G.R. No. L-57062 January 24, 1992
MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners, vs.HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI and PAULINA MARIATEGUI,respondents.
BIDIN, J.:
This is a petition for review on certiorari of the decision * of the Court of Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto Mariategui, et al. v. Maria del Rosario Mariategui, et al.," reversing the judgment of the then Court of First Instance of Rizal, Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui contracted three (3) marriages. With his first wife, Eusebia Montellano, who died on November 8, 1904, he begot four (4) children, namely: Baldomera, Maria del Rosario, Urbana and Ireneo. Baldomera died and was survived by her children named Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina. Ireneo also died and left a son named Ruperto. With his second wife, Flaviana Montellano, he begot a daughter named Cresenciana who was born on May 8, 1910 (Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married sometime in 1930. They had three children, namely: Jacinto, born on July 3, 1929, Julian, born on February 16, 1931 and Paulina, born on April 19, 1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties which he acquired when he was still unmarried (Brief for respondents, Rollo, pp. 116; 4). These properties are described in the complaint as Lots Nos. 163, 66, 1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second marriages, namely, Maria del Rosario, Urbana,
Ruperto, Cresencia, all surnamed Mariategui and Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina, executed a deed of extrajudicial partition whereby they adjudicated unto themselves Lot No. 163 of the Muntinglupa Estate. Thereafter, Lot No. 163 was the subject of a voluntary registration proceedings filed by the adjudicatees under Act No. 496, and the land registration court issued a decree ordering the registration of the lot. Thus, on April 1, 1971, OCT No. 8828 was issued in the name of the above-mentioned heirs. Subsequently, the registered owners caused the subdivision of the said lot into Lots Nos. 163-A to 163-H, for which separate transfer certificates of title were issued to the respective parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco (Jacinto, Julian and Paulina) filed with the lower court an amended complaint claiming that Lot No. 163 together with Lots Nos. 669, 1346 and 154 were owned by their common father, Lupo Mariategui, and that, with the adjudication of Lot No. 163 to their co-heirs, they (children of the third marriage) were deprived of their respective shares in the lots. Plaintiffs pray for partition of the estate of their deceased father and annulment of the deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos were impleaded in the complaint as unwilling defendants as they would not like to join the suit as plaintiffs although they acknowledged the status and rights of the plaintiffs and agreed to the partition of the parcels of land as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record on Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim (Amended Record on Appeal, p. 13). Thereafter, they filed a motion to dismiss on the grounds of lack of cause of action and prescription. They specifically contended that the complaint was one for recognition of natural children. On August 14, 1974, the motion to dismiss was denied by the trial court, in an order the dispositive portion of which reads:
It is therefore the opinion of the Court that Articles 278 and 285 of the Civil Code cited by counsel for the defendants are of erroneous application to this case. The motion to dismiss is therefore denied for lack of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners' counterclaim were dismissed by the trial court, in its decision stating thus:
The plaintiffs' right to inherit depends upon the acknowledgment or recognition of their continuous enjoyment and possession of status of children of their supposed father. The evidence fails to sustain either premise, and it is clear that this action cannot be sustained. (Ibid, Rollo, pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the ground that the trial court committed an error ". . . in not finding that the parents of the appellants, Lupo Mariategui and Felipa Velasco (were) lawfully married, and in holding (that) they (appellants) are not legitimate children of their said parents, thereby divesting them of their inheritance . . . " (Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a decision declaring all the children and descendants of Lupo Mariategui, including appellants Jacinto, Julian and Paulina (children of the third marriage) as entitled to equal shares in the estate of Lupo Mariategui; directing the adjudicatees in the extrajudicial partition of real properties who eventually acquired transfer certificates of title thereto, to execute deeds of reconveyance in favor, and for the shares, of Jacinto, Julian and Paulina provided rights of innocent third persons are not prejudiced otherwise the said adjudicatees shall reimburse the said heirs the fair market value of their shares; and directing all the parties to submit to the lower court a project of partition in the net estate of Lupo Mariategui after payment of taxes, other government charges and outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of said decision but it was denied for lack of merit. Hence, this petition which was given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or not prescription barred private respondents' right to demand the partition of the estate of Lupo Mariategui, and (b) whether or not the private
respondents, who belatedly filed the action for recognition, were able to prove their successional rights over said estate. The resolution of these issues hinges, however, on the resolution of the preliminary matter, i.e., the nature of the complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the children of the deceased spouses Lupo Mariategui . . . and Felipa Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly acknowledged and confirmed plaintiffs as his children and the latter, in turn, have continuously enjoyed such status since their birth"; and "on the basis of their relationship to the deceased Lupo Mariategui and in accordance with the law on intestate succession, plaintiffs are entitled to inherit shares in the foregoing estate (Record on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs be declared as children and heirs of Lupo Mariategui and adjudication in favor of plaintiffs their lawful shares in the estate of the decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows that the action is principally one of partition. The allegation with respect to the status of the private respondents was raised only collaterally to assert their rights in the estate of the deceased. Hence, the Court of Appeals correctly adopted the settled rule that the nature of an action filed in court is determined by the facts alleged in the complaint constituting the cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one which may be granted under the law, it does not characterize or determine the nature of plaintiffs' action, and the relief to which plaintiff is entitled based on the facts alleged by him in his complaint, although it is not the relief demanded, is what determines the nature of the action (1 Moran, p. 127, 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for partition of the estate of Lupo Mariategui, the Court of Appeals aptly held that the private respondents are legitimate children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married in or about 1930. This fact is based on the declaration communicated by Lupo Mariategui to Jacinto who testified that "when (his) father was still living, he was able to mention to (him) that he and (his) mother were able to get married before a Justice of the Peace of Taguig, Rizal." The spouses deported themselves as husband and wife, and were known in the community to be such. Although no marriage certificate was introduced to this effect, no evidence was likewise offered to controvert these facts. Moreover, the mere fact that no record of the marriage exists does not invalidate the marriage, provided all requisites for its validity are present (People vs. Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be presumed to have taken place between Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and that things have happened according to the ordinary course of nature and the ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court; Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502 [1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it is founded on the following rationale:
The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to that case, to be in fact married. The reason is that such is the common order of society and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband and wife and such relationship is not denied nor contradicted, the presumption of their being married must be admitted as a fact (Alavado v. City Gov't. of Tacloban, supra).
The Civil Code provides for the manner under which legitimate filiation may be proven. However, considering the effectivity of the Family Code of the Philippines, the case at bar must be decided under a new if not entirely dissimilar set of rules because the parties have been overtaken by events, to use the popular phrase (Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26, 1989). Thus, under Title VI of the Family Code, there are only two classes of children — legitimate and illegitimate. The fine distinctions among various types of illegitimate children have been eliminated (Castro vs. Court of Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate children may be established by the record of birth appearing in the civil register or a final judgment or by the open and continuous possession of the status of a legitimate child.
Evidence on record proves the legitimate filiation of the private respondents. Jacinto's birth certificate is a record of birth referred to in the said article. Again, no evidence which tends to disprove facts contained therein was adduced before the lower court. In the case of the two other private respondents, Julian and Paulina, they may not have presented in evidence any of the documents required by Article 172 but they continuously enjoyed the status of children of Lupo Mariategui in the same manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be inconsequential and lacking in substance as to certain dates and names of relatives with whom their family resided, these are but minor details. The nagging fact is that for a considerable length of time and despite the death of Felipa in 1941, the private respondents and Lupo lived together until Lupo's death in 1953. It should be noted that even the trial court mentioned in its decision the admission made in the affidavit of Cresenciana Mariategui Abas, one of the petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay pawang mga
kapatid ko sa ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that private respondents are legitimate children and heirs of Lupo Mariategui and therefore, the time limitation prescribed in Article 285 for filing an action for recognition is inapplicable to this case. Corollarily, prescription does not run against private respondents with respect to the filing of the action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In other words, prescription of an action for partition does not lie except when the co-ownership is properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action for partition may be seen to be at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118 [1988]).
Petitioners contend that they have repudiated the co-ownership when they executed the extrajudicial partition excluding the private respondents and registered the properties in their own names (Petition, p. 16; Rollo, p. 20). However, no valid repudiation was made by petitioners to the prejudice of private respondents. Assuming petitioners' registration of the subject lot in 1971 was an act of repudiation of the co-ownership, prescription had not yet set in when private respondents filed in 1973 the present action for partition (Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their demands, petitioners, except the unwilling defendants in the lower court, failed and refused to acknowledge and convey their lawful shares in the estate of their father (Record on Appeal, p. 6). This allegation, though denied by the petitioners in their answer (Ibid, p.
14), was never successfully refuted by them. Put differently, in spite of petitioners' undisputed knowledge of their relationship to private respondents who are therefore their co-heirs, petitioners fraudulently withheld private respondent's share in the estate of Lupo Mariategui. According to respondent Jacinto, since 1962, he had been inquiring from petitioner Maria del Rosario about their (respondents) share in the property left by their deceased father and had been assured by the latter (Maria del Rosario) not to worry because they will get some shares. As a matter of fact, sometime in 1969, Jacinto constructed a house where he now resides on Lot No. 163 without any complaint from petitioners.
Petitioners' registration of the properties in their names in 1971 did not operate as a valid repudiation of the co-ownership. In Adille vs. Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court held:
Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by repudiation (of the co-ownership). The act of repudiation, in turn, is subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such an act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and conclusive; and (4) he has been in possession through open, continuous, exclusive, and notorious possession of the property for the period required by law.
xxx xxx xxx
It is true that registration under the Torrens system is constructive notice of title, but it has likewise been our holding that the Torrens title does not furnish shield for fraud. It is therefore no argument to say that the act of registration is equivalent to notice of repudiation, assuming there was one, notwithstanding the long-standing rule that registration operates as a universal notice of title.
Inasmuch as petitioners registered the properties in their names in fraud of their co-heirs prescription can only be deemed to have commenced from the time private respondents discovered the petitioners' act of defraudation (Adille vs. Court of Appeals, supra). Hence, prescription definitely may not be invoked by petitioners
because private respondents commenced the instant action barely two months after learning that petitioners had registered in their names the lots involved.
WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals dated December 24, 1980 is Affirmed.
SO ORDERED.
JOSE R. PAÑGANIBAN, complainant, vs.ELIAS BORROMEO, respondent.
The Respondent in his own behalf.Office of the Solicitor-General Hilado for the Government.
MALCOLM, J.:
These proceedings looking to the disbarment of the respondent attorney are before us on the representations of the Solicitor-General that the respondent appear and show cause, if any he has, why he should not be proceeded against for professional malpractice. The respondent admits that, in his capacity as notary public he legalized the document which is the basis of the complaint against him, and that the document contains provisions contrary to law, morals and good customs, but by way of defense disclaims any previous knowledge of the illegal character of the document.
On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a contract before the notary public Elias Borromeo, who was at that time a regularly admitted member of the Philippine Bar. The contract in question had been prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at lease, some knowledge of its contents, although he may not have been fully informed because of a difference in dialect. The contract in substance purported to formulate an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them.
Two questions are suggested by the record. The first concerns the points of whether or not the contract sanctioned an illicit and immoral purpose. The second concerns the point, on the supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer may be disciplined for misconduct as a notary public.
The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal Code, as
modified by Act No. 1773 was in force. Conceding, however, that the more liberal provisions of the Revised Penal Code should be given application, it is herein provided that the consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. In this instance, if the spouses should retain their present frame of mind, no prosecution of either one by the other could be expected. Nevertheless, we think it far from the purpose of the Legislature to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution cannot be instituted if the offended party consent to the act or pardon the offender. This is a matter of future contingency and is not matter for legalization in wanton disregard of good morals. We hold the contract to contain provisions contrary to law, morals and public order, and as a consequence not judicially recognizable.
Passing to the second question, we think there can be no question as to the right of the court to discipline an attorney who, in his capacity as notary public, has been guilty of misconduct. To the office of notary public there is not attached such importance under present conditions as under the Spanish administration. Even so, the notary public exercise duties calling for carefulness and faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken into consideration (1) that the attorney may not have realized the full purport of the document to which he took acknowledgment, (2) that no falsification of facts was attempted, and (3) that the commission of the respondent
as a notary public has been revoked. Accordingly, we are disposed in this case to exercise clemency and to confine our discipline of the respondent to severe censure. So ordered.
.M. No. 804-CJ May 19, 1975
SATURNINO SELANOVA, complainant, vs.ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent.
AQUINO,
Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City with gross ignorance of the law for having prepared and ratified a document dated November 21, 1972, extrajudicially liquidating the conjugal partnership of the complainant and his wife, Avelina Ceniza. One condition of the liquidation was that either spouse (as the case may be) would withdraw the complaint for adultery or concubinage which each had filed against the other and that they waived their "right to prosecute each other for whatever acts of infidelity" either one would commit against the other.
Judge Mendoza in his comment on the charge purposed to convey the impression that he was aware of the invalidity of the agreement but he nevertheless ratified it and gave it his nihil obstat on the assurance of the spouses that they would ask the Court of First Instance of Negros Oriental (where they were residing) to approve the agreement. That pretension is disbelieved by the Judicial Consultant.
Respondent Judge alleged that he relied on the provision that "the husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval" (Par. 4, Art. 191, Civil Code).
He argues that to give the prohibition against an extrajudicial liquidation of the conjugal partnership during the marriage "an unqualified and literal legal construction" would lender nugatory the aforequoted provisions of article 191. He cites Lacson vs. San Jose-Lacson, L-23482, L-23767 and L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of an extrajudicial agreement for the dissolution during the marriage of the conjugal partnership as long as the agreement is subsequently approved by the court.
However, the respondent overlooks the unmistakable ruling of this Court in the Lacson case that judicial sanction for the dissolution of the conjugal partnership during the marriage should be "secured beforehand."
Respondent Judge surmised that Selanova's complaint was instigated by a lawyer whose case was adversely decided by the Judge. That speculation was denied by Selanova who also belied Judge Mendoza's version that the complainant and his wife, Avelina Ceniza, "together with their parents", came to the office of Judge Mendoza and solicited his help in the amicable settlement of their marital imbroglio.
According to Selanova, in 1972 his father was already dead and his mother was ninety-one years old. They could not possibly have come to Judge Mendoza's office. Selanova said that only he and his brother-in-law, Arcadio Ceniza, an alleged classmate of Judge Mendoza, were the persons who went to the Judge's office. But that version may be inaccurate and oversimplified, considering that the agreement was signed before Judge Mendoza not only by Selanova but also by his wife and two witnesses, Lamberts M. Ceniza and Florencio C. Pono.
Judge Mendoza retired on February 27, 1975 when he reached the age of seventy. In his letter of April 8, 1975 he asked for a compassionate view of his case considering his forty-three years' service in the government (he started his public career in 1932 as a policeman and became a justice of the peace in 1954). He also cited the financial predicament of his big family occasioned by the delay in the payment of his retirement and terminal leave pay.
The case was not referred to a Judge of the Court of First Instance for investigation because actually no factual issues necessitate a hearing and presentation of evidence. Respondent Judge admitted that he was responsible for the execution of the questioned document, an extrajudicial "Liquidation of Conjugal Properties", which he caused complainant Saturnino Selanova and his wife, Avelina Ceniza, to sign.
In that instrument Judge Mendoza divided the two pieces of conjugal assets of the spouses by allocating to the husband a thirteen-hectare riceland and to the wife the
residential house and lot. The last paragraph of the instrument, which licensed either spouse to commit any act of infidelity, was in effect a ratification of their personal separation. The agreement in question is void because it contravenes the following provisions of the Civil Code:têñ.£îhqwâ£
ART. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife;
xxx xxx xxx
Even before the enactment of the new Civil Code, this Court held that the extrajudicial dissolution of the conjugal partnership without judicial approval was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15, De La Rosa vs. Barruga, L-2368, June 30, 1950, 4 ROP Digest 171, sec. 29).
On the other hand, disciplinary action had been taken against notaries who authenticated agreements for the personal separation of spouses wherein either spouse was permitted to commit acts of infidelity.
Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely censured for having notarized a document containing "an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them". The document was prepared by another person.
In that case this Court noted that while adultery and concubinage are private crimes, "they still remain crimes" and a contract legalizing their commission is "contrary to law, morals and public order, and as a consequence not judicially recognizable". Since the notary's commission was already revoked, this Court did not disbar him. The fact
that he "may not have realized the full purport of the document to which he took acknowledgment' was considered mitigating.
Severe censure was also administered to a notary of Cebu City who ratified a document entitled "Legal Separation", executed by husband and wife, wherein they agreed that they separated mutually and voluntarily, that they renounced their rights and obligations, and that they authorized each other to remarry, renouncing any action to which they might be entitled and each promising not to be a witness against the other. Those covenants are contrary to law, morals and good customs and tend to subvert the vital foundation of the legitimate family (Biton vs. Momongon, 62 Phil. 7).
In the Santiago case respondent lawyer prepared for a married couple (who had been separated for nine years) a document wherein it was stipulated, inter alia, that they authorized each other to marry again, at the same time renouncing whatever right of action one might have against the other. When the husband inquired if there would be no trouble, respondent lawyer pointed to his diploma which was hanging on the wall and said: "I would tear that off if this document turns out not to be valid." The husband remarried. The respondent was suspended from the practice of law for one year for having been ignorant of the law or being careless in giving legal advice (In reSantiago, 70 Phil. 66).
In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon prepared an affidavit wherein he declared that he was married to Vertudes Marquez, from whom he had been separated, their conjugal partnership having been dissolved, and that he was consorting with Regina S. Balinon his "new found life-partner," to whom he would "remain loyal and faithful" "as a lawful and devoted loving husband for the rest of" his life "at all costs". Attorney Justo T. Velayo notarized that affidavit. This Court reprimanded Velayo and suspended De Leon from the practice of law for three years.
In the instant case, respondent Judge, due to his unawareness of the legal prohibition against contracts for the personal separation of husband and wife and for the extrajudicial dissolution of their conjugal partnership, prepared the said void agreement which was acknowledged before him as "City Judge and Notary
Public Ex-Officio". (Because he was admitted to the bar in 1948 and, consequently, he did not study the new Civil Code in the law school, he might not have been cognizant of its aforecited article 221).
Taking into account that circumstance and his apparent good faith and honest desire to terminate the marital conflict between the complainant and his wife, we are of the opinion that a drastic penalty should not be imposed on him. But he deserves a severe censure for his mistake in preparing and notarizing the aforementioned immoral and illegal agreement. Such severe reprimand should not be an obstacle to his enjoyment of retirement privileges, assuming that there are no causes for depriving him of such benefits.
WHEREFORE, the respondent is severely censured.
SO ORDERED.
G.R. No. 80965 June 6, 1990
SYLVIA LICHAUCO DE LEON, petitioner, vs.THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE LEON, respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CV No. 06649 dated June 30, 1987 the decision of the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29, 1983; and its resolution dated November 24, 1987 denying the motion for reconsideration.
The antecedent facts are as follows:
On October 18, 1969, private respondent Jose Vicente De Leon and petitioner Sylvia Lichauco De Leon were united in wedlock before the Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child named Susana L. De Leon was born from this union.
Sometime in October, 1972, a de facto separation between the spouses occured due to irreconcilable marital differences, with Sylvia leaving the conjugal home. Sometime in March, 1973, Sylvia went to the United States where she obtained American citizenship.
On November 23, 1973, Sylvia filed with the Superior Court of California, County of San Francisco, a petition for dissolution of marriage against Jose Vicente. In the said divorce proceedings, Sylvia also filed claims for support and distribution of properties. It appears, however, that since Jose Vicente was then a Philippine resident and did not have any assets in the United States, Sylvia chose to hold in abeyance the divorce proceedings, and in the meantime, concentrated her efforts to obtain some sort of property settlements with Jose Vicente in the Philippines.
Thus, on March 16, 1977, Sylvia succeeded in entering into a Letter-Agreement with her mother-in-law, private respondent Macaria De Leon, which We quote in full, as follows (pp. 40-42, Rollo):
March 16, 1977
Mrs. Macaria Madrigal de Leon 12 Jacaranda, North Forbes Park Makati, Metro Manila
Dear Dora Macaria:
This letter represents a contractual undertaking among (A) the undersigned (B) your son, Mr. Jose Vicente de Leon, represented by you, and (C) yourself in your personal capacity.
You hereby bind yourself jointly and severally to answer for the undertakings of Joe Vincent under this contract.
In consideration for a peaceful and amicable termination of relations between the undersigned and her lawfully wedded husband, Jose Vicente de Leon, your son, the following are agreed upon:
Obligations of Jose Vicente de Leon and/ or yourself in a joint and several capacity:
1. To deliver with clear title free from all liens and encumbrances and subject to no claims in any form whatsoever the following properties to Sylvia Lichauco-de Leon hereinafter referred to as the wife:
A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St., Mandaluyong, Rizal, Philippines.
B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal, Philippines.
C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots, 801 s q. meters each). (Fully paid).
D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block 22 Westborough Unit No. 2). (Fully paid).
E. 1) The sum of One Hundred Thousand Pesos (P100,000)
2) $30,000
3) $5,000
2. To give monthly support payable six (6) months in advance every year to any designated assignee of the wife for the care and upbringing of Susana Lichauco de Leon which is hereby pegged at the exchange rate of 7.50 to the dollar subject to adjustments in the event of monetary exchange fluctuations. Subsequent increase on actual need upon negotiation.
3. To respect the custody of said minor daughter as pertaining exclusively to the wife except as herein provided.
Obligations of the wife:
1. To agree to a judicial separation of property in accordance with Philippine law and in this connection to do all that may be necessary to secure said separation of property including her approval in writing of a joint petition or consent decree.
2. To amend her complaint in the United States before the Federal Court of California, U.S.A. entitled "Sylvia Lichauco de Leon vs. Jose V. de Leon" in a manner compatible with the objectives of this herein agreement. It is the stated objective of this agreement that said divorce proceedings will continue.
3. All the properties herein described for assignment to the wife must be assigned to Sylvia Lichauco de Leon upon the decree of the Court of First Instance in the Joint Petition for Separation of Property; except for the P100,000, $30,000 and $5,000 which will be paid immediately.
4. This contract is intended to be applicable both in the Republic of the Philippines and in the United States of America. It is agreed that this will constitute an actionable document in both jurisdictions and the parties herein waive their right to object to the use of this document in the event a legal issue should arise relating to the validity of this document. In the event of a dispute, this letter is
subject to interpretation under the laws of California, U.S.A.
5. To allow her daughter to spend two to three months each year with the father upon mutual convenience.
Very truly yours,
(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON CONFORME: s/t/MACARIA M. DE LEON with my marital consent: s/t/JUAN L. DE LEON
On the same date, Macaria made cash payments to Sylvia in the amount of P100,000 and US$35,000.00 or P280,000.00, in compliance with her obligations as stipulated in the aforestated Letter-Agreement.
On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of First Instance of Rizal a joint petition for judicial approval of dissolution of their conjugal partnership, the main part of which reads as follows (pp. 37-38,Rollo):
5. For the best interest of each of them and of their minor child, petitioners have agreed to dissolve their conjugal partnership and to partition the assets thereof, under the following terms and conditions-this document, a pleading being intended by them to embody and evidence their agreement:
xxx xxx xxx
(c) The following properties shall be adjudicated to petitioner Sylvia Lichauco De Leon. These properties will be free of any and all liens and encumbrances, with clear title and subject to no claims by third parties. Petitioner Jose Vicente De Leon fully assumes all responsibility and liability in the event these properties shall not be as described in the previous sentence:
Sedan (1972 model)
Suite 11-C, Avalon Condominium, Ortigas Ave., comer Xavier St., Mandaluyong, Rizal, Philippines
Apt. 702, Wack-Wack Condominium, Mandaluyong, Rizal, Philippines
The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801 sq. meters each) (Fully paid)
2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block 22 Westborough Unit 2) (Fully paid)
The sum of One Hundred Thousand Pesos (P100,000.00)
$30,000.00 at current exchange rate $5,000.00 at current exchange rate
After ex-parte hearings, the trial court issued an Order dated February 19, 1980 approving the petition, the dispositive portion of which reads (p. 143, Rollo):
WHEREFORE, it is hereby declared that the conjugal partnership of the Spouses is DISSOLVED henceforth, without prejudice to the terms of their agreement that each spouse shall own, dispose of, possess, administer and enjoy his or her separate estate, without the consent of the other, and all earnings from any profession, business or industries shall likewise belong to each spouse.
On March 17, 1980, Sylvia moved for the execution of the above-mentioned order. However, Jose Vicente moved for a reconsideration of the order alleging that Sylvia made a verbal reformation of the petition as there was no such agreement for the payment of P4,500.00 monthly support to commence from the alleged date of separation in April, 1973 and that there was no notice given to him that Sylvia would attempt verbal reformation of the agreement contained in the joint petition
While the said motion for reconsideration was pending resolution, on April 20, 1980, Macaria filed with the trial court a motion for leave to intervene alleging that she is the owner of the properties involved in the case. The motion was granted. On October 29, 1980, Macaria, assisted by her husband Juan De Leon, filed her complaint
in intervention. She assailed the validity and legality of the Letter-Agreement which had for its purpose, according to her, the termination of marital relationship between Sylvia and Jose Vicente. However, before any hearing could be had, the judicial reorganization took place and the case was transferred to the-Regional Trial Court of Pasig. On December 29, 1983, the trial court rendered judgment, the dispositive portion of which reads (pp. 35-36, Rollo):
WHEREFORE, judgment is hereby rendered on the complaint in intervention in favor of the intervenor, declaring null and void the letter agreement dated March 16, 1977 (Exhibits 'E' to 'E-2'), and ordering petitioner Sylvia Lichauco De Leon to restore to intervenor the amount of P380,000.00 plus legal interest from date of complaint, and to pay intervenor the amount of P100,000.00 as and for attorney's fees, and to pay the costs of suit.
Judgment is likewise rendered affirming the order of the Court dated February 19, 1980 declaring the conjugal partnership of the spouses Jose Vicente De Leon and Sylvia Lichauco De Leon DISSOLVED; and adjudicating to each of them his or her share of the properties and assets of said conjugal partnership in accordance with the agreement embodied in paragraph 5 of the petition, except insofar as the adjudication to petitioner Sylvia L. De Leon of the properties belonging to and owned by Intervenor Macaria De Leon is concerned.
Henceforth, (a) each spouse shall own, dispose of, possess, administer and enjoy his or her separate estate, present and future without the consent of the other; (b) an earnings from any profession, business or industry shall likewise belong to each of them separately; (c) the minor child Susana De Leon shall stay with petitioner Sylvia Lichauco De Leon for two to three months every year-the transportation both ways of the child for the trip to the Philippines to be at the expense of the petitioner Jose Vicente De Leon; and (d) petitioner Jose Vicente De Leon shall give petitioner Sylvia Lichauco De Leon the sum of P4,500.00 as monthly support for the minor child Susana to commence from February 19, 1980.
Sylvia appealed to the respondent Court of Appeals raising the following errors:
1) The trial court erred in finding that the cause or consideration of the Letter- Agreement is the termination of marital relations;
2) The trial court failed to appreciate testimonial and documentary evidence proving that Macaria de Leon's claims of threat, intimidation and mistake are baseless; and
3) The trial court erred in finding that Sylvia Lichauco de Leon committed breach of the Letter-Agreement; and further, failed to appreciate evidence proving Macaria de Leon's material breach thereof.
The respondent court affirmed the decision in toto. The motion for reconsideration was denied. Hence, the present petition.
The only basis by which Sylvia may lay claim to the properties which are the subject matter of the Letter-Agreement, is the Letter-Agreement itself. The main issue, therefore, is whether or not the Letter-Agreement is valid. The third paragraph of the Letter-Agreement, supra, reads:
In consideration for a peaceful and amicable termination of relations between the undersigned and her lawfully wedded husband, Jose Vicente De Leon, your son, the following are agreed upon: (emphasis supplied)
It is readily apparent that the use of the word "relations" is ambiguous, perforce, it is subject to interpretation. There being a doubt as to the meaning of this word taken by itself, a consideration of the general scope and purpose of the instrument in which it occurs (see Germann and Co. v. Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the Civil Code which provides that the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly, is necessary.
Sylvia insists that the consideration for her execution of the Letter-Agreement was the termination of property relations with her husband. Indeed, Sylvia and Jose Vicente subsequently filed a joint petition for judicial approval of the dissolution of their conjugal partnership, sanctioned by Article 191 of the Civil Code. On the other hand, Macaria
and Jose Vicente assert that the consideration was the termination of marital relationship.
We sustain the observations and conclusion made by the trial court, to wit (pp. 44- 46, Rollo):
On page two of the letter agreement (Exhibit' E'), the parties contemplated not only to agree to a judicial separation of property of the spouses but likewise to continue with divorce proceedings (paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If taken with the apparently ambiguous provisions in Exhibit E' regarding termination of 'relations', the parties clearly contemplated not only the termination of property relationship but likewise of marital relationship in its entirety. Furthermore, it would be safe to assume that the parties in Exhibit 'E' not having specified the particular relationship which they wanted to peacefully and amicably terminate had intended to terminate all kinds of relations, both marital and property. While there could be inherent benefits to a termination of conjugal property relationship between the spouses, the court could not clearly perceive the underlying benefit for the intervenor insofar as termination of property relationship between petitioners is concerned, unless the underlying consideration for intervenor is the termination of marital relationship by divorce proceedings between her son Jose Vicente and his wife petitioner Sylvia. The last sentence of paragraph 2 under "Obligations of the Wife" unequivocally states: "It is the stated objective of this agreement that said divorce proceedings (in the United States) will continue. "There is merit in concluding that the consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to secure freedom for her son petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor, which is (sic) agreement signed by petitioner Sylvia to consent to and pardon Jose Vicente De Leon for adultery and concubinage (among others) would be considered. In the light, therefore, of the foregoing circumstances, this Court finds credible the testimony of intervenor as follows:
Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting of three pages and inform us whether or not this is the letter of March 16, 1977 which you just referred to?
A Yes, this is the letter.
Why did you affix your signature to this Exh. 'E'-intervenor (sic)?A Because at that time when I signed it I want to buy peace for myself and for the whole family.Q From whom did you want to buy peace and/or what kind of peace?A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of 'matapang;' so I want peace for me and primarily for the peaceful and amicable termination of marital relationship between my son, Joe Vincent and Sylvia. (Deposition dated September 6, 1983-Macaria de Leon, p. 6-7)This Court, therefore, finds and holds that the cause or consideration for the intervenor Macaria De Leon in having executed Exhibits 'E' to 'E-2' was the termination of the marital relationship between her son Jose Vicente De Leon and Sylvia Lichauco de Leon.Article 1306 of the New Civil Code provides:Art. 1306. The contracting parties may establish such stipulations, clauses, terms, and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy.If the stipulation is contrary to law, morals or public policy, the contract is void and inexistent from the beginning.Art. 1409. The following contracts are inexistent and void from the beginning:Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;
xxx xxx xxx
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.
But marriage is not a mere contract but a sacred social institution. Thus, Art. 52 of the Civil Code provides:
Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and incidents are governed by law and not subject to stipulations...
From the foregoing provisions of the New Civil Code, this court is of the considered opinion and so holds that intervenor's undertaking under Exhibit 'E' premised on the termination of marital relationship is not only contrary to
law but contrary to Filipino morals and public Policy. As such, any agreement or obligations based on such unlawful consideration and which is contrary to public policy should be deemed null and void. (emphasis supplied)
Additionally, Article 191 of the Civil Case contemplates properties belonging to the spouses and not those belonging to a third party, who, in the case at bar., is Macaria. In the petition for the dissolution of the conjugal partnership, it was made to appear that the said properties are conjugal in nature. However, Macaria was able to prove that the questioned properties are owned by her. Neither Sylvia nor Jose Vicente adduced any contrary evidence.
Granting, in gratia argumenti, that the consideration of the Letter-Agreement was the termination of property relations, We agree with the respondent court that (pp. 46-47, Rollo):... the agreement nevertheless is void because it contravenes the following provisions of the Civil Code:Art. 221. The following shall be void and of no effect:(1) Any contract for personal separation between husband and wife;(2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife;
Besides, the Letter-Agreement shows on its face that it was prepared by Sylvia, and in this regard, the ambiguity in a contract is to be taken contra proferentem, i.e., construed against the party who caused the ambiguity and could have also avoided it by the exercise of a little more care. Thus, Article 1377 of the Civil Code provides: "The interpretation of obscure words of stipulations in a contract shall not favor the party who caused the obscurity" (see Equitable Banking Corp. vs. IAC, G.R. No. 74451, May 25, 1988, 161 SCRA 518).
Sylvia alleges further that since the nullity of the Letter-Agreement proceeds from the unlawful consideration solely of Macaria, applying the pari delicto rule, it is clear that she cannot recover what she has given by reason of the Letter-Agreement nor ask for the fulfillment of what has been promised her. On her part, Macaria raises the defenses of intimidation and mistake which led her to
execute the Letter-Agreement. In resolving this issue, the trial court said (pp. 148-151, Rollo):
In her second cause of action, intervenor claims that her signing of Exhibits 'E' to 'E- 2' was due to a fear of an unpeaceful and troublesome separation other son with petitioner Sylvia Lichauco de Leon. In support of her claim, intervenor testified as follows:
Q Will you please inform us how did Sylvia Lichauco disturb or threaten your son or yourself?
A Despite the fact that Sylvia Lichauco voluntarily left my son Joe Vincent and abandoned him, she unashamedly nagged Joe and me to get money and when her demands were not met she resorted to threats like, she threatened to bring Joe to court for support. Sylvia threatened to scandalize our family by these baseless suits; in fact she caused the service of summons to Joe when he went to the United States. (Intervenor's deposition dated Sept. 6, 1983, p. 8).
On the other hand, petitioner Sylvia claims that it was intervenor and petitioner Jose Vicente who initiated the move to convince her to agree to a dissolution of their conjugal partnership due to the alleged extra-marital activities of petitioner Jose Vicente de Leon. She testified as follows:
Q Now in her testimony, Macaria Madrigal de Leon also said that you threatened her by demanding money and nagged her until she agreed to the letter agreement of March 1977, what can you say about that?
A I think with all the people sitting around with Atty. Quisumbing, Atty. Chuidian, my father-in-law, my sister-in-law and I, you know, it can be shown that this was a friendly amicable settlement that they were much really interested in settling down as I was. I think there were certain reasons that they wanted to get done or planned, being at that time Jose was already remarried and had a child. That since she then found out that since she was worried about what might be, you know, involved in any future matters. She just wanted to do what she could. She just want me out of the picture. So in no way, it cannot be said that I nagged and threatened her. (TSN dated December 8, 1983, p. 137-138)
In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor, which was not controverted by petitioner Sylvia. A reading of Exhibit 'R' would show that petitioner Sylvia would consent to and pardon petitioner Jose Vicente, son of intervenor, for possible crimes of adultery and/or concubinage, with a sizing attached; that is, the transfer of the properties subject herein to her. There appears some truth to the apprehensions of intervenor for in petitioner Sylvia's testimony she confirms the worry of intervenor as follows:'... being at that time Jose (De Leon) was already remarried and had a child. That since she (intervenor) found out that, she was worried about what might be, you know, involved in any future matters. She just want me out of the picture." The aforesaid fear of intervenor was further corroborated by her witness Concepcion Tagudin who testified as follows:
Q Now, you mentioned that you were present when Mrs. Macaria De Leon signed this Exhibit 'E-2, ' will you inform us whether there was anything unusual which you noticed when Mrs. Macaria M. De Leon signed this Exhibit 'E-2'?
A Mrs. Macaria M. De Leon was in a state of tension and anger. She was so mad that she remarked: 'Punetang Sylvia ito bakit ba niya ako ginugulo. Ipakukulong daw niya si Joe Vincent kung hindi ko pipirmahan ito. Sana matapos na itong problemang ito pagkapirmang ito,' sabi niya.' (Deposition-Concepcion Tagudin, Oct. 21, 1983, pp. 10-11)
In her third cause of action, intervenor claims mistake or error in having signed Exhibits '1' to 'E-2' alleging in her testimony as follows:
Q Before you were told such by your lawyers what if any were your basis to believe that Sylvia would no longer have inheritance rights from your son, Joe Vincent?
A Well, that was what Sylvia told me. That she will eliminate any inheritance rights from me or my son Joe Vincent's properties if I sign the document amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp. 9-10).
On the other hand, petitioner Sylvia claims that intervenor could not have been mistaken in her having signed the document as she was under advice of counsel during the time that Exhibits 'E' to 'E-2' was negotiated. To support such claims by Sylvia Lichauco De Leon, the deposition
testimony of Atty. Vicente Chuidian was presented before this Court:
Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would you be able to tell us in what capacity he was present in that negotiation?
Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent, the spouse of Sylvia. (Deposition of V. Chuidian, December 16, 1983, p. 8)
The New Civil Code provides:Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence or fraud is voidable.Art. 1331. In order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into a contract. ...
The preponderance of evidence leans in favor of intervenor who even utilized the statement of the divorce lawyer of petitioner Sylvia (Mr. Penrod) in support of the fact that intervenor was mistaken in having signed Exhibits 'E' to 'E-2' because when she signed said Exhibits she believed that fact that petitioner Sylvia would eliminate her inheritance rights and there is no showing that said intervenor was properly advised by any American lawyer on the fact whether petitioner Sylvia, being an American citizen, could rightfully do the same. Transcending, however, the issue of whether there was mistake of fact on the part of intervenor or not, this Court could not. see a valid cause or consideration in favor of intervenor Macaria De Leon having signed Exhibits 'E' to 'E-2.' For even if petitioner Sylvia had confirmed Mr. Penrod's statement during the divorce proceedings in the United States that she would undertake to eliminate her hereditary rights in the event of the property settlement, under Philippine laws, such contract would likewise be voidable, for under Art. 1347 of the New Civil Code 'no contract may be entered into upon future inheritance.
We do not subscribe to the aforestated view of the trial court. Article 1335 of the Civil Code provides:
xxx xxx xxx
There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent.
To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent.
In order that intimidation may vitiate consent and render the contract invalid, the following requisites must concur: (1) that the intimidation must be the determining cause of the contract, or must have caused the consent to be given; (2) that the threatened act be unjust or unlawful; (3) that the threat be real and serious, there being an evident disproportion between the evil and the resistance which all men can offer, leading to the choice of the contract as the lesser evil; and (4) that it produces a reasonable and well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury. Applying the foregoing to the present case, the claim of Macaria that Sylvia threatened her to bring Jose Vicente to court for support, to scandalize their family by baseless suits and that Sylvia would pardon Jose Vicente for possible crimes of adultery and/or concubinage subject to the transfer of certain properties to her, is obviously not the intimidation referred to by law. With respect to mistake as a vice of consent, neither is Macaria's alleged mistake in having signed the Letter-Agreement because of her belief that Sylvia will thereby eliminate inheritance rights from her and Jose Vicente, the mistake referred to in Article 1331 of the Civil Code, supra. It does not appear that the condition that Sylvia "will eliminate her inheritance rights" principally moved Macaria to enter into the contract. Rather, such condition was but an incident of the consideration thereof which, as discussed earlier, is the termination of marital relations.
In the ultimate analysis, therefore, both parties acted in violation of the laws. However, the pari delicto rule, expressed in the maxims "Ex dolo malo non oritur actio" and "In pari delicto potior est conditio defendentis," which refuses remedy to either party to an illegal agreement and
leaves them where they are, does not apply in this case. Contrary to the ruling of the respondent Court that (pp. 47-48, Rollo):
... [C]onsequently, intervenor appellees' obligation under the said agreement having been annulled, the contracting parties shall restore to each other that things which have been subject matter of the contract, their fruits and the price or its interest, except as provided by law (Art. 1398, Civil Code).
Article 1414 of the Civil Code, which is an exception to the pari delicto rule, is the proper law to be applied. It provides:
When money is paid or property delivered for an illegal purpose, the contract may be repudiated by one of the parties before the purpose has been accomplished, or before any damage has been caused to a third person. In such case, the courts may, if the public interest wig thus be subserved, allow the party repudiating the contract to recover the money or property.
Since the Letter-Agreement was repudiated before the purpose has been accomplished and to adhere to the pari delicto rule in this case is to put a premium to the circumvention of the laws, positive relief should be granted to Macaria. Justice would be served by allowing her to be placed in the position in which she was before the transaction was entered into.
With the conclusions thus reached, We find it unnecessary to discuss the other issues raised.
ACCORDINGLY, the petition is hereby DENIED. The decision of the respondent Court of Appeals dated June 30, 1987 and its resolution dated November 24, 1987 are AFFIRMED.
SO ORDERED.
[A M. No. P-94-1054. March 11, 2003]
EDWIN A. ACEBEDO, petitioner, vs. EDDIE P. ARQUERO, respondent.
D E C I S I O N
CARPIO MORALES, J.:
By letter-complaint[1] dated June 1, 1994, Edwin A. Acebedo charged Eddie P. Arquero, Process Server of the Municipal Trial Court (MTC) of Brookes Point, Palawan for immorality.
Complainant alleged that his wife, Dedje Irader Acebedo, a former stenographer of the MTC Brookes Point, and respondent unlawfully and scandalously cohabited as husband and wife at Bancudo Pulot, Brookes Point, Palawan as a result of which a girl, Desiree May Irader Arquero, was born to the two on May 21, 1989. Attached to the letter-complaint was the girls Baptismal Certificate[2] reflecting the names of respondent and Dedje Irader as her parents. Also attached to the letter-complainant was a copy of a marriage contract[3] showing that complainant and Dedje Irader contracted marriage on July 10, 1979.
By Resolution of September 7, 1994, this Court required respondent to file an answer to the complaint.[4]
By his Answer[5] of October 6, 1994, respondent vehemently denied the charge of immorality, claiming that it is just a (sic) mere harassment and a product of complainants hatred and extreme jealousy to (sic) his wife.[6] Attached to the answer were the September 27, 1987 affidavit of desistance[7] executed by complainant in favor of his wife with respect to an administrative complaint he had much earlier filed against her, and complainants sworn statement[8] dated September 13, 1994 acknowledging paternity of a child born out of wedlock, which documents, respondent claims, support his contention that the complaint filed against him is but a malicious scheme concocted by complainant to harass him.
Additionally, respondent claimed that sometime in 1991, complainant likewise instituted a criminal complaint against him for adultery which was, however, dismissed after preliminary investigation.
Finally, respondent claimed that complainant himself had been cohabiting with another woman.
By Resolution of February 6, 1995, this Court referred the case to then Executive Judge Filomeno A. Vergara of the Regional Trial Court of Puerto Princesa, Palawan for investigation, report and recommendation.[9] Judge Vergara having retired during the pendency of the investigation, the case was referred to Executive Judge Nelia Y. Fernandez who was, by Resolution of August 16, 2000, directed by this Court to (1) verify the authenticity of the marriage certificate and baptismal certificate submitted by complainant; (2) conduct an investigation as to the information contained in the said baptismal certificate and the circumstances under which it was issued, and such other verifiable matters relevant to the charge; and (3) submit her report and recommendation thereon.[10]
In her Investigation Report of February 12, 2001, Judge Fernandez recommends that the complaint be dismissed for failure to adduce adequate evidence to show that respondent is guilty of the charge.[11] The report focuses on the non-appearance of complainant and Dedje Irader Acebedo, thusly:
x x x
Having appeared that the complainant Edwin Acebedo and Dedjie Irader who per reliable information cannot be notified for reason that subject persons are no longer residing in their given address and their whereabouts is unknown as shown by the return of the subpoena dated November 7, 2000, and the inadmissibility of the baptismal certificate alleging therein that the father of Desiree Arquero is the respondent herein, and for the reason that the same had not been testified to by Dedje Irader who is the informant of the entries contained therein, this Court had not received adequate proof or relevant evidence to support a conclusion that respondent herein could be held
liable of the charge imputed against him, hence, he should be absolved from any liability.
x x x[12] (Quoted verbatim).
By Resolution of April 25, 2001, this Court referred the case to the Office of the Court Administrator (OCA) for evaluation, report and recommendation.
By Memorandum of December 12, 2001, the OCA, disagreeing with the recommendation of the Investigating Judge that the case should be dismissed, recommends that respondent be held guilty of immorality and that he be suspended from office for a period of one (1) year without pay.[13] Thus the OCA ratiocinates:
. . . [R]espondent admitted the fact that for eight (8) to nine (9) months, he a single man maintained relations with Dedje Irader Acebedo, wife of herein complainant, attended with sexual union(TSN dated 23 November 2000, pp. 14-15). Based on his testimony, we observed that respondent justified his having a relationship with Dedje I. Acebedo solely on the written document purportedly a Kasunduan or agreement entered into by complainant and his wife, consenting to and giving freedom to either of them to seek any partner and to live with him or her. Being a court employee respondent should have known that said agreement was void despite it having been notarized. Even granting that Dedjie I. Acebedo was separated from her husband during their short lived relation, to hold on to said scandalous agreement and enter an immoral relationship with a very much married woman and a co-court-employee at that is highly improper. It is contrary to the Code of Conduct and Ethical Standards of Public Officials and Employees which provides that public employees of which respondent is one, xxx shall at times (sic) respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. Moreover, respondent cannot seek refuge and sling mud at complainant for having executed an Affidavit dated September 13, 1994, acknowledging that he bore a woman other than his wife, a child. It would seem that respondent would want to apply the principle of in pari delicto in the instant
case. Respondent would have it appear that a married man with an extra-marital relation and an illegitimate child is precluded from complaining if his wife enters into a relationship with another man.
Second, the records show that an Affidavit of Desistance was executed by herein complainant. However, a cursory reading of said document reveals that it favors only Dedje Irader Acebedo and not herein respondent. Interestingly, the date of said affidavit is 2 September 1987. Respondent had the temerity to claim it as evidence in his favor when the instant complaint was only filed sometime in 1994.
Third, when respondent was asked by the investigating judge if he attended the baptism of the daughter of Dedje Irader Acebedo, his former co-employee and ex-intimate friend, he answered, I did not. Im not sure the child is mine. From his answer, we could infer that respondent did not categorically rule out the possibility that said child might be her (sic) daughter, only that he is doubtful of her paternity.
While complainant appears to have lost interest in the prosecution of the present case, the same does not ipso facto warrant its dismissal. Once administrative charges have been filed, this Court may not be divested of its jurisdiction to investigate and ascertain the truth thereof.[15] For it has an interest in the conduct of those in the service of the Judiciary and in improving the delivery of justice to the people, and its efforts in that direction may not be derailed by the complainants desistance from prosecuting the case he initiated.[16]
On the merits of the case, the entry of respondents name as father in the baptismal certificate of Desiree May I. Arquero cannot be used to prove her filiation and, therefore, cannot be availed of to imply that respondent maintained illicit relations with Dedje Irader Acebedo. A canonical certificate is conclusive proof only of the baptism administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained therein which concern the relationship of the person baptized.[17] It merely attests to the fact which gave rise to its issue, and the date thereof, to wit, the fact of the administration of the sacrament on the date stated, but not the truth of the statements therein as to the parentage of the child baptized.[18]
By respondents own admission, however, he had an illicit relationship with complainants wife:
Q: During the formal offer of the possible nature of your testimony before the Court by your counsel, did the Court get it correct that there has been a short lived relation between you and Dedgie Irader, am I correct in my impression?
A: During that time that I have heard she and her husband have parted ways already, I jokingly informed her that she is now being separated, she is now single and is free to have some commitment.So, I courted her and she accepted me, so we have a short lived relation and after that we parted ways.
Q: For how long was this short lived relation you ade mention a while ago?
A: May be (sic) about eight (8) to nine (9) months.
Q: When you said you have (sic) a short lived relationship from 8 to 9 months, you mean to tell the Court that you have (sic) a sexual union with this woman?
A: Yes maam.[19] (Emphasis and underscoring supplied).
Respondent justified his pursuing a relationship with complainants wife with the spouses having priorly entered into a settlement with respect to their marriage which was embodied in aKasunduan, the pertinent portions of which are reproduced hereunder:
Kami, EDWIN AGUINALDO ACEBEDO at DEDJE IRADER ACEBEDO, may sapat na taong gulang, mag-asawa, Pilipino, at kasalukuyang nakatira sa Poblacion, Brokes (sic) Point, Palawan, ay malayang nagkasundo ng mga sumusunod:
1. Na, yayamang hindi kami magkasundo bilang mag-asawa, at magiging miserable lamang ang aming mga buhay kung aming ipagpapatuloy pa ang aming pagsasama bilang mag-asawa, kami ay malayang nagkasundo ngayon na maghiwalay na bilang mag-asawa, at ang bawat isa sa amin ay may kalayaan na humanap na ng kaniyang makakasama sa buhay bilang asawa at hindi kami maghahabol sa isat isa sa alin pa mang hukuman;
Respondents justification fails. Being an employee of the judiciary, respondent ought to have known that the Kasunduan had absolutely no force and effect on the validity of the marriage between complainant and his wife. Article 1 of the Family Code provides that marriage is an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation. It is an institution of public order or policy, governed by rules established by law which cannot be made inoperative by the stipulation of the parties.[21]
Republic Act 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, enunciates the States policy of promoting a high standard of ethics and utmost responsibility in the public service.[22]
Although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary.[23]That is why this Court has firmly laid down exacting standards of morality and decency expected of those in the service of the judiciary.[24] Their conduct, not to mention behavior, is circumscribed with the heavy burden of responsibility,[25] characterized by, among other things, propriety and decorum so as to earn and keep the publics respect and confidence in the judicial service.[26] It must be free from any whiff of impropriety, not only with respect to their duties in the judicial branch but also to their behavior outside the court as private individuals.[27]There is no dichotomy of morality; court employees are also judged by their private morals.[28]
Respondents act of having illicit relations with complainants wife is, within the purview of Section 46 (5) of Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, a disgraceful and immoral conduct.
Under Rule IV, Section 52A (15) of the Revised Uniform Rules on Administrative Cases in the Civil Service, an immoral conduct is classified as a grave offense which calls for a penalty of suspension for six (6) months and one (1) day to one (1) year for the first offense, and dismissal is imposed for the second offense.
Since the present charge of immorality against respondent constitutes his first offense, his suspension for six (6) months and one (1) day is in order.
WHEREFORE, this Court finds respondent Eddie P. Arquero, Process Server of the Municipal Trial Court of Brookes Point, Palawan, GUILTY of immorality, for which he is hereby SUSPENDED for six (6) months and one (1) day without pay with a STERN WARNING that commission of the same or similar acts shall be dealt with severely.
Let a copy of this decision be filed in the personal record of respondent.SO ORDERED.
A.C. No. 8392 June 29, 2010[ Formerly CBD Case No. 08-2175 ]
ROSARIO T. MECARAL, Complainant, vs.ATTY. DANILO S. VELASQUEZ, Respondent.
D E C I S I O N
Per Curiam:
Rosario T. Mecaral (complainant) charged Atty. Danilo S. Velasquez (respondent) before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD)1 with Gross Misconduct and Gross Immoral Conduct which she detailed in her Position Paper2 as follows:
After respondent hired her as his secretary in 2002, she became his lover and common-law wife. In October 2007, respondent brought her to the mountainous Upper San Agustin in Caibiran, Biliran where he left her with a religious group known as the Faith Healers Association of the Philippines, of which he was the leader. Although he visited her daily, his visits became scarce in November to December 2007, prompting her to return home to Naval, Biliran. Furious, respondent brought her back to San Agustin where, on his instruction, his followers tortured, brainwashed and injected her with drugs. When she tried to escape on December 24, 2007, the members of the group tied her spread-eagled to a bed. Made to wear only a T-shirt and diapers and fed stale food, she was guarded 24 hours a day by the women members including a certain Bernardita Tadeo.
Her mother, Delia Tambis Vda. De Mecaral (Delia), having received information that she was weak, pale and walking barefoot along the streets in the mountainous area of Caibiran, sought the help of the Provincial Social Welfare Department which immediately dispatched two women volunteers to rescue her. The religious group refused to release her, however, without the instruction of respondent. It took PO3 Delan G. Lee (PO3 Lee) and PO1 Arnel S. Robedillo (PO1 Robedillo) to rescue and reunite her with her mother.
Hence, the present disbarment complaint against respondent. Additionally, complainant charges respondent with bigamy for contracting a second marriage to Leny H. Azur on August 2, 1996, despite the subsistence of his marriage to his first wife, Ma. Shirley G. Yunzal.
In support of her charges, complainant submitted documents including the following: Affidavit3 of Delia dated February 5, 2008; Affidavit of PO3 Lee and PO1 Robedillo4 dated February 14, 2008; photocopy of the Certificate of Marriage5 between respondent and Leny H. Azur; photocopy of the Marriage Contract6 between respondent and Shirley G. Yunzal; National Statistics Office Certification7 dated April 23, 2008 showing the marriage of Ma. Shirley G. Yunzal to respondent on April 27, 1990 in Quezon City and the marriage of Leny H. Azur to respondent on August 2, 1996 in Mandaue City, Cebu; and certified machine copy of the Resolution8 of the Office of the Provincial Prosecutor of Naval, Biliran and the Information9 lodged with the RTC-Branch 37-Caibiran, Naval, Biliran, for Serious Illegal Detention against respondent and Bernardita Tadeo on complaint of herein complainant.
Despite respondent’s receipt of the February 22, 2008 Order10 of the Director for Bar Discipline for him to submit his Answer within 15 days from receipt thereof, and his expressed intent to "properly make [his] defense in a verified pleading,"11 he did not file any Answer.1avvphi1
On the scheduled Mandatory Conference set on September 2, 2008 of which the parties were duly notified, only complainant’s counsel was present. Respondent and his counsel failed to appear.
Investigating Commissioner Felimon C. Abelita III of the CBD, in his Report and Recommendation12 dated September 29, 2008, found that:
[respondent’s] acts of converting his secretary into a mistress; contracting two marriages with Shirley and Leny, are grossly immoral which no civilized society in the world can countenance. The subsequent detention and torture of the complainant is gross misconduct [which] only a beast may be able to do. Certainly, the respondent
had violated Canon 1 of the Code of Professional Responsibility which reads:
CANON 1 – A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.
x x x x
In the long line of cases, the Supreme Court has consistently imposed severe penalty for grossly immoral conduct of a lawyer like the case at bar. In the celebrated case of Joselano Guevarra vs. Atty. Jose Manuel Eala, the [Court] ordered the disbarment of the respondent for maintaining extra-marital relations with a married woman, and having a child with her. In the instant case, not only did the respondent commit bigamy for contracting marriages with Shirley Yunzal in 1990 and Leny Azur in 1996, but the respondent also made his secretary (complainant) his mistress and subsequently, tortured her to the point of death. All these circumstances showed the moral fiber respondent is made of, which [leave] the undersigned with no choice but to recommend the disbarment of Atty. Danilo S. Velasquez. 13 (emphasis and underscoring supplied)
The IBP Board of Governors of Pasig City, by Resolution14 dated December 11, 2008, ADOPTED the Investigating Commissioner’s findings and APPROVED the recommendation for the disbarment of respondent.
As did the IBP Board of Governors, the Court finds the IBP Commissioner’s evaluation and recommendation well taken.
The practice of law is not a right but a privilege bestowed by the state upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.15 When a lawyer’s moral character is assailed, such that his right to continue
practicing his cherished profession is imperiled, it behooves him to meet the charges squarely and present evidence, to the satisfaction of the investigating body and
this Court, that he is morally fit to keep his name in the Roll of Attorneys.16
Respondent has not discharged the burden. He never attended the hearings before the IBP to rebut the charges brought against him, suggesting that they are true.17 Despite his letter dated March 28, 2008 manifesting that he would come up with his defense "in a verified pleading," he never did.
Aside then from the IBP’s finding that respondent violated Canon 1 of the Code of Professional Responsibility, he also violated the Lawyer’s Oath reading:
I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God, (underscoring supplied),
and Rule 7.03, Canon 7 of the same Code reading:
Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
The April 30, 2008 Resolution18 of the Provincial Prosecutor on complainant’s charge against respondent and Bernardita Tadeo for Serious Illegal Detention bears special noting, viz:
[T]he counter-affidavit of x x x Bernardita C. Tadeo (co-accused in the complaint) has the effect of strengthening the allegations against Atty. Danilo Velasquez. Indeed, it is clear now that there was really physical restraint employed by Atty. Velasquez upon the person of Rosario
Mecaral. Even as he claimed that on the day private complainant was fetched by the two women and police officers, complainant was already freely roaming around the place and thus, could not have been physically detained. However, it is not really necessary that Rosario be physically kept within an enclosure to restrict her freedom of locomotion. In fact, she was always accompanied wherever she would wander, that it could be impossible for her to escape especially considering the remoteness and the distance between Upper San Agustin, Caibiran, Biliran to Naval, Biliran where she is a resident. The people from the Faith Healers Association had the express and implied orders coming from respondent Atty. Danilo Velasquez to keep guarding Rosario Mecaral and not to let her go freely. That can be gleaned from the affidavit of co-respondent Bernardita Tadeo. The latter being reprimanded whenever Atty. Velasquez would learn that complainant had untangled the cloth tied on her wrists and feet.19 (emphasis and underscoring supplied)
That, as reflected in the immediately-quoted Resolution in the criminal complaint against respondent, his therein co-respondent corroborated the testimonies of complainant’s witnesses, and that the allegations against him remain unrebutted, sufficiently prove the charges against him by clearly preponderant evidence, the quantum of evidence needed in an administrative case against a lawyer.20
In fine, by engaging himself in acts which are grossly immoral and acts which constitute gross misconduct, respondent has ceased to possess the qualifications of a lawyer.21
WHEREFORE, respondent, Atty. Danilo S. Velasquez, is DISBARRED, and his name ORDERED STRICKEN from the Roll of Attorneys. This Decision is immediately executory and ordered to be part of the records of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines.
Let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts.
SO ORDERED.
A.M. No. MTJ-92-710 June 19, 2003
PEDRITA M. HARAYO, Complainant, vs.JUDGE MAMERTO Y. COLIFLORES, Respondent.
D E C I S I O N
BELLOSILLO, J.:
Complainant Pedrita M. Harayo, former clerk-stenographer, Municipal Trial Court, Minglanilla, Cebu, in a sworn complaint dated 15 September 1992, charged respondent Judge Mamerto Y. Coliflores, Presiding Judge of the same court, with grave misconduct for (a) dismissing for monetary consideration Crim. Case No. 2307 for violation of PD No. 18661 and Crim. Case No. 2308 for violation of RA No. 6425;2 (b) assigning Court Aide Jose M. Agosto as domestic helper and driver of respondent’s passenger jeepney; (c) solemnizing illegal marriages and collecting fees therefor; (d) allowing her name (complainant’s) to be placed as witness in a marriage contract by forging her signature; (e) falsifying the date when he signed the verification portion of the complaint and the joint affidavit of the arresting officers in Crim. Case No. 2388; and, (f) changing for monetary consideration the joint affidavit of arresting officers Jerome Abatayo, Erasmo Gako and Eugene Hernani relative to Crim. Cases Nos. 2307 and 2308.
In a related letter-complaint dated 7 September 1992 complainant Pedrita Harayo charged respondents Josefina R. Hermosa and Jose M. Agosto, Clerk of Court and Court Aide respectively, of MTC, Minglanilla, Cebu, with falsification of entries in their daily time record and daily attendance book.
By way of comment, respondent Judge denied the allegations in the complaint and countered that complainant might have been prompted to file the instant complaint after he indorsed Josefina Hermosa over complainant for the position of Clerk of Court II. He added that complainant likewise vented her ire on Hermosa and Agosto when Hermosa did not accede to her request not to pursue her application for Clerk of Court, and the latter, when he chided her about her belligerent attitude towards
Hermosa and his remark that after all she (complainant) was not qualified for the position she was seeking and even as court stenographer since she had no knowledge of steno-typing.
On the matter of the illegal marriage, charged in the complaint, respondent claimed that he desisted from officiating the marriages upon discovery that the documents were not complete despite assurances by complainant to the contrary.
This Court in a resolution dated 23 February 1993 referred the instant case to the Office of the Court Administrator (OCA) for evaluation, report and recommendation. Thereafter, the OCA submitted its memorandum dated 29 March 1993 prepared by Deputy Court Administrator Eutropio Migriño recommending the dismissal of the complaints for lack of merit.
On 11 May 1993 the Court again passed a resolution referring the instant case to Executive Judge Generoso Juaban of the Regional Trial Court, Cebu, for investigation, report and recommendation. In his report, Judge Juaban recommended that respondent be exonerated on the first and third charges, i.e., that he dismissed cases for monetary consideration, and that he utilized Court Aide Jose Agosto as his domestic helper and personal driver. However, on the charge that he performed illegal marriages, Judge Juaban recommended that respondent be admonished and his salary equivalent to one (1) or two (2) months be suspended for having signed three (3) marriage contracts before the corresponding marriage licenses were obtained by the parties. Judge Juaban reported that –
While there is no hard proof that respondent Judge demanded money in the solemnization of these marriages, suspicion is strong that there could be some monetary consideration. The investigator now seems to doubt the verity of respondent’s denial. If the marriage contracts were signed by him and no solemnization ever had, as he alleges, because he desisted from doing so in the first instance, why did he repeat the same procedure in the second and the third time? Signing the marriage contracts before the marriage licenses were so obtained on these three (3) marriages is indicative of respondent’s
imprudence in this respect that calls for appropriate measures of admonition.3
On 9 August 1994 this Court referred the report of Judge Juaban to the OCA for further evaluation, report and recommendation. Accordingly, on 15 September 1994 the OCA submitted a memorandum essentially adopting the recommendations of Investigating Judge Juaban but with the proposal that with regard to the second charge, respondent be fined in the amount equivalent to his one (1) month salary.
In an En Banc resolution dated 30 May 1995, the Supreme Court noted that the report of Judge Juaban failed to address certain key issues which were likewise raised in the complaint, namely: (a) that respondent allowed complainant’s name to be placed as witness in the marriage contract signed by Emmanuel Plantar and Elizabeth Nacor on 10 May 1989 by forging her signature; (b) that he falsified the date when he signed the verification portion of the complaint and the joint affidavit of the arresting officers in Crim. Case No. 2388 by making it appear that he was in the office and signed the documents on 15 August 1992 when in fact it was only on 20 August 1992 that he went to the court and signed the same; and, (c) that for monetary consideration, he changed the joint affidavit of the arresting officers in order to lay the groundwork for the dismissal of Crim. Cases Nos. 2307 and 2308.
In justifying the inclusion of the above-mentioned charges, the Court opined that these accusations should have been included in the investigation as they were embodied in the reply of complainant to the comment of respondent Judge. Consequently, the Court directed the National Bureau of Investigation (NBI), Cebu City, to conduct an investigation and submit its report and recommendation on the (a) alleged forgery of complainant’s signature on the marriage contract signed by Emmanuel Plantar and Elizabeth Nacor on 10 May 1989; and (b) purported falsification of the joint affidavit of the arresting officers in Crim. Cases Nos. 2307 and 2308, and of the date affixed in the verification of the complaint in Crim. Case No. 2388.
In partial compliance with the Court’s directive, the NBI through Regional Director Florencio Villarin submitted a
report on 2 November 1995 which contained its findings and conclusions on the examination of the marriage contract containing complainant’s alleged forged signature. It concluded that "(t)he questioned signatures ‘Pedrita Harayo’ and the standard/sample signatures and handwritings of one ‘Pedrita Harayo’ were not written by one and the same person."4
With respect to the alleged falsification of the joint affidavit of the arresting officers, and of the date affixed in the verification of the complaint in Crim. Case No. 2388, the NBI reports disclosed the following: " (a) as regards the joint affidavit executed on 23 August 1991, ". . . indicative that they were not typed from one and the same source/ typewriter;5 (b) as regards the joint affidavit executed on 15 August 1992 ". . . indicative that they were not typed from one and the same source/typewriter;"6 and (c) "the questioned and the standard sample/signatures (of) Jesus P. Carel were written by one and the same person. The questioned typewritten entries/figures reading ‘15’ is NOT altered."7
Upon receipt of the last report of the NBI, the Second Division of this Court again referred the matter to the OCA which in turn recommended that the matter be "REFERRED BACK" to the executive judge of RTC, Cebu, for a more exhaustive investigation, report and recommendation, particularly on those matters raised by the complainant but were not touched in the investigation conducted by former Executive Judge Generoso Juaban.
On 8 January 2003, Investigating Judge Galicano Arriesgado, who replaced Judge Generoso Juaban as Executive Judge, RTC-Cebu, together with Judges Isaias Dicdican and Pampio Abarintos, First Vice–Executive Judge and Second Vice-Executive Judge, respectively, submitted their report with the recommendation that all the charges against respondent Judge be dismissed for lack of merit.8 In arriving at their findings and conclusions, the Investigating Judges said -9
On the charge that respondent judge allowed the forging of complainant’s signature in the marriage contract x x x x no sufficient proof was adduced that respondent judge had personal knowledge, much less, allowed the commission of the forgery. While it is true that the NBI result impliedly reported a forgery, however, the same cannot be directly pointed to respondent x x x x
On the second charge of falsifying the date in the verification portion of the joint affidavit of the police officers in Criminal Case 2388, the investigation revealed a total lack of evidence to support the same x x x x In the absence of proof to the contrary, the best evidence is the document, which has been, for all intents, proven not only to be regular, but also to be without any alterations. Hence, in the normal course of things, it is logical to presume that the document was signed by respondent on the 15th and have been filed with and received by the court on the 18th as appearing on the official stamp x x x x
On the charge that respondent judge changed the joint affidavits of the arresting officers in order to facilitate the dismissal of Criminal Cases Nos. 2307 and 2308, the same June 1, 2000 report of the NBI did not yield conclusive results that the questioned affidavits were typed at the MTC Minglanilla x x x x
On the first charge, there is absolutely no proof, other than the unsubstantiated allegation of the complainant, that respondent Judge had received pecuniary consideration from a brother of the accused in exchange for the dismissal of Crim. Cases Nos. 2307 and 2308. If we were to believe complainant’s account of the incident, the payoff was supposed to have been made outside the chambers of respondent Judge and in the presence of lawyers and court employees; in other words, in open public view – a venue which no sensible perpetrator of a crime would choose as it would unnecessarily expose him to the dangers of eventual prosecution. Moreover, her allusion that respondent offered her P100.00, apparently as goodwill money, becomes even more preposterous considering that a considerable amount, P15,000.00 or P20,000.00, was supposed to have changed hands. As pointed out by respondent, P100.00 is an amount too miniscule to buy the silence of a potential witness to a crime.
On the second charge, we also find unpersuasive complainant’s allegation that respondent improperly utilized the services of Court Aide Jose Agosto as domestic helper and driver of his passenger jeepney. This bare accusation, devoid of corroboration, cannot nudge this Court into precipitate belief.
On the charge that respondent Judge solemnized civil marriages for exorbitant fees without the requisite
marriage license, the records would reveal that on three (3) different occasions he had indeed signed marriage contracts, which were undated as to the time the marriages were solemnized and with the space provided for the license number left blank.
In his comment, respondent Judge denied having solemnized marriages without a license.1âwphi1 He explained that in the first instance involving the marriage between Didier and Basan, he signed the marriage contract only after assurances were made by complainant that the papers were in order but collected said documents back and kept them inside his drawer soon after learning that the marriage license was indeed missing. In the other two (2) instances, he also denied having officiated at the marriage between Bin Osman and Librea and that of Cabreros and Batto when informed that the contracting parties could not produce their respective marriage licenses.
Indeed, there is nothing in the records that would indicate that respondent had in fact solemnized the marriages without the mandated license. After all, who could best prove the existence of this fact other than the contracting parties themselves? Nonetheless, there is an inescapable showing that in at least three (3) different occasions respondent Judge actually signed the marriage contracts, admittedly prior to the issuance of the licenses.
Be that as it may, we cannot reject outright, in the absence of a more convincing evidence en contra by the complainant, the verity of respondent’s assertion that he desisted from performing marriages upon learning of the contracting parties’ failure to produce the requisite marriage licenses, which was corroborated by other defense witnesses. But we cannot also help but register our strong suspicion that there are more serious irregularities than meet the eye behind respondent’s actuations. Committing the same act of imprudence three (3) times is one too many for comfort, casting respondent’s motives in serious question. In the absence however of clear and convincing proof that he actually solemnized the three (3) marriages without the marriage licenses, no culpability of such nature can be ascribed to him.
Nonetheless, respondent’s admission of signing the marriage contracts before the issuance of the requisite
marriage licenses, although not necessarily fraudulent, amounts to gross negligence, if not gross irresponsibility, in performing his official functions.
On the charge of forgery by respondent of complainant’s signature as witness in a marriage contract, there appears to be sufficient basis for the conclusion of the NBI of an implied forgery on the documents in question although there is no direct evidence on who actually committed the forgery. But the fact is that it happened with respondent’s apparent tolerance, if not acquiescence, for which he should be held accountable.
As regards the allegation of complainant that respondent falsified the date when he signed the verification portion of the complaint and the joint affidavit of the arresting officers in Crim. Case No. 2388, and that he changed for monetary consideration the joint affidavit of the arresting officers in connection with Crim. Cases Nos. 2307 and 2308, we can only rely, in the absence of proof to the contrary, on the findings of the NBI that no alterations were made on the subject documents.
In sum, respondent, for gratuitously signing marriage contracts in utter disregard of its legal effects, had been remiss in his duty of exercising due care and circumspection in the performance of his official duties. In doing so, he exhibited a cavalier proclivity of ignoring the norms of diligence, efficiency, competence and dedication expected of a man donning a judicial robe. Thus, he deserves a more severe disciplinary sanction than that recommended.
Although the accusations against respondent Judge do not appear to have been fully substantiated, the Court cannot let him go unpunished. In Negre v. Rivera,10 we admonished a municipal judge for signing a marriage contract where no marriage license had been issued. Considering that in the instant case, respondent repeatedly committed these procedural gaffes, a penalty more severe must be meted against him.
His serious negligence and irresponsibility in signing three (3) marriage contracts, allegedly in blank, and without the requisite marriage licenses are simply too palpable for this Court to assume an air of nonchalance and suspend in midair the fall of the gavel when it should.
WHEREFORE, the recommendations of Investigating Judges Generoso Juaban and Galicano Arriesgado are APPROVED, particularly exonerating respondent Judge Mamerto Y. Coliflores of the charges against him, with the exception of his act of signing the three (3) marriage contracts without the required marriage licenses for which the Court finds him administratively liable and is ORDERED suspended immediately for one (1) month and to pay a fine equivalent to two (2) months salary which shall be withheld from his retirement benefits when he retires.
SO ORDERED.
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner, vs.REPUBLIC OF THE PHILIPPINES, respondent.
D E C I S I O N
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.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error,30is immutable.31
When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is
no legal basis for his petition for the correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but 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.