding Judge) of the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines, and
Justice Ricardo C. Puno, 10 a member of the Family Code Revision
Committee. The Court takes this occasion to thank these friends of the
Court for their informative and interesting discussions during the oral
argument on December 3, 1996, which they followed up with written
memoranda.
From their submissions and the Court's own deliberations, the following
guidelines in the interpretation and application of Art. 36 of the Family
Code are hereby handed down for the guidance of the bench and the
bar:
(1) The burden of proof to show the nullity of the marriage belongs to
the plaintiff. Any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and nullity. This
is rooted in the fact that both our Constitution and our laws cherish the
validity of marriage and unity of the family. Thus, our Constitution
devotes an entire Article on the Family, 11 recognizing it "as the
foundation of the nation." It decrees marriage as legally "inviolable,"
thereby protecting it from dissolution at the whim of the parties. Both
the family and marriage are to be "protected" by the state.

The Family Code 12 echoes this constitutional edict on marriage and the
family and emphasizes the permanence, inviolability and solidarity
(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the incapacity must be
psychological not physical. although its manifestations and/or
symptoms may be physical. The evidence must convince the court that
the parties, or one of them, was mentally or physically ill to such an
extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so
as not to limit the application of the provision under the principle
of ejusdem generis, 13 nevertheless such root cause must be identified
as a psychological illness and its incapacitating nature explained.
Expert evidence may be given qualified psychiatrist and clinical
psychologists.
(3) The incapacity must be proven to be existing at "the time of the
celebration" of the marriage. The evidence must show that the illness
was existing when the parties exchanged their "I do's." The
manifestation of the illness need not be perceivable at such time, but
the illness itself must have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. Such incurability may be absolute or even
relative only in regard to the other spouse, not necessarily absolutely
against everyone of the same sex. Furthermore, such incapacity must
be relevant to the assumption of marriage obligations, not necessarily
to those not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them
but may not be psychologically capacitated to procreate, bear and raise
his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of
the party to assume the essential obligations of marriage. Thus, "mild
characteriological peculiarities, mood changes, occasional emotional
outbursts" cannot be accepted as root causes. The illness must be
shown as downright incapacity or inability, nor a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person
from really accepting and thereby complying with the obligations
essential to marriage.
(6) The essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal
of the Catholic Church in the Philippines, while not controlling or
decisive, should be given great respect by our courts. It is clear that
Article 36 was taken by the Family Code Revision Committee from
Canon 1095 of the New Code of Canon Law, which became effective in
1983 and which provides:
The following are incapable of contracting marriage: Those who are
unable to assume the essential obligations of marriage due to causes
of psychological nature. 14
Since the purpose of including such provision in our Family Code is to
harmonize our civil laws with the religious faith of our people, it stands
to reason that to achieve such harmonization, great persuasive weight
should be given to decision of such appellate tribunal. Ideally subject
to our law on evidence what is decreed as canonically invalid should
also be decreed civilly void.

This is one instance where, in view of the evident source and purpose
of the Family Code provision, contemporaneous religious interpretation
is to be given persuasive effect. Here, the State and the Church
while remaining independent, separate and apart from each other
shall walk together in synodal cadence towards the same goal of
protecting and cherishing marriage and the family as the inviolable
base of the nation.
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall
he handed down unless the Solicitor General issues a certification,
which will be quoted in the decision, briefly staring therein his reasons
for his agreement or opposition, as the case may be, to the petition.
The Solicitor General, along with the prosecuting attorney, shall submit
to the court such certification within fifteen (15) days from the date the
case is deemed submitted for resolution of the court. The Solicitor
General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.
In the instant case and applying Leouel Santos, we have already ruled
to grant the petition. Such ruling becomes even more cogent with the
use of the foregoing guidelines.
WHEREFORE, the petition is GRANTED. The assailed Decision is
REVERSED and SET ASIDE. The marriage of Roridel Olaviano to
Reynaldo Molina subsists and remains valid.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Bellosillo, Melo,
Hermosisima, Jr., and Torres, Jr., JJ., concur.

Puno

Regalado, Kapunan and Mendoza, JJ., concurs in the result.


Separate Opinions
PADILLA, J., concuring opinion:

Francisco,

I concur in the result of the decision penned by Mr. Justice Panganiban


but only because of the peculiar facts of the case. As to whether or not
the psychological incapacity exists in a given case calling for annulment
of a marriage, depends crucially, more than in any field of the law, on
the facts of the case. InLeouel Santos v. Court of Appeals and Julia
Rosario-Bedia Santos, G.R. No. 112019, 4 January 1995, 240 SCRA
20-36, I maintained, and I still maintain, that there was psychological
incapacity on the part of the wife to discharge the duties of a wife in a
valid marriage. The facts of the present case, after an indepth study, do
not support a similar conclusion. Obviously, each case must be judged,
not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In the field of
psychological incapacity as a ground for annulment of marriage, it is
trite to say that no case is on "all fours" with another case. The trial
judge must take pains in examining the actual millieu and the appellate
court must, as much as possible, avoid substituting its own judgment
for that of the trial court.

I would add that neither should the incapacity be the result of mental
illness. For if it were due to insanity or defects in the mental faculties
short of insanity, there is a resultant defect of vice of consent, thus
rendering the marriage annulable under Art. 45 of the Family Code.
That the intent of the members of the U.P. Law Center's Civil Code
Revision Committee was to excludemental inability to understand the
essential nature of marriage and focus strictly on psychological
incapacity is demonstrated in the way the provision in question
underwent revisions.
At the Committee meeting of July 26, 1986, the draft provision read:
(7) Those marriages contracted by any party who, at the time of the
celebration, was wanting in the sufficient use of reason or judgment to
understand the essential nature of marriage or was psychologically or
mentally incapacitated to discharge the essential marital obligations,
even if such lack of incapacity is made manifest after the celebration.

ROMERO, J., separate opinion:


The majority opinion, overturning that of the Court of Appeals which
affirmed the Regional Trial Court ruling. upheld petitioner Solicitor
General's position that "opposing and conflicting personalities" is not
equivalent to psychological incapacity, for the latter "is not simply
the neglect by the parties to the marriage of their responsibilities and
duties, but a defect in their Psychological nature which renders them
incapable of performing such marital responsibilities and duties.
In the present case, the alleged personality traits of Reynaldo, the
husband, did not constitute so much "psychological incapacity" as a
"difficulty," if not outright "refusal" or "neglect" in the performance of
some marital obligations. "It is not enough to prove that the parties
failed to meet their responsibilities and duties as married persons; it is
essential that they must be shown to be incapable of doing so, due to
some psychological (not physical) illness."

The twists and turns which the ensuing discussion took finally produced
the following revised provision even before the session was over:
(7) That contracted by any party who, at the time of the celebration,
was psychologically incapacitated to discharge the essential marital
obligations, even if such lack or incapacity becomes manifest after the
celebration.
Noticeably, the immediately preceding formulation above has dropped
any reference to "wanting in the sufficient use of reason or judgment to
understand the essential nature or marriage" and to "mentally
incapacitated." It was explained that these phrases refer to "defects in
the mental faculties vitiating consent, which is not the idea . . . but lack
of appreciation of one's marital obligation." There being a defect in
consent, "it is clear that it should be a ground for voidable marriage
because there is the appearance of consent and it is capable of
convalidation for the simple reason that there are lucid intervals and
there are sanity is curable. . . . Psychological incapacity does not refer

to mental faculties and has nothing to do with consent; it refers to


obligations
attendant
to
marriage." 1

2. reasons of public policy;

My own position as a member of the Committee then was that


psychological incapacity is, in a sense, insanity of a lesser degree.

The ground of psychological incapacity was subsumed under "special


cases and special situations," hence its special treatment in Art. 36 in
the Family Code as finally enacted.

As to the proposal of Justice Caguioa to use the term "psychological or


mental impotence," Archbishop Oscar Cruz opined in he earlier
February 9, 1984 session that this term "is an invention of some
churchmen who are moralists but not canonists, that is why it is
considered a weak phrase." He said that the Code of Canon Law would
rather express it as "psychological or mental incapacity to
discharge. . . ." Justice Ricardo C. Puno opined that sometimes a
person may be psychologically impotent with one but not with another.
One of the guidelines enumerated in the majority opinion for the
interpretation and application of Art. 36 is: "Such incapacity must also
be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex."
The Committee, through Prof. Araceli T. Barrera, considered the
inclusion of the phrase" and is incurable" but Prof. Esteban B. Bautista
commented that this would give rise to the question of how they will
determine curability and Justice Caguioa agreed that it would be more
problematic. Yet the possibility that one may be cured after the
psychological incapacity becomes manifest after the marriage was not
ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to
remarry.
For clarity, the Committee classified the bases for determining void
marriages, viz:
1. lack of one or more of the essential requisites of marriage as
contract;

3. special cases and special situations.

Nowhere in the Civil Code provisions on Marriage is there a ground for


avoiding or annulling marriages that even comes close to being
psychological in nature.
Where consent is vitiated due to circumstances existing at the time of
the marriage, such marriage which stands valid until annulled is
capable of ratification or convalidation.
On the other hand, for reasons of public policy or lack of essential
requisites, some marriages are void from the beginning.
With the revision of Book I of the Civil Code, particularly the provisions
on Marriage, the drafters, now open to fresh winds of change in
keeping with the more permissive mores and practices of the time, took
a leaf from the relatively liberal provisions of Canon Law.
Canon 1095 which states, inter alia, that the following persons are
incapable of contracting marriage: "3. (those) who, because of causes
of a psychological nature, are unable to assume the essential
obligations of marriage" provided the model for what is now Art. 36 of
the Family Code: "A marriage contracted by any party who, at the time
of the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.
It bears stressing that unlike in Civil Law, Canon Law recognizes only
two types of marriages with respect to their validity: valid and void. Civil
Law, however, recognizes an intermediate state, the voidable or
annullable marriages. When the Ecclesiastical Tribunal "annuls" a

marriage, it actually declares the marriage null and void, i.e., it never
really existed in the first place, for a valid sacramental marriage can
never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by
the formal annulment process which entails a full tribunal procedure
with a Court selection and a formal hearing.
Such so-called church "annulments" are not recognized by Civil Law as
severing the marriage ties as to capacitate the parties to enter lawfully
into another marriage. The grounds for nullifying civil marriage, not
being congruent with those laid down by Canon Law, the former being
more strict, quite a number of married couples have found themselves
in limbo freed from the marriage bonds in the eyes of the Catholic
Church but yet unable to contract a valid civil marriage under state
laws. Heedless of civil law sanctions, some persons contract new
marriages or enter into live-in relationships.
It was precisely to provide a satisfactory solution to such anomalous
situations that the Civil Law Revision Committee decided to engraft the
Canon Law concept of psychological incapacity into the Family Code
and classified the same as a ground for declaring marriages void ab
initio or totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code,
while it did not provide directly for psychological incapacity, in effect
recognized the same indirectly from a combination of three old canons:
"Canon #1081 required persons to 'be capable according to law' in
order to give valid consent; Canon #1082 required that persons 'be at
least not ignorant' of the major elements required in marriage; and
Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of
interpretation produced two distinct but related grounds for annulment,
called 'lack of due discretion' and 'lack of due competence.' Lack of due
discretion means that the person did not have the ability to give valid
consent at the time of the wedding and therefore the union is invalid.
Lack of due competence means that the person was incapable of
carrying out the obligations of the promise he or she made during the
wedding ceremony.
"Favorable annulment decisions by the Roman Rota in the 1950s and
1960s involving sexual disorders such as homosexuality and
nymphomania laid the foundation for a broader approach to the kind of
proof necessary for psychological grounds for annulment. The Rota
had reasoned for the first time in several cases that the capacity to give
valid consent at the time of marriage was probably not present in
persons who had displayed such problems shortly after the marriage.
The nature of this change was nothing short of revolutionary. Once the
Rota itself had demonstrated a cautious willingness to use this kind of
hindsight, the way was paved for what came after 1970. Diocesan
Tribunals began to accept proof of serious psychological problems that
manifested themselves shortly after the ceremony as proof of an
inability to give valid consent at the time of the ceremony.
Furthermore, and equally significant, the professional opinion of a
psychological expert became increasingly important in such
cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to
give professional opinions about a party's mental at the time of the
wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area
did not amount to the addition of new grounds for annulment, but rather
was an accommodation by the Church to the advances made in
psychology during the past decades. There was now the expertise to
provide the all-important connecting link between a marriage
breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage
from that of a legal contract to that of a covenant. The result of this was
that it could no longer be assumed in annulment cases that a person
who could intellectually understand the concept of marriage could
necessarily give valid consent to marry. The ability to both grasp and
assume the real obligations of a mature, lifelong commitment are now
considered a necessary prerequisite to valid matrimonial consent. 2
Rotal decisions continued applying the concept of incipient
psychological incapacity, "not only to sexual anomalies but to all kinds
of personality disorders that incapacitate a spouse or both spouses
from assuming or carrying out the essential obligations of marriage. For
marriage . . . is not merely cohabitation or the right of the spouses to
each others' body for heterosexual acts, but is, in its totality, the right to
the community of the whole of life, i.e., the right to a developing.
lifelong relationship. Rotal decisions since 1973 have refined the
meaning of psychological or psychic capacity for marriage as
presupposing the development of an adult personality; as meaning the
capacity of the spouses to give themselves to each other and to accept
the other as a distinct person; that the spouses must be 'other oriented'
since the obligations of marriage are rooted in a self-giving love; and
that the spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality but
involves a true intertwining of personalities. The fulfillment of the
obligations of marriage depends. according to Church decisions, on the
strength of this interpersonal relationship. A serious incapacity for
interpersonal sharing and support is held to impair the relationship and
consequently, the ability to fulfill the essential marital obligations. The
marital capacity of one spouse is not considered in isolation but in
reference to the fundamental relationship to the other spouse. 3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to


the mature marital relationship:
The courts consider the following elements crucial to the marital
commitment: (1) a permanent and faithful commitment to the marriage
partner; (2) openness to children and partner; (3) stability; (4) emotional
maturity; (5) financial responsibility; (6) an ability to cope with the
ordinary stresses and strains of marriage, etc.
Fr. Green goes on to speak about some of the psychological conditions
that might lead to the failure of a marriage:
At stake is a type of constitutional impairment precluding conjugal
communion even with the best intentions of the parties. Among the
psychic factors possibly giving rise to his or her inability to fulfill marital
obligations are the following: (1) antisocial personality with its
fundamental lack of loyalty to persons or sense of moral values; (2)
hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses
consistently fallshort of reasonable expectations.
xxx xxx xxx
The psychological grounds are the best approach for anyone who
doubts whether he or she has a case for an annulment on any other
terms. A situation that does not fit into any of the more traditional
categories often fits very easily into the psychological category.
As new as the psychological grounds are, experts are already detecting
a shift in their use. Whereas originally the emphasis was on the parties'
inability to exercise proper judgment at the time of the marriage (lack of
due discretion), recent cases seem to be concentrating on the parties'
to assume or carry out their responsibilities an obligations as
promised (lack of due competence). An advantage to using the ground
of lack of due competence is that the at the time the marriage was
entered into civil divorce and breakup of the family almost is of

someone's failure out marital responsibilities as promised at the time


the marriage was entered into. 4
In the instant case, "opposing and conflicting personalities" of the
spouses were not considered equivalent to psychological incapacity. As
well in Santos v. Court of Appeals cited in the ponencia, the Court held
that the failure of the wife to return home from the U.S. or to
communicate with her husband for more then five years is not proof of
her psychological incapacity as to render the marriage a
nullity. 5Therefore, Art. 36 is inapplicable and the marriages remain valid
and subsisting.

This Court, finding the gravity of the failed relationship in which the
parties found themselves trapped in its mire of unfulfilled vows and
unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.
1 concur with the majority opinion that the herein marriage remains
valid and subsisting absent psychological incapacity (under Art. 36 of
the Family Code) on the part of either or both of the spouses.

VITUG, J., concurring:


However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this
Court upheld both the Regional Trial Court and the Court of Appeals in
declaring the presence of psychological incapacity on the part of the
husband. Said petitioner husband, after ten (10) months' sleeping with
his wife never had coitus with her, a fact he did not deny but he alleged
that it was due to the physical disorder of his wife which, however, he
failed to prove. Goaded by the indifference and stubborn refusal of her
husband to fulfill a basic marital obligation described as "to procreate
children based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage," the wife
brought the action in the lower court to declare the marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila
(Branch I) on Psychological incapacity concluded:
If a spouse, although physically capable but simply refuses to perform
his or her essential marriage obligations, and the refusal is senseless
and constant, Catholic marriage tribunals attribute the causes to
psychological incapacity than to stubborn refusal. Senseless and
protracted refusal is equivalent to psychological incapacity. Thus, the
prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.
We declared:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V.


Panganiban in his ponencia, and I find to be most helpful the guidelines
that he prepared for the bench and the bar in the proper appreciation of
Article 36 of Executive Order No. 209 ("The Family Code of the
Philippines"). The term "psychological incapacity" was neither defined
nor exemplified by the Family Code. Thus
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.
The Revision Committee, constituted under the auspices of the U.P.
Law Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret the provision on a
case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church
tribunals which, although not binding on the civil courts, may be given
persuasive effect since the provision was taken from Canon Law. 1
Article 36 of the Family Code was concededly taken from Canon 1095
of the New Code of Canon Law

Canon 1095. (The following persons) are incapable of contracting


marriage; (those)
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of judgment concerning
essential matrimonial rights and duties, to be given and accepted
mutually;
3. who for causes of psychological nature are unable to assume the
essential obligations of marriage
that should give that much value to Canon Law jurisprudence as an aid
to the interpretation and construction of the statutory enactment. 2
The principles in the proper application of the law teach us that the
several provisions of a Code must be read like a congruent whole.
Thus, in determining the import of "psychological incapacity" under
Article 36, one must also read it along with, albeit to be taken as distinct
from, the other grounds enumerated in the Code, like Articles 35, 37, 38
and 41 that would likewise, but for distinct reasons, render the marriage
merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various
circumstances are not applied so indiscriminately as if the law were
indifferent on the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court of
Appeals; 3 viz:
(T)he use of the phrase "psychological incapacity" under Article 36 of
the Code has not been meant to comprehend all such possible cases
of psychoses as, likewise mentioned by some ecclesiastical authorities,
extremely low intelligence, immaturity, and like circumstances. . . Article
36 of the Family Code cannot be taken and construed independently of,
but must stand in conjunction with, existing precepts in our law on
marriage. Thus correlated, "psychological incapacity" should refer to no
less than a mental (not physical) incapacity that causes a party to be

truly incognitive of the basic marital covenants that concomitantly must


be assumed and discharged by the parties to the marriage which, as so
expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and
render help and support. There is hardly any doubt that the intendment
of the law has been to confine the meaning of "psychological
incapacity" to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability of the spouse to have
sexual relations with the other. This conclusion is implicit under Article
54 of the Family Code which considers children conceived prior to the
judicial declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage,
like the state of a party being of unsound mind or concealment of drug
addiction, habitual alcoholism, homosexuality or lesbianism, merely
renders the marriage contract voidable pursuant to Article 46, Family
Code. If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code.
These provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves, depending
on the degree and severity of the disorder, indicia of psychological
incapacity. 4
In fine, the term "psychological incapacity," to be a ground for then
nullity of marriage under Article 36 of the Family Code, must be able to
pass the following tests; viz:
First, the incapacity must be psychological or mental, not physical, in
nature;
Second, the psychological incapacity must relate to the inability, not
mere refusal, to understand, assume end discharge the basic marital
obligations of living together, observing love, respect and fidelity and
rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is
contracted although its overt manifestations and the marriage may
occur only thereafter; and
Fourth, the mental disorder must be grave or serious and incurable.
It may well be that the Family Code Revision Committee has
envisioned Article 36, as not a few observers would suspect, as another
form of absolute divorce or, as still others would also put it, to be a
alternative to divorce; however, the fact still remains that the language
of the law has failed to carry out, even if true, any such intendment. It
might have indeed turned out for the better, if it were otherwise, there
could be good reasons to doubt the constitutionality of the measure.
The fundamental law itself, no less, has laid down in terse language its
unequivocal command on how the State should regard marriage and
the family, thus
Section 2, Article XV:
Sec. 2. Marriage, as an inviolable social institution, is the foundation of
the family and shall be protected by the State.
Section 12, Article II:
Sec. 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution . . . .
Section 1, Article XV:
Sec. 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development. (The 1987 Constitution)
The case of Marcelino vs. Cruz, 121 SCRA 51, might here be
significant not so much for the specific issue there resolved but for the
tone it has set. The Court there has held that constitutional provisions

are to be considered mandatory unless by necessary implication, a


different intention is manifest such that to have them enforced strictly
would cause more harm than by disregarding them. It is quite clear to
me that the constitutional mandate on marriage and the family has not
been meant to be simply directory in character, nor for mere
expediency or convenience, but one that demands a meaningful, not
half-hearted, respect.
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 is valid according to the national law
of the foreigner. However, the divorce decree and the governing
personal 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 and the
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 Decision 1 and the March 24,
1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28,
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 remarry under
existing and applicable laws to any and/or both parties." 3

The assailed Order denied reconsideration of the above-quoted


Decision.
The Facts

On July 7, 1998 or about five years after the couple's wedding and
while the suit for the declaration of 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

Rederick A. Recio, a Filipino, was married to Editha Samson, an


Australian citizen, in Malabon, Rizal, on March 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.

Respondent prayed in his Answer that the Complained be dismissed on


the ground that it stated no cause of action. 14 The Office of the Solicitor
General agreed with respondent.15 The court marked and admitted the
documentary evidence of both parties. 16 After they submitted their
respective memoranda, the case was submitted for resolution.17

On June 26, 1992, respondent became an Australian citizen, as shown


by a "Certificate of Australian Citizenship" issued by the Australian
government.6 Petitioner a Filipina and respondent were married 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

Thereafter, the trial court rendered the assailed Decision and Order.

Starting October 22, 1995, petitioner and respondent lived separately


without prior judicial dissolution of 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

Ruling of the Trial Court


The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines.
It deemed the marriage ended, but not on the basis of any defect 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 Australian divorce had ended the
marriage; thus, there was no more martial union to nullify or annual.

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity


of Marriage10 in the court a quo, on the ground of bigamy respondent
allegedly had a prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of respondent's
marriage to Editha Samson only in November, 1997.

Hence, this Petition.18

In his Answer, respondent averred that, as far back as 1993, he had


revealed to petitioner his prior marriage andits subsequent
dissolution.11 He contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree obtained in
Australian in 1989;12 thus, he was legally capacitated to marry petitioner
in 1994.1wphi1.nt

"I

Issues
Petitioner submits the following issues for our consideration:

The trial court gravely erred in finding that the divorce decree obtained
in Australia by the respondent ipso facto terminated his first marriage to
Editha Samson thereby capacitating him to contract a second marriage
with the petitioner.
"2

The failure of the respondent, who is now a naturalized Australian, to


present a certificate of legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioner' marriage to the respondent.
"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 the Family Code as the applicable provisions
in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely
erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated 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 pivotal ones: (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 these two, there is no more necessity to take
up the rest.

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) the foreign law allowing absolute divorce and (2)
the alleged divorce decree itself. She adds that respondent miserably
failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the
Family Code, marriages solemnized abroad are governed by the law of
the place where they were celebrated (the lex loci celebrationist). In
effect, the Code requires the presentation of the foreign law to show the
conformity of 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 marriage between two
Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 1522 and 1723 of the Civil Code. 24 In mixed
marriages involving a Filipino and a foreigner, Article 26 25 of the Family
Code allows the former to contract a subsequent marriage in case the
divorce is "validly obtained abroad by the alien spouse capacitating him
or her to remarry."26 A divorce obtained abroad by a couple, who are
both aliens, may be recognized in the Philippines, provided it is
consistent with their respective national laws.27

First Issue:

A comparison between marriage and divorce, as far as pleading and


proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees
that "aliens may obtain divorces abroad, which may be recognized 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.

Proving the Divorce Between Respondent and Editha Samson

Divorce as a Question of Fact

The Court's Ruling


The Petition is partly meritorious.

Petitioner insists that before a divorce decree can be admitted in


evidence, it must first comply with the registration requirements under
Articles 11, 13 and 52 of the Family Code. These articles read as
follows:
"ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
xxx

xxx

xxx

"(5) If previously married, how, when and where the previous marriage
was dissolved or annulled;
xxx

xxx

xxx

"ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required 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 and distribution of the properties of the spouses,
and the delivery of the children's presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce
decree is a public document a written 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 evidentiary value, the document must first be
presented and admitted in evidence. 30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a

judgment is the judgment itself.31 The decree purports to be a written


act or record of an act of an officially body or tribunal of a foreign
country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public 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 the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept 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 by an Australian family court. 35 However,
appearance is not sufficient; compliance with the aforemetioned rules
on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May
18, 1989 was submitted in evidence, counsel for petitioner objected,
not to its admissibility, but only to the fact that it had not been registered
in the Local Civil Registry of Cabanatuan City.36 The trial court ruled
that it was admissible, subject to petitioner's qualification. 37Hence, it
was admitted in evidence and accorded weight by the judge. Indeed,
petitioner's failure to object properly rendered the divorce decree
admissible 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; respondent was 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 civil rights belonging to a citizen. 40 Naturalized
citizens, freed from the protective cloak of their former states, don the
attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance 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, because she is the party challenging the validity of
a foreign judgment. He contends that petitioner was satisfied 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 divorce law is allegedly known by
Philippine courts: thus, judges may take judicial notice of foreign laws in
the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who
alleges the existence of a fact or thing necessary in the prosecution or
defense of an action."41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are denied
by the answer; and defendants have the burden of proving the material
allegations in their answer when they introduce new matters. 42 Since
the divorce was a defense raised by respondent, the burden of proving
the pertinent 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 any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that
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 in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce,
respondent was legally incapacitated 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 a lawful union for a cause
arising after marriage. But divorces are of different types. The two basic
ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage,
while the second suspends it and leaves the bond in full force. 45 There
is no 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 judgment of divorce. It is in effect the same as
a separation from bed and board, although an absolute divorce may
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 from remarrying 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 other party has died) commits the
offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by
respondent may have been restricted. 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 Australian divorce ipso facto restored respondent's capacity to


remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a
disputable presumption or presumptive evidence as to his civil status
based on Section 48, Rule 3949 of the Rules of Court, for the simple
reason that no proof has been presented on the legal effects of the
divorce decree obtained under 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 the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient
to establish the legal capacity of respondent, had he duly presented it
in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for
a marriage license.50
As it is, however, there is absolutely no evidence that proves
respondent's legal capacity to marry petitioner. A review of the records
before this Court shows that only the following exhibits were presented
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 Between Rederick A. Recio (Filipino) and Editha D.
Samson (Australian) on March 1, 1987 in Malabon, Metro Manila; 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 in the 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 Australia Certificate;59 and Exhibit "5"
Statutory Declaration of the Legal Separation Between Rederick A.
Recto and Grace J. Garcia Recio since October 22, 1995.60
Based on the above records, we cannot conclude that respondent, who
was then a naturalized Australian citizen, was legally capacitated to
marry petitioner on January 12, 1994. We agree with petitioner's
contention that the court a quo erred in finding that the divorce decree
ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to
respondent 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 a direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case to the trial court to
receive evidence, if any, which show petitioner's legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of
the parties' marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, 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 REMAND the case to the court a quo for the purpose of
receiving evidence which conclusively show respondent's legal
capacity to marry petitioner; and failing in that, of declaring the parties'
marriage void on the ground of bigamy, as above discussed. No costs.
SO ORDERED.

Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.


G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch
CX, Regional Trial Court of the National Capital Region Pasay City
and RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van
Dorn seeks to set aside the Orders, dated September 15, 1983 and
August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge,
which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the
Philippines while private respondent is a citizen of the United States;
that they were married in Hongkong in 1972; that, after the marriage,
they established their residence in the Philippines; that they begot two
children born on April 4, 1973 and December 18, 1975, respectively;
that the parties were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time to Theodore Van
Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in
Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in
Pasay City, stating that petitioner's business in Ermita, Manila, (the
Galleon Shop, for short), is conjugal property of the parties, and asking
that petitioner be ordered to render an accounting of that business, and
that private respondent be declared with right to manage the conjugal
property. Petitioner moved to dismiss the case on the ground that the
cause of action is barred by previous judgment in the divorce
proceedings before the Nevada Court wherein respondent had
acknowledged that he and petitioner had "no community property" as of

June 11, 1982. The Court below denied the Motion to Dismiss in the
mentioned case on the ground that the property involved is located in
the Philippines so that the Divorce Decree has no bearing in the case.
The denial is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is
interlocutory and is not subject to appeal. certiorari and Prohibition are
neither the remedies to question the propriety of an interlocutory order
of the trial Court. However, when a grave abuse of discretion was
patently committed, or the lower Court acted capriciously and
whimsically, then it devolves upon this Court in a certiorari proceeding
to exercise its supervisory authority and to correct the error committed
which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition
would then lie since it would be useless and a waste of time to go
ahead with the proceedings. 2 Weconsider the petition filed in this case
within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their
alleged conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on
the alleged conjugal property because of the representation he made in
the divorce proceedings before the American Court that they had no
community of property; that the Galleon Shop was not established
through conjugal funds, and that respondent's claim is barred by prior
judgment.
For his part, respondent avers that the Divorce Decree issued by the
Nevada Court cannot prevail over the prohibitive laws of the Philippines
and its declared national policy; that the acts and declaration of a
foreign Court cannot, especially if the same is contrary to public policy,
divest Philippine Courts of jurisdiction to entertain matters within its
jurisdiction.
For the resolution of this case, it is not necessary to determine whether
the property relations between petitioner and private respondent, after
their marriage, were upon absolute or relative community property,

upon complete separation of property, or upon any other regime. The


pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained
jurisdiction over petitioner who appeared in person before the Court
during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San
Francisco, California, authorized his attorneys in the divorce case, Karp
& Gradt Ltd., to agree to the divorce on the ground of incompatibility in
the understanding that there were neither community property nor
community obligations. 3 As explicitly stated in the Power of Attorney he
executed in favor of the law firm of KARP & GRAD LTD., 336 W.
Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an
Answer, appear on my behalf and do an things necessary and proper to
represent me, without further contesting, subject to the following:

It is true that owing to the nationality principle embodied in Article 15 of


the Civil Code, 5 only Philippine nationals are covered by the policy
against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law. 6 In this case, the divorce
in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage.
As stated by the Federal Supreme Court of the United States in
Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of
matrimony by a court of competent jurisdiction are to change the
existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when thus severed as to
one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in
the nature of a penalty. that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the bond of the
former marriage.

1. That my spouse seeks a divorce on the ground of incompatibility.


2. That there is no community of property to be adjudicated by the
Court.
3. 'I'hat there are no community obligations to be adjudicated by the
court.

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 husband entitled to exercise control over conjugal
assets. As he is bound by the Decision of his own country's Court,
which validly exercised jurisdiction over him, and whose decision he
does not repudiate, he is estopped by his own representation before
said Court from asserting his right over the alleged conjugal property.

xxx xxx xxx 4


There can be no question as to the validity of that Nevada divorce in
any of the States of the United States. The decree is binding on private
respondent as an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of the Union. What
he is contending in this case is that the divorce is not valid and binding
in this jurisdiction, the same being contrary to local law and public
policy.

To maintain, as private respondent does, that, under our laws,


petitioner has to be considered still married to private respondent and
still subject to a wife's obligations under Article 109, et. seq. of the Civil
Code cannot be just. Petitioner should not be obliged to live together
with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby


ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his
Court.

WHEREFORE, by virtue of the provision of the second paragraph of


Art. 26 of the Family Code and by reason of the divorce decree
obtained against him by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.

Without costs.
IT IS SO ORDERED.3
SO ORDERED.
The factual antecedents, as narrated by the trial court, are as follows.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and
Patajo, JJ., concur.
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M.


Villanueva at the United Church of Christ in the Philippines in Lam-an,
Ozamis City. Their marriage was blessed with a son and a daughter,
Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their
son Kristoffer. A few years later, Cipriano discovered that his wife had
been naturalized as an American citizen.

DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is
later naturalized as a foreign citizen and obtains a valid divorce decree
capacitating him or her to remarry, can the Filipino spouse likewise
remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make
a definite ruling on this apparently novel question, presented as a pure
question of law.

Sometime in 2000, Cipriano learned from his son that his wife had
obtained a divorce decree and then married a certain Innocent Stanley.
She, Stanley and her child by him currently live at 5566 A. Walnut
Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to
remarry invoking Paragraph 2 of Article 26 of the Family Code. No
opposition was filed. Finding merit in the petition, the court granted the
same. The Republic, herein petitioner, through the Office of the Solicitor
General (OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:

In this petition for review, the Solicitor General assails


the Decision1 dated May 15, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July
4, 2002 denying the motion for reconsideration. The court a quo had
declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. The fallo of the impugned Decision reads:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER


ARTICLE 26 OF THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is
not applicable to the instant case because it only applies to a valid
mixed marriage; that is, a marriage celebrated between a Filipino

citizen and an alien. The proper remedy, according to the OSG, is to file
a petition for annulment or for legal separation. 5 Furthermore, the OSG
argues there is no law that governs respondents situation. The OSG
posits that this is a matter of legislation and not of judicial
determination.6
For his part, respondent admits that Article 26 is not directly applicable
to his case but insists that when his naturalized alien wife obtained a
divorce decree which capacitated her to remarry, he is likewise
capacitated by operation of law pursuant to Section 12, Article II of the
Constitution.7

This case concerns the applicability of Paragraph 2 of Article 26 to a


marriage between two Filipino citizens where one later acquired alien
citizenship, obtained a divorce decree, and remarried while in the
U.S.A. The interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the institution of
marriage while respondent, a private citizen, insists on a declaration of
his capacity to remarry. Respondent, praying for relief, has legal
interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation
ensues and puts into question the validity of his second marriage.

At the outset, we note that the petition for authority to remarry filed
before the trial court actually constituted a petition for declaratory relief.
In this connection, Section 1, Rule 63 of the Rules of Court provides:

Coming now to the substantive issue, does Paragraph 2 of Article 26 of


the Family Code apply to the case of respondent? Necessarily, we
must dwell on how this provision had come about in the first place, and
what was the intent of the legislators in its enactment?

RULE 63

Brief Historical Background

DECLARATORY RELIEF AND SIMILAR REMEDIES

On July 6, 1987, then President Corazon Aquino signed into law


Executive Order No. 209, otherwise known as the "Family Code," which
took effect on August 3, 1988. Article 26 thereof states:

Section 1. Who may file petitionAny person interested under a deed,


will, contract or other written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring
an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a
justiciable controversy; (2) the controversy must be between persons
whose interests are adverse; (3) that the party seeking the relief has a
legal interest in the controversy; and (4) that the issue is ripe for judicial
determination.8

All marriages solemnized outside the Philippines in accordance with the


laws in force in the country where they were solemnized, and valid
there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code,
Executive Order No. 227 was likewise signed into law, amending
Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and
38.

Where a marriage between a Filipino citizen and a foreigner is validly


celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (Emphasis
supplied)
On its face, the foregoing provision does not appear to govern the
situation presented by the case at hand. It seems to apply only to cases
where at the time of the celebration of the marriage, the parties are a
Filipino citizen and a foreigner. The instant case is one where at the
time the marriage was solemnized, the parties were two Filipino
citizens, but later on, the wife was naturalized as an American citizen
and subsequently obtained a divorce granting her capacity to remarry,
and indeed she remarried an American citizen while residing in the
U.S.A.
Noteworthy, in the Report of the Public Hearings 9 on the Family Code,
the Catholic Bishops Conference of the Philippines (CBCP) registered
the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose
spouses are Filipinos who divorce them abroad. These spouses who
are divorced will not be able to re-marry, while the spouses of
foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even
for Filipino citizens. For those whose foreign spouses validly divorce
them abroad will also be considered to be validly divorced here and can
re-marry. We propose that this be deleted and made into law only after
more widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed
that the intent of Paragraph 2 of Article 26, according to Judge Alicia
Sempio-Diy, a member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse remains married to

the alien spouse who, after obtaining a divorce, is no longer married to


the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case
of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage
between a Filipino citizen and a foreigner. The Court held therein that a
divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law.
Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens, but later
on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court
of Appeals.11 In Quita, the parties were, as in this case, Filipino citizens
when they got married. The wife became a naturalized American citizen
in 1954 and obtained a divorce in the same year. The Court therein
hinted, by way of obiter dictum, that a Filipino divorced by his
naturalized foreign spouse is no longer married under Philippine law
and can thus remarry.
Thus, taking into consideration the legislative intent and applying the
rule of reason, we hold that Paragraph 2 of Article 26 should be
interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of
them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if
the other party were a foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity and
injustice. Where the interpretation of a statute according to its exact
and literal import would lead to mischievous results or contravene the
clear purpose of the legislature, it should be construed according to its
spirit and reason, disregarding as far as necessary the letter of the law.
A statute may therefore be extended to cases not within the literal
meaning of its terms, so long as they come within its spirit or intent. 12

If we are to give meaning to the legislative intent to avoid the absurd


situation where the Filipino spouse remains married to the alien spouse
who, after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the
contemplation of Paragraph 2 of Article 26.

However, we note that the records are bereft of competent evidence


duly submitted by respondent concerning the divorce decree and the
naturalization of respondents wife. It is settled rule that one who
alleges a fact has the burden of proving it and mere allegation is not
evidence.13

In view of the foregoing, we state the twin elements for the application
of Paragraph 2 of Article 26 as follows:

Accordingly, for his plea to prosper, respondent herein must prove his
allegation that his wife was naturalized as an American citizen.
Likewise, before a foreign divorce decree can be recognized by our
own courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it. 14 Such foreign
law must also be proved as our courts cannot take judicial notice of
foreign laws. Like any other fact, such laws must be alleged and
proved.15 Furthermore, respondent must also show that the divorce
decree allows his former wife to remarry as specifically required in
Article 26. Otherwise, there would be no evidence sufficient to declare
that he is capacitated to enter into another marriage.

1. There is a valid marriage that has been celebrated between a


Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating
him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of
the celebration of the marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse capacitating the latter to
remarry.
In this case, when Ciprianos wife was naturalized as an American
citizen, there was still a valid marriage that has been celebrated
between her and Cipriano. As fate would have it, the naturalized alien
wife subsequently obtained a valid divorce capacitating her to remarry.
Clearly, the twin requisites for the application of Paragraph 2 of Article
26 are both present in this case. Thus Cipriano, the "divorced" Filipino
spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy
of the Filipino spouse is to file either a petition for annulment or a
petition for legal separation. Annulment would be a long and tedious
process, and in this particular case, not even feasible, considering that
the marriage of the parties appears to have all the badges of validity.
On the other hand, legal separation would not be a sufficient remedy
for it would not sever the marriage tie; hence, the legally separated
Filipino spouse would still remain married to the naturalized alien
spouse.

Nevertheless, we are unanimous in our holding that Paragraph 2 of


Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No.
227), should be interpreted to allow a Filipino citizen, who has been
divorced by a spouse who had acquired foreign citizenship and
remarried, also to remarry. However, considering that in the present
petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondents bare allegations that his wife,
who was naturalized as an American citizen, had obtained a divorce
decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly
upon respondents submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines
is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.

SO ORDERED.
G.R. No. 186571

August 11, 2010

GERBERT R. CORPUZ, Petitioner,


vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR
GENERAL, Respondents.
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision 1 of the Regional
Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for
review on certiorari2 under Rule 45 of the Rules of Court (present
petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired
Canadian citizenship through naturalization on November 29,
2000.3 On January 18, 2005, Gerbert married respondent Daisylyn T.
Sto. Tomas, a Filipina, in Pasig City.4 Due to work and other
professional commitments, Gerbert left for Canada soon after the
wedding. He returned to the Philippines sometime in April 2005 to
surprise Daisylyn, but was shocked to discover that his wife was having
an affair with another man. Hurt and disappointed, Gerbert returned to
Canada and filed a petition for divorce. The Superior Court of Justice,
Windsor, Ontario, Canada granted Gerberts petition for divorce on
December 8, 2005. The divorce decree took effect a month later, on
January 8, 2006.5
Two years after the divorce, Gerbert has moved on and has found
another Filipina to love. Desirous of marrying his new Filipina fiance in
the Philippines, Gerbert went to the Pasig City Civil Registry Office and
registered the Canadian divorce decree on his and Daisylyns marriage
certificate. Despite the registration of the divorce decree, an official of
the National Statistics Office (NSO) informed Gerbert that the marriage

between him and Daisylyn still subsists under Philippine law; to be


enforceable, the foreign divorce decree must first be judicially
recognized by a competent Philippine court, pursuant to NSO Circular
No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial recognition of foreign
divorce and/or declaration of marriage as dissolved (petition) with the
RTC. Although summoned, Daisylyn did not file any responsive
pleading but submitted instead a notarized letter/manifestation to the
trial court. She offered no opposition to Gerberts petition and, in fact,
alleged her desire to file a similar case herself but was prevented by
financial and personal circumstances. She, thus, requested that she be
considered as a party-in-interest with a similar prayer to Gerberts.
In its October 30, 2008 decision,7 the RTC denied Gerberts petition.
The RTC concluded that Gerbert was not the proper party to institute
the action for judicial recognition of the foreign divorce decree as he is
a naturalized Canadian citizen. It ruled that only the Filipino spouse can
avail of the remedy, under the second paragraph of Article 26 of the
Family Code,8 in order for him or her to be able to remarry under
Philippine law.9 Article 26 of the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in accordance
with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent
behind the enactment of the second paragraph of Article 26 of the
Family Code, as determined by the Court in Republic v. Orbecido
III;10 the provision was enacted to "avoid the absurd situation where the

Filipino spouse remains married to the alien spouse who, after


obtaining a divorce, is no longer married to the Filipino spouse." 11

The resolution of the issue requires a review of the legislative history


and intent behind the second paragraph of Article 26 of the Family
Code.

THE PETITION
12

From the RTCs ruling, Gerbert filed the present petition.

13

Gerbert asserts that his petition before the RTC is essentially for
declaratory relief, similar to that filed in Orbecido; he, thus, similarly
asks for a determination of his rights under the second paragraph of
Article 26 of the Family Code. Taking into account the rationale behind
the second paragraph of Article 26 of the Family Code, he contends
that the provision applies as well to the benefit of the alien spouse. He
claims that the RTC ruling unduly stretched the doctrine in Orbecido by
limiting the standing to file the petition only to the Filipino spouse an
interpretation he claims to be contrary to the essence of the second
paragraph of Article 26 of the Family Code. He considers himself as a
proper party, vested with sufficient legal interest, to institute the case,
as there is a possibility that he might be prosecuted for bigamy if he
marries his Filipina fiance in the Philippines since two marriage
certificates, involving him, would be on file with the Civil Registry Office.
The Office of the Solicitor General and Daisylyn, in their respective
Comments,14 both support Gerberts position.
Essentially, the petition raises the issue of whether the second
paragraph of Article 26 of the Family Code extends to aliens the right to
petition a court of this jurisdiction for the recognition of a foreign divorce
decree.
THE COURTS RULING
The alien spouse can claim no right under the second paragraph of
Article 26 of the Family Code as the substantive right it establishes is in
favor of the Filipino spouse

The Family Code recognizes only two types of defective marriages


void15 and voidable16 marriages. In both cases, the basis for the judicial
declaration of absolute nullity or annulment of the marriage exists
before or at the time of the marriage. Divorce, on the other hand,
contemplates the dissolution of the lawful union for cause arising after
the marriage.17 Our family laws do not recognize absolute divorce
between Filipino citizens.18
Recognizing the reality that divorce is a possibility in marriages
between a Filipino and an alien, President Corazon C. Aquino, in the
exercise of her legislative powers under the Freedom
Constitution,19 enacted Executive Order No. (EO) 227, amending Article
26 of the Family Code to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in accordance
with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO
227 effectively incorporated into the law this Courts holding in Van
Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both cases, the
Court refused to acknowledge the alien spouses assertion of marital
rights after a foreign courts divorce decree between the alien and the
Filipino. The Court, thus, recognized that the foreign divorce had
already severed the marital bond between the spouses. The Court
reasoned in Van Dorn v. Romillo that:

To maintain x x x that, under our laws, [the Filipino spouse] has to be


considered still married to [the alien spouse] and still subject to a wife's
obligations x x x cannot be just. [The Filipino spouse] should not be
obliged to live together with, observe respect and fidelity, and render
support to [the alien spouse]. The latter should not continue to be one
of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be
served.22

Additionally, an action based on the second paragraph of Article 26 of


the Family Code is not limited to the recognition of the foreign divorce
decree. If the court finds that the decree capacitated the alien spouse
to remarry, the courts can declare that the Filipino spouse is likewise
capacitated to contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse (other
than that already established by the decree), whose status and legal
capacity are generally governed by his national law.26

As the RTC correctly stated, the provision was included in the law "to
avoid the absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse."23 The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status, settling the
doubts created by the divorce decree. Essentially, the second
paragraph of Article 26 of the Family Code provided the Filipino spouse
a substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to remarry.24 Without
the second paragraph of Article 26 of the Family Code, the judicial
recognition of the foreign decree of divorce, whether in a proceeding
instituted precisely for that purpose or as a related issue in another
proceeding, would be of no significance to the Filipino spouse since our
laws do not recognize divorce as a mode of severing the marital
bond;25 Article 17 of the Civil Code provides that the policy against
absolute divorces cannot be subverted by judgments promulgated in a
foreign country. The inclusion of the second paragraph in Article 26 of
the Family Code provides the direct exception to this rule and serves as
basis for recognizing the dissolution of the marriage between the
Filipino spouse and his or her alien spouse.

Given the rationale and intent behind the enactment, and the purpose
of the second paragraph of Article 26 of the Family Code, the RTC was
correct in limiting the applicability of the provision for the benefit of the
Filipino spouse. In other words, only the Filipino spouse can invoke the
second paragraph of Article 26 of the Family Code; the alien spouse
can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a right that
clothes the party with legal interest to petition for its recognition in this
jurisdiction
We qualify our above conclusion i.e., that the second paragraph of
Article 26 of the Family Code bestows no rights in favor of aliens with
the complementary statement that this conclusion is not sufficient basis
to dismiss Gerberts petition before the RTC. In other words, the
unavailability of the second paragraph of Article 26 of the Family Code
to aliens does not necessarily strip Gerbert of legal interest to petition
the RTC for the recognition of his foreign divorce decree. The foreign
divorce decree itself, after its authenticity and conformity with the
aliens national law have been duly proven according to our rules of
evidence, serves as a presumptive evidence of right in favor of Gerbert,
pursuant to Section 48, Rule 39 of the Rules of Court which provides
for the effect of foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the


judgment or final order is conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a person, the judgment
or final order is presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title.
In either case, the judgment or final order 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.
To our mind, direct involvement or being the subject of the foreign
judgment is sufficient to clothe a party with the requisite interest to
institute an action before our courts for the recognition of the foreign
judgment. In a divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or her national
law.27
The starting point in any recognition of a foreign divorce judgment is the
acknowledgment that our courts do not take judicial notice of foreign
judgments and laws. Justice Herrera explained that, as a rule, "no
sovereign is bound to give effect within its dominion to a judgment
rendered by a tribunal of another country." 28 This means that the foreign
judgment and its authenticity must be proven as facts under our rules
on evidence, together with the aliens applicable national law to show
the effect of the judgment on the alien himself or herself. 29 The
recognition may be made in an action instituted specifically for the
purpose or in another action where a party invokes the foreign decree
as an integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and the
national law of the alien, recognizing his or her capacity to obtain a
divorce, purport to be official acts of a sovereign authority, Section 24,
Rule 132 of the Rules of Court comes into play. This Section requires
proof, either by (1) official publications or (2) copies attested by the
officer having legal custody of the documents. If the copies of official

records are not kept in the Philippines, these must be (a) accompanied
by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his office.
The records show that Gerbert attached to his petition a copy of the
divorce decree, as well as the required certificates proving its
authenticity,30 but failed to include a copy of the Canadian law on
divorce.31 Under this situation, we can, at this point, simply dismiss the
petition for insufficiency of supporting evidence, unless we deem it
more appropriate to remand the case to the RTC to determine whether
the divorce decree is consistent with the Canadian divorce law.
We deem it more appropriate to take this latter course of action, given
the Article 26 interests that will be served and the Filipina wifes
(Daisylyns) obvious conformity with the petition. A remand, at the same
time, will allow other interested parties to oppose the foreign judgment
and overcome a petitioners presumptive evidence of a right by proving
want of jurisdiction, want of notice to a party, collusion, fraud, or clear
mistake of law or fact. Needless to state, every precaution must be
taken to ensure conformity with our laws before a recognition is made,
as the foreign judgment, once recognized, shall have the effect of res
judicata32 between the parties, as provided in Section 48, Rule 39 of the
Rules of Court.33
In fact, more than the principle of comity that is served by the practice
of reciprocal recognition of foreign judgments between nations, the res
judicata effect of the foreign judgments of divorce serves as the deeper
basis for extending judicial recognition and for considering the alien
spouse bound by its terms. This same effect, as discussed above, will
not obtain for the Filipino spouse were it not for the substantive rule that
the second paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce decree
As a matter of "housekeeping" concern, we note that the Pasig City
Civil Registry Office has already recorded the divorce decree on

Gerbert and Daisylyns marriage certificate based on the mere


presentation of the decree.34We consider the recording to be legally
improper; hence, the need to draw attention of the bench and the bar to
what had been done.

(i) naturalization; and


(j) changes of name.
xxxx

Article 407 of the Civil Code states that "[a]cts, events and judicial
decrees concerning the civil status of persons shall be recorded in the
civil register." The law requires the entry in the civil registry of judicial
decrees that produce legal consequences touching upon a persons
legal capacity and status, i.e., those affecting "all his personal qualities
and relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate, or
his being married or not."35
A judgment of divorce is a judicial decree, although a foreign one,
affecting a persons legal capacity and status that must be recorded. In
fact, Act No. 3753 or the Law on Registry of Civil Status specifically
requires the registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the
civil status of persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;

Sec. 4. Civil Register Books. The local registrars shall keep and
preserve in their offices the following books, in which they shall,
respectively make the proper entries concerning the civil status of
persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the marriages
solemnized but also divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of name and
naturalization register.
But while the law requires the entry of the divorce decree in the civil
registry, the law and the submission of the decree by themselves do not
ipso facto authorize the decrees registration. The law should be read in
relation with the requirement of a judicial recognition of the foreign
judgment before it can be given res judicata effect. In the context of the
present case, no judicial order as yet exists recognizing the foreign
divorce decree. Thus, the Pasig City Civil Registry Office acted totally
out of turn and without authority of law when it annotated the Canadian
divorce decree on Gerbert and Daisylyns marriage certificate, on the
strength alone of the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the
requirement of a court recognition, as it cited NSO Circular No. 4,
series of 1982,36 and Department of Justice Opinion No. 181, series of
198237 both of which required a final order from a competent
Philippine court before a foreign judgment, dissolving a marriage, can
be registered in the civil registry, but it, nonetheless, allowed the
registration of the decree. For being contrary to law, the registration of

the foreign divorce decree without the requisite judicial recognition is


patently void and cannot produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the recognition that
the RTC may extend to the Canadian divorce decree does not, by itself,
authorize the cancellation of the entry in the civil registry. A petition for
recognition of a foreign judgment is not the proper proceeding,
contemplated under the Rules of Court, for the cancellation of entries in
the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil register
shall be changed or corrected, without judicial order." The Rules of
Court supplements Article 412 of the Civil Code by specifically
providing for a special remedial proceeding by which entries in the civil
registry may be judicially cancelled or corrected. Rule 108 of the Rules
of Court sets in detail the jurisdictional and procedural requirements
that must be complied with before a judgment, authorizing the
cancellation or correction, may be annotated in the civil registry. It also
requires, among others, that the verified petition must be filed with the
RTC of the province where the corresponding civil registry is
located;38 that the civil registrar and all persons who have or claim any
interest must be made parties to the proceedings; 39 and that the time
and place for hearing must be published in a newspaper of general
circulation.40 As these basic jurisdictional requirements have not been
met in the present case, we cannot consider the petition Gerbert filed
with the RTC as one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be
construed as requiring two separate proceedings for the registration of
a foreign divorce decree in the civil registry one for recognition of the
foreign decree and another specifically for cancellation of the entry
under Rule 108 of the Rules of Court. The recognition of the foreign
divorce decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court can serve as
the appropriate adversarial proceeding41 by which the applicability of

the foreign judgment can be measured and tested in terms of


jurisdictional infirmities, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and
REVERSE the October 30, 2008 decision of the Regional Trial Court of
Laoag City, Branch 11, as well as its February 17, 2009 order. We order
the REMAND of the case to the trial court for further proceedings in
accordance with our ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.
SO ORDERED.
ARTURO
Associate Justice

D.

G.R. No. 196049

BRION

June 26, 2013

MINORU FUJIKI, PETITIONER,


vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL
REGISTRAR OF QUEZON CITY, AND THE ADMINISTRATOR AND
CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS
OFFICE,RESPONDENTS.
DECISION
CARPIO, J.:
The Case
This is a direct recourse to this Court from the Regional Trial Court
(RTC), Branch 107, Quezon City, through a petition for review
on certiorari under Rule 45 of the Rules of Court on a pure question of
law. The petition assails the Order 1 dated 31 January 2011 of the RTC
in Civil Case No. Q-11-68582 and its Resolution dated 2 March 2011
denying petitioners Motion for Reconsideration. The RTC dismissed

the petition for "Judicial Recognition of Foreign Judgment (or Decree of


Absolute Nullity of Marriage)" based on improper venue and the lack of
personality of petitioner, Minoru Fujiki, to file the petition.

active civil docket.7 The RTC cited the following provisions of the Rule
on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC):

The Facts

Sec. 2. Petition for declaration of absolute nullity of void marriages.

Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married


respondent Maria Paz Galela Marinay (Marinay) in the Philippines 2 on
23 January 2004. The marriage did not sit well with petitioners parents.
Thus, Fujiki could not bring his wife to Japan where he resides.
Eventually, they lost contact with each other.

(a) Who may file. A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the wife.

In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara).


Without the first marriage being dissolved, Marinay and Maekara were
married on 15 May 2008 in Quezon City, Philippines. Maekara brought
Marinay to Japan. However, Marinay allegedly suffered physical abuse
from Maekara. She left Maekara and started to contact Fujiki. 3
Fujiki and Marinay met in Japan and they were able to reestablish their
relationship. In 2010, Fujiki helped Marinay obtain a judgment from a
family court in Japan which declared the marriage between Marinay
and Maekara void on the ground of bigamy.4 On 14 January 2011, Fujiki
filed a petition in the RTC entitled: "Judicial Recognition of Foreign
Judgment (or Decree of Absolute Nullity of Marriage)." Fujiki prayed
that (1) the Japanese Family Court judgment be recognized; (2) that
the bigamous marriage between Marinay and Maekara be declared
void ab initio under Articles 35(4) and 41 of the Family Code of the
Philippines;5 and (3) for the RTC to direct the Local Civil Registrar of
Quezon City to annotate the Japanese Family Court judgment on the
Certificate of Marriage between Marinay and Maekara and to endorse
such annotation to the Office of the Administrator and Civil Registrar
General in the National Statistics Office (NSO).6
The Ruling of the Regional Trial Court
A few days after the filing of the petition, the RTC immediately issued
an Order dismissing the petition and withdrawing the case from its

xxxx
Sec. 4. Venue. The petition shall be filed in the Family Court of the
province or city where the petitioner or the respondent has been
residing for at least six months prior to the date of filing, or in the case
of a non-resident respondent, where he may be found in the
Philippines, at the election of the petitioner. x x x
The RTC ruled, without further explanation, that the petition was in
"gross violation" of the above provisions. The trial court based its
dismissal on Section 5(4) of A.M. No. 02-11-10-SC which provides that
"[f]ailure to comply with any of the preceding requirements may be a
ground for immediate dismissal of the petition." 8 Apparently, the RTC
took the view that only "the husband or the wife," in this case either
Maekara or Marinay, can file the petition to declare their marriage void,
and not Fujiki.
Fujiki moved that the Order be reconsidered. He argued that A.M. No.
02-11-10-SC contemplated ordinary civil actions for declaration of
nullity and annulment of marriage. Thus, A.M. No. 02-11-10-SC does
not apply. A petition for recognition of foreign judgment is a special
proceeding, which "seeks to establish a status, a right or a particular
fact,"9 and not a civil action which is "for the enforcement or protection
of a right, or the prevention or redress of a wrong." 10 In other words, the
petition in the RTC sought to establish (1) the status and concomitant
rights of Fujiki and Marinay as husband and wife and (2) the fact of the
rendition of the Japanese Family Court judgment declaring the
marriage between Marinay and Maekara as void on the ground of

bigamy. The petitioner contended that the Japanese judgment was


consistent with Article 35(4) of the Family Code of the Philippines 11on
bigamy and was therefore entitled to recognition by Philippine courts. 12
In any case, it was also Fujikis view that A.M. No. 02-11-10-SC applied
only to void marriages under Article 36 of the Family Code on the
ground of psychological incapacity.13 Thus, Section 2(a) of A.M. No. 0211-10-SC provides that "a petition for declaration of absolute nullity of
void marriages may be filed solely by the husband or the wife." To apply
Section 2(a) in bigamy would be absurd because only the guilty parties
would be permitted to sue. In the words of Fujiki, "[i]t is not, of course,
difficult to realize that the party interested in having a bigamous
marriage declared a nullity would be the husband in the prior, preexisting marriage."14 Fujiki had material interest and therefore the
personality to nullify a bigamous marriage.
Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the
Civil Registry) of the Rules of Court is applicable. Rule 108 is the
"procedural implementation" of the Civil Register Law (Act No.
3753)15 in relation to Article 413 of the Civil Code. 16 The Civil Register
Law imposes a duty on the "successful petitioner for divorce or
annulment of marriage to send a copy of the final decree of the court to
the local registrar of the municipality where the dissolved or annulled
marriage was solemnized."17 Section 2 of Rule 108 provides that
entries in the civil registry relating to "marriages," "judgments of
annulments of marriage" and "judgments declaring marriages void from
the beginning" are subject to cancellation or correction. 18 The petition in
the RTC sought (among others) to annotate the judgment of the
Japanese Family Court on the certificate of marriage between Marinay
and Maekara.
Fujikis motion for reconsideration in the RTC also asserted that the trial
court "gravely erred" when, on its own, it dismissed the petition based
on improper venue. Fujiki stated that the RTC may be confusing the
concept of venue with the concept of jurisdiction, because it is lack of
jurisdiction which allows a court to dismiss a case on its own. Fujiki
cited Dacoycoy v. Intermediate Appellate Court 19 which held that the

"trial court cannot pre-empt the defendants prerogative to object to the


improper laying of the venue by motu proprio dismissing the
case."20Moreover, petitioner alleged that the trial court should not have
"immediately dismissed" the petition under Section 5 of A.M. No. 02-1110-SC because he substantially complied with the provision.
On 2 March 2011, the RTC resolved to deny petitioners motion for
reconsideration. In its Resolution, the RTC stated that A.M. No. 02-1110-SC applies because the petitioner, in effect, prays for a decree of
absolute nullity of marriage.21 The trial court reiterated its two grounds
for dismissal, i.e. lack of personality to sue and improper venue under
Sections 2(a) and 4 of A.M. No. 02-11-10-SC. The RTC considered
Fujiki as a "third person"22 in the proceeding because he "is not the
husband in the decree of divorce issued by the Japanese Family Court,
which he now seeks to be judicially recognized, x x x." 23 On the other
hand, the RTC did not explain its ground of impropriety of venue. It only
said that "[a]lthough the Court cited Sec. 4 (Venue) x x x as a ground
for dismissal of this case[,] it should be taken together with the other
ground cited by the Court x x x which is Sec. 2(a) x x x."24
The RTC further justified its motu proprio dismissal of the petition
based on Braza v. The City Civil Registrar of Himamaylan City, Negros
Occidental.25 The Court in Braza ruled that "[i]n a special proceeding for
correction of entry under Rule 108 (Cancellation or Correction of
Entries in the Original Registry), the trial court has no jurisdiction to
nullify marriages x x x." 26 Braza emphasized that the "validity of
marriages as well as legitimacy and filiation can be questioned only in a
direct action seasonably filed by the proper party, and not through a
collateral attack such as [a] petition [for correction of entry] x x x." 27
The RTC considered the petition as a collateral attack on the validity of
marriage between Marinay and Maekara. The trial court held that this is
a "jurisdictional ground" to dismiss the petition. 28 Moreover, the
verification and certification against forum shopping of the petition was
not authenticated as required under Section 5 29 of A.M. No. 02-11-10SC. Hence, this also warranted the "immediate dismissal" of the
petition under the same provision.

The Manifestation and Motion of the Office of the Solicitor General


and the Letters of Marinay and Maekara
On 30 May 2011, the Court required respondents to file their comment
on the petition for review.30 The public respondents, the Local Civil
Registrar of Quezon City and the Administrator and Civil Registrar
General of the NSO, participated through the Office of the Solicitor
General. Instead of a comment, the Solicitor General filed a
Manifestation and Motion.31
The Solicitor General agreed with the petition. He prayed that the
RTCs "pronouncement that the petitioner failed to comply with x x x
A.M. No. 02-11-10-SC x x x be set aside" and that the case be
reinstated in the trial court for further proceedings. 32 The Solicitor
General argued that Fujiki, as the spouse of the first marriage, is an
injured party who can sue to declare the bigamous marriage between
Marinay and Maekara void. The Solicitor General cited Juliano-Llave v.
Republic33 which held that Section 2(a) of A.M. No. 02-11-10-SC does
not apply in cases of bigamy. In Juliano-Llave, this Court explained:
[t]he subsequent spouse may only be expected to take action if he or
she had only discovered during the connubial period that the marriage
was bigamous, and especially if the conjugal bliss had already
vanished. Should parties in a subsequent marriage benefit from the
bigamous marriage, it would not be expected that they would file an
action to declare the marriage void and thus, in such circumstance, the
"injured spouse" who should be given a legal remedy is the one in a
subsisting previous marriage. The latter is clearly the aggrieved party
as the bigamous marriage not only threatens the financial and the
property ownership aspect of the prior marriage but most of all, it
causes an emotional burden to the prior spouse. The subsequent
marriage will always be a reminder of the infidelity of the spouse and
the disregard of the prior marriage which sanctity is protected by the
Constitution.34

proceeding.35 In Corpuz v. Santo Tomas,36 this Court held that "[t]he


recognition of the foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings (such as that in
Rule 108 of the Rules of Court) is precisely to establish the status or
right of a party or a particular fact."37 WhileCorpuz concerned a foreign
divorce decree, in the present case the Japanese Family Court
judgment also affected the civil status of the parties, especially Marinay,
who is a Filipino citizen.
The Solicitor General asserted that Rule 108 of the Rules of Court is
the procedure to record "[a]cts, events and judicial decrees concerning
the civil status of persons" in the civil registry as required by Article 407
of the Civil Code. In other words, "[t]he law requires the entry in the civil
registry of judicial decrees that produce legal consequences upon a
persons legal capacity and status x x x." 38 The Japanese Family Court
judgment directly bears on the civil status of a Filipino citizen and
should therefore be proven as a fact in a Rule 108 proceeding.
Moreover, the Solicitor General argued that there is no jurisdictional
infirmity in assailing a void marriage under Rule 108, citing De Castro v.
De Castro39 and Nial v. Bayadog40 which declared that "[t]he validity of
a void marriage may be collaterally attacked."41
Marinay and Maekara individually sent letters to the Court to comply
with the directive for them to comment on the petition. 42 Maekara wrote
that Marinay concealed from him the fact that she was previously
married to Fujiki.43Maekara also denied that he inflicted any form of
violence on Marinay.44 On the other hand, Marinay wrote that she had
no reason to oppose the petition. 45 She would like to maintain her
silence for fear that anything she say might cause misunderstanding
between her and Fujiki.46
The Issues
Petitioner raises the following legal issues:

The Solicitor General contended that the petition to recognize the


Japanese Family Court judgment may be made in a Rule 108

(1) Whether the Rule on Declaration of Absolute Nullity of Void


Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10SC) is applicable.
(2) Whether a husband or wife of a prior marriage can file a petition to
recognize a foreign judgment nullifying the subsequent marriage
between his or her spouse and a foreign citizen on the ground of
bigamy.
(3) Whether the Regional Trial Court can recognize the foreign
judgment in a proceeding for cancellation or correction of entries in the
Civil Registry under Rule 108 of the Rules of Court.
The Ruling of the Court
We grant the petition.
The Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) does not
apply in a petition to recognize a foreign judgment relating to the status
of a marriage where one of the parties is a citizen of a foreign country.
Moreover, in Juliano-Llave v. Republic,47 this Court held that the rule in
A.M. No. 02-11-10-SC that only the husband or wife can file a
declaration of nullity or annulment of marriage "does not apply if the
reason behind the petition is bigamy."48
I.
For Philippine courts to recognize a foreign judgment relating to the
status of a marriage where one of the parties is a citizen of a foreign
country, the petitioner only needs to prove the foreign judgment as a
fact under the Rules of Court. To be more specific, a copy of the foreign
judgment may be admitted in evidence and proven as a fact under Rule
132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the
Rules of Court.49 Petitioner may prove the Japanese Family Court
judgment through (1) an official publication or (2) a certification or copy
attested by the officer who has custody of the judgment. If the office

which has custody is in a foreign country such as Japan, the


certification may be made by the proper diplomatic or consular officer of
the Philippine foreign service in Japan and authenticated by the seal of
office.50
To hold that A.M. No. 02-11-10-SC applies to a petition for recognition
of foreign judgment would mean that the trial court and the parties
should follow its provisions, including the form and contents of the
petition,51 the service of summons,52 the investigation of the public
prosecutor,53 the setting of pre-trial,54 the trial55 and the judgment of the
trial court.56 This is absurd because it will litigate the case anew. It will
defeat the purpose of recognizing foreign judgments, which is "to limit
repetitive litigation on claims and issues." 57 The interpretation of the
RTC is tantamount to relitigating the case on the merits. In Mijares v.
Raada,58 this Court explained that "[i]f every judgment of a foreign
court were reviewable on the merits, the plaintiff would be forced back
on his/her original cause of action, rendering immaterial the previously
concluded litigation."59
A foreign judgment relating to the status of a marriage affects the civil
status, condition and legal capacity of its parties. However, the effect of
a foreign judgment is not automatic. To extend the effect of a foreign
judgment in the Philippines, Philippine courts must determine if the
foreign judgment is consistent with domestic public policy and other
mandatory laws.60 Article 15 of the Civil Code provides that "[l]aws
relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even
though living abroad." This is the rule of lex nationalii in private
international law. Thus, the Philippine State may require, for effectivity
in the Philippines, recognition by Philippine courts of a foreign judgment
affecting its citizen, over whom it exercises personal jurisdiction relating
to the status, condition and legal capacity of such citizen.
A petition to recognize a foreign judgment declaring a marriage void
does not require relitigation under a Philippine court of the case as if it
were a new petition for declaration of nullity of marriage. Philippine
courts cannot presume to know the foreign laws under which the

foreign judgment was rendered. They cannot substitute their judgment


on the status, condition and legal capacity of the foreign citizen who is
under the jurisdiction of another state. Thus, Philippine courts can only
recognize the foreign judgment as a fact according to the rules of
evidence.
Section 48(b), Rule 39 of the Rules of Court provides that a foreign
judgment or final order against a person creates a "presumptive
evidence of a right as between the parties and their successors in
interest by a subsequent title." Moreover, Section 48 of the Rules of
Court states that "the judgment or final order 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." Thus, Philippine courts exercise
limited review on foreign judgments. Courts are not allowed to delve
into the merits of a foreign judgment. Once a foreign judgment is
admitted and proven in a Philippine court, it can only be repelled on
grounds external to its merits, i.e. , "want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of law or fact." The rule
on limited review embodies the policy of efficiency and the protection of
party expectations,61 as well as respecting the jurisdiction of other
states.62
Since 1922 in Adong v. Cheong Seng Gee,63 Philippine courts have
recognized foreign divorce decrees between a Filipino and a foreign
citizen if they are successfully proven under the rules of
evidence.64 Divorce involves the dissolution of a marriage, but the
recognition of a foreign divorce decree does not involve the extended
procedure under A.M. No. 02-11-10-SC or the rules of ordinary trial.
While the Philippines does not have a divorce law, Philippine courts
may, however, recognize a foreign divorce decree under the second
paragraph of Article 26 of the Family Code, to capacitate a Filipino
citizen to remarry when his or her foreign spouse obtained a divorce
decree abroad.65
There is therefore no reason to disallow Fujiki to simply prove as a fact
the Japanese Family Court judgment nullifying the marriage between
Marinay and Maekara on the ground of bigamy. While the Philippines

has no divorce law, the Japanese Family Court judgment is fully


consistent with Philippine public policy, as bigamous marriages are
declared void from the beginning under Article 35(4) of the Family
Code. Bigamy is a crime under Article 349 of the Revised Penal Code.
Thus, Fujiki can prove the existence of the Japanese Family Court
judgment in accordance with Rule 132, Sections 24 and 25, in relation
to Rule 39, Section 48(b) of the Rules of Court.
II.
Since the recognition of a foreign judgment only requires proof of fact of
the judgment, it may be made in a special proceeding for cancellation
or correction of entries in the civil registry under Rule 108 of the Rules
of Court. Rule 1, Section 3 of the Rules of Court provides that "[a]
special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact." Rule 108 creates a remedy to rectify
facts of a persons life which are recorded by the State pursuant to the
Civil Register Law or Act No. 3753. These are facts of public
consequence such as birth, death or marriage,66 which the State has an
interest in recording. As noted by the Solicitor General, in Corpuz v.
Sto. Tomas this Court declared that "[t]he recognition of the foreign
divorce decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party or a
particular fact."67
Rule 108, Section 1 of the Rules of Court states:
Sec. 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which
has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located. (Emphasis supplied)
Fujiki has the personality to file a petition to recognize the Japanese
Family Court judgment nullifying the marriage between Marinay and

Maekara on the ground of bigamy because the judgment concerns his


civil status as married to Marinay. For the same reason he has the
personality to file a petition under Rule 108 to cancel the entry of
marriage between Marinay and Maekara in the civil registry on the
basis of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and material
interest in maintaining the integrity of the marriage he contracted and
the property relations arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a bigamous marriage in the
civil registry, which compromises the public record of his marriage. The
interest derives from the substantive right of the spouse not only to
preserve (or dissolve, in limited instances68) his most intimate human
relation, but also to protect his property interests that arise by operation
of law the moment he contracts marriage. 69 These property interests in
marriage include the right to be supported "in keeping with the financial
capacity of the family"70 and preserving the property regime of the
marriage.71
Property rights are already substantive rights protected by the
Constitution,72 but a spouses right in a marriage extends further to
relational rights recognized under Title III ("Rights and Obligations
between Husband and Wife") of the Family Code. 73 A.M. No. 02-11-10SC cannot "diminish, increase, or modify" the substantive right of the
spouse to maintain the integrity of his marriage. 74 In any case, Section
2(a) of A.M. No. 02-11-10-SC preserves this substantive right by
limiting the personality to sue to the husband or the wife of the union
recognized by law.
Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a
subsisting marriage to question the validity of a subsequent marriage
on the ground of bigamy. On the contrary, when Section 2(a) states that
"[a] petition for declaration of absolute nullity of void marriage may be
filed solely by the husband or the wife"75it refers to the husband or
the wife of the subsisting marriage. Under Article 35(4) of the Family
Code, bigamous marriages are void from the beginning. Thus, the
parties in a bigamous marriage are neither the husband nor the wife

under the law. The husband or the wife of the prior subsisting marriage
is the one who has the personality to file a petition for declaration of
absolute nullity of void marriage under Section 2(a) of A.M. No. 02-1110-SC.
Article 35(4) of the Family Code, which declares bigamous marriages
void from the beginning, is the civil aspect of Article 349 of the Revised
Penal Code,76 which penalizes bigamy. Bigamy is a public crime. Thus,
anyone can initiate prosecution for bigamy because any citizen has an
interest in the prosecution and prevention of crimes. 77If anyone can file
a criminal action which leads to the declaration of nullity of a bigamous
marriage,78 there is more reason to confer personality to sue on the
husband or the wife of a subsisting marriage. The prior spouse does
not only share in the public interest of prosecuting and preventing
crimes, he is also personally interested in the purely civil aspect of
protecting his marriage.
When the right of the spouse to protect his marriage is violated, the