Legal lessons from GMA 7’s “Pepito Manaloto”

Last night after coming home from church and while having a late supper of siopao, corn on the cob, some beef and C2, I was able to watch some scenes of GMA7’s “Pepito Manaloto.” It is claimed to be the first ever reality sitcom, whatever that means. The scenes last night showed Pepito (played by Michael V) being bawled out by his wife Elsa (Manilyn Reynes) for buying a lotto ticket instead of medicine for their sick child (Joshua Pineda). The next episode will show Pepito winning 700 million pesos from the lotto.

What legal lessons can we learn from “Pepito Manaloto”?

1. Articles 68 to 73 of the Family Code provide for the rights and obligations Between husband and wife. These rights and obligations are:

Article 68 Personal obligations of the spouses
Article 69 Who decides on the family domicile
Article 70 Responsibility for family support
Article 71 Household management by both spouses
Article 72 Relief from the courts in case of disagreement
Article 73 Exercise by a spouse of a profession, industry, etc

2. Article 75 of the Family Code provides that “the future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern”.

The problem is that a lot of Filipinos get married without knowing what these property regimes (systems) are, or that they even have a choice as to what regime they want. The same is true with a lot of foreigners married to Filipinos.

If the future spouses, BEFORE getting married, did not agree upon what kind of property regime they want, then as Article 75 provides, the system of absolute community of property (ACP) will automatically govern them.

3. Article 88 of the Family Code provides that “the absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void.”

4. Article 91 provides that “unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.”

In simpler terms, everything owned by the man and woman at the time they got married will automatically become part of their community property. No exceptions; even those properties acquired by the man or woman by inheritance or donation BEFORE the marriage will become part of the community property from the moment they get married. This is true even if the titles to the properties acquired were not transferred to the names of the spouses after the marriage.

But during the marriage, properties acquired by inheritance or donation by either spouse do not become part of the community property, as provided for by Article 92 (1).

5. Article 92 enumerates what properties are excluded from the community property.

6. Article 93 provides an important principle: “Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.”

8. Now the part of the Family Code that relates to “Pepito Manaloto”:

Article 95 provides that “whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property.”

From the scenes I watched last night, it seems that Pepito used the money meant for the purchase of medicine to buy a lotto ticket. Article 95 states any winnings from any game of chance (like the lotto) shall become part of the community property. The fictional Pepito or any real Pinoy who might win the lotto cannot claim the winnings all by himself or herself; if that Pinoy is married, the winnings become part of community property.

What if the Pinoy who wins the lotto happens to be separated from the husband or wife? Well, the winnings become part of the community property as long as (1) the marriage has not been annulled or declared null and void; or (2) the spouses have not been legally separated; or (3) there has been no judicial separation of property under Articles 134 to 142 of the Family Code.

What if the Pinoy borrows money from the “5-6” loan shark in order to buy a lotto ticket? And this Pinoy doesn’t win? Can the community property of this Pinoy and the spouse be held liable to pay the loan shark? Well, as you can read from Article 95, “whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community.” In other words, that poor Pinoy must pay the loan shark out of his/her own pocket, cannot require the other spouse to help, or use their savings if any to pay the debt.

Legal lessons from GMA 7’s “First Time” (presumption of legitimacy and simulation of birth)

Last night, while waiting for the 6:30 PM television news programs, I caught several scenes of the “First Time” teledrama that has reportedly captured the hearts of millions of Filipino teenagers. From what little I saw and heard last night, it seems that Cyndi, the main character played by Barbie Forteza, is not the real daughter of her parents played by Ian Veneracion and I don’t know who. It seems that Cyndi’s mother cruelly told her (and as Ian’s character later on verified) that she wasn’t their real child. I’m not sure if this is what the story is all about and how events will unfold. But there are several legal lessons we can learn:

1. If Cyndi’s parents simply got a birth certificate and made it appear that they were her biological parents, then they have committed “simulation of birth”. This is a criminal offense under the Revised Penal Code and RA 8552 Domestic Adoption Act of 1998. Please read my post “Procedures in RA 8552 domestic adoption and RA 8043 inter-country adoption; misinterpretation of RA 9523”. The penalty for simulation of birth under RA 8552 is imprisonment of six years and one day minimum to eight years maximum. There is also a fine not exceeding fifty thousand pesos (P50,000.00).

It is estimated that there have been more than 100,000 cases of simulation of birth in the Philippines. Why do people resort to simulation of birth? For several reasons: either

• they don’t know that this is illegal, all the while they think that they are legally adopting the child; or
• they do not want to go through the legal process of adoption which takes time and money.

2. If “simulation of birth” isn’t what the writers of “First Time” want to develop in the story, then they would have to consider Article 167 of the Family Code. The article states: “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

Please take time to read my posts “If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?” and “DNA testing to prove legitimacy or illegitimacy of children”.

Let me see, what excuse besides waiting for the 6:30 news programs can I use to watch how the story in “First Time” will develop tonight?

Legal lesson from “Panday Kids”

Last Friday, after several hours of trying and failing to update my Avast 5 engine and virus definitions, and as I sat down to eat dinner, I caught several scenes of “Panday Kids”, GMA 7’s newest teleserye. In one scene, the character played by Isabel Granada said to her daughter, “Kung alam ko lang na tutubuan ng sungay si Charlie, hindi ko na dapat pinayagan ang Papa mo na ampunin siya.” English translation: “If I only knew that Charlie would grow horns, I would not have given my permission for your father to adopt her”. Charlie is the character played by the cute Sabrina Man. (Incidentally, Isabel Granada is still very pretty despite marriage and motherhood.)

I don’t know the complete background of the story. but the scriptwriters of the show seem to have gotten their facts wrong. From the dialogue cited above, it seems that it was only the husband (I don’t know which actor plays this role) who filed the petition for adoption. As you can read from my post on adoption, under RA 8552 Domestic Adoption Act of 1998, joint adoption by a husband and wife is mandatory. The exceptions to joint adoption are:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.

The mandatory requirement is in consonance with the concept of joint parental authority over the child, which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.

Well, it is just a teleserye of course and who really cares about the legalities? As Samuel Taylor Coleridge once said,“Fiction is the willing suspension of disbelief.”

One other scene I saw last Friday was that of Maria Makiling (played by the alluring Iza Calzado) being manhandled by her captors Andreas and Cicero. Hmm, let me see, what legal lessons can we learn from Iza Calzado?

Legal lessons from the Maguindanao massacre (02): bail

The court is now hearing the petition for bail of principal suspect Datu Unsay. Some of you may be wondering as to why the court is conducting hearings on the petition for bail while the main issues of the case are seemingly being set aside.

Filing of a petition for bail is standard for defense lawyers

The defense lawyers filed the petition for bail claiming that the evidence of guilt is weak. For the millions of Filipinos who are following the developments of this case on television and the Internet, this claim seems highly incredible since the evidence of guilt appears to be stronger than the steel on a back hoe. But the filing of a petition for bail is a standard tactic of defense lawyers. Let me explain.

This kind of petition is allowed under the Rules on Criminal Procedure and is in keeping with the Constitutional presumption of innocence. Once such a petition has been filed, the prosecution is required to prove that indeed evidence of guilt is strong. After the hearings, the judge can deny or grant the petition for bail.

What happens if the petition for bail is granted?

If you remember the kidnapping case involving actor/congressman Dennis Roldan, the judge ruled that the evidence of guilt was weak. He was allowed to post bail.

If the petition for bail is granted, the case will then proceed as in the normal procedure:

• The prosecution will present evidence to prove the guilt of the accused. All the testimonies and evidences presented during the hearings of the petition for bail will become part of the hearing on the main issues. The witnesses who testified during the hearings for the petition for bail will not be required to appear and testify again during the hearings on the main issues of the case.  But since the petition for bail has been granted, the prosecution is put on notice that it should review its case and strengthen its evidence.

• After the prosecution has presented its evidence, the accused may then present evidence of his innocence. (Before presenting his evidence, he can with the leave or consent of the court, submit what is called a demurrer to evidence. This is essentially a motion to dismiss the case. If the court grants the demurrer, the case is dismissed and the accused is set free. If the court denies the demurrer, then the accused has to present his evidence.)
  

For the accused and his lawyers therefore, filing a petition for bail is advantageous for at least two reasons:

• If the petition is granted, he can be released from custody and enjoy his liberty while the case is going on; and

• He can know whether in the mind of the judge the evidence of his guilt is strong or not. If the judge denies his petition, he has the time to strengthen his defense. He may even consider a plea bargain.

Let’s discuss some practical matters about bail:

1. “Bail” is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified.

2. The information filed by the fiscal contains at the lower portion a notation on the bail recommended. The bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. The legal term is “to post bail” but “to pay the bail” is the layman’s expression.

No bail necessary for cases under the Rules on Summary Procedure (for example, BP 22)

For cases falling under the Rules on Summary Procedure, the court does not issue a warrant of arrest. Thus the posting of bail is not necessary (even if the information states a recommended bail). For example, persons accused of violation of BP 22 (bouncing checks) do not have to post bail. However, the court may issue a warrant of arrest and require the posting of bail if the accused fails to appear during the hearings.

Release on recognizance

3. “ROR” (Release on recognizance) means that the accused will not post the bail in money or security; instead, the accused will be released to the custody of a government official like barangay officials or previously, in the case of minors, of parents. The person to whom custody is entrusted will guarantee that the accused will be present during the hearings.

Motion to reduce bail

4. Sometimes, the accused and/or his family cannot afford to post the recommended bail. The usual procedure is to file what is called “Motion to reduce bail”. For example, if the recommended bail is sixty thousand pesos, the accused may ask the court to reduce the bail to around twenty five thousand pesos. The court may grant the motion to reduce bail but then it requires that the bail be paid in cash.

Seeking the help of bail bondsman or “pyansador”

5. If you know someone who has been arrested but who cannot afford to pay the bail, you can ask the clerks and security guards at fiscal’s offices and/or the Hall of Justice as to who the bail bondsmen (“pyansador”) are. These are men and women who make a living out of helping persons accused of a crime to avail of the services of surety companies. These companies will pay the recommended bail and the accused has to pay only the premium. The “pyansador” will work on all the papers. (Sometimes, the court staff or the police officers serving the warrant have contacts with the “psyansador”. Once the accused has been arrested, the court staff or the police officers will tell him that they can help work on their release. Needless to say, these practices of court staff and police officers are against Civil Service rules.)

Pictures needed

6. The accused, in working on his bail, has to provide pictures of himself (front, left and right profiles) which will be attached to the documents. There are photographers who hang around fiscal’s offices and Halls of Justice, waiting for clients. The “pyansador” also has contacts with photographers.

If the accused has not yet been arrested and is working on the posting of his bail, he can go to a photo studio and ask that his pictures be taken. If he tells the photo studio that he needs the pictures for posting bail, the studio already knows what kind of pictures to take.

Posting bail to avoid being arrested; how to prevent being harassed

7. To avoid being arrested on the basis of a warrant of arrest, the accused posts the recommended bail through his lawyer or relatives. In the meantime, the accused hides or makes himself scarce. Once the bail has been posted, the accused should always bring with him proof of payment of bail. This way, he can avoid being harassed by the police. For the same reason, if the accused has been arrested and then posts bail, he should carry with him a copy of the release order.

What to do if someone borrows money from you to post the bail

8. If an accused approaches you for help in paying his bail and you want to make sure that the money is returned to you eventually, ask that your name be indicated in the official receipt as the payor of the bail.

Bail is cancelled if accused is absent during the hearings; motion to lift the warrant of arrest and to reinstate bail

9. If the accused who has posted bail fails to appear at a hearing, then the court may order that his bail be forfeited. The court also issues what is called a “bench warrant” for the arrest of the accused. If the accused has a valid reason for his absence (like sickness or he was not informed of the hearing), he may file a “motion to lift the warrant of arrest and to reinstate bail”.

But if the accused does not have any valid reason for being absent during the hearings, he will be forced to post bail again.

Posted below are the complete provisions of “The Revised Rules of Criminal Procedure” on bail.

Rule 114 – Bail

Section 1. Bail defined. – Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.

Sec. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the following conditions:

(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever required by the court of these Rules;

(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of the final judgment.

The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.

Sec. 3. No release or transfer except on court order or bail. – No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

Sec. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

Sec. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

Sec. 6. Capital offense defined. – A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.

Sec. 8. Burden of proof in bail application. – At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.

Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required.

Sec. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors.

Sec. 11. Property bond, how posted. – A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.

Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.

Sec. 12. Qualifications of sureties in property bond. – The qualifications of sureties in a property bond shall be as follows:

(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded.

In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

Sec. 13. Justification of sureties. – Every surety shall justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified.

Sec. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit.

Sec. 15. Recognizance. – Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.

Sec. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.

Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.

Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

Sec. 18. Notice of application to prosecutor. – In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation.

Sec. 19. Release on bail. – The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule.

When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed.

Sec. 20. Increase or reduction of bail. – After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody.

Sec. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:

(a) produce the body of their principal or give the reason for his non-production; and
(b) explain why the accused did not appear before the court when first required to do so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted.

Sec. 22. Cancellation of bail. – Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the bail.

Sec. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion.

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.

Sec. 24. No bail after final judgment; exception. – No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.

Sec. 25. Court supervision of detainees. – The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees.

In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information.

Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

Legal lessons from the Maguindanao Massacre (01): arraignment and plea

This case has generated widespread interest in media and in the public mind. One good thing that may come out of this case is that people will learn more about the legal system in the Philippines. As the hearings in this case continue, I will be posting discussions on the legal procedures involved.

As you may remember about two weeks ago, Datu Unsay, the principal accused in this case, was arraigned before the hearing for his petition for bail began.

1. In simple terms, “arraignment” refers to that part of the case where the complaint or information (the legal document prepared by the fiscal who conducted the preliminary investigation) is read to the accused in a language known to him. This is in keeping with the Constitutional requirement that a person must be informed of the charges against him. What is the difference between a complaint and an information? I will discuss this in a future post.

2. In some situations, the lawyer for the accused may manifest to the court that the accused is waiving the reading of the complaint or information. Common English for “manifest” is to tell or inform. Why would the defense lawyer do this for the accused? Well, one reason is to spare the accused the embarrassment of being arraigned. People who have been arraigned will tell you that they experienced a lot of negative thoughts and emotions as the charges against them were being read. One time, I heard one woman say after she was arraigned, “Parang sinisilaban ang pwet ko habang ina-arraign ako!”

3. If the accused does not have a lawyer representing him or her, the judge appoints any lawyer (the PAO lawyer assigned to that court or any private lawyer who happens to be present in court at that time) as counsel de officio to assist the accused for purposes of the arraignment.

4. After the complaint or information has been read to the accused, the judge asks “How does the accused plead?” The accused may answer “Not guilty”, “Guilty,” or his lawyer may say that the accused is not entering any plea. If the accused does not want to enter any plea, the judge orders that a plea of “Not guilty” be entered into the records. If you remember the celebrated libel case against Philippine Star columnist Louie Beltran filed by Pres. Cory Aquino, Beltran refused to enter any plea. One reason why an accused may not want to enter any plea is to be able to question later on the jurisdiction of the court over him.

Posted below are the provisions of “The Revised Rules of Criminal Procedure” on arraignment and plea.

Rule 116 - Arraignment and Plea

Section 1. Arraignment and plea; how made. - (a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.

(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

(d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

(e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment.

(f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone.

(g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

Sec. 2. Plea of guilty to a lesser offense. – At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.

Sec. 3. Plea of guilty to capital offense; reception of evidence. – When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf.

Sec. 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. – When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.

Sec. 5. Withdrawal of improvident plea of guilty.– At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.

Sec. 6. Duty of court to inform accused of his right to counsel. – Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de officio to defend him.

Sec. 7. Appointment of counsel de officio. – The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de officio such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.

Sec. 8. Time for counsel de officio to prepare for arraignment. – Whenever a counsel de office is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

Sec. 9. Bill of particulars. – The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.

Sec. 10. Production or inspection of material evidence in possession of prosecution. – Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, object, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies.

Sec. 11. Suspension of arraignment. – Upon motion by the proper party, the arraignment shall be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.

Should the private handwritten instrument in RA 9255 be signed by the father?

Update as of September 30, 2016: In the 2014 case of “Grace Grande v. Patricio Antonio” G.R. No. 206248, the Supreme Court declared void Rule 7 (Requirements for the Child to Use the Surname of the Father) and Rule 8 (Effects of Recognition) of the Implementing Rules and Regulations of RA 9255. Thus, the Philippine Statistics Authority issued the Revised IRR of RA 9255, which became effective on April 9, 2016. Read the revised guidelines on how illegitimate children can use their biological father’s surname and my critique of the guidelines.

I have previously written about what surname illegitimate children can use and the problems and issues with RA 9255. As you may recall, RA 9255 amended Article 176 of the Family Code, giving illegitimate children the right to use the surname of their biological father:

1. if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or

2. if the father makes an admission of his paternity either in a public document or private handwritten instrument.

The first instance takes place when the father signs the affidavit of acknowledgment (or admission of paternity) of the illegitimate child’s birth certificate.

In the second instance, the Implementing Rules and Regulations (IRR) seem to be confused as to what RA 9255 requires. Please take note that the father can execute a public document admitting his paternity of the child.

What is a “public document”? When a document is notarized, it becomes a public document. Thus when a father executes a document admitting his paternity and the document is notarized, it becomes a public document. The public document may be titled simply as “Affidavit”, “Affidavit of acknowledgment” or “Affidavit admitting paternity” or some other terms. In fact, the public document may be titled “Affidavit to use the surname of the father” and it will comply with the requirements of RA 9255 on public documents. One woman e-mailed asking me what the difference was between a public document and an AUSF since she was being required by a Local Civil Registrar to submit both.

Note: Revised IRR of RA 9255 became effective as of April 9, 2016.

The IRR of RA 9255, however, differentiates between a “public document” and an AUSF (“Affidavit to use the surname of the father”). The IRR states that the AUSF is used in cases where recognition is made through a private handwritten instrument, or when the birth has already been registered under the mother’s surname with or without father’s recognition.” Who executes the AUSF? From the IRR, person or persons who can issue the AUSF are the illegitimate child himself/herself or the mother (or anyone else) applying for the use of the father’s surname in behalf of the child. But the IRR also uses the expression “public instrument or AUSF” which seems to indicate that “public document” and “AUSF” refer to the same thing.

IRR of RA 9255: the private handwritten instrument must be signed by the father

Anyway, the point I wish to discuss here is that of the private handwritten instrument executed by the father in admitting his paternity. The IRR requires that the private handwritten instrument must be in the handwriting of the father and signed by him. Further, two of the following documents must be submitted:

For private handwritten instruments, other documents are required to be submitted to support the claim made. In particular, submission of any two of the following documents is required:

1. Employment records
2. SSS/ GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liabilities
6. Income Tax Return (ITR)

Please take note again that the IRR of RA 9255 says that the private handwritten instrument must be signed by the father.

2009 Supreme Court ruling: Private handwritten instrument need not be signed by the father if ...

In the case of “Jenie San Juan Dela Cruz and minor Christian Dela Cruz “Aquino,” represented by Jenie San Juan Dela Cruz, Petitioners, versus Ronald Paul S. Gracia, in his capacity as City Civil Registrar of Antipolo City” (G.R. No. 177728, promulgated on July 31, 2009), the Supreme Court ruled that contrary to the IRR of RA 9255, the private handwritten instrument need not be signed by the father.

The facts of the case

Jenie San Juan Dela Cruz (Jenie for brevity) applied with the City Civil Registrar of Antipolo City for registration of her son Christian using the surname of the biological father Dominique. She submitted the following:

1. Christian’s Certificate of Live Birth
2. Affidavit to Use the Surname of the Father (AUSF) which she had executed and signed
3. Affidavit of Acknowledgment executed by Dominique’s father Domingo Butch Aquino
4. “AUTOBIOGRAPHY” which Dominique, during his lifetime, wrote in his own handwriting (Note: this document was not signed however by Dominique)

Both affidavits attested among other things that during the lifetime of Dominique, he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned.

City Civil Registrar of Antipolo City denies Jenie’s petition because the Autobiography was not signed

The City Civil Registrar of Antipolo City however denied Jenie’s petition on the ground Christian was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity either through the “Affidavit of Acknowledgment or Admission of Paternity” in the birth certificate or the “Authority to Use the Surname of the Father” (AUSF).

Regional Trial Court of Antipolo City dismisses Jenie’s petition

Jenie then filed a complaint for injunction/registration of name against the City Civil Registry before the Regional Trial Court of Antipolo City. Jenie claimed that the Autobiography executed by Dominique constitutes an admission of paternity in a “private handwritten instrument” within the contemplation of Article 176 of the Family Code as amended by RA 9255. During the ex-parte hearings, Jenie and Dominique’s brother testified.

The Antipolo City RTC however dismissed the complaint stating that under the IRR of RA 9255 that the private handwritten instrument must be signed by the father. The trial court held that even if Dominique was the author of the handwritten Autobiography, it did not contain any express recognition of paternity.

Supreme Court rules in favor of Jenie and her son

The Supreme Court ruled in favor of Jenie and Christian. The Court ruled that special circumstances existed to hold that Dominique’s Autobiography, though unsigned by him, substantially satisfies the requirement of the law.

The Court adopted the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made:

(1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and

(2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it is sufficient that the claim of filiation is shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

The Supreme Court justified its ruling in this way:

Our laws instruct that the welfare of the child shall be the “paramount consideration” in resolving questions affecting him. Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic:

Article 3, 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

It is thus “the policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children. Too, “the State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development.”

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child’s best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate.

The Supreme Court thus ordered the City Civil Registry of Antipolo City to enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of Christian in his Certificate of Live Birth and record it in the Register of Births.

Custody battles over children, the Sean Goldman case, and Hague Convention on the Civil Aspects of International Child Abduction

I have written several posts on the issue of custody battles over children, namely, (1) Can a mother be deprived of custody of her child?; (2) Custody battles over children between grandparents and a father or mother; and (3) Custody battles over children: what determines fitness of a parent over another?. These posts dealt with situations where the child or children were taken by one parent against the wishes of the other to another place within the Philippines. I discussed in these posts Supreme Court decisions based on the provisions of the Family Code.

When a child however is taken out of one country and transferred to another country by one parent without the consent of the other, the primary law that needs to be considered is the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This convention is now the focus in the long-running, internationally-publicized case of Sean Goldman. For more information on this case from the point of view of David (the father), you can surf to the “Bring Sean Home Foundation” website. David has insisted that the issue is not custody but abduction. Even President Barack Obama and the US Congress have gotten into the picture.

As of this date, the Philippines is not a signatory to this convention. There are reportedly more than a dozen cases of children, primarily from California, who have been brought by one parent against the will of the other to the Philippines. Since the Philippines is not a signatory to this convention, the provisions of the Family Code and Supreme Court decisions will be the basis for deciding the issues of custody, visitation, etc. Philippine courts are not bound by foreign laws and court judgments, and evidence of these laws and judgments must be submitted to the courts for their consideration.

Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court decisions?

Update as of April 25, 2018: “SC recognizes divorce in marriage with foreigners” (Rappler) The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.” “Republic of the Philippines v. Marelyn Tanedo Manalo” G.R. No. 221029. April 24, 2018 Based on a clear and plain reading of paragraph 2 of Article 26 (Family Code), the provision only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.”

Through an e-mail, I was informed that the Philippine embassy in Japan has issued as of September 2009 guidelines titled “Announcement for Divorced Filipinos” and for what it calls “Certificate of No Objection” for Filipinos wishing to marry Japanese and foreign nationals.

Part of the guidelines concerns requirements for divorced Filipinos who wish to marry either Japanese or other foreign nationals. I stand to be corrected, but at first glance, it seems that the guidelines issued by the Philippine embassy in Japan violate Article 26 of the Family Code of the Philippines and various Supreme Court decisions (please read my posts Divorce obtained abroad by a Filipino not recognized here and The right of a divorced Filipino spouse to remarry under Article 26 of the Family Code).

The Supreme Court has ruled that a Filipino citizen against whom a divorce was filed and obtained by the foreigner-spouse can only remarry after the foreign divorce decree has been recognized by a Philippine court of competent jurisdiction and such court has ruled that the Filipino can legally remarry. It seems that the Philippine embassy in Japan has by itself and without any legal authority done away with the need for the judicial recognition of a foreign divorce decree. I will further investigate this issue and keep you informed. Posted below is part of the guidelines issued by the Philippine embassy in Japan:

For Divorced Filipinos:

8. Valid Passport: Original & one (1) photocopy of first page, visa page, and last page.NOTE: If Expired Passport/Lost Passport/Mutilated Passport/Passport under an Assumed Name (AKA/Alias)/Passport with Discrepancy (First Name/Middle Name/Last Name/Date of Birth/Place of Birth), applicant has to apply for a new passport prior to acceptance of application for CNO. (Please see requirements for the abovementioned passport cases.)

9. Certificate of Philippine Nationality/Identity (CPNI) under single name (please see requirements for CPNI)

10. Completed Affidavit of Civil Status to be filed with the Embassy

11. One Original and one (1) photocopy of the following, whichever is applicable, to be obtained from the City Hall:

a. If former spouse is a Japanese, Family Registry (Koseki Tohon) reflecting the couples’ place and date of divorce. Please note that Koseki Shohon (part of Koseki Tohon) and Juri Shomeisho (Certificate of Acceptance) are not acceptable.

b. If former spouse is a foreign national other than Japanese, Certificate of Acceptance of Divorce (Juri Shomeisho) showing the couples’ place and date of divorce.

12. Original Report of Marriage (if married in Japan or outside the Philippines) or NSO Marriage Contract authenticated by the DFA (if married in the Philippines) of applicant and former spouse (Original and 1 Photocopy)

13. Birth Certificate in security paper issued by the NSO authenticated by the Department of Foreign Affairs (Original & 1 Photocopy).

14. Two (2) Passport Size Pictures

For Filipinos whose marriage has been annulled:

1. Valid Passport (Original & one (1) photocopy of first page, visa page, and last page)

For female applicants: Present original passport and submit one photocopy of first page, page with amendment to “single name,” and last page bearing name of signing officer

For male applicants: Original & one (1) photocopy of first page & last page

NOTE: If Expired Passport/Lost Passport/Mutilated Passport/Passport under an Assumed Name (AKA/Alias)/Passport with Discrepancy (First Name/Middle Name/Last Name/Date of Birth/Place of Birth), applicant has to apply for a new passport prior to acceptance of application for CNO. (Please see requirements for the above-mentioned passport cases.)

2. Amended Marriage Contract issued by the NSO (Original & 1 Photocopy) has to be authenticated by Authentication Division, DFA Manila

3. Certificate of Finality of Decision and Court Order/Decision (Original & 1 Photocopy) has to be authenticated by Authentication Division, DFA Manila

4. Birth Certificate issued on security paper by the NSO (Original & 1 Photocopy) has authenticated by Authentication Division, DFA Manila

5. Two (2) passport-size pictures

As you can read from the guidelines above, the Philippine embassy in Japan issues a “Certificate of No Objection” (CNO) to previously- divorced Filipino citizens who wish to re-marry Japanese and foreign nationals, without requiring the presentation of a decision by a Philippine court recognizing the foreign divorce decree and declaring the Filipino’s right to remarry.

On the other hand, the embassy’s requirements for the issuance of a CNO for Filipinos whose marriages have been annulled provide that the following must be submitted: (a) amended marriage certificate from the NSO; and (b) certificate of finality of decision and court order/decision authenticated by the DFA.

If a person gets married while the petition for declaration of nullity of the first marriage is ongoing, can he or she be charged with bigamy?

Please also read the earlier post: Is bigamy committed when a person gets married to another party while his or her petition for annulment of a previous marriage is pending in court?

Related issues:

1. What if the first marriage is declared null and void? Will this make the second marriage valid?

2. What if the second marriage was declared null and void on the ground of psychological incapacity? Will this be a defense against a charge of bigamy?

What is bigamy?

Article 349 of the Revised Penal Code states that bigamy is committed when “a person contracts a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. The penalty for bigamy is prision mayor (minimum of six years and one day to a maximum of twelve years). Bigamy is a public crime which means that anyone who knows of the bigamous marriage can file the criminal complaint.

People in a void marriage cannot take the law into their own hands and by themselves declare that their marriage is void

Please take note that under Article 40 of the Family Code, people in a void marriage cannot take the law into their own hands and by themselves declare that their marriage is void. Article 40 states that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void”. Simply stated, if the marriage is void, either or both spouses must file a petition asking the court to declare the marriage void.

If the court declares the marriage void, can there be a subsequent marriage immediately?

Some people got married immediately after they received the copy of the court’s decision granting the petition for declaration of nullity of their first marriage. This is wrong. At what point in time can a subsequent marriage take place? Please take note of Sections 21 to 23 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Only when these sections have been complied with can a subsequent marriage take place.

Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage.-

(a) The court shall issue the Decree after:

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Sec. 23. Registration and publication of the decree; decree as best evidence. –

(a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

The Supreme Court ruled in Mercado vs. Tan, Tenebro vs. CA, and in Abunado vs. People, respectively, that:

1. The subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

2. A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as “void.”

3. The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Mercado vs. Tan (G.R. No. 137110, 1 August 2000)

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Tenebro vs. CA, G.R. No. 150758, February 18, 2004

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15. When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter, Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed.

This argument is not impressed with merit. Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individual’s deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer) and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses). Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38 may contract marriage.

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accused’s guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities.Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s criminal laws on bigamy step in.

Abunado vs. People, G.R. No. 159218, March 30, 2004

Petitioner claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration of nullity of his marriage to Narcisa on October 29, 1999.

A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to Narcisa had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.

Legal lessons from GMA 7 telenovela “Ikaw Sana”

I love watching local and foreign news programs. Last week while waiting for the 6:30 PM newscasts, I got to watch snippets of episodes of GMA 7 telenovela “Ikaw Sana” starring Jennilyn Mercado, Mark Herras and Pauleen Luna. The scenes involved Jennilyn’s character being sentenced in a criminal case, brought to Davao correctional facility, and acquitted after a new trial (all of these in a week or two of episodes).

What legal lessons can we learn from “Ikaw Sana”?

1. Eliza, the character played by Jennilyn was charged, if I remember correctly, with murder, a non-bailable offense. However, despite the term “non-bailable”, an accused can still file a petition for bail. If the court finds that the evidence of guilt is weak, then bail is granted. This, incidentally, is what happened in the case involving Dennis Roldan.

2. After Eliza was convicted, she asked the character played by Pauleen Luna to file an appeal for her. There are several options for an accused convicted by the court. These are:

• Appeal to a higher court – if the case originated from the MTC (Municipal or Metropolitan Trial Court), the appeal is to the Regional Trial Court. If the case came from the RTC, then the appeal is to the Court of Appeals. If the conviction involves “reclusion perpetua”, then the case is automatically elevated to the Supreme Court.

• Motion for modification of judgment of conviction – for example, by reducing the penalty imposed in view of a mitigating circumstance (Rule 120, Section 7) for purposes of applying for probation

• Motion for reconsideration – pointing out errors of law or fact in the judgment thus giving the court the opportunity to re-examine and correct its decision (Rule 121, Sections 1, 3 and 6)

• Motion for new trial – based on two grounds: (a) errors of law or irregularities committed during the trial which were prejudicial to the substantial rights of the accused; and (b) new and material evidence which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment (Rule 121, section 2).

(A “motion to reopen” is available only after either or both parties have presented their evidence; if the judgment has already been promulgated, the proper remedy is a motion for reconsideration or new trial).

In “Ikaw Sana” the lawyer for Eliza asked the court for a new trial, saying that a new witness (played by Harlene Bautista, I think) has become available. As the telenovela goes, the court acquitted Jennilyn’s character. But if Eliza has been in jail for several years (since the characters played by Mark and Pauleen already have a child), then the writers of the show had their legal remedy wrong. A motion for new trial is filed within the period for filing an appeal, that is, fifteen days from the time Eliza was found guilty by the court (“promulgation” is the legal term).

The telenovela also does not provide its viewers with a clear time frame for these events, as to how many months or even weeks passed between them. After the scene where the defense lawyer was asking for a new trial, there was a a commercial break. The next scene showed the judge acquitting Jennilyn’s character. This is very sloppy storytelling; the characters did not also seem to have aged even a little bit.
“Ikaw Sana” with its fast pace can also potentially create a mis-impression in the minds of its viewers. In real life, our judicial system crawls from hearing to hearing, from stage to stage. I can just imagine people thinking, “Bakit sa ‘Ikaw Sana’ ang bilis ng trial. Ang annulment ko, two years na, hindi pa tapos! Palaging reset!”