Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 156055 March 5, 2007

R.R. PAREDES, W.S. TIFFANY, T.R. KOTZE, H. MUSSAIN, FRANCISCO A. CRUZ, EDGARDO C. CATAGUIS,
E.M. LAPUZ, ATTY. JOSELIA POBLADOR, JOSE DE LUSONG, EDUARDO A. RICARDO, ATTY. ARIEL F.
ABONAL, and ADOLFO GARCIA, Petitioners,
vs.
TARCISIO S. CALILUNG, Respondent.

DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court seeking the reversal and
setting aside of the Decision,2 dated 29 January 2001, and Resolution,3 dated 14 November 2002, of the Court of
Appeals in CA-G.R. SP No. 54862. In its assailed Decision, the Court of Appeals reversed the Resolution,4 dated 27
July 1998, of the Department of Justice (DOJ), which affirmed the Resolution,5 dated 7 October 1997, of the Makati
City Prosecution Office, finding no probable cause and dismissing the herein respondent’s complaint, docketed as
I.S. No. 97-22188-191; and, instead, disposed as follows –

WHEREFORE, the resolution of the Department of Justice dated November 26, 1997, is hereby set aside. The
Prosecutor of Makati, is hereby Ordered to file an information of Estafa against the respondents.

During the time material to the Petition at bar, petitioners Francisco A. Cruz (Cruz), Edgardo C. Cataguis (Cataguis),
Atty. Joselia J. Poblador (Atty. Poblador), Jose De Lusong (De Lusong), Eduardo A. Ricardo (Ricardo), and Atty.
Ariel F. Abonal (Atty. Abonal) were serving, in various capacities, as officials of Caltex Philippines, Inc. (CPI).
Petitioner Cruz was the Vice President for Corporate Planning and a member of the Board of Directors of CPI;
petitioner Cataguis was the General Manager for Marketing and also a member of the Board of Directors of CPI;
petitioner Atty. Poblador was the Corporate Secretary and General Manager for Legal and Tax of CPI; petitioner De
Lusong was the General Manager for Marketing Retail of CPI; petitioner Ricardo was the General Manager for
Marketing of CPI for the years 1990-1996; and petitioner Atty. Abonal was the internal Legal Counsel of CPI.

On 3 May 1997, respondent Tarcisio S. Calilung (Atty. Calilung), a lawyer and a businessman, instituted a
Complaint, docketed as I.S. No. 97-22188-191, against the aforementioned petitioners and several others.
Respondent included in his complaint R.R. Paredes, W.S. Tiffany, T.R. Kotze, H. Mussain, and E.M. Lapuz, who
had likewise served as officials of CPI but are no longer connected with the company and whose whereabouts as of
present time are unknown. They did not participate in any proceedings. Respondent also included in his complaint
Adolfo B. Garcia (Garcia), the Deputy Sheriff of the Manila Regional Trial Court (RTC), Branch 31, who participated
in the proceedings before the Makati City Prosecution Office and the DOJ, but no longer participated in the instant
petition.

In his complaint before the Makati City Prosecution Office, respondent charged petitioners, et al., with several
counts of estafa. Respondent’s Original Complaint was summarized in the Resolution,6 dated 7 October 1997, of the
Makati City Prosecution Office, to wit –

[Herein respondent] Tarcisio S. Calilung alleged that [herein petitioner] Atty. Joselia Poblador, Chief Legal Counsel
of Caltex Philippines (Caltex for brevity) negotiated to him the sale of several parcels of land consisting of 228.9
hectares, more or less[,] situated at Barrio Alibagu, Ilagan, Isabela. Atty. Poblador represented to [respondent] that
Caltex is the absolute owner of all the parcels [of] land as it acquired the same at a Sheriff’s Auction Sale, a copy of
a Sheriff’s Certificate of Final Sale was shown to [respondent]. Likewise, Atty. Poblador represented and assured
complainant that subject property is not covered by the Agrarian Reform Program and that the adverse occupants
thereof are mere squatters. Consequently, [respondent] paid the total amount of ₱3.5 Million for all the said parcels
of land in two payments. Thereupon, a Deed of Assignment with Consolidation of Title dated June 22, 1995 was
executed between Caltex Philippines and Tarcisio S. Calilung. Later, [respondent] discovered that none of the
representations made to him by [petitioner] Atty. Poblador is true. Contrary to Atty. Poblador’s representation, Caltex
Philippines is not the absolute owner of the several parcels of land sold to him. Accordingly, the several parcels of
land are owned by the heirs of Antonia Medina (sic). Caltex Philippines is the owner of only one share of the co-
heirs which it acquired at the Sheriff’s Auction. Further, [respondent] learned that on August 3, 1993, Caltex thru
E.A. Ricardo, manager for Marketing, has already sold the subject parcels of land to the Department of Agrarian
Reform under Voluntary Offer To Sell program of the Government. Also, complainant averred that the Sheriff’s
Certificate of Final Sale executed by Deputy Sheriff Adolfo Garcia shown to him was falsified as it showed that
Caltex’s bid of ₱2.7 Million was successful and it is the absolute owner of all the parcels of land. The truth however,
is that Caltex is the owner of only one share of one of the co-heirs. Lastly, Caltex through E.A. Ricardo
misrepresented to the Department of Agrarian Reform that the subject property is agricultural inorder (sic) that it will
qualify and be sold under the Agrarian Reform Program. The truth of the matter is the said parcels of land are
pasturelands thus, exempt from the coverage of the Agrarian Reform Program. Hence, [respondent] filed this
complaint for Estafa against R.H. Paredes, W.S. Tiffany, T.R. Kotze, H. Mussain, F.A. Cruz, E.C. Cataguis, E.M.
Lauz who are members of the Board of Caltex Philippines, Atty. Joselia Poblador, Chief Legal Counsel, Jose De
Lusong, signatory of the Deed of Assignment and E.A. Ricardo, manager for Marketing and Atty. Ariel F. Abonal,
assistant Secretary to the Board of Caltex Philippines who according to him acted in concert in perpetrating the
crime charged. Likewise, a complaint for Falsification is instituted against Adolfo Garcia who connived with the
above-mentioned officers/members of the Board of Caltex Philippines for falsification.

To answer the respondent’s accusations against them, petitioners Atty. Poblador, Cruz, Cataguis, De Lusong, and
Ricardo, submitted their Joint Counter-Affidavit,7 averring that the respondent’s complaint was without basis in fact
and in law, and that they could not be held liable for estafa. The contents of their Joint Counter-Affidavit were
concisely recounted by the Makati City Prosecutor in her Resolution,8 dated 7 October 1997 –

Jose de Lusong and Atty. Poblador claimed that they did not at any time represent that Caltex Philippines is the
absolute owner of the entire subject parcels of land.

[Herein petitioners] narrated that Caltex’s rights and interests on subject parcels of land arose from Civil Case No.
84-22434 entitled Caltex Philippines vs. Antonia Vda. de Medina at Branch 31, RTC-Manila. Antonia Vda. de
Medina is Caltex’s judgment debtor and is [respondent’s] mother-in-law. During the pendency of the case, or on
February 7, 1984, 5 Notices of Levy on Attachment were issued against the rights, titles and interest of
[respondent’s] mother-in-law. The undivided shares of the other heirs, two (2) children of Antonia Vda. de Medina
were never levied. On September 17, 1984, a decision was rendered in favor of Caltex Philippines and the same
became final and executory. On July 24, 1989, a Writ of Execution was issued. On July 24, 1989, Deputy Sheriff
Adolfo B. Garcia issued a Notice of Levy Execution [sic] where only the shares, rights and interests of [respondent’s]
mother-in-law over subject parcels of land were levied upon. Likewise, a notice of Sheriff’s Sale was issued. On
August 23, 1989, Caltex, through Atty. Rafael Durian bidded ₱4.5 Million for the purchase of the rights, shares of
[respondent’s] mother-in-law in subject parcels of land. Consequently, the subject parcels of land (shares and
interests of Antonia Vda. de Medina which is 66.67% of the entire property) were sold to Caltex Philippines in the
amount of ₱2,785,620.00. After the execution of the sale, [respondent’s] mother-in-law was given one (1) year within
which to redeem her interest over the subject land.

After the lapse of the one (1) year redemption period given to Antonia Vda. de Medina, [respondent] went to Caltex
office and propose [sic] to reacquire the interest of Antonia Vda. de Medina and to pay the defficiency (sic) judgment
obligation of his mother-in-law. Caltex Philippines, through its office accepted the proposal of [respondent] to buy the
parcels of land. Complainant further requested that all cases against his mother-in-law be withdrawn. Caltex
Philippines agreed and the sale of the said subject parcels of land to [respondent] in the amount of ₱3.5 Million
materialized. On the first payment made by the [respondent], Caltex Philippines executed a Deed of Waiver and
Quitclaim in all cases filed against [respondent’s] mother-in-law. Thereupon, a Deed of Assignment with
Consolidation of Title was executed by herein parties after the balance [thereof] was tendered by [respondent].

On the alleged sale by Caltex Philippines of subject parcels of land to the Department of Agrarian Reform,
[petitioners] denied having sold the same to DAR. According to [petitioners], it was Antonia Vda. de Medina through
her attorney-in-fact Carlito Baluang who transacted the voluntary Officer (sic) To Sell with the Department of
Agrarian Reform sometime in 1988 and 1989. Subsequently, by virtue of the Deed of Assignment (With Special
Power of Attorney Couple (sic) With Interest) executed by Antonia Vda. de Medina ceded in favor of Caltex
Philippines, wherein Antonia Vda. de Medina "all her rights, interests, claims and participation from the proceeds of
land compensation for all the property that she has voluntarily offered to sell" to Caltex Philippines and constituted
the latter as its (sic) exclusive attorney-in-fact to follow-up with the Department of Agrarian Reform. Accordingly, this
matter is make (sic) known to [respondent]. It was on the strength of [respondent’s] relation to Antonia Vda. de
Medina and his assurance that he has connections with DAR that CPI decided to sell subject property to
[respondent].

[Petitioners] denied the allegation of [respondent] that Caltex officers and directors conspire (sic) with Deputy Sheriff
Adolfo B. Garcia and notary Public Atty. Ariel Abonal in the falsification of the Sheriff’s Certificate of Final Sale by
representing that Caltex bidded for the entirety of all the parcels of land subject of the sale and using the said
falsified documents to convince [respondent] of Caltex’s absolute title over the subject parcels of land.

Lastly, the declaration [of] Mr. Eduardo A. Ricardo that subject parcels of land is (sic) agricultural in nature in the
Voluntary Officer (sic) To Sell to the DAR can hardly be considered a crime moreso that there is no other proof
presented than the mere self-serving statement of Mr. Ricardo. Besides, in the Deed of Assignment with
Consolidation of Title, there is not (sic) warranty as to the properties[’] classification or primary use given.

Deputy Sheriff Garcia submitted his own Counter-Affidavit with a Counter-Complaint for Perjury.9 He essentially
affirmed the narration made in the petitioners’ Joint Counter-Affidavit, particularly, the events arising from Civil Case
No. 84-22434, instituted by CPI against respondent’s mother-in-law, Antonia Vda. de Medina, before the Manila
RTC. After the Decision, dated 17 September 1984, rendered by the Manila RTC against Antonia Vda. de Medina,
became final and executory, and upon failure of Antonia Vda. de Medina to pay her judgment debt to CPI, Deputy
Sheriff Garcia proceeded to implement the Writ of Execution which levied upon Antonia Vda. de Medina’s rights,
interests, title and participation in the subject real properties. At the execution sale held on 24 August 1989, CPI won
the bidding. It bought Antonia Vda. de Medina’s limited interests over the subject real properties in the total amount
of ₱4.5 Million. CPI’s winning bid was broken down10 as follows –

₱2,785,620.00 For the parcels of land covered by TCT Nos.

T-132694, T-133034, T-94234, T-124684, T-
139590, T-138153, T-138154, T-138155, T-
133033, T-133021, T-133022, T-133023, T-
133024, T-133025, T-133026, T-133027, T-
133028, T-133029, T-133030, T-133031, T-
133032, T-133033 and T-133034; and,

P1,714,380.00 For the parcels of land covered by Tax

Declaration Nos. 01-262, 01-265, 01-25080,
01-29376 and 01-23470

₱4,500,000.00 Total

When Antonia Vda. de Medina failed to redeem her interest in the subject real properties within a year from the
execution sale, ownership over the said interest was consolidated in CPI. Deputy Sheriff Garcia explained that he
prepared the Final Certification of Sale on 24 October 1990, although it was notarized only on 1 February 1994. He
denied that he ever conspired with CPI, through its officers and directors, to make false representations to
respondent that CPI was the absolute owner of the subject real properties; to maliciously conceal from respondent
that CPI already sold the subject real properties to the Department of Agrarian Reform (DAR); or to falsify the
Sheriff’s Certificate of Final Sale so as to convince respondent that CPI had absolute title over the subject real
properties. He averred that he conducted the execution sale as part of his official duties and in accordance with the
Rules of Court and the judgment issued by the Manila RTC in Civil Case No. 84-22434. He also maintained that
only the rights and interests of Antonia Vda. de Medina over the subject real properties were covered by the
execution.

Respondent submitted a Reply-Affidavit in which he insisted that the concealment of a prior sale, the falsification of
the Sheriff’s Certificate of Final Sale and the conspiracy among the petitioners, et al., and the others can be readily
seen. Once again, reference is herein made to the Resolution, dated 7 October 1997 of the Makati City Prosecution
Office which related11 thus –

[Herein respondent] alleged that he married the daughter of Antonia Vda. de Medina on November 22, 1994. In
early November of 1994, Atty. Villacorta, [respondent’s] counsel, inquired from Caltex about the redemption of
subject parcels of land. Caltex refused their offer to redeem the property because the period for redemptions (sic)
has long expired. However, Caltex proposed that if they are interested in the remaining subject properties, they can
purchase the same, Caltex demanded for ₱9 Million for the fourteen (14) parcels of land consisting of 228.9
hectares. Caltex never informed [respondent] or his counsel that the entire properties were sold to DAR for [₱]1
Million. On November 1994, [respondent] formally offered to buy the entire fourteen (14) parcels of land [pay for]
₱3.5 Million as earnest money which was accepted by Atty. Poblador. Even if the titles over the subject parcels of
land was (sic) still in the name of Antonia Medina (sic), he believed Atty. Poblador’s representation that Caltex is the
absolute owner by virtue of the Sheriff’s Certificate of Final Sale handed to him. Nowhere in the Sheriff’s Certificate
of Final Sale that only ¼ undivided share of Antonia Medina was auctioned.

The certificate of Final Sale was dated October 24, 1990 but notarized only on November 15, 1994, which is more
than a week before he paid the earnest money on November 29, 1994. Lastly, the declared sale price of
₱2,785,620.00 does not correspond to the written winning bid by Caltex for ₱4.5 Million.

To support his foregoing allegations, respondent also submitted the Affidavit12 of his counsel, Atty. Rolando A.
Villacorta (Atty. Villacorta), who supposedly represented and assisted him during the negotiations with CPI for the
purchase of the subject real properties. Atty. Villacorta attested that he met with both petitioners Attys. Poblador and
Abonal of CPI regarding respondent’s offer to purchase the subject real properties; that Atty. Poblador, in response
to a direct query by respondent, expressly denied that the subject real properties were covered by the
Comprehensive Agrarian Reform Program (CARP) of the Government; and that respondent was never informed that
what he was purchasing was not the whole of the subject real properties, consisting of 229 hectares, but only an
undivided share therein.

In their Joint Rejoinder,13 petitioners Cruz, Cataguis, De Lusong, Ricardo and Attys. Poblador and Abonal denied
meeting and talking to Atty. Villacorta. According to petitioners Attys. Poblador and Abonal, at the beginning of their
negotiations for the purchase by respondent of the subject real properties from CPI, the latter was accompanied, not
by Atty. Villacorta, but an Atty. Karl Miranda from the Office of the Solicitor General (OSG), acting as a broker.
During their meeting, they discussed about the redemption of the rights, interests, and title of Antonia Vda. de
Medina over the subject real properties. In their succeeding meetings, petitioners stressed that respondent was
informed that CPI was selling and assigning only the limited rights, interests, and title of Antonia Vda. de Medina
over the subject real properties, and that the subject real properties were under the coverage of CARP and were
subject of a Voluntary Offer to Sell (VOS). Petitioners pointed out that respondent himself admitted that he was
purchasing only the limited interest of Antonia Vda. de Medina in the subject real properties when he stated in his
letter,14 dated 29 November 1994, addressed to CPI, that, "We are pleased to inform you that we accept your offer
to sell to us for ₱3.5 Million your interest in the foreclosed Medina properties."

Moreover, to belie the attestations of respondent and Atty. Villacorta in their affidavits, petitioners presented the
Affidavits of Attys. Rodrigo B. Libunao, Jr.15 and Catherine T. Manahan,16 Legal Counsel and Tax Counsel,
respectively, of CPI, who were also present during the meetings of petitioner Atty. Poblador with respondent. They
both alleged that they were called to join the meeting in October 1994 wherein respondent was accompanied, not by
Atty. Villacorta, but Atty. Miranda of the OSG; that respondent claimed to be married to Ma. Luisa Victoria Medina,
the daughter of Antonia Vda. de Medina, and he was interested in acquiring CPI’s rights, interests, and title to the
subject real properties in exchange for CPI’s execution of a waiver or quitclaim to secure the release of Antonia Vda.
de Medina who was in prison by reason of the criminal cases filed by CPI against her; and that Atty. Poblador made
full disclosure to respondent that CPI had, and was assigning to respondent, only the limited rights, interests, and
title of Antonia Vda. de Medina over the subject real properties, and that the subject real properties were under the
coverage of CARP and the subject of the VOS initiated by Antonia Vda. de Medina herself, through her attorney-in-
fact Carlito Balauag.

Atty. Libunao further claimed that on 1 December 1994, when respondent came unaccompanied to the CPI Office to
pay the ₱1 Million earnest money, Atty. Libunao again explained to him in detail the following –

a. That CPI was merely a co-owner of the said properties as there were other heirs to the estate, one of
whom was his wife, and that only the undivided share pertaining to Antonia Vda. de Medina which we
acquired in an execution sale in Civil Case No. 84-22434 could be transferred to him.

b. That photocopies of the TCT’s to the subject parcels of land were furnished, and exhibited to, him and he
carefully noted that the subject parcels of land were in the name of "Heirs of Antonio Medina."

c. That the subject parcels of land were covered by the Comprehensive Agrarian Reform Program (CARP)
by virtue of a Voluntary Offer to Sell signed by Antonia Vda. de Medina, through her attoreney-in-fact, Mr.
Carlito Balauag. A copy of this document was also furnished Atty. Calilung.

d. That out of the sixteen (16) parcels of land under process by the DAR, two (2) lots are ready for
compensation and that the money has already been deposited by the DAR in a trust account in the
Landbank branch in Tuguegarao, Cagayan.

e. That the fourteen (14) subject parcels of land are still under process by the MARO in Ilagan, Isabela and
that the latter has started to identify the actual occupants and proposed beneficiaries of the same.

f. That payment of compensation under the CARP was being delayed by the fact that the heirs of Antonio
Medina have not initiated any estate settlement proceeding and that none of the heirs has ever participated
in the DAR conferences, despite notice.17

When Atty. Libunao again asked him if he really understood the complexities of the CARP issues affecting the
subject real properties, respondent allegedly "confidently replied that he had been successful in preserving his and
his family’s landholdings in Pampanga and that he will do the same for the subject parcels of land."18

On 7 October 1997, the Makati City Prosecution Office wrapped up its preliminary investigation and issued its
Resolution, in which it made the following findings and recommendations19 –

After a careful examination of the evidence obtaining in this case the undersigned finds that: (1) there appears no
conceivable fraudulent representations committed by [herein petitioners, et al.] (Caltex Officers) in the negotiation
and sale of subject parcels of land, (2) there is no sufficient proof to show that the Sheriff’s Certificate of Final Sale
was falsified by [Deputy Sheriff Garcia] in connivance with [petitioners, et al.] Caltex Officers; and (3) that there is
insufficient evidence to substantiate [respondent’s] claim that [petitioners, et al.] (Caltex Officers) made false
declaration that subject parcels of land are productive agricultural land so these parcels of land may be covered and
sold under the Agrarian Reform Program of the Government.

xxxx

Seemingly, [respondent] would want to extricate himself from a bad bargain and annul the effects of an unwise act.
If the [respondent] failed to apprise himself of the consequence of his purchase of subject parcels of land from
Caltex[,] he was simply unfortunate. As it would appear all documents and informations (sic) about the parcels of
land subject matter of the sale transactions entered by the parties are in [respondent’s] hands for his scrutiny.
[Respondent] is a lawyer and as such it can be presumed that he knows the complexities/controversies attached to
the interests and rights of his mother-in-law (Antonia Vda. de Medina) over the parcels of land he wants to purchase
from [petitioners, et al.] Caltex Officers. Clearly, there was no misrepresentation and/or concealment regarding the
ownership of Caltex over subject parcels of land. Neither was there falsification committed on the Sheriff’s
Certificate of Title.

xxxx

WHEREFORE, premises considered, it is respectfully recommended that complainant (sic) against [petitioners, et
al.] Caltex Officers and Adolfo Garcia be dismissed, as it is hereby upon, approval, dismissed.

Likewise, it is recommended that the counter-charge of perjury against [respondent] be dismissed.

Aggrieved, respondent filed with the DOJ a Petition for Review of the Resolution, dated 7 October 1997, of the
Makati City Prosecution Office. However, on 27 July 1998, the DOJ resolved20 to dismiss his Petition for Review,
ratiocinating thus –

The record clearly shows that the subject parcels of land were previously owned by the late Antonio Medina. Upon
the latter’s death, the said properties were inherited by Antonia Vda. de Medina and her children through intestate
succession. When Caltex filed a civil case against Antonia Vda. de Medina, who is [herein respondent’s] mother-in-
law, the latter’s rights, title and interests over the subject properties were levied on attachment during the pendency
of the said case. Thereafter, upon judgment in favor of Caltex in the said civil case; and, pursuant to the writ of
execution issued therein, the rights, title and interests of Antonia Vda. de Medina over the said parcels of land were
levied on execution and, consequently, sold at public auction with Caltex eventually winning the bid. Finally, a
certificate of sheriff’s sale was issued and based thereon Caltex became the owner of the undivided interest of
Antonia Vda. de Medina over the subject parcels of land.

We find it incredible for [respondent] not to have known the foregoing circumstances. It must be stressed that
[respondent is] a member of the family of Antonia Vda. de Medina. It taxes one’s credulity that [respondent] would
have had no personal knowledge about the family’s properties which were the subject of the sale transaction
[respondent] had with Caltex. Besides, [respondent is] a lawyer [himself]. As such, not only [was respondent]
expected to know the intricacies and complexities of the sale transaction [he] entered with Caltex but also
[respondent] had all the means and resources to check and counter-check the veracity of [herein petitioners, et al.’s]
representations. Indeed, it is hard to believe that [respondent] chose to just take the word of [petitioners, et al.] that
Caltex is the owner of all the subject properties rather than examine the documents pertaining thereto before parting
with a substantial amount of money. We take with a grain of salt [respondent’s] allegation that during the sale
negotiations [respondent was] unaware of the extent of the ownership of Caltex over the properties in question not
only because of [respondent’s] stature as a lawyer-businessman but also because of [his] personal knowledge
thereon by reason of [his] being a member of the family of Antonia Vda. de Medina from whom Caltex acquired the
subject properties. Under this milieu, no amount of fraudulent misrepresentations from [petitioners, et al.] could have
misled [him] into executing with Caltex the Deed of Assignment with Consolidation of Title over the properties in
question.

The foregoing circumstances not only create suspicion as to [respondent’s] actual motive in filing the instant
complaint but also strengthen [petitioners’] claim that there is, indeed, reasonable ground to believe that
[respondent] entered into the transaction in question knowing fully well that what was being sold by Caltex was only
the undivided interest of [his] mother-in-law who is one (1) of the co-heirs in (sic) the subject parcels of land.

Besides, no clearer acknowledgment by [respondent] of [his] knowledge on (sic) the circumstances surrounding the
subject properties than as stated in par. 3, p. 5, of the Deed of Assignment with Consolidation of Title can be made,
which states thus –

xxxx

"4. ASSIGNEE [respondent] further acknowledges that he is fully aware of the circumstances under which these
Properties were acquired by ASSIGNOR [CPI] and that he has examined the title and inspected the said properties
and has verified their location together with their boundaries." x x x

As regards the findings of the City Prosecutor on [respondent’s] other charges for estafa under Article 315, par. (3)
of the Revised Penal Code and falsification/use of falsified documents, we can find no cogent reason to alter, modify
much less reverse the same.

WHEREFORE, [respondent’s] instant petition for review is hereby dismissed.

Respondent’s Motion for Reconsideration was denied by the DOJ in another Resolution dated 30 June 1999.
This prompted respondent to file with the Court of Appeals a Petition for Certiorari under Rule 65 of the Rules of
Court, contending that the DOJ and the Makati City Prosecution Office committed grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing respondent’s complaint in I.S. No. 97-22188-191. The Court
of Appeals, in its Decision,21 dated 29 January 2001, reversed the findings of the DOJ and the Makati City
Prosecution Office, and ordered the filing of an information for estafa against the petitioners, based on the
following raison d'être –

The Court after a perusal over (sic) the ruling of the Department of Justice believes that said resolution deserves
scant consideration. This is so because the issue on double sale was just taken in passing by the Department of
Justice, when that issue is paramount in the case.

It appears on record that E.A. Ricardo, General Manager – Marketing commercial of Caltex offered for sell (sic) to
DAR the subject property.

xxxx

It should be noted that the sale to DAR is unlike the ordinary contract to sell transactions wherein one could
determine when a sale is consummated. But at this instance, where voluntary offer to sell has been made, where
process has been undergoing at that time, We opine that there is already sale considering the unique circumstance
of selling the subject landholding to the DAR.

This is so because under Administrative Order No. 5 series of 1992, it provides that landowners who entered into
Voluntary Offer to sell can no longer back out, except under the exceptional circumstances as earlier illustrated. The
present case is one that is not of the exception. Hence, if a landowner can no longer back out since he entered into
that kind of transaction and by entering into another sale such as in this case, fully knowing of the circumstances but
without divulging the same to the petitioner, would that not tantamount to misrepresentation, fraud and deceit.

A careful perusal on (sic) the comments and arguments of the [herein petitioners] that it (sic) did not refute in
whatever manner that there was a sale that took place between the Department of Agrarian Reform and the CPI. As
a matter of fact, a reading of the foregoing, in consonance with the VOS would connote that the sale has indeed
been entered into because Caltex knew that a process has been undertaken by the DAR (p. 175 [petitioners’]
Comment) x x x.

These are an admission (sic) so far, that there was indeed a previous transfer of the subject parcels of land to the
DAR as they never disputed that there was a sale between CPI and DAR. The words of CALTEX are simple and
explicit, there was an "offer" and "transfer" and that there was already an ongoing process of the VOS. Hence, there
was a sale by virtue of the voluntary offer to sell under the Comprehensive Agrarian Reform Program. The only thing
is that, Caltex denies responsibility that it was the one who offered the sale to DAR, but it claim (sic) instead that it
was Antonia Vda. de Medina. But this argument bears no weight. Regardless of whether or not Antonia Vda. de
Medina was the one who offered to sell the property to DAR, CALTEX can’t absolve itself from any responsibility.

xxxx

So whether or not the first voluntary offer to sell to the Department of Agrarian Reform was made by Antonia Vda.
de Medina and the second offer was made by CALTEX to DAR, to our mind is, of no moment. One thing is thus,
clear, CALTEX who duly executed the necessary documents. There is nothing on record which would reveal that
[petitioners] was (sic) able to prove that [herein respondent] was fully informed of the first sale made to DAR.

Further, [petitioners] claimed that being a son-in-law,it (sic) would be impossible for [respondent] not to know it. This
is not sufficient reason to conclude that [respondent] was aware of the attending circumstances. And we cannot
therefore, agree with the conclusion of the DOJ.

Clearly then, the evidence points out that what appears to have been sold were the properties described in the 14
TCT’s without any qualification thereon. And that the existence of a double sale can’t be contested, there being an
admission by the [petitioners] that there was a sale made to DAR prior to herein [respondent].

xxxx

With the acts of CALTEX in the case at bar it can be gleaned therefrom that there was no clear transactions [sic]
that took place, thus, there was an evident misrepresentation to the damage and prejudice of the [respondent]. As
supported by the Deed of Assignment itself, the assurances given by the assignor CALTEX to [respondent] is a
grave misrepresentation to the [respondent] who is the buyer of the properties in question. That where there was no
divulgement made by the CALTEX to petitioner of the sale to DAR, there is no question that deceit is present. The
presence of damage and deceit are (sic) apparent in the present case, hence, the very elements of Estafa exist.
Even granting that the sale was only with respect to the individual share or interest of CALTEX, it can’t be denied
that deceit was committed by [petitioners, et al.] in not being fair, honest in not revealing the real status of the
subject lot. x x x Had it not been of such misrepresentation, the Court believes that [respondent] would not have
parted substantial amount of money.

From the foregoing premises, a prima facie case of ESTAFA was herein committed by the [petitioners, et al.] on the
ground of double sale. And the only way to determine whether [petitioners, et al.] herein are guilty or not is in a full
blown trial before a Court. However, we do not find any participation of the Deputy Sheriff Adolfo Garcia on the issue
of double sale, it appearing that he has nothing to do with the transaction between CALTEX and Department of
Agrarian Reform. This Court is convinced that the Deputy Sheriff had just performed a ministerial duty imposed
upon him by law.

After their Motion for Reconsideration was denied by the Court of Appeals, in its Resolution,22 dated 14 November
2002, petitioners come before this Court via a Petition for Review on Certiorari under Rule 45 of the Rules of Court.
Petitioners posit that the Court of Appeals erred in finding that there exists a prima facie case against them
considering that: (1) Petitioners never deceived respondent with regard to the background circumstances of the
subject real properties; (2) There was no "double sale" made by CPI of its rights and interests in the subject real
properties; and (3) There exists no proof of specific overt acts or omission of each of the petitioners which would
constitute conspiracy in committing the alleged crime of estafa.

This Court finds the Petition at bar meritorious.

In his complaint, respondent charges petitioners, together with other persons no longer part of the present Petition,
of two counts of estafa by means of deceit: (1) estafa by means of false pretenses, under Article 315(2)(a) of the
Revised Penal Code; and (2) estafa by means of concealment, under Article 315(3)(c) of the same Code. Relevant
provisions of the Revised Penal Code expressly read thus –

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by:

xxxx

[P]rovided that in the four cases mentioned, the fraud be committed by any of the following means:

xxxx

(2) By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneous with the
commission of the fraud:

(a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of other similar deceits;

xxxx

(3) Through any of the following fraudulent means:

xxxx

(c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other
paper.

The elements of estafa by means of deceit,23 whether committed by false pretenses or concealment, are the
following –

a. That there must be a false pretense, fraudulent act or fraudulent means.

b. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or
simultaneously with the commission of the fraud.

c. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that
is, he was induced to part with his money or property because of the false pretense, fraudulent act, or
fraudulent means.

d. That as a result thereof, the offended party suffered damage.

Now the question is whether there exists probable cause that petitioners committed the crime of estafa by means of
deceit which would warrant the filing of an information against them before the trial court.

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted. Probable cause is a reasonable ground of presumption that a matter is, or
may be, well-founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean
"actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense
charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.24 While
probable cause demands more than "bare suspicion," it requires "less than evidence which would justify conviction."
A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.25

The conduct of preliminary investigation for the purpose of determining the existence of probable cause is executive
in nature.26 The prosecution of crimes appertains to the executive department of the government whose principal
power and responsibility is to see that the laws of the land are faithfully executed. A necessary component of this
power to execute the laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a
wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors.27

The main function of a government prosecutor during his conduct of preliminary investigation is to determine the
existence of probable cause and to file the corresponding information should he find it to be so.28 The purpose of a
preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to
protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and
also to protect the state from useless and expensive trials. A preliminary investigation serves not only the purposes
of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who
live in this country. It is, therefore, imperative upon the fiscal to relieve the accused from the pain of going through a
trial once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused.29

A prosecutor, by the nature of his office, is under no compulsion to file a particular criminal information where he is
not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a
different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor.
But this Court must have to recognize that a prosecutor should not be unduly compelled to work against his
conviction.30 Although the power and prerogative of the prosecutor, to determine whether or not the evidence at
hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute but subject to
judicial review, it would be embarrassing for him to be compelled to prosecute a case when he is in no position to do
so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced
of the merits of the case.31

Hence, this Court consistently adheres to its policy of non-interference in the conduct of preliminary investigations,
and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes
sufficient evidence as will establish probable cause for the filing of an information against a supposed offender.32

In the present case, the Makati City Prosecution Office, as well as the DOJ, found no probable cause that petitioners
committed estafa by deceit to the damage of respondent. There was no factual or legal basis for the Court of
Appeals to reverse the findings of the prosecutor who conducted the preliminary investigation in I.S. No. 97-22188-
191.

It should do well for the Court of Appeals to remember that the DOJ Resolutions, dated 27 July 1998 and 30 June
1999, affirming the dismissal by the Makati City Prosecution Office of respondent’s complaint against petitioners,
were brought before it via a Petition on Certiorari under Rule 65 of the Rules of Court. Its duty is confined to
determining whether the executive determination of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Thus, although it is entirely possible that the investigating prosecutor may
erroneously exercise the discretion lodged in him by law, this does not render his act amenable to correction and
annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to
excess of jurisdiction.33

For the courts to grant the extraordinary writ of certiorari, so as to justify the reversal of the investigating
prosecutor’s finding on the existence or absence of probable cause to file an information, the one seeking the writ
must be able to establish the following –

For grave abuse of discretion to prosper as a ground for certiorari, it must first be demonstrated that the lower court
or tribunal has exercised its power in an arbitrary and despotic manner, by reason of passion or personal hostility,
and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty
enjoined or to act in contemplation of law. Grave abuse of discretion is not enough. Excess of jurisdiction signifies
that the court, board or office, has jurisdiction over the case but has transcended the same or acted without
authority. 34

Try as we might, this Court cannot find grave abuse of discretion on the part of the DOJ, when it affirmed the finding
of the Makati City Prosecution Office, that there was no probable cause to file an information for estafa by means of
deceit against petitioners and resolved to dismiss respondent’s complaint. There is absolutely no showing that the
DOJ, in the exercise of its power to review on appeal the findings of the Makati City Prosecution Office, acted in an
arbitrary and despotic manner, so patent or gross as to amount to an evasion or unilateral refusal to perform its
legally-mandated duty. On the contrary, this Court finds the Resolutions of the DOJ, as well as that of the Makati
City Prosecution Office, to be more in accordance with the evidence on record and relevant laws and jurisprudence
than the assailed Decision of the Court of Appeals.

Respondent charges petitioners with the crime of estafa because they allegedly employed deceit to induce
respondent to enter into a contract of sale with CPI by (1) falsely misrepresenting that CPI was the owner of and,
thus, could assign to respondent the entire subject real properties, when in truth, CPI only acquired and could
assign to respondent the limited interest of Antonia Vda. de Medina in the subject real properties; and (2)
fraudulently concealing the fact that the subject real properties were covered by CARP and were actually the subject
of a pending VOS with the DAR.

It is worth stressing that it was respondent who initiated the complaint before the Makati City Prosecution Office.
Thus, upon him rests the burden of supporting his charges with affidavits and any other evidence, for it is upon
these evidence thus adduced, that the investigating prosecutor determines the existence, or in this case, the
absence, of probable cause to hold the petitioners for trial for the crimes charged. Respondent must have
necessarily tendered evidence, independent of and in support of the allegations in his affidavit-complaint, of such
quality as to engender belief in an ordinarily prudent and cautious man that the offense charged therein has been
committed by the petitioners. Indeed, probable cause need not be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt, but it certainly demands more than bare suspicion and can never be left to presupposition,
conjecture, or even convincing logic.35

Respondent, however, miserably failed to present sufficient evidence to establish probable cause for the filing of an
information against petitioners for estafa by means of deceit.1awphi1.nét The only evidence presented by
respondent that would directly establish the deceit allegedly perpetrated by the petitioners consists of his very own
affidavits and that of his alleged counsel, Atty. Villacorta. These had been sufficiently rebutted by the evidence of the
petitioners. The affidavits of petitioners, Deputy Sheriff Garcia, and witnesses Attys. Libunao and Manahan, all
presented a consistent, coherent, and credible version of events, adequately supported by other documentary
evidence. Even respondent’s own documentary evidence was satisfactorily explained or was even consistent with
the version of events as presented by petitioners and their witnesses. The sale of CPI’s interest in the subject real
properties to respondent was a legitimate business transaction, done in the course of CPI’s business, and
petitioners did nothing more than to carry out their respective functions as officers of CPI to perfect and execute the
sale.

Moreover, as between the mere denial constituting self-serving negative assertions of respondent that he did not
fully know of the circumstances and the current status of the subject real properties he acquired from CPI, and the
positive and categorical declarations of petitioners and their witnesses that respondent was duly informed thereof,
the choice is not hard to make, for the jurisprudence on the matter is that positive statement is stronger and attains
greater evidentiary weight than negative evidence.36

Also, this Court seriously doubts that, given the particular circumstances of this case, respondent was indeed
clueless or ignorant of the true state of affairs of the subject real properties.

First, Antonia Vda. de Medina, from whom CPI acquired its interest in the subject real properties, is the respondent’s
mother-in-law. He is married to Ma. Luisa Victoria Medina, one of the co-heirs and co-owners of the subject real
properties. The Court of Appeals brushed aside the relations between Antonia Vda. de Medina and respondent as
insufficient to conclude that respondent knew of the circumstances and status of the subject real properties.
Although it may not constitute as conclusive evidence, the relations between Antonia Vda. de Medina and
respondent casts serious doubts on respondent’s assertions. Given the close-knit relations among Filipino family
members, it is almost impossible that his mother-in-law Antonia Vda. de Medina, his wife Ma. Luisa Victoria Medina,
and respondent, never talked about the subject real properties; more so, if we consider that respondent is a lawyer
who can freely and readily give legal advice to his mother-in-law and his wife to protect their remaining rights and
interests in the subject real properties.

Neither can this Court give credence to respondent’s contention that his wife Ma. Luisa Victoria Medina, born 30
January 1972, was only a minor when CPI instituted Civil Case No. 84-22434 against her mother Antonia Vda. de
Medina, before the Manila RTC on 18 February 1984; when judgment was rendered therein against her mother on
17 September 1984; and when the subject real properties were sold in favor of CPI at the execution sale on 24
August 1989. Respondent avers that his wife then still failed to grasp the significance of the events taking place as
regards CPI, her mother, and the subject real properties. Respondent seems to ignore the fact that his wife grew up,
and the likelihood that she eventually came to understand the history and legal problems besetting the subject real
properties. In fact, respondent does not deny that on 26 September 1996, his wife Ma. Luisa Victoria Medina,
together with the other heirs of her deceased father Antonio Medina, filed a civil complaint with the RTC of Ilagan,
Isabela, docketed as Civil Case No. 948, in which they questioned and, thus, admitted knowledge of the VOS made
by CPI in favor of DAR.37 And if Ma. Luisa Victoria Medina already knew that the subject real properties were
voluntarily offered for sale by CPI to the DAR, it is highly unlikely that she would have kept such information from
respondent, her husband.

It should also be recalled that it was respondent who approached CPI first and sought the purchase of its interest in
the subject real properties. Respondent never explained how he knew of CPI’s interest in the subject real properties.
Neither did respondent allege nor prove that CPI actively offered for sale to the public its interest in the subject real
properties. The only logical deduction would be that respondent came to know of CPI’s interest in the subject real
properties through his wife and/or mother-in-law. In fact, in consideration of respondent’s purchase of the interest of
CPI in the subject real properties for P3.5 Million, respondent was able to secure the execution by CPI of the Deed
of Waiver and Quitclaim, dated 22 December 1994, by virtue of which, CPI waived any further claim for sum of
money and damages from respondent’s mother-in-law Antonia Vda. de Medina, and discharged the latter from any
and all pending court case liabilities, whether civil or criminal, filed by CPI against her. That respondent sought the
execution by CPI of the said Deed of Waiver and Quitclaim, which obviously benefited his mother-in-law, only
supports the view that respondent not only knew of the current status of the subject real properties, but also the
history of the legal tussle between Antonia Vda. de Medina and CPI, which resulted in the transfer of Antonia Vda.
de Medina’s interest in the subject real properties to CPI.

Respondent’s contention of his seeming disconnection and isolation from the affairs of his wife’s family is
undoubtedly contrary to the common family life experience of Filipinos. Reference is made herein to the quote of
Vice-Chancellor Van Fleet, reproduced in Pacheco v. Hon Court of Appeals and People of the Philippines38 –

Evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself -
such as the common experience and observation of mankind can approve as probable under the circumstances.
We have no test of the truth of human testimony, except its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance.39

Second, there is a clear paper trail by which respondent could have traced and uncovered the true status of the
subject real properties. CPI itself provided respondent with some of these documents, while the others are part of
public records to which respondent had access.

There is scant evidence on record that CPI or any of its officers, including herein petitioners, had willfully and
maliciously made false misrepresentations to respondent that CPI owned the subject real properties in its entirety.
Again, only the affidavits of respondent and Atty. Villacorta directly and positively describe how the alleged false
misrepresentations were made, and, even therein, they could only attribute the same to petitioner Atty. Poblador,
and no other. Thus, it behooves this Court how, from respondent’s self-serving and unsubstantiated allegations, it
can jump off to conclude that all the petitioners, in conspiracy and with criminal intent, made false
misrepresentations on behalf of CPI to the damage of respondent.

Instead, the documentary evidence on record establishes that CPI laid claim on and actually acquired only the
limited interest of Antonia Vda. de Medina in the subject real properties and nothing more. 1ªvvphi1.nét

The Notice of Levy on Attachment40 issued on 7 February 1984 by Deputy Sheriff Garcia to the Register of Deeds of
Ilagan, Isabela, during the pendency of Civil Case No. 84-22434 before the Manila RTC, clearly stated that what
was being levied upon was limited to "the rights, interest, title and participation" which Antonia Vda. de Medina may
have in the real properties enumerated therein.

In its letter,41 dated 23 August 1989, addressed to Deputy Sheriff Garcia, CPI presented its bid of P4.5 Million at the
auction sale of the properties of Antonia Vda. de Medina, held to satisfy the latter’s judgment debt to CPI in Civil
Case No. 84-22434. CPI’s bid was conditioned on the following –

[2] With respect to property under the exclusive name of Antonia Caragayan Vda. de Medina, the Certificate
of Sale shall indicate that the said property together with improvements thereon, is sold to the successful
bidder.

[3] With respect to property registered in the name of Heirs of Antonio Medicna and/or Antonia Vda. de
Medina representing or as Administration [sic] of Estate of Antonio of Antonio Medina the Certificate of Sale
shall refer only [to] the rights, interests, claims and participation of Antonia Vda. de Medina in the covered
property and improvements since she has co-heirs, a son and a daughter. In the computation of the
undivided interest of Antonia Vda. de Medina and the two heirs, since the property appear to be conjugal,
two thirds [66.67%] of the property pertains to Antonia Vda. de Medina while the remaining one-third
[33.34%] pertains to the heirs, son and daughter. (Emphasis supplied.)
Respondent himself, in his letter,42 dated 29 November 1994, addressed to CPI, wrote in the first paragraph that,
"We are pleased to inform you that we accept your offer to sell to us for P3.5 Million your interest in the foreclosed
Medina properties." CPI’s interest in the subject real properties, as referred to in respondent’s letter, could be
nothing more than the same interest therein of Antonia Vda. de Medina.

Thus, although the Deed of Assignment with Consolidation of Title43 executed between CPI and respondent on 22
June 1995, provides that –

1. For and in consideration of the sum of THREE MILLION FIVE HUNDRED THOUSAND PERSOS
(P3,500,000.00), Philippine Currency, receipt of which is acknowledged, [CPI] hereby assigns, transfers and
conveys unto and in favor of [respondent], his heirs, executors and assigns, the Properties aforedescribed.

it should not be taken to mean that what CPI was assigning to respondent was the entirety of the subject
real properties, instead of merely the limited interest therein acquired by CPI from Antonia Vda. de Medina.
The reference in the said paragraph, as well as in any other part of the Deed, to "Properties" without
particularly limiting or qualifying the same to the undivided interest of CPI in the subject real properties,
could be more of a problem of imprecise use of terms rather than a criminal intent to defraud and mislead
respondent. Even so, the afore-quoted paragraph should be read in conjunction with the rest of the Deed,
especially the succeeding paragraphs, to wit –

3. [Respondent] acknowledges that he is fully aware of the circumstances under which these Properties
were acquired by [CPI] and that he examined the title and inspected the properties and verified their location
together with their boundaries. [CPI] shall therefore be no longer obliged to submit to [respondent] a location
survey plan of the Properties nor pinpoint the same to [respondent].

4. [Respondent] further acknowledges that the Properties are presently occupied by squatters and other
adverse occupants and that [CPI] makes no warranty that possession can be immediately delivered to
[respondent] free and clear of these squatters and other adverse occupants. All the expenses for the
eviction of these persons shall be borne by [respondent].

5. [CPI] warrants the genuineness of its interest over said Properties and that it shall, if necessary, execute
any additional documents to complete the title of [respondent] to above-described Properties. No warranty,
however, as to the Properties’ classification or primary use is hereby given.

Respondent, by virtue of paragraphs 3 and 4 of the Deed of Assignment with Consolidation of Title, explicitly
acknowledges that he is fully aware of the circumstances by which CPI acquired its interest in the subject real
properties; that he has examined the title; that he has inspected the properties; and that he acknowledges that the
subject real properties are occupied by squatters and other adverse occupants. The said acknowledgments made
by respondent dispute any claim on his part that he was misled to believe that when he entered into the contract of
sale with CPI, he was acquiring the entirety of the subject real properties.

Respondent had every opportunity to verify what he was actually purchasing from CPI. He already admits knowing
the circumstances by which CPI acquired its interest in the subject real properties. If this is truly so, respondent
should have known that the subject real properties were inherited, intestate, by Antonia Vda. de Medina and her co-
heirs, from Antonia’s deceased husband, Antonio; that Antonia Vda. de Medina is just one of the heirs of the late
Antonio Medina, so she co-owns with the other heirs, in undivided shares or interests, the subject real properties;
that Antonia Vda. de Medina’s undivided interest in the subject real properties was sold at an auction sale held to
satisfy her judgment debt to CPI in Civil Case No. 84-22434; that CPI gave the highest bid at the auction sale and
was thus awarded Antonia Vda. de Medina’s limited interest in the subject real properties; that when Antonia Vda.
de Medina failed to redeem her interest in the subject real properties within a year, title was thereby consolidated in
CPI; and that even before CPI acquired Antonia Vda. de Medina’s interest in the subject real properties, she,
together with all the other heirs of her late husband Antonio Medina, had already voluntarily offered to sell the
subject real properties to DAR. With respondent’s knowledge of the foregoing circumstances, coupled with his
extensive legal knowledge as a lawyer, then respondent should have realized that what he was acquiring from CPI
shall be nothing more than the same limited interest in the subject real properties acquired by CPI from Antonia Vda.
de Medina.

Even if the Deed of Assignment with Consolidation of Title was prepared entirely by CPI, respondent cannot claim
that the same was a contract of adhesion, in which he had no other participation but to adhere to. There were
several meetings between CPI and respondent precisely for the purpose of negotiating the terms of their contract.
Contrary to respondent’s contention that the Deed contained "so many ambiguities, subterfurge and clever craft" to
allow CPI a "back-door retreat," if necessary, this Court finds that it is actually couched in simple terms easily
understandable, and capable of no other possible and reasonable interpretation than what this Court had already
discussed in the preceding paragraphs. Respondent, as a lawyer, is very capable of reviewing the Deed himself. He
must also know that he had a legal right to revise certain terms or provisions thereof if he found these too
ambiguous. Respondent was actually given time to review and revise the Deed, and for some unexplained reason,
his only revision was to change his status from "married" to "single."
Furthermore, assuming that respondent had absolutely no knowledge of the circumstances surrounding CPI’s
acquisition of its interest in the subject real properties from Antonia Vda. de Medina, then his examination of the
transfer certificates of title (TCTs) should have revealed to him such circumstances or, at the very least, led him to
ask questions about the same. The court processes44 issued by the Manila RTC in Civil Case No. 84-22434,
affecting the subject real properties, and duly served on the Register of Deeds, were clearly annotated on the TCTs
covering the subject real properties. What is more, the TCTs were all still in the name of the Heirs of Antonio
Medina, not CPI. Such a fact should have been a caveat to respondent to proceed with the transaction with more
prudence and to inquire into CPI’s title to or interest in the subject properties, as well as the circumstances attendant
to its acquisition thereof. According to a well-established rule in our jurisdiction –

The law protects to a greater degree a purchaser who buys from the registered owner himself. Corollarily, it requires
a higher degree of prudence from one who buys from a person who is not the registered owner, although the land
object of the transaction is registered. While one who buys from the registered owner does not need to look behind
the certificate of title, one who buys from one who is not the registered owner is expected to examine not only the
certificate of title but all factual circumstances necessary for him to determine if there are any flaws in the title of the
transferor, or in his capacity to transfer the land.45 (Emphasis supplied.)

Respondent could be reasonably assumed to be familiar with the foregoing since he is a lawyer.1awphi1.nét

Third, respondent is a lawyer and, as such, he is presumed to know the law.46 Though respondent may not be
actively practicing law as a profession, the legal rules and principles applicable to the present Petition are so basic
and fundamental, and which respondent must have learned even while he was still studying law. Respondent is also
a businessman who must possess some degree of shrewdness in his dealings so as to protect his business
interests. With respondent’s qualifications as a lawyer and a businessman, while they may not protect him
absolutely, make him less susceptible to deception as compared to an ordinary layperson.

The Court of Appeals, in its Decision, dated 29 January 2001, found that CPI committed a double sale of the subject
real properties when it sold the same first to the DAR, then second to the respondent. It declared that a VOS is
already a consummated sale because landowners who made such an offer can no longer back out. This declaration
by the Court of Appeals has no basis in law or jurisprudence.

Respondent’s mother-in-law Antonia Vda. de Medina decided to avail of the VOS under Republic Act No. 6657,
otherwise known as the Comprehensive Agrarian Reform Law (CARL) of 1988. On 5 April 1988, she executed a
Special Power of Attorney (SPA)47 designating a certain Carlito Balauag to represent her and her children in any
and all transactions with the DAR and the Landbank of the Philippines (Landbank) and to place the subject real
properties under the voluntary coverage of CARP. Worth noting is the fact that the SPA covers not just Antonia Vda.
de Medina’s share but all of the subject real properties. Pursuant to his SPA, Carlito Balauag submitted on 10 March
1989 the VOS Forms covering the subject real properties to the DAR. He signed the said forms on behalf of the
landowners, who he identified as the "Heirs of Antonio Medina."

However, just a few days earlier, on 22 February 1989, Antonia Vda. de Medina executed a Deed of Assignment
(with Special Power of Attorney Coupled with Interest),48 in which, for and in consideration of her unpaid obligations
to CPI, she assigned all of her "rights, interests, claims and participation from the proceeds of land compensation"
for the property she voluntarily offered to sell and transfer under the CARP. She claimed in the same Deed that the
VOS was already under process for indorsement to the Landbank. Hence, she was appointing CPI as her exclusive
attorney-in-fact to follow-up the processing of the VOS papers with the DAR and the Landbank. On 13 August 1993,
CPI, pursuant to the authority granted to it by Antonia Vda. de Medina under the same Deed, submitted new VOS
Forms covering the subject real properties.

By virtue of the foregoing, should the VOS covering the subject real properties already be deemed a consummated
sale? This Court rules in the negative.

The CARL of 1988 encourages landowners to voluntarily offer for sale their lands by giving an additional five percent
compensation to those who avail of this option.49 To implement the VOS scheme under the CARL of 1988, the DAR
issued Administrative Order No. 3, series of 1989, subsequently revised by Administrative Order No. 9, series of
1990, which provided for the rules and procedure governing the acquisition by the government of land subject of a
VOS. A cursory reading of these Administrative Orders would reveal that a VOS undergoes a long process. It is
initiated by the filing by the landowner of the VOS Form and other required documents. The VOS is reviewed,
among other personalities, by the Municipal Agrarian Reform Officer (MARO), the Provincial Agrarian Reform
Officer (PARO), the DAR Regional Director, the Bureau of Land Acquisition and Development (BLAD), and the
Landbank, for purposes of identifying the land and the qualified tenants, the valuation of the land, and payment of
just compensation to the landowner.

In the case of Government Service Insurance Systems, Inc. v. Court of Appeals,50 this Court already ruled that –

While it is true that under DAR Administrative Order No. 3, series of 1989, it is not necessary that the voluntary
offeror of the lot be the registered owner thereof, private respondent failed to show that the DAR accepted and
approved his offer to sell. Without said approval and acceptance, private respondent cannot safely presume that his
voluntary offer to sell was accepted by the DAR. Notably, the word "offer," is subject to acceptance. The voluntary
offer to sell is in fact reviewed and evaluated by the DAR before a corresponding notice of acceptance is sent to the
landowner. The applicable rules and procedure governing voluntary offer to sell (VOS) at the time private
respondent made his offer provides:

xxxx

Evidently, without the notice informing the landowner of the DAR’s conformity with the offer to sell, private
respondent cannot validly presume that his offer to sell has been accepted by the DAR and that the latter will now
assume the payment of the loan to the GSIS. (Emphasis supplied.)

Hence, a VOS, as its name implies, is a voluntary offer to sell the land to the government so that the latter can
distribute the same to qualified tenants. While a landowner who voluntarily offered his land for sale is precluded from
withdrawing his offer except under specified circumstances, such a condition does not make the mere offer a
consummated sale. It bears to emphasize that the offer still needs to be accepted by the DAR on behalf of the
government, and just compensation for the land determined and paid to the landowner. The sale is deemed
consummated when the landowner has received payment or deposit by the DAR of just compensation with an
accessible bank, in cash or Landbank bonds, since only then is ownership of the land finally transferred from the
landowner to the government.51

In the present case, the VOS covering the subject real properties is still being processed by the DAR. There has so
far been no express acceptance by the DAR of the said VOS or payment of just compensation to CPI. There being
no consummated sale of the subject real properties to DAR, CPI could not have committed a double sale of the
same. It remained a co-owner of the subject real properties, together with the other heirs of Antonio Medina, and,
thus, it could still legally sell its share or interest therein to another person, such as respondent. Should the DAR
finally approve the VOS covering the subject real properties, then respondent, after acquiring the interest of CPI,
shall be entitled to just compensation corresponding to his interest.

After finding that petitioners did not deceive respondent into purchasing CPI’s limited interest in the subject real
properties, then it necessarily follows that there can be no conspiracy to commit such deception. This Court would
still want to point out that respondent’s accusation of conspiracy was so stretched that he implicated in his complaint
members of the CPI Board of Directors who did nothing more than sign a resolution authorizing the sale of CPI’s
interest in the subject real properties to respondent. Yet again, the existence of conspiracy among the CPI officers
rests on no other evidence but respondent’s own allegations in his affidavits. Conspiracy cannot be established by
mere inferences or conjectures.52 It is incumbent upon respondent to prove that each of the petitioners performed an
overt act in pursuance or furtherance of the alleged complicity, so as to convince the investigating prosecutor that
there is probable cause that petitioners conspired with one another to commit the crime.53 However, respondent’s
general accusations against petitioners and the other CPI officers do little to persuade.

WHEREFORE, premises considered, the instant Petition is hereby GRANTED. The Decision, dated 29 January
2001, and Resolution, dated 14 November 2002, of the Court of Appeals in CA-G.R. SP No. 54862, are hereby
REVERSED and SET ASIDE. Respondent’s complaint in I.S. No. 97-22188-191 is hereby ordered DISMISSED.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

On leave.
MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.
Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

SECOND DIVISION

[G.R. No. 118978. May 23, 1997]

PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and GRACE DE GUZMAN, respondents.

DECISION
REGALADO, J.:

Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph and Telephone Company
(hereafter, PT&T) invokes the alleged concealment of civil status and defalcation of company funds as grounds to
terminate the services of an employee. That employee, herein private respondent Grace de Guzman, contrarily argues
that what really motivated PT&T to terminate her services was her having contracted marriage during her employment,
which is prohibited by petitioner in its company policies. She thus claims that she was discriminated against in gross
violation of law, such a proscription by an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a Supernumerary Project Worker,
for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on maternity
leave.[1] Under the Reliever Agreement which she signed with petitioner company, her employment was to be
immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1, 1991, and
from July 19, 1991 to August 8, 1991, private respondents services as reliever were again engaged by petitioner, this
time in replacement of one Erlinda F. Dizon who went on leave during both periods. [2] After August 8, 1991, and
pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary
employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up
for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted
marriage a few months earlier, that is, on May 26, 1991.[3]
It now appears that private respondent had made the same representation in the two successive reliever
agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the
same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated
January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the
companys policy of not accepting married women for employment.[4]
In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&Ts policy
regarding married women at the time, and that all along she had not deliberately hidden her true civil
status.[5] Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from
the company effective January 29, 1992,[6] which she readily contested by initiating a complaint for illegal dismissal,
coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration Branch of
the National Labor Relations Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private respondent volunteered the information,
and this was incorporated in the stipulation of facts between the parties, that she had failed to remit the amount
of P2,380.75 of her collections. She then executed a promissory note for that amount in favor of petitioner.[7] All of
these took place in a formal proceeding and with the agreement of the parties and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision declaring that private
respondent, who had already gained the status of a regular employee, was illegally dismissed by petitioner. Her
reinstatement, plus payment of the corresponding back wages and COLA, was correspondingly ordered, the labor
arbiter being of the firmly expressed view that the ground relied upon by petitioner in dismissing private respondent
was clearly insufficient, and that it was apparent that she had been discriminated against on account of her having
contracted marriage in violation of company rules.
On appeal to the National Labor Relations Commission (NLRC), said public respondent upheld the labor arbiter
and, in its decision dated April 29, 1994, it ruled that private respondent had indeed been the subject of an unjust and
unlawful discrimination by her employer, PT&T. However, the decision of the labor arbiter was modified with the
qualification that Grace de Guzman deserved to be suspended for three months in view of the dishonest nature of her
acts which should not be condoned. In all other respects, the NLRC affirmed the decision of the labor arbiter, including
the order for the reinstatement of private respondent in her employment with PT&T.
The subsequent motion for reconsideration filed by petitioner was rebuffed by respondent NLRC in its resolution
of November 9, 1994, hence this special civil action assailing the aforestated decisions of the labor arbiter and
respondent NLRC, as well as the denial resolution of the latter.
1. Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but,
through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women
constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor,
especially on the matter of equal employment opportunities and standards. In the Philippine setting, women have
traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded
with preventive and remedial social legislation against discriminatory and exploitative practices in hiring, training,
benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and
political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II[8] on
the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and
commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary
thereto, Section 3 of Article XIII[9] (the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly
requires the State to afford full protection to labor and to promote full employment and equality of employment
opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of
Article XIII[10] mandates that the State shall protect working women through provisions for opportunities that would
enable them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged with more frequency in the years since
the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our countrys commitment
as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW).[11]
Principal among these laws are Republic Act No. 6727[12] which explicitly prohibits discrimination against women
with respect to terms and conditions of employment, promotion, and training opportunities; Republic Act No.
6955[13] which bans the mail-order-bride practice for a fee and the export of female labor to countries that cannot
guarantee protection to the rights of women workers; Republic Act No. 7192,[14]also known as the Women in
Development and Nation Building Act, which affords women equal opportunities with men to act and to enter into
contracts, and for appointment, admission, training, graduation, and commissioning in all military or similar schools of
the Armed Forces of the Philippines and the Philippine National Police; Republic Act No. 7322 [15] increasing the
maternity benefits granted to women in the private sector; Republic Act No. 7877[16] which outlaws and punishes
sexual harassment in the workplace and in the education and training environment; and Republic Act No. 8042,[17] or
the Migrant Workers and Overseas Filipinos Act of 1995, which prescribes as a matter of policy, inter alia, the
deployment of migrant workers, with emphasis on women, only in countries where their rights are secure. Likewise, it
would not be amiss to point out that in the Family Code,[18] womens rights in the field of civil law have been greatly
enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138
thereof. Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women
to be provided with facilities and standards which the Secretary of Labor may establish to ensure their health and
safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic,
bar or other similar establishments shall be considered as an employee under Article 138. Article 135, on the other
hand, recognizes a womans right against discrimination with respect to terms and conditions of employment on
account simply of sex. Finally, and this brings us to the issue at hand, Article 136 explicitly prohibits discrimination
merely by reason of the marriage of a female employee.
3. Acknowledged as paramount in the due process scheme is the constitutional guarantee of protection to labor
and security of tenure. Thus, an employer is required, as a condition sine qua non prior to severance of the
employment ties of an individual under his employ, to convincingly establish, through substantial evidence, the
existence of a valid and just cause in dispensing with the services of such employee, ones labor being regarded as
constitutionally protected property.
On the other hand, it is recognized that regulation of manpower by the company falls within the so-called
management prerogatives, which prescriptions encompass the matter of hiring, supervision of workers, work
assignments, working methods and assignments, as well as regulations on the transfer of employees, lay-off of
workers, and the discipline, dismissal, and recall of employees.[19] As put in a case, an employer is free to regulate,
according to his discretion and best business judgment, all aspects of employment, from hiring to firing, except in
cases of unlawful discrimination or those which may be provided by law.[20]
 In the case at bar, petitioners policy of not accepting or considering as disqualified from work any woman worker
who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by
our labor laws and by no less than the Constitution. Contrary to petitioners assertion that it dismissed private
respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company
were dissolved principally because of the companys policy that married women are not qualified for employment in
PT&T, and not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the
branch supervisor of the company, with the reminder, in the words of the latter, that youre fully aware that the company
is not accepting married women employee (sic), as it was verbally instructed to you.[21] Again, in the termination notice
sent to her by the same branch supervisor, private respondent was made to understand that her severance from the
service was not only by reason of her concealment of her married status but, over and on top of that, was her violation
of the companys policy against marriage (and even told you that married women employees are not applicable [sic]
or accepted in our company.)[22] Parenthetically, this seems to be the curious reason why it was made to appear in
the initiatory pleadings that petitioner was represented in this case only by its said supervisor and not by its highest
ranking officers who would otherwise be solidarily liable with the corporation.[23]
Verily, private respondents act of concealing the true nature of her status from PT&T could not be properly
characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to retain
a permanent job in a stable company. In other words, she was practically forced by that very same illegal company
policy into misrepresenting her civil status for fear of being disqualified from work. While loss of confidence is a just
cause for termination of employment, it should not be simulated.[24] It must rest on an actual breach of duty committed
by the employee and not on the employers caprices.[25]Furthermore, it should never be used as a subterfuge for
causes which are improper, illegal, or unjustified.[26]
In the present controversy, petitioners expostulations that it dismissed private respondent, not because the latter
got married but because she concealed that fact, does have a hollow ring. Her concealment, so it is claimed, bespeaks
dishonesty hence the consequent loss of confidence in her which justified her dismissal. Petitioner would asseverate,
therefore, that while it has nothing against marriage, it nonetheless takes umbrage over the concealment of that
fact. This improbable reasoning, with interstitial distinctions, perturbs the Court since private respondent may well be
minded to claim that the imputation of dishonesty should be the other way around.
Petitioner would have the Court believe that although private respondent defied its policy against its female
employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits as
unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial matter to
which it supposedly has no objection. In other words, PT&T says it gives its blessings to its female employees
contracting marriage, despite the maternity leaves and other benefits it would consequently respond for and which
obviously it would have wanted to avoid. If that employee confesses such fact of marriage, there will be no sanction;
but if such employee conceals the same instead of proceeding to the confessional, she will be dismissed. This line of
reasoning does not impress us as reflecting its true management policy or that we are being regaled with responsible
advocacy.
This Court should be spared the ennui of strained reasoning and the tedium of propositions which confuse
through less than candid arguments. Indeed, petitioner glosses over the fact that it was its unlawful policy against
married women, both on the aspects of qualification and retention, which compelled private respondent to conceal her
supervenient marriage. It was, however, that very policy alone which was the cause of private respondents secretive
conduct now complained of. It is then apropos to recall the familiar saying that he who is the cause of the cause is the
cause of the evil caused.
Finally, petitioners collateral insistence on the admission of private respondent that she supposedly
misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat insincere and
self-serving. Concededly, private respondent admitted in the course of the proceedings that she failed to remit some
of her collections, but that is an altogether different story. The fact is that she was dismissed solely because of her
concealment of her marital status, and not on the basis of that supposed defalcation of company funds. That the labor
arbiter would thus consider petitioners submissions on this supposed dishonesty as a mere afterthought, just to bolster
its case for dismissal, is a perceptive conclusion born of experience in labor cases. For, there was no showing that
private respondent deliberately misappropriated the amount or whether her failure to remit the same was through
negligence and, if so, whether the negligence was in nature simple or grave. In fact, it was merely agreed that private
respondent execute a promissory note to refund the same, which she did, and the matter was deemed settled as a
peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was
served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as
she was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just
when her probationary period was winding down clearly raises the plausible conclusion that it was done in order to
prevent her from earning security of tenure.[27] On the other hand, her earlier stints with the company as reliever were
undoubtedly those of a regular employee, even if the same were for fixed periods, as she performed activities which
were essential or necessary in the usual trade and business of PT&T.[28] The primary standard of determining regular
employment is the reasonable connection between the activity performed by the employee in relation to the business
or trade of the employer.[29]
 As an employee who had therefore gained regular status, and as she had been dismissed without just cause,
she is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of
allowances and other benefits or their monetary equivalent.[30] However, as she had undeniably committed an act of
dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the three-
month suspension imposed by respondent NLRC must be upheld to obviate the impression or inference that such act
should be condoned. It would be unfair to the employer if she were to return to its fold without any sanction whatsoever
for her act which was not totally justified. Thus, her entitlement to back wages, which shall be computed from the time
her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom
the amount corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner
PT&T. The Labor Code states, in no uncertain terms, as follows:

ART. 136. Stipulation against marriage. - It shall be unlawful for an employer to require as a condition of
employment or continuation of employment that a woman shall not get married, or to stipulate expressly or tacitly
that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.

This provision had a studied history for its origin can be traced to Section 8 of Presidential Decree No.
148,[31] better known as the Women and Child Labor Law, which amended paragraph (c), Section 12 of Republic Act
No. 679,[32] entitled An Act to Regulate the Employment of Women and Children, to Provide Penalties for Violations
Thereof, and for Other Purposes. The forerunner to Republic Act No. 679, on the other hand, was Act No. 3071 which
became law on March 16, 1923 and which regulated the employment of women and children in shops, factories,
industrial, agricultural, and mercantile establishments and other places of labor in the then Philippine Islands.
It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et al. vs. Philippine Air
Lines,[33] a decision that emanated from the Office of the President. There, a policy of Philippine Air Lines requiring
that prospective flight attendants must be single and that they will be automatically separated from the service once
they marry was declared void, it being violative of the clear mandate in Article 136 of the Labor Code with regard to
discrimination against married women. Thus:

Of first impression is the incompatibility of the respondents policy or regulation with the codal provision of
law. Respondent is resolute in its contention that Article 136 of the Labor Code applies only to women employed in
ordinary occupations and that the prohibition against marriage of women engaged in extraordinary occupations, like
flight attendants, is fair and reasonable, considering the pecularities of their chosen profession.

We cannot subscribe to the line of reasoning pursued by respondent. All along, it knew that the controverted policy
has already met its doom as early as March 13, 1973 when Presidential Decree No. 148, otherwise known as the
Women and Child Labor Law, was promulgated. But for the timidity of those affected or their labor unions in
challenging the validity of the policy, the same was able to obtain a momentary reprieve. A close look at Section 8 of
said decree, which amended paragraph (c) of Section 12 of Republic Act No. 679, reveals that it is exactly the same
provision reproduced verbatim in Article 136 of the Labor Code, which was promulgated on May 1, 1974 to take
effect six (6) months later, or on November 1, 1974.

It cannot be gainsaid that, with the reiteration of the same provision in the new Labor Code, all policies and acts
against it are deemed illegal and therefore abrogated. True, Article 132 enjoins the Secretary of Labor to establish
standards that will ensure the safety and health of women employees and in appropriate cases shall by regulation
require employers to determine appropriate minimum standards for termination in special occupations, such as
those of flight attendants, but that is precisely the factor that militates against the policy of respondent. The
standards have not yet been established as set forth in the first paragraph, nor has the Secretary of Labor issued
any regulation affecting flight attendants.

It is logical to presume that, in the absence of said standards or regulations which are as yet to be established, the
policy of respondent against marriage is patently illegal. This finds support in Section 9 of the New Constitution,
which provides:

Sec. 9. The State shall afford protection to labor, promote full employment and equality in employment, ensure
equal work opportunities regardless of sex, race, or creed, and regulate the relations between workers and
employees. The State shall assure the rights of workers to self-organization, collective bargaining, security of
tenure, and just and humane conditions of work x x x.

Moreover, we cannot agree to the respondents proposition that termination from employment of flight attendants on
account of marriage is a fair and reasonable standard designed for their own health, safety, protection and welfare,
as no basis has been laid therefor. Actually, respondent claims that its concern is not so much against the continued
employment of the flight attendant merely by reason of marriage as observed by the Secretary of Labor, but rather
on the consequence of marriage-pregnancy. Respondent discussed at length in the instant appeal the supposed ill
effects of pregnancy on flight attendants in the course of their employment. We feel that this needs no further
discussion as it had been adequately explained by the Secretary of Labor in his decision of May 2, 1976.
In a vain attempt to give meaning to its position, respondent went as far as invoking the provisions of Articles 52 and
216 of the New Civil Code on the preservation of marriage as an inviolable social institution and the family as a
basic social institution, respectively, as bases for its policy of non-marriage. In both instances, respondent
predicates absence of a flight attendant from her home for long periods of time as contributory to an unhappy
married life. This is pure conjecture not based on actual conditions, considering that, in this modern world,
sophisticated technology has narrowed the distance from one place to another. Moreover, respondent overlooked
the fact that married flight attendants can program their lives to adapt to prevailing circumstances and events.

Article 136 is not intended to apply only to women employed in ordinary occupations, or it should have categorically
expressed so. The sweeping intendment of the law, be it on special or ordinary occupations, is reflected in the whole
text and supported by Article 135 that speaks of non-discrimination on the employment of women.

The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining & Industrial
Corporation[34] considered as void a policy of the same nature. In said case, respondent, in dismissing from the service
the complainant, invoked a policy of the firm to consider female employees in the project it was undertaking as
separated the moment they get married due to lack of facilities for married women.Respondent further claimed that
complainant was employed in the project with an oral understanding that her services would be terminated when she
gets married. Branding the policy of the employer as an example of discriminatory chauvinism tantamount to denying
equal employment opportunities to women simply on account of their sex, the appellate court struck down said
employer policy as unlawful in view of its repugnance to the Civil Code, Presidential Decree No. 148 and the
Constitution.
Under American jurisprudence, job requirements which establish employer preference or conditions relating to
the marital status of an employee are categorized as a sex-plus discrimination where it is imposed on one sex and
not on the other. Further, the same should be evenly applied and must not inflict adverse effects on a racial or sexual
group which is protected by federal job discrimination laws.Employment rules that forbid or restrict the employment of
married women, but do not apply to married men, have been held to violate Title VII of the United States Civil Rights
Act of 1964, the main federal statute prohibiting job discrimination against employees and applicants on the basis of,
among other things, sex.[35]
Further, it is not relevant that the rule is not directed against all women but just against married women. And,
where the employer discriminates against married women, but not against married men, the variable is sex and the
discrimination is unlawful.[36] Upon the other hand, a requirement that a woman employee must remain unmarried
could be justified as a bona fide occupational qualification, or BFOQ, where the particular requirements of the job
would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the
workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary
for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight
attendants, was regarded as unlawful since the restriction was not related to the job performance of the flight
attendants.[37]
5. Petitioners policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a
woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise
assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a
privilege that by all accounts inheres in the individual as an intangible and inalienable right.[38] Hence, while it is true
that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient,
the same should not be contrary to law, morals, good customs, public order, or public policy.[39] Carried to its logical
consequences, it may even be said that petitioners policy against legitimate marital bonds would encourage illicit or
common-law relations and subvert the sacrament of marriage.
Parenthetically, the Civil Code provisions on the contract of labor state that the relations between the parties, that
is, of capital and labor, are not merely contractual, impressed as they are with so much public interest that the same
should yield to the common good.[40] It goes on to intone that neither capital nor labor should visit acts of oppression
against the other, nor impair the interest or convenience of the public.[41]In the final reckoning, the danger of just such
a policy against marriage followed by petitioner PT&T is that it strikes at the very essence, ideals and purpose of
marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation.[42] That it must
be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory
of the laws of the land is not only in order but imperatively required.
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone Company is hereby
DISMISSED for lack of merit, with double costs against petitioner.
SO ORDERED.
Romero, Puno, Mendoza, and Torres, Jr., JJ., concur.

[Syllabus]
SECOND DIVISION
 [G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION
MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court
of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondents
clinic without the latters knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered
the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondents
secretary, forcibly opened the drawers and cabinet in her husbands clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries,
Dr. Martins passport, and photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner.
The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private
respondent, Dr. Alfredo Martin, declaring him the capital/exclusive owner of the properties described in paragraph 3
of plaintiffs Complaint or those further described in the Motion to Return and Suppress and ordering Cecilia Zulueta
and any person acting in her behalf to immediately return the properties to Dr. Martin and to pay him P5,000.00, as
nominal damages; P5,000.00, as moral damages and attorneys fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from using or submitting/admitting as evidence the documents and papers in question.
On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin,
and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the
trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them
to private respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of
Appeals affirming the trial courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this
Court ruled that the documents and papers (marked as Annexes A-i to J-7 of respondents comment in that case) were
admissible in evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not constitute malpractice
or gross misconduct. For this reason it is contended that the Court of Appeals erred in affirming the decision of the
trial court instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things,
private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence,
Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr. which
it found to be impressed with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court, there was
admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex A-I to J-7.
On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court
issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence,
during the enforceability of this Courts order, respondents request for petitioner to admit the genuineness and
authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes. At that point in time, would it have been malpractice
for respondent to use petitioners admission as evidence against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is- not malpractice.

Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself under oath. Such
verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became
bound by his admission. For Cecilia to avail herself of her husbands admission and use the same in her action for
legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use
of the documents and papers for the purpose of securing Dr. Martins admission as to their genuiness and authenticity
did not constitute a violation of the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.
 It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary
injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement
of the order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually
lifted as the petition for certiorari filed by petitioner against the trial courts order was dismissed and, therefore, the
prohibition against the further use of the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring the privacy of communication and correspondence [to be] inviolable3 is no less applicable simply because
it is the wife (who thinks herself aggrieved by her husbands infidelity) who is the party against whom the constitutional
provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order [from
a] court or when public safety or order requires otherwise, as prescribed by law.4 Any violation of this provision renders
the evidence obtained inadmissible for any purpose in any proceeding.5
The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of
the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does
not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to
him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage
subsists.6 Neither may be examined without the consent of the other as to any communication received in confidence
by one from the other during the marriage, save for specified exceptions.7 But one thing is freedom of communication;
quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with
the duty of fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado (Chairman), Romero, and Puno, JJ., concur.

SECOND DIVISION

G.R. No. 162994 September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners,

vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.

RESOLUTION

TINGA, J.:

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the validity of the
policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company.

This is a Petition for Review on Certiorari assailing the Decision1 dated May 19, 2003 and the Resolution dated
March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.2

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as medical
representative on October 24, 1995, after Tecson had undergone training and orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study and
abide by existing company rules; to disclose to management any existing or future relationship by consanguinity or
affinity with co-employees or employees of competing drug companies and should management find that such
relationship poses a possible conflict of interest, to resign from the company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management of
any existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug
companies. If management perceives a conflict of interest or a potential conflict between such relationship and the
employee’s employment with the company, the management and the employee will explore the possibility of a
"transfer to another department in a non-counterchecking position" or preparation for employment outside the
company after six months.

Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte sales area.

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra
Pharmaceuticals3(Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She supervised
the district managers and medical representatives of her company and prepared marketing strategies for Astra in
that area.

Even before they got married, Tecson received several reminders from his District Manager regarding the conflict of
interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in
September 1998.

In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict of interest.
Tecson’s superiors reminded him that he and Bettsy should decide which one of them would resign from their jobs,
although they told him that they wanted to retain him as much as possible because he was performing his job well.

Tecson requested for time to comply with the company policy against entering into a relationship with an employee
of a competitor company. He explained that Astra, Bettsy’s employer, was planning to merge with Zeneca, another
drug company; and Bettsy was planning to avail of the redundancy package to be offered by Astra. With Bettsy’s
separation from her company, the potential conflict of interest would be eliminated. At the same time, they would be
able to avail of the attractive redundancy package from Astra.

In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson applied for
a transfer in Glaxo’s milk division, thinking that since Astra did not have a milk division, the potential conflict of
interest would be eliminated. His application was denied in view of Glaxo’s "least-movement-possible" policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area. Tecson
asked Glaxo to reconsider its decision, but his request was denied.

Tecson sought Glaxo’s reconsideration regarding his transfer and brought the matter to Glaxo’s Grievance
Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7, 2000 to comply with
the transfer order. Tecson defied the transfer order and continued acting as medical representative in the
Camarines Sur-Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued samples of
products which were competing with similar products manufactured by Astra. He was also not included in product
conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted the matter for
voluntary arbitration. Glaxo offered Tecson a separation pay of one-half (½) month pay for every year of service, or
a total of ₱50,000.00 but he declined the offer. On November 15, 2000, the National Conciliation and Mediation
Board (NCMB) rendered its Decision declaring as valid Glaxo’s policy on relationships between its employees and
persons employed with competitor companies, and affirming Glaxo’s right to transfer Tecson to another sales
territory.

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision.

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the ground that
the NCMB did not err in rendering its Decision. The appellate court held that Glaxo’s policy prohibiting its employees
from having personal relationships with employees of competitor companies is a valid exercise of its management
prerogatives.4

Tecson filed a Motion for Reconsideration of the appellate court’s Decision, but the motion was denied by the
appellate court in its Resolution dated March 26, 2004.5

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the NCMB’s
finding that the Glaxo’s policy prohibiting its employees from marrying an employee of a competitor company is
valid; and (ii) the Court of Appeals also erred in not finding that Tecson was constructively dismissed when he was
transferred to a new sales territory, and deprived of the opportunity to attend products seminars and training
sessions.6
Petitioners contend that Glaxo’s policy against employees marrying employees of competitor companies violates the
equal protection clause of the Constitution because it creates invalid distinctions among employees on account only
of marriage. They claim that the policy restricts the employees’ right to marry.7

They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1) he was
transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he
suffered a diminution in pay, (3) he was excluded from attending seminars and training sessions for medical
representatives, and (4) he was prohibited from promoting respondent’s products which were competing with Astra’s
products.8

In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from having a
relationship with and/or marrying an employee of a competitor company is a valid exercise of its management
prerogatives and does not violate the equal protection clause; and that Tecson’s reassignment from the Camarines
Norte-Camarines Sur sales area to the Butuan City-Surigao City and Agusan del Sur sales area does not amount to
constructive dismissal.9

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a genuine
interest in ensuring that its employees avoid any activity, relationship or interest that may conflict with their
responsibilities to the company. Thus, it expects its employees to avoid having personal or family interests in any
competitor company which may influence their actions and decisions and consequently deprive Glaxo of legitimate
profits. The policy is also aimed at preventing a competitor company from gaining access to its secrets, procedures
and policies.10

It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future
relationships with employees of competitor companies, and is therefore not violative of the equal protection clause.
It maintains that considering the nature of its business, the prohibition is based on valid grounds.11

According to Glaxo, Tecson’s marriage to Bettsy, an employee of Astra, posed a real and potential conflict of
interest. Astra’s products were in direct competition with 67% of the products sold by Glaxo. Hence, Glaxo’s
enforcement of the foregoing policy in Tecson’s case was a valid exercise of its management prerogatives.12 In any
case, Tecson was given several months to remedy the situation, and was even encouraged not to resign but to ask
his wife to resign form Astra instead.13

Glaxo also points out that Tecson can no longer question the assailed company policy because when he signed his
contract of employment, he was aware that such policy was stipulated therein. In said contract, he also agreed to
resign from respondent if the management finds that his relationship with an employee of a competitor company
would be detrimental to the interests of Glaxo.14

Glaxo likewise insists that Tecson’s reassignment to another sales area and his exclusion from seminars regarding
respondent’s new products did not amount to constructive dismissal.

It claims that in view of Tecson’s refusal to resign, he was relocated from the Camarines Sur-Camarines Norte sales
area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in effecting the
reassignment, it also considered the welfare of Tecson’s family. Since Tecson’s hometown was in Agusan del Sur
and his wife traces her roots to Butuan City, Glaxo assumed that his transfer from the Bicol region to the Butuan City
sales area would be favorable to him and his family as he would be relocating to a familiar territory and minimizing
his travel expenses.15

In addition, Glaxo avers that Tecson’s exclusion from the seminar concerning the new anti-asthma drug was due to
the fact that said product was in direct competition with a drug which was soon to be sold by Astra, and hence,
would pose a potential conflict of interest for him. Lastly, the delay in Tecson’s receipt of his sales paraphernalia
was due to the mix-up created by his refusal to transfer to the Butuan City sales area (his paraphernalia was
delivered to his new sales area instead of Naga City because the supplier thought he already transferred to
Butuan).16

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that Glaxo’s
policy against its employees marrying employees from competitor companies is valid, and in not holding that said
policy violates the equal protection clause of the Constitution; (2) Whether Tecson was constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners provides:

…
 10. You agree to disclose to management any existing or future relationship you may have, either by
consanguinity or affinity with co-employees or employees of competing drug companies. Should it pose a
possible conflict of interest in management discretion, you agree to resign voluntarily from the Company as
a matter of Company policy.

…17

The same contract also stipulates that Tescon agrees to abide by the existing company rules of Glaxo, and to study
and become acquainted with such policies.18 In this regard, the Employee Handbook of Glaxo expressly informs its
employees of its rules regarding conflict of interest:

1. Conflict of Interest

Employees should avoid any activity, investment relationship, or interest that may run counter to the
responsibilities which they owe Glaxo Wellcome.

Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or
other businesses which may consciously or unconsciously influence their actions or decisions and
thus deprive Glaxo Wellcome of legitimate profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to
advance their outside personal interests, that of their relatives, friends and other businesses.

c. To avoid outside employment or other interests for income which would impair their effective job
performance.

d. To consult with Management on such activities or relationships that may lead to conflict of interest.

1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-employees of
competing drug companies are expected to disclose such relationship to the Management. If management
perceives a conflict or potential conflict of interest, every effort shall be made, together by management and
the employee, to arrive at a solution within six (6) months, either by transfer to another department in a non-
counter checking position, or by career preparation toward outside employment after Glaxo Wellcome.
Employees must be prepared for possible resignation within six (6) months, if no other solution is feasible.19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy prohibiting an employee
from having a relationship with an employee of a competitor company is a valid exercise of management
prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential
programs and information from competitors, especially so that it and Astra are rival companies in the highly
competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s
employees is reasonable under the circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests
against the possibility that a competitor company will gain access to its secrets and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on
investments and to expansion and growth.20 Indeed, while our laws endeavor to give life to the constitutional policy
on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the
workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in
the interest of fair play.21

As held in a Georgia, U.S.A case,22 it is a legitimate business practice to guard business confidentiality and protect a
competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are
married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was
married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964.23 The Court
pointed out that the policy was applied to men and women equally, and noted that the employer’s business was
highly competitive and that gaining inside information would constitute a competitive advantage.
The challenged company policy does not violate the equal protection clause of the Constitution as petitioners
erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only to
the state or those acting under color of its authority.24 Corollarily, it has been held in a long array of U.S. Supreme
Court decisions that the equal protection clause erects no shield against merely private conduct, however,
discriminatory or wrongful.25 The only exception occurs when the state29 in any of its manifestations or actions has
been found to have become entwined or involved in the wrongful private conduct.27 Obviously, however, the
exception is not present in this case. Significantly, the company actually enforced the policy after repeated requests
to the employee to comply with the policy. Indeed, the application of the policy was made in an impartial and even-
handed manner, with due regard for the lot of the employee.

In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear that
Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor
companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the
company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out
of such relationships. As succinctly explained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company remains free to
marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that
belongs only to the individual. However, an employee’s personal decision does not detract the employer
from exercising management prerogatives to ensure maximum profit and business success. . .28

The Court of Appeals also correctly noted that the assailed company policy which forms part of respondent’s
Employee Code of Conduct and of its contracts with its employees, such as that signed by Tescon, was made
known to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his
employment contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily
entered into a contract of employment with Glaxo, the stipulations therein have the force of law between them and,
thus, should be complied with in good faith."29 He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners’ contention that Tescon was constructively dismissed when he was
transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur
sales area, and when he was excluded from attending the company’s seminar on new products which were directly
competing with similar products manufactured by Astra. Constructive dismissal is defined as a quitting, an
involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely;
when there is a demotion in rank or diminution in pay; or when a clear discrimination, insensibility or disdain by an
employer becomes unbearable to the employee.30 None of these conditions are present in the instant case. The
record does not show that Tescon was demoted or unduly discriminated upon by reason of such transfer. As found
by the appellate court, Glaxo properly exercised its management prerogative in reassigning Tecson to the Butuan
City sales area:

. . . In this case, petitioner’s transfer to another place of assignment was merely in keeping with the policy of
the company in avoidance of conflict of interest, and thus valid…Note that [Tecson’s] wife holds a sensitive
supervisory position as Branch Coordinator in her employer-company which requires her to work in close
coordination with District Managers and Medical Representatives. Her duties include monitoring sales of
Astra products, conducting sales drives, establishing and furthering relationship with customers, collection,
monitoring and managing Astra’s inventory…she therefore takes an active participation in the market war
characterized as it is by stiff competition among pharmaceutical companies. Moreover, and this is
significant, petitioner’s sales territory covers Camarines Sur and Camarines Norte while his wife is
supervising a branch of her employer in Albay. The proximity of their areas of responsibility, all in the same
Bicol Region, renders the conflict of interest not only possible, but actual, as learning by one spouse of the
other’s market strategies in the region would be inevitable. [Management’s] appreciation of a conflict of
interest is therefore not merely illusory and wanting in factual basis…31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,32 which involved a complaint filed by a
medical representative against his employer drug company for illegal dismissal for allegedly terminating his
employment when he refused to accept his reassignment to a new area, the Court upheld the right of the drug
company to transfer or reassign its employee in accordance with its operational demands and requirements. The
ruling of the Court therein, quoted hereunder, also finds application in the instant case:

By the very nature of his employment, a drug salesman or medical representative is expected to travel. He
should anticipate reassignment according to the demands of their business. It would be a poor drug
corporation which cannot even assign its representatives or detail men to new markets calling for opening or
expansion or to areas where the need for pushing its products is great. More so if such reassignments are
part of the employment contract.33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a long
period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate the conflict
of interest brought about by his relationship with Bettsy. When their relationship was still in its initial stage, Tecson’s
supervisors at Glaxo constantly reminded him about its effects on his employment with the company and on the
company’s interests. After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either resigning
from the company or asking his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its
employ because of his satisfactory performance and suggested that he ask Bettsy to resign from her company
instead. Glaxo likewise acceded to his repeated requests for more time to resolve the conflict of interest. When the
problem could not be resolved after several years of waiting, Glaxo was constrained to reassign Tecson to a sales
area different from that handled by his wife for Astra. Notably, the Court did not terminate Tecson from employment
but only reassigned him to another area where his home province, Agusan del Sur, was included. In effecting
Tecson’s transfer, Glaxo even considered the welfare of Tecson’s family. Clearly, the foregoing dispels any
suspicion of unfairness and bad faith on the part of Glaxo.34

WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

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 person’s 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 man’s 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 People’s 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 fiancé, Richard
P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 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. Petitioner’s misfortune to be trapped in a man’s body is
not his own doing and should not be in any way taken against him.

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 [fiancé] and the realization of their dreams.

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.

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 petitioner’s
first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

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 Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial
court’s 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 Republic’s petition,
set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.

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.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

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

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)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil
registry changes sought. We disagree.

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

(3) The change will avoid confusion.

Petitioner’s 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 one’s 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 petitioner’s 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 petitioner’s first name was not within that
court’s 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
petitioner’s 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 person’s 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:

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

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)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s 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
petitioner’s 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 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.

xxx 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.29Thus, 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 person’s sex made at the time of his or her birth, if not attended by error,30 is
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."33Female 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 petitioner’s first step towards his eventual marriage to his
male fiancé. 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 Code40 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 petitioner’s 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., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

SECOND DIVISION

G.R. No. 164774 April 12, 2006

STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, Petitioners,

vs.
RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA, Respondents.

DECISION

PUNO, J.:

We are called to decide an issue of first impression: whether the policy of the employer banning spouses from
working in the same company violates the rights of the employee under the Constitution and the Labor Code or is a
valid exercise of management prerogative.

At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3, 2004 in CA-G.R.
SP No. 73477 reversing the decision of the National Labor Relations Commission (NLRC) which affirmed the ruling
of the Labor Arbiter.

Petitioner Star Paper Corporation (the company) is a corporation engaged in trading – principally of paper products.
Josephine Ongsitco is its Manager of the Personnel and Administration Department while Sebastian Chua is its
Managing Director.

The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol), Wilfreda N. Comia (Comia) and
Lorna E. Estrella (Estrella) were all regular employees of the company.1

Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee of the
company, whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the couple that should they
decide to get married, one of them should resign pursuant to a company policy promulgated in 1995,2 viz.:

1. New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the] 3rd degree of
relationship, already employed by the company.

2. In case of two of our employees (both singles [sic], one male and another female) developed a friendly
relationship during the course of their employment and then decided to get married, one of them should
resign to preserve the policy stated above.3

Simbol resigned on June 20, 1998 pursuant to the company policy.4

Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-employee, whom she married
on June 1, 2000. Ongsitco likewise reminded them that pursuant to company policy, one must resign should they
decide to get married. Comia resigned on June 30, 2000.5

Estrella was hired on July 29, 1994. She met Luisito Zuñiga (Zuñiga), also a co-worker. Petitioners stated that
Zuñiga, a married man, got Estrella pregnant. The company allegedly could have terminated her services due to
immorality but she opted to resign on December 21, 1999.6

The respondents each signed a Release and Confirmation Agreement. They stated therein that they have no money
and property accountabilities in the company and that they release the latter of any claim or demand of whatever
nature.7

Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not resign voluntarily;
they were compelled to resign in view of an illegal company policy. As to respondent Estrella, she alleges that she
had a relationship with co-worker Zuñiga who misrepresented himself as a married but separated man. After he got
her pregnant, she discovered that he was not separated. Thus, she severed her relationship with him to avoid
dismissal due to the company policy. On November 30, 1999, she met an accident and was advised by the doctor at
the Orthopedic Hospital to recuperate for twenty-one (21) days. She returned to work on December 21, 1999 but
she found out that her name was on-hold at the gate. She was denied entry. She was directed to proceed to the
personnel office where one of the staff handed her a memorandum. The memorandum stated that she was being
dismissed for immoral conduct. She refused to sign the memorandum because she was on leave for twenty-one
(21) days and has not been given a chance to explain. The management asked her to write an explanation.
However, after submission of the explanation, she was nonetheless dismissed by the company. Due to her urgent
need for money, she later submitted a letter of resignation in exchange for her thirteenth month pay.8

Respondents later filed a complaint for unfair labor practice, constructive dismissal, separation pay and attorney’s
fees. They averred that the aforementioned company policy is illegal and contravenes Article 136 of the Labor Code.
They also contended that they were dismissed due to their union membership.

On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for lack of merit, viz.:

[T]his company policy was decreed pursuant to what the respondent corporation perceived as management
prerogative. This management prerogative is quite broad and encompassing for it covers hiring, work assignment,
working method, time, place and manner of work, tools to be used, processes to be followed, supervision of
workers, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline,
dismissal and recall of workers. Except as provided for or limited by special law, an employer is free to regulate,
according to his own discretion and judgment all the aspects of employment.9 (Citations omitted.)

On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on January 11, 2002. 10

Respondents filed a Motion for Reconsideration but was denied by the NLRC in a Resolution11 dated August 8,
2002. They appealed to respondent court via Petition for Certiorari.

In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC decision, viz.:

WHEREFORE, premises considered, the May 31, 2002 (sic)12 Decision of the National Labor Relations Commission
is hereby REVERSED and SET ASIDE and a new one is entered as follows:

(1) Declaring illegal, the petitioners’ dismissal from employment and ordering private respondents to
reinstate petitioners to their former positions without loss of seniority rights with full backwages from the time
of their dismissal until actual reinstatement; and

(2) Ordering private respondents to pay petitioners attorney’s fees amounting to 10% of the award and the
cost of this suit.13

On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:

1. x x x the subject 1995 policy/regulation is violative of the constitutional rights towards marriage and the
family of employees and of Article 136 of the Labor Code; and

2. x x x respondents’ resignations were far from voluntary.14

We affirm.

The 1987 Constitution15 states our policy towards the protection of labor under the following provisions, viz.:
Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers
and promote their welfare.

xxx

Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers, recognizing the right
of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments,
and to expansion and growth.

The Civil Code likewise protects labor with the following provisions:

Art. 1700. The relation between capital and labor are not merely contractual. They are so impressed with public
interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special
laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of
labor and similar subjects.

Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and
decent living for the laborer.

The Labor Code is the most comprehensive piece of legislation protecting labor. The case at bar involves Article
136 of the Labor Code which provides:

Art. 136. It shall be unlawful for an employer to require as a condition of employment or continuation of employment
that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married a woman
employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise
prejudice a woman employee merely by reason of her marriage.

Respondents submit that their dismissal violates the above provision. Petitioners allege that its policy "may appear
to be contrary to Article 136 of the Labor Code" but it assumes a new meaning if read together with the first
paragraph of the rule. The rule does not require the woman employee to resign. The employee spouses have the
right to choose who between them should resign. Further, they are free to marry persons other than co-employees.
Hence, it is not the marital status of the employee, per se, that is being discriminated. It is only intended to carry out
its no-employment-for-relatives-within-the-third-degree-policy which is within the ambit of the prerogatives of
management.16

It is true that the policy of petitioners prohibiting close relatives from working in the same company takes the nature
of an anti-nepotism employment policy. Companies adopt these policies to prevent the hiring of unqualified persons
based on their status as a relative, rather than upon their ability.17 These policies focus upon the potential
employment problems arising from the perception of favoritism exhibited towards relatives.

With more women entering the workforce, employers are also enacting employment policies specifically prohibiting
spouses from working for the same company. We note that two types of employment policies involve spouses:
policies banning only spouses from working in the same company (no-spouse employment policies), and those
banning all immediate family members, including spouses, from working in the same company (anti-nepotism
employment policies).18

Unlike in our jurisdiction where there is no express prohibition on marital discrimination,19 there are twenty state
statutes20 in the United States prohibiting marital discrimination. Some state courts21 have been confronted with the
issue of whether no-spouse policies violate their laws prohibiting both marital status and sex discrimination.

In challenging the anti-nepotism employment policies in the United States, complainants utilize two theories of
employment discrimination: the disparate treatment and the disparate impact. Under the disparate treatment
analysis, the plaintiff must prove that an employment policy is discriminatory on its face. No-spouse employment
policies requiring an employee of a particular sex to either quit, transfer, or be fired are facially discriminatory. For
example, an employment policy prohibiting the employer from hiring wives of male employees, but not husbands of
female employees, is discriminatory on its face.22
On the other hand, to establish disparate impact, the complainants must prove that a facially neutral policy has a
disproportionate effect on a particular class. For example, although most employment policies do not expressly
indicate which spouse will be required to transfer or leave the company, the policy often disproportionately affects
one sex.23

The state courts’ rulings on the issue depend on their interpretation of the scope of marital status discrimination
within the meaning of their respective civil rights acts. Though they agree that the term "marital status"
encompasses discrimination based on a person's status as either married, single, divorced, or widowed, they are
divided on whether the term has a broader meaning. Thus, their decisions vary.24

The courts narrowly25 interpreting marital status to refer only to a person's status as married, single, divorced, or
widowed reason that if the legislature intended a broader definition it would have either chosen different language or
specified its intent. They hold that the relevant inquiry is if one is married rather than to whom one is married. They
construe marital status discrimination to include only whether a person is single, married, divorced, or widowed and
not the "identity, occupation, and place of employment of one's spouse." These courts have upheld the questioned
policies and ruled that they did not violate the marital status discrimination provision of their respective state
statutes.

The courts that have broadly26 construed the term "marital status" rule that it encompassed the identity, occupation
and employment of one's spouse. They strike down the no-spouse employment policies based on the broad
legislative intent of the state statute. They reason that the no-spouse employment policy violate the marital status
provision because it arbitrarily discriminates against all spouses of present employees without regard to the actual
effect on the individual's qualifications or work performance.27 These courts also find the no-spouse employment
policy invalid for failure of the employer to present any evidence of business necessity other than the general
perception that spouses in the same workplace might adversely affect the business.28 They hold that the absence of
such a bona fide occupational qualification29 invalidates a rule denying employment to one spouse due to the
current employment of the other spouse in the same office.30 Thus, they rule that unless the employer can prove
that the reasonable demands of the business require a distinction based on marital status and there is no better
available or acceptable policy which would better accomplish the business purpose, an employer may not
discriminate against an employee based on the identity of the employee’s spouse.31 This is known as the bona fide
occupational qualification exception.

We note that since the finding of a bona fide occupational qualification justifies an employer’s no-spouse rule, the
exception is interpreted strictly and narrowly by these state courts. There must be a compelling business necessity
for which no alternative exists other than the discriminatory practice.32 To justify a bona fide occupational
qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to the
essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all
persons meeting the qualification would be unable to properly perform the duties of the job.33

The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the standard
of reasonableness of the company policy which is parallel to the bona fide occupational qualification requirement.
In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome
Philippines, Inc.,34 we passed on the validity of the policy of a pharmaceutical company prohibiting its employees
from marrying employees of any competitor company. We held that Glaxo has a right to guard its trade secrets,
manufacturing formulas, marketing strategies and other confidential programs and information from competitors. We
considered the prohibition against personal or marital relationships with employees of competitor companies upon
Glaxo’s employees reasonable under the circumstances because relationships of that nature might compromise the
interests of Glaxo. In laying down the assailed company policy, we recognized that Glaxo only aims to protect its
interests against the possibility that a competitor company will gain access to its secrets and procedures.35

The requirement that a company policy must be reasonable under the circumstances to qualify as a valid exercise
of management prerogative was also at issue in the 1997 case of Philippine Telegraph and Telephone Company
v. NLRC.36 In said case, the employee was dismissed in violation of petitioner’s policy of disqualifying from work any
woman worker who contracts marriage. We held that the company policy violates the right against discrimination
afforded all women workers under Article 136 of the Labor Code, but established a permissible exception, viz.:

[A] requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational
qualification," or BFOQ, where the particular requirements of the job would justify the same, but not on the ground
of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature
would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job
performance.37(Emphases supplied.)

The cases of Duncan and PT&T instruct us that the requirement of reasonableness must be clearly established to
uphold the questioned employment policy. The employer has the burden to prove the existence of a reasonable
business necessity. The burden was successfully discharged in Duncan but not in PT&T.

We do not find a reasonable business necessity in the case at bar.

Petitioners’ sole contention that "the company did not just want to have two (2) or more of its employees related
between the third degree by affinity and/or consanguinity"38 is lame. That the second paragraph was meant to give
teeth to the first paragraph of the questioned rule39 is evidently not the valid reasonable business necessity required
by the law.

It is significant to note that in the case at bar, respondents were hired after they were found fit for the job, but were
asked to resign when they married a co-employee. Petitioners failed to show how the marriage of Simbol, then a
Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section, could be detrimental to its
business operations. Neither did petitioners explain how this detriment will happen in the case of Wilfreda Comia,
then a Production Helper in the Selecting Department, who married Howard Comia, then a helper in the cutter-
machine. The policy is premised on the mere fear that employees married to each other will be less efficient. If we
uphold the questioned rule without valid justification, the employer can create policies based on an unproven
presumption of a perceived danger at the expense of an employee’s right to security of tenure.

Petitioners contend that their policy will apply only when one employee marries a co-employee, but they are free to
marry persons other than co-employees. The questioned policy may not facially violate Article 136 of the Labor
Code but it creates a disproportionate effect and under the disparate impact theory, the only way it could pass
judicial scrutiny is a showing that it is reasonable despite the discriminatory, albeit disproportionate, effect. The
failure of petitioners to prove a legitimate business concern in imposing the questioned policy cannot prejudice the
employee’s right to be free from arbitrary discrimination based upon stereotypes of married persons working
together in one company.40

Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit the
petitioners. The protection given to labor in our jurisdiction is vast and extensive that we cannot prudently draw
inferences from the legislature’s silence41 that married persons are not protected under our Constitution and declare
valid a policy based on a prejudice or stereotype. Thus, for failure of petitioners to present undisputed proof of a
reasonable business necessity, we rule that the questioned policy is an invalid exercise of management prerogative.
Corollarily, the issue as to whether respondents Simbol and Comia resigned voluntarily has become moot and
academic.

As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on the singular fact that her resignation
letter was written in her own handwriting. Both ruled that her resignation was voluntary and thus valid. The
respondent court failed to categorically rule whether Estrella voluntarily resigned but ordered that she be reinstated
along with Simbol and Comia.

Estrella claims that she was pressured to submit a resignation letter because she was in dire need of money. We
examined the records of the case and find Estrella’s contention to be more in accord with the evidence. While
findings of fact by administrative tribunals like the NLRC are generally given not only respect but, at times, finality,
this rule admits of exceptions,42 as in the case at bar.

Estrella avers that she went back to work on December 21, 1999 but was dismissed due to her alleged immoral
conduct. At first, she did not want to sign the termination papers but she was forced to tender her resignation letter
in exchange for her thirteenth month pay.

The contention of petitioners that Estrella was pressured to resign because she got impregnated by a married man
and she could not stand being looked upon or talked about as immoral43 is incredulous. If she really wanted to avoid
embarrassment and humiliation, she would not have gone back to work at all. Nor would she have filed a suit for
illegal dismissal and pleaded for reinstatement. We have held that in voluntary resignation, the employee is
compelled by personal reason(s) to dissociate himself from employment. It is done with the intention of relinquishing
an office, accompanied by the act of abandonment. 44 Thus, it is illogical for Estrella to resign and then file a
complaint for illegal dismissal. Given the lack of sufficient evidence on the part of petitioners that the resignation was
voluntary, Estrella’s dismissal is declared illegal.

IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated August 3, 2004
is AFFIRMED.1avvphil.net

SO ORDERED.

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner,
Present:

QUISUMBING, J., Chairperson,

 - versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

JENNIFER B. CAGANDAHAN, Promulgated:

Respondent.
September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a
reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC),Branch 33 of Siniloan, Laguna,
which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed to Jeff
Cagandahan and (2) gender from female to male.

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth
Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to
have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and
female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and
at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed
that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development.
She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male
person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male
and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was
posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized
the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department
of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating
that respondents condition is known as CAH. He explained that genetically respondent is female but because her
body secretes male hormones, her female organs did not develop normally and she has two sex organs female and
male. He testified that this condition is very rare, that respondents uterus is not fully developed because of lack of
female hormones, and that she has no monthly period. He further testified that respondents condition is permanent
and recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as
male, and the gender change would be advantageous to her.

The RTC granted respondents petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioners body produces male hormones, and
first his body as well as his action and feelings are that of a male. He has chosen to be male. He is a
normal person and wants to be acknowledged and identified as a male.
 WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to
make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the
prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal certificate, and
other pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned
ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,

II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF SEX OR GENDER
IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A MALE.[4]

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate
of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as
CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of
the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court, respondents petition before the court a quo did
not implead the local civil registrar.[5] The OSG further contends respondents petition is fatally defective since it failed
to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3) years
prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court. [6] The OSG argues
that Rule 108 does not allow change of sex or gender in the birth certificate and respondents claimed medical condition
known as CAH does not make her a male.[7]

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not
formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in
the course of the proceedings,[8] respondent is actually a male person and hence his birth certificate has to be
corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and respondent
substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the petition to the Regional
Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].
SEC. 2. Contents of petition. A petition for change of name shall be signed and verified by the person
desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed
for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct
that a copy of the order be published before the hearing at least once a week for three (3) successive
weeks in some newspaper of general circulation published in the province, as the court shall deem
best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four
(4) months after the last publication of the notice.

SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The
Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the
Republic.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order that such order
has been published as directed and that the allegations of the petition are true, the court shall, if proper
and reasonable cause appears for changing the name of the petitioner, adjudge that such name be
changed in accordance with the prayer of the petition.

SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule shall be
furnished the civil registrar of the municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 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.

SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from
the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination
of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest which would be affected thereby shall be
made parties to the proceeding.

SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time
and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry
whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. The court in which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights
of the parties pending such proceedings.

SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same in his record.
 The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the
Rules of Court because respondents petition did not implead the local civil registrar.Section 3, Rule 108 provides that
the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties
to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction
of name in the civil registry. He is an indispensable party without whom no final determination of the case can be
had.[12]Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered
as falling much too short of the requirements of the rules.[13] The corresponding petition should also implead as
respondents the civil registrar and all other persons who may have or may claim to have any interest that would be
affected thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts
shall construe the Rules liberally to promote their objectives of securing to the parties a just, speedy and inexpensive
disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the local civil registrar.

The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look
to the statutes. In this connection, Article 412 of the Civil Code provides:

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

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048 [17] 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, Rep. Act No. 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes
and corrections in entries in the civil register.[18]

Under Rep. Act No. 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.[19]

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:

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.[20]

Respondent undisputedly has CAH. This condition causes the early or inappropriate appearance of male
characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A
newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at
the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female
reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to
appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to
18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine
adopted the term intersexuality to apply to human beings who cannot be classified as either male or female.[22] The
term is now of widespread use. According to Wikipedia, intersexuality is the state of a living thing of
a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to
be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male
and female sexes.

Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals
have been expected to conform to either a male or female gender role.[23] Since the rise of modern medical science
in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically
modified to resemble either male or female genitals.[24]More commonly, an intersex individual is considered as
suffering from a disorder which is almost always recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. It has been suggested that there is some middle ground
between the sexes, a no-mans land for those individuals who are neither truly male nor truly female.[25] The current
state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this
Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on medical testimony and scientific development
showing the respondent to be other than female, then a change in the

subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor
consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondents
body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor
in his gender classification would be what the individual, like respondent, having reached the age of majority, with
good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces
high levels of male hormones (androgen) there is preponderant biological support for considering him as being
male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at
maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere
with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have
undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of
a female but he did not. He chose not to do so.Nature has instead taken its due course in respondents development
to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately
private as ones sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to
reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to
undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender
of the human species.Respondent is the one who has to live with his intersex anatomy. To him belongs the human
right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of
action to take along the path of his sexual development and maturation. In the absence of evidence that respondent
is an incompetent[27] and in the absence of evidence to show that classifying respondent as a male will harm other
members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the
respondents position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect respondents congenital condition and his mature decision to
be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering the unique circumstances in this case.

As for respondents change of name under Rule 103, this Court has held that a change of name is not a matter
of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will
follow.[28] The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that respondents change of name merely recognizes his
preferred gender, we find merit in respondents change of name. Such a change will conform with the change of the
entry in his birth certificate from female to male.

WHEREFORE, the Republics petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial
Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4904 February 5, 1909

ROSALIA MARTINEZ, plaintiff-appellant,

vs.
ANGEL TAN, defendant-appellee.

Domingo Franco, for appellant.

Doroteo Karagdag, for appellee.

WILLARD, J.:

The only question in this case is whether or not the plaintiff and the defendant were married on the 25th day of
September, 1907, before the justice of the peace, Jose Ballori, in the town of Palompon in the Province of Leyte.

There was received in evidence at the trial what is called an expediente de matrimonio civil. It is written in Spanish
and consists, first, of a petition directed to the justice of the peace, dated on the 25th of September, 1907, signed by
the plaintiff and the defendant, in which they state that they have mutually agreed to enter into a contract of
marriage before the justice of the peace, and ask that the justice solemnize the marriage. Following this is a
document dated on the same day, signed by the justice of the peace, by the plaintiff, by the defendant, and by
Zacarias Esmero and Pacita Ballori. It states the presentation of the petition above mentioned; that the persons who
signed it where actually present in the office of the justice on the same day named; that they ratified under oath the
contents of the petition, and that they insisted in what they had there asked for. It also stated that being required to
produce witnesses of the marriage, the presented Zacarias Esmero as a witness for the husband and Pacita Ballori
as a witness for the wife. Following this is a certificate of marriage signed by the justice of the peace and the
witnesses Zacarias Esmero and Pacita Ballori, dated the 25th day of September, 1907, in which it is stated that the
plaintiff and the defendant were legally married by the justice of the peace in the presence of the witnesses on that
day.

The court below decided the case in favor of the defendant, holding that the parties were legally married on the day
named. The evidence in support of that decision is: First. The document itself, which the plaintiff admits that she
signed. Second. The evidence of the defendant, who testifies that he and said plaintiff appeared before the justice of
the peace at the time named, together with the witness Zacarias Esmero and Pacita Ballori, and that they all signed
the document above mentioned. Third. The evidence of Zacarias Esmero, one of the above-named witnesses, who
testifies that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time named and did
sign the document referred to. Fourth. The evidence of Pacita Ballori, who testified to the same effect. Fifth. The
evidence of Jose Santiago, the bailiff of the court of the justice of the peace, who testified that the plaintiff, the
defendant, the two witnesses above-named, and the justice of the peace were all present in the office of the justice
of the peace at the time mentioned.

The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before the justice of
the peace and never was married to the defendant. She admits that she signed the document in question, but says
that she signed it in her own home, without reading it, and at the request of the defendant, who told her that it was a
paper authorizing him to ask the consent of her parents to the marriage.

There is some indirect evidence which the plaintiff claims supports her case, but which we think, when properly
considered, is not entitled to much weight. The plaintiff at the time was visiting, in the town of Palompon, her married
brother and was there for about two weeks. The wife of her brother, Rosario Bayot, testified that the plaintiff never
left the house except in her company. But she admitted on cross-examination that she herself went to school every
morning and that on one occasion the plaintiff had gone to church unaccompanied. The testimony of this witness
loses its force when the testimony of Pacita Ballori is considered. She says that at the request of the defendant on
the day named, about 5 o'clock in the afternoon, she went to the store of a Chinese named Veles; that there she
met the plaintiff and her mother; that she asked the mother of the plaintiff to allow the plaintiff to accompany her, the
witness, to her own house for the purpose of examining some dress patterns; that the mother gave her consent and
the two rights left the store, but instead of going to the house of the witness they went directly to the office of the
justice of the peace where the ceremony took place; that after the ceremony had taken place, one came advising
them that the mother was approaching, and that they thereupon hurriedly left the office of the justice and went to the
house of Pacita Ballori, where the mother later found them.

The other testimony of the plaintiff relating to certain statements made by the justice of the peace, who died after the
ceremony was performed and before the trial, and certain statements made by Pacita Ballori, is not sufficient to
overcome the positive testimony of the witnesses for the defendant.

The other testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It appears that
during her first examination she was seized with an hysterical attack and practically collapsed at the trial. Her
examination was adjourned to a future day and was completed in her house where she was sick in bed. It is claimed
by counsel that her collapse was due to the fact that she recognized that she testified falsely in stating the office of
the justice of the peace was at the time in the municipal building, when, in fact, it was in a private house. We do not
think that the record justifies the claim of the appellant. The statement as to the location of the office of the justice of
the peace was afterwards corrected by the witness and we are satisfied that she told the facts substantially as they
occurred.

There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling the truth when
she said she did not appear before the justice of the peace. This evidence consists of eight letters, which the
defendant claims were all written by the plaintiff. The plaintiff admits that she wrote letters numbered 2 and 9. The
authenticity of the others was proven. No. 9 is as follows:

ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be informed that
we have been married civilly, I am sure that he will turn me out of the house.

Do what you may deem convenient, as I don't know what to do.

Should I be able to go to-morrow to Merida, I shall do so, because I can not remain here.

Yours, ROSAL.

Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of September, is as
follows:

Sr. D. ANGEL, TAN.

ANGEL: It is impossible for me to go to the house of Veles this morning because my sister in law will not let
me go there; if it suits you, I believe that this afternoon, about 5 or 6 o'clock, is the best hour.

Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait for me at the
Chinese store, because I don't like to go without Pacita.

The house must be one belonging to prudent people, and no one should know anything about it.

Yours, ROSAL.

It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting the plaintiff in the
afternoon at the store of the Chinese, Veles. Letter No. 7 is also undated, but was evidently written after the
marriage before the justice of the peace. It is as follows:

Sr. D. ANGEL, TAN.

 ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at about 9 or 10, when
you see that the tide is high because my brother will have to go to the boat for the purpose of loading
lumber.

Don't tell her that we have been civilly married, but tell her at first that you are willing to celebrate the
marriage at this time, because I don't like her to know to-day that we have been at the court-house,
inasmuch as she told me this morning that she heard that we would go to the court, and that we must not
cause her to be ashamed, and that if I insist on being married I must do it right.

Tell her also that you have asked me to carry you.

I send you herewith the letter of your brother, in order that you may do what he wishes.

Yours, ROSAL.

Letter No. 8 was also evidently written after the marriage and is in part as follows:

Sr. D. ANGEL TAN.

ANGEL: I believe it is better for you to go to Ormoc on Sunday of the steamer Rosa, for the purpose of
asking my father's permission for our marriage, and in case he fails to give it, then we shall do what we
deem proper, and, if he does not wish us to marry without his permission, you must request his consent.

Tell me who said that my sister in law knows that we are civilly married; my brother ill treatment is a matter
of no importance, as every thing may be carried out, with patience.

It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this letter, and that
the plaintiff was on the same boat. The plaintiff testified, however, that she had no communication with the
defendant during the voyage. The plaintiff and the defendant never lived together as husband and wife, and upon
her arrival in Ormoc, after consulting with her family, she went to Cebu and commenced this action, which was
brought for the purpose of procuring the cancellation of the certificate of marriage and for damages. The evidence
strongly preponderates in favor of the decision of the court below to the effect that the plaintiff appeared before the
justice of the peace at the time named.

It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all that the witnesses
for the defendant testified to, did not constitute a legal marriage. General orders, No. 68, section 6, is as follows:

No particular form from the ceremony of marriage is required, but the parties must declare in the presence of
the person solemnizing the marriage, that they take each other as husband and wife.

Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the peace said
nothing until after the document was signed and then addressing himself to the plaintiff and the defendant said,
"You are married." The petition signed the plaintiff and defendant contained a positive statement that they had
mutually agreed to be married and they asked the justice of the peace to solemnize the marriage. The document
signed by the plaintiff, the defendant, and the justice of the peace, stated that they ratified under oath, before the
justice, the contents of the petition and that witnesses of the marriage were produced. A mortgage took place as
shown by the certificate of the justice of the peace, signed by both contracting parties, which certificates gives rise to
the presumption that the officer authorized the marriage in due form, the parties before the justice of the peace
declaring that they took each other as husband and wife, unless the contrary is proved, such presumption being
corroborated in this case by the admission of the woman to the effect that she had contracted the marriage certified
to in the document signed by her, which admission can only mean the parties mutually agreed to unite in marriage
when they appeared and signed the said document which so states before the justice of the peace who authorized
the same. It was proven that both the plaintiff and the defendant were able to read and write the Spanish language,
and that they knew the contents of the document which they signed; and under the circumstances in this particular
case were satisfied, and so hold, that what took place before the justice of the peace on this occasion amounted to
a legal marriage.

The defendant's original answer was a general denial of the allegations contained in the complaint. Among these
allegations was a statement that the parties had obtain previously the consent of the plaintiff's parents. The
defendant was afterwards allowed to amend his answer so that it was a denial of the allegations of the complaint
except that relating to the condition in regard to the consent of the parents. The plaintiff objected to the allowance of
this amendment. After the trial had commenced the defendant was again allowed to amend his answer so that it
should be an admission of paragraphs 2 and 3 of the complaint, except that part which related to the consent of the
parents. It will be seen that this second amendment destroyed completely the first amendment and the defendants
lawyer stated that what he intended to allege in his first amendment, but by reason of the haste with which the first
amendment was drawn he had unintentionally made it exactly the opposite of what he had intended to state. After
argument the court allowed the second amendment. We are satisfied that in this allowance there was no abuse of
discretion and we do not see how the plaintiff was in any way prejudiced. She proceeded with the trial of the case
without asking for a continuance.

The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs of this instance
against the appellant.

Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

Esteban R. Abonal for complainants.

Haide B. Vista-Gumba for 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

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.

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.

6. Unlawful collection of docket fees

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.

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.

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.

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 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.

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 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) to four (4) times everyday (TSN,
p. 12;
2-1-94).
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 Esmeralda-Baroy, 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.

SECOND DIVISION

[A.M. No. MTJ-96-1088. July 19, 1996]

RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C. DOMAGTOY, respondent.

DECISION
ROMERO, J.:

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.
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. Monica-Burgos, 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.
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]
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.
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.
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.
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
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.

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.)

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 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 x x x marriages
not falling under Article 41."
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;

x x x x x x xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers of 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 justifications 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
a 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.
SO ORDERED.
Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

FIRST DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 154380

Petitioner,

Present:

Davide, Jr., C.J.,

- versus - (Chairman),
Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
 CIPRIANO ORBECIDO III,
Respondent. Promulgated:

October 5, 2005

x--------------------------------------------------x

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.

In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional

Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] 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:

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.

IT IS SO ORDERED.[3]

The factual antecedents, as narrated by the trial court, are as follows.

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.

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:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY
CODE[4]

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]

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:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

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]

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.

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?

Brief Historical Background

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:
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.
 In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

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.

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]

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.

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.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by
a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on
what hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich
Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived
together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto
between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private respondent
initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983.
He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No.
83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a
decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to
petitioner. The records show that under German law said court was locally and internationally competent for the
divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the
applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two
complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner
"had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime
in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal
approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial
Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as
Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went
to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of
respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua,
her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave
due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate
the entire records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further
proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-
52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-
52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for
the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review
then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of
lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The
same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter
entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being
considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered
detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a
temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The
petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery,
which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner,
does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his
filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing
the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435.
Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for
review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for
the dismissal of the complaints against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity,
cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been
established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal,
requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary
Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which
starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file
the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape
and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by
the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that
while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power
to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction,
rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that
such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal
action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same
requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal
actions are generally and fundamentally commenced by the State, through the People of the Philippines, the
offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those
which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a
matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence
rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the
Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of
the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would
be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the
filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action
be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time
he initiates the action. It would be absurd if his capacity to bring the action would be determined by his
status beforeor subsequent to the commencement thereof, where such capacity or status existed prior to but ceased
before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby
have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when
precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be
commenced only by one who in law can be categorized as possessed of such status. Stated differently and with
reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal
action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at
the time of the institution of the action by the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the
rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings
against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a
prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently
granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have
been committed, he had ceased to be such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the complaint. We have repeatedly said that
the offense is against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must be such when
the prosecution is commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our
statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who
initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused
spouse, at the time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of
Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court
between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here
alleging that her business concern was conjugal property and praying that she be ordered to render an accounting
and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court
perspicuously demonstrated the error of such stance, thus:
 There can be no question as to the validity of that Nevada divorce in any of 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. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national law.
...

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he
filed suit.

The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a
dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would
thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying
Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished
adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended
to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear
that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a
formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can
still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to
stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said
declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and
within the purview of the decision in said case is the situation where the criminal action for adultery was
filed beforethe termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite
would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign
divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate
of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably
filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of
the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the
controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining
order issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in
Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge
with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with
others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between
the American husband and his American wife as valid and binding in the Philippines on the theory that their status
and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme
Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for
then two (2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of
the National law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned
but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a
Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned
that very likely the opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently
since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the
Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing
before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was
an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is
concerned was NEVER put in issue.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in
Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge
with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with
others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between
the American husband and his American wife as valid and binding in the Philippines on the theory that their status
and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme
Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for
then two (2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of
the National law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned
but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a
Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned
that very likely the opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently
since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the
Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing
before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was
an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is
concerned was NEVER put in issue.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION

GERBERT R. CORPUZ, G.R. No. 186571

Petitioner,
Present:

CARPIO MORALES, J., Chairperson,

BRION,
- versus - BERSAMIN,
*
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:
DAISYLYN TIROL STO. TOMAS and August 11, 2010
The SOLICITOR GENERAL,
Respondents. -- -
x--------------------------------------------------------------------------------------------------------------x

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 certiorari[2] 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 PETITION

From the RTCs ruling,[12] 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 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 Family Code recognizes only two types of defective marriages void[15] and voidable[16] 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]

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.

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]

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 judicata[32] 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.[34] We consider the recording to be legally improper; hence, the need to draw attention of the bench
and the bar to what had been done.

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;
(i) naturalization; and
(j) changes of name.

xxxx

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 1982[37] 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.

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 proceeding[41] 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.