Affinity and consanguinity as

a basis for disqualification

under Canon 3 section 5(f)
Problem Areas in Legal Ethics
Arellano University School of Law –
Arellano Law Foundation
2017-2018
DISQUALIFICATION OF JUDICIAL OFFICERS
RRC Rule 137
 Sec. 1. Disqualification of judges. - No judge or judicial officer
shall sit in any case in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or in which he
is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in
which he has been executor, administrator, guardian, trustee or
counsel, or in which he has presided in any inferior court when
his ruling or decision is the subject of review, without the written
consent of all parties in interest, signed by them and entered
upon the record.
 A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than
those mentioned above.
Cont…

 Sec. 2. Objection that judge disqualified, how made and effect. -

If it be claimed that an official is disqualified from sitting as
above provided, the party objecting to his competency may, in
writing, file with the official his objection, stating the grounds
therefor, and the official shall thereupon proceed with the trial, or
withdraw therefrom, in accordance with his determination of the
question of his disqualification. His decision shall be forthwith
made in writing and filed with the other papers in the case, but
no appeal or stay shall be allowed from, or by reason of, his
decision in favor of his own competency, until after final
judgment in the case.
 CAN O N 3
A JU D G E SH O U LD PER FO R M O FFIC IA L
D U TIES H O N ESTLY, A N D W ITH IM PA RTIA LITY
A N D D ILIG EN C E

 RULE 3.12 - A judge should take no part in a proceeding where the judge's
impartiality might reasonably be questioned. These cases include among
others, proceedings where:
 (a) the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
 (b) the judge served as executor, administrator, guardian, trustee or
lawyer in the case or matter in controversy, or a former associate of the
judge served as counsel during their association, or the judge or lawyer
was a material witness therein;
 (c) the judge's ruling in a lower court is the subject of review;
 (d) the judge is related by consanguinity or affinity to a party litigant
within the sixth degree or to counsel within the fourth degree;
 (e) the judge knows the judge's spouse or child has a financial interest,
as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter
in controversy or in a party to the proceeding, or any other interest that
could be substantially affected by the outcome of the proceeding.
 In every instance, the judge shall indicate the legal reason for
inhibition.
 D efin itio n o f affin ity
 Affinity is defined as "the relation which one spouse because of
marriage has to blood relatives of the other. The connection
existing, in consequence of marriage between each of the married
persons and the kindred of the other. The doctrine of affinity
grows out of the canonical maxim that marriage makes husband and
wife one. The husband has the same relation by affinity to his
wife's blood relatives as she has by consanguinity and vice versa.
– PP v. Raul Berana, G.R. No. 123544 July 29, 1999
 Relationship by affinity refers to a relation by virtue of a legal
bond such as marriage. Relatives by affinity therefore are those
commonly referred to as "in-laws," or stepfather, stepmother,
stepchild and the like. - PP v. Atop, G.R. Nos. 124303-05 February
10, 1998
 Affinity denotes "the relation that one spouse has to the blood
relatives of the other spouse." It is a relationship by marriage or
a familial relation resulting from marriage. It is a fictive
kinship, a fiction created by law in connection with the
institution of marriage and family relations. - Tiggangay v. Judge
Wacas A.M. OCA IPI No. 09-3243-RTJ [2013]
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 NCC SUBSECTION 1. - Relationship
 Art. 963. Proximity of relationship is determined by the number of
generations. Each generation forms a degree.

 Art. 964. A series of degrees forms a line, which may be either direct or
collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come from a
common ancestor.

 Art. 965. The direct line is either descending or ascending.

The former unites the head of the family with those who descend from
him.
The latter binds a person with those from whom he descends.
 Art. 966. In the line, as many degrees are counted as there are generations
or persons, excluding the progenitor.

 In the direct line, ascent is made to the common ancestor. Thus, the child is
one degree removed from the parent, two from the grandfather, and three
from the great-grandparent.

 In the collateral line, ascent is made to the common ancestor and then
descent is made to the person with whom the computation is to be made.
Thus, a person is two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first cousin, and so forth.

 Art. 967. Full blood relationship is that existing between persons who have
the same father and the same mother.

 Half blood relationship is that existing between persons who have the same
father, but not the same mother, or the same mother, but not the same
father.
 2 legal theor ies
 1. The terminated affinity view hol ds t hat rel ati onshi p
by affi ni ty t ermi nat es wi t h the di ssol uti on of t he marri age ei t her by
deat h or di vorce whi ch gave ri se t o t he r el ati onshi p of affini ty bet ween
t he parti es.
 Under t hi s vi ew, t he r el ati onshi p by affi nity i s si mpl y coextensi ve and
coexi st ent wi t h t he marri age t hat pr oduced it. Its dur ati on i s
i ndi spensabl y and necessarily det er mi ned by t he marri age t hat cr eat ed it.
 Thus, it exi sts onl y f or so l ong as t he marriage subsi sts, such t hat t he
deat h of a spouse i pso f act o ends t he r el ations hi p by affi nity of t he
sur vi vi ng spouse t o t he deceased spouse’s bl ood r el ati ves.
 The first vi ew ad mits of an excepti on. The r el ati ons hi p by affi nity
conti nues even aft er t he deat h of one spouse when t here i s a survi vi ng
issue. The r ational e i s t hat the r el ati onshi p i s pr eserved because of t he
li vi ng i ssue of t he marri age in whose vei ns t he bl ood of bot h parti es i s
co mmi ngl ed.
C o n t…
 2 .The con tinu ing affin ity v iew m ain ta in s that
re la tion sh ip b y a ffin ity be tw een the su rv iv ing spouse and
the k ind red o f the deceased spouse con tinues even a fte r the
death o f the d eceased spouse , regardle ss o f w hether the
m arriage p roduced ch ild ren o r no t.
 Under th is view , the re lationsh ip by a ffin ity endu res even
afte r the d isso lu tion o f the m arriage that p roduced it as a
resu lt o f th e death o f o ne o f the partie s to the sa id
m arriage .
 Th is v iew considers that, w here sta tu tes have in d ica ted an
in ten t to benefit step -re la tives o r in -law s, the “ tie o f
affin ity” betw een these peop le and the ir re la tives-by-
m arriage is no t to be regarded as term inated upon the death
o f one o f th e m arried partie s . – In testate Estate of
Gonzales vda. De Carungcong v. PP, G.R. No. 181409 February
11, 2010
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 “Blood relatives”

 Relatives by consanguinity or blood relatives encompassed the

following:
(1) an ascendant;
(2) a descendant;
(3) a legitimate, natural or adopted brother or sister - PP v.
Atop, G. R. Nos. 124303-05 Febr uar y 10, 1998

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 N o affin ity

 Indeed , " there is no a ffin ity betw een the b lood re la tives o f
one spouse and the b lood re la tives of the o ther. A husband
is re la ted by a ffin ity to h is w ife’s b ro ther, b u t no t to
the w ife o f h is w ife’s b ro ther. There is no a ffin ity
betw een the husband’s bro ther and the w ife’s siste r. -
Tiggangay v. Judge Wacas A .M. OCA IPI No. 09-3243-RTJ
[2013]

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 Is the relationship by affinity created between the
husband and the blood relatives of his wife (as well
as between the wife and the blood relatives of her
husband) dissolved by the death of one spouse, thus
ending the marriage which created such relationship
by affinity?

 If m arriage g ives rise to one’s re lationsh ip by a ffin ity to

the b lood rela tives o f o ne’s spouse, does the
extingu ishm en t o f m arriage by the death o f the spouse
d isso lve the re la tion sh ip by a ffin ity?

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 “
C o m m o n law ”relatio n sh ip n o t a
relatio n sh ip b y affin ity
 The law cannot be stretched to include persons attached by common-
law relations. Here, there is no blood relationship or legal bond
that links the appellant to his victim. Thus, the modifying
circumstance of relationship cannot be considered against him. – PP
v. Atop, G.R. Nos. 124303-05 February 10, 1998

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 C ase 1

 Judge is responden t’s second cousin b y a ffin ity, the

fo rm er’s [ judge] aun t is m arried to an uncle o f responden t.
The re la tionsh ip no tw ithstand ing , Judge d id no t inh ib it
h im se lf from hearing sa id e lecto ra l case .
 Judge , as a lleged , a re re la ted w ith in the sixth deg ree by
affin ity in that the aunt o f the judge is m arrie d to the
uncle o f responden t.
 WON the judge is re la ted b y a ffin ity to responden t.

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 Ju d g e n o t d isq u alified
 In the instant case, considering that Judge Wacas is related to his
aunt by consanguinity in the third degree, it follows by virtue of
the marriage of his aunt to the uncle of Dagadag that Judge Wacas
is the nephew-in-law of the uncle of Dagadag, i.e., a relationship
by affinity in the third degree.
 But Judge Wacas is not related by affinity to the blood relatives
of the uncle of Dagadag as they are not his in-laws and, thus, are
not related in any way to Dagadag.
 In like manner, Dagadag is the nephew-in-law of the aunt of Judge
Wacas but is not related by affinity to the blood relatives of
Judge Wacas ’ aunt, like Judge Wacas.
 In short, there is no relationship by affinity between Judge Wacas
and Dagadag as they are not in-laws of each other. Thus, Judge
Wacas is not disqualified under Sec. 1 of Rule 137 to hear Election
Case. - Tiggangay v. Judge Wacas A.M. OCA IPI No. 09-3243-RTJ
[2013]

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 B ein g “
m ag b alaes”is n o t a g ro u n d fo r
au to m atic d isq u alificatio n
 Com p la inan t con tend s that responden t judge is guilty o f
im p rop rie ty by re fu sing to inh ib it h im se lf from the case
desp ite the fact that one o f the accused , Lope Pan ti, S r.,
is the fa ther-in -law o f responden t judge’s daugh te r.
 To be su re , responden t judge and accused Lope Pan ti, S r. a re
no t, stric tly speak ing , re la tives w ith in the m ean ing o f Ru le
137 , §1 o f the Ru les o f Cou rt.
 N everthe less, the c lo se persona l re lation s betw een them as
paren ts o f the ir respective ch ild ren, b e ing in ou r cu ltu re
know n as “m agba laes,” shou ld have cau tioned responden t
judge to inhib it h im se lf from the case , le st h is
im partia lity be p laced in doub t. – A gunday v. Judge
Tresvalles, A.M. No. MTJ-99-1236. November 25, 1999

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 C o m p lain an t is th e ju d g e’
s w ife

 Responden t issued a w arran t fo r the arrest o f com p la inan t,

know ing that the p riva te com p la inan t there in w as h is w ife ,
A tty . Este r F lo r. – Tenenan v. Judge Flor, Jr., A .M. No.
RTJ-06-1995 Sep tember 25, 2007

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 Jud g e’
s nephew is the husband of the
d aug hter of the counsel for the accused
 It is a lleged that responden t shou ld have inh ib ited h im se lf
from Crim inal Case N o . 207096 , en titled “Peop le v .
Criso stom o Ya lung , Roy Manue l M . V illa so r, SG Fernando
Tag le , and SG Ronan Guerre ro” because respondent’s nephew ,
Atty. Cris Pascua Za fra , is m arried to the daughte r o f
Atty. P. M. Castillo , co m p la inan ts’ d e fen se counse l in
that case . Com p la inan ts’ c la im that a lthough responden t’s
re la tion sh ip is to the husband o f th e daugh te r o f the ir
counse l, they d id no t w an t respondent to try their case
because they w an ted “to [avo id ] any stigm a and/o r c loud o f
doub t on any o rder/decision” w h ich responden t m ay render on
the case .

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C o n t..

 In this case, respondent judge failed to take into account the

loss of trust on the part of the complainant as to his
impartiality.
 When a judge exhibits actions that give rise, fairly or
unfairly, to perceptions of bias, such faith and confidence are
eroded, and he has no choice but to inhibit himself
voluntarily. A judge may not be legally prohibited from
sitting in a litigation, but when circumstances appear that
will induce doubt on his honest actuation and probity in favor
of either party, or incite such state of mind, he should
conduct a careful self-examination. He should exercise his
discretion in a way that the people’s faith in the courts of
justice is not impaired. The better course for the judge is to
disqualify himself. - Latorre v. Judge Ansaldo, A.M. No. RTJ-
00-1563 [2001]

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C o n t…

 In any even t, the g rounds re lied upon by com p la inan ts to

suppo rt the ir m o tion , i.e ., tha t responden t’s nephew is the
husband o f the daugh ter o f the counse l fo r the accu sed ;
that they lacked con fid ence in responden t’s im partia lity
xxx have no m erit.

 The first is no t a g round fo r m andato ry d isqua lifica tion o f

judges under Ru le 137 , p ar. 1 sin ce responden t is no t even
re la ted to counse l fo r the accu sed. - Yalung v. Judge
Pascua, A .M. No. MTJ-01-1342 [2001]

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Father-in-law of the judge present in the
proceeding
 The meat of this motion for inhibition is that the father-in-law
of the Presiding Judge, herein respondent, was conspicuously
present in the proceedings during which time he gave
consultation to the complainant who was reportedly his political
leader and protégée.

 In this case, however, respondent did not simply fail to recuse

himself from cases in which his relatives were either involved or
interested, the record shows he did so to favor or protect the
parties. – Si awan v. Judge I nopi quez, Jr., A. M
. No. MTJ-95-
1056. May 21, 2001

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 D iscu ssing the p end ing case w ith a
b ro ther
 By a llow ing h is b ro ther to d iscu ss w ith h im the m erits o f
one party’s po sition , Justice Sab io g ave h is b ro ther the
oppo rtun ity to in fluence h im . A ny reasonab le person w ou ld
tend to doubt Ju stice Sab io’s independence and ob jectiv ity
afte r such a conversa tio n w ith a c lo se fam ily m em ber w ho
a lso happens to ho ld a hig h governm en t po sition. A s a
m ag istra te , Justice Sab io has the duty to p revent any
c ircum stance that w ou ld cast doub t on h is ab ility to decide
a case w ithou t in te rfe rence o r p ressu re from litig an ts,
counse ls o r the ir su rrogates. (Re: Letter of Presiding
Justice Vasquez, Jr., A.M. No. 08-8-11-CA, October 15, 2008 )

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 C learly , responden t judge's partic ip ation in the p re lim inary
in vestig atio n , in vo lv ing h is nephew is a v io la tion o f the
afo requo ted ru les la id dow n to gu ide m em bers o f the
jud ic ia ry . The ra tiona le fo r the ru le on d isqua lifica tion o f
a judge stem s from the prin c ip le that no judge shou ld
p resid e in a case in w h ich he is no t w ho lly free,
d isin te rested , im partia l and independen t. A judge shou ld
no t hand le a case in w h ich he m igh t be perce ived to be
su scep tib le to b ias and partia lity . 7 The ru le is in tended
to p rese rve the peop le's fa ith and con fidence in the cou rts
o f ju stice . Perez v . Judge Su lle r, A .M . N o . MTJ-94-936
Novem ber 6 , 1995
 “Imputed Affinity”
 Judge Doyon should have immediately inhibited himself from the
case upon learning of the entry of appearance of his son’s law firm.
- The incorporators of Mindanao Institute Inc., et. al. v. The United Church of Christ
in the Philippines, et. al., G.R. No. 171765, March 21, 2012
 A stepdaughter has no common ancestry by her stepmother.

- Petiti on for cancell ati on and correcti on of entri es i n the record of

bi rth, G. R. No. 177861, Jul y 13, 2010
Thank you for your attention!!

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