Persons Cases

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Eliza Den l PERSONS AND FAMILY RELATIONS 1

Tanada v. Tuvera (Apr. 24, 1985)
Invoking the people's right to be informed on matters of public concern, a
right recognized in Section 6, Article IV of the 1973 Philippine
Constitution,
1
as well as the principle that laws to be valid and enforceable
must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the Official Gazette
of various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and administrative
orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64,
103, 171, 179, 184, 197, 200, 234, 265, 286, 298,
303, 312, 324, 325, 326, 337, 355, 358, 359, 360,
361, 368, 404, 406, 415, 427, 429, 445, 447, 473,
486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
802, 835, 836, 923, 935, 961, 1017-1030, 1050,
1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107,
108, 116, 130, 136, 141, 150, 153, 155, 161, 173,
180, 187, 188, 192, 193, 199, 202, 204, 205, 209,
211-213, 215-224, 226-228, 231-239, 241-245, 248,
251, 253-261, 263-269, 271-273, 275-283, 285-289,
291, 293, 297-299, 301-303, 309, 312-315, 325,
327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473,
486, 488, 498, 501, 399, 527, 561, 576, 587, 594,
599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881,
882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64
& 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
1270, 1281, 1319-1526, 1529, 1532, 1535, 1538,
1540-1547, 1550-1558, 1561-1588, 1590-1595,
1594-1600, 1606-1609, 1612-1628, 1630-1649,
1694-1695, 1697-1701, 1705-1723, 1731-1734,
1737-1742, 1744, 1746-1751, 1752, 1754, 1762,
1764-1787, 1789-1795, 1797, 1800, 1802-1804,
1806-1807, 1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840, 1843-1844,
1846-1847, 1849, 1853-1858, 1860, 1866, 1868,
1870, 1876-1889, 1892, 1900, 1918, 1923, 1933,
1952, 1963, 1965-1966, 1968-1984, 1986-2028,
2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-
454, 457- 471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551-553,
560, 563, 567-568, 570, 574, 593, 594, 598-604,
609, 611- 647, 649-677, 679-703, 705-707, 712-786,
788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22,
25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107,
120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354,
360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal personality
or standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in
question
2
said petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we
quote:
SEC. 3. Petition for Mandamus.—When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use a
rd enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding
the defendant, immediately or at some other specified
time, to do the act required to be done to Protect the
rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful
acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the performance
of a public duty, they need not show any specific interest for their petition to
be given due course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General,
3
this Court held that while the general
rule is that "a writ of mandamus would be granted to a private individual
only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that
which he holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question
is one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution
of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to
compel the Governor General to call a special election for the position of
municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of
authority supports the proposition that the relator is a
proper party to proceedings of this character when a
public right is sought to be enforced. If the general
rule in America were otherwise, we think that it would
not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to
a particular case without keeping in mind the reason
for the rule, because, if under the particular
circumstances the reason for the rule does not exist,
the rule itself is not applicable and reliance upon the
rule may well lead to error'
No reason exists in the case at bar for applying the
general rule insisted upon by counsel for the
respondent. The circumstances which surround this
case are different from those in the United States,
inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of
the Government to appear and represent the people in
cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by petitioners herein is a
public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be
difficult to conceive of any other person to initiate the same, considering
that the Solicitor General, the government officer generally empowered to
represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a
sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to
the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2
of the Civil Code:
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions,
4
this Court has ruled
that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides
for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it
equates the effectivity of laws with the fact of publication. Considered in the
light of other statutes applicable to the issue at hand, the conclusion is
easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date
of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as
follows:
Section 1. There shall be published in the Official
Gazette [1] all important legisiative acts and
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resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders
and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of
the Supreme Court and the Court of Appeals as may
be deemed by said courts of sufficient importance to
be so published; [4] such documents or classes of
documents as may be required so to be published by
law; and [5] such documents or classes of documents
as the President of the Philippines shall determine
from time to time to have general applicability and
legal effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for
the transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has
the publication of laws taken so vital significance that at this time when the
people have bestowed upon the President a power heretofore enjoyed solely
by the legislature. While the people are kept abreast by the mass media of
the debates and deliberations in the Batasan Pambansa—and for the diligent
ones, ready access to the legislative records—no such publicity accompanies
the law-making process of the President. Thus, without publication, the
people have no means of knowing what presidential decrees have actually
been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain
ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines
dictadas de conformidad con las mismas por el Gobierno en uso de su
potestad.
5

The very first clause of Section I of Commonwealth Act 638 reads: "There
shall be published in the Official Gazette ... ." The word "shall" used therein
imposes upon respondent officials an imperative duty. That duty must be
enforced if the Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The law itself makes a
list of what should be published in the Official Gazette. Such listing, to our
mind, leaves respondents with no discretion whatsoever as to what must be
included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential decrees
that provide for fines, forfeitures or penalties for their violation or otherwise
impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to
particular persons or class of persons such as administrative and executive
orders need not be published on the assumption that they have been
circularized to all concerned.
6

It is needless to add that the publication of presidential issuances "of a
public nature" or "of general applicability" is a requirement of due process.
It is a rule of law that before a person may be bound by law, he must first
be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC
7
:
In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land,
the requirement of due process and the Rule of Law
demand that the Official Gazette as the official
government repository promulgate and publish the
texts of all such decrees, orders and instructions so
that the people may know where to obtain their
official and specific contents.
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and effect.
Some members of the Court, quite apprehensive about the possible
unsettling effect this decision might have on acts done in reliance of the
validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In
similar situations in the past this Court had taken the pragmatic and realistic
course set forth in Chicot County Drainage District vs. Baxter Bank
8
to wit:
The courts below have proceeded on the theory that
the Act of Congress, having been found to be
unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118 U.S.
425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228
U.S. 559, 566. It is quite clear, however, that such
broad statements as to the effect of a determination
of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior
to such a determination, is an operative fact and may
have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various
aspects-with respect to particular conduct, private and
official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public
policy in the light of the nature both of the statute and
of its previous application, demand examination.
These questions are among the most difficult of those
which have engaged the attention of courts, state and
federal and it is manifest from numerous decisions
that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban
9
sustained the right of a party under the Moratorium Law, albeit
said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to
their publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be
erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears
that of the presidential decrees sought by petitioners to be published in the
Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,
1278, and 1937 to 1939, inclusive, have not been so published.
10
Neither
the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles,
11
the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter of policy,
refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication,
even though some criminal laws provide that they shall take effect
immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and
effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.


Separate Opinions

FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the
ably written opinion of Justice Escolin. I am unable, however, to concur
insofar as it would unqualifiedly impose the requirement of publication in the
Official Gazette for unpublished "presidential issuances" to have binding
force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even
aware of the existence of any legislative or executive act having the force
and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an
advantage to be gained. It conduces to certainty. That is too be admitted. It
does not follow, however, that failure to do so would in all cases and under
all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and
effect. To so hold would, for me, raise a constitutional question. Such a
pronouncement would lend itself to the interpretation that such a legislative
or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as
Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past "presidential issuances". Nonetheless, this clarification is, to my
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mind, needed to avoid any possible misconception as to what is required for
any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion of
Justice Plana. Its first paragraph sets forth what to me is the constitutional
doctrine applicable to this case. Thus: "The Philippine Constitution does not
require the publication of laws as a prerequisite for their effectivity, unlike
some Constitutions elsewhere. It may be said though that the guarantee of
due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise.
1
I am likewise
in agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the
command of the government "must be ascertainable in some form if it is to
be enforced at all.
3
It would indeed be to reduce it to the level of mere
futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable.
4
Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode
of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential
decrees or executive acts not so published. For prior thereto, it could be
that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due
to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be
open to question. Matters deemed settled could still be inquired into. I am
not prepared to hold that such an effect is contemplated by our decision.
Where such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character becomes
evident.
5
In civil cases though, retroactivity as such is not conclusive on the
due process aspect. There must still be a showing of arbitrariness.
Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be
that process of balancing to determine whether or not it could in such a case
be tainted by infirmity.
6
In traditional terminology, there could arise then a
question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further
than to affirm that publication is essential to the effectivity of a legislative or
executive act of a general application. I am not in agreement with the view
that such publication must be in the Official Gazette. The Civil Code itself in
its Article 2 expressly recognizes that the rule as to laws taking effect after
fifteen days following the completion of their publication in the Official
Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act
No. 386. It does not and cannot have the juridical force of a constitutional
command. A later legislative or executive act which has the force and effect
of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus
previously published in the Official Gazette would be devoid of any legal
character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable
to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms
and laws published and ascertainable and of equal application to all similarly
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary
rule of fair play and justice that a reasonable opportunity to be informed
must be afforded to the people who are commanded to obey before they
can be punished for its violation,
1
citing the settled principle based on due
process enunciated in earlier cases that "before the public is bound by its
contents, especially its penal provisions, a law, regulation or circular must
first be published and the people officially and specially informed of said
contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of
the Civil Code and the Revised Administrative Code, there would be no basis
nor justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance
of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code
that "only laws which are silent as to their effectivity [date] need be
published in the Official Gazette for their effectivity" is manifestly untenable.
The plain text and meaning of the Civil Code is that "laws shall take effect
after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided, " i.e. a different effectivity date is
provided by the law itself. This proviso perforce refers to a law that has
been duly published pursuant to the basic constitutional requirements of
due process. The best example of this is the Civil Code itself: the same
Article 2 provides otherwise that it "shall take effect [only] one year [not 15
days] after such publication.
2
To sustain respondents' misreading that
"most laws or decrees specify the date of their effectivity and for this
reason, publication in the Official Gazette is not necessary for their
effectivity
3
would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official
Gazette by the simple expedient of providing for immediate effectivity or an
earlier effectivity date in the law itself before the completion of 15 days
following its publication which is the period generally fixed by the Civil Code
for its proper dissemination.

MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for
a date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is
mentioned in the decree but the decree becomes effective only fifteen (15)
days after its publication in the Official Gazette, it will not mean that the
decree can have retroactive effect to the date of effectivity mentioned in the
decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It
may be said though that the guarantee of due process requires notice of
laws to affected parties before they can be bound thereby; but such notice
is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said
laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen
days following the completion of their publication in the Official
Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in
provision as to when it will take effect. Secondly, it clearly recognizes that
each law may provide not only a different period for reckoning its effectivity
date but also a different mode of notice. Thus, a law may prescribe that it
shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the
proposition that for their effectivity, laws must be published in the Official
Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith,
it authorizes the publication of the Official Gazette, determines its
frequency, provides for its sale and distribution, and defines the authority of
the Director of Printing in relation thereto. It also enumerates what shall be
published in the Official Gazette, among them, "important legislative acts
and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have
no general applicability." It is noteworthy that not all legislative acts are
required to be published in the Official Gazette but only "important" ones "of
a public nature." Moreover, the said law does not provide that publication in
the Official Gazette is essential for the effectivity of laws. This is as it should
be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that
has a provision of its own as to when and how it will take effect. Only a
higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the
necessity of such publication being in the Official Gazette.
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Eliza Den l PERSONS AND FAMILY RELATIONS 4


DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and
issuances of a public nature or general applicability ineffective, until due
publication thereof.



Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the
ably written opinion of Justice Escolin. I am unable, however, to concur
insofar as it would unqualifiedly impose the requirement of publication in the
Official Gazette for unpublished "presidential issuances" to have binding
force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process
question would arise if made to apply adversely to a party who is not even
aware of the existence of any legislative or executive act having the force
and effect of law. My point is that such publication required need not be
confined to the Official Gazette. From the pragmatic standpoint, there is an
advantage to be gained. It conduces to certainty. That is too be admitted. It
does not follow, however, that failure to do so would in all cases and under
all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and
effect. To so hold would, for me, raise a constitutional question. Such a
pronouncement would lend itself to the interpretation that such a legislative
or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as
Justice Plana so aptly pointed out. It is true that what is decided now applies
only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for
any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion of
Justice Plana. Its first paragraph sets forth what to me is the constitutional
doctrine applicable to this case. Thus: "The Philippine Constitution does not
require the publication of laws as a prerequisite for their effectivity, unlike
some Constitutions elsewhere. It may be said though that the guarantee of
due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise.
1
I am likewise
in agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the
command of the government "must be ascertainable in some form if it is to
be enforced at all.
3
It would indeed be to reduce it to the level of mere
futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable.
4
Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode
of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential
decrees or executive acts not so published. For prior thereto, it could be
that parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could attach due
to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be
open to question. Matters deemed settled could still be inquired into. I am
not prepared to hold that such an effect is contemplated by our decision.
Where such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character becomes
evident.
5
In civil cases though, retroactivity as such is not conclusive on the
due process aspect. There must still be a showing of arbitrariness.
Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be
that process of balancing to determine whether or not it could in such a case
be tainted by infirmity.
6
In traditional terminology, there could arise then a
question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further
than to affirm that publication is essential to the effectivity of a legislative or
executive act of a general application. I am not in agreement with the view
that such publication must be in the Official Gazette. The Civil Code itself in
its Article 2 expressly recognizes that the rule as to laws taking effect after
fifteen days following the completion of their publication in the Official
Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act
No. 386. It does not and cannot have the juridical force of a constitutional
command. A later legislative or executive act which has the force and effect
of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus
previously published in the Official Gazette would be devoid of any legal
character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable
to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring
opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms
and laws published and ascertainable and of equal application to all similarly
circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary
rule of fair play and justice that a reasonable opportunity to be informed
must be afforded to the people who are commanded to obey before they
can be punished for its violation,
1
citing the settled principle based on due
process enunciated in earlier cases that "before the public is bound by its
contents, especially its penal provisions, a law, regulation or circular must
first be published and the people officially and specially informed of said
contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of
the Civil Code and the Revised Administrative Code, there would be no basis
nor justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance
of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code
that "only laws which are silent as to their effectivity [date] need be
published in the Official Gazette for their effectivity" is manifestly untenable.
The plain text and meaning of the Civil Code is that "laws shall take effect
after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided, " i.e. a different effectivity date is
provided by the law itself. This proviso perforce refers to a law that has
been duly published pursuant to the basic constitutional requirements of
due process. The best example of this is the Civil Code itself: the same
Article 2 provides otherwise that it "shall take effect [only] one year [not 15
days] after such publication.
2
To sustain respondents' misreading that
"most laws or decrees specify the date of their effectivity and for this
reason, publication in the Official Gazette is not necessary for their
effectivity
3
would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official
Gazette by the simple expedient of providing for immediate effectivity or an
earlier effectivity date in the law itself before the completion of 15 days
following its publication which is the period generally fixed by the Civil Code
for its proper dissemination.

MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for
a date of effectivity, it has to be published. What I would like to state in
connection with that proposition is that when a date of effectivity is
mentioned in the decree but the decree becomes effective only fifteen (15)
days after its publication in the Official Gazette, it will not mean that the
decree can have retroactive effect to the date of effectivity mentioned in the
decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It
may be said though that the guarantee of due process requires notice of
laws to affected parties before they can be bound thereby; but such notice
is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said
laws already provide for their effectivity date.
Page 5 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 5

Article 2 of the Civil Code provides that "laws shall take effect after fifteen
days following the completion of their publication in the Official
Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in
provision as to when it will take effect. Secondly, it clearly recognizes that
each law may provide not only a different period for reckoning its effectivity
date but also a different mode of notice. Thus, a law may prescribe that it
shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the
proposition that for their effectivity, laws must be published in the Official
Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith,
it authorizes the publication of the Official Gazette, determines its
frequency, provides for its sale and distribution, and defines the authority of
the Director of Printing in relation thereto. It also enumerates what shall be
published in the Official Gazette, among them, "important legislative acts
and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have
no general applicability." It is noteworthy that not all legislative acts are
required to be published in the Official Gazette but only "important" ones "of
a public nature." Moreover, the said law does not provide that publication in
the Official Gazette is essential for the effectivity of laws. This is as it should
be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that
has a provision of its own as to when and how it will take effect. Only a
higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the
necessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and
issuances of a public nature or general applicability ineffective, until due
publication thereof.
TANADA V. TUVERA (Dec. 29, 1986)
Due process was invoked by the petitioners in demanding the disclosure of a
number of presidential decrees which they claimed had not been published
as required by law. The government argued that while publication was
necessary as a rule, it was not so when it was "otherwise provided," as
when the decrees themselves declared that they were to become effective
immediately upon their approval. In the decision of this case on April 24,
1985, the Court affirmed the necessity for the publication of some of these
decrees, declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in
the Official Gazette all unpublished presidential issuances which
are of general application, and unless so published, they shall
have no binding force and effect.
The petitioners are now before us again, this time to move for
reconsideration/clarification of that decision.
1
Specifically, they ask the
following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws
which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no
distinction between laws of general applicability and those which are not;
that publication means complete publication; and that the publication must
be made forthwith in the Official Gazette.
2

In the Comment
3
required of the then Solicitor General, he claimed first
that the motion was a request for an advisory opinion and should therefore
be dismissed, and, on the merits, that the clause "unless it is otherwise
provided" in Article 2 of the Civil Code meant that the publication required
therein was not always imperative; that publication, when necessary, did
not have to be made in the Official Gazette; and that in any case the subject
decision was concurred in only by three justices and consequently not
binding. This elicited a Reply
4
refuting these arguments. Came next the
February Revolution and the Court required the new Solicitor General to file
a Rejoinder in view of the supervening events, under Rule 3, Section 18, of
the Rules of Court. Responding, he submitted that issuances intended only
for the internal administration of a government agency or for particular
persons did not have to be 'Published; that publication when necessary
must be in full and in the Official Gazette; and that, however, the decision
under reconsideration was not binding because it was not supported by
eight members of this Court.
5

The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after
such publication.
After a careful study of this provision and of the arguments of the parties,
both on the original petition and on the instant motion, we have come to the
conclusion and so hold, that the clause "unless it is otherwise provided"
refers to the date of effectivity and not to the requirement of publication
itself, which cannot in any event be omitted. This clause does not mean that
the legislature may make the law effective immediately upon approval, or
on any other date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its
discretion provide that the usual fifteen-day period shall be shortened or
extended. An example, as pointed out by the present Chief Justice in his
separate concurrence in the original decision,
6
is the Civil Code which did
not become effective after fifteen days from its publication in the Official
Gazette but "one year after such publication." The general rule did not apply
because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be
dispensed with altogether. The reason. is that such omission would offend
due process insofar as it would deny the public knowledge of the laws that
are supposed to govern the legislature could validly provide that a law e
effective immediately upon its approval notwithstanding the lack of
publication (or after an unreasonably short period after publication), it is not
unlikely that persons not aware of it would be prejudiced as a result and
they would be so not because of a failure to comply with but simply because
they did not know of its existence, Significantly, this is not true only of penal
laws as is commonly supposed. One can think of many non-penal measures,
like a law on prescription, which must also be communicated to the persons
they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows
the law, which of course presupposes that the law has been published if the
presumption is to have any legal justification at all. It is no less important to
remember that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this certainly
applies to, among others, and indeed especially, the legislative enactments
of the government.
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general
albeit there are some that do not apply to them directly. An example is a
law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that
such a law does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a matter of public
interest which any member of the body politic may question in the political
forums or, if he is a proper party, even in the courts of justice. In fact, a law
without any bearing on the public would be invalid as an intrusion of privacy
or as class legislation or as anultra vires act of the legislature. To be valid,
the law must invariably affect the public interest even if it might be directly
applicable only to one individual, or some of the people only, and t to the
public as a whole.
We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which
shall begin fifteen days after publication unless a different effectivity date is
fixed by the legislature.
Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers whenever
the same are validly delegated by the legislature or, at present, directly
conferred by the Constitution. administrative rules and regulations must a
also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
Page 6 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 6

public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors concerning
the rules or guidelines to be followed by their subordinates in the
performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding
that it applies to only a portion of the national territory and directly affects
only the inhabitants of that place. All presidential decrees must be
published, including even, say, those naming a public place after a favored
individual or exempting him from certain prohibitions or requirements. The
circulars issued by the Monetary Board must be published if they are meant
not merely to interpret but to "fill in the details" of the Central Bank Act
which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the
Minister of Social Welfare on the case studies to be made in petitions for
adoption or the rules laid down by the head of a government agency on the
assignments or workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this rule but by the
Local Government Code.
We agree that publication must be in full or it is no publication at all since
its purpose is to inform the public of the contents of the laws. As correctly
pointed out by the petitioners, the mere mention of the number of the
presidential decree, the title of such decree, its whereabouts (e.g., "with
Secretary Tuvera"), the supposed date of effectivity, and in a mere
supplement of the Official Gazette cannot satisfy the publication
requirement. This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a
presidential decree undeniably of general applicability and interest, was
"published" by the Marcos administration.
7
The evident purpose was to
withhold rather than disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were
categorically for publication in the Official Gazette
8
and that six others felt
that publication could be made elsewhere as long as the people were
sufficiently informed.
9
One reserved his vote
10
and another merely
acknowledged the need for due publication without indicating where it
should be made.
11
It is therefore necessary for the present membership of
this Court to arrive at a clear consensus on this matter and to lay down a
binding decision supported by the necessary vote.
There is much to be said of the view that the publication need not be made
in the Official Gazette, considering its erratic releases and limited
readership. Undoubtedly, newspapers of general circulation could better
perform the function of communicating, the laws to the people as such
periodicals are more easily available, have a wider readership, and come out
regularly. The trouble, though, is that this kind of publication is not the one
required or authorized by existing law. As far as we know, no amendment
has been made of Article 2 of the Civil Code. The Solicitor General has not
pointed to such a law, and we have no information that it exists. If it does,
it obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law
or to repeal or modify it if we find it impractical. That is not our function.
That function belongs to the legislature. Our task is merely to interpret and
apply the law as conceived and approved by the political departments of the
government in accordance with the prescribed procedure. Consequently, we
have no choice but to pronounce that under Article 2 of the Civil Code, the
publication of laws must be made in the Official Gazett and not elsewhere,
as a requirement for their effectivity after fifteen days from such publication
or after a different period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon
as possible, to give effect to the law pursuant to the said Article 2. There is
that possibility, of course, although not suggested by the parties that a law
could be rendered unenforceable by a mere refusal of the executive, for
whatever reason, to cause its publication as required. This is a matter,
however, that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a
request for an advisory opinion is untenable, to say the least, and deserves
no further comment.
The days of the secret laws and the unpublished decrees are over. This is
once again an open society, with all the acts of the government subject to
public scrutiny and available always to public cognizance. This has to be so
if our country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the
authority to review the work of their delegates and to ratify or reject it
according to their lights, through their freedom of expression and their right
of suffrage. This they cannot do if the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of
skulking in the shadows with their dark, deep secrets. Mysterious
pronouncements and rumored rules cannot be recognized as binding unless
their existence and contents are confirmed by a valid publication intended to
make full disclosure and give proper notice to the people. The furtive law is
like a scabbarded saber that cannot feint parry or cut unless the naked
blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall
immediately upon their approval, or as soon thereafter as possible, be
published in full in the Official Gazette, to become effective only after fifteen
days from their publication, or on another date specified by the legislature,
in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez,
Jr., and Paras, JJ., concur.

Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished
colleague, Mr. Justice Isagani A. Cruz, I would like to add a few
observations. Even as a Member of the defunct Batasang Pambansa, I took
a strong stand against the insidious manner by which the previous
dispensation had promulgated and made effective thousands of decrees,
executive orders, letters of instructions, etc. Never has the law-making
power which traditionally belongs to the legislature been used and abused
to satisfy the whims and caprices of a one-man legislative mill as it
happened in the past regime. Thus, in those days, it was not surprising to
witness the sad spectacle of two presidential decrees bearing the same
number, although covering two different subject matters. In point is the
case of two presidential decrees bearing number 1686 issued on March 19,
1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle
equipped with airconditioner. This was further exacerbated by the issuance
of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to
basketball players Jeffrey Moore and Dennis George Still
The categorical statement by this Court on the need for publication before
any law may be made effective seeks prevent abuses on the part of the
lawmakers and, at the same time, ensures to the people their constitutional
right to due process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr.
Justice Isagani A. Cruz. At the same time, I wish to add a few statements to
reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately
upon approval thereof, is properly interpreted as coming into effect
immediately upon publication thereof in the Official Gazette as provided in
Article 2 of the Civil Code. Such statute, in other words, should not be
regarded as purporting literally to come into effect immediately upon its
approval or enactment and without need of publication. For so to interpret
such statute would be to collide with the constitutional obstacle posed by
the due process clause. The enforcement of prescriptions which are both
unknown to and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such
application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and
its people.
At the same time, it is clear that the requirement of publication of a statute
in the Official Gazette, as distinguished from any other medium such as a
newspaper of general circulation, is embodied in a statutory norm and is not
a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth
Act No. 638 and Section 35 of the Revised Administrative Code. A
specification of the Official Gazette as the prescribed medium of publication
may therefore be changed. Article 2 of the Civil Code could, without creating
a constitutional problem, be amended by a subsequent statute providing,
for instance, for publication either in the Official Gazette or in a newspaper
of general circulation in the country. Until such an amendatory statute is in
fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.

Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished
colleague, Mr. Justice Isagani A. Cruz, I would like to add a few
observations. Even as a Member of the defunct Batasang Pambansa, I took
a strong stand against the insidious manner by which the previous
dispensation had promulgated and made effective thousands of decrees,
executive orders, letters of instructions, etc. Never has the law-making
power which traditionally belongs to the legislature been used and abused
to satisfy the whims and caprices of a one-man legislative mill as it
happened in the past regime. Thus, in those days, it was not surprising to
witness the sad spectacle of two presidential decrees bearing the same
Page 7 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 7

number, although covering two different subject matters. In point is the
case of two presidential decrees bearing number 1686 issued on March 19,
1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle
equipped with airconditioner. This was further exacerbated by the issuance
of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to
basketball players Jeffrey Moore and Dennis George Still
The categorical statement by this Court on the need for publication before
any law may be made effective seeks prevent abuses on the part of the
lawmakers and, at the same time, ensures to the people their constitutional
right to due process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr.
Justice Isagani A. Cruz. At the same time, I wish to add a few statements to
reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately
upon approval thereof, is properly interpreted as coming into effect
immediately upon publication thereof in the Official Gazette as provided in
Article 2 of the Civil Code. Such statute, in other words, should not be
regarded as purporting literally to come into effect immediately upon its
approval or enactment and without need of publication. For so to interpret
such statute would be to collide with the constitutional obstacle posed by
the due process clause. The enforcement of prescriptions which are both
unknown to and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such
application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and
its people.
At the same time, it is clear that the requirement of publication of a statute
in the Official Gazette, as distinguished from any other medium such as a
newspaper of general circulation, is embodied in a statutory norm and is not
a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth
Act No. 638 and Section 35 of the Revised Administrative Code. A
specification of the Official Gazette as the prescribed medium of publication
may therefore be changed. Article 2 of the Civil Code could, without creating
a constitutional problem, be amended by a subsequent statute providing,
for instance, for publication either in the Official Gazette or in a newspaper
of general circulation in the country. Until such an amendatory statute is in
fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.
DE ROY V. CA
This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special First Division of the Court of Appeals in the case of
Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No.
07286. The first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for reconsideration
and directed entry of judgment since the decision in said case had become
final; and the second Resolution dated 27 October 1987 denied petitioners'
motion for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not
being verified as required by Rule 65 section 1 of the Rules of Court.
However, even if the instant petition did not suffer from this defect, this
Court, on procedural and substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building
owned by petitioners collapsed and destroyed the tailoring shop occupied by
the family of private respondents, resulting in injuries to private
respondents and the death of Marissa Bernal, a daughter. Private
respondents had been warned by petitioners to vacate their shop in view of
its proximity to the weakened wall but the former failed to do so. On the
basis of the foregoing facts, the Regional Trial Court. First Judicial Region,
Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment
finding petitioners guilty of gross negligence and awarding damages to
private respondents. On appeal, the decision of the trial court was affirmed
in toto by the Court of Appeals in a decision promulgated on August 17,
1987, a copy of which was received by petitioners on August 25, 1987. On
September 9, 1987, the last day of the fifteen-day period to file an appeal,
petitioners filed a motion for extension of time to file a motion for
reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for
reconsideration on September 24, 1987 but this was denied in the
Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of
discretion when it denied petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of judgment and denied their
motion for reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5,
1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a
motion for reconsideration cannot be extended. In its Resolution denying
the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA
208), this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule
shall be strictly enforced that no motion for extension of time to file a
motion for reconsideration may be filed with the Metropolitan or Municipal
Trial Courts, the Regional Trial Courts, and the Intermediate Appellate
Court. Such a motion may be filed only in cases pending with the Supreme
Court as the court of last resort, which may in its sound discretion either
grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate
Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the
rule and went further to restate and clarify the modes and periods of
appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15,
1986,144 SCRA 161],stressed the prospective application of said rule, and
explained the operation of the grace period, to wit:
In other words, there is a one-month grace period
from the promulgation on May 30, 1986 of the Court's
Resolution in the clarificatory Habaluyas case, or up to
June 30, 1986, within which the rule barring
extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for
extension on February 27, 1986, it is still within the
grace period, which expired on June 30, 1986, and
may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate
Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was
filed on September 9, 1987, more than a year after the expiration of the
grace period on June 30, 1986. Hence, it is no longer within the coverage of
the grace period. Considering the length of time from the expiration of the
grace period to the promulgation of the decision of the Court of Appeals on
August 25, 1987, petitioners cannot seek refuge in the ignorance of their
counsel regarding said rule for their failure to file a motion for
reconsideration within the reglementary period.
Petitioners contend that the rule enunciated in the Habaluyas case should
not be made to apply to the case at bar owing to the non-publication of
the Habaluyas decision in the Official Gazette as of the time the subject
decision of the Court of Appeals was promulgated. Contrary to petitioners'
view, there is no law requiring the publication of Supreme Court decisions in
the Official Gazette before they can be binding and as a condition to their
becoming effective. It is the bounden duty of counsel as lawyer in active law
practice to keep abreast of decisions of the Supreme Court particularly
where issues have been clarified, consistently reiterated, and published in
the advance reports of Supreme Court decisions (G. R. s) and in such
publications as the Supreme Court Reports Annotated (SCRA) and law
journals.
This Court likewise finds that the Court of Appeals committed no grave
abuse of discretion in affirming the trial court's decision holding petitioner
liable under Article 2190 of the Civil Code, which provides that "the
proprietor of a building or structure is responsible for the damage resulting
from its total or partial collapse, if it should be due to the lack of necessary
repairs.
Nor was there error in rejecting petitioners argument that private
respondents had the "last clear chance" to avoid the accident if only they
heeded the. warning to vacate the tailoring shop and , therefore, petitioners
prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to
this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the
instant petition for lack of merit.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
ZULUETA V. ZULUETA
Don Jose Zulueta and his sister, Doña Francisca Zulueta, are sole heirs
under the will of their father, Don Clemente Zulueta, who died in Iloilo in
1900. In the course of the voluntary testamentary proceedings instituted in
the Court of First Instance of Iloilo by Don Jose, three auditors were
appointed to make a division of the estate under article 1053 of the Ley de
Enjuiciamiento Civil, of whom Don Jose and Doña Francisca each nominated
one, the third or auditor umpire being chosen by common accord of the
parties. The two auditors nominated by the parties respectively failed to
agree, and each rendered a separate report. The auditor umpire, whose
report was filed March 29, 1901, agreed with and accepted in its entirety
the report of the auditor nominated by Don Jose. The procedure marked out
in articles 1062 and 1067 of the Ley de Enjuiciamiento Civil was then
followed, and upon the application of Doña Francisca the record was on April
13 delivered to her for examination. April 25 she filed her opposition to the
report of the auditor umpire, and a meeting of the interested parties having
been had, as provided in article 1069 of the Ley de Enjuiciamiento Civil, and
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Eliza Den l PERSONS AND FAMILY RELATIONS 8

no agreement having been reached, the court, by a providencia of May 4,
directed that the procedure prescribed for declarative actions be followed,
and that the record be again delivered to Doña Francisca in order that she
might formulate her demand in accordance with article 1071 of the Ley de
Enjuiciamiento Civil. On petition of Don Jose the court by a providencia of
May 7 fixed the term of fifteen days as that within which Doña Francisca
should formulate her demand, which term was subsequently enlarged seven
days on petition of Doña Francisca. June 5 Doña Francisca petitioned the
court, stating that the new Code of Procedure enacted by the Civil
Commission was soon to become operative, and that she deemed it more
advantageous to her rights that the declarative action which she had to
bring should be governed by the new Code rather than that then in force,
and asking that proceedings in the action should be suspended till the new
Code went into effect. This petition the court denied in an auto rendered
June 15, declaring, furthermore, that the term fixed for the filing of the
demand having expired, Doña Francisca has lost her right to institute the
action. June 22 Doña Francisca petitioned for the reform of this auto. On the
same day this petition was denied in an auto rendered by Don Cirilo Mapa, a
justice of the peace of the city of Iloilo, who had been designated, as would
appear from the record, by the judge of the then recently constituted Ninth
Judicial District to preside in the Court of First Instance of the Province of
Iloilo during the illness of the latter. The denial of this petition was put on
the ground that the auto of June 15 was not one against which the remedy
of reform was available, but that the remedy was by way of appeal under
article 365 of the Ley de Enjuiciamiento Civil. On June 29 Doña Francisca
interposed an appeal against the auto of June 22, which the court, now
presided over by the regular judge of first instance of the district, declined
to admit, on the ground that it was not presented within three days, as
prescribed in article 363 of the Ley de Enjuiciamiento Civil. Thereupon, upon
petition of Don Jose the partition proceedings were approved by the court
by an auto of July 16 from which Doña Francisca took the present appeal.
While the appeal was pending in this Court Doña Francisca presented a
petition under Act No. 75 of the Civil Commission, alleging that the auto of
June 22 was rendered through a mistake of the acting judge of first
instance, who erroneously believed that he had jurisdiction to render the
same; that Doña Francisca was prevented from entering an appeal from
that auto by her mistake as to the term prescribed by the Ley de
Enjuiciamiento Civil for entering appeals in such cases; and finally that
the auto of July 16 approving the partition proceedings was rendered by a
mistake of the judge, who erroneously believed that the auto of June 22,
was valid, whereas it and all subsequent proceedings were absolutely void;
and asking that the auto of June 22, the providencia denying the admission
of the appeal, and the auto of July 16 be set aside and the proceedings
restored to the condition in which they were previous to June 22, when the
first mistake was made. Upon this petition a hearing has been had, and we
have also heard arguments upon the appeal.
Taking up the petition first, we do not find it necessary to decide whether
the acting judge of first instance by whom the auto of June 22 was rendered
had such de facto authority that legal validity will be accorded to his acts.
Assuming that he was without jurisdiction to render the auto, we are of
opinion that Doña Francisca can not take advantage of the error in such a
proceeding as the present. Act No. 75 provides a remedy "against
judgments obtained in Courts of First Instance by fraud, accident, or
mistake," but although the language of the law is somewhat broad, the
general scope and purpose of the enactment indicate too clearly to require
argument that the mistake against which relief is provided can not be a
mistake into which the court may have fallen in the findings of fact or
conclusions of law upon which its judgment is based. If such were the effect
of the enactment, every case in which a party felt himself aggrieved by the
judgment of the court below could be brought to this court for revision in
this way, and the ordinary remedy by appeal or otherwise would be thus
entirely superseded by the more summary proceeding therein provided.
"The meaning of the word "mistake" as used in the statute does not extend
— nor was it intended that it should — to an error of law which may have
been committed by the judge in the trial in question. Such errors may be
corrected by appeal. The statute under consideration can by no means be
employed as a substitute for that remedy." (Jose Emeterio
Guevara vs. Tuason & Company, decided October 7, 1901, p. 27, supra.)
The result is that we can not set aside the auto of June 22 on this petition,
and that on July 16 stands upon precisely the same footing, the allegation
being that auto also was rendered under a mistake of law on the part of the
judge.
The remaining question upon the petition is whether Doña Francisca is
entitled to relief against the consequences of her failure to interpose her
appeal against the auto of June 22 within the period fixed by the law. The
mistake in this instance was her own, but it was a mistake of law, and while
we should be unwilling to say that special cases might not occur in which
relief would be afforded in such a proceeding as this against a mistake of
law made by a party, we are of opinion that the present is not such a case.
Nothing is shown here except the bare fact that the party acted under
ignorance or misconception of the provisions of the law in regard to the time
within which the appeal could be taken, and there is no reason why the
general principle, a principle "founded no only on expediency and policy but
on necessity," that "ignorance of the law does not excuse from compliance
therewith" (Civil Code, art. 2), should be relaxed. The framers of Act No. 75
could not have intended to totally abrogate this principle with reference to
the class of cases covered by the act. If such were the effect of this
legislation the court "would be involved and perplexed with questions
incapable of any just solution and embarrassed by inquiries almost
interminable."
Act No. 75 was framed for the purpose of preventing injustice, and although
the legal construction to be placed upon its provisions can not of course be
affected by any considerations as to the hardships of the particular case in
which it is invoked, it is proper to say that if the question determined in
the auto of June 15, which is that against the consequences of which the
petitioner seeks ultimately to be relieved, were to be decided upon its
merits, thatauto would necessarily be sustained, so that the petitioner has
in fact suffered no hardship or injustice by reason of the auto having been
left in effect as a result of the mistakes which she claims to have vitiated
the subsequent proceedings.
The petition for the suspension of the declarative action till the new Code
went into effect was totally without merit. No reason was alleged in the
petition itself why the suspension should be granted other than the mere
convenience of the party, and none has been suggested on the argument.
The petition could not in any possible view that occurs to us have been
granted. With reference to the declaration in the auto that the plaintiff had
lost her right to file her demand in the declarative action, it may be said
that this declaration followed as a necessary consequence from
the providencia of May 7, fixing the time within which the demand must be
formulated, and the subsequent providencia enlarging the period, from
neither of which providencias had any appeal or other remedy been
attempted by Doña Francisca. But going back to what may be called the
fundamental question of the right of the court to fix a definite term within
which the declarative action must be instituted, we are of opinion that such
right clearly existed, and that the providencia of May 7 was in exact
conformity with the procedure prescribed by article 1071 of the Ley de
Enjuiciamiento Civil. It might be claimed with much reason that if the
parties interested in the partition of the estate failed to agree on that made
by the auditor, either should be allowed to institute a declarative action
against the other for the purpose of settling the dispute within such time as
he might think proper, the property remaining in the meantime undivided,
were it not that the law in language of unmistakable import prescribes a
different rule of procedure. Article 1071 of the Ley de Enjuiciamiento Civil is
as follows: "If no agreement is had, the procedure prescribed for declarative
actions, according to the amount involved, shall be followed, and the
delivery of the papers shall be first made to the parties who first requested
delivery to them of the partition report as provided in article 1067." Article
1067 is as follows: "If the interested parties, or any of them, request, within
eight days, that the record of the proceedings and the report on partition be
delivered to them for examination, the judge shall order said delivery for a
period of fifteen days to each person making such request." The law does
not treat the partition proceedings as terminated by the failure of the
parties to agree, but provides that "the case" shall in that event "be given
the procedure of the declarative action" and goes on to designate the party
who is to take the initiative in the pleadings, a provision utterly
irreconcilable with the idea that it is optional for either party to commence
the proceeding at his pleasure. And it then proceeds by reference to article
1067 to fix the time within which the proceeding is to be instituted. The
petitioner had the benefit of that period and was accorded besides an
extension of seven days, and has consequently had all the rights to which
she was strictly entitled under the law and something more. She has, we
think, no just ground to complain that she has been deprived of any
substantial right either by her own mistake or that of the court below, in
any possible view in which the facts of the case may be regarded.
What has been said with reference to the petition disposes also of the
question involved in the appeal. If Doña Francisca had, as we think must be
the case, lost her right to institute the declarative action, there was no other
course for the court to take except to approve the partition proceedings,
unless there was some defect which vitiated them, and none has been
pointed out. It was suggested in the argument that the report of the auditor
umpire was of prior date to that of the auditor nominated by Don Jose, and
it was claimed that this rendered the proceedings defective. An examination
of the record shows that the report of the auditor nominated by Don Jose
was dated March 24 and filed March 29, and that of the auditor umpire was
dated March 28 and filed March 29. The contention of counsel on this point
is therefore not supported by the facts.
The result is that the petition must be denied and the judgment appealed
from affirmed, with costs to the appealing party both as to the petition and
the appeal. So ordered.
Arellano, C.J., Torres, Cooper, and Willard, JJ., concur.
Mapa, J., did not sit in this case.
MANZANO V. SANCHEZ
The solemnization of a marriage between two contracting parties who
were both bound by a prior existing marriage is the bone of contention of
the instant complaint against respondent Judge Roque R. Sanchez,
Municipal Trial Court, Infanta, Pangasinan. For this act, complainant
Herminia Borja-Manzano charges respondent Judge with gross ignorance of
the law in a sworn Complaint-Affidavit filed with the Office of the Court
Administrator on 12 May 1999.
Complainant avers that she was the lawful wife of the late David
Manzano, having been married to him on 21 May 1966 in San Gabriel
Archangel Parish, Araneta Avenue, Caloocan City.
[1]
Four children were born
out of that marriage.
[2]
On 22 March 1993, however, her husband
contracted another marriage with one Luzviminda Payao before respondent
Judge.
[3]
When respondent Judge solemnized said marriage, he knew or
ought to know that the same was void and bigamous, as the marriage
contract clearly stated that both contracting parties were ―separated.‖
Respondent Judge, on the other hand, claims in his Comment that
when he officiated the marriage between Manzano and Payao he did not
know that Manzano was legally married. What he knew was that the two
had been living together as husband and wife for seven years already
without the benefit of marriage, as manifested in their joint
affidavit.
[4]
According to him, had he known that the late Manzano was
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Eliza Den l PERSONS AND FAMILY RELATIONS 9

married, he would have advised the latter not to marry again; otherwise, he
(Manzano) could be charged with bigamy. He then prayed that the
complaint be dismissed for lack of merit and for being designed merely to
harass him.
After an evaluation of the Complaint and the Comment, the Court
Administrator recommended that respondent Judge be found guilty of gross
ignorance of the law and be ordered to pay a fine of P2,000, with a warning
that a repetition of the same or similar act would be dealt with more
severely.
On 25 October 2000, this Court required the parties to manifest
whether they were willing to submit the case for resolution on the basis of
the pleadings thus filed. Complainant answered in the affirmative.
For his part, respondent Judge filed a Manifestation reiterating his
plea for the dismissal of the complaint and setting aside his earlier
Comment. He therein invites the attention of the Court to two separate
affidavits
[5]
of the late Manzano and of Payao, which were allegedly
unearthed by a member of his staff upon his instruction. In those affidavits,
both David Manzano and Luzviminda Payao expressly stated that they were
married to Herminia Borja and Domingo Relos, respectively; and that since
their respective marriages had been marked by constant quarrels, they had
both left their families and had never cohabited or communicated with their
spouses anymore. Respondent Judge alleges that on the basis of those
affidavits, he agreed to solemnize the marriage in question in accordance
with Article 34 of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and a woman who
have lived together as husband and wife for at least five years and without
any legal impediment to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person authorized by law
to administer oaths. The solemnizing officer shall also state under oath that
he ascertained the qualifications of the contracting parties and found no
legal impediment to the marriage.
For this provision on legal ratification of marital cohabitation to apply,
the following requisites must concur:
1. The man and woman must have been living together as
husband and wife for at least five years before the
marriage;
2. The parties must have no legal impediment to marry each
other;
3. The fact of absence of legal impediment between the parties
must be present at the time of marriage;
4. The parties must execute an affidavit stating that they have
lived together for at least five years [and are without legal
impediment to marry each other]; and
5. The solemnizing officer must execute a sworn statement
that he had ascertained the qualifications of the parties
and that he had found no legal impediment to their
marriage.
[6]

Not all of these requirements are present in the case at bar. It is
significant to note that in their separate affidavits executed on 22 March
1993 and sworn to before respondent Judge himself, David Manzano and
Luzviminda Payao expressly stated the fact of their prior existing
marriage. Also, in their marriage contract, it was indicated that both were
―separated.‖
Respondent Judge knew or ought to know that a subsisting previous
marriage is a diriment impediment, which would make the subsequent
marriage null and void.
[7]
In fact, in his Comment, he stated that had he
known that the late Manzano was married he would have discouraged him
from contracting another marriage. And respondent Judge cannot deny
knowledge of Manzano‘s and Payao‘s subsisting previous marriage, as the
same was clearly stated in their separate affidavits which were subscribed
and sworn to before him.
The fact that Manzano and Payao had been living apart from their
respective spouses for a long time already is immaterial. Article 63(1) of
the Family Code allows spouses who have obtained a decree of legal
separation to live separately from each other, but in such a case the
marriage bonds are not severed. Elsewise stated, legal separation does
not dissolve the marriage tie, much less authorize the parties to
remarry. This holds true all the more when the separation is merely de
facto, as in the case at bar.
Neither can respondent Judge take refuge on the Joint Affidavit of
David Manzano and Luzviminda Payao stating that they had been cohabiting
as husband and wife for seven years. Just like separation, free and
voluntary cohabitation with another person for at least five years does not
severe the tie of a subsisting previous marriage. Marital cohabitation for a
long period of time between two individuals who are legally capacitated to
marry each other is merely a ground for exemption from marriage
license. It could not serve as a justification for respondent Judge to
solemnize a subsequent marriage vitiated by the impediment of a prior
existing marriage.
Clearly, respondent Judge demonstrated gross ignorance of the law
when he solemnized a void and bigamous marriage. The maxim ―ignorance
of the law excuses no one‖ has special application to judges,
[8]
who, under
Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of
competence, integrity, and independence. It is highly imperative that
judges be conversant with the law and basic legal principles.
[9]
And when
the law transgressed is simple and elementary, the failure to know it
constitutes gross ignorance of the law.
[10]

ACCORDINGLY, the recommendation of the Court Administrator is
hereby ADOPTED, with the MODIFICATION that the amount of fine to be
imposed upon respondent Judge Roque Sanchez is increased to P20,000.
SO ORDERED.

IN RE: MEDADO
B.M. No. 2540, September 24, 2013
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS MICHAEL A.
MEDADO, Petitioner.
R E S O L U T I O N
SERENO, C.J.:
We resolve the instant Petition to Sign in the Roll of Attorneys filed by
petitioner Michael A. Medado (Medado).

Medado graduated from the University of the Philippines with the degree of
Bachelor of Laws in 1979
1
and passed the same year‘s bar examinations with
a general weighted average of 82.7.
2
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On 7 May 1980, he took the Attorney‘s Oath at the Philippine International
Convention Center (PICC) together with the successful bar examinees.
3
He
was scheduled to sign in the Roll of Attorneys on 13 May 1980,
4
but he
failed to do so on his scheduled date, allegedly because he had misplaced
the Notice to Sign the Roll of Attorneys
5
given by the Bar Office when he
went home to his province for a vacation.
6
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Several years later, while rummaging through his old college files, Medado
found the Notice to Sign the Roll of Attorneys. It was then that he realized
that he had not signed in the roll, and that what he had signed at the
entrance of the PICC was probably just an attendance record.
7
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By the time Medado found the notice, he was already working. He stated
that he was mainly doing corporate and taxation work, and that he was not
actively involved in litigation practice. Thus, he operated ―under the
mistaken belief [that] since he ha[d] already taken the oath, the signing of
the Roll of Attorneys was not as urgent, nor as crucial to his status as a
lawyer‖;
8
and ―the matter of signing in the Roll of Attorneys lost its urgency
and compulsion, and was subsequently forgotten.‖
9
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In 2005, when Medado attended Mandatory Continuing Legal Education
(MCLE) seminars, he was required to provide his roll number in order for his
MCLE compliances to be credited.
10
Not having signed in the Roll of
Attorneys, he was unable to provide his roll number.

About seven years later, or on 6 February 2012, Medado filed the instant
Petition, praying that he be allowed to sign in the Roll of Attorneys.
11
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The Office of the Bar Confidant (OBC) conducted a clarificatory conference
on the matter on 21 September 2012
12
and submitted a Report and
Recommendation to this Court on 4 February 2013.
13
The OBC
recommended that the instant petition be denied for petitioner‘s gross
negligence, gross misconduct and utter lack of merit.
14
It explained that,
based on his answers during the clarificatory conference, petitioner could
offer no valid justification for his negligence in signing in the Roll of
Attorneys.
15
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After a judicious review of the records, we grant Medado‘s prayer in the
instant petition, subject to the payment of a fine and the imposition of a
penalty equivalent to suspension from the practice of law.

At the outset, we note that not allowing Medado to sign in the Roll of
Attorneys would be akin to imposing upon him the ultimate penalty of
disbarment, a penalty that we have reserved for the most serious ethical
transgressions of members of the Bar.

In this case, the records do not show that this action is warranted.

For one, petitioner demonstrated good faith and good moral character when
he finally filed the instant Petition to Sign in the Roll of Attorneys. We note
that it was not a third party who called this Court‘s attention to petitioner‘s
omission; rather, it was Medado himself who acknowledged his own lapse,
albeit after the passage of more than 30 years. When asked by the Bar
Confidant why it took him this long to file the instant petition, Medado very
candidly replied:chanrobles virtua1aw 1ibrary
Mahirap hong i-explain yan pero, yun bang at the time, what can you say?
Takot ka kung anong mangyayari sa ‗yo, you don‘t know what‘s gonna
happen. At the same time, it‘s a combination of apprehension and anxiety of
what‘s gonna happen. And, finally it‘s the right thing to do. I have to come
here … sign the roll and take the oath as necessary.
16

For another, petitioner has not been subject to any action for disqualification
from the practice of law,
17
which is more than what we can say of other
individuals who were successfully admitted as members of the Philippine
Bar. For this Court, this fact demonstrates that petitioner strove to adhere
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Eliza Den l PERSONS AND FAMILY RELATIONS 10

to the strict requirements of the ethics of the profession, and that he
has prima facie shown that he possesses the character required to be a
member of the Philippine Bar.

Finally, Medado appears to have been a competent and able legal
practitioner, having held various positions at the Laurel Law Office,
18
Petron,
Petrophil Corporation, the Philippine National Oil Company, and the Energy
Development Corporation.
19
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All these demonstrate Medado‘s worth to become a full-fledged member of
the Philippine Bar. While the practice of law is not a right but a
privilege,
20
this Court will not unwarrantedly withhold this privilege from
individuals who have shown mental fitness and moral fiber to withstand the
rigors of the profession.

That said, however, we cannot fully exculpate petitioner Medado from all
liability for his years of inaction.

Petitioner has been engaged in the practice of law since 1980, a period
spanning more than 30 years, without having signed in the Roll of
Attorneys.
21
He justifies this behavior by characterizing his acts as ―neither
willful nor intentional but based on a mistaken belief and an honest error of
judgment.‖
22
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We disagree.

While an honest mistake of fact could be used to excuse a person from the
legal consequences of his acts
23
as it negates malice or evil motive,
24
a
mistake of law cannot be utilized as a lawful justification, because everyone
is presumed to know the law and its consequences.
25
Ignorantia facti
excusat; ignorantia legis neminem excusat.

Applying these principles to the case at bar, Medado may have at first
operated under an honest mistake of fact when he thought that what he had
signed at the PICC entrance before the oath-taking was already the Roll of
Attorneys. However, the moment he realized that what he had signed was
merely an attendance record, he could no longer claim an honest mistake of
fact as a valid justification. At that point, Medado should have known that
he was not a full-fledged member of the Philippine Bar because of his failure
to sign in the Roll of Attorneys, as it was the act of signing therein that
would have made him so.
26
When, in spite of this knowledge, he chose to
continue practicing law without taking the necessary steps to complete all
the requirements for admission to the Bar, he willfully engaged in the
unauthorized practice of law.

Under the Rules of Court, the unauthorized practice of law by one‘s
assuming to be an attorney or officer of the court, and acting as such
without authority, may constitute indirect contempt of court,
27
which is
punishable by fine or imprisonment or both.
28
Such a finding, however, is in
the nature of criminal contempt
29
and must be reached after the filing of
charges and the conduct of hearings.
30
In this case, while it appears quite
clearly that petitioner committed indirect contempt of court by knowingly
engaging in unauthorized practice of law, we refrain from making any
finding of liability for indirect contempt, as no formal charge pertaining
thereto has been filed against him.

Knowingly engaging in unauthorized practice of law likewise transgresses
Canon 9 of the Code of Professional Responsibility, which
provides:chanrobles virtua1aw 1ibrary
CANON 9 – A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.
While a reading of Canon 9 appears to merely prohibit lawyers from
assisting in the unauthorized practice of law, the unauthorized practice of
law by the lawyer himself is subsumed under this provision, because at the
heart of Canon 9 is the lawyer‘s duty to prevent the unauthorized practice of
law. This duty likewise applies to law students and Bar candidates. As
aspiring members of the Bar, they are bound to comport themselves in
accordance with the ethical standards of the legal profession.

Turning now to the applicable penalty, previous violations of Canon 9 have
warranted the penalty of suspension from the practice of law.
31
As Medado
is not yet a full-fledged lawyer, we cannot suspend him from the practice of
law. However, we see it fit to impose upon him a penalty akin to suspension
by allowing him to sign in the Roll of Attorneys one (1) year after receipt of
this Resolution. For his transgression of the prohibition against the
unauthorized practice of law, we likewise see it fit to fine him in the amount
of P32,000. During the one year period, petitioner is warned that he is not
allowed to engage in the practice of law, and is sternly warned that doing
any act that constitutes practice of law before he has signed in the Roll of
Attorneys will be dealt with severely by this Court.

WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is
hereby GRANTED. Petitioner Michael A. Medado is ALLOWED to sign in the
Roll of Attorneys ONE (1) YEAR after receipt of this Resolution. Petitioner
is likewise ORDERED to pay a FINE of P32,000 for his unauthorized
practice of law. During the one year period, petitioner is NOT ALLOWED to
practice law, and is STERNLY WARNED that doing any act that constitutes
practice of law before he has signed in the Roll of Attorneys will be dealt
with severely by this Court.

Let a copy of this Resolution be furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and the Office of the Court
Administrator for circulation to all courts in the
country.chanroblesvirtualawlibrary

SO ORDERED.

GARCIA-RECIO V. RECIO
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of
the foreigner. However, the divorce decree and the governing personal law
of the alien spouse who obtained the divorce must be proven. Our courts
do not take judicial notice of foreign laws and judgments; hence, like any
other facts, both the divorce decree and the national law of the alien must
be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to nullify the January 7, 1999 Decision
[1]
and the March 24, 1999
Order
[2]
of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil
Case No. 3026–AF. The assailed Decision disposed as follows:
―WHEREFORE, this Court declares the marriage between Grace J. Garcia and
Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as
dissolved and both parties can now remarry under existing and applicable
laws to any and/or both parties.‖
[3]

The assailed Order denied reconsideration of the above-quoted
Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987.
[4]
They lived
together as husband and wife in Australia. On May 18, 1989,
[5]
a decree of
divorce, purportedly dissolving the marriage, was issued by an Australian
family court.
On June 26, 1992, respondent became an Australian citizen, as
shown by a ―Certificate of Australian Citizenship‖ issued by the Australian
government.
[6]
Petitioner -- a Filipina -- and respondent were married on
January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan
City.
[7]
In their application for a marriage license, respondent was declared
as ―single‖ and ―Filipino.‖
[8]

Starting October 22, 1995, petitioner and respondent lived separately
without prior judicial dissolution of their marriage. While the two were still
in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of
Nullity of Marriage
[10]
in the court a quo, on the ground of bigamy --
respondent allegedly had a prior subsisting marriage at the time he married
her on January 12, 1994. She claimed that she learned of respondent‘s
marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had
revealed to petitioner his prior marriage and its subsequent
dissolution.
[11]
He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australia in
1989;
[12]
thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couple‘s wedding and
while the suit for the declaration of nullity was pending -- respondent was
able to secure a divorce decree from a family court in Sydney, Australia
because the ―marriage ha[d] irretrievably broken down.‖
[13]

Respondent prayed in his Answer that the Complaint be dismissed on
the ground that it stated no cause of action.
[14]
The Office of the Solicitor
General agreed with respondent.
[15]
The court marked and admitted the
documentary evidence of both parties.
[16]
After they submitted their
respective memoranda, the case was submitted for resolution.
[17]

Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines. It
deemed the marriage ended, but not on the basis of any defect in an
essential element of the marriage; that is, respondent’s alleged lack of legal
capacity to remarry. Rather, it based its Decision on the divorce decree
obtained by respondent. The Australian divorce had ended the marriage;
thus, there was no more marital union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our consideration:
Page 11 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 11

“1
The trial court gravely erred in finding that the divorce decree obtained in
Australia by the respondent ipso facto terminated his first marriage to
Editha Samson thereby capacitating him to contract a second marriage with
the petitioner.
“2
The failure of the respondent, who is now a naturalized Australian, to
present a certificate of legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioner‘s marriage to the respondent
“3
The trial court seriously erred in the application of Art. 26 of the Family
Code in this case.
“4
The trial court patently and grievously erred in disregarding Arts. 11, 13,
21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this
case.
“5
The trial court gravely erred in pronouncing that the divorce decree obtained
by the respondent in Australia ipso facto capacitated the parties to remarry,
without first securing a recognition of the judgment granting the divorce
decree before our courts.‖
[19]

The Petition raises five issues, but for purposes of this Decision, we
shall concentrate on two pivotal ones: (1) whether the divorce between
respondent and Editha Samson was proven, and (2) whether respondent
was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.
The Court’s Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court‘s recognition of the divorce between
respondent and Editha Samson. Citing Adong v. Cheong Seng
Gee,
[20]
petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of
the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that respondent miserably failed to
establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the
Family Code, marriages solemnized abroad are governed by the law of the
place where they were celebrated (the lex loci celebrationis). In effect, the
Code requires the presentation of the foreign law to show the conformity of
the marriage in question to the legal requirements of the place where the
marriage was performed.
At the outset, we lay the following basic legal principles as the take-
off points for our discussion. Philippine law does not provide for absolute
divorce; hence, our courts cannot grant it.
[21]
A marriage between two
Filipinos cannot be dissolved even by a divorce obtained abroad, because of
Articles 15
[22]
and 17
[23]
of the Civil Code.
[24]
In mixed marriages involving a
Filipino and a foreigner, Article 26
[25]
of the Family Code allows the former to
contract a subsequent marriage in case the divorce is ―validly obtained
abroad by the alien spouse capacitating him or her to remarry.‖
[26]
A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as pleading and
proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that
―aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national
law.‖
[28]
Therefore, before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.
[29]
Presentation
solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in
evidence, it must first comply with the registration requirements under
Articles 11, 13 and 52 of the Family Code. These articles read as follows:
―ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
x x x x x x x x x
―(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
x x x x x x x x
x‖
―ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to
―ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his or
her previous marriage. x x x.
―ART. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the spouses, and
the delivery of the children‘s presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same
shall not affect their persons.‖
Respondent, on the other hand, argues that the Australian divorce
decree is a public document -- a written official act of an Australian family
court. Therefore, it requires no further proof of its authenticity and due
execution.
Respondent is getting ahead of himself. Before a foreign judgment is
given presumptive evidentiary value, the document must first be presented
and admitted in evidence.
[30]
A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a judgment is the
judgment itself.
[31]
The decree purports to be a written act or record of an
act of an official body or tribunal of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign country
by either (1) an official publication or (2) a copy thereof attested
[33]
by the
officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
[34]

The divorce decree between respondent and Editha Samson appears
to be an authentic one issued by an Australian family court.
[35]
However,
appearance is not sufficient; compliance with the aforementioned rules on
evidence must be demonstrated.
Fortunately for respondent‘s cause, when the divorce decree of May
18, 1989 was submitted in evidence, counsel for petitioner objected, not to
its admissibility, but only to the fact that it had not been registered in the
Local Civil Registry of Cabanatuan City.
[36]
The trial court ruled that it was
admissible, subject to petitioner‘s qualification.
[37]
Hence, it was admitted in
evidence and accorded weight by the judge. Indeed, petitioner‘s failure to
object properly rendered the divorce decree admissible as a written act of
the Family Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of the Family
Code is not necessary; respondent was no longer bound by Philippine
personal laws after he acquired Australian citizenship in
1992.
[39]
Naturalization is the legal act of adopting an alien and clothing him
with the political and civil rights belonging to a citizen.
[40]
Naturalized
citizens, freed from the protective cloak of their former states, don the
attires of their adoptive countries. By becoming an Australian, respondent
severed his allegiance to the Philippines and the vinculum juris that had tied
him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law
falls upon petitioner, because she is the party challenging the validity of a
foreign judgment. He contends that petitioner was satisfied with the
original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by Philippine
courts; thus, judges may take judicial notice of foreign laws in the exercise
of sound discretion.
We are not persuaded. The burden of proof lies with ―the party who
alleges the existence of a fact or thing necessary in the prosecution or
defense of an action.‖
[41]
In civil cases, plaintiffs have the burden of proving
the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations
in their answer when they introduce new matters.
[42]
Since the divorce was
a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial
notice of foreign laws.
[43]
Like any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that judges
Page 12 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 12

are supposed to know by reason of their judicial function.
[44]
The power of
judicial notice must be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue: Respondent’s Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in 1994. Hence,
she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was
validly admitted in evidence, adequately established his legal capacity to
marry under Australian law.
Respondent‘s contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The two basic
ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce
or a mensa et thoro. The first kind terminates the marriage, while the
second suspends it and leaves the bond in full force.
[45]
There is no showing
in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a
conditional or provisional judgment of divorce. It is in effect the same as a
separation from bed and board, although an absolute divorce may follow
after the lapse of the prescribed period during which no reconciliation is
effected.
[46]

Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some other
jurisdictions, remarriage may be limited by statute; thus, the guilty party in
a divorce which was granted on the ground of adultery may be prohibited
from marrying again. The court may allow a remarriage only after proof of
good behavior.
[47]

On its face, the herein Australian divorce decree contains a restriction
that reads:
―1. A party to a marriage who marries again before
this decree becomes absolute (unless the other party has
died) commits the offence of bigamy.‖
[48]

This quotation bolsters our contention that the divorce obtained by
respondent may have been restricted. It did not absolutely establish his
legal capacity to remarry according to his national law. Hence, we find no
basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso factorestored respondent‘s capacity to remarry
despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises
a disputable presumption or presumptive evidence as to his civil status
based on Section 48, Rule 39
[49]
of the Rules of Court, for the simple reason
that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by
Article 21 of the Family Code was not submitted together with the
application for a marriage license. According to her, its absence is proof
that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly presented it in
court. A duly authenticated and admitted certificate is prima facie evidence
of legal capacity to marry on the part of the alien applicant for a marriage
license.
[50]

As it is, however, there is absolutely no evidence that proves
respondent‘s legal capacity to marry petitioner. A review of the records
before this Court shows that only the following exhibits were presented
before the lower court: (1) for petitioner: (a) Exhibit ―A‖ – Complaint;
[51]
(b)
Exhibit ―B‖ – Certificate of Marriage Between Rederick A. Recio (Filipino-
Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in
Cabanatuan City, Nueva Ecija;
[52]
(c) Exhibit ―C‖ – Certificate of Marriage
Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on
March 1, 1987 in Malabon, Metro Manila;
[53]
(d) Exhibit ―D‖ – Office of the
City Registrar of Cabanatuan City Certification that no information of
annulment between Rederick A. Recio and Editha D. Samson was in its
records;
[54]
and (e) Exhibit ―E‖ – Certificate of Australian Citizenship of
Rederick A. Recio;
[55]
(2) for respondent: (a) Exhibit ―1‖ -- Amended
Answer;
[56]
(b) Exhibit ―2‖ – Family Law Act 1975 Decree Nisi of Dissolution
of Marriage in the Family Court of Australia;
[57]
(c) Exhibit ―3‖ – Certificate
of Australian Citizenship of Rederick A. Recio;
[58]
(d) Exhibit ―4‖ – Decree
Nisi of Dissolution of Marriage in the Family Court of Australia
Certificate;
[59]
and Exhibit ―5‖ -- Statutory Declaration of the Legal
Separation Between Rederick A. Recio and Grace J. Garcia Recio since
October 22, 1995.
[60]

Based on the above records, we cannot conclude that respondent,
who was then a naturalized Australian citizen, was legally capacitated to
marry petitioner on January 12, 1994. We agree with petitioner‘s
contention that the court a quo erred in finding that the divorce decree ipso
facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal
law governing his status; or at the very least, to prove his legal capacity to
contract the second marriage.
Neither can we grant petitioner‘s prayer to declare her marriage to
respondent null and void on the ground of bigamy. After all, it may turn out
that under Australian law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe that the most
judicious course is to remand this case to the trial court to receive evidence,
if any, which show petitioner‘s legal capacity to marry petitioner. Failing in
that, then the court a quo may declare a nullity of the parties‘ marriage on
the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon,
Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated
January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial
justice, we REMAND the case to the court a quo for the purpose of receiving
evidence which conclusively show respondent‘s legal capacity to marry
petitioner; and failing in that, of declaring the parties‘ marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.

YAO-KEE V. SY-GONZALES
Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City
where he was then residing, leaving behind real and personal properties
here in the Philippines worth P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo
Sy filed a petition for the grant of letters of administration docketed as
Special Proceedings Case No. C-699 of the then Court of First Instance of
Rizal Branch XXXIII, Caloocan City. In said petition they alleged among
others that (a) they are the children of the deceased with Asuncion Gillego;
(b) to their knowledge Sy Mat died intestate; (c) they do not recognize Sy
Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d)
they nominate Aida Sy-Gonzales for appointment as administratrix of the
intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy
Yun Chen who alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom
he married on January 19, 1931 in China; (b) the other oppositors are the
legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is
the eldest among them and is competent, willing and desirous to become
the administratrix of the estate of Sy Kiat [Record on Appeal, pp. 12-13;
Rollo, p. 107.] After hearing, the probate court, finding among others that:
(1) Sy Kiat was legally married to Yao Kee [CFI
decision, pp. 12-27; Rollo, pp. 49-64;]
(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are
the legitimate children of Yao Kee with Sy Mat [CFI
decision, pp. 28-31; Rollo. pp. 65-68;] and,
(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe
and Rodolfo Sy are the acknowledged illegitimate
offsprings of Sy Kiat with Asuncion Gillego [CFI
decision, pp. 27-28; Rollo, pp. 64- 65.]
held if favor of the oppositors (petitioners herein) and appointed Sze Sook
Wah as the administratrix of the intestate estate of the deceased [CFI
decision, pp. 68-69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision modifying that of the
probate court, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the decision of the
lower Court is hereby MODIFIED and SET ASIDE and a
new judgment rendered as follows:
(1) Declaring petitioners Aida Sy-Gonzales, Manuel
Sy, Teresita Sy- Bernabe and Rodolfo Sy
acknowledged natural children of the deceased Sy Kiat
with Asuncion Gillego, an unmarried woman with
whom he lived as husband and wife without benefit of
marriage for many years:
(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu
and Sze Chun Yen, the acknowledged natural children
of the deceased Sy Kiat with his Chinese wife Yao Kee,
also known as Yui Yip, since the legality of the alleged
marriage of Sy Mat to Yao Kee in China had not been
proven to be valid to the laws of the Chinese People's
Republic of China (sic);
(3) Declaring the deed of sale executed by Sy Kiat on
December 7, 1976 in favor of Tomas Sy (Exhibit "G-
1", English translation of Exhibit "G") of the Avenue
Tractor and Diesel Parts Supply to be valid and
Page 13 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 13

accordingly, said property should be excluded from
the estate of the deceased Sy Kiat; and
(4) Affirming the appointment by the lower court of
Sze Sook Wah as judicial administratrix of the estate
of the deceased. [CA decision, pp. 11-12; Rollo, pp.
36- 37.]
From said decision both parties moved for partial reconsideration, which was
however denied by respondent court. They thus interposed their respective
appeals to this Court.
Private respondents filed a petition with this Court docketed as G.R. No.
56045 entitled "Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and
Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy
Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of
the Court of Appeals' decision. The Supreme Court however resolved to
deny the petition and the motion for reconsideration. Thus on March 8, 1982
entry of judgment was made in G.R. No. 56045. **
The instant petition, on the other hand, questions paragraphs (1) and (2) of
the dispositive portion of the decision of the Court of Appeals. This petition
was initially denied by the Supreme Court on June 22, 1981. Upon motion of
the petitioners the Court in a resolution dated September 16, 1981
reconsidered the denial and decided to give due course to this petition.
Herein petitioners assign the following as errors:
I. RESPONDENT COURT OF APPEALS SERIOUSLY
ERRED IN DECLARING THE MARRIAGE OF SY KIAT TO
YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE PEOPLE'S
REPUBLIC OF CHINA.
II. RESPONDENT COURT OF APPEALS GRAVELY ERRED
IN DECLARING AIDA SY-GONZALES, MANUEL SY,
TERESITA SY-BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT WITH ASUNCION
GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance
with Chinese law and custom was conclusively proven. To buttress this
argument they rely on the following testimonial and documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:
Yao Kee testified that she was married to Sy Kiat on
January 19, 1931 in Fookien, China; that she does not
have a marriage certificate because the practice
during that time was for elders to agree upon the
betrothal of their children, and in her case, her elder
brother was the one who contracted or entered into
[an] agreement with the parents of her husband; that
the agreement was that she and Sy Mat would be
married, the wedding date was set, and invitations
were sent out; that the said agreement was complied
with; that she has five children with Sy Kiat, but two
of them died; that those who are alive are Sze Sook
Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being
Sze Sook Wah who is already 38 years old; that Sze
Sook Wah was born on November 7, 1939; that she
and her husband, Sy Mat, have been living in FooKien,
China before he went to the Philippines on several
occasions; that the practice during the time of her
marriage was a written document [is exchanged] just
between the parents of the bride and the parents of
the groom, or any elder for that matter; that in China,
the custom is that there is a go- between, a sort of
marriage broker who is known to both parties who
would talk to the parents of the bride-to-be; that if
the parents of the bride-to-be agree to have the
groom-to-be their son in-law, then they agree on a
date as an engagement day; that on engagement day,
the parents of the groom would bring some pieces of
jewelry to the parents of the bride-to-be, and then
one month after that, a date would be set for the
wedding, which in her case, the wedding date to Sy
Kiat was set on January 19, 1931; that during the
wedding the bridegroom brings with him a couch (sic)
where the bride would ride and on that same day, the
parents of the bride would give the dowry for her
daughter and then the document would be signed by
the parties but there is no solemnizing officer as is
known in the Philippines; that during the wedding day,
the document is signed only by the parents of the
bridegroom as well as by the parents of the bride;
that the parties themselves do not sign the document;
that the bride would then be placed in a carriage
where she would be brought to the town of the
bridegroom and before departure the bride would be
covered with a sort of a veil; that upon reaching the
town of the bridegroom, the bridegroom takes away
the veil; that during her wedding to Sy Kiat (according
to said Chinese custom), there were many persons
present; that after Sy Kiat opened the door of the
carriage, two old ladies helped her go down the
carriage and brought her inside the house of Sy Mat;
that during her wedding, Sy Chick, the eldest brother
of Sy Kiat, signed the document with her mother; that
as to the whereabouts of that document, she and Sy
Mat were married for 46 years already and the
document was left in China and she doubt if that
document can still be found now; that it was left in
the possession of Sy Kiat's family; that right now, she
does not know the whereabouts of that document
because of the lapse of many years and because they
left it in a certain place and it was already eaten by
the termites; that after her wedding with Sy Kiat, they
lived immediately together as husband and wife, and
from then on, they lived together; that Sy Kiat went
to the Philippines sometime in March or April in the
same year they were married; that she went to the
Philippines in 1970, and then came back to China;
that again she went back to the Philippines and lived
with Sy Mat as husband and wife; that she begot her
children with Sy Kiat during the several trips by Sy
Kiat made back to China. [CFI decision, pp. 13-15;
Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who
stated that he was among the many people who attended the wedding of
his sister with Sy Kiat and that no marriage certificate is issued by the
Chinese government, a document signed by the parents or elders of the
parties being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before
the trial court to the effect that (a) Sy Mat was married to Yao Kee
according to Chinese custom; and, (b) Sy Kiat's admission to her that he
has a Chinese wife whom he married according to Chinese custom [CFI
decision, p. 17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on
October 3, 1972 where the following entries are found: "Marital status—
Married"; "If married give name of spouses—Yao Kee"; "Address-China;
"Date of marriage—1931"; and "Place of marriage—China" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January
12, 1968 where the following entries are likewise found: "Civil status—
Married"; and, 'If married, state name and address of spouse—Yao Kee
Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977 by the
Embassy of the People's Republic of China to the effect that "according to
the information available at the Embassy Mr. Sy Kiat a Chinese national and
Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19, 1931 in
Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee
and Sy Kiat. However, the same do not suffice to establish the validity of
said marriage in accordance with Chinese law or custom.
Custom is defined as "a rule of conduct formed by repetition of acts,
uniformly observed (practiced) as a social rule, legally binding and
obligatory" [In the Matter of the Petition for Authority to Continue Use of the
Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979,
SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth
Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact,
according to the rules of evidence" [Article 12, Civil Code.] On this score the
Court had occasion to state that "a local custom as a source of right can not
be considered by a court of justice unless such custom is properly
established by competent evidence like any other fact" [Patriarca v. Orate, 7
Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree,
should be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil Code
which states that:
Art. 71. All marriages performed outside the
Philippines in accordance with the laws in force in the
country where they were performed and valid there as
such, shall also be valid in this country, except
bigamous, Polygamous, or incestuous marriages, as
determined by Philippine law. (Emphasis
supplied.) ***
Construing this provision of law the Court has held that to establish a valid
foreign marriage two things must be proven, namely: (1) the existence of
the foreign law as a question of fact; and (2) the alleged foreign marriage
by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49
(1922).]
In proving a foreign law the procedure is provided in the Rules of Court.
With respect to an unwritten foreign law, Rule 130 section 45 states that:
SEC. 45. Unwritten law.—The oral testimony of
witnesses, skilled therein, is admissible as evidence of
Page 14 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 14

the unwritten law of a foreign country, as are also
printed and published books of reports of decisions of
the courts of the foreign country, if proved to be
commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule
132 section 25, thus:
SEC. 25. Proof of public or official record.—An official
record or an entry therein, when admissible for any
purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a
secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in
the foreign country in which the record is kept and
authenticated by the seal of his office.
The Court has interpreted section 25 to include competent evidence like the
testimony of a witness to prove the existence of a written foreign law
[Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing
Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any competent evidence
relative to the law and custom of China on marriage. The testimonies of Yao
and Gan Ching cannot be considered as proof of China's law or custom on
marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they
are competent to testify on the subject matter. For failure to prove the
foreign law or custom, and consequently, the validity of the marriage in
accordance with said law or custom, the marriage between Yao Kee and Sy
Kiat cannot be recognized in this jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling they are not
duty bound to prove the Chinese law on marriage as judicial notice thereof
had been taken by this Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil.
137 (1910).]
This contention is erroneous. Well-established in this jurisdiction is the
principle that Philippine courts cannot take judicial notice of foreign laws.
They must be alleged and proved as any other fact [Yam Ka Lim v. Collector
of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the party alleging the
foreign marriage presented a witness, one Li Ung Bieng, to prove that
matrimonial letters mutually exchanged by the contracting parties constitute
the essential requisite for a marriage to be considered duly solemnized in
China. Based on his testimony, which as found by the Court is uniformly
corroborated by authors on the subject of Chinese marriage, what was left
to be decided was the issue of whether or not the fact of marriage in
accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy
Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that the Court has indeed
taken judicial notice of the law of China on marriage in the aforecited case,
petitioners however have not shown any proof that the Chinese law or
custom obtaining at the time the Sy Joc Lieng marriage was celebrated in
1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took
place in 1931 or eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633
(1916)] as being applicable to the instant case. They aver that the judicial
pronouncement in the Memoracion case, that the testimony of one of the
contracting parties is competent evidence to show the fact of marriage,
holds true in this case.
The Memoracion case however is not applicable to the case at bar as said
case did not concern a foreign marriage and the issue posed was whether or
not the oral testimony of a spouse is competent evidence to prove the fact
of marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese law on marriage, it
should be presumed that it is the same as ours *** [Wong Woo Yiu v. Vivo,
G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee
admitted in her testimony that there was no solemnizing officer as is known
here in the Philippines [See Article 56, Civil Code] when her alleged
marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it
therefore follows that her marriage to Sy Kiat, even if true, cannot be
recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]
II. The second issue raised by petitioners concerns the status of private
respondents.
Respondent court found the following evidence of petitioners' filiation:
(1) Sy Kiat's Master Card of Registered Alien where
the following are entered: "Children if any: give
number of children—Four"; and, "Name—All living in
China" [Exhibit "SS-1";]
(2) the testimony of their mother Yao Kee who stated
that she had five children with Sy Kiat, only three of
whom are alive namely, Sze Sook Wah, Sze Lai Chu
and Sze Chin Yan [TSN, December 12, 1977, pp. 9-
11;] and,
(3) an affidavit executed on March 22,1961 by Sy Kiat
for presentation to the Local Civil Registrar of Manila
to support Sze Sook Wah's application for a marriage
license, wherein Sy Kiat expressly stated that she is
his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told
her he has three daughters with his Chinese wife, two of whom—Sook Wah
and Sze Kai Cho—she knows, and one adopted son [TSN, December 6,1977,
pp. 87-88.]
However, as petitioners failed to establish the marriage of Yao Kee with Sy
Mat according to the laws of China, they cannot be accorded the status of
legitimate children but only that of acknowledged natural children.
Petitioners are natural children, it appearing that at the time of their
conception Yao Kee and Sy Kiat were not disqualified by any impediment to
marry one another [See Art. 269, Civil Code.] And they are acknowledged
children of the deceased because of Sy Kiat's recognition of Sze Sook Wah
[Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her
sisters of the full blood [See Art. 271, Civil Code.]
Private respondents on the other hand are also the deceased's
acknowledged natural children with Asuncion Gillego, a Filipina with whom
he lived for twenty-five (25) years without the benefit of marriage. They
have in their favor their father's acknowledgment, evidenced by a
compromise agreement entered into by and between their parents and
approved by the Court of First Instance on February 12, 1974 wherein Sy
Kiat not only acknowleged them as his children by Asuncion Gillego but
likewise made provisions for their support and future inheritance, thus:
xxx xxx xxx
2. The parties also acknowledge that they are
common-law husband and wife and that out of such
relationship, which they have likewise decided to
definitely and finally terminate effective immediately,
they begot five children, namely: Aida Sy, born on
May 30, 1950; Manuel Sy, born on July 1, 1953;
Teresita Sy, born on January 28, 1955; Ricardo Sy
now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.
3. With respect to the AVENUE TRACTOR AND DIESEL
PARTS SUPPLY ... , the parties mutually agree and
covenant that—
(a) The stocks and merchandize
and the furniture and
equipments ..., shall be divided
into two equal shares between,
and distributed to, Sy Kiat who
shall own
one-half of the total and the
other half to Asuncion Gillego
who shall transfer the same to
their children, namely, Aida Sy,
Manuel Sy, Teresita Sy, and
Rodolfo Sy.
(b) the business name and
premises ... shall be retained by
Sy Kiat. However, it shall be his
obligation to give to
the aforenamed children an
amount of One Thousand Pesos
( Pl,000.00 ) monthly out of the
rental of the two doors of the
same building now occupied by
Everett Construction.
xxx xxx xxx
(5) With respect to the acquisition, during the
existence of the
common-law husband-and-wife relationship between
the parties, of the real estates and properties
registered and/or appearing in the name of Asuncion
Gillego ... , the parties mutually agree and covenant
that the said real estates and properties shall be
transferred in equal shares to their children, namely,
Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but
Page 15 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 15

to be administered by Asuncion Gillego during her
lifetime ... [Exhibit "D".] (Emphasis supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement before a court of
record by which a child may be voluntarily acknowledged [See Art. 278,
Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's
marriage to Yao Kee and the paternity and filiation of the parties should
have been ventilated in the Juvenile and Domestic Relations Court.
Specifically, petitioners rely on the following provision of Republic Act No.
5502, entitled "An Act Revising Rep. Act No. 3278, otherwise known as the
Charter of the City of Caloocan', with regard to the Juvenile and Domestic
Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court.—
xxx xxx xxx
The provisions of the Judiciary Act to the contrary
notwithstanding, the court shall have exclusive
original jurisdiction to hear and decide the following
cases:
xxx xxx xxx
(2) Cases involving custody, guardianship, adoption,
revocation of adoption, paternity and
acknowledgment;
(3) Annulment of marriages, relief from marital
obligations, legal separation of spouses, and actions
for support;
(4) Proceedings brought under the provisions of title
six and title seven, chapters one to three of the civil
code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21
SCRA 1324] reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA
307.]
With the enactment of Batas Pambansa Blg. 129, otherwise known as the
Judiciary Reorganization Act of 1980, the Juvenile and Domestic Relations
Courts were abolished. Their functions and jurisdiction are now vested with
the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia
v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence
it is no longer necessary to pass upon the issue of jurisdiction raised by
petitioners.
Moreover, even without the exactment of Batas Pambansa Blg. 129 we find
in Rep. Act No. 5502 sec. 91-A last paragraph that:
xxx xxx xxx
If any question involving any of the above matters
should arise as an incident in any case pending in the
ordinary court, said incident shall be determined in
the main case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10,
1976, 72 SCRA 307]:
xxx xxx xxx
It is true that under the aforequoted section 1 of
Republic Act No. 4834 **** a case involving paternity
and acknowledgment may be ventilated as an incident
in the intestate or testate proceeding (See Baluyot vs.
Ines Luciano, L-42215, July 13, 1976). But that legal
provision presupposes that such an administration
proceeding is pending or existing and has not been
terminated. [at pp. 313-314.] (Emphasis supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the rendition of conflicting
rulings on the same issue by the Court of First Instance and the Juvenile
and Domestic Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L-
42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent
multiplicity of suits. Accordingly, this Court finds no reversible error
committed by respondent court.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
MICIANO V. BRIMO
The partition of the estate left by the deceased Joseph G. Brimo is in
question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre
Brimo, one of the brothers of the deceased, opposed it. The court, however,
approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation
in the inheritance; (3) the denial of the motion for reconsideration of the
order approving the partition; (4) the approval of the purchase made by the
Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to
this cause, and the failure not to postpone the approval of the scheme of
partition and the delivery of the deceased's business to Pietro Lanza until
the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question
puts into effect the provisions of Joseph G. Brimo's will which are not in
accordance with the laws of his Turkish nationality, for which reason they
are void as being in violation or article 10 of the Civil Code which, among
other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to
the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose
succession is in question, whatever may be the nature of the
property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary
dispositions are not in accordance with the Turkish laws, inasmuch as he did
not present any evidence showing what the Turkish laws are on the matter,
and in the absence of evidence on such laws, they are presumed to be the
same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He,
himself, acknowledges it when he desires to be given an opportunity to
present evidence on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the scheme of partition until
the receipt of certain testimony requested regarding the Turkish laws on the
matter.
The refusal to give the oppositor another opportunity to prove such laws
does not constitute an error. It is discretionary with the trial court, and,
taking into consideration that the oppositor was granted ample opportunity
to introduce competent evidence, we find no abuse of discretion on the part
of the court in this particular. There is, therefore, no evidence in the record
that the national law of the testator Joseph G. Brimo was violated in the
testamentary dispositions in question which, not being contrary to our laws
in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not
erroneous.
In regard to the first assignment of error which deals with the exclusion of
the herein appellant as a legatee, inasmuch as he is one of the persons
designated as such in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause of the will, which
says:
Second. I like desire to state that although by law, I am a
Turkish citizen, this citizenship having been conferred upon me
by conquest and not by free choice, nor by nationality and, on
the other hand, having resided for a considerable length of time
in the Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of
my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the
Philippine islands, requesting all of my relatives to respect this
wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons
who fail to comply with this request.
Page 16 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 16

The institution of legatees in this will is conditional, and the condition is that
the instituted legatees must respect the testator's will to distribute his
property, not in accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails
to comply with it, as the herein oppositor who, by his attitude in these
proceedings has not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law,
for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals
shall be considered as not imposed and shall not prejudice the
heir or legatee in any manner whatsoever, even should the
testator otherwise provide.
And said condition is contrary to law because it expressly ignores the
testator's national law when, according to article 10 of the civil Code above
quoted, such national law of the testator is the one to govern his
testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is
considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the herein
oppositor.
It results from all this that the second clause of the will regarding the law
which shall govern it, and to the condition imposed upon the legatees, is
null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and
requests are perfectly valid and effective it not appearing that said clauses
are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the
distribution of this estate be made in such a manner as to include the herein
appellant Andre Brimo as one of the legatees, and the scheme of partition
submitted by the judicial administrator is approved in all other respects,
without any pronouncement as to costs.
So ordered.
JULIANO-LLAVE V. REPUBLIC
A new law ought to affect the future, not what is past. Hence, in the case of
subsequent marriage laws, no vested rights shall be impaired that pertain to
the protection of the legitimate union of a married couple.
This petition for review on certiorari assails the Decision
1
dated August 17,
2004 of the Court of Appeals (CA) in CA-G.R. CV No. 61762 and its
subsequent Resolution
2
dated September 13, 2005, which affirmed the
Decision of the Regional Trial Court (RTC) of Quezon City, Branch 89
declaring petitioner Estrellita Juliano-Llave‘s (Estrellita) marriage to Sen.
Mamintal A.J. Tamano (Sen. Tamano) as void ab initio.
Factual Antecedents
Around 11 months before his death, Sen. Tamano married Estrellita twice –
initially under the Islamic laws and tradition on May 27, 1993 in Cotabato
City
3
and, subsequently, under a civil ceremony officiated by an RTC Judge
at Malabang, Lanao del Sur on June 2, 1993.
4
In their marriage contracts,
Sen. Tamano‘s civil status was indicated as ‗divorced.‘
Since then, Estrellita has been representing herself to the whole world as
Sen. Tamano‘s wife, and upon his death, his widow.
On November 23, 1994, private respondents Haja Putri Zorayda A. Tamano
(Zorayda) and her son Adib Ahmad A. Tamano (Adib), in their own behalf
and in behalf of the rest of Sen. Tamano‘s legitimate children with
Zorayda,
5
filed a complaint with the RTC of Quezon City for the declaration of
nullity of marriage between Estrellita and Sen. Tamano for being bigamous.
The complaint
6
alleged, inter alia, that Sen. Tamano married Zorayda on
May 31, 1958 under civil rites, and that this marriage remained subsisting
when he married Estrellita in 1993. The complaint likewise averred that:
11. The marriage of the deceased and Complainant Zorayda,
having been celebrated under the New Civil Code, is therefore
governed by this law. Based on Article 35 (4) of the Family Code,
the subsequent marriage entered into by deceased Mamintal with
Defendant Llave is void ab initio because he contracted the same
while his prior marriage to Complainant Zorayda was still
subsisting, and his status being declared as "divorced" has no
factual or legal basis, because the deceased never divorced
Complainant Zorayda in his lifetime, and he could not have
validly done so because divorce is not allowed under the New
Civil Code;
11.1 Moreover, the deceased did not and could not have divorced
Complainant Zorayda by invoking the provision of P.D. 1083,
otherwise known as the Code of Muslim Personal Laws, for the
simple reason that the marriage of the deceased with
Complainant Zorayda was never deemed, legally and factually, to
have been one contracted under Muslim law as provided under
Art. 186 (2) of P.D. 1083, since they (deceased and Complainant
Zorayda) did not register their mutual desire to be thus covered
by this law;
7

Summons was then served on Estrellita on December 19, 1994. She then
asked from the court for an extension of 30 days to file her answer to be
counted from January 4, 1995,
8
and again, another 15 days
9
or until
February 18, 1995, both of which the court granted.
10

Instead of submitting her answer, however, Estrellita filed a Motion to
Dismiss
11
on February 20, 1995 where she declared that Sen. Tamano and
Zorayda are both Muslims who were married under the Muslim rites, as had
been averred in the latter‘s disbarment complaint against Sen.
Tamano.
12
Estrellita argued that the RTC has no jurisdiction to take
cognizance of the case because under Presidential Decree (PD) No. 1083, or
the Code of Muslim Personal Laws of the Philippines (Muslim Code),
questions and issues involving Muslim marriages and divorce fall under the
exclusive jurisdiction of shari‘a courts.
The trial court denied Estrellita‘s motion and asserted its jurisdiction over
the case for declaration of nullity.
13
Thus, Estrellita filed in November 1995
a certiorari petition with this Court questioning the denial of her Motion to
Dismiss. On December 15, 1995, we referred the petition to the CA
14
which
was docketed thereat as CA-G.R. SP No. 39656.
During the pendency of CA-G.R. SP No. 39656, the RTC continued to try the
case since there can be no default in cases of declaration of nullity of
marriage even if the respondent failed to file an answer. Estrellita was
allowed to participate in the trial while her opposing parties presented their
evidence. When it was Estrellita‘s turn to adduce evidence, the hearings set
for such purpose
15
were postponed mostly at her instance until the trial
court, on March 22, 1996, suspended the proceedings
16
in view of the CA‘s
temporary restraining order issued on February 29, 1996, enjoining it from
hearing the case.
17

Eventually, however, the CA resolved the petition adverse to Estrellita in its
Decision dated September 30, 1996.
18
Estrellita then elevated the appellate
court‘s judgment to this Court by way of a petition for review on certiorari
docketed as G.R. No. 126603.
19

Subsequent to the promulgation of the CA Decision, the RTC ordered
Estrellita to present her evidence on June 26, 1997.
20
As Estrellita was
indisposed on that day, the hearing was reset to July 9, 1997.
21
The day
before this scheduled hearing, Estrellita again asked for a postponement.
22

Unhappy with the delays in the resolution of their case, Zorayda and Adib
moved to submit the case for decision,
23
reasoning that Estrellita had long
been delaying the case. Estrellita opposed, on the ground that she has not
yet filed her answer as she still awaits the outcome of G.R. No. 126603.
24

On June 29, 1998, we upheld the jurisdiction of the RTC of Quezon
City,
25
stating as one of the reasons that as shari‘a courts are not vested
with original and exclusive jurisdiction in cases of marriages celebrated
under both the Civil Code and PD 1083, the RTC, as a court of general
jurisdiction, is not precluded from assuming jurisdiction over such cases. In
our Resolution dated August 24, 1998,
26
we denied Estrellita‘s motion for
reconsideration
27
with finality.
A few days before this resolution, or on August 18, 1998, the RTC rendered
the aforementioned judgment declaring Estrellita‘s marriage with Sen.
Tamano as void ab initio.
28

Ruling of the Regional Trial Court
The RTC, finding that the marital ties of Sen. Tamano and Zorayda were
never severed, declared Sen. Tamano‘s subsequent marriage to Estrellita as
void ab initio for being bigamous under Article 35 of the Family Code of the
Philippines and under Article 83 of the Civil Code of the Philippines.
29
The
court said:
A comparison between Exhibits A and B (supra) immediately shows that the
second marriage of the late Senator with [Estrellita] was entered into during
the subsistence of his first marriage with [Zorayda]. This renders the
subsequent marriage void from the very beginning. The fact that the late
Senator declared his civil status as "divorced" will not in any way affect the
void character of the second marriage because, in this jurisdiction, divorce
obtained by the Filipino spouse is not an acceptable method of terminating
the effects of a previous marriage, especially, where the subsequent
marriage was solemnized under the Civil Code or Family Code.
30

Ruling of the Court of Appeals
In her appeal,
31
Estrellita argued that she was denied her right to be heard
as
Page 17 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 17

the RTC rendered its judgment even without waiting for the finality of the
Decision of the Supreme Court in G.R. No. 126603. She claimed that the
RTC should have required her to file her answer after the denial of her
motion to dismiss. She maintained that Sen. Tamano is capacitated to
marry her as his marriage and subsequent divorce with Zorayda is governed
by the Muslim Code. Lastly, she highlighted Zorayda‘s lack of legal standing
to question the validity of her marriage to the deceased.
In dismissing the appeal in its Decision dated August 17, 2004,
32
the CA
held that Estrellita can no longer be allowed to file her answer as she was
given ample opportunity to be heard but simply ignored it by asking for
numerous postponements. She never filed her answer despite the lapse of
around 60 days, a period longer than what was prescribed by the rules. It
also ruled that Estrellita cannot rely on her pending petition
for certiorari with the higher courts since, as an independent and original
action, it does not interrupt the proceedings in the trial court.
As to the substantive merit of the case, the CA adjudged that Estrellita‘s
marriage to Sen. Tamano is void ab initio for being bigamous, reasoning
that the marriage of Zorayda and Sen. Tamano is governed by the Civil
Code, which does not provide for an absolute divorce. It noted that their
first nuptial celebration was under civil rites, while the subsequent Muslim
celebration was only ceremonial. Zorayda then, according to the CA, had the
legal standing to file the action as she is Sen. Tamano‘s wife and, hence, the
injured party in the senator‘s subsequent bigamous marriage with Estrellita.
In its September 13, 2005 Resolution,
33
the CA denied Estrellita‘s Motion for
Reconsideration/Supplemental Motion for Reconsideration where it
debunked the additional errors she raised. The CA noted that the allegation
of lack of the public prosecutor‘s report on the existence of collusion in
violation of both Rule 9, Section 3(e) of the Rules of Court
34
and Article 48
of the Family Code
35
will not invalidate the trial court‘s judgment as the
proceedings between the parties had been adversarial, negating the
existence of collusion. Assuming that the issues have not been joined before
the RTC, the same is attributable to Estrellita‘s refusal to file an answer.
Lastly, the CA disregarded Estrellita‘s allegation that the trial court
erroneously rendered its judgment way prior to our remand to the RTC of
the records of the case ratiocinating that G.R. No. 126603 pertains to the
issue on the denial of the Motion to Dismiss, and not to the issue of the
validity of Estrellita‘s marriage to Sen. Tamano.
The Parties‘ Respective Arguments
Reiterating her arguments before the court a quo, Estrellita now argues that
the CA erred in upholding the RTC judgment as the latter was prematurely
issued, depriving her of the opportunity to file an answer and to present her
evidence to dispute the allegations against the validity of her marriage. She
claims that Judge Macias v. Macias
36
laid down the rule that the filing of a
motion to dismiss instead of an answer suspends the period to file an
answer and, consequently, the trial court is obliged to suspend proceedings
while her motion to dismiss on the ground of lack of jurisdiction has not yet
been resolved with finality. She maintains that she merely participated in
the RTC hearings because of the trial court‘s assurance that the proceedings
will be without prejudice to whatever action the High Court will take on her
petition questioning the RTC‘s jurisdiction and yet, the RTC violated this
commitment as it rendered an adverse judgment on August 18, 1998,
months before the records of G.R. No. 126603 were remanded to the CA on
November 11, 1998.
37
She also questions the lack of a report of the public
prosecutor anent a finding of whether there was collusion, this being a
prerequisite before further proceeding could be held when a party has failed
to file an answer in a suit for declaration of nullity of marriage.
Estrellita is also steadfast in her belief that her marriage with the late
senator is valid as the latter was already divorced under the Muslim Code at
the time he married her. She asserts that such law automatically applies to
the marriage of Zorayda and the deceased without need of registering their
consent to be covered by it, as both parties are Muslims whose marriage
was solemnized under Muslim law. She pointed out that Sen. Tamano
married all his wives under Muslim rites, as attested to by the affidavits of
the siblings of the deceased.
38

Lastly, Estrellita argues that Zorayda and Adib have no legal standing to file
suit because only the husband or the wife can file a complaint for the
declaration of nullity of marriage under Supreme Court Resolution A.M. No.
02-11-10-SC.
39

Refuting the arguments, the Solicitor General (Sol Gen) defends the CA‘s
reasoning and stresses that Estrellita was never deprived of her right to be
heard; and, that filing an original action for certiorari does not stay the
proceedings of the main action before the RTC.
As regards the alleged lack of report of the public prosecutor if there is
collusion, the Sol Gen says that this is no longer essential considering the
vigorous opposition of Estrellita in the suit that obviously shows the lack of
collusion. The Sol Gen also supports private respondents‘ legal standing to
challenge the validity of Estrellita‘s purported marriage with Sen. Tamano,
reasoning that any proper interested party may attack directly or collaterally
a void marriage, and Zorayda and Adib have such right to file the action as
they are the ones prejudiced by the marital union.
Zorayda and Adib, on the other hand, did not file any comment.
Issues
The issues that must be resolved are the following:
1. Whether the CA erred in affirming the trial court‘s judgment,
even though the latter was rendered prematurely because: a) the
judgment was rendered without waiting for the Supreme Court‘s
final resolution of her certiorari petition, i.e., G.R. No. 126603; b)
she has not yet filed her answer and thus was denied due
process; and c) the public prosecutor did not even conduct an
investigation whether there was collusion;
2. Whether the marriage between Estrellita and the late Sen.
Tamano was bigamous; and
3. Whether Zorayda and Adib have the legal standing to have
Estrellita‘s marriage declared void ab initio.
Our Ruling
Estrellita‘s refusal to file an answer eventually led to the loss of her right to
answer; and her pending petition for certiorari/review on certiorari
questioning the denial of the motion to dismiss before the higher courts
does not at all suspend the trial proceedings of the principal suit before the
RTC of Quezon City.
Firstly, it can never be argued that Estrellita was deprived of her right to
due process. She was never declared in default, and she even actively
participated in the trial to defend her interest.
Estrellita invokes Judge Macias v. Macias
40
to justify the suspension of the
period to file an answer and of the proceedings in the trial court until her
petition for certiorari questioning the validity of the denial of her Motion to
Dismiss has been decided by this Court. In said case, we affirmed the
following reasoning of the CA which, apparently, is Estrellita‘s basis for her
argument, to wit:
However, she opted to file, on April 10, 2001, a ‗Motion to Dismiss,‘ instead
of filing an Answer to the complaint. The filing of said motion suspended the
period for her to file her Answer to the complaint. Until said motion is
resolved by the Respondent Court with finality, it behooved the Respondent
Court to suspend the hearings of the case on the merits. The Respondent
Court, on April 19, 2001, issued its Order denying the ‗Motion to Dismiss‘ of
the Petitioner. Under Section 6, Rule 16 of the 1997 Rules of Civil Procedure
[now Section 4], the Petitioner had the balance of the period provided for in
Rule 11 of the said Rules but in no case less than five (5) days computed
from service on her of the aforesaid Order of the Respondent Court within
which to file her Answer to the complaint: x x x
41
(Emphasis supplied.)
Estrellita obviously misappreciated Macias. All we pronounced therein is that
the trial court is mandated to suspend trial until it finally resolves the
motion to dismiss that is filed before it. Nothing in the above excerpt states
that the trial court should suspend its proceedings should the issue of the
propriety or impropriety of the motion to dismiss be raised before the
appellate courts. In Macias, the trial court failed to observe due process in
the course of the proceeding of the case because after it denied the wife‘s
motion to dismiss, it immediately proceeded to allow the husband to present
evidence ex parte and resolved the case with undue haste even when,
under the rules of procedure, the wife still had time to file an answer. In the
instant case, Estrellita had no time left for filing an answer, as she filed the
motion to dismiss beyond the extended period earlier granted by the trial
court after she filed motions for extension of time to file an answer.
Estrellita argues that the trial court prematurely issued its judgment, as it
should have waited first for the resolution of her Motion to Dismiss before
the CA and, subsequently, before this Court. However, in upholding the
RTC, the CA correctly ruled that the pendency of a petition for certiorari
does not suspend the proceedings before the trial court. "An application for
certiorari is an independent action which is not part or a continuation of the
trial which resulted in the rendition of the judgment complained of."
42
Rule
65 of the Rules of Court is explicit in stating that "[t]he petition shall not
interrupt the course of the principal case unless a temporary restraining
order or a writ of preliminary injunction has been issued against the public
respondent from further proceeding in the case."
43
In fact, the trial court
respected the CA‘s temporary restraining order and only after the CA
rendered judgment did the RTC again require Estrellita to present her
evidence.
Notably, when the CA judgment was elevated to us by way of Rule 45, we
never issued any order precluding the trial court from proceeding with the
principal action. With her numerous requests for postponements, Estrellita
remained obstinate in refusing to file an answer or to present her evidence
when it was her turn to do so, insisting that the trial court should wait first
for our decision in G.R. No. 126603. Her failure to file an answer and her
refusal to present her evidence were attributable only to herself and she
should not be allowed to benefit from her own dilatory tactics to the
prejudice of the other party. Sans her answer, the trial court correctly
proceeded with the trial and rendered its Decision after it deemed Estrellita
to have waived her right to present her side of the story. Neither should the
lower court wait for the decision in G.R. No. 126603 to become final and
executory, nor should it wait for its records to be remanded back to it
because G.R. No. 126603 involves strictly the propriety of the Motion to
Dismiss and not the issue of validity of marriage.
Page 18 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 18

The Public Prosecutor issued a report as
to the non-existence of collusion.
Aside from Article 48 of the Family Code and Rule 9, Section 3(e) of the
Rules of Court, the Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC)
44
also
requries the participation of the public prosecutor in cases involving void
marriages. It specifically mandates the prosecutor to submit his
investigation report to determine whether there is collusion between the
parties:
Sec. 9. Investigation report of public prosecutor.–(1) Within one month
after receipt of the court order mentioned in paragraph (3) of Section 8
above, the public prosecutor shall submit a report to the court stating
whether the parties are in collusion and serve copies thereof on the parties
and their respective counsels, if any.
(2) If the public prosecutor finds that collusion exists, he shall
state the basis thereof in his report. The parties shall file their
respective comments on the finding of collusion within ten days
from receipt of a copy of the report. The court shall set the report
for hearing and if convinced that the parties are in collusion, it
shall dismiss the petition.
(3) If the public prosecutor reports that no collusion exists, the
court shall set the case for pre-trial. It shall be the duty of the
public prosecutor to appear for the State at the pre-trial.
Records show that the trial court immediately directed the public prosecutor
to submit the required report,
45
which we find to have been sufficiently
complied with by Assistant City Prosecutor Edgardo T. Paragua in his
Manifestation dated March 30, 1995,
46
wherein he attested that there could
be no collusion between the parties and no fabrication of evidence because
Estrellita is not the spouse of any of the private respondents.
Furthermore, the lack of collusion is evident in the case at bar. Even
assuming that there is a lack of report of collusion or a lack of participation
by the public prosecutor, just as we held in Tuason v. Court of
Appeals,
47
the lack of participation of a fiscal does not invalidate the
proceedings in the trial court:
The role of the prosecuting attorney or fiscal in annulment of marriage and
legal separation proceedings is to determine whether collusion exists
between the parties and to take care that the evidence is not suppressed or
fabricated. Petitioner's vehement opposition to the annulment proceedings
negates the conclusion that collusion existed between the parties. There is
no allegation by the petitioner that evidence was suppressed or fabricated
by any of the parties. Under these circumstances, we are convinced that the
non-intervention of a prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the validity of the proceedings
in the trial court.
48

The Civil Code governs the marriage of Zorayda and the late Sen. Tamano;
their marriage was never invalidated by PD 1083. Sen. Tamano‘s
subsequent marriage to Estrellita is void ab initio.
The marriage between the late Sen. Tamano and Zorayda was celebrated in
1958, solemnized under civil and Muslim rites.
49
The only law in force
governing marriage relationships between Muslims and non-Muslims alike
was the Civil Code of 1950, under the provisions of which only one marriage
can exist at any given time.
50
Under the marriage provisions of the Civil
Code, divorce is not recognized except during the effectivity of Republic Act
No. 394
51
which was not availed of during its effectivity.
As far as Estrellita is concerned, Sen. Tamano‘s prior marriage to Zorayda
has been severed by way of divorce under PD 1083,
52
the law that codified
Muslim personal laws. However, PD 1083 cannot benefit Estrellita. Firstly,
Article 13(1) thereof provides that the law applies to "marriage and divorce
wherein both parties are Muslims, or wherein only the male party is a
Muslim and the marriage is solemnized in accordance with Muslim law or
this Code in any part of the Philippines." But we already ruled in G.R. No.
126603 that "Article 13 of PD 1083 does not provide for a situation where
the parties were married both in civil and Muslim rites."
53

Moreover, the Muslim Code took effect only on February 4, 1977, and this
law cannot retroactively override the Civil Code which already bestowed
certain rights on the marriage of Sen. Tamano and Zorayda. The former
explicitly provided for the prospective application of its provisions unless
otherwise provided:
Art. 186 (1). Effect of code on past acts. —Acts executed prior to the
effectivity of this Code shall be governed by the laws in force at the time of
their execution, and nothing herein except as otherwise specifically
provided, shall affect their validity or legality or operate to extinguish any
right acquired or liability incurred thereby.
It has been held that:
The foregoing provisions are consistent with the principle that all laws
operate prospectively, unless the contrary appears or is clearly, plainly and
unequivocably expressed or necessarily implied; accordingly, every case of
doubt will be resolved against the retroactive operation of laws. Article 186
aforecited enunciates the general rule of the Muslim Code to have its
provisions applied prospectively, and implicitly upholds the force and effect
of a pre-existing body of law, specifically, the Civil Code – in respect of civil
acts that took place before the Muslim Code‘s enactment.
54

An instance of retroactive application of the Muslim Code is Article 186(2)
which states:
A marriage contracted by a Muslim male prior to the effectivity of this Code
in accordance with non-Muslim law shall be considered as one contracted
under Muslim law provided the spouses register their mutual desire to this
effect.
Even granting that there was registration of mutual consent for the
marriage to be considered as one contracted under the Muslim law, the
registration of mutual consent between Zorayda and Sen. Tamano will still
be ineffective, as both are Muslims whose marriage was celebrated under
both civil and Muslim laws. Besides, as we have already settled, the Civil
Code governs their personal status since this was in effect at the time of the
celebration of their marriage. In view of Sen. Tamano‘s prior marriage which
subsisted at the time Estrellita married him, their subsequent marriage is
correctly adjudged by the CA as void ab initio.
Zorayda and Adib, as the injured parties, have the legal personalities to file
the declaration of nullity of marriage. A.M. No. 02-11-10-SC, which limits to
only the husband or the wife the filing of a petition for nullity is prospective
in application and does not shut out the prior spouse from filing suit if the
ground is a bigamous subsequent marriage.
Her marriage covered by the Family Code of the Philippines,
55
Estrellita
relies on A.M. No. 02-11-10-SC which took effect on March 15, 2003
claiming that under Section 2(a)
56
thereof, only the husband or the wife, to
the exclusion of others, may file a petition for declaration of absolute nullity,
therefore only she and Sen. Tamano may directly attack the validity of their
own marriage.
Estrellita claims that only the husband or the wife in a void marriage can file
a petition for declaration of nullity of marriage. However, this interpretation
does not apply if the reason behind the petition is bigamy.
In explaining why under A.M. No. 02-11-10-SC only the spouses may file
the petition to the exclusion of compulsory or intestate heirs, we said:
The Rationale of the Rules on Annulment of Voidable Marriages and
Declaration of Absolute Nullity of Void Marriages, Legal Separation and
Provisional Orders explicates on Section 2(a) in the following manner, viz:
(1) Only an aggrieved or injured spouse may file petitions for annulment of
voidable marriages and declaration of absolute nullity of void marriages.
Such petitions cannot be filed by the compulsory or intestate heirs of the
spouses or by the State. [Section 2; Section 3, paragraph a]
Only an aggrieved or injured spouse may file a petition for annulment of
voidable marriages or declaration of absolute nullity of void marriages. Such
petition cannot be filed by compulsory or intestate heirs of the spouses or
by the State. The Committee is of the belief that they do not have a legal
right to file the petition. Compulsory or intestate heirs have only inchoate
rights prior to the death of their predecessor, and hence can only question
the validity of the marriage of the spouses upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased spouse filed in
the regular courts. On the other hand, the concern of the State is to
preserve marriage and not to seek its dissolution.
57

Note that the Rationale makes it clear that Section 2(a) of A.M. No. 02-11-
10-SC refers to the "aggrieved or injured spouse." If Estrellita‘s
interpretation is employed, the prior spouse is unjustly precluded from filing
an action. Surely, this is not what the Rule contemplated.
The subsequent spouse may only be expected to take action if he or she
had only discovered during the connubial period that the marriage was
bigamous, and especially if the conjugal bliss had already vanished. Should
parties in a subsequent marriage benefit from the bigamous marriage, it
would not be expected that they would file an action to declare the marriage
void and thus, in such circumstance, the "injured spouse" who should be
given a legal remedy is the one in a subsisting previous marriage. The latter
is clearly the aggrieved party as the bigamous marriage not only threatens
the financial and the property ownership aspect of the prior marriage but
most of all, it causes an emotional burden to the prior spouse. The
subsequent marriage will always be a reminder of the infidelity of the
spouse and the disregard of the prior marriage which sanctity is protected
by the Constitution.
Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes the son from
impugning the subsequent marriage.1âwphi1 But in the case at bar, both
Zorayda and Adib have legal personalities to file an action for nullity. Albeit
the Supreme Court Resolution governs marriages celebrated under the
Page 19 of 19

Eliza Den l PERSONS AND FAMILY RELATIONS 19

Family Code, such is prospective in application and does not apply to cases
already commenced before March 15, 2003.
58

Zorayda and Adib filed the case for declaration of nullity of Estrellita‘s
marriage in November 1994. While the Family Code is silent with respect to
the proper party who can file a petition for declaration of nullity of marriage
prior to A.M. No. 02-11-10-SC, it has been held that in a void marriage, in
which no marriage has taken place and cannot be the source of rights, any
interested party may attack the marriage directly or collaterally without
prescription, which may be filed even beyond the lifetime of the parties to
the marriage.
59
Since A.M. No. 02-11-10-SC does not apply, Adib, as one of
the children of the deceased who has property rights as an heir, is likewise
considered to be the real party in interest in the suit he and his mother had
filed since both of them stand to be benefited or injured by the judgment in
the suit.
60

Since our Philippine laws protect the marital union of a couple, they should
be interpreted in a way that would preserve their respective rights which
include striking down bigamous marriages. We thus find the CA Decision
correctly rendered.
WHEREFORE, the petition is DENIED. The assailed August 17, 2004 Decision
of the Court of Appeals in CA-G.R. CV No. 61762, as well as its subsequent
Resolution issued on September 13, 2005, are hereby AFFIRMED.
SO ORDERED.